321-1.1 Development of environmental goals and objectives. The department of health, with input from the regulated community and general public, shall develop environmental goals and objectives, to be used in the implementation of its programs which shall ensure that the following natural resources are protected: air quality; land; coastal waters; inland waters; and groundwater. It shall also be the goal of the department to organize its environmental protection programs to improve the coordination of environmental planning and oversight; improve the enforcement of environmental laws, rules, and policies; and improve the ability to identify, prevent, and respond to significant releases of pollutants into the environment. The department of health shall ensure that the environmental goals and objectives will remain current by reviewing them every two years, with input from the regulated community and the general public. The department shall report its findings and conclusions following each such review, to the legislature no later than twenty days prior to the convening of the legislative session immediately following the completion of the review. [L 1996, c 290, 4]
  321-1.3 Domestic violence and sexual assault special fund. (a) There is established within the state treasury a special fund to be known as the domestic violence and sexual assault special fund to be administered and expended by the department of health.  (b) The moneys in the special fund shall be reserved for use by the department of health for programs and grants or purchases of service consistent with chapter 42D that support or provide domestic violence and sexual assault intervention or prevention as authorized by law. Moneys in the special fund shall be used for new or existing programs and shall not supplant any other moneys previously allocated to these programs.  (c) Fees remitted pursuant to section 338-14.5, income tax remittances allocated under section 235-102.5, interest and investment earnings attributable to the moneys in the special fund, and grants, donations, and contributions from private or public sources for the purposes of the fund, shall be deposited into the special fund.  (d) The department of health shall submit an annual report to the legislature no later than twenty days prior to the convening of each regular session providing the following:  (1) An accounting of the receipts of, and expenditures from, the special fund; and  (2) Recommendations on how to improve services for victims of domestic violence and sexual assault. [L 1997, c 216,  1, 13; am L 1999, c 194, 1; am L 2004, c 228, 2; am L 2005, c 142, 2]
 321-1.4 Office of health care assurance special fund; deposits; expenditures. (a) There is established within the department of health, to be administered by the department of health, the office of health care assurance special fund into which shall be deposited moneys collected under section 321-11.5(b), license fees for the administration of the durable medical equipment supplier license program collected pursuant to section 321-544, and all administrative penalties imposed and collected by the office of health care assurance pursuant to section 321-20.  (b) Moneys in the special fund shall be expended by the department of health:  (1) To assist in offsetting operating costs and educational program expenses of the department of health's office of health care assurance; and  (2) For the purpose of enhancing the capacity of office of health care assurance programs to:  (A) Improve public health outreach efforts, program and community development, and consultations to industries regulated;  (B) Educate the public, the staff of the department of health, and other departments within the State, as well as staff and providers of all health care facilities and agencies regulated; and  (C) Administer and support the durable medical equipment supplier license program established pursuant to part XLIII. Not more than $327,000 of the special fund may be used during any fiscal year for the activities carried out by the office of health care assurance.  (c) Any amount in the special fund in excess of $387,500 on June 30 of each year shall be deposited into the general fund.  (d) The department of health shall submit a report to the legislature concerning the status of the special fund, including the amount of moneys deposited into and expended from the special fund, and the sources of receipts and uses of expenditures, no later than twenty days prior to the convening of each regular session. [L 1999, c 120, 1; am L 2002, c 188, 1; am L 2007, c 90, 1; am L 2016, c 137, 3]
  321-1.5 Primary health care incentive program; establishment. There is established within the department of health a primary health care incentive program. The program shall:  (1) Utilize existing personnel and resources to focus on primary health care;  (2) Study the adequacy, accessibility, and availability of primary health care with regard to medically underserved persons in the State of Hawaii;  (3) Convene and provide staff support for a volunteer primary health care roundtable composed of knowledgeable health care professionals, consumers, and other interested persons whose advisory purpose shall be to:  (A) Investigate and analyze the extent, location, and characteristics of medically underserved areas, and the numbers, location, and characteristics of medically underserved persons in Hawaii, with particular attention given to shortages of health care professionals available to provide care to these areas and persons;  (B) Assess the feasibility of family practice clerkships, preceptor programs, residency programs, and placement programs for medical school students and graduates as a means of increasing the number of family practitioners available to serve medically underserved areas and populations;  (C) Investigate and make recommendations regarding incentives, such as tuition exemptions, to increase the pool of primary health care practitioners, including family practitioners, other physicians in related specialties, nurse practitioners, nurse midwives, and physician assistants, that are available to serve medically underserved areas and populations;  (D) Develop a strategy for meeting the health needs of medically underserved areas and populations based upon the findings that result from its investigations; and  (E) Maintain an ongoing forum for the discussion of data collection regarding primary health care gaps, incentives to promote primary health care, and the development of cooperative interdisciplinary efforts among primary health care professionals;  (4) Develop a strategy to provide appropriate and adequate access to primary health care in underserved areas;  (5) Promote and develop community and consumer involvement in maintaining, rebuilding, and diversifying primary health care services in medically underserved areas;  (6) Produce and distribute minutes of volunteer primary health care roundtable's discussions, and submit annual reports to the legislature on recommended incentives and strategies, as well as a plan for implementation, with the first report to be submitted to the legislature no later than twenty days prior to the convening of the 1993 regular session; and  (7) Facilitate communication and coordination among providers, health care educators, communities, cultural groups, and consumers of primary health care. [L 1992, c 41, 2] Note  Family practice ambulatory health center. L 1993, c 347, 4. Cross References  Family practice residency program, see 304A-1801.
  321-1.6 Additional duties of the director. Any health center previously designated as a Federally Qualified Health Center (FQHC), FQHC look alike, or Rural Health Clinic (RHC) shall have comparable designation as a Hawaii Qualified Health Center and shall also be known as Essential Community Providers. The director of health, with the concurrence of the director of human services, shall have the authority to designate other Hawaii health centers not yet federally designated but deserving of support to meet short term public health needs based on the department of health's criteria, as Hawaii Qualified Health Centers. [L 1994, c 238, 2] Cross References  Federally qualified health centers and rural health clinics--supplemental medicaid payment process, see  346-53.61 to 346-53.65.  Federally qualified health centers; rural health clinics; reimbursement, see 346-53.6.
  321-1.65 Community health centers special fund. (a) There is established within the state treasury a special fund to be known as the community health centers special fund to be administered and expended by the department of health.  (b) The moneys in the special fund shall be used by the department of health for the operations of federally qualified health centers.  (c) Moneys collected pursuant to section 245-15 shall be deposited into the special fund. [L 2006, c 316, 3]
  321-1.7 Public health nursing services program. (a) There is established within the department of health a public health nursing services program. At the discretion of the director of health, the program may provide services, including but not limited to the following:  (1) Mobilizing the department's nursing resources and responding to catastrophic and traumatic emergency events, including natural disasters and biologic outbreaks or exposures;  (2) Responding to communicable disease, epidemic, and other public health disease outbreaks;  (3) Providing care coordination services to the most vulnerable populations of special needs infants, toddlers, and children with complex medical conditions, including medically fragile children, as well as the elderly and other populations who have difficulty accessing the health care system;  (4) Collaborating with the department of education and the Hawaii chapter of the American Academy of Pediatrics in providing school health services to address the medical and health conditions of public school students that affect their learning;  (5) Developing collaborative partnerships with individuals, families, communities, and providers to improve the health of families and communities through the assessment of community health needs, the setting of priorities, and policy development;  (6) Collecting and evaluating data to determine family and community health needs for nursing and health service delivery changes to enhance the quality of life for families; and  (7) Providing other health care related services as determined appropriate based on community health needs.  (b) Provision of services by the public health nursing services program shall be limited by and subject to the availability of funds. [L 2004, c 173, 2]
  321-1.8 Inspections; public notice. (a) Beginning with inspections occurring on January 1, 2015, the department of health shall post on its website electronic copies of reports for all inspections it performs of the following state-licensed care facilities:  (1) Adult day health centers;  (2) Adult day care centers;  (3) Community care foster family homes;  (4) Developmental disabilities domiciliary homes as defined in section 321-15.9;  (5) Developmentally disabled adult foster homes;  (6) Long-term care facilities as defined in section 349-21(f); and  (7) Special treatment facilities as defined in section 334-1.  (b) Each report shall be posted on the department of health's website within five working days of the conclusion of each inspection and shall include the following information:  (1) The date of the inspection;  (2) A description of violations of relevant state laws or rules, if applicable;  (3) Plans of correction and the status of corrective actions in response to any violations, if applicable;  (4) A list and description of all corrective actions taken by the facility, if applicable, to be submitted by the facility and added to the report at a later time, as determined by the department; and  (5) Other information regarding the quality and conditions of the facility the department of health deems appropriate.  (c) Each report posted on the department of health's website that reports a violation committed by a state-licensed care facility as described in subsection (a) shall be removed from the website after three years from the date the report was posted. [L 2013, c 213, 2]
  321-1.9 Inspections; visits; state-licensed or state-certified care facilities. (a) The department of health shall conduct unannounced visits and inspections, including inspections for relicensing or recertification, for the following state-licensed or state-certified care facilities on an annual basis and at such intervals as determined by the department to ensure the health, safety, and welfare of each resident:  (1) Adult day health centers;  (2) Adult day care centers;  (3) Community care foster family homes;  (4) Developmental disabilities domiciliary homes;  (5) Adult foster homes;  (6) Long-term care facilities, including but not limited to:  (A) Adult residential care homes;  (B) Expanded adult residential care homes;  (C) Assisted living facilities;  (D) Intermediate care facilities;  (E) Nursing facilities; and  (F) Skilled nursing facilities; and  (7) Special treatment facilities.  (b) Unannounced visits may be conducted during or outside regular business hours. All inspections relating to follow-up visits, visits to confirm correction of deficiencies, or visits to investigate complaints or suspicion of abuse or neglect shall be conducted unannounced during or outside regular business hours. Annual inspections for relicensing or recertification may be conducted during regular business hours or at intervals determined by the department. Annual inspections for relicensing or recertification shall be conducted without notice.  (c) The department shall adopt rules pursuant to chapter 91 to effectuate the purposes of this section. [L 2016, c 184, 2]
  321-1 General powers and duties of the department. (a) The department of health shall have general charge, oversight, and care of the health and lives of the people of the State, and shall pursue as a goal, the achievement of health equity. The department shall consider social determinants of health in the assessment of state needs for health.  (b) The department may conduct epidemiologic investigations of diseases and injuries that threaten or are deemed by the department to threaten the public health and safety.  (c) The department shall have authority in matters of quarantine and other health matters and may declare and enforce quarantine when none exists and modify or release quarantine when it is established.  (d) When it is determined that there is imminent danger of epidemic or serious outbreak of communicable disease, the department may refuse, modify, or limit attendance at any school in the State.  (e) When in the judgment of the director, there is deemed to be a potential health hazard, the department may take precautionary measures to protect the public through the imposition of an embargo, the detention of products regulated by the department, the removal of products regulated by the department from the market, the declaration of quarantine, or by sequestering items suspected to be contaminated by toxic or infectious substances; provided that the director shall find evidence of a health hazard within seven days of the action taken or rescind the action. The director shall make public the findings.  (f) All county health authorities, sheriffs, police officers, and all other officers and employees of the State, and every county thereof, shall enforce the rules of the department. All such powers in health matters as have been or may be conferred upon any county shall be concurrent with those of the department.  (g) The department may establish charges and collect fees for any of its services; provided that the department shall not refuse to provide services to any person due to the person's inability to pay the fee for the service. The department, through the director, shall make an annual report to the governor, showing in detail all its expenditures and transactions, and such other information regarding the public health as the department may deem of special interest.  (h) The department, during the prevalence of any severe pestilence or epidemic, shall publish a weekly report of the public health.  (i) The department shall establish and administer programs, and adopt rules as deemed necessary, for the prevention of domestic and sexual violence and the protection and treatment of victims of domestic and sexual violence.  (j) As used in this section:  "Health equity" means assuring equal opportunity for all people in the State to attain their full health potential.  "Social determinants of health" means the complex, integrated, and overlapping social structures and economic systems that contribute to health inequities. These social structures and economic systems include the social environment, physical environment, health services, and structural and societal factors. [L 1937, c 122, pt of 2; RL 1945, 2007; RL 1955, 46-8; am L Sp 1959 2d, c 1, 19; HRS 321-1; am L 1984, c 173, 1; am L 1985, c 271, 4; am L 1989, c 211, 10; am L 1990, c 281, 11; am L 1991, c 158, 1; am L 1996, c 167, 2; am L 1999, c 192, 3; am L 2002, c 169, 3; am L 2014, c 157, 2] Cross References  Annual reports, see 93-12.  General functions and authority, see 26-13. Case Notes  Health laws should be liberally construed to accomplish their purpose to protect community. 21 H. 56, 60; 21 H. 206, 208; 22 H. 327, 333.
  321-10.5 Agricultural processing facilities; permits; priority. (a) Any agency subject to this chapter or title 19 that issues permits shall establish and implement a procedure for the priority processing of permit applications and renewals, at no additional cost to the applicant, for agricultural processing facilities that process crops or livestock from an agribusiness; provided that the majority of the lands held, owned, or used by the agribusiness shall be land designated as important agricultural lands pursuant to part III of chapter 205, excluding lands held, owned, or used by the agribusiness in a conservation district.  Any priority permit processing procedure established pursuant to this section shall not provide or imply that any permit application filed under the priority processing procedure shall be automatically approved.  (b) As used in this section, "agribusiness" means a business primarily engaged in the care and production of livestock, livestock products, poultry, poultry products, apiary, horticultural or floricultural products, the planting, cultivating, and harvesting of crops or trees, or the farming or ranching of any plant or animal species in a controlled salt, brackish, or fresh water environment. [L 2008, c 233, 12]
 321-10 Rules, adoption, effect. All rules and regulations made by the department of health shall be made in conformity with chapter 91. They shall have the force and effect of law. [PC 1869, c 59, 7; RL 1925, 913; RL 1935, 905; am L 1939, c 136, 1; RL 1945, 2012; am L 1945, c 116, 1(a); RL 1955, 46-12; am L Sp 1959 2d, c 1, 19; am L 1965, c 96, 28; HRS 321-10]
Note Part heading amended by L 1981, c 193, 2; L 1993, c 6, 12.  321-101 Systematic hearing and vision program. (a) There is established a systematic hearing and vision program for children to be conducted by the department of health. The purpose of the program shall be to:  (1) Detect and identify hearing and vision deficiencies in school children; and  (2) Recommend to their parents or guardians the need for appropriate evaluation of children who have hearing or vision deficiencies, or both, and follow-up and track completed evaluations, including diagnostic and treatment information.  (b) Within available resources, the program shall include:  (1) Consultation with students, parents, and health and education personnel about treatment and rehabilitation of hearing and vision deficiencies; and  (2) Education of students, health and education personnel, and the general public about preserving and caring for hearing and vision and about preventing hearing and vision deficiencies.  (c) The departments of health and education, in cooperation with each other, may conduct classes and lectures in hearing and vision conservation and prevention of hearing loss and blindness for teachers, public health nurses, and others engaged in similar work. The departments shall also cooperate with public and private organizations and societies to educate the public in the importance of hearing and vision conservation. [L 1965, c 246, 5; Supp, 46-100; HRS 321-101; am L 1981, c 193, 2; am L 1992, c 312, 1]
  321-106 Prevention of blindness at childbirth. The department of health may require the administration of prophylaxis for the prevention of blindness in the newborn at childbirth. [L 1982, c 17, 1]
 321-11.1 Medically accurate sexuality health education. (a) Sexuality health education programs funded by the State shall provide medically accurate and factual information that is age appropriate and includes education on abstinence, contraception, and methods of disease prevention to prevent unintended pregnancy and sexually transmitted disease, including human immunodeficiency virus.  (b) For the purposes of this section:  "Age appropriate" means suitable to a particular age or age group based on developing cognitive, emotional, and behavioral capacity typical for that age or age group.  "Factual information" means medical, psychiatric, psychological, empirical, or statistical information that is verified or supported by research conducted by recognized medical, psychiatric, psychological, and public health professionals or organizations.  "Medically accurate" means verified or supported by research conducted in compliance with accepted scientific methods and recognized as accurate and objective by professional organizations and agencies with expertise in the relevant field, such as the federal Centers for Disease Control and Prevention, the American Public Health Association, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists.  "Sexuality health education" means education in any medium regarding human development and sexuality, including education on pregnancy, family planning, and sexually transmitted diseases. [L Sp 2009, c 27, 2]
  321-11.2 Adult foster homes. (a) The department of health is authorized to certify adult foster homes for individuals with developmental or intellectual disabilities requiring care beyond the individual's eighteenth birthday. "Adult foster home" means a private family home providing care on a twenty-four hour basis to adults with developmental or intellectual disabilities. To be certified, an adult foster home shall house not more than two adults with developmental or intellectual disabilities who are unrelated to the certified caregiver at the same time. The director of health may waive the two-adult limit for certification of that home as an adult foster home; provided that the total number of adults with developmental or intellectual disabilities in the home shall not exceed three adults with developmental or intellectual disabilities who are related or unrelated to the certified caregiver.  For the purposes of this subsection:  "Certified caregiver" means an individual who is twenty-one years of age or older, resides in an adult foster home, and has been issued by the department a valid certificate of approval to provide care, training, and supervision on a twenty-four hour basis to adults with developmental or intellectual disabilities.  "Related" means connected by legal guardianship, trusteeship, blood, marriage, or a legal relationship between the certified caregiver and the adult with developmental or intellectual disabilities.  (b) To accommodate residents of a foster boarding home for children with developmental or intellectual disabilities who reach the age of eighteen years, where the home is certified as a foster boarding home for children under section 346-17, the director of health may waive the two-adult limit for certification of that home as an adult foster home; provided that:  (1) The total number of foster children with developmental or intellectual disabilities and adults with developmental or intellectual disabilities in such a dually certified home shall not exceed three; and  (2) No new adults may be admitted into the home while there are any foster children residing in the home.  This subsection shall not affect the validity of the certification of any adult foster home that is certified as a foster boarding home under section 346-17 and in existence as of July 2, 2014.  (c) An existing adult foster home shall not be given dual certification if the certification as an adult foster home precedes dual certification, unless the certification as a foster boarding home under section 346-17 is for a specific child, as provided in the department of human services' administrative rules.  (d) The rules of the department of human services adopted under authority of section 346-17, which prescribe the standards of conditions and competence of operation of child foster boarding homes shall apply to adult foster homes. Notwithstanding chapter 91, to the contrary, the rules shall be considered adopted by the department of health on July 1, 1986, for the purpose of regulating adult foster care homes and shall be valid until the department of health adopts rules pursuant to chapter 91. The department of health shall adopt rules pursuant to chapter 91 necessary for the purposes of this section.  (e) Rate of payment for adult foster homes is to be determined on the same basis as domiciliary care homes as provided under section 346-53. [L 1986, c 328,  2, 3, and 7; am L 1987, c 334,  2, 3, and 5; am L 1988, c 141, 24; am L 1992, c 15, 2; am L 2013, c 212, 3; am L 2014, c 203, 1] Note  "Foster boarding home" in 346-17 referred to in subsections (b) to (d) changed to "resource family home" by L 2016, c 133, 3. Revision Note  In subsection (b), "July 2, 2014" substituted for "the effective date of Act [203], Session Laws of Hawaii 2014". The approval date for Act 203 was July 2, 2014. Cross References  Criminal history record checks, see 333F-22.
  321-11.3 REPEALED. L 1987, c 12, 1.
 321-11.4 Fees for electronic applications and payments. (a) Any departmental program that collects fees for the issuance of permits, licenses, certificates, or similar approvals, under chapters 340E, 340F, 342D, 342H, 342J, 342L, and that is required to deposit those fees to the credit of the general fund, may first deduct any electronic and credit card processing fees or charges that are made pursuant to agreements between the department and electronic services and credit card services providers from the total amount received by the department from the applicant for each payment made electronically.  (b) For purposes of this section, the term "credit card" includes credit cards, charge cards, and debit cards.  (c) A person making an electronic payment to the department remains liable for the underlying obligation except to the extent that the department realizes final payment of the underlying obligation in cash or the equivalent. If the credit card issuer, bank, or other guarantor of payment in the transaction does not pay the department, then the underlying obligation survives, and the department retains all remedies for enforcement that would have applied if the transaction had not occurred. No contract may modify the provisions of this subsection. This subsection, however, does not make the underlying obligor liable for any electronic or credit card fees paid to an electronic services provider or credit card issuer or party other than the department. [L 2008, c 83, 2]
 321-11.5 Establishment of fees. (a) The department of health, by rules adopted pursuant to chapter 91, may establish reasonable fees for the issuance or renewal of licenses, permits, variances, and various certificates required by law or by the department's rules. The fees may include the cost of related examinations, inspections, investigations, and reviews.  (b) [Repeal and reenactment on June 30, 2014. L Sp 2009, c 21, 8.] All fees paid and collected pursuant to this section and rules adopted in accordance with chapter 91 from facilities seeking licensure or certification by the department of health, including hospitals, nursing homes, home health agencies, home care agencies, intermediate care facilities for individuals with intellectual disabilities, freestanding outpatient surgical facilities, adult day health care centers, rural health centers, laboratories, adult residential care homes, expanded adult residential care homes, developmental disability domiciliary homes, assisted living facilities, therapeutic living programs, and special treatment facilities, shall be deposited into the office of health care assurance special fund created under section 321-1.4. Any other entities required by law to be licensed by the department of health shall also be subject to reasonable fees established by the department of health by rules adopted in accordance with chapter 91.  (c) Other than the fees collected under subsection (b), all other fees collected under this section and section 321-15 shall be deposited into the sanitation and environmental health special fund established under section 321-27. [L 1982, c 80, 4; am L 1994, c 169,  3, 9; am L 1996, c 164, 1; am L 1998, c 311,  13, 16; am L 1999, c 120, 3; am L 2007, c 90, 2; am L Sp 2009, c 21, 4; am L 2010, c 176, 2; am L 2011, c 220, 11] Note  The source note to this section is supplemented by "am L Sp 2009, c 21, 8; am L 2011, c 220, 11; am L 2014, c 125, 2; am L 2019, c 158, 2".
  321-11.51 Sanitation permits; transfer. Sanitation permits that have not expired as of July 2, 1997, shall be transferable upon the sale of a food establishment; provided that such transfers are subject to the new owner agreeing to abide by the compliance schedule of the department of health. [L 1997, c 334, pt of 1] Revision Note  "July 2, 1997," substituted for "the effective date of this Act".
  321-11.6 Genetically modified organisms. Any applicant to any federal agency for any permit for or approval of any bioproduct, field testing of genetically modified organisms, or environmental impact assessment of genetically modified organisms shall submit one copy of that application to the department, at the same time that the application is submitted to the federal agency. [L 1988, c 160, 2] Law Journals and Reviews  Poisons in Our Communities: Environmental Justice's Role in Regulating Hawai`i's Biotechnology Industry. 40 UH L. Rev. 155 (2018).
  321-11.7 REPEALED. L 2013, c 212, 7(3).
  321-11.8 Care homes; liability insurance; coverage. (a) All operators of adult foster homes under section 321-11.2, adult residential care homes, assisted living facilities, community care foster family homes as defined in section 321-481, developmental disabilities domiciliary homes as defined in section 321-15.9, and expanded adult residential care homes as defined in section 321-15.1, shall obtain and maintain the following in coverage amounts deemed sufficient and appropriate by the department of health:  (1) Liability insurance with respect to their operation of the homes or facilities; and  (2) Automobile liability insurance, including adequate bodily injury liability coverage for vehicles used to transport residents of the homes or facilities.  (b) Proof of liability insurance for both the home or facility and for vehicles used to transport home or facility residents as required by subsection (a) shall be verified by the department of health, or its designee, on an annual basis.  (c) The department shall adopt rules pursuant to chapter 91 to effectuate the purposes of this section. [L 2013, c 212, 1]
 [ 321-11.9] Dental health facilities; health care facilities; use of latex gloves. All personnel working in dental health facilities or health care facilities, including all facilities listed in section 321-11(10), shall be prohibited from using latex gloves for patient care where the patient is unconscious or otherwise physically unable to communicate. Where the patient is conscious and physically able to communicate, latex gloves may be used if the patient affirmatively states that the patient is not allergic to latex. L 2016, c 180, 2 Cross References  Emergency medical services; use of latex gloves prohibited, see 321-236.
 321-11 Subjects of health rules, generally. [Repeal and reenactment on June 30, 2014. L Sp 2009, c 21, 8.] The department of health pursuant to chapter 91 may adopt rules that it deems necessary for the public health and safety respecting:  (1) Nuisances, foul or noxious odors, gases, vapors, waters in which mosquitoes breed or may breed, sources of filth, and causes of sickness or disease, within the respective districts of the State, and on board any vessel;  (2) Adulteration and misbranding of food or drugs;  (3) Location, air space, ventilation, sanitation, drainage, sewage disposal, and other health conditions of buildings, courts, construction projects, excavations, pools, watercourses, areas, and alleys;  (4) Privy vaults and cesspools;  (5) Fish and fishing;  (6) Interments and dead bodies;  (7) Disinterments of dead human bodies, including the exposing, disturbing, or removing of these bodies from their place of burial, or the opening, removing, or disturbing after due interment of any receptacle, coffin, or container holding human remains or a dead human body or a part thereof and the issuance and terms of permits for the aforesaid disinterments of dead human bodies;  (8) Cemeteries and burying grounds;  (9) Laundries, and the laundering, sanitation, and sterilization of articles including linen and uniforms used by or in the following businesses and professions: barber shops, manicure shops, beauty parlors, electrology shops, restaurants, soda fountains, hotels, rooming and boarding houses, bakeries, butcher shops, public bathhouses, midwives, masseurs, and others in similar calling, public or private hospitals, and canneries and bottling works where foods or beverages are canned or bottled for public consumption or sale; provided that nothing in this chapter shall be construed as authorizing the prohibiting of laundering, sanitation, and sterilization by those conducting any of these businesses or professions where the laundering or sterilization is done in an efficient and sanitary manner;  (10) Hospitals, freestanding surgical outpatient facilities, skilled nursing facilities, intermediate care facilities, adult residential care homes, adult foster homes, assisted living facilities, special treatment facilities and programs, home health agencies, home care agencies, hospices, freestanding birthing facilities, adult day health centers, independent group residences, and therapeutic living programs, but excluding youth shelter facilities unless clinical treatment of mental, emotional, or physical disease or handicap is a part of the routine program or constitutes the main purpose of the facility, as defined in section 346-16 under "child [caring] institution". For the purpose of this paragraph, "adult foster home" has the same meaning as provided in section 321-11.2;  (11) Hotels, rooming houses, lodging houses, apartment houses, tenements, and residences for persons with developmental disabilities including those built under federal funding;  (12) Laboratories;  (13) Any place or building where noisome or noxious trades or manufacturing is carried on, or intended to be carried on;  (14) Milk;  (15) Poisons and hazardous substances, the latter term including any substance or mixture of substances that:  (A) Is corrosive;  (B) Is an irritant;  (C) Is a strong sensitizer;  (D) Is inflammable; or  (E) Generates pressure through decomposition, heat, or other means,  if the substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children;  (16) Pig and duck ranches;  (17) Places of business, industry, employment, and commerce, and the processes, materials, tools, machinery, and methods of work done therein; and places of public gathering, recreation, or entertainment;  (18) Any restaurant, theater, market, stand, shop, store, factory, building, wagon, vehicle, or place where any food, drug, or cosmetic is manufactured, compounded, processed, extracted, prepared, stored, distributed, sold, offered for sale, or offered for human consumption or use;  (19) Foods, drugs, and cosmetics, and the manufacture, compounding, processing, extracting, preparing, storing, selling, and offering for sale, consumption, or use of any food, drug, or cosmetic;  (20) [Device] as defined in section 328-1;  (21) Sources of ionizing radiation;  (22) Medical examination, vaccination, revaccination, and immunization of school children. No child shall be subjected to medical examination, vaccination, revaccination, or immunization, whose parent or guardian objects in writing thereto on grounds that the requirements are not in accordance with the religious tenets of an established church of which the parent or guardian is a member or adherent, but no objection shall be recognized when, in the opinion of the department, there is danger of an epidemic from any communicable disease;  (23) Disinsectization of aircraft entering or within the State as may be necessary to prevent the introduction, transmission, or spread of disease or the introduction or spread of any insect or other vector of significance to health;  (24) Fumigation, including the process by which substances emit or liberate gases, fumes, or vapors that may be used for the destruction or control of insects, vermin, rodents, or other pests, which, in the opinion of the department, may be lethal, poisonous, noxious, or dangerous to human life;  (25) Ambulances and ambulance equipment;  (26) Development, review, approval, or disapproval of management plans submitted pursuant to the Asbestos Hazard Emergency Response Act of 1986, Public Law 99-519; and  (27) Development, review, approval, or disapproval of an accreditation program for specially trained persons pursuant to the Residential Lead-Based Paint Hazard Reduction Act of 1992, Public Law 102-550.  The department of health may require any certificates, permits, or licenses that it may deem necessary to adequately regulate the conditions or businesses referred to in this section. [PC 1869, c 59,  4 to 6; am L 1905, c 42, 1; am L 1911, c 132, 2; am L 1913, c 63, 1; am L 1919, c 235, 1; RL 1925, 912; am L 1933, c 73, 1; RL 1935, pt of  904 and 1130; am L 1937, c 122, 4 and c 197, 1; am L 1941, c 18, 1; RL 1945, 2015; am L 1945, c 116, 1(b); am L 1949, c 71, 1; am L 1951, c 18, 3, c 64, 1, and c 181, 1; am L 1953, c 32, 1; RL 1955, 46-13; am L 1957, c 153, 1; am L Sp 1959 2d, c 1, 19; am L 1963, c 150, 1; HRS 321-11; am L 1969, c 134, 1; am L 1973, c 5, 1; am L 1978, c 7, 1; am L 1980, c 239, 3; am L 1981, c 84, 1; am L 1985, c 272, 4; am L 1986, c 37, 1, c 178, 2, and c 328, 1; am L 1987, c 334, 1; am L 1988, c 194, 2; am L 1989, c 223, 1; am L 1990, c 285, 5; am L 1992, c 15, 1; am L 1995, c 87, 2; am L 1997, c 219, 1 and c 220, 2; am L Sp 2009, c 21, 3] Note  The source note to this section is supplemented by "am L Sp 2009, c 21, 8; am L 2014, c 125, 2; am L 2019, c 158, 2". Cross References  Dental health facilities; health care facilities; use of latex gloves, see 321-11.9. Case Notes  May require suitable locations for laundries. 19 H. 628.  Regulation beyond limits of power conferred by legislature, void. 21 H. 56. See also 20 H. 411.
Note Part heading amended by L 1991, c 32, pt of 1.  321-111 Sexually transmitted disease prevention program. (a) The departments of health and education shall cooperate with each other and other public and private authorities as they may deem advisable for the education of minors and members of the general public on sexually transmitted diseases and the prevention of sexually transmitted diseases. For the purpose of this section, "minor" means any person fourteen years of age or older and under the age of majority.  (b) The department of health shall formulate, supervise, and coordinate throughout the State an educational program for the purposes of preventing sexually transmitted diseases, instructing the general public in detecting the diseases, and encouraging early treatment.  (c) The information shall be made available upon request to all minors and members of the general public without parental consent and the information shall be distributed to all public school counselors requesting educational materials concerning sexually transmitted disease prevention, detection, and treatment. [L 1969, c 149, 1; am L 1991, c 32, pt of 1]
   321-112 to 114 REPEALED. L 1981, c 241, 2.
  321-115 Prophylactics. (a) As used in this section "prophylactic" means any device or appliance used or to be used for the prevention of sexually transmitted diseases.  (b) The department of health may adopt rules and charge fees to regulate the sale of prophylactics through vending machines and require that they be stocked with adequately labeled and scientifically approved devices only.  (c) It shall be unlawful for any person to vend prophylactics in mechanical coin-operated machines on the premises of any school in this State. The term "school" as used in this section shall have the same meaning as defined by section 302A-501. [L 1981, c 241, 1; gen ch 1985; am L 1991, c 32, pt of 1; am L 1996, c 89, 14; am L 2000, c 82, 1]
  321-12.2 Tanning facilities; minors; penalties. (a) It shall be unlawful for any tanning facility owner, lessee, or operator to allow any person under the age of eighteen to use any tanning equipment.  (b) A tanning facility owner, lessee, or operator shall post in a conspicuous place in each tanning facility that the individual owns, leases, or operates in this State, a notice developed by the director of health addressing the following:  (1) That it is unlawful for a tanning facility owner, lessee, or operator to allow a person under the age of eighteen to use any tanning equipment;  (2) That any tanning facility owner, lessee, or operator violating this section shall be subject to a fine;  (3) That any individual may report a violation of this section to the individual's local law enforcement agency; and  (4) The health risks associated with tanning.  (c) The director of health may impose on a person who violates this section:  (1) For a first violation, a fine not to exceed $250; and  (2) For each subsequent violation, a fine not to exceed $500.  (d) This section shall not apply to any physician duly licensed to practice medicine who uses, in the practice of medicine, medical diagnostic and therapeutic equipment that emits ultraviolet radiation or to any person who owns tanning equipment exclusively for personal, noncommercial use.  (e) The director of health may adopt rules in accordance with chapter 91 to implement this section.  (f) As used in this section:  "Operator" means a person designated by the tanning facility owner or tanning equipment lessee to operate or assist and instruct in the operation and use of the tanning facility or tanning equipment.  "Tanning equipment" means any device that emits electromagnetic radiation with wavelengths in the air between 200 and 400 nanometers used for tanning of the skin, including but not limited to sunlamps, tanning booths, or tanning beds.  "Tanning facility" means any location, place, area, structure, or business that provides persons access to any tanning equipment, including tanning salons, health clubs, gyms, apartments, condominiums, and hotels, regardless of whether a fee is charged for access to the tanning equipment. [L 2014, c 205, 2]
  321-12.5 Certified forensic examination fees. (a) The department of health, by rules adopted pursuant to chapter 91, shall establish fees for application and certification as certified forensic examiners, to be paid by the applicant at the onset of the application process. The fees shall cover the costs of training, examination, certification, and monitoring.  (b) All moneys collected as fees pursuant to subsection (a) shall be deposited into the mental health and substance abuse special fund established by section 334-15.  (c) All funds deposited in the mental health and substance abuse special fund pursuant to subsection (b) shall be used exclusively to support the activities relating to the application, training, certification, and monitoring of the certified forensic examination program. [L 1995, c 214, 1]
 321-12 Barbers, hairdressers, cosmeticians, cosmetologists, and beauticians. The department of health may prescribe rules and regulations which it deems necessary for the public health and safety relative to barbers, hairdressers, cosmeticians, cosmetologists, and beauticians, and the carrying on of their occupations. [L 1907, c 70, 1; RL 1925, 1020; RL 1935, 920; am L 1943, c 43, 5(a); RL 1945, 2016; am L 1945, c 140, 1; am L 1949, c 19, 2; RL 1955, 46-14; am L Sp 1959 2d, c 1, 19; HRS 321-12] Cross References  Barbers, licensing, see chapter 438.  Beauty operators, licensing, see chapter 439.
   321-121 to 123 REPEALED. L 1998, c 45, 1.
  321-13.5 Certified nurse aides; investigations of abuse and neglect. The department shall adopt rules pursuant to chapter 91 relating to:  (1) The investigation of:  (A) Abuse or neglect by a certified nurse aide working in a health care setting licensed or certified by the department; and  (B) Misappropriation of an individual's property by a certified nurse aide working in a health care setting licensed or certified by the department; and  (2) Action taken against a certified nurse aide as a result of an investigation pursuant to paragraph (1). [L 2007, c 226, 2]
 321-13 Regulation of certain other occupations. (a) The department of health, with the approval of the governor, may adopt rules as it deems necessary for the public health or safety respecting:  (1) The occupations or practices of clinical laboratory directors, medical technologists (clinical laboratory scientists), clinical laboratory specialists, cytotechnologists, medical laboratory technicians (clinical laboratory technicians), tattoo artists, and environmental health professionals;  (2) The health, education, training, experience, habits, qualifications, or character of persons to whom certificates of registration or permits for these occupations or practices may be issued;  (3) The health, habits, character, practices, standards, or conduct of persons holding these certificates or permits; and  (4) The grounds or causes for revoking or suspending these certificates or permits. The rules shall have the force and effect of law.  (b) It shall be unlawful for any person to engage in or to attempt to engage in or to follow any of the occupations or practices referred to in this section, unless the person first obtains and holds a valid unrevoked certificate of registration or permit under such rules or regulations as the department shall prescribe.  (c) The department may revoke or suspend any certificate of registration or permit issued under this section or issued prior to April 23, 1941, upon proof to its satisfaction of a violation of any rule or regulation of the department on the part of any person holding a certificate or permit; provided that no such certificate or permit shall be revoked or suspended except upon due notice to the person holding the same and the person shall be given an opportunity to be heard and present evidence in the person's own defense. [L 1941, c 87,  1, 2, 3; RL 1945, 2017; am L 1945, c 116, 1(c); am L 1947, c 192, 22; am L 1949, c 19, 1; am L 1955, c 117, 1; RL 1955, 46-15; am L 1959, c 25, 1; am L Sp 1959 2d, c 1, 19; HRS 321-13; am L 1969, c 160, 1; am L 1973, c 80, 2(1); am L 1974, c 214, 1; am L 1982, c 80, 1; am L 1985, c 11, 1 and c 276, 4; gen ch 1985; am L 1986, c 139, 9; am L 1988, c 194, 3; am L 1990, c 225, 4 and c 285, 6; am L 1997, c 219, 2; am L 1999, c 210, 1 and c 211, 3] Cross References  Nursing home administrators act, see chapter 457B.
   321-131 to 137 REPEALED. L 1988, c 3, 2.
  321-14.5 Hospitals; licensing. (a) All hospitals shall be licensed by the department to ensure the health, safety, and welfare of the individuals placed therein.  (b) The director shall adopt rules in accordance with chapter 91 that shall provide for the licensing of hospitals.  (c) The rules may provide that accreditation by The Joint Commission demonstrates a hospital's compliance with all licensing inspections required by the State. The rules may exempt a hospital from a licensing inspection on a continuing basis throughout the term of the accreditation under the following conditions:  (1) The hospital provides the department with a certified copy of the hospital's official accreditation report from The Joint Commission;  (2) The hospital continuously holds full accreditation by The Joint Commission; and  (3) The hospital holds a current and valid state license.  (d) The rules shall provide that the department may conduct inspections and investigations of exempt hospitals to investigate complaints, follow up on adverse accreditation findings, or conduct periodic validation surveys.  (e) Information contained in reports of survey and official accreditation letters made by The Joint Commission used in determining compliance with licensing requirements shall be public information.  (f) All other records maintained by the department shall be governed by chapter 92F. [L 2002, c 118, 1; am L 2012, c 273, 1; am L 2020, c 70, 47]
 321-14.8 Home care agencies; licensing. (a) Beginning July 1, 2010, each home care agency shall be licensed by the department of health to ensure the health, safety, and welfare of clients.  (b) The department of health shall adopt interim rules, which shall be exempt from chapters 91 and 201M, to effectuate the licensure of home care agencies; provided that the interim rules shall remain in effect until the sooner of October 1, 2018, or the adoption of rules pursuant to chapters 91 and 201M to:  (1) Protect the health, safety, and civil rights of clients of home care agencies; and  (2) Provide for the licensure of home care agencies.  (c) A service provider agency shall be exempt from the licensing requirement of this section when services are provided:  (1) Under contract for services with the city and county of Honolulu, elderly affairs division; or  (2) Exclusively to participants in the medicaid home and community based services waiver, pursuant to section 1915(c) of the Social Security Act, by an agency approved by the department of human services med-QUEST division.  (d) For purposes of this section:  "Home care agency" means a public or proprietary agency, a private, nonprofit organization, or a subdivision of an agency or organization, engaged in providing home care services to clients in the client's residence. The term "home care agency" does not apply to an individual, including an individual who is incorporated as a business, or is an unpaid or stipended volunteer.  "Home care services" include but are not limited to:  (1) Personal care, including assistance with dressing, feeding, and personal hygiene to facilitate self-care;  (2) Homemaker assistance, including housekeeping, shopping, and meal planning and preparation; and  (3) Respite care and assistance and support provided to the family. [L Sp 2009, c 21,  2, 8; am L 2014, c 125, 2; am L 2018, c 148, 2; am L 2019, c 91, 2 and c 158, 2] Note  Department of health to request funding for the permanent position that facilitates the licensing of home care agencies as part of its annual budget request, beginning with fiscal year 2015-2016. L 2014, c 125, 4.
 321-14 License to practice certain occupations. It shall be unlawful for any person to practice any of the occupations specified in section 321-13(a)(1) without a license so to do; any person wishing to obtain a license to engage in any of the specified occupations shall make application to the department of health, in accordance with such rules as shall be prescribed by the department under section 321-13, and any such application shall be accompanied by an examination fee for such license. [L 1957, c 316, pt of 1; am L 1959, c 25, 2; am L Sp 1959 2d, c 1, 19; Supp, 46-15.1; HRS 321-14; am L 1969, c 160, 2; am L 1973, c 80, 2(2) and c 97, 1; am L 1974, c 214, 2; am L 1982, c 80, 2] Cross References  Regulatory licensing of certain health related professions or occupations, see title 25.
 321-15.1 Definitions. Whenever used in this chapter, unless the context otherwise requires:  "Adult residential care home" means any facility providing twenty-four-hour living accommodations, for a fee, to adults unrelated to the family, who require at least minimal assistance in the activities of daily living, personal care services, protection, and health care services, but who do not need the professional health services provided in an intermediate, skilled nursing, or acute care facility.  "Asbestos abatement project designer" means a person who is accredited to determine how the asbestos abatement work should be conducted.  "Asbestos inspector" means a person who is accredited to identify asbestos-containing building material and to assess its physical condition.  "Asbestos management planner" means a person who is accredited to use the data gathered by asbestos inspectors to assess the current or potential hazard posed by the asbestos-containing building material, to determine the appropriate response actions, and to develop a schedule for implementing these response actions.  "Assisted living facility" means a combination of housing, health care services, and personalized supportive services designed to respond to individual needs, to promote choice, responsibility, independence, privacy, dignity, and individuality.  "Expanded adult residential care home" means any facility providing twenty-four-hour living accommodations, for a fee, to adults unrelated to the family, who require at least minimal assistance in the activities of daily living, personal care services, protection, and health care services, and who may need the professional health services provided in an intermediate or skilled nursing facility.  "Hospice home" means any facility operated by a licensed hospice service agency providing twenty-four-hour living accommodations to no more than five unrelated persons who are admitted for hospice service. [L 1985, c 272, 2; am L 1988, c 194, 4 and c 334, 1; am L 1995, c 87, 3; am L 1998, c 132, 3; am L 1999, c 77, 6] Cross References  Asbestos and lead pollution control, see chapter 342P.
  321-15.2 Background checks. (a) For the purposes of this section:  "Adults" means individuals aged eighteen years or older.  "Applicant" means a person or entity seeking licensure or certification to operate a healthcare facility. If the applicant is an entity, the term "applicant" shall also include its principals, directors, partners, managers, agents, and representatives to the extent that any of these individuals will have access to or contact with clients, their finances, assets, personal property, medical records, or individually identifiable information.  "Background check" means a review of records stored in state or national record repositories for history of abuse, neglect, threatened harm, or other maltreatment against children or adults, and for any criminal history, including:  (1) Adult abuse perpetrator records by means of a search of the individual's name and birth date in the state adult protective services central registry of reported cases established in section 346-224;  (2) Child abuse and neglect records by means of:  (A) An initial name inquiry in the state child welfare record files;  (B) A subsequent child abuse confirmation history check for new hires and rehires; and  (C) An annual name inquiry into state child welfare record files;  (3) Criminal history records in accordance with section 846-2.7;  (4) Sex offender registry records;  (5) Certified nurse aide registry for information or findings pursuant to section 457A-3; and  (6) Adult abuse perpetrator records, child abuse and neglect records, criminal history records, sex offender registry records, and certified nurse aide registry records of another state where a prospective employee or adult volunteer previously resided.  "Conviction for a relevant crime" means any federal or state conviction for any relevant crime as defined in this section.  "Criminal history record name inquiry" means a record check by name for any federal or state conviction for any relevant crime as defined in this section.  "Department" means the department of health.  "Direct patient access employee" means any individual, including a volunteer, who has access to a patient or resident of a healthcare facility, or any provider through employment or through an agreement or contract with such a facility or provider. Such individuals include but are not limited to: physicians, nurses, nursing assistants, home health aides, therapists, activities personnel, and support staff (i.e., housekeeping, dietary, etc.) who have direct access to patients or patient belongings.  "Disqualifying information" means a conviction for a relevant crime or a finding of patient or resident abuse.  "Healthcare facility" means a facility, setting, or agency licensed or certified by the department of health that provides mental health or health care services or living accommodations to individuals, such as a skilled nursing facility, intermediate care facility, adult residential care home, expanded adult residential care home, assisted living facility, home health agency, home care agency, hospice, adult day health center, special treatment facility, therapeutic living program, intermediate care facility for individuals with intellectual disabilities, hospital, rural health center, community care foster family home, home and community-based case management agency, adult day care center, developmental disabilities domiciliary home, adult foster home for individuals with developmental disabilities, community mental health center, and rehabilitation agency.  "Name inquiry" means a criminal history record check conducted by using the name and other identifying information of the individual, in lieu of a fingerprint check.  "Operator" means an individual or entity that is licensed or is seeking licensure to operate a healthcare facility and is responsible for the management and overall operations of that healthcare facility.  "Relevant crime" means:  (1) Any offense described in 42 United States Code 1320a-7 (section 1128(a) of the Social Security Act); or  (2) A crime of such a serious nature or circumstance that the department finds its perpetrator to pose a risk to the health, safety, or well-being of a patient or resident. This includes but is not limited to murder, manslaughter, assault, sex offenses, domestic violence, theft or forgery, arson, kidnapping, or possession, use, sale, manufacture, or distribution of dangerous drugs or controlled substances.  (b) The department shall adopt rules pursuant to chapter 91 to ensure the reputable and responsible character of all prospective applicants, operators, direct patient access employees, and adult volunteers of a healthcare facility, and, in the case of any healthcare facility operated in a private residence, all adults living in the home other than the clients. These rules, among other things, shall specify how the department or its designee may conduct background checks in accordance with this section.  (c) All applicants and prospective operators shall:  (1) Be subject to background checks; and  (2) Provide consent to the department or its designee to conduct background checks.  (d) All prospective direct patient access employees and adult volunteers of healthcare facilities and, in the case of any healthcare facility operated in a private residence, all adults living in the home other than the clients shall:  (1) Be subject to background checks in accordance with this section; and  (2) Provide consent to the department or its designee to conduct background checks.  (e) The department or its designee shall obtain background check information in accordance with this section from an applicant or operator, on the applicant or operator, and on any prospective employees of the applicant or operator including any new employee retained after the applicant is issued a license or certificate under this part, which shall include an annual name inquiry into state criminal history record files.  (f) The department may revoke or suspend a current license or certificate, impose penalties or fines, or deny an application for a license or certificate under rules adopted pursuant to chapter 91 if the applicant, operator, employee, or adult volunteer at the healthcare facility or, in the case of any healthcare facility operated in a private residence, any adult living in the home other than the client:  (1) Refuses to authorize the department or its designee to conduct a background check, refuses to authorize the department or its designee to obtain background check record information for verification, or refuses consent to be fingerprinted;  (2) Refuses or fails to submit to the department or its designee information required to perform a background check;  (3) Has any disqualifying information; or  (4) Has any background check information that the department finds may pose a risk to the health, safety, or welfare of the residents or patients of the healthcare facility.  (g) The fee charged by the Federal Bureau of Investigation and the Hawaii criminal justice data center to perform criminal history record checks may be passed on to all applicants, operators, direct patient access employees, and adult volunteers at the healthcare facility and, in the case of a facility operated in a private residence, all adults living in the home other than the clients.  (h) The department or its designee, in obtaining and relying upon the background check information, is presumed to be acting in good faith and shall be immune from civil liability for taking or recommending action based upon the background check information. The presumption of good faith may be rebutted upon a showing of proof by a preponderance of the evidence that the department or its designee relied upon information or opinion that it knew was false or misleading or that such reliance was not reasonable.  (i) Any applicant or operator who receives information from the department or its designee relating to a background check of a direct patient access employee or adult volunteer or, in the case of a healthcare facility operated in a private residence, an adult living in the home other than the clients, is presumed to be acting in good faith and shall be immune from civil liability for reasonably taking or recommending action based upon the department's recommendation or direction. Nothing in this section shall affect rights, obligations, remedies, liabilities, or standards of proof under chapters 368 and 378.  Background check record information shall be used exclusively by the department or its designee for the sole purpose of determining whether an applicant, operator, direct patient access employee, or adult volunteer at a healthcare facility, or, in the case of a facility operated in a private residence, any adult living in the home other than the clients is suitable for working or living in close proximity to residents of a healthcare facility such that the health, safety, and welfare of the residents would not be at risk. [L 2006, c 220, 2; am L Sp 2009, c 21,  5, 8; am L 2011, c 220, 11; am L 2012, c 285, 2; am L 2014, c 125, 2; am L 2015, c 190, 1; am L 2019, c 158, 2] Note  L 2006, c 220, 6 provides:  "SECTION 6. There shall be established a working committee of five members with representatives from the department of health, department of human services, provider organizations and community, as appointed by the directors of the department of health and department of human services to meet minimally on a quarterly basis to review and evaluate the process undertaken by the departments in effecting criminal history record checks and provide recommendations to the directors of the departments as relevant. Members shall serve a term of two years which may be extended at the discretion of the directors of the departments and will report to departmental administrators as designated by the directors."
  321-15.3 Criminal history disclosure of prospective care home resident. Notwithstanding any other law to the contrary, the department of health shall disclose to the operator of an adult residential care home, to the extent that the division or office of the department that is referring the individual to the care home possesses, the information in existing records at the time of, and as part of, the application for admission, the criminal history of a prospective resident applying for entry to the care home when the prospective resident had previously been:  (1) Convicted of an offense involving violence to a person; or  (2) Admitted to the state hospital under the jurisdiction of the department of health as a result of an acquittal under chapter 704 for an offense involving violence to a person. [L 2002, c 166, 2]
  321-15.5 REPEALED. L 1978, c 107, 4.
 321-15.6 Adult residential care homes; licensing.  (a) All adult residential care homes shall be licensed to ensure the health, safety, and welfare of the individuals placed therein. The department shall conduct visits and inspections pursuant to section 321-1.9.  (b) The director shall adopt rules regarding adult residential care homes in accordance with chapter 91 that shall be designed to:  (1) Protect the health, safety, and civil rights of persons residing in facilities regulated;  (2) Provide for the licensing of adult residential care homes; provided that the rules shall allow group living in two categories of adult residential care homes as licensed by the department of health:  (A) Type I allowing five or fewer residents; provided that up to six residents may be allowed at the discretion of the department to live in a type I home; provided further that the primary caregiver or home operator is a certified nurse aide who has completed a state-approved training program and other training as required by the department; and  (B) Type II allowing six or more residents, including but not limited to the mentally ill, elders, persons with disabilities, the developmentally disabled, or totally disabled persons who are not related to the home operator or facility staff;  (3) Comply with applicable federal laws and regulations of Title XVI of the Social Security Act, as amended; and  (4) Provide penalties for the failure to comply with any rule.  For the purposes of this subsection:  "Developmentally disabled" means a person with developmental disabilities as defined under section 333F-1.  "Elder" has the same meaning as defined under section 356D-1.  "Mentally ill" means a mentally ill person as defined under section 334-1.  "Persons with disabilities" means persons having a disability under section 515-2.  "Totally disabled person" has the same meaning as a person totally disabled as defined under section 235-1.  (c) The department may provide for the training of and consultations with operators and staff of any facility licensed under this section, in conjunction with any licensing thereof, and shall adopt rules to ensure that adult residential care home operators shall have the needed skills to provide proper care and supervision in a home environment as required under department rules.  (d) The department shall establish a standard admission policy and procedure which shall require the provision of information that includes the appropriate medical and personal history of the patient as well as the level of care needed by the patient prior to the patient's referral and admission to any adult residential care home facility. The department shall develop appropriate forms and patient summaries for this purpose.  (e) The department shall maintain an inventory of all facilities licensed under this section and shall maintain a current inventory of vacancies therein to facilitate the placement of individuals in such facilities.  (f) The department shall develop and adopt a social model of health care to ensure the health, safety, and welfare of individuals placed in adult residential care homes. The social model of care shall provide for aging in place and be designed to protect the health, safety, civil rights, and rights of choice of the persons to reside in a nursing facility or in home- or community-based care.  (g) Any fines collected by the department of health for violations of this section shall be deposited into the office of health care assurance special fund. [L 1978, c 107, pt of 3; am L 1979, c 9, 1 and c 105, 33; am L 1982, c 54, 2; am L 1985, c 272, 5; am L 1986, c 177, 2; am L 1987, c 283, 21; am L 1988, c 334, 2; am L 1990, c 67, 5; am L 1993, c 227, 1; am L 1997, c 341, 2 and c 350, 15; am L 1998, c 132, 4; am L 2002, c 166, 3 and c 188, 2; am L 2003, c 202, 1; am L 2006, c 270, 2; am L 2007, c 90, 3 and c 249, 20; am L 2016, c 184, 3] Cross References  Coordination and development of caregiver support services, see 349-15.  Dependent elder abuse; suits by the State; civil penalties, see 28-94.  Long-term care, see chapter 346D. Law Journals and Reviews   Long-Term Care in Hawaii. 18 HBJ, no. 13, at 59 (2015).  The Wavering Line Between Medical Malpractice and Ordinary Negligence in Elder Abuse Litigation. 18 HBJ, no. 13, at 81 (2015).
  321-15.61 Adult residential care homes expanded admissions. (a) Adult residential care homes may admit an individual who has been living immediately prior to admission in the individual's own home, a hospital, or other care setting, and who has been either:  (1) Admitted to a medicaid waiver program and determined by the department of human services to require nursing facility level care to manage the individual's physical, mental, and social functions; or  (2) A private-paying individual certified by a physician or advanced practice registered nurse as needing a nursing facility level of care.  (b) The department of health shall adopt rules in accordance with chapter 91 to expand admissions to adult residential care homes by level of care and to define and standardize these levels of care. The rules and standards shall provide for appropriate and adequate requirements for knowledge and training of adult residential care home operators and their employees. [L 1998, c 132, pt of 1]
  321-15.62  Expanded adult residential care homes; licensing. (a) All expanded adult residential care homes shall be licensed to ensure the health, safety, and welfare of the individuals placed therein. The department shall conduct visits and inspections pursuant to section 321-1.9.  (b) The director of health shall adopt rules regarding expanded adult residential care homes in accordance with chapter 91 that shall implement a social model of health care designed to:  (1) Protect the health, safety, civil rights, and rights of choice of residents in a nursing facility or in home- or community-based care;  (2) Provide for the licensing of expanded adult residential care homes for persons who are certified by the department of human services, a physician, advanced practice registered nurse, or registered nurse case manager as requiring skilled nursing facility level or intermediate care facility level of care who have no financial relationship with the home care operator or facility staff; provided that the rules shall allow group living in the following two categories of expanded adult residential care homes as licensed by the department of health:  (A) A type I home shall consist of five or fewer residents with no more than two nursing facility level residents; provided that more nursing facility level residents may be allowed at the discretion of the department; and provided further that up to six residents may be allowed at the discretion of the department to live in a type I home; provided that the primary caregiver or home operator is a certified nurse aide who has completed a state-approved training program and other training as required by the department; and  (B) A type II home shall consist of six or more residents, with no more than twenty per cent of the home's licensed capacity as nursing facility level residents; provided that more nursing facility level residents may be allowed at the discretion of the department;  provided further that the department shall exercise its discretion for a resident presently residing in a type I or type II home, to allow the resident to remain as an additional nursing facility level resident based upon the best interests of the resident. The best interests of the resident shall be determined by the department after consultation with the resident, the resident's family, primary physician, case manager, primary caregiver, and home operator;  (3) Comply with applicable federal laws and regulations of title XVI of the Social Security Act, as amended; and  (4) Provide penalties for the failure to comply with any rule.  (c) The department may provide for the training of and consultations with operators and staff of any facility licensed under this section, in conjunction with any licensing thereof, and shall adopt rules to ensure that expanded adult residential care home operators shall have the needed skills to provide proper care and supervision in a home environment as required under department rules.  (d) The department shall establish a standard admission policy and procedure which shall require the provision of information that includes the appropriate medical and personal history of the patient as well as the level of care needed by the patient prior to the patient's referral and admission to any expanded adult residential care home facility. The department shall develop appropriate forms and patient summaries for this purpose.  (e) The department shall maintain an inventory of all facilities licensed under this section and shall maintain a current inventory of vacancies therein to facilitate the placement of individuals in such facilities. [L 1998, c 132, pt of 1; am L 2002, c 166, 4; am L 2006, c 270, 3; am L 2010, c 120, 1; am L 2010, c 120,  1, 4; ree L 2014, c 9, 11; am L 2016, c 184, 4] Law Journals and Reviews  Long-Term Care in Hawaii. 18 HBJ, no. 13, at 59 (2015).  The Wavering Line Between Medical Malpractice and Ordinary Negligence in Elder Abuse Litigation. 18 HBJ, no. 13, at 81 (2015).
 321-15.63 Hospice services. (a) The department of health may license hospice service agencies. If the department licenses hospice service agencies, the director shall adopt rules in accordance with chapter 91 regarding hospice service agencies that shall:  (1) Protect the health, safety, welfare, and civil rights of persons residing in their place of residence; and  (2) Provide penalties for the failure to comply with any rule.  Licensing shall be required annually for the first two years of licensure. Thereafter, licensing shall be required biennially; provided that if the department of health receives a complaint regarding the hospice service agency from the time of the last licensure, the licensing shall be required annually until such time as the department is satisfied that licensing may proceed biennially.  (b) For the purpose of this section:  "Hospice service" means a program of palliative and supportive care for terminally ill persons and their families or caregivers.  "Hospice service agency" means an agency or organization, or a subdivision of that agency or organization, which is engaged in providing hospice services at the place of residence of its clients. [L 1999, c 77, 3] Law Journals and Reviews  Long-Term Care in Hawaii. 18 HBJ, no. 13, at 59 (2015).
 321-15.7 Penalty. Any person who intentionally operates an adult residential care home or hospice home without a license shall be guilty of a misdemeanor. [L 1978, c 107, pt of 3; am L 1985, c 272, 6; am L 1989, c 223, 2; am L 1999, c 77, 7]
  321-15.8 REPEALED. L 1988, c 205, 1.
  321-15.9 Developmental disabilities residential services. (a) The department of health is authorized to license developmental disabilities domiciliary homes for individuals with developmental or intellectual disabilities who are unable to live independently and who require supervision or care, but do not require care by licensed nurses in a domiciliary setting; provided that nothing in this section shall exclude the department of human services from licensing, certifying, regulating, or entering into contracts for child foster homes or providers that serve persons with developmental disabilities or intellectual disabilities.  (b) For the purposes of this section:  "Developmental disabilities" shall be as defined under section 333E-2.  "Developmental disabilities apartment complex" means an apartment building composed of five or more separate apartment units in which every apartment unit, except for one apartment unit occupied by the operator or staff for the complex, is dedicated to providing residences for individuals with developmental disabilities or intellectual disabilities who do not require twenty-four hour supervision or care.  "Developmental disabilities domiciliary home" means a residence for not more than five persons with developmental disabilities or intellectual disabilities that require twenty-four hour supervision or care, but do not require care by licensed nurses in a domiciliary setting.  "Intellectual disability" shall be as defined under section 333F-1.  (c) The director shall adopt rules regarding developmental disabilities domiciliary homes in accordance with chapter 91 that shall be designed to:  (1) Establish criteria for licensure of homes, including inspections, registration, fees, qualifications of operators and staff, and other factors necessary to ensure safe and appropriate operation of each home;  (2) Protect the health, safety, and civil rights of persons residing in the homes;  (3) Provide for plans of care that include community integration and support of persons residing in the licensed homes; (4) Provide for the licensure of homes of up to five persons with developmental disabilities or intellectual disabilities, and who are not related to the home operator or facility staff; (5) Establish penalties for the failure to comply with any rule; and  (6) Establish criteria for training of operators and staff of any developmental disabilities domiciliary home licensed under this section.  (d) Rules adopted under this section shall be enforced by the director.  (e) No single apartment in a developmental disabilities apartment complex funded under this section shall be occupied by more than two residents with developmental disabilities or intellectual disabilities.  (f) The director shall establish criteria for contracts for developmental disabilities apartment complexes and where necessary to provide for additional funding for developmental disabilities domiciliary homes.  (g) The department shall maintain a registry of all developmental disabilities domiciliary homes licensed under this section and a current inventory of vacancies.  (h) The department of health may enter into contracts for additional payments for residential services to the providers of developmental disabilities domiciliary homes and payments to operators of developmental disabilities apartment complexes for residential services on terms determined by the department of health. [L 1990, c 180, 1; am L 2005, c 168, 2; L 2011, c 220,  12, 13] Cross References  Inspections of state-licensed care facilities; public notice, see 321-1.8. Law Journals and Reviews  Long-Term Care in Hawaii. 18 HBJ, no. 13, at 59 (2015).
  321-15 Biennial registration; fees, failure to register; denial, suspension, or revocation of a license. (a) Every person holding a license to practice any occupation specified in section 321-13(a)(1) shall reregister with the department of health every other year in accordance with the rules of the department, before February 1 except where superseded by federal law, and shall pay a reregistration fee. The failure, neglect, or refusal of any person holding a license to reregister or pay the reregistration fee, after thirty days of delinquency, shall constitute a forfeiture of the person's license; provided that the license shall be restored upon written application therefor together with a payment of all delinquent fees and an additional late reregistration fee that may be established by the director of health. All fees collected pursuant to this section shall be deposited into the sanitation and environmental health special fund established under section 321-27.  (b) The department shall suspend, refuse to renew, reinstate, or restore, or deny any license or application if the department has received certification from the child support enforcement agency pursuant to the terms of section 576D-13 that the licensee or applicant is not in compliance with an order of support as defined in section 576D-1 or has failed to comply with a subpoena or warrant relating to a paternity or child support proceeding. Unless otherwise provided by law, the department shall grant, renew, restore, or reinstate a license only upon receipt of an authorization from the child support enforcement agency, office of child support hearings, or family court. [L 1957, c 316, pt of 1; am L 1959, c 25, 2; am L Sp 1959 2d, c 1, 19; Supp, 46-15.2; HRS 321-15; am L 1969, c 160, 3; am L 1973, c 80, 2(3); am L 1974, c 214, 3; am L 1982, c 80, 3; gen ch 1985; am L 1994, c 169,  4, 9; am L 1996, c 164, 1; am L 1997, c 293, 15; am L 1998, c 311,  14, 16; am L 1999, c 273, 3; am L 2002, c 226, 5; am L 2003, c 133, 6; am L 2010, c 176, 3; am L 2019, c 279, 3]
  321-151 REPEALED. L 1978, c 148, 1. Cross References  For present provisions, see part XVIII of this chapter.
   321-16, 16.1 REPEALED. L 1972, c 100, 2.
  321-16.5 Special treatment facilities. (a) All special treatment facilities shall be licensed to ensure the health, safety, and welfare of the individuals placed therein.  (b) The director shall adopt rules, in accordance with chapter 91, regarding special treatment facilities that shall be designed to:  (1) Provide a therapeutic residential program for care, diagnosis, treatment, or rehabilitation for socially or emotionally distressed persons, mentally ill persons, persons suffering from substance abuse, and developmentally disabled persons. Special treatment facilities shall include a short-term crisis residential program or a long-term residential treatment program;  (2) Comply with applicable federal laws and regulations; and  (3) Provide penalties for the failure to comply with any rule.  (c) For the purposes of this section:  "Long-term residential" means a residential treatment program for persons whose duration of stay is thirty days or longer.  "Short-term crisis residential" means a residential treatment program for persons who are in crisis and whose duration of stay is less than thirty days.  "Socially or emotionally distressed person" means an individual who is experiencing psychiatric symptomatology that may be acute or chronic in nature, which requires therapeutic or rehabilitative services. [L 2005, c 139, pt of 2]
 321-16.6 Therapeutic living programs. (a) All therapeutic living programs shall be licensed to ensure the health, safety, and welfare of the individuals placed therein.  (b) The director shall adopt rules regarding therapeutic living programs in accordance with chapter 91 that shall be designed to:  (1) Comply with applicable federal laws and regulations; and  (2) Provide penalties for the failure to comply with any rule.  (c) For the purposes of this section, "therapeutic living program" means a supervised living arrangement that provides mental health, substance abuse services, or supportive services for individuals or families who do not need the structure of a special treatment facility and are transitioning to independent living. The program aids residents in meeting basic needs and provides supportive services through a required service plan. [L 2005, c 139, pt of 2]
  321-161 Chemical testing for alcohol concentration or drug content. (a) The department of health shall establish and administer a statewide program relating to chemical testing of alcohol concentrations or drug content for the purposes of chapters 286, 291, 291C, and 291E, with the consultation of the state director of transportation. Under the program, appropriate procedures shall be established for specifying:  (1) The qualifications of personnel who administer chemical tests used to determine alcohol concentrations or drug content;  (2) The procedures for specimen selection, collection, handling, and analysis; and  (3) The manner of reporting and tabulating the results.  (b) The director of health may adopt rules pursuant to chapter 91 necessary for the purposes of this section. [L 1973, c 139, 1; am L Sp 1977 1st, c 20, 12; am L 1990, c 188, 9; am L Sp 1991, c 1, 18; am L 1997, c 103, 10; am L 2001, c 157, 30] Case Notes  The health department rules are applicable only to the proceedings enumerated in this section; and when the State seeks to introduce the breathalyzer results in a prosecution outside the ambit of this section, it must establish a foundation independent of the rules. 1 H. App. 625, 623 P.2d 1271.  Intoxilyzer test result inadmissible where officer administering test had less than required training and had not been issued appropriate permit. 5 H. App. 575, 704 P.2d 927.  To admit intoxilyzer test result, there must be strict compliance with rules having direct bearing on validity and accuracy of test result. 6 H. App. 554, 732 P.2d 253.  Where intoxilyzer not checked for accuracy, test results inadmissible, though operator followed operational checklist and device allegedly "fail-safe". 6 H. App. 569, 733 P.2d 326.
 321-17 Vessels to carry diseased persons; penalty. Vessels, regardless of tonnage, and other common carriers, shall be permitted or required to carry persons having Hansen's disease or other contagious diseases under such restrictions and provisions as may be prescribed by the department of health. Apartments on steamers or on other common carriers occupied by cases of Hansen's disease or other diseases shall be disinfected in a manner prescribed or approved by the department.  The master or owner of any such vessel knowingly violating this section shall be fined not more than $200. [L 1893-4, c 30,  1, 2; am L 1903, c 8, 2; am L 1909, c 132, 1; RL 1925,  1208, 1209; am L 1929, c 149, pt of 1; am L 1931, c 139, 5; am L 1933, c 118, 1; am L 1933-4, c 30, 1; RL 1935, 903; RL 1945, 2019; RL 1955, 46-17; am L Sp 1959 2d, c 1, 19; HRS 321-17; am L 1969, c 152, 1; am L 1981, c 185, 1; am L 1983, c 124, 16]
  321-171.5 Employees of the department of health, its providers and subcontractors; background checks. (a) The department of health shall develop procedures for obtaining verifiable background check information regarding persons who are seeking employment, or seeking to serve as providers or subcontractors, in positions that place them in direct contact with adult, child, or youth clients when providing non-witnessed direct mental health or health care services. These procedures shall include but not be limited to background checks as defined in section 321-15.2.  (b) Except as otherwise specified, any person who seeks employment with the department of health, or who is employed or seeks employment with a provider or subcontractor in a position that necessitates non-witnessed direct contact with clients when providing non-witnessed direct mental health or health care services, shall:  (1) Be subject to background checks in accordance with section 321-15.2;  (2) Authorize the disclosure to the department or its designee of background check information; and  (3) Provide to the department of health or its designee written consent for the department or its designee to obtain background check information for verification. Information obtained pursuant to subsection (a) and this subsection shall be used exclusively by the department of health for purposes of determining whether a person is suitable for working in a position that necessitates non-witnessed direct contact with clients when providing non-witnessed direct mental health or health care services. All such decisions shall be subject to federal laws and regulations currently or hereafter in effect.  (c) The department of health may refuse to employ or may terminate the employment of any employee or applicant for employment if:  (1) The person refuses to authorize the department or its designee to conduct a background check;  (2) The person refuses or fails to submit to the department or its designee information required to conduct a background check;  (3) The person has been convicted of an offense for which incarceration is a sentencing option; or  (4) The department of health finds by reason of the nature and circumstances of the background check information that the person poses a risk to the health, safety, or well-being of clients receiving non-witnessed direct mental health or health care services. Such refusal or termination may occur only after appropriate investigation, notification of results and planned action, and opportunity to meet and rebut the finding, all of which need not be conducted in accordance with chapter 91. Nothing in this subsection shall abrogate any applicable appeal rights under chapter 76 or 89.  (d) This section shall not be used by the department of health or its designee to secure background checks on persons who have been employed continuously on a salaried basis prior to July 1, 2015.  (e) Nothing in this section shall prohibit background checks on employees of all providers and subcontractors.  (f) The department or its designee, in obtaining and relying upon the background check information, shall be presumed to be acting in good faith and shall be immune from civil liability for taking or recommending action based upon the background check information. The presumption of good faith may be rebutted upon a showing of proof by a preponderance of the evidence that the department or its designee relied upon information or opinion that it knew was false or misleading or that such reliance was not reasonable.  (g) For purposes of this section:  "Provider" means any organization or individual that intends to enter into a contract with or is currently contracted by the department of health to provide direct mental health or health care services to the department's eligible clients.  "Subcontractor" means any organization or individual that enters into a contract or agreement with a provider to provide direct mental health or health care services to the department's eligible clients.  (h) Notwithstanding any other law to the contrary, the department of health shall be exempt from section 831-3.1 for purposes of this section and need not conduct investigations, notifications, or hearings under this section in accordance with chapter 91. [L 2003, c 95, 5; am L 2004, c 79, 1; am L 2012, c 285, 3; am L 2015, c 190, 2]
  321-171 Children's mental health services; department responsibility. It shall be the responsibility of the department of health to:  (1) Provide preventative health services for children and youth;  (2) Provide diagnostic and treatment services for emotionally disturbed children and youth; and  (3) Provide treatment and rehabilitative services for mentally ill children and youth. Such services shall be delivered at the earliest possible moment after the need for such services is established. All eligible children and youth between the ages of birth and seventeen shall receive the necessary mental health services to insure their proper and full development. If there is any adjudication or settlement of any legal action involving the delivery of children's mental health services, the department of health shall be responsible for the coordination of carrying out the terms of the judgment or settlement. [L 1974, c 211, pt of 1; am L 1996, c 125, 1]
 321-172 Children's mental health services branch. There is established within the department of health, mental health division, a children's mental health services branch which shall coordinate the effective and efficient delivery of mental health services to children and youth, including services provided by private nonprofit agencies under contract to the department of health, and be responsible for the development and implementation of centralized and highly specialized programs for children and youth. [L 1974, c 211, pt of 1; am L 1980, c 59, 1]
 321-173 Community mental health services for children and youth. There is established within each community mental health center a children's mental health services team which, in conjunction with other public and private agencies, shall develop and provide a network of preventative, early identification, screening, diagnostic, treatment, and rehabilitative services for children and youth based on the needs of each geographic region in which the community mental health center is located. The children's mental health services teams shall cooperate with and promote the coordination of the activities of local public and private agencies servicing children and youth in their particular geographic area. [L 1974, c 211, pt of 1; am L 1980, c 59, 2]
 321-174 Coordination of services with department of education. The children's mental health services team shall cooperate with the schools located in their particular geographic region in identifying and referring for treatment such children or youths in need of mental health services. In conjunction with the children's mental health services team, the department of education and the department of health shall develop a memorandum of agreement which shall provide for a sharing of responsibilities for the affected agencies and shall include but not be limited to provisions for:  (1) Accepting referrals from the school counselors and diagnostic teams for evaluation and direct treatment of children and youth suffering from mental and emotional disorders;  (2) Providing consultation to enable teachers and other school personnel to aid in the identification and screening of children in need of professional mental health services and the services of psychologists, as defined in chapter 465;  (3) Providing training and education about emotional disturbances of children to teachers, school counselors, and parents;  (4) Assisting the department of education with mental health services and the services of psychologists, as defined in chapter 465 for handicapped children;  (5) Developing an ongoing mechanism to assess, document and report to the legislature and the governor unmet needs for mental health services for students in each geographic region; and  (6) Performing other related services for school personnel, children, and parents. [L 1974, c 211, pt of 1; am L 1980, c 59, 3; am L 1985, c 55, 3; am L 1988, c 257, 1]
 321-175 Statewide children's mental health services plan. (a) Commencing on September 1, 1980, and every four years thereafter, the children's mental health services branch, on or before September 1 of each four-year cycle, shall develop and present to the governor and the legislature, as well as release for public inspection and comment, a current statewide children's mental health services plan which shall include:  (1) A survey of the children and youth in the State who are (A) in need of and (B) receiving mental health services showing the total number of such children and youth and their geographic distribution;  (2) Identification of the public and private providers of mental health services to children and youth;  (3) Identification of the criteria and standards for the treatment to be received by emotionally disturbed or mentally ill children and youth;  (4) A program for the recruitment, orientation, and in-service training of personnel in community mental health services to children and youth, and to allied fields, including participation, as appropriate, by institutions of higher learning, state and local agencies, and other public and private agencies having relevant expertise;  (5) A description of the provisions for prevention, early identification, diagnosis, screening, treatment, and rehabilitation (including, with regard to treatment and rehabilitation, services provided through inpatient, outpatient, and community residential facilities) of children and youth in need of mental health services;  (6) An implementation plan for providing mental health services to all children and youth in the State in each of the above mentioned areas; and  (7) Any additional matters which may be necessary or appropriate, including recommendations for amendment of laws, changes in administrative practices and patterns of organization, and changes in levels and patterns of financial support relating to children's mental health services.  (b) Prior to the submission of the statewide children's mental health services plan under subsection (a) to the governor and the legislature, the department of health shall hold hearings on the plan in accordance with chapter 91. There shall be at least one hearing in each county; except that the city and county of Honolulu shall have three hearings in strategic geographic locations to provide the widest exposure of the plan to the population.  (c) Any amendments to the statewide children's mental health services plan shall be in accordance with chapter 91. [L 1974, c 211, pt of 1; am L 1980, c 59, 4; am L 1984, c 87, 1; am L 1986, c 339, 39]
 321-176 Biennial review of progress. Every two years, starting January 1, 1979, the department of health, on or before January 1 of each two-year cycle, shall submit to the legislature and the governor a report setting forth:  (1) A detailed analysis of the progress made toward fulfilling the statewide children's mental health services plan developed under section 321-175; and  (2) Other matters which are necessary or appropriate, including recommendations for any amendment to any law, any change in the administrative practices and patterns of organization, the current and prevailing memoranda of agreement, and any change in the levels and patterns of financial support. [L 1974, c 211, pt of 1; am L 1980, c 59, 5]
  321-177 Rules. The director of health may adopt rules pursuant to chapter 91 necessary to carry out the purposes of this part. [L 1980, c 59, 6]
 321-18 Penalty. Except when another penalty is provided, every person who violates any rule of the department, after the same has been adopted, as provided in section 321-10, shall be guilty of a misdemeanor. [PC 1869, c 59, 8; RL 1925, 914; RL 1935, 906; am L 1943, c 18, 1; RL 1945, 2020; am L 1947, c 82, 1; RL 1955, 46-18; am L 1965, c 96, 29; HRS 321-18; am L 1983, c 100, 3]
  321-19 Delegation to counties. Any provision to the contrary notwithstanding, the department of health may, in adopting rules and regulations under sections 321-9, 321-10, and 321-11, delegate functions for inspection and enforcement of such rules, including the function of issuance of permits, certificates, or licenses, to the various counties. Such delegation of authority shall be in accordance with standards duly adopted by the department. [L 1978, c 26, 2]
Cross References Mental health, alcohol, or drug abuse treatment reviews, see chapter 334B.  Mental health and alcohol and drug abuse treatment insurance benefits, see chapter 431M.  Mental health and substance abuse special fund, see 334-15.  Substance abuse testing, see chapter 329B.  321-191 Definitions. As used in this part:  "Advisory commission" means the state advisory commission on drug abuse and controlled substances established in section 329-2.  "Clean and sober home" means a dwelling unit that is intended to provide a stable, independent environment of alcohol- and drug-free living conditions to sustain recovery and that is shared by unrelated adult persons who are recovering from substance abuse.  "Department" means the department of health.  "Substance" means alcohol, any drug on schedules I through IV of chapter 329, or any substance which includes in its composition volatile organic solvents.  "Substance abuse" means the misuse of a substance or the use of a substance to an extent deemed deleterious or detrimental to the user, to others, or to society. [L 1975, c 190, pt of 2; am L 2014, c 193, 4] Revision Note  Numeric designations deleted. Cross References  Diagnosis and counseling of minors, see 577-26.
 321-192.5 Substance abuse treatment monitoring program. (a) To determine the effectiveness of substance abuse treatment services and maintain accurate numbers of individuals receiving publicly funded substance abuse treatment, the department shall establish a statewide substance abuse treatment monitoring program to collect the following information from all treatment providers accredited by the department, pursuant to section 321-198, on every individual who receives substance abuse treatment paid by public funds. Treatment providers shall report admission and discharge data, as determined by the department, with a final annual report due no later than sixty days after the close of the fiscal year, which shall include:  (1) An accurate count of all admissions and discharges during the reporting period;  (2) An unduplicated count of individuals served by each treatment provider;  (3) Demographic data on each individual as determined by the department, which may include age, race, ethnicity, employment status, source of payment, source of referral to treatment, length of treatment, and the primary substance for which treatment was sought;  (4) Data on the number of individuals who were discharged due to successful completion of treatment and the reasons individuals withdrew from treatment during the reporting period;  (5) Six-month follow-up data on persons who were discharged due to successful completion of treatment, reporting on criteria for measurement of successful treatment as determined by the department; and  (6) Any other information deemed relevant by the department to assess the effectiveness of treatment on each individual.  (b) The department shall establish criteria to measure the success of treatment for individuals and establish criteria to determine whether the treatment provider is achieving success in treating individuals with substance abuse. The department shall include in the contract with the treatment provider all criteria to determine whether the treatment provider is achieving success in treating individuals with substance abuse.  (c) The department shall include the information under subsection (a) as part of the annual report to the legislature under section 321-195.  (d) This section shall not be construed to abrogate an individual's right to privacy. The department shall implement sufficient protections to ensure that the identity of a recipient of substance abuse treatment services remains strictly confidential and that aggregate data collected pursuant to this section is used solely for the purpose of this section. [L 2004, c 40, 24]
  321-192 Substance abuse program. The department shall establish a substance abuse program in the State under this part. [L 1975, c 190, pt of 2]
  321-193.5 Interagency coordination. (a) The department of public safety, Hawaii paroling authority, judiciary, department of health, department of human services, and any other agencies assigned oversight responsibilities for offender substance abuse treatment by law or administrative order, shall establish a coordinating body through an interagency cooperative agreement to oversee the development and implementation of offender substance abuse treatment programs in the State to ensure compliance with the intent of the master plan developed under chapter 353G. The coordinating body shall also include a representative from a community based prisoner advocacy group and a substance abuse treatment provider selected by the director of health, and an ex-offender selected by the director of public safety subject to the approval of the chairperson of the Hawaii paroling authority and the chief justice. The coordinating body shall meet not less than quarterly in a meeting subject to chapter 92. The interagency cooperative agreement shall set forth the role of the coordinating body and the responsibilities of each agency that is a party to the agreement.  (b) The department of health shall be the lead agency for interagency coordination of substance abuse treatment. As the lead agency, the department shall act as facilitator of and provide administrative support to the coordinating body.  (c) Notwithstanding any other provision to the contrary, any agency that is part of the interagency cooperative agreement shall provide, upon the request of any other participating agency, all medical, psychological, or mental health records of any offender receiving supervision or treatment while under custody of the State. Any participating agency receiving such records of any offender receiving supervision or treatment while under custody of the State, shall keep that information confidential in accordance with the requirements of 42 United States Code section 290dd-2. [L 2002, c 161, 2] Note  Annual report on interagency cooperative agreement. L 2002, c 161, 10.
  321-193.7 Clean and sober homes registry. (a) The department shall establish a voluntary clean and sober homes registry to assist persons recovering from substance abuse to have a safe, clean, and sober environment that supports their recovery. The department shall establish procedures and standards by which homes will be allowed to be listed on the registry, including but not limited to:  (1) Organizational and administrative standards;  (2) Fiscal management standards;  (3) Operation standards;  (4) Recovery support standards;  (5) Property standards; and  (6) Good neighbor standards.  (b) Upon review and approval of a home operator's application, the department shall issue a certificate of registration that shall specify:  (1) The name of the holder of the registration;  (2) The address to which the registration applies;  (3) The maximum number of persons to reside in the home; and  (4) The period for which the registration shall be valid. An owner, operator, or landlord shall not hold the property out to be or advertise to be a "registered clean and sober home" unless the home is registered and in good standing with the clean and sober homes registry.  (c) The certificate of registration shall be publicly displayed at the home.  (d) The certificate of registration shall not be transferred to a new owner or operator, or to an address other than as specified on the certificate of registration.  (e) Nothing in this section shall relieve a certificate holder from compliance with other pertinent statutory provisions, nor shall a certificate holder be relieved from compliance with other applicable provisions of federal, state, or county laws, ordinances, or rules.  (f) The department may revoke the certificate of registration if a home ceases to meet established standards or any other applicable federal, state, or county law, ordinance, or rule.  (g) The department may immediately revoke a certificate of registration if there are reasonable grounds to believe that the continued operation of the home presents an immediate danger to residents of the home or the general public.  (h) Any revocation of the certificate of registration shall be made in writing to the certificate holder.  (i) The department shall maintain a listing of all registered clean and sober homes on its website.  (j) The department shall establish a toll-free telephone number to receive complaints regarding clean and sober homes.  (k) This section shall not be construed to abrogate an individual's right to privacy. Unless otherwise provided by law, the department shall implement sufficient protections to ensure that the identity of a clean and sober home resident remains confidential and that information collected pursuant to this section is used solely for the purposes of this section.  (l) The department shall adopt rules under chapter 91 as necessary to carry out the purposes of this section. [L 2014, c 193, 3]
  321-193 Duties and responsibilities of department. The department shall:  (1) Coordinate all substance abuse programs including rehabilitation, treatment, education, research, and prevention activities.  (2) Prepare, administer, and supervise the implementation of a state plan for substance abuse which may consist of a plan for alcohol abuse prevention and a plan for drug abuse prevention.  (3) Identify all funds, programs, and resources available in the State, public and private, and from the federal government which are being used or may be used to support substance abuse prevention, rehabilitation, treatment, education, and research activities.  (4) Be the designated agency required by, and receive and administer all available substance abuse funds including but not limited to funds received from, the federal government under Public Law 92-255, Public Law 91-616, Public Law 91-211, and Title IVA and XVI of the Social Security Act or other subsequent Acts of Congress which may amend or succeed such Acts.  (5) Encourage and coordinate the involvement of private and public agencies in the assessment of substance abuse problems, needs, and resources.  (6) Coordinate the delivery of available funding to public and private agencies for program implementation.  (7) Establish mechanisms and procedures for receiving and evaluating program proposals, providing technical assistance, monitoring programs and securing necessary information from public and private agencies for the purposes of planning, management, and evaluation.  (8) Review the state plan for substance abuse annually for the purpose of evaluation and make necessary amendments to conform with the requirements of federal or state laws.  (9) Do all things necessary to effectuate the purposes of this part.  (10) Certify program administrators, counselors and accredit programs related to substance abuse programs in accordance with rules to be promulgated by the department. [L 1975, c 190, pt of 2; am L 1977, c 108, 1]
  321-194 State advisory commission. The state advisory commission on drug abuse and controlled substances established in section 329-2 shall advise the director on all matters relating to substance abuse including but not limited to the preparation of the state plan for substance abuse. In addition, the advisory commission shall perform such duties and assume such responsibilities as required by federal law for the purpose of receiving federal funding. [L 1975, c 190, pt of 2]
  321-195 Annual report to the legislature. The department shall submit an annual report to the legislature detailing its progress in the implementation of the state plan for substance abuse. The report shall be submitted twenty days before the beginning of each regular session of the legislature. [L 1975, c 190, pt of 2] Note  Other annual reporting requirements. L 2004, c 40, 29.
  321-196 Rules. The department shall adopt rules in accordance with chapter 91 to carry out the purposes of this part. [L 1975, c 190, pt of 2]
  321-197 Personnel. The director of health may hire such necessary personnel to carry out the purposes of this part in accordance with chapter 76. [L 1975, c 190, pt of 2; am L 2000, c 253, 150]
 321-198 State funding of substance abuse agencies. Certification of a private substance abuse agency pursuant to section 321-193(10), shall be a necessary prerequisite to that substance abuse agency receiving any state funding. This section shall take effect on December 31, 1979. [L 1977, c 108, 2; am L 1978, c 68, 1]
 321-2.5 Volunteer medical assistance personnel. (a) This section shall apply to all volunteer medical assistance personnel, including:  (1) Physicians;  (2) Psychologists;  (3) Nurses;  (4) Emergency medical technicians;  (5) Social workers;  (6) Mobile intensive care technicians;  (7) Physician assistants; and  (8) Pharmacists, licensed or certified in this State, or employed by a health care facility, while providing volunteer medical assistance services.  (b) Any volunteer medical assistance personnel who is injured in the performance of volunteer medical assistance services, shall be entitled to the benefits in section 386-171.  (c) Except in cases of wilful or criminal misconduct, gross negligence, or reckless misconduct, any volunteer medical assistance personnel providing volunteer medical assistance services shall not be liable for the death of or injury to persons, or for damage to property, as a result of any act or omission in the course of rendering volunteer medical assistance services. No act or omission shall be imputed to the owner of any vehicle by reason of ownership thereof; provided that nothing in this section shall preclude recovery by any person for injury or damage sustained from the operation of any vehicle that may be insured under section 41D-8 to the extent of the insurance.  (d) Nothing in this section shall be construed to affect any civil action brought by the State or a county against any volunteer medical assistance personnel of the State or a county.  (e) In any suit against the State or a county for civil damages based upon the negligent act or omission of volunteer medical assistance personnel, proof of the negligent act or omission shall be sufficient to establish the responsibility of the State or a county therefor under the doctrine of respondeat superior, notwithstanding the immunity granted to the volunteer medical assistance personnel with respect to any act or omission included under subsection (c).  (f) For the purposes of this section:  "Volunteer medical assistance services" means the rendering of professional medical services that are provided on behalf of and authorized by the State or a county, including participation during periods of volunteer medical assistance services and volunteer medical assistance services training; provided that services provided pursuant to section 321-23.3 shall not be considered to be volunteer medical assistance services. Volunteer medical assistance services shall include providing professional medical services in support of vaccination campaigns or outreach clinics. [L 2010, c 134, 1; am L 2012, c 265, 1]
  321-2.7 Preceptor credit assurance committee. (a) There is established the preceptor credit assurance committee within the department of health. The committee shall develop and implement a plan for certifying healthcare preceptor tax credits under section 235-110.25, including:  (1) Developing a process ensuring that requests for credit certification are reviewed and verifications are processed no later than thirty days following the close of each calendar year;  (2) Developing the documentation process for the committee to certify a preceptor for the tax credit; provided that the documentation to be collected shall include:  (A) The preceptor's name, address, place of practice, and Hawaii provider license number;  (B) Dates and hours of volunteer-based supervised clinical training rotation per eligible student;  (C) Attestation that the preceptor is uncompensated for the volunteer-based supervised clinical training rotation; and  (D) Other information deemed necessary by the committee.  (b) The committee shall be composed of representatives of:  (1) The Hawaii/Pacific basin area health education center;  (2) The center for nursing; and  (3) Academic programs with eligible students.  (c) Members of the committee shall be immune from civil liability for any official act, decision, or omission performed for the purpose for which the committee was established, except for any acts, decisions, or omissions that constitute gross negligence or wilful misconduct.  (d) The proceedings of the committee shall not be subject to part I of chapter 92.  (e) As used in this section, "academic program", "eligible student", "preceptor", and "volunteer-based supervised clinical training rotation" shall have the same meanings as in section 235-110.25. [L 2018, c 43, 3]
 321-2 General office. The department of health shall maintain its general office in Honolulu and such other offices throughout the State as it, in its discretion, may deem to be necessary for the proper performance of its functions. [L 1937, c 122, pt of 2; am L 1941, c 16, 1; RL 1945, 2003; RL 1955, 46-3; am L Sp 1959 2d, c 1, 19; HRS 321-2]
  321-20 Remedies. Notwithstanding other penalties, the director may enforce this chapter in either administrative or judicial proceedings:  (1) Administrative. If the director determines that any person is violating any provision of this chapter, any rule adopted thereunder, or any variance or exemption or waiver issued pursuant thereto, the director may have that person served with a notice of violation and an order. The notice shall specify the alleged violation. The order may require that the alleged violator do any or all of the following: cease and desist from the violation, pay an administrative penalty not to exceed $1,000 for each day of violation, correct the violation at the alleged violator's own expense, or appear before the director at a time and place specified in the order and answer the charges complained of. The order shall become final twenty days after service unless within those twenty days the alleged violator requests in writing a hearing before the director. Upon such request the director shall specify a time and place for the alleged violator to appear. When the director issues an order for immediate action to protect the public health from an imminent and substantial danger, the department shall provide an opportunity for a hearing within twenty-four hours after service of the order. After a hearing pursuant to this subsection, the director may affirm, modify, or rescind the order as appropriate. The director may institute a civil action in any court of appropriate jurisdiction for the enforcement of any order issued pursuant to this subsection.  Factors to be considered in imposing the administrative penalty include the nature and history of the violation and any prior violation and the opportunity, difficulty, and history of corrective action. It is presumed that the violator's economic and financial conditions allow payment of the penalty and the burden of proof to the contrary is on the violator. In any judicial proceeding to enforce the administrative penalty imposed pursuant to this chapter, the director need only show that notice was given, a hearing was held or the time granted for requesting a hearing had expired without such a request, the administrative penalty imposed, and that the penalty imposed remains unsatisfied.  This section does not supersede specific administrative penalties provided elsewhere.  (2) Judicial. The director may institute a civil action in any court of appropriate jurisdiction for injunctive relief to prevent violation of any order issued or rule adopted pursuant to this chapter, in addition to any other remedy or penalty provided for under this chapter. [L 1985, c 84, 1]
   321-201 to 206 REPEALED. L 1987, c 234, 4. Cross References  For present provisions, see chapter 328J.
  321-21 Infectious wastes; management and disposal. The department of health shall adopt rules pursuant to chapter 91 for the management and disposal of infectious wastes generated by hospitals, clinics, other health care facilities, doctors' offices, dentists' offices, research laboratories, veterinary clinics, and other generators of infectious wastes. The rules shall include a definition of infectious wastes that clearly and objectively defines infectious wastes and specifies acceptable containers and other factors related to the identification, segregation, containment, and transportation of infectious wastes. Effective July 1, 1991, all generators of infectious wastes shall show proof that infectious wastes are being managed and disposed of according to departmental rules upon request of the department. [L 1989, c 258, 2]
  321-211 Definitions. As used in this part:  "Electronic smoking device" means any electronic product that can be used to aerosolize and deliver nicotine or other substances to the person inhaling the device, an electronic cigarette, electronic cigar, electronic cigarillo, or electronic pipe, and any cartridge or other component of the device or related product.  "Possession" means knowingly having direct physical control at a given time or knowingly having the power and the intention, at a given time, to exercise dominion or control, including the actual use of the tobacco product.  "Tobacco product" means tobacco in any form, including an electronic smoking device, cigarettes, cigars, snuff, and chewing tobacco, that is prepared or intended for consumption by, or the personal use of, humans. [L 2015, c 122, pt of 2]
  321-212 Tobacco products; possession or consumption prohibited. Possession or consumption of a tobacco product by a person under twenty-one years of age in a public place shall be prohibited. [L 2015, c 122, pt of 2]
  321-213 Exemptions. This part shall not apply to:  (1) Any person under twenty-one years of age, with parental authorization, who is participating in a controlled purchase as part of a law enforcement activity or a study authorized by the department of health under the supervision of law enforcement to determine the level of incidence of tobacco sales to persons under twenty-one years of age; or  (2) Possession of tobacco products by a person under twenty-one years of age in the course of delivery, pursuant to the direction of the person's employer lawfully engaged in business necessitating the delivery. [L 2015, c 122, pt of 2]
 321-214 Enforcement; rules. Any person under twenty-one years of age who violates section 321-212 shall be fined $10 for the first offense. Any subsequent offense shall subject the violator to a fine of $50, no part of which shall be suspended, or the person shall be required to perform not less than forty-eight hours nor more than seventy-two hours of community service during hours when the person is not employed and is not attending school. [L 2015, c 122, pt of 2]
 321-22.5 Trauma system special fund. (a) There is established within the state treasury a special fund to be known as the trauma system special fund to be administered and expended by the department of health. The fund shall consist of:  (1) Surcharges collected pursuant to sections 291-15, 291C-2, and 291E-7;  (2) Cigarette tax revenues designated under section 245-15;  (3) Federal funds granted by Congress or executive order for the purpose of this chapter; provided that the acceptance and use of federal funds shall not commit state funds for services and shall not place an obligation upon the legislature to continue the purpose for which the federal funds are made available;  (4) Funds appropriated by the legislature for this purpose, including grants-in-aid;   (5) Grants, donations, and contributions from private or public sources for the purposes of the trauma system special fund; and  (6) Interest on and other income from the fund, which shall be separately accounted for.  The unexpended and unencumbered moneys in the fund in excess of $7,400,000 on June 30 of each fiscal year shall be transferred by the director of finance into and become a realization of the general fund on that date. Expenditures from the trauma system special fund shall be exempt from chapters 103D and 103F.  (b) The moneys in the trauma system special fund shall be used by the department to support the continuing development and operation of a comprehensive state trauma system. The trauma system special fund shall be used to subsidize the documented costs for the comprehensive state trauma system, including but not limited to the following:  (1) Costs of under-compensated and uncompensated trauma care incurred by hospitals providing care to trauma patients;  (2) Costs incurred by hospitals providing care to trauma patients to maintain on-call physicians for trauma care; and  (3) Costs to staff and operate the State's injury prevention program.  The money in the trauma system special fund shall not be used to supplant funding for trauma services authorized prior to July 1, 2006, and shall not be used for ambulance or medical air transport services.  (c) Disbursements from the fund shall be made in accordance with a methodology established by the department of health to calculate costs incurred by a hospital providing care to trauma patients that are eligible to receive reimbursement under subsection (d). The methodology shall take into account:   (1) Physician on-call coverage that is demonstrated to be essential for trauma services within the hospital;  (2) Equipment that is demonstrated to be essential for trauma services within the hospital;  (3) The creation of overflow or surge capacity to allow a trauma center to respond to mass casualties resulting from an act of terrorism or natural disaster; and  (4) All other hospital services and resources that are demonstrated to be essential for trauma services within the hospital.  The department shall adopt rules pursuant to chapter 91 to effectuate the purposes of this section.  (d) To receive reimbursement, a hospital providing care to trauma patients shall apply to the trauma system special fund on a form and in a manner approved by the department; provided that recipients of reimbursements from the trauma system special fund shall be subject to the following conditions:  (1) The recipient of a reimbursement shall:  (A) Comply with applicable federal, state, and county laws;  (B) Comply with any other requirements the director may prescribe;   (C) Allow the director, the legislative bodies, and the state auditor access to records, reports, files, and other related documents, to the extent permissible under applicable state and federal law, so that the program, management, and fiscal practices of the recipient may be monitored and evaluated to ensure the proper and effective expenditure of public funds;  (D) Provide care to all injured patients regardless of their ability to pay; and  (E) Participate in data collection and peer review activities for the purpose of system evaluation and improvement of patient care; and  (2) Every reimbursement shall be monitored according to rules established by the director under chapter 91 to ensure compliance with this section.  (e) Necessary administrative expenses to carry out this section shall not exceed five per cent of the total amount collected in any given year.  (f) The department shall submit an annual report to the legislature no later than twenty days prior to the convening of each regular session that outlines the receipts of and expenditures from the trauma system special fund.  (g) For the purposes of this section:  "Comprehensive state trauma system" means a coordinated integrated system providing a spectrum of medical care throughout the State designed to reduce death and disability by appropriate and timely diagnosis and specialized treatment of injuries, which includes hospitals with successive levels of advanced capabilities for trauma care in accordance with nationally accepted standards established by the American College of Surgeons Committee on Trauma.  "Hospital providing care to trauma patients" means a hospital with emergency services that receives and treats injured patients.  "Trauma care" means specialized medical care intended to reduce death and disability from injuries.  "Trauma center" means a facility verified by the American College of Surgeons or designated by the department applying American College of Surgeons recommendations as guidelines as being a level I, level II, level III, or level IV trauma center. Level I represents the highest level attainable by a verified trauma center, and level IV represents the lowest level attainable by a verified trauma center. [L 2006, c 305, 2; am L 2008, c 231, 20; am L 2012, c 276, 1; am L 2015, c 238, 3] Note  Establishing positions, convening ad hoc committees, and annual report to legislature on fund. L 2006, c 305,  5 to 7. Law Journals and Reviews  Long-Term Care in Hawaii. 18 HBJ, no. 13, at 59 (2015).
  321-22 Long term care service development fund established. There is established in the treasury of the State a special fund to be known as the long term care service development fund, which shall be administered by the executive office on aging to provide grants to promote the establishment, reorganization, or expansion of businesses and nonprofit corporations offering community-based long term care services on a fee-for-service basis and to provide funding for training and business plan development, including, but not limited to, workshops assisting providers on the development of their business plans, assistance with applications for grants, business management training, and other types of training. [L 1989, c 380, 2] Cross References  Coordination and development of caregiver support services, see 349-15.  Long-term care, see chapter 346D.  Long-term care financing, see chapter 346C.
Note Part heading effective until June 30, 2022. For part heading effective July 1, 2022, see below. PART XVIII. STATE EMERGENCY MEDICAL SERVICES SYSTEM Note Part heading amended by L 2021, c 208, 3.  Part heading effective July 1, 2022. For part heading effective until June 30, 2022, see above. Emergency medical services; community paramedicine program; report to 2020-2023 legislature. L 2019, c 140, 3.  Study of the state emergency medical system; task force to develop a plan to implement findings and recommendations of the study; reports to 2020-2021 legislature (task force dissolved on June 30, 2021). L 2019, c 60,  2, 3. Cross References  County emergency medical services system, see chapter 46, part XI.  Enhanced 911 services for mobile phones, see chapter 138.  Peer support counseling; sessions, see 78-52.  Safe place for newborns, see chapter 587D.  Trauma system special fund, see 321-22.5.  Volunteer emergency medical disaster response personnel, see 321-23.3.   321-221 Findings and purpose. [Section effective until June 30, 2022. For section effective July 1, 2022, see below.] The legislature finds that the establishment of a state comprehensive emergency medical services system to include but not be limited to emergency medical services for children, is a matter of compelling state interest and necessary to protect and preserve the health of the people of the State. A system designed to reduce medical emergency deaths, injuries, and permanent long-term disability through the implementation of a fully integrated, cohesive network of components, the legislature further finds, will best serve the health needs of the people. Accordingly, the purpose of this part is to establish and maintain a state comprehensive emergency medical services system throughout the State, and to fix the responsibility for the administration of this state system which shall provide for the arrangement of personnel, facilities, and equipment for the effective and coordinated delivery of health care services under emergency conditions whether occurring as the result of a patient's condition or of natural disasters or other causes. The system shall provide for personnel, personnel training, communications, emergency transportation, facilities, coordination with emergency medical and critical care services, coordination and use of available public safety agencies, promotion of consumer participation, accessibility to care, mandatory standard medical recordkeeping, consumer information and education, independent review and evaluation, disaster linkage, mutual aid agreements, and other components necessary to meet the purposes of this part. L 1978, c 148, pt of 1; am L 1981, c 93, 1; am L 1994, c 242, 1   321-221 Findings and purpose. [Section effective July 1, 2022. For section effective until June 30, 2022, see above.] The legislature finds that the establishment of a state emergency medical services system, including emergency medical services for children, is a matter of compelling state interest and necessary to protect and preserve public health. A system designed to reduce medical emergency deaths, injuries, and permanent long-term disability through the implementation of a fully integrated, cohesive network of components, the legislature further finds, will best serve public health needs. Accordingly, the purpose of this part is to establish and maintain a state emergency medical services system in communities that can be most effectively served by the State, and to fix the responsibility for the administration of this state system, which shall provide for the arrangement of personnel, facilities, and equipment for the effective and coordinated delivery of health care services under emergency conditions, whether occurring as the result of a patient's condition, from natural disasters, or from other causes. The system shall provide for personnel, personnel training, communications, emergency transportation, facilities, coordination with emergency medical and critical care services, coordination and use of available public safety agencies, promotion of consumer participation, accessibility to care, mandatory standard medical recordkeeping, consumer information and education, independent review and evaluation, disaster linkage, mutual aid agreements, and other components necessary to meet the purposes of this part. [L 1978, c 148, pt of 1; am L 1981, c 93, 1; am L 1994, c 242, 1; am L 2021, c 208, 4]
 321-222 Definitions. As used in this part, unless the context clearly requires otherwise:  "Advanced life support" means initiating all basic life support care as well as invasive patient care designed to stabilize and support a patient's condition due to sudden illness or injury. The care rendered, excluding basic life support, constitutes the practice of medicine.  "Advisory committee" means the emergency medical services advisory committee.  "Basic life support" means initiating noninvasive emergency patient care designed to optimize the patient's chances of surviving the emergency situation. The care rendered consists of all first aid procedures needed, but does not include invasive procedures which constitute the practice of medicine; provided that state-approved basic life support personnel may use fully automatic external defibrillators, initiate intravenous lines, and perform manual external defibrillation under the direction and personal supervision of a mobile intensive care technician and in accordance with rules adopted by the department.  "Department" means the department of health.  "Emergency aeromedical services" means a secondary response system that provides immediate critical care and transport by rotary-wing aircraft of a patient to a facility that provides specialized medical care.  "Emergency medical services for children" [Definition effective until June 30, 2022. For definition effective July 1, 2022, see below.] means comprehensive emergency medical services including preventive, pre-hospital, hospital, rehabilitative, and other post-hospital care for children.  "Emergency medical services for children" [Definition effective July 1, 2022. For definition effective until June 30, 2022, see above.] means emergency medical services, including preventive, pre-hospital, hospital, rehabilitative, and other post-hospital care for children.  "Emergency medical services personnel" means any mobile intensive care technician or emergency medical technician who is certified or licensed by the State.  "First responder personnel" means a person who has successfully completed a United States Department of Transportation approved First Responder Course of training in emergency basic life support.  "Service area" [Definition effective July 1, 2022.] means the State, excluding any county having a population of five hundred thousand or more.  "State system" [Definition effective until June 30, 2022. For definition effective July 1, 2022, see below.] means the state comprehensive pre-hospital emergency medical services system.  "State system" [Definition effective July 1, 2022. For definition effective until June 30, 2022, see above.] means the state pre-hospital emergency medical services system.  "Statewide" [Definition effective July 1, 2022.] means all counties in the State. [L 1978, c 148, pt of 1; am L 1980, c 285, 1; am L 1981, c 93, 2; am L 1991, c 115, 1; am L 1994, c 173, 2 and c 242, 2; am L Sp 2003, c 2, 1; am L 2021, c 208, 5]
 [ 321-223] State comprehensive emergency medical services system, establishment. [Section effective until June 30, 2022. For section effective July 1, 2022, see below.] The department of health shall establish, administer, and maintain the state comprehensive emergency medical services system to serve the emergency health needs of the people of the State. The department of health in the implementation of this art shall plan, coordinate, and provide assistance to all entities and agencies, public and private, involved in the state system. All emergency medical services or ambulance services conducted by or under the authority of the department of health or any county shall be consistent with this part. L 1978, c 148, pt of 1   321-223 State emergency medical services system, establishment. [Section effective July 1, 2022. For section effective until June 30, 2022, see above.] The department shall establish, administer, and maintain the state emergency medical services system to serve the emergency health needs of the people in the service area. All emergency medical services or ambulance services contracted by or under the authority of the department or any county within the service area shall be consistent with this part. [L 1978, c 148, pt of 1; am L 2021, c 208, 6]
  321-224.2 Enhanced and expanded emergency medical services; fees. (a) [Subsection effective until June 30, 2022. For subsection effective July 1, 2022, see below.] The department shall establish reasonable fees to be collected from individuals who are:  (1) Transported by emergency ground ambulance services to a health care facility designated by the department for the care of the individual; or  (2) Provided health care by emergency medical services personnel but not transported by ground ambulance to a health care facility.  (a) [Subsection effective July 1, 2022. For subsection effective until June 30, 2022, see above.] The department shall establish reasonable fees to be collected from individuals who are:  (1) Transported by emergency ground ambulance services to a health care facility within the service area designated by the department for the care of the individual; or  (2) Provided health care by emergency medical services personnel within the service area but not transported by ground ambulance to a health care facility.  (b) The department may adopt rules pursuant to chapter 91 necessary to effectuate the purposes of this section.  (c) No later than July 1, 2020, the department shall adopt interim rules, which shall be exempt from chapter 91 and chapter 201M, to effectuate the purposes of this section; provided that the interim rules shall remain in effect until July 1, 2023, or until rules are adopted pursuant to subsection (b), whichever occurs sooner. [L 2019, c 140, pt of 1; am L 2021, c 208, 8]
  321-224.4 Community paramedicine program; established. (a) [Subsection effective until June 30, 2022. For subsection effective July 1, 2022, see below.] The department of health shall establish and administer the community paramedicine program.  (a) [Subsection effective July 1, 2022. For subsection effective until June 30, 2022, see above.] The department shall establish and administer the community paramedicine program within the service area.  (b) The department shall:  (1) Develop guidelines for community paramedicine;  (2) Explore and develop partnerships with public and private health care entities, insurers, and community organizations; and  (3) Employ telehealth to enhance access and improve the patient experience.  (c) [Subsection effective until June 30, 2022. For subsection effective July 1, 2022, see below.] For purposes of this part, "community paramedicine program" means an enhanced and expanded service in the state comprehensive emergency medical services system that allows state-licensed health care professionals, and community health workers, to assist with public health, primary care, and prevention services, including services through telehealth.  (c) [Subsection effective July 1, 2022. For subsection effective until June 30, 2022, see above.] For purposes of this part, "community paramedicine program" means an enhanced and expanded service in the state emergency medical services system that allows state-licensed health care professionals, and community health workers, to assist with public health, primary care, and prevention services, including services through telehealth.  (d) The department of health shall submit a report on the status of the community paramedicine program, including an accounting of expenses and source of funds, to the legislature no later than twenty days prior to the convening of each regular session of the legislature.  (e) The department shall adopt rules pursuant to chapter 91 to effectuate the purposes of this section.  (f) The department may adopt interim rules, which shall be exempt from chapter 91 and chapter 201M, to effectuate the purposes of this section; provided that the interim rules shall remain in effect until July 1, 2023, or until rules are adopted pursuant to subsection (e), whichever occurs sooner. [L 2019, c 140, pt of 1; am L 2021, c 208, 9]
 321-224  Department of health, functions, duties.  (a) [Subsection effective until June 30, 2022. For subsection effective July 1, 2022, see below.] In addition to other functions and duties assigned under this part, the department shall:  (1) Regulate ambulances and ambulance services;  (2) Establish emergency medical services throughout the State, including emergency aeromedical services, which shall meet the requirements of this part, subject to section 321-228;  (3) Review and approve the curricula and syllabi of training courses offered to emergency medical services personnel who provide basic, intermediate, and advanced life support, consult and coordinate with the University of Hawaii, or any other accredited community college, college, or university, or any professional organization that provides emergency medical services training, regarding the training for basic, intermediate, and advanced life support personnel, as provided in section 321-229;  (4) Collect and evaluate data for the continued evaluation of the state system, subject to section 321-230;  (5) Coordinate emergency medical resources and the allocation of the state system's services and facilities in the event of mass casualties, natural disasters, national emergencies, and other emergencies, ensuring linkage to local, state, and national disaster plans, and participation in exercises to test these plans;  (6) Establish, administer, and maintain a communication system for the state system;  (7) Assist each county in the development of a "911" emergency telephone system;  (8) Secure technical assistance and other assistance and consultation necessary for the implementation of this part, subject to section 321-230;  (9) Implement public information and education programs to inform the public of the state system and its use, and disseminate other emergency medical information, including appropriate methods of medical self-help and first-aid, and the availability of first-aid training programs in the State;  (10) Establish standards and provide training for dispatchers in the state system, and maintain a program of quality assurance for dispatch equipment and operations;  (11) Establish a program that will enable emergency service personnel to provide early defibrillation;  (12) Establish within the department the emergency medical service system for children;  (13) Consult with the advisory committee on matters relating to the implementation of this part; and  (14) Establish and maintain standards for emergency medical services course instructor qualifications and requirements for emergency medical services training facilities.  (a) [Subsection effective July 1, 2022. For subsection effective until June 30, 2022, see above.] In addition to other functions and duties assigned under this part, the department shall:  (1) Regulate ambulances and ambulance services statewide;  (2) Establish emergency medical services throughout the service area, including emergency aeromedical services, which shall meet the requirements of this part, subject to section 321-228;  (3) Review and approve the curricula and syllabi of training courses offered to emergency medical services personnel statewide who provide basic, intermediate, and advanced life support, consult and coordinate with the University of Hawaii, or any other accredited community college, college, or university, or any professional organization that provides emergency medical services training, regarding the training for basic, intermediate, and advanced life support personnel, as provided in section 321-229;  (4) Collect and evaluate data for the continued evaluation of the statewide emergency medical services system, subject to section 321-230;  (5) Coordinate, on a statewide basis, emergency medical resources and the allocation of emergency services and facilities in the event of mass casualties, natural disasters, national emergencies, and other emergencies, ensuring linkage to local, state, and national disaster plans, and participation in exercises to test these plans;  (6) Establish, administer, and maintain a communication system for the service area;  (7) Assist each county in the service area in the development of a "911" emergency telephone system;  (8) Secure technical assistance and other assistance and consultation necessary for the implementation of this part, subject to section 321-230;  (9) Implement public information and education programs to inform the public of the statewide system and its use, and disseminate other emergency medical information, including appropriate methods of medical self-help and first-aid, and the availability of first-aid training programs statewide;  (10) Establish standards and provide training for dispatchers in the state system, and maintain a program of quality assurance for dispatch equipment and operations; provided that individuals acting as dispatchers in the State as of July 1, 2022, shall obtain emergency medical dispatch certification by July 1, 2026, and shall maintain certification thereafter;  (11) Establish a program that will enable emergency service personnel statewide to provide early defibrillation;  (12) Establish within the department the emergency medical service system for children statewide;  (13) Consult with the advisory committee on matters relating to the implementation of this part; and  (14) Establish and maintain statewide standards for emergency medical services course instructor qualifications and statewide requirements for emergency medical services training facilities.  (b) The department may assist in the implementation of a statewide poison information program, including the provision of a hospital-based poison center's services certified by the department. [L 1978, c 148, pt of 1; am L 1992, c 110, 1; am L 1993, c 279, 2; am L 1994, c 242, 3; am L 1996, c 210, 1; am L 1999, c 212, 1; am L 2002, c 168, 1; am L Sp 2003, c 2, 2; am L 2021, c 208, 7] Cross References  Enhanced 911 telephone service, ratemaking, see 269-16.95.
  321-225.5 Fall prevention and early detection coordinator. There is established within the emergency medical services and injury prevention system branch a fall prevention and early detection coordinator to coordinate the provision of public and private fall prevention and early detection services for the elderly. [L 2014, c 153, 2]
 321-225 The state emergency medical services advisory committee. (a) There is established within the department of health for administrative purposes only the state emergency medical services advisory committee, which shall sit in an advisory capacity to the department of health on all matters relating to the state system. The advisory committee may advise the department of health upon request of the department or upon its own initiative with regard to the state system. The advisory committee shall:  (1) Monitor, review, and evaluate on an ongoing basis the operations, administration, and efficacy of the state system, or any components thereof, to determine conformity with and maximum implementation of this part.  (2) Prepare and submit periodic assessments, reports, and other documents relating to the state system to ensure the implementation of this part, as deemed necessary or desirable in the discretion of the advisory committee.  (3) Seek the input of the public in relation to the state system to ensure adequate fulfillment of the emergency medical services needs of the State consistent with this part.  (4) Participate in any planning or other policymaking with regard to the state system, and seek the participation of the public, including subarea health planning councils in its consideration of plans and policies relating to the state system.  (5) Perform other functions, and have other duties necessary to ensuring the fullest implementation and maintenance of the state system.  (6) Advise the department of health in formulating a master plan for emergency medical services, including medicom, the "911" system, and other components necessary to meet the emergency medical needs of the people of the State which shall be submitted to the legislature.  (b) The advisory committee shall be composed of twenty members: three nonvoting ex-officio members, who shall be the director of transportation, the adjutant general, and the administrator of the state health planning and development agency, or the 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.  (c) The advisory committee may adopt rules for its governance.  (d) The department of health shall provide necessary staff and other support required by the advisory committee for the performance of its duties. [L 1978, c 148, pt of 1; am L 1981, c 93, 3; am L 1991, c 115, 2; am L 1994, c 242, 4]
  321-226 Emergency medical services and systems, standards. Section effective until June 30, 2022. For section effective July 1, 2022, see below. The department of health shall establish standards for emergency medical services and for emergency medical service systems consistent with the state system and applicable federal guidelines for such services, including a requirement that ambulance service providers licensed by the State establish and maintain an alcohol and substance abuse policy for employees that the department of health deems is equivalent to, or exceeds the provisions of, the safety and health standards established by the federal Department of Transportation for holders of commercial driver's licenses. In the event the standards are determined or regulated by any other law, or by applicable federal guidelines, standards required to be set by this section shall be at least equivalent to or exceed the other state and federal standards.   321-226 Emergency medical services and systems, standards. [Section effective July 1, 2022. For section effective until June 30, 2022, see above.] The department shall establish statewide standards for emergency medical services and for emergency medical service systems consistent with this part and applicable federal guidelines for those services, including a requirement that ambulance service providers licensed by the State establish and maintain an alcohol and substance abuse policy for employees that the department deems is equivalent to, or exceeds the provisions of, the safety and health standards established by the federal Department of Transportation for holders of commercial driver's licenses. In the event the standards are determined or regulated by any other law, or by applicable federal guidelines, standards required to be set by this section shall be at least equivalent to or exceed the other state and federal standards. [L 1978, c 148, pt of 1; am L 2003, c 106, 1; am L 2021, c 208, 10]
 321-227 Regulation of ambulances. Section effective until June 30, 2022. For section effective July 1, 2022, see below. The department of health shall adopt, amend, and repeal rules under chapter 91 for the regulation of ambulances within the State, including but not limited to the certification of vehicles, equipment, supplies, and communications systems. Any person who provides emergency medical service as an employee of any emergency ambulance service shall be subject to chapter 453.   321-227 Regulation of ambulances. [Section effective July 1, 2022. For section effective until June 30, 2022, see above.] The department of health shall adopt, amend, and repeal rules under chapter 91 for the regulation of ambulances within the State, including but not limited to the certification of vehicles, equipment, supplies, and communications systems; provided that any county operating a county emergency medical services system pursuant to part XI of chapter 46 shall be responsible for the purchase, maintenance, and servicing of all vehicles, equipment, supplies, and communication systems operated for emergency services within the county. The department may contract to certify air and ground ambulance units statewide. The department may charge a reasonable fee for annual certification and safety inspections of air and ground ambulances. Any person who provides emergency medical service as an employee of any emergency ambulance service statewide shall be subject to chapter 453. [L 1978, c 148, pt of 1; am L 1984, c 168, 4; am L 2021, c 208, 11]
 321-228.5 Renumbered as 321-23.3.
 321-228.6 Renumbered as 321-23.
 321-228 Emergency medical services; counties. [Section effective until June 30, 2022. For section effective July 1, 2022, see below.] The department shall determine, in consultation with the advisory committee under section 321-225, the levels of emergency medical services that shall be implemented in each county. The department may contract to provide emergency medical services, including emergency aeromedical services, or any necessary component of a county emergency services system in conformance with the state system. In the event any county shall apply to the department to operate emergency medical ambulance services within the respective county, the department may contract with the county for the provision of those services. The department shall operate emergency medical ambulance services or contract with a private agency in those counties which do not apply to it under this section. Any county or private agency contracting to provide emergency medical ambulance services under this section shall be required by the department to implement those services in a manner and at a level consistent with the levels determined under this section. L 1978, c 148, pt of 1; am L 1980, c 285, 2; am L 1981, c 93, 4; am L Sp 2003, c 2, 3   321-228 Emergency medical services; counties. [Section effective July 1, 2022. For section effective until June 30, 2022, see above.] The department shall determine, in consultation with the advisory committee under section 321-225, the levels of emergency medical services that shall be implemented in each county within the service area. The department may contract to provide emergency medical services, including emergency aeromedical services, or any necessary component of the emergency services system of a county within the service area in conformance with the state system. If any county within the service area shall apply to the department to operate emergency medical ambulance services within the respective county, the department may contract with the county for the provision of those services. The department shall operate emergency medical ambulance services or contract with a private agency in those counties within the service area that do not apply to it under this section. Any county or private agency contracting to provide emergency medical ambulance services under this section shall be required by the department to implement those services in a manner and at a level consistent with the levels determined under this section. [L 1978, c 148, pt of 1; am L 1980, c 285, 2; am L 1981, c 93, 4; am L Sp 2003, c 2, 3; am L 2021, c 208, 12]
  321-229.2 First responder personnel; dementia training. (a) The employers of first responder personnel may obtain dementia training for first responder personnel, which may include:  (1) Recognizing the key signs of Alzheimer's disease and related types of dementia;  (2) Strategies for assessing cognition;  (3) Best practices for interacting with persons with Alzheimer's disease and related types of dementia; and  (4) Strategies to best identify and intervene in situations where persons with Alzheimer's disease and related types of dementia may be at particular risk of abuse or neglect.  (b) The training shall be offered at no cost to the applicable first responder personnel and shall be funded by private contributions from relevant non-profit organizations.  (c) The executive office on aging may coordinate the training schedules and standards, as necessary, with all public and private entities and agencies responsible for services provided by first responder personnel, including entering into agreements or memoranda of agreement with nonprofit organizations to provide funding pursuant to subsection (b).  (d) The employers of first responder personnel may utilize existing educational and training resources available in the public and private sectors when developing the training required under this section. [L 2021, c 155, 2]
  321-229.5 Renumbered as 321-23.6.
 321-229 Emergency medical services personnel, training programs. (a) [Subsection effective until June 30, 2022. For subsection effective July 1, 2022, see below.] The University of Hawaii shall provide training courses in basic, intermediate, and advanced life support for emergency medical services personnel. The curricula and syllabi of these courses shall be approved in advance by the department of health. The curricula and syllabi of courses for ambulance personnel shall be consistent with the scope and level of the practice of emergency medical services associated with emergency ambulance personnel licensure defined by the Hawaii medical board under part II of chapter 453.  (a) [Subsection effective July 1, 2022. For subsection effective until June 30, 2022, see above.] The University of Hawaii shall provide training courses in basic, intermediate, and advanced life support for emergency medical services personnel statewide. The curricula and syllabi of these courses shall be approved in advance by the department. The curricula and syllabi of courses for ambulance personnel shall be consistent with the scope and level of the practice of emergency medical services associated with emergency ambulance personnel licensure defined by the Hawaii medical board under part II of chapter 453.  (b) [Subsection effective until June 30, 2022. For subsection effective July 1, 2022, see below.] The University of Hawaii, or other accredited community college, college, or university, or any professional organization that is approved by the department of health to provide emergency medical services training, shall consult with the department of health to determine the number and type of emergency medical services courses necessary to support the staffing requirements for emergency medical services. The basic life support and advanced life support training programs shall be relevant to and consistent with the training course required for licensure under chapter 453.  (b) [Subsection effective July 1, 2022. For subsection effective until June 30, 2022, see above.] The University of Hawaii, or other accredited community college, college, or university, or any professional organization that is approved by the department to provide emergency medical services training, shall consult with the department and any county operating a county emergency medical services system pursuant to part XI of chapter 46 to determine the number and type of emergency medical services courses necessary to support the staffing requirements for emergency medical services. The basic life support and advanced life support training programs shall be relevant to and consistent with the training course required for licensure under chapter 453.  (c) The department shall develop standards for emergency medical services course instructors and standards for emergency medical services training facilities for all basic life support personnel, advanced life support personnel, users of the automatic external defibrillator, and emergency medical dispatch personnel that shall be at least equivalent to or exceed the standards necessary to meet the requirements, pursuant to part II of chapter 453, for the licensure of basic life support personnel and advanced life support personnel.  (d) The department of health may conduct annual inspections of the training facilities and evaluate the qualifications of course instructors to ensure that the standards and qualifications are consistent with the medical standards for basic life support personnel, advanced life support personnel, users of the automatic external defibrillators, and emergency medical dispatch personnel. [L 1978, c 148, pt of 1; am L 1980, c 285, 3; am L 1981, c 93, 5; am L 1984, c 168, 5; am L 1996, c 210, 2; am L 1999, c 212, 2; am L 2008, c 9, 3; am L 2021, c 119, 3 and c 208, 13] Cross References  Certification of emergency medical service personnel, see  453-31 to 33.
  321-23.3 Volunteer emergency medical disaster response personnel. (a) All volunteer emergency medical disaster response personnel including:  (1) Physicians;  (2) Psychologists;  (3) Nurses;  (4) Emergency medical technicians;  (5) Social workers;  (6) Mobile intensive care technicians;  (7) Physician assistants; and   (8) Pharmacists, licensed in the State, or employed by a health care facility, while engaged in the emergency response to a mass casualty event or disaster condition, including participation during periods of mass casualty and disaster management training, shall be deemed state employees or county employees, as the case may be, and shall have the powers, duties, rights, and privileges of such in the performance of their duties as prescribed by or under the authority of the governor or a county.  (b) For the purposes of this section, any physician or physician assistant licensed in the State having privileges and credentials at public or private health care facilities licensed in the State, shall be deemed as having credentials with the same medical staff privileges at other hospitals for the purpose of rendering professional medical care under a mass casualty or disaster condition.  (c) In the case of injury or death arising out of and in the performance of duty pursuant to this section, including duty performed during periods of training, all volunteer emergency medical disaster response personnel and their dependents shall be entitled to all of the benefits provided in chapter 386, including medical services and supplies. In the case of injury or death, no public official shall be excluded from coverage of chapter 386. Benefits shall be based on average weekly wages set forth in section 386-51, or based on earnings from the usual employment of the person, or based on earnings at the rate of $20 a week, whichever is most favorable to the claimant. Nothing in this section shall adversely affect the right of any person to receive any benefits or compensation under any act of Congress.  (d) Except in cases of wilful misconduct, the State, any county, or any volunteer emergency medical disaster response personnel engaged in the emergency response to a mass casualty event or disaster condition pursuant to this section (including volunteers whose services are accepted by any authorized person), shall not be liable for the death of or injury to persons, or for damage to property, as a result of any act or omission in the course of rendering professional medical care under a mass casualty event or disaster condition. No act or omission shall be imputed to the owner of any vehicle by reason of ownership thereof; provided that nothing in this section shall preclude recovery by any person for injury or damage sustained from the operation of any vehicle that may be insured under section 41D-8 to the extent of the insurance. Unless specifically provided, insurance effected under section 41D-8 shall not include coverage of such risk during a disaster emergency period.  (e) A physician assistant licensed in this State or licensed or authorized to practice in any other United States jurisdiction, or who is credentialed as a physician assistant by a federal employer who is responding to a need for medical care created by a public emergency or a state or local disaster, may provide medical care that the physician assistant is authorized to provide without physician supervision, pursuant to chapter 453, or with appropriate physician supervision that is available; provided that:  (1) Any physician who supervises a physician assistant providing medical care in response to a public emergency or state or local disaster shall not be required to meet the requirements set forth in chapter 453 for a supervising physician; and  (2) No physician who supervises a physician assistant voluntarily and gratuitously providing emergency care pursuant to this subsection shall be liable for civil damages for any personal injuries which result from acts or omissions by the physician assistant providing emergency care.  (f) For the purposes of this section:  "Disaster condition" means a sudden catastrophic event that overwhelms natural order and causes loss of property or life and exceeds or disrupts the capabilities of available medical resources to receive and provide medical care within a community.  "Mass casualty event" means a number of casualties generated more or less simultaneously, that exceeds the ability to provide usual medical care including but not limited to an airplane crash, collapsed building, bombing, or hurricane. [L 1998, c 105, 1; am L 2009, c 151, 11; am L 2012, c 265, 2]
  321-23.6 Rapid identification documents. (a) The department shall adopt rules for emergency medical services that shall include:  (1) Uniform methods of rapidly identifying an adult person who has certified, or for whom has been certified, in a written "comfort care only" document that the person or, consistent with chapter 327E, the person's guardian, agent, or surrogate directs emergency medical services personnel, first responder personnel, and health care providers not to administer chest compressions, rescue breathing, electric shocks, or medication, or all of these, given to restart the heart if the person's breathing or heart stops, and directs that the person is to receive care for comfort only, including oxygen, airway suctioning, splinting of fractures, pain medicine, and other measures required for comfort;  (2) The written document containing the certification shall be signed by the patient or, consistent with chapter 327E, the person's guardian, agent, or surrogate and by any two other adult persons who personally know the patient; and  (3) The original document containing the certification and all three signatures shall be maintained by the patient, the patient's:  (A) Physician;  (B) Attorney;  (C) Guardian;  (D) Surrogate; or  (E) Any other person who may lawfully act on the patient's behalf.  Two copies of the document shall be given to the patient, or the patient's guardian, agent, or surrogate.  (b) The rules shall provide for the following:  (1) The patient, or the patient's guardian, agent, or surrogate, may verbally revoke the "comfort care only" document at any time, including during the emergency situation;  (2) An anonymous tracking system shall be developed to assess the success or failure of the procedures and to ensure that abuse is not occurring; and  (3) If an emergency medical services person, first responder, or any other health care provider believes in good faith that the provider's safety, the safety of the family or immediate bystanders, or the provider's own conscience requires the patient be resuscitated despite the presence of a "comfort care only" document, then that provider may attempt to resuscitate that patient, and neither the provider, the ambulance service, nor any other person or entity shall be liable for attempting to resuscitate the patient against the patient's will. [L 1994, c 173, 1; am L 2006, c 46, 1]
  321-23 Catastrophic and traumatic emergency response program established. (a) The director shall establish within the department a catastrophic and traumatic emergency response program to:  (1) Provide for the delivery of prompt psychological services in the event of a catastrophic event or traumatic emergency;  (2) Provide for critical incident stress debriefing for ambulance, fire, police, and other emergency service personnel;  (3) Provide for immediate delivery of psychological services to the residents and visitors;  (4) Coordinate the use of other public and private resources of post-disaster psychological services for the immediate and long-term delivery of psychological assistance to trauma victims; and  (5) Advise state government and emergency service personnel on psychological issues and trauma victim behavior in the planning of and responses to catastrophic events and traumatic emergencies.  (b) The director shall compile a list of qualified mental health professionals who are willing to serve on a catastrophic and traumatic emergency response team, giving priority to individuals with experience in dealing with catastrophic or traumatic emergency events. The director shall appoint at least one team of professionals from the list, making a reasonable effort to appoint at least one member from each island, except Niihau. If a qualified representative cannot be appointed from each island, the director, at a minimum, shall appoint one member from each county. Each team appointed shall serve for a period of four years, with one member who has specialized training in trauma care to be designated as the team leader; provided that the director shall have the flexibility of appointing additional special teams for shorter or longer periods of time as the need arises. Members of a catastrophic and traumatic emergency response team shall receive continuing professional education and training on the provision of psychological assistance to be ready to provide services whenever a catastrophic event or traumatic emergency occurs. The team members shall be compensated for each day of service provided under this section, including participation in training required by the director, in accordance with a fee schedule to be established by the director pursuant to chapter 91.  (c) For purposes of this section, "catastrophic event or traumatic emergency" means any tragic occurrence that has resulted in:  (1) The loss of lives, infliction of injury, harm or suffering among humans, including hostage situations; or  (2) Extensive destruction of property. The term includes, but shall not be limited to, disasters for which relief is provided under chapter 127.  (d) The team shall be activated by the director whenever the director finds that psychological assistance is appropriate following a catastrophic event or traumatic emergency.  (e) The director shall adopt rules under chapter 91 to implement the emergency response trauma program, which shall include the qualifications of and appointment process for catastrophic and traumatic emergency response team members. [L 1990, c 239, 3] Note  L 2014, c 111, 28 purports to amend this section.
 321-230 Technical assistance, data collection, evaluation. (a) [Subsection effective until June 30, 2022. For subsection effective July 1, 2022, see below.] The department may contract for technical assistance and consultation, including but not limited to categorization, data collection, and evaluation appropriate to the needs of the state system. The collection and analysis of statewide emergency medical services data, including pediatrics, trauma, cardiac, medical, and behavioral medical emergencies, shall be for the purpose of improving the quality of services provided.  The department may implement and maintain a trauma registry for the collection of information concerning the treatment of critical trauma patients at state designated trauma centers, and carry out a system for the management of that information. The system may provide for the recording of information concerning treatment received before and after a trauma patient's admission to a hospital or medical center. All state designated trauma centers shall submit to the department of health periodic reports of each patient treated for trauma in the state system in such manner as the department shall specify.  For the purposes of this subsection, "categorization" means systematic identification of the readiness and capabilities of hospitals and their staffs to adequately, expeditiously, and efficiently receive and treat emergency patients.  (a) [Subsection effective July 1, 2022. For subsection effective until June 30, 2022, see above.] The department may contract for technical assistance and consultation, including categorization, data collection, and evaluation appropriate to the needs of the statewide emergency medical services system. The collection and analysis of statewide emergency medical services data, including pediatrics, trauma, cardiac, medical, and behavioral medical emergencies, shall be for the purpose of improving the quality of services provided.  The department may implement and maintain a trauma registry for the collection of information concerning the treatment of critical trauma patients at state designated trauma centers, and carry out a system for the management of that information. The system may provide for the recording of information concerning treatment received before and after a trauma patient's admission to a hospital or medical center. All state designated trauma centers shall submit to the department periodic reports of each patient treated for trauma in the state system in the manner as the department shall specify.  For the purposes of this subsection, "categorization" means systematic identification of the readiness and capabilities of hospitals and their staffs to adequately, expeditiously, and efficiently receive and treat emergency patients.  (b) [Subsection effective until June 30, 2022. For subsection effective July 1, 2022, see below.] The department shall establish, administer, and maintain an aeromedical emergency medical services system designed to collect and analyze data to measure the efficiency and effectiveness of each phase of an emergency aeromedical program.  The aeromedical emergency medical services system shall serve the emergency health needs of the people of the State by identifying:  (1) The system's strengths and weaknesses;  (2) The allocation of resources; and  (3) The development of rotary-wing emergency aeromedical services standards; provided that emergency helicopter use, including triage protocols, shall be based on national aeromedical triage and transport guidelines established by the Association of Air Medical Services, the American College of Surgeons and the National Association of Emergency Medical Service Physicians. The department, in the implementation of this subsection, shall plan, coordinate, and provide assistance to all entities and agencies, public and private, involved in the system.  (b) [Subsection effective July 1, 2022. For subsection effective until June 30, 2022, see above.] The department shall establish, administer, and maintain an aeromedical emergency medical services system designed to collect and analyze data to measure the efficiency and effectiveness of each phase of the statewide emergency aeromedical program.  The department shall monitor aeromedical emergency ambulance service flights statewide to include date of service, patient demographics, transport diagnosis, and medical outcomes. The department shall work with each health care facility as the intermediary to arrange emergency transport of bariatric patients by the United States Coast Guard, and maintain a registry of all emergency transports provided by the United States Coast Guard. All statewide aeromedical providers shall submit their data to the department as specified and requested by the department.  The statewide aeromedical emergency medical services system shall serve the emergency health needs of the people of the State by identifying:  (1) The system's strengths and weaknesses;  (2) The allocation of resources; and  (3) The development of rotary-wing emergency aeromedical services standards; provided that emergency helicopter use, including triage protocols, shall be based on national aeromedical triage and transport guidelines established by the Association of Air Medical Services, the American College of Surgeons, the National Association of Emergency Medical Service Physicians, or other department-approved national aeromedical accreditation agency. The department, in the implementation of this subsection, shall plan, coordinate, and provide assistance to all entities and agencies, public and private, involved in the statewide system.  (c) The department shall use an emergency aeromedical services quality improvement committee comprised of representatives of trauma, emergency, and tertiary care physicians and providers to analyze information collected from the aeromedical quality improvement performance measures as established by the American College of Surgeons, and to recommend system standards and resources to maintain and improve the Hawaii emergency aeromedical services system. [L 1978, c 148, pt of 1; am L 1980, c 285, 4; am L 1981, c 93, 6; am L 1994, c 242, 5; am L 2002, c 150, 1; am L Sp 2003, c 2, 4; am L 2021, c 208, 14]
  321-231 Grants. The state system may seek and accept any funds or property and other desirable support and assistance from any source whatsoever, whether gift, grant, services or any combination thereof, subject to applicable laws. In the event that any grant applications are made in relation to the state system, or any component thereof, the department shall consult with the advisory committee and provide technical assistance in the preparation, management, or administration of the application or the grant, or both. [L 1978, c 148, pt of 1]
 321-232 Revenues; deposit into state general fund. (a) [Subsection effective until June 30, 2022. For subsection effective July 1, 2022, see below.] The department of health shall establish reasonable fees for services rendered to the public by the department of health, any county, or private agency under this part; provided that all such revenues which shall be collected by the department of health and the respective counties shall be deposited into the state general fund, except such amounts necessary to provide for collection services for bad debt accounts. Fees required to be set by this section shall be established in accordance with chapter 91.  (a) [Subsection effective July 1, 2022. For subsection effective until June 30, 2022, see above.] The department shall establish reasonable fees for services rendered to the public within the service area by the department, any county within the service area, or private agency under this part; provided that all revenues collected by the department and the respective counties pursuant to this section shall be deposited into the state general fund, except amounts necessary to provide for collection services for bad debt accounts. Fees required to be set by this section shall be established in accordance with chapter 91.  (b) No ambulance services, or any other emergency medical services available from or under the authority of this chapter shall be denied to any person on the basis of the ability of the person to pay therefor or because of the lack of prepaid health care coverage or proof of such ability or coverage.  (c) [Subsection effective until June 30, 2022. For subsection effective July 1, 2022, see below.] In the event of nonpayment of any fees required to be assessed by this section, the department of health shall determine whether the recipient of such services is financially able to pay such fees and make every reasonable effort to collect such fees. In the event the department finds the person is without sufficient resources to pay for the services, no further action to collect the fees shall be taken. If the services are paid by a county or any other entity, and collection of such fee is delegated by contractual agreement to the county or other agency which provides the services, the county or other agency shall forward records relating to unpaid fees for action by the department of health under this subsection. No county or other entity shall make a final determination of the ability of a person to pay under this subsection. Any determination of ability to pay for purposes of this subsection shall be in accordance with rules which the department of health shall adopt, subject to chapter 91, governing such determinations.  (c) [Subsection effective July 1, 2022. For subsection effective until June 30, 2022, see above.] In the event of nonpayment of any fees required to be assessed by this section, the department shall determine whether the recipient of services is financially able to pay the fees and make every reasonable effort to collect the fees. In the event the department finds the person is without sufficient resources to pay for the services, no further action to collect the fees shall be taken. If the services are paid by a county or any other entity, and collection of the fee is delegated by contractual agreement to the county or other agency that provides the services, the county or other agency shall forward records relating to unpaid fees for action by the department under this subsection. No county or other entity shall make a final determination of the ability of a person to pay under this subsection. Any determination of ability to pay for purposes of this subsection shall be in accordance with rules that the department shall adopt, subject to chapter 91, governing the determinations. [L 1978, c 148, pt of 1; am L 1984, c 77, 1; am L 2021, c 208, 15]
  321-233 Rules. The director of health may adopt, amend, and repeal rules necessary to the implementation of this part, subject to chapter 91. [L 1978, c 148, pt of 1]
  321-234 Emergency medical services special fund. (a) There is established within the state treasury a special fund to be known as the emergency medical services special fund to be administered and expended by the department.  (b) The moneys in the special fund shall be distributed as follows:  (1) Beginning with fiscal year 2021-2022, $3,500,000 shall be distributed each fiscal year to a county operating a county emergency medical services system pursuant to part XI of chapter 46 for the operation of that system; and  (2) The remainder shall be distributed to the department for operating the system established pursuant to this chapter, including enhanced and expanded services, and shall not be used to supplant funding for emergency medical services authorized prior to July 1, 2004.  (c) Fees remitted pursuant to section 249-31, cigarette tax revenues designated under section 245-15, interest and investment earnings attributable to the moneys in the special fund, legislative appropriations, and grants, donations, and contributions from private or public sources for the purposes of the fund, shall be deposited into the special fund.  (d) The department shall submit an annual report to the legislature no later than twenty days prior to the convening of each regular session that outlines the receipts of, and expenditures from, the special fund. [L 2004, c 158, 2; am L 2006, c 316, 6; am L 2021, c 208, 16]
 321-235 Immunity and limitation on liability for emergency aeromedical services. The State shall not be liable for any claim of injury or death based on a failure to establish or continue emergency aeromedical services in any part of the State or in any county, including the failure of the department of health to establish emergency aeromedical services. [L 2004, c 105, 2]
 [ 321-236] Emergency medical services; use of latex gloves prohibited. [Section effective until June 30, 2022. For section effective July 1, 2022, see below.] The use of latex gloves by personnel providing ambulance services or emergency medical services pursuant to this part shall be prohibited. L 2016, c 180, 3   321-236 Emergency medical services; use of latex gloves prohibited. [Section effective July 1, 2022. For section effective until June 30, 2022, see above.] The use of latex gloves by personnel providing ambulance services or emergency medical services statewide pursuant to this part and part XI of chapter 46 shall be prohibited. [L 2016, c 180, 3; am L 2021, c 208, 17] Cross References  Dental health facilities; health care facilities; use of latex gloves, see 321-11.9.
  321-237 Retention of relevant documentation. [Section effective July 1, 2022.] Notwithstanding any provision of this part or any other state or county law or ordinance to the contrary, the department shall maintain data repositories, charts, patient information, data submission, and epidemiology information for all emergency medical services statewide. [L 2021, c 208, 2]
   321-24 to 26 REPEALED. L 1990, c 288, 6.
  321-241.5 REPEALED. L 2007, c 105, 5.
Cross References For present provisions, see  302A-851 to 855.    321-241 to 242 REPEALED. L 2007, c 105, 5.
 321-242 REPEALED. L 2007, c 105, 5.
 321-243 REPEALED. L 1996, c 211, 3.
 321-244 REPEALED. L 1981, c 200, 3.
   321-245, 246 REPEALED. L 2007, c 105, 5.
  321-246 REPEALED. L 2007, c 105, 5.
 321-26.5 Environmentally-sensitive cleaning and maintenance products for use in public schools; approved list of products. (a) The department of health shall maintain a list of products that have been approved by the Green Seal program for public school facilities to use as a first preference guideline when purchasing and using environmentally-sensitive cleaning and maintenance products; provided that the department may add or remove any product from the list as deemed necessary by the director.  (b) The department shall review and evaluate existing research regarding environmentally-sensitive cleaning and maintenance products, including any research and guidance issued by the United States Environmental Protection Agency. [L Sp 2009, c 13, 2] Cross References  Environmentally-sensitive cleaning and maintenance products for use in public schools, see 302A-1509.
   321-261 to 271 REPEALED. L 1996, c 211, 4.
  321-27.5 Audit of sanitation branch. The department shall perform annual audits of the sanitation branch to be completed by November 30 of each year, and shall include an audit of:  (1) Fees collected;  (2) The number and results of sanitation inspections;  (3) The number of training seminars held; and  (4) The cost of training personnel in the sanitation branch. [L 1997, c 334, pt of 1]
 321-27 Sanitation and environmental health special fund. (a) There is established within the department of health the sanitation and environmental health special fund into which shall be deposited all moneys collected from fees for permits, licenses, inspections, various certificates, variances, investigations, and reviews, pursuant to sections 321-11.5(c) and 321-15.  (b) Moneys in the fund shall be expended by the department to partially fund the operating costs of program activities and functions authorized pursuant to section 321-11 to enhance the capacity of sanitation and environmental health programs to:  (1) Improve public outreach efforts and consultations to regulated businesses and industries;  (2) Educate the public, staff, and regulated businesses and industries;  (3) Plan for future growth and expansion to meet emerging needs;  (4) Provide training opportunities to ensure the maintenance of professional competence among sanitation and environmental health staff and administrators; and  (5) Conduct program activities and functions of the sanitation branch, including permit issuance, inspections, and enforcement and the hiring of additional inspectors; provided that for environmental health programs, not more than $140,000 of the fund may be used during any fiscal year for fund administration, including the hiring of not more than two full-time equivalent personnel, and the purchase of office and electronic equipment.  (c) Any amount in the fund in excess of $1,500,000 on June 30 of each year shall be deposited into the general fund.  (d) The department of health shall submit a report to the legislature concerning the status of the sanitation and environmental health special fund, including:  (1) The amount of moneys taken in by and expended from the fund; and  (2) The sources of receipts and uses of expenditures, not less than twenty days prior to the convening of each regular session. [L 1994, c 169,  2, 9; am L 1996, c 164, 1; am L 1998, c 311,  15, 16; am L 1999, c 120, 4; am L 2010, c 176, 4]
  321-28 Traumatic brain injury advisory board. There is established within the department of health the traumatic brain injury advisory board. The advisory board, in consultation with the neurotrauma advisory board, shall advise the department in the development and implementation of a comprehensive plan to address the needs of persons affected by disorders and disabilities that involve the brain. Further, the advisory board, in consultation with the neurotrauma advisory board, shall advise the department of the feasibility of establishing agreements with private sector agencies to develop services for persons with brain injuries.  The advisory board shall consist of at least nine members who shall be appointed by the director of health in accordance with section 26-35. The director of health shall designate a member to be the chairperson of the advisory board. The director of health or a designee shall serve as an ex officio nonvoting member of the advisory board. The members shall serve for a term of four years; provided that upon the initial appointment of the members, two shall be appointed for a term of one year, two for a term of two years, two for a term of three years, and three for a term of four years. In establishing the advisory board, the director of health shall appoint at least:  (1) Two members representing private sector businesses that provide services for brain injured persons;  (2) Two survivors of traumatic brain injury; and  (3) One member representing trauma centers that provide services for brain injured persons.  The members shall serve without compensation but shall be reimbursed for actual expenses, including travel expenses, that are necessary for the performance of their duties. [L 1997, c 333, 2; am L 2002, c 160, 12] Note  Concussion educational program under department of education. L 2012, c 197; L 2016, c 262. Cross References  Neurotrauma advisory board, see 321H-3.
  321-281 Financial assistance fund for hemophilia. There is established within the department of health a financial assistance fund for persons suffering from hemophilia who require hemophilia-related medical care and treatment, but who are unable to pay the entire costs of such medical care and treatment. [L 1983, c 280, pt of 2]
  321-282 General duties of the department. The department of health shall:  (1) Provide financial assistance, within the limits of available funds in the financial assistance fund, for the medical care and treatment of persons suffering from hemophilia who meet the standards of eligibility established by the department; provided that the department may contract with a private, nonprofit organization to carry out this function;  (2) Establish standards of eligibility for the financial assistance provided under this part; and  (3) Adopt any necessary rules pursuant to chapter 91 to implement this part. [L 1983, c 280, pt of 2]
  321-29 Epidemiologic investigations. (a) The department may conduct investigations to determine the nature and extent of diseases and injuries deemed by the department to threaten the public health and safety.  (b) Every person, health care provider, and medical facility shall provide the patient's name, the name of a minor patient's parent or guardian, address, telephone number, age, sex, race or ethnicity, clinical signs and symptoms, laboratory test results, diagnostic interview data, treatment provided, and the disposition of the patient when requested by an authorized representative of the director for the purpose of conducting such an investigation. The authorized representative may view only the limited portion of the patient's medical record that is directly relevant in time and scope to the subject of the investigation.  (c) Every person, company, organization, association, health care provider, medical facility, or any other possible source of information shall provide names, addresses, telephone numbers, and locating information regarding an individual or group of individuals suspected of having been exposed to a disease or disease-causing substance that is the subject of an epidemiologic investigation when requested by an authorized representative of the director.  For the purposes of this subsection, "locating information" includes information contained in appointment, reservation, registration, invitation, attendance, billing, payment lists, or any other record that may help the department identify, locate, or contact individuals or groups suspected of having been exposed to a disease under investigation.  (d) When, in the written opinion of the director of health reasonable cause exists for the investigation of a disease or series of injuries that threatens public health or safety and that the collection of plant, animal, food, or environmental samples or specimens for immediate testing is necessary, an authorized representative of the department, during regular working hours or at other reasonable times may demand entry onto any premises, public or private, for the purpose of conducting an administrative investigation; provided that:  (1) (A) Entry shall only occur with the consent of the owner, owner's agent, or person in lawful control of the property to investigate and collect relevant samples; or   (B) If consent is not obtained, entry shall only occur after issuance of an administrative investigation warrant pursuant to subsection (e), specifying the area to be searched and the types of samples and specimens sought;  (2) The investigation shall be limited to only those samples, specimens, and investigative actions that are necessary to confirm or deny the cause that prompted the investigation;  (3) An authorized representative of the director shall be liable only for damage caused by acts beyond the scope of the representative's authority, or by the representative's gross negligence or intentional misconduct; and   (4) The director's authorized representative shall leave an inventory describing any samples or specimens obtained, and the department shall make split samples available to the person whose premises are subject to the investigation.  For the purposes of this subsection, "administrative investigation" means any investigation, independent of a criminal investigation, that is conducted for the purpose of determining the existence of disease or series of injuries deemed by the department to threaten the public health or safety. An administrative investigation may involve the examination of real or personal property, records, equipment, buildings, products, by-products, wastes, processes, activities, environmental conditions (i.e., air, soil, and water quality), or other property or activities.  (e) If consent to entry is denied under subsection (d), the department representative may apply to the district court in the circuit in which the property is located for an administrative investigation warrant to enter the premises to effectuate the purposes of this section. The district court may issue an administrative investigation warrant directing a police officer of the county in the circuit to assist the department representative in gaining entry onto the premises during regular working hours or at other reasonable times. The warrant may command the police officer to take sufficient aid, and being accompanied by a representative of the department, to go to the premises described in the warrant and search for, seize, secure, or collect, under the specific direction of the representative, or allow the representative to search for, seize, secure, or collect, plant, animal, food, or environmental samples or specimens deemed necessary to conduct the investigation successfully. A district court may issue an administrative investigation warrant if sufficient facts are presented to the court that would establish probable cause for the need for the search. Probable cause for the need for the search shall be established by affidavit demonstrating:  (1) The opinion of the director of health that there is reasonable cause for the investigation of the particular premises at issue;  (2) That the investigation is necessary for the protection of public health and safety under this section; and  (3) That consent to search the particular premises has been denied under subsection (d)(1)(A). A copy of the administrative investigation warrant and all supporting affidavits shall be provided to the person served. If a suitable person is not available to be served after reasonable efforts to locate such a person, the administrative investigation warrant may be left at the principal entry of the investigated premises.  (f) No person, company, organization, association, health care provider, medical facility, or other source that provides information requested by an authorized representative of the director, for the purpose of conducting an investigation under this section, shall be held civilly or criminally liable for providing that information to the department.  (g) All information provided to the department under this section shall be kept strictly confidential, except as the director determines is necessary to protect the public health and safety. Access to confidential records shall be restricted to those individuals specifically authorized to participate in any given investigation. However, epidemiologic and statistical information with no individual identifying information may be released to the public. The identities of individuals whose medical records are investigated shall be disclosed only to those persons authorized by the director or the director's representative to conduct a specific investigation under this section or determined by the director to be necessary to protect the health and safety of the public.   (h) The director shall adopt rules under chapter 91 as are appropriate to carry out the purposes of this section and its efficient administration. The rules shall:  (1) Establish administrative remedies for the owner, owner's agent, or person in lawful control of the property to file a claim with the department for damaged and seized property; provided that there shall be no administrative remedy for the seizure of de minimis samples;  (2) Provide notice to the owner, owner's agent, or person in lawful control of the property of the administrative remedies available for damaged and seized property; and  (3) Provide penalties for the failure to comply with any rule. [L 1999, c 192, 2; am L 2002, c 169, 4; am L 2009, c 95, 1] Cross References  Health care-associated infection reporting, see 325-2.5.
  321-291 Tests for phenylketonuria, hypothyroidism, and other metabolic diseases. (a) The department of health may specify diseases to be screened for in newborn infants and methods to be employed to best prevent mortality and morbidity within the population of the State.  (b) The person in charge of each institution caring for newborn infants and the responsible physician attending the birth of a newborn or the person assisting the birth of a child not attended by a physician, shall ensure that every infant in the person's care be tested for phenylketonuria, hypothyroidism, and any other disease that may be specified by the department of health; provided that this section shall not apply if the parents, guardians, or other persons having custody or control of the child object thereto on the grounds that the tests conflict with their religious tenets and beliefs and written objection is made a part of the infant's medical record.  (c) The department of health shall adopt rules pursuant to chapter 91, necessary for the purposes of this section, including, but not limited to:  (1) Administration of newborn screening tests;  (2) Quality and cost control of screening tests;  (3) Retention of records and related data;  (4) Reporting of positive test results;  (5) Guidelines for care, treatment, and follow up of infants with positive test results;  (6) Informing parents about the purposes of these tests; and  (7) Maintaining the confidentiality of affected families.  (d) There is created in the treasury of the State the newborn metabolic screening special fund. All moneys for newborn metabolic screening services collected under this chapter shall be deposited in the newborn metabolic screening special fund to be used for the payment of its lawful operating expenditures, including but not limited to laboratory testing, follow-up testing, educational materials, continuing education, quality assurance, equipment, and indirect costs.  (e) The director shall submit an annual report to the legislature twenty days prior to the convening of each regular session, identifying all fund balances, transfers, and expenditures made from the newborn metabolic screening special fund, and the purposes for each expenditure. [L 1986, c 10, 1; am L 1996, c 259, 1]
Revision Note Part heading added by revisor pursuant to 23G-15.  321-296 Newborn pulse oximetry screening. (a) Prior to discharge of any newborn in its care, a birthing facility shall perform on the newborn a pulse oximetry test for critical congenital heart defects or other medically accepted test that measures the percentage of blood oxygen saturation, as approved by the guidelines of the American Academy of Pediatrics.  (b) Subsection (a) shall not apply if the parents, guardians, or other persons having custody or control of the newborn object to performance of the test required by subsection (a) on the grounds that the test conflicts with their religious tenets and beliefs and written objection is made a part of the newborn's medical record.  (c) Each birthing facility shall report critical congenital heart defect screening data to the department of health for quality assurance and improvement activities. At a minimum, the data shall include:  (1) Newborns screened and not screened;  (2) The timing of screening after birth;  (3) Pulse oximetry results;  (4) The outcomes of newborns who fail pulse oximetry screening; and  (5) Infants who are detected with a critical congenital heart defect and who pass pulse oximetry screening.  (d) For the purposes of this section, "birthing facility" means an inpatient or ambulatory health care facility licensed by the department of health that provides birthing and newborn care services. [L 2015, c 212, 2]
 321-3 REPEALED. L 1996, c 211, 1.
  321-30.1 Medical cannabis registry and regulation special fund; established. (a) There is established within the state treasury the medical cannabis registry and regulation special fund. The fund shall be expended at the discretion of the director of health:  (1) To establish and regulate a system of medical cannabis dispensaries in the State;  (2) To offset the cost of the processing and issuance of patient registry identification certificates and primary caregiver registration certificates;  (3) To fund positions and operating costs authorized by the legislature;  (4) To establish and manage a secure and confidential database;  (5) To fund public education as required by section 329D-26;  (6) To fund substance abuse prevention and education programs; and  (7) For any other expenditure necessary, consistent with this chapter and chapter 329D, to implement medical cannabis registry and regulation programs.  (b) The fund shall consist of all moneys derived from fees collected pursuant to subsection (c) and section 329D-4. There is established within the medical cannabis registry and regulation special fund:  (1) A medical cannabis registry program sub-account, into which shall be deposited all fees collected pursuant to subsection (c); and  (2) A medical cannabis dispensary program sub-account, into which shall be deposited all fees collected pursuant to section 329D-4.  (c) The department, upon completion of the transfer of the medical use of cannabis program, shall charge a medical cannabis registration fee to each qualifying patient, other than a qualifying out-of-state patient, of no more than $35 per year. [L 2013, c 177, 2; am L 2015, c 241, 4; am L 2017, c 170, 2; am L 2018, c 116, 3]
  321-30.2 Civil monetary penalty special fund. (a) There is established the civil monetary penalty special fund, to be administered by the department of health. The fund shall consist of moneys collected by the United States Department of Health and Human Services Centers for Medicare and Medicaid Services as federally imposed civil monetary penalty funds when health care facilities or agencies do not meet medicare certification requirements as determined by the department of health when it conducts medicare certification surveys and complaint investigations on health care facilities or agencies in Hawaii in accordance with section 1864 of the Social Security Act. Moneys in the fund shall be expended by the department of health as approved by the Centers for Medicare and Medicaid Services. Moneys in the fund may be used during any fiscal year for the activities carried out by the department of health as approved by the Centers for Medicare and Medicaid Services.  (b) Pursuant to federal law, civil monetary penalty special fund moneys shall not be subject to deposit into the general fund for any reason.  (c) The department of health shall submit a report to the legislature concerning the status of the civil monetary penalty special fund, including the amount of moneys deposited into and expended from the civil monetary penalty special fund, and the sources of receipts and uses of expenditures, no later than twenty days prior to the convening of each regular session. [L 2015, c 71, 1; am L 2020, c 10, 2]
  321-30.3 Default beverages offered with children's meals. (a) A restaurant that offers for sale a children's meal that includes a beverage shall offer with the children's meal as a default beverage one or more of the following:  (1) Water, sparkling water, or flavored water, with no added sugar, corn syrup, or other natural or artificial sweeteners;  (2) Unflavored nonfat or low-fat (one per cent) dairy milk or non-dairy beverage that is nutritionally equivalent to fluid milk in a serving size of eight ounces or less; or  (3) One hundred per cent fruit juice or vegetable juice, or fruit juice or vegetable juice combined with water or carbonated water, with no added natural or artificial sweetener, in a serving size of eight ounces or less.  (b) Nothing in this section shall prohibit a restaurant from selling, or a customer from purchasing, an alternative to the default beverage if requested by the purchaser of the children's meal.  (c) The department of health shall adopt rules pursuant to chapter 91 to implement this section.  (d) As used in this section, unless the context clearly indicates otherwise:  "Children's meal" means a combination of food and a beverage, sold together at a single price by a restaurant, primarily intended for consumption by children.  "Default beverage" means a beverage automatically included or offered as part of a children's meal, absent a specific request for a substitute or alternate beverage by the purchaser of the children's meal.  "One hundred per cent fruit juice or vegetable juice" means any liquid consisting of one hundred per cent fruit juice or vegetable juice with no added sugar, corn syrup, or caloric sweetener.  "Restaurant" means a food establishment that serves food to customers for consumption on or off the premises, including fast-food and full-service dining establishments. "Restaurant" includes but is not limited to drive-through or walk-up counters, coffee shops, cafes, pizza parlors, food stands, movie theater concession stands, and dine-in establishments. For purposes of this definition, a restaurant may provide alcoholic beverage sales for drinking on premises; provided that such sales are ancillary to food service. [L 2019, c 138, 2]
  321-30.4 Cosmetics; animal testing; prohibition. (a) Notwithstanding any other law to the contrary, and except as otherwise provided in this section, it shall be unlawful for a manufacturer to import for profit, sell, or offer for sale in the State any cosmetic for which the manufacturer knew or reasonably should have known that an animal test was conducted or contracted, by or on behalf of the manufacturer or any supplier of the manufacturer, on or after January 1, 2022, in a cruel manner, as identified in section 711-1108.5(1)(a).  (b) A violation of this section shall be punishable by a fine of $5,000 and an additional $1,000 for each day the violation continues.  (c) A violation of this section may be enforced by the prosecuting attorney of the county in which the violation occurred. The fine shall be paid to the county in which the violation occurred.  (d) A prosecuting attorney may, upon a determination that there is a reasonable likelihood that a violation has occurred under this section, require a cosmetic manufacturer to disclose for the prosecuting attorney's review the testing data upon which the cosmetic manufacturer has relied in the development or manufacturing of the relevant cosmetic product sold in the State.  (e) To the extent testing data disclosed under this section may be withheld from public disclosure as confidential business information or otherwise under section 92F-13, it shall be treated as confidential and shall not be disclosed except to the extent necessary for enforcement of this section. A prosecuting attorney shall take other appropriate measures necessary to preserve the confidentiality of the information produced pursuant to this section.  (f) Counties or other political subdivisions of the State shall not establish any prohibition on or relating to animal tests as defined in this section that are not identical to the prohibitions set forth in this section and that do not include the exemptions contained in this section.  (g) This section shall not apply to:  (1) An animal test of a cosmetic that is required by a federal or state regulatory authority if all of the following apply:  (A) The cosmetic or an ingredient in the cosmetic that is being tested is in wide use and cannot be replaced by another cosmetic or ingredient capable of performing a similar function;  (B) A specific human health problem relating to the cosmetic or ingredient is substantiated and the need to conduct animal tests is justified and is supported by a detailed research protocol proposed as the basis for the evaluation of the cosmetic or ingredient; and  (C) There is no non-animal testing method accepted for the relevant purpose by the applicable federal or state regulatory authority;  (2) An animal test that was conducted to comply with a requirement of a foreign regulatory authority, if no evidence derived from that test was relied upon to substantiate the safety of a cosmetic sold within the State by the manufacturer;  (3) An animal test that was conducted on any product or ingredient subject to the requirements of subchapter V of the Federal Food, Drug, and Cosmetic Act (21 United States Code 351 et seq.), as amended;  (4) Except as otherwise provided in this subsection, an animal test that was conducted for purposes unrelated to cosmetics pursuant to a requirement of a federal, state, or foreign regulatory agency; provided that no evidence derived from the testing was relied upon to substantiate the safety of a cosmetic sold within this State by the manufacturer; provided further that if evidence from such testing was relied upon for that purpose, the prohibition in paragraph (1) does not apply if:  (A) Documentary evidence exists of the intent of the test that was unrelated to cosmetics; and  (B) The ingredient that was the subject of the testing has been used for purposes unrelated to cosmetics for not less than twelve months prior to the reliance;  (5) A cosmetic if the cosmetic in its final form was tested on animals before January 1, 2022, even if the cosmetic is manufactured on or after that date;  (6) An ingredient in a cosmetic if the ingredient was sold in this State and tested on animals before January 1, 2022, even if the ingredient is manufactured on or after that date; or  (7) A manufacturer reviewing, assessing, or retaining evidence from animal testing as defined in this section.  (h) As used in this section:  "Animal test" means the internal or external application of a cosmetic, either in its final form or any ingredient thereof, to the skin, eyes, or other body part of a live, nonhuman vertebrate.  "Cosmetic" means any article intended to be rubbed, poured, sprinkled, or sprayed on; introduced into; or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, including personal hygiene products such as deodorant, shampoo, or conditioner.  "Ingredient" means any component of a cosmetic as defined by title 21 Code of Federal Regulations section 700.3, as amended.  "Manufacturer" means any person whose name appears on the label of a cosmetic product pursuant to the requirements of title 21 Code of Federal Regulations section 701.12, as amended.  "Supplier" means any entity that supplies, directly or through a third party, any ingredient used in the formulation of a manufacturer's cosmetic. [L 2021, c 160, 2]
  321-30 Human placenta. Upon negative findings of infection or hazard after appropriate testing of the mother, the human placenta may be released by the hospital to the woman from whom it originated or to the woman's designee. The department shall establish a release form which shall stipulate appropriate measures for the safe release of human placenta. [L 2006, c 12, 2]
  321-301 Bilingual health education aide program; establishment. There is established in the department of health a bilingual health education aide program. Under the program, bilingual health education aides shall assist in the provision of health education and public health services to non-English and limited English speaking persons living in the State. The department, subject to chapter 76, shall employ bilingual health education aides and other necessary personnel for the program. [L 1986, c 307, 2; am L 2000, c 253, 150] Cross References  Bilingual mental health services, see 334-12.
  321-31 Functions of the department. The powers, duties, and functions of the department of health relating to preventive medicine shall be as follows:  (1) To supervise and coordinate activities in the fields of preventive medicine, including cancer control, crippled children, epidemiology, geriatrics, laboratories, maternal and child health, mental hygiene, nutrition, and communicable diseases;  (2) To formulate and put into effect throughout the State educational programs for the purposes of preventing and reducing disease and disability;  (3) To engage in the collection and analysis of statistical information pertinent to any of its activities;  (4) To cooperate with and propose methods and programs to other governmental agencies relating to the fields of preventive medicine;  (5) To serve as the coordinating agency for programs which provide for a range of child abuse and neglect prevention services in relation to assessed needs, regardless of whether the programs are conducted by the department, other government agencies, or private organizations and to coordinate the prevention programs with child abuse and neglect treatment services; provided that this paragraph shall not be interpreted to compel a specified level of services; and  (6) To perform such other appropriate functions as may be required. [L 1951, c 42, pt of 1; RL 1955, 46-29; am L Sp 1959 2d, c 1, 19; HRS 321-31; am L 1984, c 212, 3; am L 1990, c 143, 2]
  321-311.5 Renumbered as 321-29.
  321-311 Environmentally-related illness and injury surveillance. The department of health shall maintain, as it deems advisable and within available resources, an environmentally-related human illness and injury surveillance system for conditions determined by the director to present a threat to public health in order to ascertain the incidence, distribution, and other epidemiological characteristics of these illnesses and injuries. [L 1987, c 186, pt of 2]
  321-312 Definition of environmentally-related illness or injury. Environmentally-related human illnesses or injuries are those designated acute or chronic adverse health effects associated with exposure to pesticides, lead, or other toxic substances determined by the director to present a threat to public health. [L 1987, c 186, pt of 2] Law Journals and Reviews  Poisons in Our Communities: Environmental Justice's Role in Regulating Hawai`i's Biotechnology Industry. 40 UH L. Rev. 155 (2018).
  321-313 Definition of health care professional. A health care professional means a physician or osteopathic physician as licensed under chapter 453. [L 1987, c 186, pt of 2; am L 2009, c 11, 34]
  321-314 Reports to the department. Any health care professional who has the primary responsibility for the treatment of an individual who is suffering from environmentally-related illness or injury shall report the occurrence or suspected occurrence of such illness or injury to the department in writing or in the manner specified by the director of health. Every laboratory director having laboratory data regarding an individual affected by or suspected to be affected by a toxic substance determined by the director of health to present a threat to public health shall report such data to the department of health in a manner specified by the director. Forms for the reporting of environmentally-related illness or injury shall be provided by the department. [L 1987, c 186, pt of 2]
  321-315 Confidentiality. Reports provided to the department under this section shall not be made public to protect the identity of the persons diagnosed to be suffering from an environmentally-related illness or injury; provided that statistical information collected under this part shall be public information. [L 1987, c 186, pt of 2]
  321-316 Immunity from liability. Any health care professional or laboratory director who complies with this part shall not be held civilly or criminally liable for providing the information required under this part. [L 1987, c 186, pt of 2]
  321-317 Rules. The director of health shall adopt rules necessary for the purposes of this part pursuant to chapter 91. The rules shall include the director's determination of the penalties to be assessed for any failure of a health care professional or laboratory director to comply with the reporting requirements established under this part. [L 1987, c 186, pt of 2]
  321-32 Epidemiological specialists. Notwithstanding any other law to the contrary, epidemiological specialists may perform blood collection by venipuncture or capillary puncture and other methods of specimen collection, excluding catheterization, when employed by or acting as an agent of the department and when done under the direct or indirect supervision of a physician or osteopathic physician licensed pursuant to chapter 453. [L 1990, c 143, 1; am L 2009, c 11, 33]
  321-321 Purpose. The purpose of this part is to enable the department of health to assure the availability of programs and services which promote the health of women of childbearing age, mothers, families, infants, children, youths, and adolescents. These programs shall further the State's goals of providing for the health and well-being of women and mothers and help to insure that healthy babies become healthy adults. [L 1988, c 203, pt of 1]
  321-322 Administration of programs. The department of health may administer programs to reduce infant and maternal mortality and morbidity, and otherwise promote the health of women of childbearing age, mothers, families, infants, children, youths, and adolescents. The types of services to be provided may include but need not be limited to perinatal care, prenatal education including individual risk reduction, maternal care, baby and child care, adolescent health care, and family planning. [L 1988, c 203, pt of 1]
  321-323 Definitions. For the purposes of this part:  "Preventive health care services" means services which promote, enhance, or maintain optimal health and well-being.  "Target population" means women of childbearing age, mothers, families, infants, children, youths, and adolescents. [L 1988, c 203, pt of 1]
  321-324 Powers of the department. The department of health may:  (1) Make available to the target population quality health care services, with emphasis on preventive health services;  (2) Develop, extend, and improve the services; and  (3) Cooperate with the federal government, through its appropriate agency or instrumentality, in identifying needs, developing, extending, and improving the services, and receiving and expending all funds made available to the department by the federal government, the State, or its political subdivisions, or from any other source, including private donations, for the purposes of this part. [L 1988, c 203, pt of 1]
  321-325 Agreements. In carrying out the purposes of this part the director of health may:  (1) Enter into agreements with the United States and with other state departments, agencies, and political subdivisions, and enter into assistance agreements for services with profit organizations incorporated under the laws of the State or nonprofit organizations determined to be exempt from the federal income tax by the Internal Revenue Service, and allocate and expend any funds appropriated for the purposes of such agreements and do all things necessary to accomplish the purposes and provisions of this part; and  (2) Establish standards and review procedures to assure that recipients of state funding provide the services and facilities necessary to accomplish the purposes for which the funds are provided. [L 1988, c 203, pt of 1]
  321-326 Rules.  The director shall adopt rules necessary to carry out the purposes of this part, including the establishment of criteria to determine eligibility to participate in the services provided under this part. [L 1988, c 203, pt of 1]
  321-327 Hawaii home visiting program; established.  (a) There is established within the department of health the Hawaii home visiting program, which shall be responsible for statewide hospital-based screening and home visiting services to identify families of newborns at risk for poor health and safety outcomes, including child abuse and neglect, to promote healthy child development and strengthen families.  (b) Within the limits of available funds, the hospital-based screening and home visiting services program shall:  (1) Provide proactive, universal screening of newborns' families, using one or more screening tools validated for identifying levels of risk for poor health and safety outcomes and child abuse and neglect as designated by the department of health;  (2) Refer high-risk families to Hawaii home visiting program providers who shall employ evidence-based models of service; and  (3) Consider as a high priority, families at risk for poor health outcomes, child abuse, or neglect. [L 2013, c 91, 2]
  321-33 Shaken baby syndrome. (a) Any hospital that provides medical care to a newborn may provide each parent of the newborn with written educational information approved by the department of health and provided by nonprofit organizations about the dangerous effects of shaken baby syndrome and the different methods of preventing shaken baby syndrome.  (b) For the purpose of this section:  "Hospital" includes:  (1) An institution with an organized medical staff, regulated under section 321-11(10), that admits patients for inpatient care, diagnosis, observation, and treatment; and  (2) A health facility under chapter 323F.  "Medical care" means every type of care, treatment, surgery, hospitalization, attendance, service, and supplies as the nature of the injury or condition requires.  "Parent" includes a biological mother or father, foster mother or foster father, adoptive mother or adoptive father, and stepmother or stepfather.  "Shaken baby syndrome" means an injury caused by the vigorous shaking of an infant or young child that may result in injuries such as subdural [hematoma], head injury, irreversible brain damage, blindness, retinal hemorrhage, eye damage, cerebral palsy, hearing loss, spinal cord injury, paralysis, seizures, learning disability, central nervous system injury, rib fracture, or death. [L 2007, c 216, 2]
  321-331 Prenatal health care; authority. (a) The department of health may adopt rules pursuant to chapter 91 to ensure that all pregnant women in this State are offered appropriate information, quality testing, diagnostic services, and follow-up services concerning neural tube defects and other disorders amenable to prenatal diagnosis. The purpose of prenatal screening and diagnosis is to obtain vital information for the pregnant woman and her family as well as for the providers of her health care. It can be used to provide appropriate care and to assist the woman and her family to achieve optimal health outcomes. Nothing in this section shall be construed to mean that prenatal screening and testing are mandatory.  (b) The department of health may:  (1) Provide educational resources to all women in the State before and early in pregnancy about the availability of prenatal tests, including non-directive counseling and impartial information on the benefits, risks, and limitations of prenatal tests;  (2) Make available prenatal screening and diagnosis tests to all pregnant women in this State who choose to be so screened;  (3) Specify the diseases which may be screened for;  (4) Determine screening and diagnostic test methodologies;  (5) Establish laboratory quality control standards for performance of designated tests;  (6) Provide technical assistance to laboratories, hospitals, physicians, and other health care providers;  (7) Maintain a confidential registry and collect appropriate statistical data for the purposes of research and evaluation;  (8) Collect fees for program services; and  (9) Maintain confidentiality of records of women and their families participating in the program. [L 1988, c 23, 1]
 321-34 Cytomegalovirus public education. (a) The department of health shall provide public education to inform pregnant women and women who may become pregnant regarding:  (1) The transmission of the cytomegalovirus to pregnant women and women who may become pregnant;  (2) Birth defects caused by congenital cytomegalovirus;  (3) Methods of diagnosing congenital cytomegalovirus; and  (4) Available preventative measures.  (b) The department of health shall provide the information described in subsection (a) to:  (1) Hospitals licensed pursuant to section 321-14.5;  (2) Health care providers offering care to pregnant women and infants;   (3) Registered family child care homes;  (4) Licensed group child care centers;  (5) Licensed group child care homes;  (6) Licensed infant and toddler child care centers; and  (7) Religious, ecclesiastical, or denominational organizations offering children's programs as a part of worship services. [L 2015, c 232, 1]
  321-341 Multidisciplinary and multiagency reviews. The department of health may conduct multidisciplinary and multiagency reviews of child deaths in order to reduce the incidence of preventable child deaths. [L 1997, c 369, pt of 1]
  321-342 Definitions. As used in this part:  "Child" means a person under eighteen years of age.  "Child death review information" means information regarding the child and child's family, including but not limited to:  (1) Social, medical, and legal histories;  (2) Death and birth certificates;  (3) Law enforcement investigative data;  (4) Medical examiner or coroner investigative data;  (5) Parole and probation information and records;  (6) Information and records of social service agencies;  (7) Educational records; and  (8) Health care institution information.  "Department" means the department of health.  "Director" means the director of health or the director's designated representatives.  "Family" means:  (1) Each legal parent;  (2) The natural mother;  (3) The natural father;  (4) The adjudicated, presumed, or concerned natural father as defined under section 578-2;  (5) Each parent's spouse or former spouses;  (6) Each sibling or person related by consanguinity or marriage;  (7) Each person residing in the same dwelling unit; and  (8) Any other person who, or legal entity that, is a child's legal or physical custodian or guardian, or who is otherwise responsible for the child's care, other than an authorized agency that assumes such a legal status or relationship with the child under chapter 587A.  "Preventable death" means a death that reasonable medical, social, legal, psychological, or educational intervention may have prevented.  "Provider of medical care" means any health care practitioner who provides, or a facility through which is provided, any medical evaluation or treatment, including dental and mental health evaluation or treatment. [L 1997, c 369, pt of 1; am L 2010, c 135, 7]
  321-343 Access to information; use of child death review information; protections. (a) Upon written request of the director, all providers of health care, social services, and state and county agencies shall disclose to the department, and those individuals appointed by the director to participate in the review of child deaths, child death review information regarding the circumstances of a child's death so that the department may conduct a multidisciplinary and multiagency review of child deaths pursuant to section 321-31 and this part. All requested disclosures shall comply with state and federal privacy statutes and regulations, including the Health Insurance Portability and Accountability Act, and the department shall not request records of any internal hospital committee, peer review committee, or quality improvement review process. The department may enter into a memorandum of agreement with hospitals regarding requests for information to be used for child death reviews.  (b) To the extent that this section conflicts with other state confidentiality and disclosure laws, this section shall prevail.  (c) Except as otherwise provided in this part, all child death review information acquired by the department during its review of child deaths pursuant to this part is confidential and may only be disclosed as necessary to carry out the purposes of this part.  (d) No individual participating in the review of a child death shall be questioned in any civil or criminal proceeding regarding information presented in or opinions formed as a result of a multidisciplinary review. Nothing in this subsection shall be construed to prevent a person from testifying to information obtained independently of the department's request for child death review information or the multidisciplinary team's review of the child death, or which is public information, or where disclosure is required by a court of law.  (e) Child death review information held by the department as a result of child death reviews conducted under this part shall not be subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceeding, except that child death review information otherwise available from other sources shall not be immune from subpoena, discovery, or introduction into evidence through those sources solely because they were provided to the department as required by this part. [L 1997, c 369, pt of 1; am L 2016, c 203, 3]
  321-344 Exception. Information regarding an ongoing civil or criminal investigation shall be disclosed at the discretion of the applicable state, county, or federal law enforcement agency. [L 1997, c 369, pt of 1]
  321-345.5 Child death reviews; reports. (a) The director shall submit an annual written report to the legislature no later than twenty days prior to the convening of each regular session on the status of child death reviews conducted by the department pursuant to this part. The annual report shall cover the calendar year immediately prior to the year in which the report is due and shall describe the total number of child deaths in Hawaii and the causes of those deaths, the number of deaths of children in state custody and the causes of those deaths, any child death review activities conducted by the department, trends in child deaths, and recommendations for system changes, including any proposed legislation.  (b) Upon written request of the director, a state or county agency shall report deaths of children in the custody of the state or county agency to the department, including any information on the circumstances of the child's death deemed relevant by the director.  (c) The director shall submit a copy of any other child death review report published by the department, including findings and recommendations resulting from such a review, to the legislature upon the report's publication. [L 2016, c 203, 2]
  321-345 REPEALED. L 2016, c 203, 4.
  321-346 Immunity from liability. All agencies and individuals participating in the review of child deaths pursuant to this part shall not be held civilly or criminally liable for providing the information required under this part. [L 1997, c 369, pt of 1]
  321-35 Department of education student physical examination follow-up assistance and consultations. (a)  No later than the end of the seventh grade school year, the department of health shall contact the parents or guardians of students listed pursuant to section 302A-1159(b) and provide information to assist those persons in obtaining a physical examination for the student pursuant to section 302A-1159(b).  (b) Subject to the availability of funds, the department of health shall also provide follow-up notice to or consultations with the parents or guardians of the students contacted pursuant to subsection (a) on the benefits of a healthy lifestyle and preventative health care and the availability of health care coverage under the federal Patient Protection and Affordable Care Act or medicaid. [L 2016, c 185, 3]
Cross References Safe place for newborns, see chapter 587D.  Shaken baby syndrome (prevention), see 321-33.  321-351 Definitions. As used in this part, unless the context requires otherwise:  "Biological risk" means prenatal, perinatal, neonatal, or early developmental events suggestive of biological insults to the developing central nervous system which increase the probability of delayed development.  "Case management" means an ongoing service of shared responsibility between families and professionals that identifies needs and assists in obtaining coordinated, appropriate services and resources.  "Delayed development" means a significant delay in one or more of the following areas of development: cognition, speech, language, physical, motor, vision, hearing, psychosocial, or self-help skills.  "Department" means the department of health.  "Director" means the director of health.  "Early intervention services" means services which:  (1) Are provided under public supervision;  (2) Are provided at no cost, except where federal or state law provides for a system of payments by families, including a sliding fee schedule;  (3) Are designed to meet the developmental needs of infants and toddlers with special needs, which include but are not limited to physical development, cognitive development, and self-help skills;  (4) Are provided by qualified professional and paraprofessional personnel;  (5) Are provided in conformity with an individualized family support plan; and  (6) Include but are not limited to: family support, counseling, and home visits; special instruction; speech pathology and audiology; occupational therapy; physical therapy; psychological services; case management services; medical services only for diagnostic or evaluation purposes; early identification, screening, and assessment services; and health services necessary to enable the infant or toddler to benefit from the other early intervention services.  "Environmental risk" means physical, social, or economic factors which may limit development. Environmental risk includes, but is not limited to the following conditions:  (1) Birthweight between 1,500 and 2,500 grams, in combination with any other environmental risk factor;  (2) Parental age less than sixteen;  (3) Parental age between sixteen and eighteen and less than a high school education in combination with any other environmental risk factor;  (4) Any existing physical, developmental, emotional, or psychiatric disability in a primary caregiver;  (5) Presence of physical, developmental, emotional, or psychiatric disability in a sibling or any other family member in the home in combination with any other environmental risk factor;  (6) Abuse of any legal or illegal substance by a primary caregiver;  (7) Child abuse and neglect of target child or siblings;  (8) Economically disadvantaged family in combination with any other environmental risk factor;  (9) Single parent in combination with any other environmental risk factor; and  (10) Incarceration of a primary caregiver in combination with any other environmental risk factor.  "Individual family support plan" means a dynamic, voluntary plan of action and support developed by families and professionals that emanates from the families' expressions of needs and goals.  "Infants and toddlers with special needs" means infants and toddlers from birth to the age of three with delayed development, biological risk, or environmental risk. [L 1989, c 107, pt of 2]
  321-352.2 Early language services for children who are deaf, hard of hearing, or deaf-blind. Early intervention services for infants and toddlers may include, but not be limited to, service providers and mentors of the deaf, hard of hearing, or deaf-blind who use American Sign Language; service providers and mentors of the deaf who use oral language; American Sign Language teachers for families of young children; family-to-family support; and training of early intervention providers. [L 2016, c 177, 2]
 321-352 Early intervention services for infants and toddlers with special needs. The department may develop a statewide, coordinated, multidisciplinary program which contains a continuum of services to meet the needs of infants and toddlers with special needs. The department shall be the lead agency for the coordination of federal and state funding for those programs. Pursuant to chapter 103F, the department may purchase services appropriate to carry out activities under this part. [L 1989, c 107, pt of 2; am L 1991, c 335, 7; am L 1997, c 190, 6]
 321-353 Hawaii early intervention coordinating council; establishment. (a) There is established within the department for administrative purposes the Hawaii early intervention coordinating council. Members shall be appointed for three-year terms by the governor without the necessity of the advice and consent of the senate. The council shall comprise twenty-five members as follows:  (1) At least twenty per cent of the members shall be parents of infants or toddlers with special needs, or children with special needs aged twelve years or younger, with knowledge of, or experience with, programs for infants and toddlers with special needs; provided that at least one parent shall be a parent of an infant or toddler with special needs, or of a child with special needs aged six years or younger;  (2) At least twenty per cent of the members shall be public or private providers of early intervention services;  (3) Two members shall be from the legislature, of which one member shall be selected by the president of the senate and one member shall be selected by the speaker of the house of representatives;  (4) One member shall be involved in personnel preparation;  (5) One member shall be from the department of health program involved in the provision of, or payment for, early intervention services to infants and toddlers with special needs and their families who has sufficient authority to engage in policy planning and implementation on behalf of the program;  (6) One member shall be from the department of health program responsible for children TMs mental health;  (7) One member shall be from the department of education program responsible for preschool services to children with disabilities who has sufficient authority to engage in policy planning and implementation on behalf of the program;  (8) One member shall be from the department of education program responsible for the coordination of education of homeless children and youths;  (9) One member shall be from the department of human services program responsible for the state medicaid program;  (10) One member shall be from the department of human services program responsible for child care;  (11) One member shall be from the department of human services program responsible for foster care;  (12) One member shall be from the department of commerce and consumer affairs program responsible for state regulation of health insurance;  (13) One member shall be from a Head Start or Early Head Start agency or program in the State; and  (14) Other members involved in or interested in services to infants and toddlers with special needs and their families who are selected by the governor.  Any vacancy on the council shall be filled in the same manner in which the original position was filled.  (b) The council shall elect its officers, and thirteen members shall constitute a quorum. Members shall serve without compensation but shall be reimbursed for expenses, including travel expenses, necessary for the performance of their duties. No member shall cast a vote on any matter that is likely to provide a direct financial benefit to that member or otherwise give the appearance of a conflict of interest. No member from an executive or administrative department under chapter 26 may serve as the chairperson of the council.  (c) The council shall meet at least quarterly and in such places as it deems necessary. The meetings shall be publicly announced, and be open and accessible to the general public.  (d) The council shall perform the following functions:  (1) Advise and assist the director in the identification of the sources of fiscal and other support for services for early intervention programs, assignment of financial responsibility to the appropriate agency, and the promotion of the interagency agreements;  (2) Advise and assist the department in the preparation of applications and amendments thereto;  (3) Advise and assist the department of education regarding the transition of toddlers with special needs to preschool and other appropriate services; and  (4) Prepare and submit an annual report to the governor on the status of early intervention programs for infants and toddlers with special needs and their families within the State. [L 1989, c 107, pt of 2; am L 1996, c 298, 3; am L 2012, c 96, 1]
  321-354 Rules. The director, in consultation with the council, private agencies, users of services under this part, and other interested parties, may adopt rules pursuant to chapter 91 to carry out the purposes of this part. [L 1989, c 107, pt of 2]
  321-355 Early intervention special fund.  (a) There is established in the state treasury a special fund to be known as the early intervention special fund to be administered by the department in accordance with this section.  (b) The fund shall consist of grants and income earned by the special fund. All program income consisting of federal reimbursement funds received by the State for early intervention funded by legislative appropriations under this part shall be deposited into the special fund; provided that no state appropriations shall be deposited into the special fund. [L 1997, c 378, pt of 2; ree L 1998, c 43, pt of 1(1); am L 2011, c 124, 42]
  321-356 REPEALED. L 2016, c 43, 4.
  321-357 Early intervention special fund; purpose and use. (a) The purpose of the early intervention special fund is to expand and enhance early intervention services for infants and toddlers with special needs by providing a cooperative funding mechanism between the public and private sectors to work together to make and secure appropriations and donations to the fund.  (b) The department may procure services under chapters 103D and 103F in accordance with criteria and procedures established by rules adopted pursuant to chapter 91, for community-based, family-centered, early intervention services including but not limited to:  (1) Programs to provide early intervention services for infants and toddlers with developmental delays or at biological or environmental risk;  (2) Family support programs to strengthen families to reduce the risk of child abuse and neglect;  (3) Training and education for professionals, paraprofessionals, and families; and  (4) Research, evaluation, and data management related to early intervention services.  (c) Services to be procured under this section shall be in accordance with chapters 103D and 103F and take the following forms:  (1) Purchase of service contracts to private nonprofit organizations, public agencies, or qualified individuals to provide community-based, family-centered, early intervention services; or  (2) Direct payments for services, educational materials, training, quality assurance, equipment, data collection, and program evaluation.  (d) The Hawaii early intervention coordinating council shall make recommendations to the department for the expenditure of moneys from the early intervention special fund. [L 1997, c 378, pt of 2; am L 1998, c 43, pt of 1(1); am L 2016, c 43, 3]
Cross References Safe place for newborns, see chapter 587D.  Shaken baby syndrome (prevention), see 321-33.  321-36 Definitions. For the purposes of this part:  "Child screening for early identification and remediation of social and health problems" means routine follow up and progress checks for toddlers and preschoolers which include the location and support of isolated parents in need of assistance.  "Department" means the department of health.  "Education for parenthood" means programs to educate all levels of youths as to the needs and appropriate expectations for the different levels of infancy and childhood.  "Home visitor programs" mean services utilizing paraprofessionals or community volunteers for supportive intervention services to parents from the prenatal through infancy periods.  "Infants in need of extra services" include infants who are ill or handicapped or the result of a multiple birth.  "Mutual aid programs" mean peer-support groups for target populations.  "Perinatal bonding" means the process of attachment between parents and newborns around the circumstance of birth.  "Secondary prevention programs" mean programs directed at recognizing, assessing, and achieving change in high risk situations so that abuse and neglect do not occur. [L 1984, c 212, pt of 2]
Revision Note In this part, "part" substituted for "chapter".  321-361 Definitions. As used in this part, unless the context clearly indicates otherwise:  "Department" means the department of health.  "Hearing-impaired infant" means an infant who has an impairment that is a dysfunction of the auditory system of any type or degree sufficient to interfere with the acquisition and development of speech and language skills.  "Infant" means a child from birth to thirty-six months of age.  "Management" means the habilitation of the hearing-impaired infant.  "Screening" means a test or battery of tests administered to determine the need for a professional examination. [L 1990, c 85, pt of 3]
 321-362.5 Screening for hearing impairment. (a) All newborn infants shall be screened for hearing impairment for early identification of children with hearing loss and for the promotion of their development of language and communication.  (b) The person in charge of each birthing facility caring for newborn infants and the responsible physician attending the birth of a newborn or the person assisting the birth of a child not attended by a physician shall ensure that every infant in the person's care be screened for hearing impairment. This section shall not apply if the parent, guardian, or other person having custody or control of the child objects to the screening in writing on the grounds that the screening conflicts with their religious beliefs. The written objection shall be made a part of the infant's medical record.  (c) Birthing facilities screening newborn infants for hearing impairment shall report screening results to the department, for the purpose of the department ensuring a statewide system for the screening, diagnostic evaluation, and intervention for all newborn infants with hearing impairment. [L 2001, c 42, 1]
  321-362 Duties. It shall be the duty and responsibility of the department to:  (1) Establish, implement, and evaluate a statewide program for early identification of, and intervention for, hearing impairment in infants;  (2) Establish standards and guidelines for the screening, identification, diagnosis, intervention, and monitoring of infants with hearing impairment and infants at risk for delayed onset of hearing impairment;  (3) Develop a plan in conjunction with the department of education's statewide center for students with hearing or visual impairments to involve the parents or guardians with the medical and educational follow-up and management of infants who have been identified as hearing-impaired or at risk of delayed onset of hearing impairments; and  (4) Collect and analyze program data in relation to the duties and responsibilities of the department. [L 1990, c 85, pt of 3; am L 2001, c 42, pt of 2]
 321-363 Rules. The department shall adopt rules, pursuant to chapter 91, necessary for the purposes of this part, including but not limited to administration and quality of newborn hearing screening; retention of records and related data; reporting of positive screening results; diagnostic evaluation and intervention for infants with hearing impairment; informing parents about the purpose of screening; and maintaining the confidentiality of affected families. [L 1990, c 85, pt of 3; am L 2001, c 42, pt of 2]
  321-37 Child abuse and neglect secondary prevention programs. The department may provide secondary prevention programs which contain a continuum of services starting from before birth and ending in education for the adult parenting responsibility. The types of programs to be provided may include but need not be limited to, prenatal, perinatal bonding, interaction with infants, support for parents of infants in need of extra services, home visitor programs, mutual aid programs, child screening for early identification and remediation of social and health problems, and education for parenthood. [L 1984, c 212, pt of 2]
Revision Note In this part, "part" substituted for "chapter". Cross References Sunset evaluations modified, see  26H-4, 5. Law Journals and Reviews The Constitution and Inking: How Anderson v. City of Hermosa Beach Expanded First Amendment Protection for the Tattoo Industry. 33 UH L. Rev. 417 (2010).  321-371 Purpose. The purpose of this part is the protection of public health and safety through the licensing and regulation of tattoo artists. [L 1990, c 285, pt of 2]
  321-372 Definitions. As used in this part:  "Department" means the department of health.  "Director" means the director of health.  "Tattoo artist" means any person who creates indelible marks or decorative designs by introducing pigments beneath the surface of the skin, resulting in permanent or semi-permanent markings, with the aid of needles, electric machines, hand tools, or other devices or means. [L 1990, c 285, pt of 2; am L 2009, c 130, 2]
  321-373.5 Permit; required for tattoo shop and temporary locations. (a) No person, partnership, firm, corporation, or other legal entity shall operate a tattoo shop or temporary location without a permit pursuant to department rules.  (b) Each initial permit application under this section shall be accompanied by a fee of $125 for a permit valid for one year. For renewal of a permit, each applicant shall pay a fee of $75 per year. Initial permit application and renewal fees may be increased by not more than $10 per year.  (c) All permits shall expire on December 31 of each year. The application for a permit renewal shall be submitted to the department in writing on or before December 31 annually.  (d) The department may issue a temporary permit valid for a maximum of seven consecutive days per calendar year for locations other than a permitted tattoo shop for the purpose of a trade show, product demonstration, or educational demonstration; provided that the show or demonstration shall meet all safety and hygiene standards as specified by the director and in this chapter. The temporary permit application shall be made in writing to the department at least sixty days prior to the scheduled event, shall include specific measures to meet specified health and safety standards, and may be subject to a site inspection. Temporary permit applicants shall pay a $50 nonrefundable application fee in addition to:  (1) A $500 nonrefundable permit fee for an event featuring not more than forty participating tattoo artists; or  (2) A $50 nonrefundable permit fee for an event featuring less than three participating tattoo artists demonstrating for educational purposes only, without compensation, consideration, or donation by the public; provided that the department may annually increase the fees specified in paragraphs (1) and (2) by not more than $100 and $10 per year, respectively. [L 2009, c 130, 1]
 321-373 Regulation of tattoo artists. The department shall adopt rules under chapter 91 to implement this part. The rules shall include but not be limited to:  (1) Prohibiting the use of injections, unless administered by a physician or osteopathic physician licensed under chapter 453, or by a registered nurse licensed under chapter 457;  (2) Appropriate restrictions on topical anesthetics;  (3) Prescribing procedures and conditions for sterilization, storage of sterilized equipment, resterilization, and disposal of discarded needles and other equipment;  (4) Creating examination standards; and  (5) Fixing penalties and fines for violations of this part or any of the rules adopted by the department. [L 1990, c 285, pt of 2; am L 1996, c 202, 6; am L 2009, c 11, 35 and c 130, 3]
 321-374 License required; exemptions. (a) Except as otherwise provided by law, no person shall practice the occupation of tattoo artist in this State, with or without compensation, consideration, or donation, or shall announce oneself either publicly or privately as prepared or qualified to practice that occupation without having a valid unrevoked license from the department to do so.  (b) Physicians or osteopathic physicians holding a valid unrevoked license under chapter 453 are exempt from the requirements of this part.  (c) The department may issue, to tattoo artists who are not licensed in the State, temporary licenses that are valid for a maximum of fourteen consecutive days per calendar year for:  (1) Educational, trade show, or product demonstration purposes; or  (2) The purpose of practicing the occupation of tattoo artist at a permitted tattoo location. Temporary licensees shall be subject to this part and applicable rules.  (d) Applications for temporary licenses shall be made in writing to the department at least sixty days prior to the proposed event and accompanied by a nonrefundable application fee of $100 and written proof satisfying the requirements under subsection (e). An applicant shall be notified of the disposition of the application within twenty business days of the receipt of application.  (e) An applicant for a temporary license shall have either:  (1) Passed a blood borne pathogen course developed specifically for the tattoo industry, approved by the director, within two years of the date of application; or  (2) Passed the state tattoo artist written examination within two years of the date of the application.  (f) Temporary license fees may be increased annually by not more than $10.  (g) Licensed tattoo artists shall tattoo only in a shop or temporary location that has a valid unrevoked permit issued by the director. [L 1990, c 285, pt of 2; am L 1996, c 202, 7; am L 2009, c 11, 36 and c 130, 4]
  321-375  Examination, fees required. (a) No license shall be issued unless the applicant takes an examination as prescribed by the director and receives a passing score or meets the criteria specified in section 321-374(e). No license shall be issued unless all fees required by the director have been paid.  (b) The department may contract with a professional testing service to prepare, administer, and grade the examination for licensure as a tattoo artist. For these purposes, the department may require applicants to pay the examination fee directly to the testing service. [L 1990, c 285, pt of 2; am L 2009, c 130, 5]
 321-376 REPEALED. L 2009, c 130, 8. Note  L 2009, c 11, 37 purports to amend this section.
  321-377 Suspension or revocation of permit or license. (a) The director may revoke or suspend the permit or license of any person permitted or licensed under this part who:  (1) Is found guilty of any fraud, deceit, or misconduct in the practice of the occupation of tattoo artist; or  (2) Violates this part or any of the rules adopted by the department.  (b) In every case where it is proposed to revoke or suspend a permit or license, the director shall give the permittee or licensee concerned notice and a hearing. The notice shall be given in writing by registered or certified mail, with return receipt requested, at least fifteen days before the hearing. All hearings shall be conducted pursuant to chapter 91. [L 1990, c 285, pt of 2; am L 2002, c 34, 1; am L 2009, c 130, 6]
  321-378 REPEALED. L 2009, c 130, 9.
  321-379 Enforcement; penalties. (a) If the department determines that any person has violated or is violating any provision of this part, any rule adopted pursuant to this part, or any term or condition of a permit or license issued pursuant to this part, the department may take enforcement action and impose penalties as provided in section 321-20, except that the department may impose a penalty not to exceed $10,000 per offense.  (b) Violations of this part include but are not limited to:  (1) Submitting to or filing with the department any application, notice, statement, or other document in procuring or attempting to procure licensure as a tattoo artist that is false or untrue or contains any material misstatement of fact, or assisting another party in doing so;  (2) Using the title licensed tattoo artist or any other designation tending to imply that the person is a licensed tattoo artist when the person is not in fact licensed or the person's license has been suspended or revoked;  (3) Violating the conditions or limitations of a permit or a license or assisting another party in violating those conditions;  (4) Engaging in conduct resulting in physical injury to an individual or the public in the course of professional services or activities;  (5) Aiding or abetting an unlicensed person, knowingly combining or conspiring with an unlicensed person, allowing one's license to be used by an unlicensed person, or acting as agent or associate of an unlicensed person to evade the use of title restrictions of this part;  (6) Tattooing any person under the age of eighteen without the written consent of the person's parent or legal guardian or not maintaining the consent forms in a confidential manner at the tattoo shop for not less than two years; or  (7) Making a false or misleading statement to the department relating to any matter under this part.  (c) An enforcement action under this section may be combined with a permit or license revocation or suspension under section 321-377 and may be brought together as one administrative action.  (d) In any proceeding under this section, the person subject to the proceeding shall be given notice and the opportunity for a hearing in conformity with chapter 91. [L 1990, c 285, pt of 2; am L 2009, c 130, 7]
 321-38 Hawaii children's trust fund advisory committee. There is established the Hawaii children's trust fund advisory committee as provided in section 350B-6. The advisory committee shall have the functions as provided in section 350B-6(b). [L 1984, c 212, pt of 2; am L 1993, c 336, 3]
  321-380 REPEALED. L 2009, c 130, 10.
  321-381 Biennial renewal; failure to renew. The biennial renewal fee shall be paid to the department of health on or before December 31 of each even-numbered year. Failure, neglect, or refusal of any licensee to pay the biennial renewal fee on or before such date shall constitute a forfeiture of the license. [L 1990, c 285, pt of 2]
  321-382 Fees. The director may establish fees by rules pursuant to chapter 91. [L 1990, c 285, pt of 2]
  321-383 REPEALED. L 2009, c 130, 11.
   321-391 to 398 REPEALED. L 1998, c 279, 3. Cross References  Recognition of nurse midwives as advanced practice registered nurses, see 457-8.5.
  321-4.3 Epidemiologists. The department of health may establish permanent or temporary exempt positions known as epidemiologists for the purpose of investigating diseases and injuries which threaten the public health and safety. The positions shall be appointed by the director without regard to chapter 76. [L 2008, c 78, 1; am L 2018, c 4, 2]
  321-4.5 Inspection of food establishments. Inspections of food establishments may be performed only by a registered sanitarian or a food and drug inspector. [L 1997, c 334, pt of 1]
  321-4.6 Advisory council on food protection practices; created. (a) There is created within the department for administrative purposes only, an advisory council on food protection practices, whose members shall be appointed by the director of health, consisting of one representative from at least the following:  (1) An organization representing the restaurant industry;  (2) An organization representing the hotel industry;  (3) An organization representing the food manufacturing industry;  (4) An organization representing the food service industry;  (5) A registered sanitarian from the department of health;  (6) The University of Hawaii, food technology department;  (7) The community college food service program;  (8) A corporate chain restaurant doing business in Hawaii; and  (9) A member of the general public.  (b) Each member shall serve for a term of three years; provided that the director shall initially appoint three members to serve for one year, three members to serve for two years, and three members to serve for three years. No member shall serve for more than two consecutive three-year terms.  (c) Vacancies occurring before the expiration of a member's term shall be filled by election of the council. Individuals elected to fill a vacancy shall serve only for the remainder of the unexpired term.  (d) The council shall appoint from its members a chairperson, vice chairperson, secretary, treasurer, and any other officers that the council may deem necessary or desirable to carry out its functions.  (e) Members shall serve without compensation, but may be reimbursed for the necessary expenses, including travel expenses, incurred in the performance of their duties.  (f) The council shall:  (1) Advise the department on sanitation issues and food protection practices;  (2) Review and advise the department, in consultation with the department of the attorney general, regarding the adoption of rules relating to sanitation and food protection practices; and  (3) Advise the department on the incorporation of salient provisions of the most recent version of the United States Food and Drug Administration's Model Food Code into the department's food sanitation rules. [L 1997, c 334, pt of 1]
  321-4.7 Producers of hand-pounded poi; exemption. A producer of hand-pounded poi shall not be required to process poi in a certified food-processing establishment or be required to obtain a permit from the department of health, if the producer:  (1) Sells hand-pounded poi directly to consumers;   (2) Prepares hand-pounded poi adjacent to permanent or temporary hand-washing facilities; and  (3) Complies with rules adopted by the department to protect the health and safety of the public. The department shall adopt rules pursuant to chapter 91 to effectuate this section no later than December 31, 2011. [L 2011, c 107, 1]
 321-4 Agents and inspectors. There shall be appointed by the director of health a suitable number of agents and inspectors in such localities as may be necessary, who shall carry into effect all laws and regulations for the public health, and such ordinances relating to public health as the director may direct. [PC 1869, c 59, 3; am L 1925, c 34, 2; RL 1935, 902; am L 1937, c 122, 3; am L 1943, c 43, 1(6); RL 1945, 2010; am L 1945, c 209, 1; RL 1955, 46-10; am L Sp 1959 2d, c 1, 19; HRS 321-4]
  321-401 Findings and purpose. The purpose of this part is to establish a non-enforcement program within the department of health to provide voluntary food safety surveillance and control, and educational activities to assist the food service industry and foodhandlers. The legislature finds that education is necessary for attaining voluntary compliance in food safety. Informed food managers and foodhandlers are essential for the control of foodborne pathogens in foods served to the public.  Restaurants, catering services, delicatessens, markets, and other food purveyors employ foodhandlers who need continuing education and training in food safety. Foodhandlers work with fresh, uncooked, or prepared foods which may contain foodborne disease microorganisms that can cause severe sickness to large numbers of people at the same time. It is the intent of the legislature to take preventive measures through educational programs and analytical studies of contamination outbreaks. [L 1992, c 219, pt of 1] Cross References  Other food safety issues, see  321-4.5, 4.6, 11.51, and 27.5.
  321-402 Food safety consultative and education program. (a) There is established the food safety consultative and education program within the department of health. The department may place this program within any appropriate division.  (b) The program shall be managed and staffed by persons who are trained and experienced in public health aspects of food, including food science, foodborne disease epidemiology, food microbiology, and food sanitation.  (c) Generic food safety information gained from studies conducted as part of the program may be shared with foodhandlers in certification workshops and food safety classes. [L 1992, c 219, pt of 1]
  321-403 Food safety control system. The department may conduct studies using the hazard analysis critical control points system after foodborne disease outbreak investigations are completed by the department or when requested by food service operators. [L 1992, c 219, pt of 1]
  321-404 Public information monitoring system. Within the program, the department of health shall investigate foodhandling practices which appear to represent poor food safety techniques, and shall develop ways in which the public can gain information on food safety and can report practices which appear to represent poor food safety techniques. [L 1992, c 219, pt of 1]
  321-405 Confidentiality of information. For purposes of this part, the program shall maintain confidentiality of critical information received from food purveyors and foodhandlers or other persons in the food service industry. Critical information is information, including trade secrets, necessary for the department to prevent food safety problems from occurring and to ensure that potentially hazardous foods are safe for public consumption. [L 1992, c 219, pt of 1]
 321-41 Educational program. The department of health may formulate and put into effect throughout the State an educational program for the purpose of preventing cancer and of aiding in its early diagnosis. In the furtherance of this program, the department may assist and cooperate with all territorial, state, and national organizations conducting educational programs for the prevention and control of cancer. [L 1949, c 79, 2; RL 1955, 46-31; am L Sp 1959 2d, c 1, 19; HRS 321-41]
Cross References Noise, radiation, and indoor air quality special fund; established, see 342P-7.  321-411 Definitions. As used in this part:  "Department" means the department of health.  "Director" means the director of health.  "Publicly owned building" means any building or structure, including a hospital or a school, that is owned, leased, or operated by the State; provided that it shall be a building or structure in which individuals employed by the State work during normal operations. [L 1994, c 234, pt of 2]
  321-412 Indoor air quality program. There is established an indoor air quality program within the department. The department may place this program within any appropriate division. [L 1994, c 234, pt of 2]
  321-413 General functions, powers, and duties of the department. (a) The director shall provide information and educational material regarding indoor air pollution to the managers, owners, and occupants of publicly owned buildings, and may assist any manager, owner, or occupant of a publicly owned building to identify, assess, and correct indoor air pollution problems.  (b) The director may provide information and educational material regarding indoor air pollution to any manager, owner, or occupant of a building that is not a publicly owned building, and may assist any manager, owner, or occupant of a building that is not a publicly owned building to identify, assess, and correct indoor air pollution problems.  (c) The director shall establish and coordinate an indoor air quality assessment network of state agencies and facility managers of publicly owned buildings to identify, assess, and correct indoor air pollution problems.  (d) The director may establish a program for the approval of plans to construct ventilation systems, the inspection of ventilation system construction, and the monitoring of existing ventilation systems for proper maintenance.  (e) The director may adopt rules in accordance with chapter 91 to effectuate the purposes of this part. [L 1994, c 234, pt of 2]
  321-42 Tumor clinics. The department of health may assist in the operation of tumor clinics which are now established or may be established in the State. This assistance may consist of furnishing statistical information on the incidence or prevalence of tumors of various kinds in the State. Other assistance, such as clerical or stenographic help, may be furnished as needed. In all activities under this section, the department may consult and cooperate with the Hawaii State Medical Association and the Hawaii Cancer Society.  Insofar as is needed the department may assist tumor clinics or private physicians in the follow-up of tumor cases for the purpose of determining the progress of the disease or for further treatment. This part of the program shall be limited to those cases on which follow-up is requested by the attending physicians, and it shall also be limited by the funds which are provided for this purpose. [L 1949, c 79, 3; RL 1955, 46-32; am L Sp 1959 2d, c 1, 19; HRS 321-42]
Revision Note Throughout this part, "birth defects program" substituted for "Hawaii birth defects program". 321-421 Definitions. As used in this part, unless the context requires otherwise:  "Adverse reproductive outcome" means a birth defect, stillbirth, infant death up to one year of age, or spontaneous or medical termination of pregnancy for a birth defect.  "Birth defect" means an abnormality of structure, function, or body metabolism present at birth that adversely affects a child's health and development, results in a physical or mental disability, or is fatal.  "Institutional review board" means an institutional review board established in accordance with 7 Code of Federal Regulations 1c.107, 10 Code of Federal Regulations 745.107, 14 Code of Federal Regulations 1230.107, 15 Code of Federal Regulations 27.107, 16 Code of Federal Regulations 1028.107, 21 Code of Federal Regulations 56.107, 22 Code of Federal Regulations 225.107, 24 Code of Federal Regulations 60.107, 28 Code of Federal Regulations 46.107, 32 Code of Federal Regulations 219.107, 34 Code of Federal Regulations 97.107, 38 Code of Federal Regulations 16.107, 40 Code of Federal Regulations 26.107, 45 Code of Federal Regulations 46.107, 45 Code of Federal Regulations 690.107, or 49 Code of Federal Regulations 11.107. [L 2002, c 252, pt of 1]
  321-422 Birth defects program. The department of health shall establish the statewide birth defects program to:  (1) Collect surveillance information on birth defects and other adverse reproductive outcomes;  (2) Report the incidence, trends, and causes of birth defects and other adverse reproductive outcomes;  (3) Report information for the development of prevention strategies to reduce the incidence of birth defects and other adverse reproductive outcomes; and  (4) Develop strategies to improve the access of children with birth defects to health and early intervention services. [L 2002, c 252, pt of 1]
  321-423 Confidentiality of data. (a) The identity of, or any information which alone or in combination with other reasonably available information that may be used to identify, any person whose information is collected under this part shall be confidential.  (b) Statistical data and information that do not identify any person may be released. [L 2002, c 252, pt of 1]
  321-424 Rules. The department may adopt rules pursuant to chapter 91 as necessary for the birth defects program. [L 2002, c 252, pt of 1]
  321-425 Requests for information. The department shall provide information about appropriate health and early intervention services to persons who request the information. [L 2002, c 252, pt of 1]
  321-426 Birth defects special fund. There is established within the state treasury the birth defects special fund to be administered and expended by the department of health, into which shall be deposited fees remitted pursuant to section 572-5. Moneys in the special fund shall be used for the payment of the operating expenses of the birth defects program. [L 2002, c 252, pt of 1]
 321-43 Statistical activities. The department of health shall engage in the collection and analysis of statistical information on the morbidity and mortality of cancer in the State. The morbidity data may be collected in cooperation with the University of Hawaii, Hawaii Medical Association, and the Hawaii Cancer Society. All data collected by a cooperating agency may be shared with the department of health in the form specified by the department of health. The mortality data as collected from death certificates shall be analyzed by the staff of the department in order to determine the significance of cancer in the State by race, sex, age, occupation, site in the body, and in any other way found desirable for the purpose of determining the areas where greatest emphasis should be laid in the statewide cancer control program. The morbidity data shall be used:  (1) In determining the prognosis and chance of cure, as well as the number of persons cured of cancer in the State;  (2) For assisting in the direction of tumor research;   (3) For determining, if possible, the tendencies of benign tumors to become malignant;   (4) For assisting in the follow-up of diagnosed or treated tumor cases as requested by attending physicians; and  (5) For improving the reporting of the cause of death on death certificates. All statistical material collected under this section shall be considered confidential as to the names of persons or physicians concerned, except that researchers may use the names of those persons when requesting additional information for research studies when the studies have been approved by the cancer commission of the Hawaii Medical Association and the appropriate federally authorized human subjects protection board. [L 1949, c 79, 4; RL 1955, 46-33; am L Sp 1959 2d, c 1, 19; HRS 321-43; am L 1973, c 25, 2; am L 2008, c 117, 2]
Note Part heading amended by L 2015, c 147, 7. 321-431 Definitions. As used in this part, unless the context clearly requires otherwise:  "Case management services" means services that assist medically fragile children under the medicaid state plan in gaining access to needed medical, social, educational, and other services.  "Medically fragile children" means children under the age of twenty-one with complex medical conditions that may or may not require technological interventions, including but not limited to ventilator care, tracheostomy care, catheterizations, parenteral nutrition, complex enteral feeding, and complex wound care. [L 2002, c 149, pt of 2]
  321-432 Case management services for medically fragile children. The department of health shall provide ongoing case management services and staff training in case management services in collaboration with the department of human services' medicaid early and periodic screening, diagnosis, and treatment program, including but not limited to:  (1) Assessment of children who are medically fragile to determine service needs;  (2) Development of a specific care plan;  (3) Referral for and linkages to services to implement the specific care plan; and  (4) Monitoring and follow-up.  Medicaid reimbursements received by the department for case management services provided to families of medically fragile children shall be deposited into the general fund. [L 2002, c 149, pt of 2; am L 2015, c 147, 8]
 321-44 REPEALED. L 1996, c 211, 2.
 321-441 Definitions. Whenever used in this part, unless a different meaning clearly appears from the context:   "CBRNE event" means the use of chemicals, biological agents, radioactive materials, nuclear devices, or explosives to kill or sicken people, animals, or plants.  "Department" means the department of health.  "Director" means the director of health.  "Emergency response stockpile" means a strategic supply of drugs, vaccines and other biological products, medical devices, and related supplies maintained by the department to protect or treat the population of the State in the event of a CBRNE event. [L 2005, c 46, pt of 1]
 321-442 Exemption from certain laws and rules. (a) In addition to any other power or duty prescribed by law or in this part, the director, through the department, may maintain an emergency response stockpile to prepare for or respond to a CBRNE event. The director may undertake all lawful activities necessary to carry out this part, including but not limited to adopting rules pursuant to chapter 91, disbursing funds for grants pursuant to chapter 42F, and procuring goods or services pursuant to chapter 103D or 103F.  (b) Notwithstanding any other law to the contrary, in preparing for or responding to a CBRNE event, the director and the department shall be exempt from chapters 328 and 461 and any related administrative rules, as those chapters and rules relate to the dispensing, labeling, prescribing, or storage of the emergency response stockpile. [L 2005, c 46, pt of 1; am L 2014, c 96, 19]
  321-45 Cancer examination. Cancer examinations shall be part of a statewide comprehensive cancer control plan to be developed by the department. The plan shall include provisions for cancer examination, including cervical cancer screening. The department shall work with other government agencies, health care providers, health insurers, and others to improve the overall rates of screening, early diagnosis, and treatment of cancer. [L 1974, c 215, 1; am L 2003, c 107, 2]
  321-46 Breast density mammography results; report and notification. (a) Beginning January 1, 2014, every health care facility in which a mammography examination is performed shall provide a mammography report and notification to each patient who is categorized by the facility as having dense breast tissue. The notification shall include in the summary of the mammography report sent to the patient, the following information, pursuant to the federal Mammography Quality Standards Act:  "Your mammogram shows that your breast tissue is dense. Dense breast tissue is very common and is not abnormal. However, dense breast tissue can make it harder to find cancer on a mammogram and may also be associated with an increased risk of breast cancer. This information about the result of your mammogram is given to you to raise your awareness. Use this information to talk to your physician as to whether, based on your risk, more screening tests might be useful. A report of your results was sent to your physician."  (b) For purposes of this section, "dense breast tissue" means heterogeneously dense or extremely dense tissue as defined in nationally-recognized guidelines or systems for breast imaging reporting of mammography screening, including the Breast Imaging Reporting and Data System of the American College of Radiology, and any equivalent new terms, as such guidelines or systems are revised. [L 2013, c 5, 1]
  321-471 Definitions. As used in this part:  "Dating relationship" as used in this section has the same meaning prescribed in section 586-1.  "Department" means the department of health.  "Director" means the director of health or the director's designated representative.  "Domestic violence" means physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, extreme psychological abuse or malicious property damage between family or household members.  "Domestic violence fatality review information" means information regarding a victim, including but not limited to:  (1) Social, medical, and legal history;  (2) Death and birth certificates;  (3) Law enforcement investigative information and data;  (4) Medical examiner or coroner investigative information and data;  (5) Parole and probation information and records;  (6) Information and records of social services agencies;  (7) Educational records; and  (8) Health care institution information.  "Domestic violence fatality review team" means those individuals appointed by the director to review domestic violence fatalities.  "Extreme psychological abuse" as used in this section has the same meaning prescribed in section 586-1.  "Family or household members" as used in this section means:  (1) Each legal parent;  (2) The natural mother;  (3) The natural father;  (4) Each natural or adopted child;  (5) Each sibling or person related by consanguinity;  (6) Spouses or former spouses;  (7) Reciprocal beneficiaries or former reciprocal beneficiaries;  (8) Each person who has or has had a dating relationship;  (9) Each person jointly residing or formerly residing in the same dwelling unit; and  (10) Any other person who, or legal entity that, is a victim's legal or physical custodian or guardian, or who is otherwise responsible for the victim's care, other than an authorized agency that assumes such a legal status or relationship with the victim under chapter 587A.  "Malicious property damage" as used in this section has the same meaning prescribed in section 586-1.  "Preventable death" means a death that reasonable medical, social, legal, psychological, or educational intervention may have prevented.  "Provider of medical care" means any health care practitioner who provides, or a facility through which is provided, any medical evaluation or treatment, including dental and mental health evaluation or treatment.  "Suspect" means a person suspected of having caused a victim's death.  "Victim" means an adult whose death is suspected of having been caused by domestic violence or domestic violence-related suicide. [L 2006, c 82, pt of 1; am L 2010, c 135, 7]
  321-472 Multidisciplinary and multiagency reviews. The department shall conduct multidisciplinary and multiagency reviews of domestic violence fatalities, near-deaths, and suicides to reduce the incidence of preventable intimate partner homicides. The director may form domestic violence fatality review teams, as necessary, by appointing individuals to review domestic violence fatalities. A domestic violence fatality review team shall not be subject to part I, chapter 92. [L 2006, c 82, pt of 1; am L 2015, c 203, 1]
  321-473 Access to information. (a) Upon request of the director or a domestic violence fatality review team, all medical examiners, physicians acting under the direction of a coroner, providers of medical care, state agencies, and county agencies shall disclose to the department and the domestic violence fatality review team all information and records regarding the circumstances of a victim's death so that the department may conduct a multidisciplinary and multiagency review of domestic violence fatalities pursuant to this part.  (b) Members of the domestic violence fatality review team shall develop procedures related to near-deaths resulting from intimate partner violence.  (c) The department may enter into memoranda of understanding with the relevant state agencies and branches of government and county agencies to obtain information relating to near-deaths resulting from intimate partner violence.  (d) To the extent that this section conflicts with other state confidentiality laws, the provisions of this section shall require disclosure, notwithstanding the existence of a specific confidentiality statute.  (e) An entity represented on a domestic violence fatality review team and any entity cooperating with an entity represented on a domestic violence fatality review team may share with other members of the team:  (1) Information in its possession concerning the victim;  (2) Information in its possession concerning any person who was in contact with the victim; and  (3) Any other information in its possession deemed by the entity to be pertinent to the domestic violence fatality review.  (f) Any information shared by an entity with other members of a domestic violence fatality review team is subject to the same restrictions on disclosure of the information or the records as the originating entity.  (g) To the extent possible, the review conducted pursuant to section 321-472 shall commence no later than one year following the death, near-death, or suicide. [L 2006, c 82, pt of 1; am L 2015, c 203, 2]
  321-474 Exception. Information regarding an ongoing civil or criminal investigation shall be disclosed at the discretion of the applicable state or county law enforcement agency. [L 2006, c 82, pt of 1]
  321-475 Use of domestic violence fatality review information and records. (a) Except as otherwise provided in this part, all information and records acquired by the department during its review of domestic violence fatalities pursuant to this part are confidential and shall only be disclosed as necessary to carry out the purposes of this part.  (b) Domestic violence fatality review information and statistical compilations of data that do not contain any information not previously publicly disclosed that would permit the identification of any person, shall be public records.  (c) An individual participating in the domestic violence fatality review of a victim's death shall not be questioned in any civil or criminal proceeding regarding information presented in or an opinion formed as a result of a domestic violence fatality review meeting. Nothing in this section shall be construed to prevent an individual from testifying to information obtained independently of the domestic violence fatality review of a victim's death, or which is public information, or where law or court order requires disclosure.  (d) Domestic violence fatality review information held by the department as a result of domestic violence fatality reviews conducted under this part shall not be subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceeding, except that domestic violence fatality review information otherwise available from other sources shall not be immune from subpoena, discovery, or introduction into evidence through those sources solely because it was provided as required by this part.  (e) Information collected and recommendations derived from the review process shall be compiled for use in system reform efforts relating to the reduction of preventable deaths, near-deaths, and suicides resulting from domestic violence. [L 2006, c 82, pt of 1; am L 2015, c 203, 3]
  321-476 Immunity from liability. A domestic violence fatality review team, its members, and any entity, agency, or individual participating in, or cooperating in, the review of a domestic violence fatality pursuant to this part shall not be civilly or criminally liable for providing the information required under this part. [L 2006, c 82, pt of 1]
Cross References Inspections of state-licensed care facilities; public notice, see 321-1.8. Law Journals and Reviews Long-Term Care in Hawaii. 18 HBJ, no. 13, at 59 (2015).  The Wavering Line Between Medical Malpractice and Ordinary Negligence in Elder Abuse Litigation. 18 HBJ, no. 13, at 81 (2015). 321-481 Definitions. As used in this part:  "Certificate of approval" means the certificate issued by the department or its designee that authorizes a person, agency, or organization to operate a community care foster family home.  "Client" means any person who receives home and community-based case management services to reside in a community care foster family home, expanded adult residential care home, or assisted living facility.  "Community care foster family home" or "home" means a home that:  (1) Is regulated by the department in accordance with rules that are equitable in relation to rules that govern expanded adult residential care homes;  (2) Is issued a certificate of approval by the department or its designee to provide, for a fee, twenty-four-hour living accommodations, including personal care and homemaker services, for not more than two adults at any one time, at least one of whom shall be a medicaid recipient, who are at the nursing facility level of care, who are unrelated to the foster family, and who are receiving the services of a licensed home and community-based case management agency; provided that:  (A) The department, in its discretion, may certify a home for a third adult who is at the nursing facility level of care and is a medicaid recipient; provided further that:  (i) The home has been certified and in operation for not less than one year;  (ii) The primary caregiver is a certified nurse aide, as defined in section 457A-1.5, who has completed a state-approved training program and other training as required by the department; and  (iii) The substitute caregiver is a nurse aide, as defined in section 457A-1.5, who has completed a state-approved training program and other training as required by the department;   (B) The department, in consultation with the department of human services, and in its discretion, and considering the past admission history and current client mix of the community care foster family home, may allow two private-pay individuals to be cared for in the same community care foster family home after considering the following relevant factors:  (i) The community care foster family home is certified for three beds;  (ii) The operator of the three-bed community care foster family home has had a vacant medicaid bed for at least six months; provided that the operator shall not transfer out a medicaid or private-pay client from the community care foster family home in order to accept a private-pay individual;   (iii) The two private-pay individuals are in a relationship with each other as a married couple or in a civil union and one of the private-pay individuals is currently residing in the community care foster family home for at least six months;  (iv) The department, in its discretion, determines that no other adult residential care home, expanded adult residential care home, or health care facility within the area has an available opening and is capable of providing care to both private-pay individuals; and  (v) There are no medicaid recipients seeking placement in the community care foster family home that the married or civil union private-pay individuals are seeking to occupy;  (C) If the legal relationship of the marriage or civil union of the individuals ceases to exist, including but not limited to as a result of death or divorce, one of the two private-pay beds shall immediately, upon the death or the effective date of divorce, become a medicaid bed; and  (D) The department and its officers, employees, and agents, in exercising discretion and in considering any other factors that the department deems relevant to its decision, shall be immune from suit and liability in the exercise of its discretion under this section; and  (3) Does not include expanded adult residential care homes or assisted living facilities.  "Department" means the department of health.  "Designee" means a person, institution, organization, or agency authorized by the department to issue certificates of approval to community care foster family homes and to monitor these homes for certificate compliance and quality assurance. The department's designee shall perform these functions for the department and shall not, at the same time, function as a home and community-based case management agency or a community care foster family home as defined in this section.  "Home and community-based case management agency" means any person, agency, or organization licensed by the department to provide, coordinate, and monitor comprehensive services to meet the needs of clients whom the agency serves in a community care foster family home or any medicaid clients in an expanded adult residential care home, or an assisted living facility.  "License" means an approval issued by the department or its authorized agents for a person, agency, or organization to operate as a home and community-based case management agency. [L 2012, c 93, pt of 2; am L 2017, c 30, 2]
 321-482 Home and community-based case management agency, authority over and evaluation of. (a) Any person, agency, or organization engaged in providing, coordinating, or monitoring comprehensive services to clients in community care foster family homes, or medicaid clients in expanded adult residential care homes, and assisted living facilities, shall meet the standards of conditions, management, and competence set by the department, and hold a license in good standing issued for this purpose by the department.  (b) The department shall adopt rules pursuant to chapter 91 relating to:  (1) Standards for the organization and administration of home and community-based case management agencies;  (2) Standards of conditions, management, and competence of home and community-based case management agencies;  (3) Procedures for obtaining and renewing a license from the department; and  (4) Minimum grievance procedures for clients of case management services.  (c) As a condition for obtaining a license, a person, agency, or organization shall comply with rules adopted under subsection (b)(1), (2), and (3), and satisfy the background check requirements under section 321-15.2. The department may deny a license if:  (1) An operator, employee, or new employee of the home and community-based case management agency has been convicted of a crime other than a minor traffic violation involving a fine of $50 or less;  (2) The department finds that the background check record of an operator, employee, or new employee poses a risk to the health, safety, or well-being of adults receiving care in community care foster family homes, expanded adult residential care homes, or assisted living facilities;  (3) An operator, employee, or new employee of the home and community-based case management agency is a perpetrator of abuse as defined in section 346-222; or  (4) The holder of or an applicant for a home and community-based case management agency license, or one of its employees, has a certificate of approval to operate a community care foster family home, or a license from the department to operate an adult residential care home, expanded adult residential care home, or assisted living facility.  (d) Upon approval of any home and community-based case management agency, the department or its authorized agents shall issue a license, which shall continue in force for one year, or for two years if a home and community-based case management agency has been licensed for at least one year and is in good standing pursuant to standards adopted by the department, unless sooner revoked for cause. The department or its authorized agents shall renew the license only if, after an annual or biennial evaluation, the agency continues to meet the standards established by the department.  (e) The department shall evaluate the home and community-based case management agency to determine compliance with the requirements established under this section:  (1) Annually or biennially; or  (2) Upon receipt of a complaint that the home and community-based case management agency is in violation of the requirements established under this section.  (f) The department may suspend or revoke a license if the department deems that the agency is unwilling or unable to comply with the rules adopted under this section; provided that:  (1) Upon suspension or revocation of a license, the home and community-based case management agency shall no longer be licensed and shall immediately notify the agency's clients and community care foster family homes, expanded adult residential care homes, and assisted living facilities in which the agency is providing services to clients;  (2) A home and community-based case management agency whose license has been suspended or revoked may appeal the suspension or revocation to the department through its established process, but the appeal shall not stay the suspension or revocation;  (3) A suspended or revoked license may be reinstated if the department deems that the agency is willing and able to comply with the rules adopted under this section; and  (4) A revoked license shall be restored only after a new application is made and reviewed under this part.  (g) Any home and community-based case management agency shall be subject to investigation by the department at any time and in the manner, place, and form as provided in the department's rules.  (h) The department shall adopt standard forms of contract that the home and community-based case management agency shall use with each of its clients, community care foster family homes, expanded adult residential care homes, and assisted living facilities.  (i) The home and community-based case management agency shall have a fiduciary duty to each client it serves.  (j) A home and community-based case management agency shall not enter into an agreement that requires a community care foster family home to accept that agency's clients exclusively. [L 2012, c 93, pt of 2; am L 2015, c 190, 4]
 321-483 Community care foster family home, authority over and evaluation of. (a) Any person in any household who wants to take in, for a fee, any adult who is at the nursing facility level of care and who is unrelated to anyone in the household, for twenty-four hour living accommodations, including personal care and homemaker services, may do so only after the household meets the required standards established for certification and obtains a certificate of approval from the department or its designee.  (b) The department shall adopt rules pursuant to chapter 91 relating to:  (1) Standards of conditions and competence for the operation of community care foster family homes;  (2) Procedures for obtaining and renewing a certificate of approval from the department;  (3) Minimum grievance procedures for clients of community care foster family home services; and  (4) Requirements for primary and substitute caregivers caring for three clients in community care foster family homes including:  (A) Mandating that primary and substitute caregivers be twenty-one years of age or older;  (B) Mandating that primary and substitute caregivers complete a minimum of twelve hours of continuing education every twelve months or at least twenty-four hours of continuing education every twenty-four months;  (C) Allowing the primary caregiver to be absent from the community care foster family home for no more than twenty-eight hours in a calendar week, not to exceed five hours per day; provided that the substitute caregiver is present in the community care foster family home during the primary caregiver's absence;  (D) Where the primary caregiver is absent from the community care foster family home in excess of the hours as prescribed in subparagraph (C), mandating that the substitute caregiver be a certified nurse aide; and  (E) Mandating that the substitute caregiver have, at a minimum, one year prior work experience as a caregiver in a community residential setting or in a medical facility.  (c) As a condition for obtaining a certificate of approval, community care foster family homes shall comply with rules adopted under subsection (b) and satisfy the background check requirements under section 321-15.2. The department or its designee may deny a certificate of approval if:  (1) An operator or other adult residing in the community care foster family home, except for adults receiving care, has been convicted of a crime other than a minor traffic violation involving a fine of $50 or less;  (2) The department or its designee finds that the background check record of an operator or other adult residing in the home, except for adults receiving care, poses a risk to the health, safety, or well-being of adults in care; or  (3) An operator or other adult residing in the community care foster family home, except for adults receiving care, is a perpetrator of abuse as defined in section 346-222.  (d) Upon approval of a community care foster family home, the department or its designee shall issue a certificate of approval that shall continue in force for one year, or for two years if a community care foster family home has been certified for at least one year and is in good standing pursuant to standards adopted by the department, unless sooner suspended or revoked for cause. The department or its designee shall renew the certificate of approval only if, after an annual or biennial evaluation, the home continues to meet the standards required for certification.  (e) Any community care foster family home shall be subject to investigation by the department or its designee at any time and in the manner, place, and form as provided in procedures to be established by the department.  (f) The department or its designee may suspend or revoke a certificate of approval if the department or its designee deems that a community care foster family home is unwilling or unable to comply with the rules adopted under subsection (b); provided that:  (1) The suspension or revocation shall be immediate when conditions exist that constitute an imminent danger to the life, health, or safety of adults receiving care;  (2) A community care foster family home whose certificate of approval has been suspended or revoked shall immediately notify its clients and their case managers;  (3) A community care foster family home whose certificate of approval has been suspended or revoked may appeal to the department through its established process, but the appeal shall not stay the suspension or revocation;  (4) A suspended or revoked certificate of approval may be reinstated if the department or its designee deems that the home is willing and able to comply with the rules adopted under subsection (b); and  (5) A revoked certificate of approval shall be restored only after a new application for a certificate of approval is submitted to the department or its designee and approved.  (g) Any community care foster family home shall be subject to monitoring and evaluation by the department or its designee for certification compliance and quality assurance on an annual or biennial basis. [L 2012, c 93, pt of 2; am L 2015, c 190, 5]
 321-484 REPEALED. L 2015, c 190, 8.
 321-485 Penalty. Any person violating this part or any rule adopted pursuant to this part shall be fined not more than $500. [L 2012, c 93, pt of 2]
 321-486.1 Action upon investigation. Upon investigation, the department may take action on confirmed findings that the subject of a report is operating a care facility without the required certificate or license and may do any or all of the following:  (1) Resolve the matter in an informal fashion as is appropriate under the circumstances;  (2) Exercise the department's right of entry under section 321-486.2;  (3) File a petition with the district court for enforcement, protective, or remedial action; or  (4) Pursue any protective or remedial actions authorized by law. [L 2018, c 148, pt of 1]
  321-486.2 Right of entry. The department, when engaged in an investigation pursuant to section 321-486, may visit and communicate with any person operating the facility, home, or other type of living arrangement that is the subject of a report. Any person intentionally or knowingly obstructing or interfering with the department's right of entry, the department's investigation of a report of operating without a certificate or license, or the department's communication with a vulnerable person reported to be receiving care from an uncertified or unlicensed operator shall be guilty of a misdemeanor. [L 2018, c 148, pt of 1]
  321-486.3 Penalty. Any person who intentionally operates a care facility without a certificate or license shall be guilty of a misdemeanor and shall be fined no more than:  (1) $100 for each day of uncertified or unlicensed operation for the first violation;  (2) $500 for each day of uncertified or unlicensed operation for the second violation; and  (3) $1,000 for each day of uncertified or unlicensed operation for the third and each succeeding violation. [L 2018, c 148, pt of 1]
Revision Note Part heading added by revisor pursuant to 23G-15.  321-486 Investigations. Upon receiving a report that a person, corporation, or any other entity may be operating a care facility without a certificate or license as required by law and issued by the department of health, or that a home or any type of living arrangement may be operating as a care facility without a certificate or license as required by law and issued by the department, the department may conduct an investigation for the limited purposes of determining whether the person or entity is operating without a required certificate or license in accordance with the following provisions:  (1) The department may request access to the location indicated in the report; or  (2) The department may file a complaint with the district court in the circuit of the location indicated in the report, and the district court, upon a finding of probable cause, may issue a search warrant directed to the department and the appropriate county police department, if necessary, to investigate the location pursuant to this section between the hours of sunrise and sunset. [L 2018, c 148, pt of 1]
  321-487 Referral or transfers to uncertified or unlicensed care facility; penalty. (a) It shall be unlawful for a certified or licensed healthcare provider or certified or licensed care facility to knowingly refer or transfer patients to an uncertified or unlicensed care facility. The department may impose a fine on any certified or licensed healthcare provider or certified or licensed care facility that knowingly refers or transfers patients to a care home, agency, or facility operating without a certificate or license as required by law; provided that the fine shall be no more than:  (1) $500 for the first violation;  (2) $1,000 for the second violation; and  (3) $2,000 for the third and each succeeding violation.  (b) Notwithstanding subsection (a) to the contrary, the healthcare provider or healthcare facility shall not be fined under this section if:  (1) A patient or anyone authorized to make decisions on behalf of the patient requests to be transferred to an uncertified or unlicensed care facility;  (2) The care facility becomes uncertified or unlicensed after a referral or transfer; or  (3) The healthcare provider or healthcare facility refers or transfers a patient in good faith to a care facility, without actual proof or knowledge that the care facility is uncertified or unlicensed. [L 2018, c 148, pt of 1]
  321-488 Exclusion. For purposes of this chapter, a landlord, as defined in section 521-8, shall not be deemed to be providing home care services or to be operating a care facility requiring a license under this chapter solely due to a landlord permitting a tenant to receive care services from persons licensed to provide care services, if licensing is otherwise required by law, and the landlord does not require a tenant to use or pay for care services as a condition of the rental agreement. For the purposes of this section, an operator means an individual or entity that operates or manages a healthcare facility or similar facility that provides care services in that facility. [L 2018, c 148, pt of 1]
Cross References Inspections of state-licensed care facilities; public notice, see 321-1.8. Law Journals and Reviews Long-Term Care in Hawaii. 18 HBJ, no. 13, at 59 (2015).  321-491 Purpose. The purpose of this part is to establish the nature and type of services to elders, disabled, and aged who are qualified to receive social services according to standards and conditions prescribed by the department of health. [L 2012, c 93, pt of 2]
  321-492 Definitions. As used in this part:  "Day care center" includes a place designated for group care for four or more adults or a family home providing care for two or more adults.  "Day care center for elder disabled and aged persons" means a place maintained and operated by an individual, organization, or agency for the purpose of providing supportive and protective care to a disabled or aged person with or without charging a fee during the attendant working day.  "Department" means the department of health.  "Disabled and aged persons" means any person who lives with a spouse, relative, or friend but who requires temporary supervision and care during the absence of those persons from the home or residence.  "Elder" means any person as may otherwise be defined by the department, who desires and needs counseling, guidance, and assistance to modify or resolve the social, economic, educational, recreational, physical, or mental problem that impedes the person's personal functioning and well-being.  Nothing in section 321-493 shall be construed to include a relative caring for another relative; a neighbor or friend caring for an adult by mutual choice and agreement; or any center or facility conducted primarily or solely for educational, social, recreational, athletic, or other group functions that may provide for twenty-four hour boarding, personal, or nursing care accommodation. [L 2012, c 93, pt of 2]
  321-493 Day care centers for disabled and aged persons. The department shall be responsible for the recruitment and licensing of day care centers for elder disabled and aged persons. The department shall adopt any necessary rules, regulations, and minimum standards to protect the best interests of adults receiving care in day care centers. The rules and regulations shall have the force and effect of law and shall be administered by the department. [L 2012, c 93, pt of 2]
  321-494 Purchase of service. The department may negotiate the purchase of day care services for elder disabled and aged recipients, including other social services from individuals or other organizations, institutions, or agencies. Other social services shall be necessary and essential to maximize the functioning and well-being of the recipient. Purchase of day care center services shall include services that enhance the social functioning of each participant, promote and develop activities in daily living and personal independence by therapeutic arts and crafts, community excursions, hobby cultivation, group dynamics, and provisions for counseling to the participants and their families. [L 2012, c 93, pt of 2]
  321-495 Penalty. Any individual, organization, or agency operating a day care center for disabled or aged persons without a license from the department shall be cited and fined an amount deemed to be appropriate by the court, but not to exceed a maximum of $5,000. [L 2012, c 93, pt of 2]
  321-496 REPEALED. L 2015, c 190, 9.
  321-5 Contract for exchange of Hawaii personnel. (a)  The department of health may contract with any state, or the health department of any state having the power to so contract, for the exchange of Hawaii personnel for personnel of the health department of that state. Any exchange shall be made under rules prescribed by the department, in no case shall be for a period exceeding one year, and in all cases shall be subject to the following provisions:  (1) That each person exchanged by the health department of any state shall possess qualifications equal to the qualifications of the person exchanged from Hawaii;  (2) That the person exchanged from Hawaii shall have served for not less than three years prior to the beginning of the exchange period as Hawaii personnel;  (3) That in the selection of Hawaii personnel for exchange, preference shall be given to persons born in the State;  (4) That each person exchanged by the health department of any state shall hold in the health department of that state a position the same as or equivalent to the position held by the person exchanged from Hawaii;  (5) That the person exchanged from Hawaii shall be paid that person's regular salary out of the funds appropriated therefor, but nothing in addition thereto;  (6) That the State shall not pay any traveling or other expenses of the Hawaii personnel or of the personnel of the health department of any state coming to Hawaii under any contract of exchange. This prohibition shall be construed to include all travel, transportation, board, lodging, or other expenses incidental to or arising out of any exchange;  (7) That the State shall not pay any compensation to the person coming to Hawaii under any contract of exchange; provided that in any case where the person so exchanged from Hawaii becomes incapacitated or, for any reason, leaves the exchange position permanently, the department may pay the visiting exchange person an amount not to exceed the salary rating of the person so exchanged from Hawaii, such an arrangement to continue until the end of the period of exchange or until such time as some adjustment satisfactory to the department is made;  (8) That any provision of law to the contrary notwithstanding, the state requirements in respect to civil service, citizenship, or residence shall not apply to any person coming to Hawaii under any contract of exchange; and  (9) That the appropriate collective bargaining agreement, executive order, executive directive, or rule regarding traveling expenses for state officials shall not apply to Hawaii personnel exchanged under this section.  (b) The department may adopt rules as it deems necessary concerning the powers, rights, functions, conduct, duties, and liabilities of, exercised by or imposed upon, any person coming to Hawaii under any contract of exchange.  (c) As used in this section, unless the text clearly otherwise indicates:  "Hawaii personnel" means public health nurses, sanitary officers, and medical officers.  "Health department" means the department of health or other public authority authorized by law to administer or administering the public health laws of any state.  "State" means any state or territory of the United States, or county or municipality of any such state or territory. [L 1941, c 83, pt of 1; am L 1943, c 43, 1(7); RL 1945,  2013, 2014; RL 1955, 46-20; am L Sp 1959 2d, c 1, 19; HRS 321-5; am L 2002, c 148, 35; am L 2018, c 18, 18; am L 2019, c 210, 4]
 321-501 Multidisciplinary and multiagency mortality reviews. The department may conduct multidisciplinary and multiagency mortality reviews of deaths of persons with developmental or intellectual disabilities in order to reduce the incidence of preventable deaths to persons with developmental or intellectual disabilities. [L 2012, c 162, pt of 1]
 321-502 Definitions. As used in this part:  "Adult" means a person eighteen years of age or older.  "Adult death review information" means information regarding the adult person and person's family, including:  (1) Social, medical, and legal histories;  (2) Death and birth certificates;  (3) Law enforcement investigative data;  (4) Medical examiner or coroner investigative data;  (5) Parole and probation information and records;  (6) Information and records of social service agencies;  (7) Educational records; and  (8) Health care institution information.  "Department" means the department of health.  "Developmental disability" means a severe, chronic disability of a person that:  (1) Is attributable to a mental or physical impairment or combination of mental and physical impairments;  (2) Is manifested before the person attains age twenty-two;  (3) Is likely to continue indefinitely;  (4) Results in substantial functional limitations in three 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; and  (vii) Economic self-sufficiency; and  (5) Reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated.  "Director" means the director of health or the director TMs designated representative.  "Intellectual disability" means significantly subaverage general intellectual functioning resulting in or associated with concurrent moderate, severe, or profound impairments in adaptive behavior and manifested during the developmental period.  "Person with developmental or intellectual disabilities" means an adult with a developmental or intellectual disability.  "Preventable death" means a death that reasonable medical, social, legal, psychological, or educational intervention may have prevented.  "Provider of medical care" means any health care practitioner who provides, or a facility through which is provided, any medical evaluation or treatment, including dental and mental health evaluation or treatment. [L 2012, c 162, pt of 1]
 321-503 Access to information. (a) Upon written request of the director, all providers of medical care or other related services and state and county agencies shall disclose to the department and to those individuals appointed by the director to participate in the mortality review of the death of a person with developmental or intellectual disabilities, adult death review information regarding the circumstances of the death of a person with developmental or intellectual disabilities to allow the department to conduct multidisciplinary and multiagency mortality review of deaths of persons with developmental or intellectual disabilities pursuant to section 321-31 and this part.  (b) To the extent that this section conflicts with other state confidentiality laws, this section shall prevail. [L 2012, c 162, pt of 1]
 321-504 Exception. Information regarding an ongoing civil or criminal investigation shall be disclosed at the discretion of the applicable state, county, or federal law enforcement agency. [L 2012, c 162, pt of 1]
 321-505 Use of information and records from mortality reviews of deaths of persons with developmental or intellectual disabilities. (a) Except as otherwise provided in this part, all information and records acquired by the department during its multidisciplinary and multiagency mortality reviews of deaths of persons with developmental or intellectual disabilities pursuant to this part shall be kept confidential and may be disclosed only as necessary to carry out the purposes of this part.  (b) Information and statistical compilations of data from the multidisciplinary and multiagency mortality reviews of deaths of persons with developmental or intellectual disabilities that do not contain any information that would permit the identification of any person shall be public records.  (c) No individual participating in the department's multidisciplinary and multiagency mortality review of the death of a person with developmental or intellectual disabilities may be questioned in any civil or criminal proceeding regarding information presented in, or opinions formed as a result of, a meeting of the multidisciplinary and multiagency mortality review of deaths of persons with developmental or intellectual disabilities. Nothing in this subsection shall be construed to prevent a person from testifying to information obtained independently of the department's multidisciplinary and multiagency mortality review of deaths of persons with developmental or intellectual disabilities, or that is public information, or where disclosure is required by law or court order.  (d) Information held by the department as a result of a multidisciplinary and multiagency mortality review of the death of a person with developmental or intellectual disabilities conducted under this part shall not be subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceeding, except that information otherwise available from other sources shall not be immune from subpoena, discovery, or introduction into evidence through those sources solely because it was provided as required by this part. [L 2012, c 162, pt of 1]
 321-506 Immunity from liability. All agencies and individuals participating in multidisciplinary and multiagency mortality reviews of deaths of persons with developmental or intellectual disabilities pursuant to this part shall not be held civilly or criminally liable for providing the information required under this part. [L 2012, c 162, pt of 1]
Note Part heading amended by L 1988, c 4, 1.  321-51 Department to administer part. The department of health is designated as the agency of the State to administer a program of services for children with special health needs. [L 1939, c 179, 2; RL 1945, 2102; RL 1955, 46-41; am L Sp 1959 2d, c 1, 19; HRS 321-51; am L 1988, c 4, 2]
  321-511 Definitions. As used in this part, unless the context otherwise requires:  "Compulsion" means absence of consent, or a threat, express or implied, that places a person in fear of public humiliation, property damage, or financial loss.  "Department" means the department of health unless otherwise specified in this part.  "Emergency contraception" means one or more prescription drugs used separately or in combination that are:  (1) Used postcoitally within a recommended amount of time;  (2) Used for the purposes of preventing pregnancy; and  (3) Approved by the United States Food and Drug Administration.  "Hospital" means any institution with an organized medical staff, regulated under sections 321-11(10) and 321-14.5, that admits patients for inpatient care, diagnosis, observation, and treatment.  "Sexual assault" means vaginal penetration without the person's consent, by compulsion or strong compulsion.  "Sexual assault victim" means a person who alleges or is alleged to have been sexually assaulted and as a result of the sexual assault presents as a patient at a hospital.  "Strong compulsion" means the use of or attempt to use one or more of the following to overcome a person:  (1) A threat, express or implied, that places a person in fear of bodily injury to the person or another person, or in fear that the person or another person will be kidnapped;  (2) A dangerous instrument; or  (3) Physical force. [L 2013, c 27, pt of 2]
  321-512 Compassionate care. (a) Any hospital at which a female sexual assault victim presents for emergency services shall:  (1) Provide any female sexual assault victim with medically and factually accurate and unbiased written and oral information about emergency contraception;  (2) Orally inform each female sexual assault victim of the option to receive emergency contraception at the hospital;  (3) When medically indicated, offer emergency contraception to each female sexual assault victim;  (4) Dispense a complete course of emergency contraception to each female sexual assault victim who accepts or requests it; and  (5) Ensure that providers who may prescribe or administer emergency contraception shall be trained to provide a female sexual assault victim with medically and factually accurate and unbiased written and oral information about emergency contraception and sexual assault treatment options and access to emergency contraception.  (b) No hospital shall deny a female sexual assault victim emergency contraception based on a refusal to undergo a forensic examination or a refusal to report the alleged sexual assault to law enforcement.  (c) No hospital shall be required to dispense emergency contraception to a female sexual assault victim who has been determined to be pregnant through the administration by the hospital staff of a pregnancy test approved by the United States Food and Drug Administration.  (d) If private insurance is not or cannot be utilized for payment, the cost of any emergency contraception dispensed pursuant to this part shall be paid by the department of human services. [L 2013, c 27, pt of 2]
 321-513 Enforcement; administrative penalties. (a) The department may set, charge, and collect administrative fines and recover administrative fees and costs, including attorney's fees and costs, resulting from a violation of this part or any rule adopted under this part.  (b) The department shall:  (1) Establish a policy and procedures to monitor compliance with this part, including a complaint process;  (2) Respond to any complaint received by the department concerning noncompliance by a hospital with the requirements of section 321-512; and  (3) Provide written notice to any hospital that the department determines is in violation of this part or any rule adopted under this part, including notice of an opportunity to take corrective action.  (c) Any hospital that violates this part or any rule adopted under this part after receiving written notice and an opportunity to take corrective action pursuant to subsection (b)(3) shall be fined not more than $1,000 for each separate offense.  (d) All enforcement processes shall comply with section 321-20.  (e) Sanctions under this section shall not be issued for violations occurring before July 1, 2014. [L 2013, c 27, pt of 2]
  321-514 Rules. The department may adopt rules under chapter 91 for the purposes of this part. [L 2013, c 27, pt of 2]
  321-52.5 REPEALED. L 1986, c 10, 2.
 321-52 Powers, duties, and activities of the department. To carry out the purposes of this part, the department of health may:  (1) Establish and administer a program of services for children with special health needs, which shall provide for developing, extending, and improv ing services, especially in rural areas, for locating such children, and for providing for medical, surgical, corrective, and other services and care, and facilities for diagnosis, hospitalization, and after-care; extend and improve any such services; cooperate with medical, health, nursing, and welfare groups and organizations and with any agency of the State charged with the administration of laws providing for vocational rehabili tation of children with special health needs; and, cooperate with the department of education for the education of such children;  (2) Formulate and administer a detailed plan for the purposes specified in paragraph (1) above; and adopt such rules pursuant to chapter 91 as may be necessary or desirable for the administration of the plan and of this part. Any plan shall include provisions for:  (A) Financial participation by the State in the funds appropriated by the Congress of the United States under applicable federal legislation;  (B) Administration of the plan by the department;  (C) Such methods of administration (other than those relating to selec tion, tenure of office, and compensation of personnel) as are neces sary for the efficient operation of the plan;  (D) Maintenance of records and preparation of reports of services ren dered as shall be directed by the Secretary of Health and Human Services of the United States;  (E) Carrying out the purposes specified in paragraph (1) above; and  (F) Cooperation with medical, health, nursing, and welfare groups and organizations and with any agency in the State charged with admin istering state laws providing for vocational rehabilitation of children with special needs;  (3) Cooperate with the federal government through its appropriate agency or instrumentality in developing, extending, and improving such services and receive and expend all funds made available to the department by the federal government, the State, or its political subdivisions, or from any other sources, including private donations, for such purposes; and  (4) Take all other actions necessary or desirable to carry out the purposes of this part. [L 1939, c 179, 3; RL 1945, 2103; RL 1955, 46-42; am L Sp 1959 2d, c 1,  18, 19; HRS 321-52; am L 1981, c 71, 1; am L 1984, c 13, 1; am L 1988, c 4, 3]
 321-53 Funds. The director of finance shall be the custodian of all moneys appropriated for or received by the department of health from any sources whatso ever for the purposes of this part and shall deposit such moneys in the fund for children with special health needs. All expenditures and withdrawals from the fund shall be upon warrants issued by the comptroller of the State upon vouchers properly approved by the director of health. [L 1939, c 179, pt of  5, 6; RL 1945, 2105; RL 1955, 46-44; am L 1957, c 152, 1; am L Sp 1959 2d, c 1,  14, 19; am L 1963, c 114, 1; HRS 321-53; am L 1988, c 4, 4]
 321-531 Definitions. As used in this part, unless the context requires otherwise:  "Department" means the department of health.  "Stroke coalition" means a multi-organizational process of public, private, and nonprofit organizations working together for a common purpose to improve stroke outcomes throughout the State.  "Stroke database" means a stroke coalition-approved, existing, nationally recognized and validated data platform available to the department and all participating hospitals statewide and that has features to maintain confidentiality standards and data security. [L 2015, c 211, pt of 2]
 321-532 Stroke system of care; department duties. (a) The department shall participate in a systematic process to evaluate, improve, and sustain stroke care throughout the State to reduce death and disability from stroke. The stroke system of care shall include:  (1) The requirement that hospitals meet specific stroke patient treatment capabilities that will ensure that stroke patients receive safe and effective care;  (2) The coordination with the State's emergency medical services system to ensure that stroke patients are quickly identified, transported to, and treated in facilities that have specialized programs for providing timely and effective treatment for stroke patients to improve outcomes; and  (3) The continuation of a statewide stroke coalition to provide a mechanism to evaluate and improve stroke care in the State.  (b) The department shall participate in the stroke coalition to:  (1) Provide agreed upon state level reports of de-identified and aggregated data to the stroke coalition, government agencies, hospitals, researchers, and other interested parties that have a role in improving stroke care;  (2) Analyze data generated by the stroke database to identify potential interventions to improve stroke response and treatment;  (3) Identify issues related to early identification, triage, treatment, and transport of possible acute stroke patients;  (4) Encourage sharing of information and data among health care providers on ways to improve the quality of care of stroke patients in the State; and  (5) Develop and implement strategies to improve stroke early identification and treatment, including identifying specific hospital capabilities to receive, treat, and transfer stroke patients. [L 2015, c 211, pt of 2]
 321-533 Stroke database. (a) All acute care hospitals that receive stroke patients from emergency medical services shall report data consistent with requirements of the stroke database on the treatment of all individuals with a suspected or confirmed stroke.  (b) The department shall participate in a stroke database that compiles information and statistics on stroke care that aligns with the consensus stroke metrics developed and approved by national subject-matter organizations and utilize it to support the stroke coalition's evaluation of stroke care in the State for performance improvement. [L 2015, c 211, pt of 2]
  321-534 Confidential information. The department and stroke coalition shall not disclose any confidential information or other data in violation of the federal and state privacy regulations. [L 2015, c 211, pt of 2]  
  321-54 Application of part. The services provided by this part shall be for the benefit of and apply only to persons not over twenty-one years of age, who or whose estate, or whose parents or guardians are without sufficient means to pay for the services. The department of health shall have the final administrative authority in determining the acceptance of cases for the care and services provided in this part. [L 1939, c 179, 7; RL 1945, 2106; RL 1955, 46-45; am L Sp 1959 2d, c 1, 19; HRS 321-54]
  321-541 Title. This part shall be known and may be cited as the "durable medical equipment supplier license program". [L 2016, c 137, pt of 2]
  321-542 Definitions. As used in this part:  "Consumer" means a health care facility, health care professional, or health care provider, as defined in section 432E-1, or any individual who is prescribed durable medical equipment as the result of medical necessity.  "Department" means the department of health.  "Durable medical equipment" means equipment that is considered a selected product under the Centers for Medicare and Medicaid Services durable medical equipment, prosthetics, orthotics, and supplies competitive bidding program that can stand repeated use; is primarily and customarily used to serve a medical purpose; is generally not useful to a person in the absence of an illness or injury; is appropriate for use in the home; does not contain any prescription drug; and is not considered to be a specialty item, equipment, or service.  "Durable medical equipment supplier" means a person who sells, dispenses, delivers, or services durable medical equipment. [L 2016, c 137, pt of 2]
  321-543 Licensing. It shall be unlawful for any person to operate as a durable medical equipment supplier that sells, dispenses, delivers, or services durable medical equipment to a consumer in the State without first obtaining a license. To receive a license, a durable medical equipment supplier shall attest and provide corroborating documentation to the department that the supplier:  (1) Is in compliance with the business registration laws of the State and has all required tax identification numbers;  (2) Is licensed and in good standing in the state in which its dispensing facilities are primarily located, if applicable, and complies with all applicable state and federal laws, rules, and standards;  (3) Has designated a responsible agent or agents either in or out of the State who will be responsible for providing timely and satisfactory services to consumers in the State; provided that:  (A) The responsible agent or agents must be available to consumers in the State by phone during standard business hours in Hawaii to answer inquiries or resolve issues; and  (B) If the responsible agent or agents are not immediately available, then the supplier shall have a system capable of accepting and recording incoming phone inquiries; provided that the supplier shall respond no later than one business day after the inquiry is received;  (4) Has implemented and maintains written procedures at each location for handling complaints and problems from all consumers, which includes a complaint file documenting complaints or problems and resolution of the complaints or problems; and  (5) Will agree to notify consumers within two business days if the supplier cannot or will not provide the equipment, item, or service ordered; provided that suppliers may be exempt from this requirement if selling, dispensing, delivering, or servicing specialty equipment or items. [L 2016, c 137, pt of 2]
  321-544 License fee. The department may assess a license fee of no more than $350 on each durable medical equipment supplier who receives a license pursuant to section 321-543. The license fee collected shall be deposited into the office of health care assurance special fund pursuant to section 321-1.4. [L 2016, c 137, pt of 2]
  321-545 Exemptions. Pharmacies licensed pursuant to chapter 461 are exempt from this part. [L 2016, c 137, pt of 2]
  321-546 Rules. The department may adopt rules pursuant to chapter 91 to carry out the purpose of this part. [L 2016, c 137, pt of 2]
  321-547 Severability. If any provision in this part or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect the other provisions or application of this part that can be given effect without the invalid provision or application, and to this end the provisions of this part are severable. [L 2016, c 137, pt of 2]
Revision Note Part heading added by revisor pursuant to 23G-15.  321-561 Limited service pregnancy centers; notice of reproductive health services. (a) For purposes of this section, "limited service pregnancy center" or "center":  (1) Means a facility that:  (A) Advertises or solicits clients or patients with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling;  (B) Collects health information from clients or patients; and  (C) Provides family planning or pregnancy-related services, including but not limited to obstetric ultrasound, obstetric sonogram, pregnancy testing, pregnancy diagnosis, reproductive health counseling, or prenatal care; and  (2) Shall not include a health care facility. For the purposes of this paragraph, a "health care facility" means any facility designed to provide comprehensive health care, including but not limited to hospitals licensed pursuant to chapter 321, intermediate care facilities, organized ambulatory health care facilities, emergency care facilities and centers, health maintenance organizations, federally qualified health centers, and other facilities providing similarly organized comprehensive health care services.  (b) Every limited service pregnancy center in the State shall disseminate on-site to clients or patients the following written notice in English or another language requested by a client or patient:  "Hawaii has public programs that provide immediate free or low-cost access to comprehensive family planning services, including, but not limited to, all FDA-approved methods of contraception and pregnancy-related services for eligible women.  To apply online for medical insurance coverage, that will cover the full range of family planning and prenatal care services, go to mybenefits.hawaii.gov.  Only ultrasounds performed by qualified health care professionals and read by licensed clinicians should be considered medically accurate."  The notice shall contain the internet address for online medical assistance applications and the statewide phone number for medical assistance applications.  (c) The information required by subsection (b) shall be disclosed in at least one of the following ways:  (1) A public notice on a sign sized at least eight and one-half inches by eleven inches, written in no less than twenty-two point type, and posted in a clear and conspicuous place within the center's waiting area so that it may be easily read by individuals seeking services from the center; or  (2) A printed or digital notice written or rendered in no less than fourteen point type that is distributed individually to each patient or client at the time of check-in for services; provided that a printed notice shall be available to all individuals who cannot or do not wish to receive the notice in a digital format.  (d) No limited service pregnancy center that collects health information from any individual seeking or receiving its services shall disclose any individually identifiable health information to any other person, entity, or organization without express written authorization from the subject individual. Any disclosure made under this section shall be limited by the express terms of the written authorization and all applicable state and federal laws and regulations, including the federal Health Insurance Portability and Accountability Act of 1996 and title 45 Code of Federal Regulations part 164.  (e) A limited service pregnancy center that provides or assists in the provision of pregnancy testing shall provide the individual tested with a free written statement of the results of the pregnancy test in English or another language requested by a client or patient immediately after the test is completed.  (f) Upon receipt of a written request from an individual to examine or copy all or part of the individual's recorded health information or other information retained by a limited service pregnancy center, the center shall, promptly as required under the circumstances but in no case later than fifteen working days after receiving the request:  (1) Make the information available for examination by the individual during regular business hours;  (2) Provide a free copy to the individual, if requested;  (3) Inform the individual if the information does not exist or cannot be found; and  (4) If the center does not maintain the record or information, inform the individual of that fact and provide the name and address of the entity that maintains the record or information. [L 2017, c 200, pt of 2]
  321-562 Limited service pregnancy centers; enforcement; private right of action. (a) A limited service pregnancy center that violates section 321-561 shall be liable for a civil penalty of $500 for a first offense and $1,000 for each subsequent offense. If the center is provided with reasonable notice of noncompliance, which informs the center that it is subject to a civil penalty if it does not correct the violation within thirty days from the date the notice is sent to the center, and the violation is not corrected as of the expiration of the thirty-day notice period, the attorney general may bring an action in the district court of the district in which the center is located to enforce this section.  A civil penalty imposed pursuant to this subsection shall be deposited to the credit of the general fund.  (b) Any person who is aggrieved by a limited service pregnancy center's violation of section 321-561 may bring a civil action against the limited service pregnancy center in the district court of the district in which the center is located to enjoin further violations and to recover actual damages sustained together with the costs of the suit including reasonable attorneys' fees. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages sustained. If damages are awarded pursuant to this subsection, the court may, in its discretion, impose on a liable center a civil fine of not more than $1,000 to be paid to the plaintiff.  A party seeking civil damages under this subsection may recover upon proof of a violation by a preponderance of the evidence.  For the purposes of this subsection, "person" includes a natural or legal person.  (c) The enforcement procedure and remedies provided by this section shall be in addition to any other procedure or remedy that may be available to the State or a person aggrieved by a violation of this chapter.  (d) This section and section 321-561 are not intended to require regulation or oversight of limited service pregnancy centers by the department of health. [L 2017, c 200, pt of 2]
  321-563 Seizure first aid; information. [Section repealed on June 30, 2026. L 2021, c 150,  4.] (a) The department of health may provide employers, employees, and the general public with information in relation to rendering seizure first aid.  (b) Employers may disseminate to their employees information on seizure first aid provided by the department of health in various forms, including posting the information in a prominent place at the employers' workplace.  (c) For the purposes of this section, "seizure first aid" means procedures to respond, attend, and provide comfort and safety to a person suffering from a primary generalized tonic-clonic seizure or complex partial seizure. The term does not include training to medically treat a person suffering a seizure. [L 2021, c 150, 2]
  321-571 Skilled nursing facilities. (a) All skilled nursing facilities shall be licensed by the department of health to ensure the health, safety, and welfare of the individuals placed therein.  (b) The director of health shall adopt rules pursuant to chapter 91 that shall provide for the licensing of skilled nursing facilities.  (c) The rules shall provide that accreditation by The Joint Commission or other nationally recognized accreditation or certification organization demonstrates a skilled nursing facility's compliance with all licensing inspections required by the State. The rules may exempt a skilled nursing facility from a licensing inspection on a continuing basis throughout the term of the accreditation or certification under the following conditions:  (1) The skilled nursing facility provides a certified copy of the facility's official accreditation or certification report to the department;  (2) The skilled nursing facility continuously holds full accreditation or certification by the accreditation or certification organization; and  (3) The skilled nursing facility holds a current and valid state license.  (d) The rules shall provide that the department may conduct inspections and investigations of exempt skilled nursing facilities regarding complaints, adverse accreditation or certification findings, or periodic validation surveys.  (e) Information contained in reports of survey and official accreditation or certification letters made by the accreditation or certification organization used in determining compliance with licensing requirements shall be public information.  (f) All other records maintained by the department shall be governed by chapter 92F. [L 2021, c 28, 2]
  321-581 Authority of the department of health. The department of health may:  (1) Conduct long-term care and substance abuse treatment at Leahi hospital and Maluhia;  (2) Pay rent to the University of Hawaii for the use of the Leahi hospital property, at a rate and on terms to be negotiated between the department of health and the University of Hawaii;  (3) Use moneys from the mental health and substance abuse special fund established pursuant to section 334-15 to fund the department's operations at Leahi hospital and Maluhia;  (4) Develop and implement its own policies, procedures, and rules necessary or appropriate to plan, operate, manage, and control Leahi hospital and Maluhia without regard to chapter 91;  (5) Enter into and perform any contract, lease, cooperative agreement, partnership, or other transaction whatsoever that may be necessary or appropriate in the performance of its purposes and responsibilities, and on any terms the department may deem appropriate with either:  (A) Any agency or instrumentality of the United States, or with any state, territory, possession, or subdivision thereof; or  (B) Any person, firm, association, partnership, or corporation, whether operated on a for-profit or not-for-profit basis; provided that the transaction furthers the public interest;  (6) Conduct activities and enter into business relationships the department deems necessary or appropriate, including but not limited to:  (A) Creating nonprofit corporations, including but not limited to charitable fundraising foundations, to be controlled wholly by the department or jointly with others; and  (B) Entering into partnerships and other joint venture arrangements, or participating in alliances, purchasing consortia, health insurance pools, or other cooperative agreements with any public or private entity; provided that any corporation, venture, or relationship entered into under this section shall further the public interest;  (7) Make and alter facility bylaws and rules for the organization and management of Leahi hospital and Maluhia without regard to chapter 91;  (8) Contract for and accept any gifts, grants, and loans of funds or property, or any other aid in any form from the federal government, the State, any state agency, or any other source, or any combination thereof, in compliance with the terms and conditions thereof;  (9) Provide health and medical services to the public directly or by agreement or lease with any person, firm, or private or public corporation, partnership, or association through or in Leahi hospital and Maluhia or otherwise; and  (10) Approve medical staff bylaws, rules, and medical staff appointments and reappointments for Leahi hospital and Maluhia, including but not limited to determining the conditions under which a health professional may be extended the privilege of practicing within Leahi hospital or Maluhia, as determined by the department or facility management, and adopting and implementing reasonable rules, without regard to chapter 91, for the credentialing and peer review of all persons and health professionals within the facility; provided that the department or facility management shall be the governing body responsible for all medical staff organization, peer review, and credentialing activities to the extent allowed by law. [L 2021, c 212, pt of 5]
  321-582 Consultation with the University of Hawaii required. The department of health shall regularly consult with the University of Hawaii regarding services provided at Leahi hospital and Maluhia. The department may coordinate with the University of Hawaii to allow university students to rotate through the facilities for training purposes and may take any action necessary or proper to effectuate this purpose. [L 2021, c 212, pt of 5]
  321-583 Reduction or elimination of direct patient care services. (a) No planned substantial reduction or elimination of direct patient care services at Leahi hospital or Maluhia shall be undertaken unless all of the following requirements are met:  (1) An initial determination is made by the department as to critical and emergency services, which shall not be subject to reduction or elimination pursuant to this section;  (2) The plan of the facility to substantially reduce or eliminate any direct patient care services at Leahi hospital or Maluhia shall first be presented to the director of health for approval;  (3) Subsequent to the requisite director approval, the department shall present the plan to the community in which the facility is located at a community informational meeting, in order to obtain community input on the plan; and  (4) After the community informational meeting, but at least twenty days prior to the implementation of the approved plan, the director shall give notice of the implementation of the plan to the governor, president of the senate, and speaker of the house of representatives.  (b) Upon meeting the requirements of subsection (a), the approved plan shall be implemented unless legislation has been enacted that:  (1) Requires the reinstatement and continuation of direct patient care services that are subject to reduction or elimination under the plan; and  (2) Includes an appropriation of additional moneys sufficient to adequately fund the mandated reinstatement and continuation of the direct patient care services that are subject to reduction or elimination under the plan. [L 2021, c 212, pt of 5]
  321-6.5  Clinical laboratory test results.  (a) Clinical laboratory test results may be provided to authorized persons for any purpose permitted under the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, and federal regulations promulgated thereunder.  (b) For purposes of this section, "authorized persons" shall include:  (1) The provider ordering the test, or the provider's designee; and  (2) Any covered entity as defined under 45 Code of Federal Regulations section 160.103 promulgated under the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191. [L 2010, c 72, 1]
  321-6 REPEALED. L 1972, c 29, 1.
  321-61 Dental health. The department of health shall constitute the sole agency of the State for the purposes of carrying out the activities and performing the functions provided in this part. [L 1949, c 208, 2; RL 1955, 46-50; am L Sp 1959 2d, c 1, 19; HRS 321-61]
 321-62 General duties of department. The department of health shall study and appraise the State's dental health needs and resources, and shall foster the development and expansion of dental health services to the people of the State. The department may:  (1) Conduct research, investigations, experiments, demonstrations, and studies relating to the incidence, causes, diagnosis, treatment, and prevention of dental diseases;  (2) Supervise, provide, and direct clinical dental health services for adults and children in the State;  (3) Develop and conduct a program of dental health education of the public;  (4) Provide information and education relating to dental health to public health nurses, teachers, social workers, and others who deal in a professional capacity with the public, through publications, seminars, institutes, and other appropriate means; and  (5) Provide training for professional personnel to staff state and local dental health programs. [L 1949, c 208, 5; RL 1955, 46-53; am L Sp 1959 2d, c 1, 19; HRS 321-62; am L 1992, c 70, 5]
 321-63 Director's specific duties and powers. To carry out the purposes of this part the director of health shall:  (1) Take such action as may be necessary, and authorized by law, to meet conditions prescribed for participation in all related federal dental health programs and the regulations adopted thereunder; determine qualifications of personnel requiring professional training and licenses and correlate the programs of the department with the profession and related agencies for the proper and efficient functioning of the department;  (2) Enter into cooperative arrangements with other departments, agencies, and institutions, public or private;  (3) Submit plans relating to dental health to the United States Public Health Service and make application for such federal funds as will assist in carrying out the purposes of this part;  (4) Accept on behalf of the State and deposit with the director of finance any grant, gift, or contribution from the federal government or other source made to assist in meeting the cost of carrying out the purposes of this part and expend the same for such purposes;  (5) Make an annual report on activities and expenditures pursuant to this part, including recommendations for additional plans, measures, or legislation relating to the purposes of this part. [L 1949, c 208, 6; RL 1955, 46-54; am L Sp 1959 2d, c 1,  14, 19; am L 1963, c 114, 1; HRS 321-63]
 321-7 Disbursement of moneys. For the purpose of carrying into effect the laws relating to the public health, the department of health may apportion and disburse all sums of money that are appropriated by the legislature for the preservation of the public health. The department shall observe the strictest economy in the expenditure of all public moneys placed under its control. The department shall also consider the alternative of leasing equipment versus equipment purchases. Such lease options may include, but not be limited to, contracts for maintenance, option to buy, and periodic updating of equipment. [PC 1869, c 59, 30; am L 1876, c 11, 4; RL 1925, 910; RL 1935, 901; RL 1945, 2009; RL 1955, 46-9; am L Sp 1959 2d, c 1, 19; HRS 321-7; am L 1979, c 33, 2]
  321-71 Industrial hygiene. The department of health shall make rules and regulations relating to or affecting industrial hygiene, and detect, prevent, and control: (1) conditions and exposures affecting health which are associated with conditions of employment, (2) atmospheric pollution, (3) improper fumigation, (4) inadequate and improper ventilation, (5) sources of ionizing radiation, and (6) other similar conditions.  Further, the department may conduct research and investigations, and disseminate knowledge and information to the public, concerning conditions in places of employment (and areas and places adversely affected by such places of employment) which may be responsible for the development of occupational diseases, afflictions, and poor health, and concerning all other matters which are the subject of its duties. [L 1951, c 18,  1, 2; RL 1955, 46-70; am L Sp 1959 2d, c 1, 19; HRS 321-71]
 321-72 Sources of ionizing radiation; federal-state agreements. The governor, on behalf of the State, may enter into agreements with the federal government providing for discontinuance of certain of the federal government's responsibilities with respect to sources of ionizing radiation and the assumption thereof by the State. [L 1967, c 12, 1; HRS 321-72]
 321-8 REPEALED. L 1988, c 139, 2.
  321-81 Nutrition. The department of health shall be empowered to:  (1) Conduct staff education in nutrition for the personnel of the department;  (2) Cooperate in training staffs of schools, welfare agencies, and other persons who deal with problems involving food and nutrition;  (3) Cooperate in the solution of nutrition problems of other agencies, such as schools, boarding homes, and institutions;  (4) Stimulate interest in good nutrition and improved food practices in the State through talks, literature, radio, newspapers, movies, and exhibits;  (5) Evaluate, prepare, and distribute nutrition education materials;  (6) Give direct service on personal nutrition problems to members of the public through individual consultation, group conferences, and correspondence;  (7) Assist organizations in coordinating and planning nutrition education programs;  (8) Conduct research in food habits and nutritional status;  (9) Conduct such other activities in the field of nutrition as the director of health may direct. [L 1951, c 34, 1; RL 1955, 46-71; am L Sp 1959 2d, c 1, 19; HRS 321-81]
 321-82 Field nutritionist, rural Oahu. The director of health may appoint a field nutritionist for rural Oahu and establish, or arrange for the establishing of, a suitable office therefor. [L 1951, c 305, 1; RL 1955, 46-23; am L Sp 1959 2d, c 1, 19; HRS 321-82]
 321-9 Seal, rules and regulations. The department of health may adopt a seal and may adopt such rules and regulations as it may consider expedient for the conduct of its business. The department may amend or revise such rules and regulations from time to time. [RL 1935, pt of 904; am L 1937, c 122, 4; am L 1941, c 18, 1; RL 1945, 2011; RL 1955, 46-11; am L Sp 1959 2d, c 1, 19; HRS 321-9]
  321-91 Program of home health services. The department of health is authorized to establish and administer a program to provide home health services, pursuant to the provisions of Title XVIII of the Social Security Act. Home health services shall mean ancillary paramedical services rendered in the patient's home, and shall include, but not be limited to, professional nursing care, physiotherapy, occupational therapy, speech and hearing therapy, medical social services, and home health aide services. The authority of the department hereunder shall be liberally construed in order that the State may receive the maximum benefits of said Title XVIII. [L 1966, c 23, pt of 2; HRS 321-91]
 321-92 Fees for services. The department of health is authorized to establish, charge, and collect reasonable fees for services rendered under the program set forth in section 321-91. [L 1966, c 23, pt of 2; HRS 321-92]
 321-93 Home health services; source of funds; disposition of receipts. (a) All moneys to provide ancillary paramedical services, professional nursing care, physiotherapy, occupational therapy, speech and hearing therapy, medical social services, and home health aide services under the home health services program shall be allocated by the legislature through appropriations out of the state general fund.  (b) The department shall include in its budgetary request for each upcoming fiscal period, the amounts necessary to effectuate the purposes of this part.  (c) All moneys received by the department from charges and fees for services rendered under this part shall be deposited to the credit of the state general fund. [L 1966, c 23, pt of 2; HRS 321-93; am L 1993, c 280, 37]
 321C-1 General purpose; purpose of the office of language access. Many individuals living in Hawaii read, write, speak, and understand English. There are many individuals, however, who are limited English proficient. Language for limited English proficient persons can be a barrier to accessing important benefits or services, understanding and exercising important rights, complying with applicable responsibilities, or understanding other information provided by state-funded programs and activities.  The purpose of this chapter is to affirmatively address, on account of national origin, the language access needs of limited English proficient persons. It is the intent of the legislature that these services be guided by Executive Order No. 13166 and succeeding provisions of federal law, regulation, or guidance.  The purpose of the office of language access is to address the language access needs of limited English proficient persons and ensure meaningful access to services, programs, and activities offered by the executive, legislative, and judicial branches of state government, including departments, offices, commissions, boards, or other agencies, and all covered entities, for limited English proficient persons. [L 2012, c 201, pt of 2]
  321C-2 Definitions. As used in this chapter, unless a different meaning clearly appears from the context:  "Access" or "participate" means to be informed of, participate in, and benefit from the services, programs, and activities offered by the State and covered entities.  "Covered entity" means a person or organization receiving state financial assistance, including grants, purchase-of-service contracts, or any other arrangement by which the State provides or otherwise makes available assistance in the form of funds to the person or organization for the purpose of rendering services to the public. It shall not include procurement contracts, state insurance or guaranty contracts, licenses, tax credits, or loan guarantees to private businesses of general concern that do not render services on behalf of the State.  "Executive director" means the executive director of the office of language access.  "Language" means human speech or the expression of ideas by written characters and includes systems used by nations, people, or other distinct communities.  "Limited English proficient person" means an individual who, on account of national origin, does not speak English as the person's primary language and self identifies as having a limited ability to read, write, speak, or understand the English language.  "Oral language services" means the free provision of oral information necessary to enable limited English proficient persons to access or participate in services, programs, or activities of a state agency or covered entity.  "Purchase-of-service contract" means any and all types of formal written agreements, regardless of what they may be called, between the State and any person, to purchase or otherwise acquire any service for the purpose of rendering services to the public.  "State" or "state agency" means the executive, legislative, or judicial branches of state government, including departments, offices, commissions, boards, or other agencies within the executive, legislative, or judicial branches.  "Vital documents" means printed documents that provide important information necessary to access or participate in services, programs, and activities of a state agency or covered entity, including but not limited to applications, outreach materials, and written notices of rights, denials, losses, or decreases in benefits or services.  "Written language services" means the free provision of written information necessary to enable limited English proficient persons to access or participate in services, programs, or activities of a state agency or covered entity. [L 2012, c 201, pt of 2]
 321C-3 Oral and written language services. (a) Each state agency and all covered entities shall take reasonable steps to ensure meaningful access to services, programs, and activities by limited English proficient persons, which will be determined by a totality of circumstances, including the following factors:  (1) The number or proportion of limited English proficient persons served or encountered in the eligible service population;  (2) The frequency with which limited English proficient persons come in contact with the services, programs, or activities;  (3) The nature and importance of the services, programs, or activities; and  (4) The resources available to the State or covered entity and the costs.  (b) Subject to subsection (a), each state agency and covered entity shall provide competent, timely oral language services to limited English proficient persons who seek to access services, programs, or activities.  (c) Subject to subsection (a), each state agency and covered entity shall provide written translations of vital documents to limited English proficient persons who seek to access services, programs, or activities, as follows:  (1) Written translations of vital documents for each eligible limited English proficient group that constitutes five per cent or one thousand, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered; or  (2) If there are fewer than fifty persons in a limited English proficient group that reaches the five per cent threshold in paragraph (1), written notice in the primary language to the limited English proficient language group of the right to receive competent oral interpretation of those written materials, free of cost.  (d) To the extent that the State requires additional personnel to provide language services based on the determination set forth in this section, the State shall hire qualified personnel who are bilingual to fill existing, budgeted vacant public contact positions. [L 2012, c 201, pt of 2]
 321C-4 Additional obligations. (a) Each state agency and covered entity shall establish a plan for language access.  (b) Each state agency's plan for language access shall be established in consultation with the executive director and the state agency's coordinator for language access. State agencies receiving federal financial assistance that did not file an initial language access plan pursuant to former section 371-34(b) by July 1, 2007, shall file an initial language access plan with the executive director no later than July 1, 2013, and every two years thereafter. All other state agencies that did not file a language access plan pursuant to former section 371-34(b) by July 1, 2008, shall file a language access plan with the executive director no later than July 1, 2014, and every two years thereafter. Agencies that filed initial language access plans pursuant to former section 371-34(b) by July 1, 2007, and July 1, 2008, shall continue to file their plans with the executive director every two years thereafter.  (c) Each state agency shall designate a language access coordinator who shall establish and implement the plan for language access in consultation with the executive director and the language access advisory council. [L 2012, c 201, pt of 2] Note  Section 371-34 referred to in subsection (b) is repealed.
 321C-5 Public meetings and public hearings. (a) State agencies to which this chapter applies shall not be required to translate meeting notices, agendas, or minutes.  (b) Subject to section 321C-3, oral language services for public meetings or public hearings held by the legislature shall be provided if requested at least forty-eight hours in advance of the meeting or hearing. When the notice of any public meeting or public hearing is posted less than forty-eight hours in advance of the meeting or hearing, oral language services shall be provided if requested at least twenty-four hours in advance of the meeting or hearing. [L 2012, c 201, pt of 2]
 321C-6 Office of language access; established. There is established within the department of health, for administrative purposes only, the office of language access. The head of the office shall be known as the executive director of the office of language access. The executive director shall be appointed by the governor without regard to chapter 76. The executive director shall:  (1) Provide oversight, central coordination, and technical assistance to state agencies in their implementation of language access requirements under this chapter or under any other law, regulation, or guidance;  (2) Provide technical assistance to covered entities in their implementation of this chapter;  (3) Review and monitor each state agency's language access plan for compliance with this chapter;  (4) Where reasonable access is not provided, endeavor to eliminate the language access barrier using informal methods, including conference, conciliation, mediation, or persuasion. Where the language access barrier cannot be eliminated by informal methods, the executive director shall submit a written report with the executive director's opinion and recommendation to the state agency or the covered entity. The executive director may request the state agency or the covered entity to notify the executive director, within a specified time, of any action taken on the executive director's recommendation;  (5) Consult with language access coordinators, the language access advisory council, and state department directors or their equivalent;  (6) Subject to section 321C-3, create, distribute to the State, and make available to covered entities, multilingual signage in the more frequently encountered languages in the State, and other languages as needed, informing individuals of their right to free oral language services and inviting them to identify themselves as persons needing services;  (7) Adopt rules pursuant to chapter 91 to address the language needs of limited English proficient persons;  (8) Administer a statewide language access resource center that shall:  (A) Maintain a publicly available roster of language interpreters and translators, listing their qualifications and credentials based upon guidelines established by the office of language access in consultation with the language access advisory council;  (B) Train state and state-funded agencies on how to effectively obtain and utilize the services of language interpreters and translators;  (C) Support the recruitment and retention of language interpreters and translators providing services to state and state-funded agencies;  (D) Provide, coordinate, and publicize training opportunities to increase the number and availability of qualified language interpreters and translators and further develop their language interpretation and translation skills; and  (E) Work toward identifying or creating a process to test and certify language interpreters and translators and promote use of the process to ensure the quality and accuracy of the language interpretation and translation services; and  (9) Have the authority to hire personnel necessary to staff the statewide language access resource center and to administer its multilingual website. The staff, at a minimum, shall consist of one full-time project coordinator, three full-time program specialists, and one full-time clerk. To the extent possible, the executive director shall hire bilingual personnel to staff the statewide language access resource center and to administer its website. [L 2012, c 201, pt of 2; am L 2013, c 217, 3, pt of 4] Revision Note  L 2013, c 217, pt of 4 was codified to this section as paragraph (9) pursuant to 23G-15.
 321C-7 Language access advisory council. (a) There is established the language access advisory council, which shall be placed within the department of health for administrative purposes only. The council shall consist of the following members to be appointed by the governor:  (1) One representative from the state government;  (2) One representative from a covered entity;  (3) One bilingual worker who is or has been employed by a state-funded immigrant service agency or program;  (4) One representative of an advocacy organization that provides services to limited English proficient persons;  (5) One member from the limited English proficient population who has an interest in the provision of oral language services;  (6) One representative from an accredited institution of higher learning who provides professional training in interpretation and translation;  (7) One representative of a Hawaiian language advocacy organization;  (8) One representative of a professional interpreter's organization;  (9) One representative of a bilingual referral service or program;  (10) One representative residing in the county of Hawaii who has shown interest in language access;  (11) One representative residing in the county of Kauai who has shown interest in language access;  (12) One representative residing in the county of Maui who has shown interest in language access;  (13) One representative residing in the city and county of Honolulu who has shown interest in language access;  (14) One member-at-large;  (15) The executive director of the Hawaii civil rights commission or authorized representative, as an ex officio member;  (16) One representative from the disability and communication access board, as an ex officio member; and  (17) The executive director, as an ex officio member.  (b) Members shall be appointed in accordance with section 26-34. The terms of the members shall be for four years. The council shall select one of its members to serve as chair. No member of the council shall receive any compensation for council services, but shall be allowed necessary expenses for travel, board, and lodging incurred in the performance of council duties.  (c) The language access advisory council shall serve in an advisory capacity to the executive director, providing input on:  (1) Implementation and compliance with this chapter;  (2) The quality of oral and written language services provided under this chapter; and  (3) The adequacy of a state agency or covered entity's dissemination and training of its employees likely to have contact with limited English proficient persons, its policies and procedures for language services, its competency in working effectively with in-person and telephone interpreters, and its understanding of the dynamics of interpretation between clients, providers, and interpreters. [L 2012, c 201, pt of 2]
 321D-1 Interdepartmental cluster for services to children; establishment, functions. (a) There is established a statewide interdepartmental cluster for services to children within the department of health which shall be comprised of representatives of major child-serving agencies with statewide authority and responsibility. The cluster shall include the department of education, the department of health, the department of human services, the judiciary, the office of the governor, and the office of youth services as regular members. The department of health shall staff the cluster and provide an identified place where development and coordination of service plans and programs for the multisystem children having severe emotional and developmental problems may be done on a systematic basis.  (b) The statewide interdepartmental cluster shall:  (1) Establish interdepartmental clusters at the local level;  (2) Establish written policies and procedures for both itself and the local clusters;  (3) Review and make recommendations on individual cases referred by local clusters or by directors of child-serving departments or agencies that have documentation that various county or local agencies have jointly attempted to develop programs and funding to meet the child's need, and that existing or alternative programs and funding have been exhausted or are insufficient or inappropriate in view of the distinctive nature of the child's situation;  (4) Develop written, comprehensive, and coordinated service plans for individual multineeds children for implementation by local clusters and, where required, utilize funds appropriated to it to assist local clusters in implementing such plans;  (5) Identify a single local agency to provide case management for each case accepted by the statewide cluster;  (6) Monitor each case; and  (7) Adjust policies and procedures and develop training which will ensure appropriate services for multisystem involved children at both the state and local levels. [L 1987, c 342, 2; am L 1988, c 141, 25; am L 1993, c 38, 1; am L 1996, c 298, 4]
 REPEALED. L 1992, c 261, 1.
 REPEALED. L 1996, c 211, 5.
 REPEALED. L 1996, c 211, 6.
  321H-1 Definitions. As used in this chapter, unless the context requires otherwise:  "Board" means the neurotrauma advisory board established under section 321H-3.  "Department" means department of health.  "Director" means the director of health.  "Neurotrauma" means a severe chronic disability of a person that is attributable to an injury to the central nervous system, such as traumatic brain injury and spinal cord injury, and likely to continue indefinitely. Neurotrauma can include other neurological dysfunctions but does not include substance misuse and abuse, Alzheimer's disease, or the infirmities of aging. Neurotrauma or other neurological deficits result in substantial functional limitations in two or more of the following areas:  (1) Self-care;  (2) Speech, hearing, or communication;  (3) Learning;  (4) Mobility;  (5) Self-direction;  (6) Capacity for independent living; and   (7) Economic sufficiency. [L 2002, c 160, pt of 2]
  321H-2 Neurotrauma system. The department of health shall develop, lead, administer, coordinate, monitor, evaluate, and set direction for a comprehensive system to support and provide services for survivors of neurotrauma injuries. [L 2002, c 160, pt of 2]
  321H-3 Neurotrauma advisory board. (a) There is established within the department a neurotrauma advisory board to advise the director in implementing this chapter.  (b) The board shall consist of eleven members to be appointed by the director. The director shall designate a member to be the chairperson of the advisory board. The director or a designee shall serve as an ex officio, nonvoting member of the advisory board. The director may also appoint up to three state and county representatives whose work relates to neurotrauma to be ex officio, nonvoting members of the board. The members shall serve for a term of four years; provided that upon the initial appointment of members, two shall be appointed for a term of one year, three for a term of two years, three for a term of three years, and three for a term of four years. In establishing the advisory board, the director shall appoint:  (1) Two survivors of neurotrauma or their family members (one for traumatic brain injuries and one for spinal cord injuries);  (2) One member of the Brain Injury Association of Hawaii;  (3) One member representing the state traumatic brain injury advisory board;  (4) Two members representing private sector businesses that provide services for neurotrauma survivors;  (5) One member representing trauma centers that provide services for neurotrauma survivors;  (6) One representative for persons with stroke; and  (7) Three at-large members.  (c) The members shall serve without compensation but shall be reimbursed for actual expenses, including travel expenses, that are necessary for the performance of their duties.  (d) The number of members necessary to constitute a quorum to do business shall consist of a majority of all the voting members who have been appointed by the director and have accepted that appointment. When a quorum is in attendance, the concurrence of a majority of the voting members in attendance shall make any action of the board valid. [L 2002, c 160, pt of 2; am L 2014, c 191, 1] Cross References  Traumatic brain injury advisory board, see 321-28.
  321H-4 Neurotrauma special fund. (a) There is established the neurotrauma special fund to be administered by the department with advisory recommendations from the neurotrauma advisory board. The fund shall consist of:  (1) Moneys raised pursuant to the surcharges levied under sections 291-11.5, 291-11.6, 291C-12, 291C-12.5, 291C-12.6, 291C-102, 291C-105, and 291E-61;  (2) Federal funds granted by Congress or executive order, for the purpose of this chapter; provided that the acceptance and use of federal funds shall not commit state funds for services and shall not place an obligation upon the legislature to continue the purpose for which the federal funds are made available; and  (3) Funds appropriated by the legislature for the purpose of this chapter.  (b) The fund shall be used for the purpose of funding and contracting for services relating to neurotrauma as follows:  (1) Education on neurotrauma;  (2) Assistance to individuals and families to identify and obtain access to services;  (3) Creation of a registry of neurotrauma injuries within the State to identify incidence, prevalence, individual needs, and related information; and  (4) Necessary administrative expenses to carry out this chapter not to exceed two per cent of the total amount collected.  (c) Moneys in the neurotrauma special fund may be appropriated to obtain federal and private grant matching funds, subject to section 321H-4(a)(2).  (d) In administering the fund, the director shall maintain records of all expenditures and disbursements made from the neurotrauma special fund.  (e) The director shall submit to the legislature an annual report on the activities under the neurotrauma special fund no later than twenty days prior to the convening of each regular session. [L 2002, c 160, pt of 2; am L 2006, c 129, 6]
  321H-5 Rules. The director may adopt rules under chapter 91 necessary to carry out this chapter. [L 2002, c 160, pt of 2]
  322-1 Removal, prevention. The department of health and its agents shall examine into all nuisances, foul or noxious odors, gases or vapors, water in which mosquito larvae exist, sources of filth, and all causes of sickness or disease, on shore, and in any vessel, which may be known to them or brought to their attention, which in their opinion are dangerous or injurious to health, and into any and all conditions created or existing which cause or tend to cause sickness or disease or to be dangerous or injurious to health, and shall cause the same to be abated, destroyed, removed, or prevented.  For purposes of this part, a nuisance shall include:  (1) Toxic materials that are used in or by-products of the manufacture or conversion of methamphetamine, and clandestine drug labs that manufacture methamphetamine; and  (2) Odors and filth resulting from a person feeding feral birds. [PC 1869, c 59, 9; am L 1911, c 111, 1; am L 1915, c 96, 1; RL 1925, 923; RL 1935, 1310; RL 1945, 2701; RL 1955, 47-1; am L Sp 1959 2d, c 1, 19; HRS 322-1; am L 2004, c 44, 23; am L 2013, c 269, 1] Case Notes  Dumping of garbage at sea. 283 U.S. 473.  Does not authorize board to destroy what is not a nuisance or to declare that to be which is not in fact a nuisance. 14 H. 533, 537.  Courts will review board's actions when taken without notice to owner. 22 H. 327, 345.  Cited: 19 H. 628.
   322-101 to 110 REPEALED. L 1972, c 100, 2. Cross References  For present provisions, see chapter 342F.
   322-121 to 124 REPEALED. L 1988, c 86, 2. Cross References  For present provisions, see  142-101 to 103.
   322-141 to 143 REPEALED. L 1988, c 86, 3. Cross References  For present provisions, see  142-111, 112.
 322-2 Ordering owner to remove. Whenever any such nuisance, foul or noxious odors, gases or vapors, water in which mosquito larvae exist, source of filth, or cause of sickness or disease is found on private property, the department of health shall cause notice to be given to the owner to remove and abate the same at the owner's own expense within such reasonable time as the department may deem proper. A duplicate of the notice so given shall be left with one or more of the tenants or occupants of the premises. If the premises are unoccupied, notice shall be mailed to the last known place of residence of the owner if residing in the State. If the owner resides out of the State or cannot be reached with notice speedily, notice left at the house or posted on the premises shall be sufficient. If the owner thus notified does not comply with the notification or order of the department, or its agent, within the time specified, the department or its agent may apply to the district court of the circuit in which the property is situated for an order authorizing the department to execute and carry out the notice or for an order to abate the nuisance and remove, destroy, or prevent the cause of the foul or noxious odors, gases or vapors, water in which mosquito larvae exist, source of filth, or cause of sickness or disease, or other thing detrimental to public health.  The department may recover by appropriate proceedings the expenses incurred by it in the abatement, removal, destruction, or prevention, from any person who has caused or allowed the nuisances, source of foul or noxious odors, gases or vapors, water in which mosquito larvae breed, source of filth, or cause of sickness or disease, or other thing detrimental to the public health, and from any owner, tenant, or occupant of the premises, who, after notice, has failed to abate, remove, destroy, or prevent the nuisance, source of foul or noxious odors, gases or vapors, water in which mosquito larvae exist, source of filth, or cause of sickness or disease, or other thing detrimental to the public health within the time specified in the notice. In no case shall the department or any officer or agent thereof be liable for costs in any action or proceeding that may be commenced in pursuance of this part. [PC 1869, c 59, 10; am L 1911, c 111, 2; am L 1919, c 80, 1; RL 1925, 924; RL 1935, 1311; RL 1945, 2702; RL 1955, 47-2; am L Sp 1959 2d, c 1, 19; HRS 322-2; am L 1970, c 188, 40; gen ch 1985]
  322-21 Insanitary conditions of land to be reported. Whenever in the opinion of the department of health any tract or parcel of land situate in the State is deleterious to the public health in consequence of being low, and at times covered or partly covered by water, or of being situated between high and low water mark, or of being improperly drained, or incapable by reasonable expenditure of effectual drainage, or for other reason in an insanitary or dangerous condition, the department shall report such fact to the comptroller, together with a brief recommendation of the operation deemed advisable to improve the land. [L 1896, c 61, 1; am L 1911, c 112, 1; RL 1925, 975; RL 1935, 1325; RL 1945, 2716; RL 1955, 47-20; am L Sp 1959 2d, c 1,  12, 19; HRS 322-21] Case Notes  This part does not make approval of department or its officers a prerequisite to granting of building permit. 13 H. 239. Does not contravene 5th or 7th Am. Const. 21 H. 314. Refers to improved lands as well as unimproved. 22 H. 327. Lien. 31 H. 446. Application generally. See 33 H. 199.
 322-22 Maps and plans. If the department of health in any case recommends a system of drainage or of filling and drainage, the comptroller shall, upon receipt of the notice, prepare a map of the land so reported upon by the department and to be so drained, or filled and drained, which land shall constitute a drainage district. The map shall show the district to be so drained, or filled and drained, the location and the size of each parcel or lot therein, a list of all known owners and occupants of the lots, the lots or parcels either within or without the drainage district through which rights-of-way for drains or ditches for draining the district are necessary, the amount of land necessary to be taken for the drains or ditches and for the banks thereof, a description of the same, an estimate of the value of the lands so sought to be taken for rights-of-way, and of the damages sustained by any person by reason of the appropriation irrespective of any benefit to be derived by the owners by reason of the construction of the improvements, which estimates shall be made respectively as to each person through whose land the rights-of-way are sought to be appropriated. The map shall also show the extent and location of the proposed drains or ditches, the width, depth, and slope of the sides thereof, an estimate of the total cost of the system of drainage in and for the district, including therein among other things the cost of acquiring the necessary rights-of-way and of making ditches, estimates of the cost, respectively, of the filling of each lot or parcel of land in the district, and the estimate of the cost to be apportioned to and assessed against each lot or parcel of land in the district for the drainage of the lot or parcel, the apportionment to be as hereinafter required.  If the department recommends only that the land be filled, the map shall, so far as practicable, show the present heights of each parcel, the height to be filled to, the approximate amount of fill required for each parcel, and the estimated cost thereof.  The comptroller may embody any of the information herein required in a statement to accompany the appropriate map instead of placing the same upon the map. [L 1915, c 190, 1; RL 1925, 976; RL 1935, 1326; RL 1945, 2717; RL 1955, 47-21; am L Sp 1959 2d, c 1,  12, 19; HRS 322-22] Case Notes  Cited: 31 H. 446, 449.
 322-23 Notice to owners to improve. The comptroller upon the receipt of the notice shall cause a copy of the same to be served in the manner prescribed in section 322-24 upon the owner or occupant of the land. The comptroller shall also notify each owner or occupant that a detailed statement and map or plan of the proposed improvement is on file in the comptroller's office accessible to the owner or occupant. The comptroller shall at the same time and in the same manner serve notice that, in case of failure to begin work upon the improvements within twenty days, or such further time in special cases as to the comptroller may seem reasonable, and to complete such work within a reasonable time in the notice designated, such work or so much thereof as may remain undone will be done by the State at the cost of the lands benefited thereby. [L 1896, c 61, 2; am L 1911, c 112, 2; am L 1915, c 190, 2; RL 1925, 977; RL 1935, 1327; RL 1945, 2718; RL 1955, 47-22; am L Sp 1959 2d, c 1, 12; HRS 322-23; gen ch 1985] Case Notes  "Owner" defined, sufficiency of notice. 22 H. 327, 335, 342.  Lien attaches, when. 31 H. 446.  Sufficiency of notice, waiver. 33 H. 199.
 322-24 Service of notice. Service of the notice upon an owner in person, if within the State, or upon the owner's agent if without the State, or upon the occupant of the land if the owner is unknown, or upon the guardian if the owner is a minor or person under guardianship, or by mail or personal delivery to the owner if without the State, shall be deemed good and sufficient service. If the land is unoccupied and the owner or the owner's place of residence is unknown, or if the owner is without the State and the owner's address is unknown and the owner has no known agent within the State, or if the owner is under age or incompetent, having no guardian in the State, the notice shall be published for five consecutive days in some newspaper of general circulation published in the county where the land is situated. The notice in all cases may be general in terms and addressed to all persons whom it may concern. [L 1896, c 61, 3; am L 1911, c 112, 3; RL 1925, 978; RL 1935, 1328; RL 1945, 2719; RL 1955, 47-23; HRS 322-24; gen ch 1985]
 322-25 Appeal. During the period of twenty days, or such further time in special cases as is specified in the notice given pursuant to section 322-23, any owner or occupant of land sought to be improved, the owner's or occupant's attorney or agent, may file an appeal from the decision of the department of health condemning the land as deleterious to the public health or from its decision or the order of the comptroller as to the nature and extent of the improvements to be made, including the size, character, and location of any drains or ditches, and within twenty days after written demand by the comptroller on the owner or occupant of any land in a drainage district improved by drainage under this chapter, for the payment of the cost of any such drainage, the owner or occupant, the owner's or occupant's attorney or agent, may file an appeal from the order of the comptroller apportioning the cost of the drainage to be borne by the owner's or occupant's land. All appeals shall be filed with the comptroller, and the comptroller shall transmit them to the circuit court of the circuit wherein the land is situated. [L 1896, c 61, 4; am L 1911, c 112, 4; am L 1915, c 190, 3; RL 1925, 979; RL 1935, 1329; RL 1945, 2720; RL 1955, 47-24; am L Sp 1959 2d, c 1,  12, 19; HRS 322-25; gen ch 1985] Case Notes  Effect of appeal not taken. 22 H. 327.
 322-26 Hearing, decision. Upon receiving any appeal from the comptroller, the court shall appoint three disinterested persons who shall sit as a board to hear and determine the appeal in conformity with chapter 91. They shall have power to determine whether or not the land is deleterious to the public health and whether the improvements of the nature designated in the notice are required, and if the improvements are not required, what, if any, improvements are required in order to render the lands sanitary. The board shall also have power upon any appeal to determine the amount to be in conformity with section 322-30, apportioned to and assessed against each lot or parcel for drains or ditches and for the lands acquired therefor and for all other cost, if any, of the drainage system, and whether or not any lands are improperly included in or excluded from the drainage district. The decision of a majority of the board as to the necessity and nature and extent of the improvements and as to the apportionment of the cost of any drainage system shall be final and conclusive upon all parties in interest, unless an appeal is taken as provided in chapter 91. The board shall appoint a time and place for hearing, first giving reasonable notice thereof to the director of health, the comptroller, and the owner or occupant of the land in question. Service of notice shall be as provided in section 322-24. As compensation for their services each member of the board is entitled to receive $5 for each day of actual service. [L 1896, c 61, 5; am L 1911, c 112, 5; am L 1915, c 190, 4; RL1925, 980; RL 1935, 1330; RL 1945, 2721; RL 1955, 47-25; am L 1965, c 96, 30; HRS 322-26] Rules of Court  Appeal, see HRCP rule 72.
 322-27 Plans, etc. The comptroller shall transmit to the board with each appeal the appropriate map or plan (or a copy thereof) of the lands to be improved prepared in accordance with the requirements of section 322-22, and shall also transmit to the board with each appeal a statement of the matters and things required by section 322-22 to be noted upon or to accompany the map. [L 1911, c 112, 6; am L 1915, c 190, 5; RL 1925, 981; RL 1935, 1331; RL 1945, 2722; RL 1955, 47-26; am L Sp 1959 2d, c 1, 12; HRS 322-27]
 322-28 Entry upon and acquisition of land. The comptroller may enter upon all lands on the routes of the proposed drains or ditches for the purpose of examining, surveying, and laying out the route thereof, and upon all lands proposed to be included in any such drainage district for the purpose of determining whether the same or any portion thereof shall be included in the district, and institute and conduct proceedings for the condemnation of all lands declared by the comptroller, when the comptroller's order is not appealed from, or by the board on appeal to be necessary for rights-of-way for the drains or ditches. In acquiring any such lands the method pursued shall be as prescribed in chapter 101; provided that in acquiring by condemnation proceedings any land situated within the drainage district the award of compensation therefor shall be without deduction for any benefits accruing to the remainder of the lot or parcel by reason of the construction of such improvement.  Any lands acquired by condemnation for rights-of-way for drains or ditches shall be paid for out of any funds available for the improvement of any lands under this part. [L 1915, c 190, 6; RL 1925, 982; RL 1935, 1332; RL 1945, 2723; RL 1955, 47-27; am L Sp 1959 2d, c 1, 12; HRS 322-28; gen ch 1985]
 322-29 Comptroller to make improvements, when. The board shall transmit a copy of its decision to the comptroller and to the other persons affected thereby, so far as practicable, and in case the owner of the land does not within ten days after the receipt of the decision begin work upon the improvements, or in case the work is not completed within such additional time as has been specified as provided in section 322-23, the comptroller may proceed to make or complete the improvement according to the decision of the board. In case no appeal is taken from the decision of the board as above provided, or work is not begun and completed within the times prescribed, the comptroller may proceed to make or complete the improvements. [L 1896, c 61, 6; am L 1911, c 112, 7; RL 1925, 983; RL 1935, 1333; RL 1945, 2724; RL 1955, 47-28; am L Sp 1959 2d, c 1, 12; HRS 322-29] Case Notes  Owner may object to methods under proper circumstances, and extra cost must be assumed by owner. 22 H. 327. See 33 H. 199.
 322-3 Nuisance on public property. Whenever any nuisance, foul or noxious odors, gases or vapors, water in which mosquito larvae exist, source of filth, or cause of sickness or disease is found on public property or on a public highway, street, lane, alley, or other public place, notice shall be given by the department of health, or its agent, to the person officially in charge thereof, and the person shall be notified to abate, destroy, remove, or prevent the same. In case of failure to comply with the notice, the mode of procedure shall be the same as hereinbefore provided in case of private persons in section 322-2. [L 1911, c 111, 3; RL 1925, 926; RL 1935, 1313; RL 1945, 2704; RL 1955, 47-4; am L Sp 1959 2d, c 1, 19; HRS 322-3]
 322-30 Cost of improvement; how apportioned. The cost of the improvements made or completed by the comptroller shall be apportioned as follows:  (1) Cost of filling any lot or parcel shall be borne by the lot or parcel;  (2) Cost of any drainage system including the cost of drains or ditches, damages for property taken for the same, and other expenses, if any, shall be apportioned among all the lots or parcels in the drainage district in proportion to their respective areas. [L 1915, c 190, 7; RL 1925, 984; RL 1935, 1334; RL 1945, 2725; RL 1955, 47-29; am L Sp 1959 2d, c 1, 12; HRS 322-30]
 322-31 Lien. The cost of the improvements made or completed by the comptroller as determined and apportioned pursuant to the provisions of this part shall constitute a lien upon the land improved, which lien shall have priority over all other liens. [L 1896, c 61, 7; am L 1911, c 112, 8; am L 1915, c 190, 8; RL 1925, 985; RL 1935, 1335; RL 1945, 2726; RL 1955, 47-30; am L Sp 1959 2d, c 1, 12; HRS 322-31] Case Notes  Lien attaches to interest of person who as owner is in control of land. 22 H. 327.  Cited: 31 H. 446, 449.
 322-32 Notice and recording of lien. Whenever work or improvement is done or completed by the comptroller, the comptroller shall record in the office of the registrar of conveyances a notice of the cost of the work so done or completed and a brief description of the land on which the same is a charge, together with the name of the last known owner, and shall also serve a copy of the notice upon such owner in the manner provided in section 322-24. [L 1896, c 61, 8; am L 1911, c 112, 9; RL 1925, 986; RL 1935, 1336; RL 1945, 2727; RL 1955, 47-31; am L Sp 1959 2d, c 1, 12; HRS 322-32; gen ch 1985] Case Notes  Cited: 31 H. 446, 449.
 322-33 Foreclosure. The lien may be foreclosed at any time after six months and within five years from the date of the recording required by section 322-32 by suit in equity or without suit by public sale by the comptroller in the name of the State. Foreclosure by public sale shall be preceded by the publication of a notice, setting forth the time and place of the sale, the amount of the lien, and a brief description of the land, for at least six times, in a weekly paper published in the county where the land is situated. The land shall be offered for sale at public auction at an upset price equal to the amount of the lien, and the cost of all advertising and other costs incurred, and if no higher price is bid, shall be declared sold to the State, which in such case shall be deemed to be the purchaser at the upset price. The sale shall be effectual to convey the title to the purchaser, and a conveyance of the land to the purchaser may be executed in the name of the State by the comptroller. Only the balance of the purchase price, after deducting the amount of the lien and costs, or, in case there is no balance or an insufficient balance, only an amount equal to the value of the land as last previously assessed for taxation, shall be subject to claims against the State. In case the State is the purchaser, the amount of the assessed value shall be payable out of any funds provided therefor, and the land may be sold at any time thereafter at public auction, after due notice, at an upset price equal to the value of the land as determined by one or more, but not more than three disinterested appraisers appointed by the comptroller, and the proceeds of the sale turned into the fund provided therefor. In case of uncertainty as to the person to whom the balance or assessed value should be paid or its apportionment among two or more persons, it may be deposited in the circuit court for the benefit of whom it may concern. [L 1896, c 61, 9; am L 1911, c 112, 10; am L 1915, c 149, 1; RL 1925, 987; RL 1935, 1337; RL 1945, 2728; am L 1953, c 210, 1; RL 1955, 47-32; am L Sp 1959 2d, c 1, 12; HRS 322-33] Rules of Court  As to one form of action, see HRCP rules 1, 2, 81(i).
 322-34 Payment presumed when. All such liens shall be presumed to have been satisfied at the expiration of six years from the date of record. [L 1896, c 61, 10; am L 1915, c 149, 2; RL 1925, 988; RL 1935, 1338; RL 1945, 2729; RL 1955, 47-33; HRS 322-34]
 322-35 Amount paid owner. Whenever property is improved under this part and the comptroller sells the property so improved to satisfy the lien established in consequence of the improvement, the owner shall be paid out of the proceeds of the sale an amount not less than the assessed value of the property before its improvement. [L 1911, c 29, 2; RL 1925, 991; RL 1935, 1339; RL 1945, 2730; RL 1955, 47-34; am L Sp 1959 2d, c 1, 12; HRS 322-35]
 322-4 Entering lands, buildings, etc. Whenever any member of the department of health deems it necessary for the preservation of the lives or health of the public to enter any land, building, vessel, or aircraft for the purpose of examining into, abating, destroying, removing, or preventing any nuisance, source of foul or noxious odors, gases or vapors, water in which mosquito larvae exist, source of filth, or cause of sickness or disease, or other thing detrimental to the public health, and is refused such entry, the member may make complaint to the district judge in whose circuit the nuisance, source, place, or cause is, and the district judge may thereupon issue a warrant, directed to any police officer of the circuit, commanding the police officer to take sufficient aid, and, being accompanied by the member of the department, between the hours of sunrise and sunset, to repair to the place described in the complaint, and to abate, destroy, remove, or prevent, under the directions of the member, the nuisance, source or cause. [PC 1869, c 59, 13; am L 1911, c 111, 4; RL 1925, 927; RL 1935, 1314; RL 1945, 2705; am L 1953, c 32, 2; RL 1955, 47-5; am L Sp 1959 2d, c 1, 19; HRS 322-4; am L 1970, c 188,  39, 40; gen ch 1985]
   322-41, 42 REPEALED. L 2000, c 14, 1.
 322-5 REPEALED. L 1990, c 8, 2.
   322-51 to 54 REPEALED. L 2000, c 14, 2.
 322-6 Who to report nuisances. The sheriff, all officers of police, and physicians shall report to the department of health, or its nearest authorized agent, the existence of any nuisance injurious to the public health, of which any of them may be cognizant, as soon as possible after it comes to their knowledge. Any individual may report to the department of health, or its nearest authorized agent, the existence of any nuisance injurious to the public health as soon as possible after the individual learns of the existence of the nuisance. [PC 1869, c 59, 22; RL 1925, 929; RL 1935, 1316; RL 1945, 2707; RL 1955, 47-7; am L Sp 1959 2d, c 1, 19; am L 1963, c 85, 3; HRS 322-6; am L 1989, c 211, 10; am L 1990, c 281, 11; am L 2013, c 269, 2]
   322-61 to 79 REPEALED. L 1972, c 100, 2. Cross References  For present provisions, see chapter 342B.
 322-7 REPEALED. L 1983, c 100, 6.
 322-8 Administrative penalties. (a) Any person who violates this part or any rule adopted by the department of health to implement this part shall be fined not more than $10,000 for each separate offense. Any action taken to collect the penalty provided for in this subsection shall be considered a civil action.  (b) The director of health may impose by order the administrative penalty specified in this section. Factors to be considered in imposing the administrative penalty include the nature and history of the violation and of any prior violation, and the opportunity, difficulty, and history of corrective action. It is presumed that the violator's economic and financial conditions allow payment of the penalty and the burden of proof to the contrary is on the violator. For any judicial proceeding to recover the administrative penalty imposed, the director of health need only show that notice was given, a hearing was held, or the time granted for requesting a hearing has expired without such a request, the administrative penalty was imposed, and that the penalty remains unpaid.  (c) In addition to the penalty under subsection (a), the director of health may order the person who has committed the violation to correct the violation at the person's own expense. [L 1983, c 100, pt of 1; am L 1984, c 12, 1]
  322-9 Injunctive relief. The director of health may institute a civil action in any court of competent jurisdiction for injunctive relief to prevent any violation of this part or any rule adopted to implement this part. The court shall have powers to grant relief in accordance with the Hawaii rules of civil procedure. [L 1983, c 100, pt of 1] Rules of Court  Injunctions, see HRCP rule 65.
  322H-1 Hawaii health authority; establishment. (a) There is established within the department of budget and finance for administrative purposes the Hawaii health authority. The authority shall be an autonomous public body corporate and politic and an instrumentality of the State.  (b) The authority shall be composed of nine members appointed by the governor as provided in section 26-34; provided that three members shall be appointed from a list of nominees submitted by the speaker of the house of representatives and three members shall be appointed from a list of nominees submitted by the president of the senate. All members shall be appointed for terms of four years each.  (c) One member shall be selected to be the executive director and confirmed by a majority vote of a quorum of the members of the Hawaii health authority.  (d) Each member shall hold office until the member's successor is appointed and qualified.  (e) Five members shall constitute a quorum, whose affirmative vote shall be necessary for all valid actions by the authority. [L Sp 2009, c 11, pt of 2] Attorney General Opinions  Subsection (d) is constitutional, with regard to the use of the phrase "appointed and qualified" to describe when a successor's appointment terminates a holdover member's position. Att. Gen. Op. 16-3.
 322H-2 Hawaii health authority; duties and responsibilities. (a) The authority shall be responsible for overall health planning for the State and shall be responsible for determining future capacity needs for health providers, facilities, equipment, and support services providers.  (b) The authority shall develop a comprehensive health plan that includes:  (1) Establishment of eligibility for inclusion in a health plan for all individuals;  (2) Determination of all reimbursable services to be paid by the authority;  (3) Determination of all approved providers of services in a health plan for all individuals;  (4) Evaluation of health care and cost effectiveness of all aspects of a health plan for all individuals; and  (5) Establishment of a budget for a health plan for all individuals in the State.  (c) The authority shall determine the waivers that are necessary and available by federal law, rule, or regulation necessary to implement and maintain this chapter.  (d) The authority shall adopt rules pursuant to chapter 91 necessary for the purposes of this chapter.  (e) The authority shall submit a comprehensive health plan for all individuals in the State, including its findings and recommendations, to the legislature no later than twenty days prior to the convening of the regular session of 2012. [L Sp 2009, c 11, pt of 2; am L 2011, c 8, 1]
   323-1 to 7.8 REPEALED. L 1989, c 327, 11. PART I. GENERAL PROVISIONS   323-1 Contracts with territories and possessions of the United States. The governor is authorized to enter into and execute contracts in the name of the State with territories, possessions, and other areas in the Pacific Ocean region that are under the jurisdiction of the United States, regarding the use of health and public or private correctional facilities of the State on a space available basis; provided that any such contract shall provide for the payment of costs to the State. [L 1989, c 327, 10; am L 1998, c 227, 4]
   323-11 to 25 REPEALED. L 1975, c 159, 3. Cross References  For present provisions, see chapter 323D.
  323-2 Hospital visitation policy and extension of authority to reciprocal beneficiaries. A reciprocal beneficiary, as defined in chapter 572C, of a patient shall have the same rights as a spouse with respect to visitation and making health care decisions for the patient. [L 1997, c 383, 3]
  323-3 Practice by advanced practice registered nurses. Each hospital in the State licensed under section 321-14.5 shall allow advanced practice registered nurses licensed pursuant to section 457-8.5 and qualified advanced practice registered nurses granted prescriptive authority pursuant to section 457-8.6 to practice at the hospital within the full scope of practice authorized under chapter 457, including practice as a primary care provider. [L 2011, c 110, 1; am L 2015, c 35, 41]
   323-31 to 46 REPEALED. L 1975, c 159, 3. Cross References  For present provisions, see chapter 323D.
  323-51 Animal therapy. Animals of the kind commonly kept as household pets may be brought into long term health care facilities for the purpose of visiting patients therein. The institution shall determine whether an animal is suitable for visitation, the location where the visit may take place, and the policies governing the visit. At the discretion of the institution, the animal owner may be required to produce written documentation from a veterinarian attesting to the animal's good health, before visitation is permitted. [L 1985, c 290, 2] Law Journals and Reviews  Hounds at the Hospital, Cats at the Clinic: Challenges Associated with Service Animals and Animal-Assisted Interventions in Healthcare Facilities. 40 UH L. Rev. 53 (2018)
   323-61 to 75 REPEALED. L 1996, c 262, 19. Note  L 1998, c 2, 85 purports to amend 323-70. Cross References  Hawaii health systems corporation, see chapter 323F.
  323B-1 Applicability. This chapter shall apply, unless amended by specific reference to this chapter or any section thereof. [L 2012, c 315, pt of 2]  
  323B-2 Definitions. As used in this chapter:  "Breach" has the same meaning as in 45 Code of Federal Regulations section 164.402, as may be amended.  "Business associate" has the same meaning as in 45 Code of Federal Regulations section 160.103, as may be amended.  "Covered entity" has the same meaning as in 45 Code of Federal Regulations section 160.103, as may be amended.  "De-identified protected health information" has the same meaning as in title 45 Code of Federal Regulations section 164.514(a), as may be amended.  "Disclosure" has the same meaning as in 45 Code of Federal Regulations section 160.103, as may be amended.  "Health information" has the same meaning as in 45 Code of Federal Regulations section 160.103, as may be amended.  "Individually identifiable health information" has the same meaning as in 45 Code of Federal Regulations section 160.103, as may be amended.  "Unsecured protected health information" has the same meaning as in 45 Code of Federal Regulations section 164.402, as may be amended.  "Use" has the same meaning as in 45 Code of Federal Regulations section 160.103, as may be amended. [L 2012, c 315, pt of 2; am L 2017, c 157, 3]
  323B-3 Privacy of individually identifiable health information. (a) Notwithstanding any law to the contrary, any use or disclosure of individually identifiable health information by any covered entity or business associate that is permitted by 45 Code of Federal Regulations part 164, subpart E, shall be deemed to comply with all state laws relating to the use, disclosure, or confidentiality of such information.  (b) Notwithstanding any law to the contrary, an authorization for release of individually identifiable health information that complies with 45 Code of Federal Regulations section 164.508 shall be deemed to comply with all state laws relating to individual authorization.  (c) Notwithstanding any law to the contrary, any notice of breach of unsecured protected health information that complies with 45 Code of Federal Regulations part 164, subpart D, shall be deemed to comply with all state laws relating to notice of breach of protected health information. [L 2012, c 315, pt of 2]
 323B-4 Relationship to other laws. Nothing in this chapter shall be construed to:  (1) Authorize the disclosure of individually identifiable health information to the extent that disclosure is restricted by federal law or regulations, including federal regulations about the confidentiality of information about drugs and alcohol, as set forth in 42 Code of Federal Regulations part 2;  (2) Compel the disclosure of individually identifiable health information that is not required by law to be disclosed;  (3) Require a written authorization for release of individually identifiable health information or de-identified information to the extent that the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, and its related regulations, as may be amended, does not require such authorization;  (4) Limit or otherwise affect any state law that:  (A) Requires persons or entities to report disease, injury, child abuse, elder abuse, domestic violence, birth, or death; or  (B) Governs public health surveillance, investigation, or intervention;  (5) Limit or otherwise affect health plan reporting, including reporting required for purposes of state management or financial audits; or  (6) Limit or otherwise affect any evidentiary privilege, limitation on discovery, or confidentiality protection provided by any state law, decision, or order in relation to individually identifiable health information sought, used, or produced in any judicial or administrative proceeding. [L 2012, c 315, pt of 2]
  323B-5 Disclosure, use, and production of de-identified protected health information. (a) Provided that individually identifiable protected health information has been de-identified pursuant to title 45 Code of Federal Regulations part 164, as may be amended, the State shall have a compelling interest in the public and private disclosure, use, and production of the de-identified protected health information for the purposes of medical or economic research, protecting patient or public safety, ensuring proper operation of facilities providing medical care, and health care operations as defined in title 45 Code of Federal Regulations part 164, as may be amended.  (b) Public and private uses of de-identified protected health information in which the State shall have a compelling interest include but are not limited to:  (1) De-identified protected health information from state agencies, hospitals, medical and health care facilities, health care providers, and providers of health insurance relating to:  (A) Medical or economic research; and  (B) Public safety;  (2) De-identified protected health information from state agencies, pharmacies, hospitals, medical and health care facilities, health care providers, and providers of health insurance relating to patient protection and public safety involving unfair or deceptive acts or practices, restraints of trade, and price-fixing in violation of chapter 480; and  (3) De-identified protected health information from state agencies, hospitals, medical and health care facilities, and health care providers relating to the proper operation of medical and health care facilities that includes:  (A) Quality assessment and improvement activities;  (B) Patient protection and safety activities;  (C) Population based activities relating to improving health or reducing health care costs;  (D) Fraud and abuse detection and compliance; and  (E) Employment actions. [L 2017, c 157, 2]
 REPEALED. L 2001, c 244,  1 to 6. Note  This chapter, enacted by L 1999, c 87 and amended by L 2000, c 91, 2, c 127, 3 and c 140, and made effective July 1, 2001 by L Sp 2000 2d, c 1 was repealed by L 2001, c 244 on June 30, 2001.
  323D-1 Purpose. The purpose of this chapter is to establish a health planning and resources development program to promote accessibility for all the people of the State to quality health care services at reasonable cost. [L 1975, c 159, pt of 2; ree L 1977, c 178, pt of 2; am L 1987, c 270, 3]
  323D-11 State health planning and development agency. There is established within the department of health for administrative purposes only, the state health planning and development agency. The state agency shall be headed by an administrator who shall be appointed by the governor subject to section 26-34. The state agency shall administer the state health planning and cost containment activities as required by law. [L 1975, c 159, pt of 2; ree L 1977, c 178, pt of 2; am L 1978, c 129, 2; am L 1980, c 75, 2; am L 1984, c 267, 3]
  323D-12.5 REPEALED. L 1984, c 267, 15.
 323D-12.6 State health planning and development special fund; created; deposits; expenditures; fees. (a) There is established within the state treasury, to be administered by the state health planning and development agency, the state health planning and development special fund into which shall be deposited all moneys collected under chapter 323D.  (b) Moneys in the special fund shall be expended by the state health planning and development agency to assist in offsetting program expenses of the agency.  (c) The agency shall adopt rules in accordance with chapter 91 to establish reasonable fees for the purposes of this chapter. [L 1999, c 120, 2]
  323D-12 Health planning and development functions; state agency. (a) The state agency shall:  (1) Have as a principal function the responsibility for promoting accessibility for all the people of the State to quality health care services at reasonable cost. The state agency shall conduct such studies and investigations as may be necessary as to the causes of health care costs including inflation. The state agency may contract for services to implement this paragraph. The certificate of need program mandated under part V shall serve this function. The state agency shall promote the sharing of facilities or services by health care providers whenever possible to achieve economies and shall restrict unusual or unusually costly services to individual facilities or providers where appropriate;  (2) Serve as staff to and provide technical assistance and advice to the statewide council and the subarea councils in the preparation, review, and revision of the state health services and facilities plan;  (3) Conduct the health planning activities of the State in coordination with the subarea councils, implement the state health services and facilities plan, and determine the statewide health needs of the State after consulting with the statewide council; and  (4) Administer the state certificate of need program pursuant to part V.  (b) The state agency may:  (1) Prepare such reports and recommendations on Hawaii's health care costs and public or private efforts to reduce or control costs and health care quality as it deems necessary. The report may include, but not be limited to, a review of health insurance plans, the availability of various kinds of health insurance and malpractice insurance to consumers, and strategies for increasing competition in the health insurance field.  (2) Prepare and revise as necessary the state health services and facilities plan.  (3) Prepare, review, and revise the annual implementation plan.  (4) Assist the statewide council in the performance of its functions.  (5) Determine the need for new health services proposed to be offered within the State.  (6) Assess existing health care services and facilities to determine whether there are redundant, excessive, or inappropriate services or facilities and make public findings of any that are found to be so. The state agency shall weigh the costs of the health care services or facilities against the benefits the services or facilities provide and there shall be a negative presumption against marginal services.  (7) Provide technical assistance to persons, public or private, in obtaining and filling out the necessary forms for the development of projects and programs.  (8) Prepare reports, studies, and recommendations on emerging health issues, such as medical ethics, health care rationing, involuntary care, care for the indigent, and standards for research and development of biotechnology and genetic engineering.  (9) Conduct such other activities as are necessary to meet the purposes of this chapter. [L 1975, c 159, pt of 2; am L 1976, c 152, 3 and c 219, 3; am L 1977, c 167, 11 and c 178, pt of 2; am L 1980, c 75, 3; am L 1982, c 245,  1, 5; am L 1984, c 267, 4; am L 1987, c 270, 5; am L 1997, c 336, 4]
  323D-13.5 Disqualification from position or membership. The chairpersons of the statewide council, the subarea health planning councils and the review panel, shall not be employed by or married to health care providers. [L 1987, c 270, 10; gen ch 1992]
 323D-13 Statewide health coordinating council. (a) There is established a statewide health coordinating council which shall be advisory to the state agency and the membership of which as appointed by the governor shall not exceed twenty members.  (b) The members of the statewide council shall be appointed by the governor in accordance with section 26-34, provided that a nonvoting, ex officio member who is the representative of the Department of Veterans Affairs shall be designated by the Department of Veterans Affairs. The membership of the statewide council shall be broadly representative of the age, sex, ethnic, income, and other groups that make up the population of the State and shall include representation from the subarea councils, business, labor, and health care providers. A majority but not more than eleven of the members shall be consumers of health care who are not also providers of health care.  (c) The statewide council shall select a chairperson from among its members. The members of the statewide council shall not be compensated but shall be reimbursed for necessary expenses incurred in the performance of their duties.  (d) The number of members necessary to constitute a quorum to do business shall consist of a majority of all members who have accepted nomination to the council, and have been confirmed and qualified as members of the council. When a quorum is in attendance, the concurrence of a majority of the members in attendance shall make any action of the council valid.  (e) No member of the statewide council shall, in the exercise of any function of the statewide council described in section 323D-14(3), vote on any matter before the statewide council respecting any individual or entity with which the member has or, within the twelve months preceding the vote, had any substantial ownership, employment, medical staff, fiduciary, contractual, creditor, or consultative relationship. The statewide council shall require each of its members who has or has had such a relationship with an individual or entity involved in any matter before the statewide council to make a written disclosure of the relationship before any action is taken by the statewide council with respect to the matter in the exercise of any function described in section 323D-14 and to make the relationship public in any meeting in which the action is to be taken. [L 1975, c 159, pt of 2; am L 1976, c 152, 4; am L 1977, c 178, pt of 2; am L 1978, c 129, 3; am L 1980, c 75, 4; am L 1984, c 267, 5; am L 2017, c 12, 1.] Revision Note  In subsection (e), section "323D-14(3)" substituted for "323D-14(5)".
  323D-14 Functions; statewide health coordinating council. The statewide council shall:  (1) Prepare and revise as necessary the state health services and facilities plan;  (2) Advise the state agency on actions under section 323D-12;  (3) Appoint the review panel pursuant to section 323D-42; and  (4) Review and comment upon the following actions by the state agency before such actions are made final:  (A) The making of findings as to applications for certificate of need; and  (B) The making of findings as to the appropriateness of those institutional and noninstitutional health services offered in the State. [L 1975, c 159, pt of 2; am L 1977, c 178, pt of 2; am L 1980, c 75, 5; am L 1982, c 245, 5; am L 1984, c 267, 6; am L 1987, c 270, 6; am L 1997, c 336, 5]
 323D-15 State health services and facilities plan. There shall be a state health services and facilities plan which shall address the health care needs of the State, including inpatient care, health care facilities, and special needs. The plan shall depict the most economical and efficient system of care commensurate with adequate quality of care, and shall include standards for utilization of health care facilities and major medical equipment. The plan shall provide for the reduction or elimination of underutilized, redundant, or inappropriate health care facilities and health care services. [L 1975, c 159, pt of 2; am L 1977, c 178, pt of 2; am L 1980, c 75, 6; am L 1982, c 245, 5; am L 1984, c 267, 7]
  323D-16 REPEALED. L 1997, c 336, 14.
 323D-17 Public hearings required. In the preparation of the state health services and facilities plan or amendments to the state health services and facilities plan, the state agency and the statewide council shall conduct a public hearing on the proposed plan or the amendments and shall comply with the provisions for notice of public hearings in chapters 91 and 92. [L 1975, c 159, pt of 2; ren and am L 1977, c 178, pt of 2; am L 1980, c 75, 7; am L 1982, c 245, 5; am L 1987, c 270, 7]
  323D-18.5 Access to health and dental insurance data; mandatory reporting for certain insurers; uses; confidentiality. (a) Providers of health insurance doing business in the State and who are not subject to subsection (b) may submit to the state agency or its designee, upon request of the state agency, administrative data that the state agency deems necessary to perform its functions.  (b) Providers of health insurance subject to this subsection shall submit administrative data as follows:  (1) Beginning November 1, 2016, providers of health insurance that provide health benefits plans funded by the Hawaii employer-union health benefits trust fund, the state medicaid agency, or both, shall provide to the state agency, or its designee, administrative data required by the state agency to determine health benefits costs, including health care services claims and payment data regarding beneficiaries of health benefits plans funded by the Hawaii employer-union health benefits trust fund, the state medicaid agency, or both; and  (2) Beginning July 1, 2019, providers of health insurance that provide medicare advantage (medicare part C) health benefits plans to residents of the State shall provide to the state agency, or its designee, administrative data required by the state agency, using the same standard format as required by the Centers for Medicare and Medicaid Services to determine health benefits costs, including health care services claims and payment data.  (c) The state agency shall submit data collected pursuant to this section to the college of social sciences, social sciences research institute, Pacific health informatics and data center at the University of Hawaii for processing, assignment of encrypted identifiers, and any other task deemed necessary by the state agency. After July 1, 2018, the state agency may designate another data center to which to submit the data obtained pursuant to this section; provided that the data center is established under and meets the conflict of interest requirements of 42 United States Code section 300gg-94. The state agency may contract with entities for the analysis of data collected under this section and processed by a data center pursuant to this subsection to benefit medicaid and medicare recipients, public employees, and public sector retirees and for other public purposes.  (d) The state agency shall develop and update an annual plan for the analysis, maintenance, and publication of data collected pursuant to this section. The state agency shall seek approval for the annual plan from the director of health, administrator of the MedQuest division of the department of human services, and the chief information officer of the State.  (e) The state agency shall adopt rules, pursuant to chapter 91, for the schedule and frequency with which providers of health insurance shall provide administrative data to the state agency. Administrative rules shall also include provisions relating to data governance, data submission, use and sharing, information security, privacy protection, reporting, and any other matter necessary for the state agency to perform its functions under this section. In adopting administrative rules, the state agency shall consider the measures necessary to implement data submission requirements by providers of health insurance subject to this section, using methods that are reasonable and cost-effective for data submitters.  (f) The state agency or its designee shall not disclose any individual patient's personal health information in violation of state or federal law.  (g) To minimize any risk of data breaches and re-identification of data, the data and information submitted to the state agency shall include only the minimum protected health information identifiers necessary to link public and private data sources and the geographic and services data to undertake studies.  (h) The state agency or its designee, and any recipient of data collected pursuant to this section, shall maintain the original protected health information identifier in a separate database that is not linked with any other data and shall use a proxy or encrypted record identifier for data analysis.  (i) Under no circumstances shall a person attempt to re-identify subjects of protected health information from the data submitted to the state agency or its designee. No person may disclose data that contains direct personal identifiers, including but not limited to name, mailing address, e-mail, telephone number, date of birth, or social security number.  (j) The state agency or its designee may acquire federal medicare data sets specific to Hawaii and made available to states. Any public agency that possesses medicare data sets specific to Hawaii shall share the data with the state agency or its designee at no additional cost to the state agency or its designee.  (k) No later than twenty days prior to the convening of each regular session, the state agency shall submit an annual report to the legislature on the submission, maintenance, and use of data submitted to the state agency pursuant to this section.  (l) For the purposes of this section:  "Administrative data" means:  (1) Statistical and financial reports of information;  (2) Patient invoices or similar patient encounter data;  (3) Records of services used for or resulting from administering delivery of health care, pharmacy benefits, or dental care, including records of services provided under health benefits plans as defined in section 87A-1; and  (4) Any other records as established pursuant to administrative rules adopted pursuant to chapter 91.  "Provider of health insurance" means a group health insurance contract or service agreement that may include medical, hospital, surgical, prescription drug, vision, or dental services, in which a carrier agrees to provide, pay for, arrange for, or reimburse the cost of the services, including third party administrators. [L 1987, c 270, pt of 1; am L 2016, c 139, 2; am L 2019, c 88, 2]
  323D-18.6 Confidentiality of information. The state agency may adopt rules in accordance with chapter 91 to provide that information submitted to the state agency by providers of health care and health care insurance concerning recipients of health care or health care insurance, or both, shall be confidential. [L 1987, c 270, pt of 1]
 323D-18 Information required of providers. Providers of health care doing business in the State shall submit such statistical and other reports of information related to health and health care as the state agency finds necessary to the performance of its functions. The information deemed necessary includes but is not limited to:  (1) Information regarding changes in the class of usage of the bed complement of a health care facility under section 323D-54(9);  (2) Implementation of services under section 323D-54;  (3) Projects that are wholly dedicated to meeting the State's obligations under court orders, including consent decrees, under section 323D-54(10);  (4) Replacement of existing equipment with an updated equivalent under section 323D-54(11);  (5) Primary care clinics under the expenditure thresholds under section 323D-54(12); and  (6) Equipment and services related to that equipment, that are primarily intended for research purposes as opposed to usual and customary diagnostic and therapeutic care. [L 1977, c 178, pt of 2; am L 1997, c 336, 6]
 323D-2 Definitions. As used in this chapter:  "Applicant" means any person who applies for a certificate of need under part V.  "Assisted living facility" means a combination of housing, health care services, and personalized support services designed to respond to individual needs, and to promote choice, responsibility, independence, privacy, dignity, and individuality. In this context, "health care services" means the provision of services in an assisted living facility that assists the resident in achieving and maintaining the highest state of positive well-being (i.e., psychological, social, physical, and spiritual) and functional status. This may include nursing assessment and monitoring, and the delegation of nursing tasks by registered nurses pursuant to chapter 457, care management, monitoring, records management, arranging for, and/or coordinating health and social services.  "Capital expenditure" means any purchase or transfer of money or anything of value or enforceable promise or agreement to purchase or transfer money or anything of value incurred by or in behalf of any person for construction, expansion, alteration, conversion, development, initiation, or modification as defined in this section. The term includes the:  (1) Cost of studies, surveys, designs, plans, working drawings, specifications, and other preliminaries necessary for construction, expansion, alteration, conversion, development, initiation, or modification;  (2) Fair market values of facilities and equipment obtained by donation or lease or comparable arrangements as though the items had been acquired by purchase; and  (3) Fair market values of facilities and equipment transferred for less than fair market value, if a transfer of the facilities or equipment at fair market value would be subject to review under section 323D-43.  "Certificate of need" means an authorization, when required pursuant to section 323D-43, to construct, expand, alter, or convert a health care facility or to initiate, expand, develop, or modify a health care service.  "Construct", "expand", "alter", "convert", "develop", "initiate", or "modify" includes the erection, building, reconstruction, modernization, improvement, purchase, acquisition, or establishment of a health care facility or health care service; the purchase or acquisition of equipment attendant to the delivery of health care service and the instruction or supervision therefor; the arrangement or commitment for financing the offering or development of a health care facility or health care service; any obligation for a capital expenditure by a health care facility; and studies, surveys, designs, plans, working drawings, specifications, procedures, and other actions necessary for any such undertaking, which will:  (1) Result in a total capital expenditure in excess of the expenditure minimum,  (2) Substantially modify, decrease, or increase the scope or type of health service rendered, or  (3) Increase, decrease, or change the class of usage of the bed complement of a health care facility.  "Expenditure minimum" means $4,000,000 for capital expenditures, $1,000,000 for new or replacement medical equipment and $400,000 for used medical equipment.  "Extended care adult residential care home" means an adult residential care home providing twenty-four-hour living accommodation for a fee, for adults unrelated to the licensee. The primary caregiver shall be qualified to provide care to nursing facility level individuals who have been admitted to a medicaid waiver program, or persons who pay for care from private funds and have been certified for this type of facility. There shall be two categories of extended care adult residential care homes, which shall be licensed in accordance with rules adopted by the department of health:  (1) Type I home shall consist of five or less unrelated persons with no more than two extended care adult residential care home residents; and  (2) Type II home shall consist of six or more unrelated persons and one or more persons may be extended care adult residential care home residents.  "Health" includes physical and mental health.  "Health care facility" and "health care service" include any program, institution, place, building, or agency, or portion thereof, private or public, other than federal facilities or services, whether organized for profit or not, used, operated, or designed to provide medical diagnosis, treatment, nursing, rehabilitative, or preventive care to any person or persons. The terms include, but are not limited to, health care facilities and health care services commonly referred to as hospitals, facilities that provide inpatient medical care and other related services for surgery or acute medical conditions or injuries (usually for a short-term illness or condition), extended care and rehabilitation centers, nursing homes, skilled nursing facilities, intermediate care facilities, hospices for the terminally ill that require licensure or certification by the department of health, kidney disease treatment centers including freestanding hemodialysis units, outpatient clinics, organized ambulatory health care facilities, emergency care facilities and centers, home health agencies, health maintenance organizations, and others providing similarly organized services regardless of nomenclature.  "Health care provider" means a health care facility, physician, dentist licensed under chapter 448, chiropractor licensed under chapter 442, optometrist licensed under chapter 459, podiatrist licensed under chapter 463E, psychologist licensed under chapter 465, occupational therapist subject to chapter 457G, and physical therapist licensed under chapter 461J.  "Organized ambulatory health care facility" means a facility not part of a hospital, which is organized and operated to provide health services to outpatients. The state agency may adopt rules to establish further criteria for differentiating between the private practice of medicine and organized ambulatory health care facilities.  "Person" means an individual or a natural person, a trust or estate, a society, a firm, an assembly, a partnership, a corporation, a professional corporation, an association, the State, any political subdivision of the State, a county, a state agency or any instrumentality of the State, a county agency or any instrumentality of a county.  "Physician" means a doctor of medicine or osteopathy who is legally authorized to practice medicine and surgery by the State.  "Primary care clinic" means a clinic for outpatient services providing all preventive and routine health care services, management of chronic diseases, consultation with specialists when necessary, and coordination of care across health care settings or multiple providers or both. Primary care clinic providers include:  (1) General or family practice physicians;  (2) General internal medicine physicians;  (3) Pediatricians;  (4) Obstetricians and gynecologists;  (5) Physician assistants; and  (6) Advanced practice registered nurses.  "Review panel" means the panel established pursuant to section 323D-42.  "State agency" means the state health planning and development agency established in section 323D-11.  "State health services and facilities plan" means the comprehensive plan for the economical delivery of health services in the State prepared by the statewide council.  "Statewide council" means the statewide health coordinating council established in section 323D-13.  "Subarea" means one of the geographic subareas designated by the state agency pursuant to section 323D-21.  "Subarea council" means a subarea health planning council established pursuant to section 323D-21.  "Substantially modify, decrease, or increase the scope or type of health service" refers to the establishment of a new health care facility or health care service or the addition of a clinically related (i.e., diagnostic, curative, or rehabilitative) service not previously provided or the termination of such a service which had previously been provided. [L 1975, c 159, pt of 2; am L 1977, c 178, pt of 2; am L 1980, c 75, 1; am L 1981, c 82, 22; am L 1982, c 245, 5; am L 1984, c 267, 2; am L 1986, c 339, 40; am L 1987, c 270, 4; am L 1997, c 302, 2 and c 336,  1 to 3; am L 2017, c 90, 2]
  323D-21 Subarea health planning councils, established. There are established, subarea health planning councils for geographical areas which shall be designated by the state agency in consultation with the statewide council. Each county shall have at least one subarea health planning council. The subarea health planning councils shall be placed within the state agency for administrative purposes. [L 1977, c 178, pt of 2]
 323D-22 Subarea health planning councils, functions, quorum and number of members necessary to take valid action. (a) Each subarea health planning council shall review, seek public input, and make recommendations relating to health planning for the geographical subarea it serves. In addition, the subarea health planning councils shall:  (1) Identify and recommend to the state agency and the council the data needs and special concerns of the respective subareas with respect to the preparation of the state plan.  (2) Provide specific recommendations to the state agency and the council regarding the highest priorities for health services and resources development.  (3) Review the state health services and facilities plan as it relates to the respective subareas and make recommendations to the state agency and the council.  (4) Advise the state agency in the administration of the certificate of need program for their respective subareas.  (5) Advise the state agency on the cost of reimbursable expenses incurred in the performance of their functions for inclusion in the state agency budget.  (6) Advise the state agency in the performance of its specific functions.  (7) Perform other such functions as agreed upon by the state agency and the respective subarea councils.  (8) Each subarea health planning council shall recommend for gubernatorial appointment at least one person from its membership to be on the statewide council.  (b) The number of members necessary to constitute a quorum to do business shall consist of a majority of all the members who have accepted nomination to the council, and have been confirmed and qualified as members of the council. When a quorum is in attendance, the concurrence of a majority of the members in attendance shall make any action of the council valid. [L 1977, c 178, pt of 2; am L 1978, c 129, 4; am L 1980, c 75, 8; am L 1982, c 245, 5; am L 1987, c 270, 8; am L 1997, c 336, 7]
  323D-23 OLD REPEALED. L 1977, c 178, 3.  323D-23 Subarea health planning councils, composition, appointment. Members of subarea health planning councils shall be appointed by the governor, subject to section 26-34. Nominations for appointment shall be solicited from health-related and other interested organizations, and agencies, including health planning councils, providers of health care within the appropriate subarea, and other interested persons. The members of the subarea health planning councils shall not be compensated for their services but shall be reimbursed for reasonable expenses necessary to the performance of their function. [L 1977, c 178, pt of 2; am L 1980, c 75, 9; am L 1987, c 270, 9] Cross References  Disqualification from position or membership, see 323D-13.5.
   323D-24 to 27 REPEALED. L 1977, c 178, 3.
   323D-31 to 33 REPEALED. L 1980, c 75, 10.
Note Part redesignated by L 1976, c 152, 2.  323D-41 REPEALED. L 1984, c 267, 16.
 323D-42 Review panel. There is established a review panel for the purposes of reviewing applications for certificates of need. The review panel shall be appointed by the statewide council. The review panel shall include at least one member from each county and a majority of the members shall be consumers. Membership on the statewide council shall not preclude membership on the review panel established in this section. [L 1975, c 159, pt of 2; am L 1977, c 178, pt of 2]
 323D-43 Certificates of need. (a) No person, public or private, nonprofit or for profit, shall:  (1) Construct, expand, alter, convert, develop, initiate, or modify a health care facility or health care services in the State that requires a total capital expenditure in excess of the expenditure minimum; or  (2) Substantially modify or increase the scope or type of health service rendered; or  (3) Increase, decrease, or change the class of usage of the bed complement of a health care facility, or relocate beds from one physical facility or site to another, unless a certificate of need therefor has first been issued by the state agency.  (b) No certificate of need shall be issued unless the state agency has determined that:  (1) There is a public need for the facility or the service; and  (2) The cost of the facility or service will not be unreasonable in the light of the benefits it will provide and its impact on health care costs.  (c) The state agency may adopt criteria for certificate of need review which are consistent with this section. Such criteria may include but are not limited to need, cost, quality, accessibility, availability, and acceptability.  Each decision of the state agency to issue a certificate of need shall, except in an emergency situation that poses a threat to public health, be consistent with the state health services and facilities plan in effect under section 323D-15. Each certificate of need issued shall be valid for a period of one year from the date of issuance unless the period is extended for good cause by the state agency and expenditures for the project shall not exceed the maximum amount of the expenditures approved in the certificate of need. [L 1975, c 159, pt of 2; am L 1977, c 178, pt of 2; am L 1980, c 75, 12; am L 1982, c 245, 5; am L 1984, c 267, 9; am L 1987, c 270, 11; am L 1997, c 336, 8]
 323D-44.5 Administrative review of certain applications for certificate of need. The state agency shall adopt rules in conformity with chapter 91 providing for administrative review and decision on certain applications for certificate of need. Each application reviewed under this section may be subject to a public information meeting before the state agency makes its decision. The agency, in the State and in the county affected, shall give public notice of applications for administrative review received by the agency. Interested persons may request in writing a public meeting before the agency renders a decision on the administrative application. If a request for a public meeting is received, the administrator will preside over the meeting. If no request is received by the agency within seven days of the public notice date, no public meeting need be scheduled. Applications subject to administrative review and decision under this section shall include but are not limited to applications that are:  (1) Inconsistent with or contrary to the state health services and facilities plan under section 323D-15;  (2) Determined not to have a significant impact on the health care system; or  (3) Involve capital or annual operating expenses below a significant level. [L 1987, c 270, pt of 2; am L 1989, c 254, 2; am L 1997, c 336, 10; am L 1998, c 2, 86]
  323D-44.6 Review of certain applications for certificate of need; waiver. The subarea council, the review panel, and the statewide council may, at their discretion, choose to waive their respective prerogatives of review of any certificate of need application. [L 1987, c 270, pt of 2]
  323D-44.7 Monitoring of approved certificates of need. The state agency may monitor implementation of approved certificates of need granted by the agency. [L 1987, c 270, pt of 2]
 323D-44 Applications for certificates of need. (a) An applicant for a certificate of need shall file an application with the state agency. The state agency shall provide technical assistance to the applicant in the preparation and filing of the application.  Each application shall include a statement evaluating the facility's or service's probable impact on health care costs and providing additional data as required by rule. The statement shall include cost projections for at least the first and third years after its approval.  The state agency shall not accept an application for review until the application is complete and includes all necessary information required by the state agency. The state agency shall determine if the application is complete within thirty days of receipt of the application. If the state agency determines that the application is incomplete, the state agency shall inform the applicant of the additional information that is required to complete the application. When the state agency determines that the application is complete, the period for agency review described in subsection (b) shall begin, and the state agency shall transmit the completed application to the appropriate subarea councils, the review panel, the statewide council, appropriate individuals, and appropriate public agencies. The state agency may require the applicant to provide copies of the application to the state agency, the appropriate subarea councils, the review panel, the statewide council, appropriate individuals, and appropriate public agencies. If, during the period for agency review, the state agency requires the applicant to submit information respecting the subject of the review, the period for agency review shall, at the request of the applicant, be extended fifteen days.  (b) The state agency shall issue a decision on the application within ninety days after the beginning of the period for agency review, unless the state agency within the ninety days notifies the applicant in writing that the period for agency review has been extended by the state agency sixty days beyond the ninety days. The decision shall be subject to post-decision review procedures which the state agency may provide for by rules adopted in conformity with chapter 91.  (c) The state agency may adopt rules in conformity with chapter 91 for the issuance of certificates of need for those applications for which the procedures in section 323D-45 would be infeasible because of an emergency situation or other unusual circumstances.  (d) Notwithstanding anything to the contrary in subsections (a) and (b), the state agency may adopt rules in conformity with chapter 91 providing that all completed applications pertaining to similar types of services, facilities, or equipment affecting the same health service area shall be considered in relation to each other but no less often than twice a year. [L 1975, c 159, pt of 2; am L 1977, c 178, pt of 2; am L 1980, c 75, 13; am L 1982, c 245, 4; am L 1984, c 267, 10; am L 1997, c 336, 9]
 323D-45.1 Ex parte contacts prohibited. (a) There shall be no ex parte contacts:  (1) In the case of an application for a certificate of need, between the applicant for the certificate of need, any person acting on behalf of the applicant, any person in favor of the application or any person opposed to the issuance of a certificate of need and any person in the state agency who exercises any responsibility respecting the application, after the commencement of the state agency's review of the application and before the state agency makes a decision on the application, on any matter related to or arising out of the application for a certificate of need;  (2) In the case of a proposed withdrawal of a certificate of need, between the holder of the certificate of need, any person acting on behalf of the holder, any person opposed to the withdrawal or any person in favor of the withdrawal and any person in the state agency who exercises any responsibility respecting withdrawal of the certificate of need, after the commencement of state agency proceedings on the proposed withdrawal and before the state agency makes a decision on the proposed withdrawal, on any matter related to or arising out of the proposed withdrawal of the certificate of need; and  (3) In the case of an application for an exemption from obtaining a certificate of need, between the applicant for an exemption, any person acting on behalf of the applicant, any person in favor of the application or any person opposed to the application and any person in the state agency who exercises any responsibility respecting the application, after the commencement of the state agency's review of the application and before the state agency makes a decision on the application, on any matter related to or arising out of the application for an exemption from obtaining a certificate of need.  (b) The prohibition against ex parte contacts shall not apply to any written communication or a copy thereof which is promptly filed as a public record with the state agency. [L 1980, c 75, 15]
  323D-45.2 REPEALED. L 1987, c 270, 15.
 323D-45.3 Approval of applications required to meet safety, licensure, or accreditation standards. (a) Notwithstanding section 323D-43, the state agency shall approve an application for a certificate of need for a capital expenditure which is required:  (1) To eliminate or prevent imminent safety hazards as defined by federal, state, or county fire, building, or life safety codes or regulations, or  (2) To comply with state licensure standards,  (3) To comply with accreditation standards, compliance with which is required to receive reimbursements under Title XVIII of the Social Security Act or payments under a state plan for medical assistance approved under Title XIX of such Act, unless the state agency finds that the facility or service with respect to which the capital expenditure is proposed to be made is not needed or that the obligation of the capital expenditure is not consistent with the state health services and facilities plan in effect under section 323D-15.  (b) An application for a certificate of need approved by the state agency under this section shall be approved only to the extent that the capital expenditure is required to eliminate or prevent the hazards described in paragraph (1) or to comply with the standards described in paragraph (2) or (3). [L 1980, c 75, 17; am L 1982, c 245, 5; am L 1984, c 267, 13]
 323D-45 Subarea council, review panel, and statewide council recommendations for issuance or denial of certificates of need. (a) Except for an administrative review as provided in section 323D-44.5, or in an emergency situation or other unusual circumstances as provided in section 323D-44(c), the state agency shall refer every application for a certificate of need to the appropriate subarea council or councils, the review panel, and the statewide council. The subarea council and the review panel shall consider all relevant data and information submitted by the state agency, subarea councils, other areawide or local bodies, and the applicant, and may request from them additional data and information. The review panel shall consider each application at a public meeting and shall submit its recommendations with findings to the statewide council. The statewide council shall consider the recommendation of the review panel at a public meeting and shall submit its recommendations to the state agency within such time as the state agency prescribes. The statewide council and the review panel may join together to hear or consider simultaneously information related to an application for a certificate of need.  (b) At a public meeting in which a subarea council or the review panel considers an application for a certificate of need, any person shall have the right to be represented by counsel and to present oral or written arguments and evidence relevant to the application; any person directly affected by the application may conduct reasonable questioning of persons who make factual allegations relevant to the application; any staff member of the state agency may conduct reasonable questioning of persons who make factual allegations relevant to the application; and a record of the meeting shall be kept. [L 1975, c 159, pt of 2; am L 1977, c 178, pt of 2; am L 1980, c 75, 14; am L 1984, c 267, 11; am L 1987, c 270, 12]
  323D-46.1 REPEALED. L 1984, c 267, 17.
 323D-46.2 Withdrawal of a certificate of need. (a) After the issuance of a certificate of need, the state agency shall periodically review the progress of the project. The state agency may withdraw the certificate of need, if the state agency determines on the basis of the review that:  (1) The holder of the certificate of need is not meeting the timetable specified in the approved application for the certificate of need and is not making a good faith effort to meet it; or  (2) The project being implemented differs substantially from that which was approved by the state agency.  (b) The state agency may withdraw at any time a certificate of need or an exemption from obtaining a certificate of need, if the state agency determines that the applicant procured the certificate of need or the exemption by fraud, misrepresentation, or corruption, or that the applicant submitted or caused to be submitted to the state agency false statements or information in connection with the application for the certificate of need or the exemption.  (c) The state agency shall adopt rules in conformity with chapter 91 for the withdrawal of certificates of need. [L 1980, c 75, 20]
 323D-46 Conditional certification. The state agency shall provide by rules adopted in conformity with chapter 91 for the conditional certification of those proposals which, by modification of specific items of the proposal, would successfully meet the criteria for approval. The state agency shall establish a time period not to exceed one hundred fifty days from the date of the conditional certification within which the applicant shall certify to the state agency that the required modifications have been made. The state agency shall require a statement from the applicant certifying that the required modifications have been made before a certificate of need is issued. The state agency shall deny any application in which the required modifications have not been made within the time period established by the state agency. [L 1977, c 178, pt of 2; am L 1980, c 75, 18]
 323D-47 Request for reconsideration. The state agency may provide by rules adopted in conformity with chapter 91 for a procedure by which any person may, for good cause shown, request in writing a public hearing before a reconsideration committee for purposes of reconsideration of the agency's decision. The reconsideration committee shall consist of the administrator of the state agency and the chairpersons of the statewide council, the review panel, the plan development committee of the statewide council, and the appropriate subarea health planning council. The administrator shall be the chairperson of the reconsideration committee. A request for a public hearing shall be deemed by the reconsideration committee to have shown good cause, if:  (1) It presents significant, relevant information not previously considered by the state agency;  (2) It demonstrates that there have been significant changes in factors or circumstances relied upon by the state agency in reaching its decision;  (3) It demonstrates that the state agency has materially failed to follow its adopted procedures in reaching its decision;  (4) It provides such other bases for a public hearing as the state agency determines constitutes good causes; or  (5) The decision of the administrator differs from the recommendation of the statewide council. To be effective a request for such a hearing shall be received within ten working days of the state agency decision. A decision of the reconsideration committee following a public hearing under this section shall be considered a decision of the state agency for purposes of section 323D-44. [L 1977, c 178, pt of 2; am L 1987, c 270, 13; am L 1997, c 336, 11] Case Notes  State health planning and development agency administrator was not disqualified from participating in the reconsideration of respondent's certificate of need pursuant to 11-1-25(a)(4), Hawaii administrative rules (HAR), which prohibits a hearings officer from hearing or deciding a contested case in which the hearings officer substantially participated in making the decision or action contested, given that in crafting this section, the legislature clearly intended that the administrator participate in both the initial decision on a certificate of need, and in any reconsideration of that decision. Further, because 11-1-25(a)(4), HAR, conflicts with that intent, it would be invalid if applied in the circumstances of this case, and thus was inapplicable. 130 H. 95, 306 P.3d 140 (2013).
 323D-48 Judicial review of state agency decisions. (a) If an application for a certificate of need or for an exemption from obtaining a certificate of need is denied, the state agency shall give notice to the applicant in writing stating the grounds for the denial. Any person adversely affected by a final decision of the state agency with respect to a certificate of need or an application for an exemption may appeal in the manner provided in chapter 91 to the circuit court of the circuit in which the person resides or in the circuit in which the health care facility or health care service is or was planned to be located.  (b) Any person adversely affected by a final decision of the state agency with respect to the withdrawal of a certificate of need may appeal in the manner provided in chapter 91 to the circuit court of the circuit in which the person resides or in the circuit in which the health care facility or health care service is or was planned to be located. [L 1975, c 159, pt of 2; ren L 1977, c 178, pt of 2; am L 1980, c 75, 21]
 323D-49 Certificates of need; licenses and permits. (a) No permit or license shall be issued by any county or state officer for the development, construction, expansion, alteration, conversion, initiation, or modification of a health care facility or health care service, other than an existing hospital, or for the operation of a new health care facility or health care service unless there is submitted in connection with the application for such permit or license a current certificate of need issued by the state agency or a statement issued by the state agency that the health care facility or health care service is not required to hold a certificate of need under this part.  (b) No building permit shall be issued by any county or state officer for the development, construction, expansion, alteration, conversion, initiation, or modification of an existing hospital unless there is submitted in connection with the application for such building permit a current certificate of need issued by the state agency or a statement issued by the state agency that the existing hospital is not required to hold a certificate of need under this part. [L 1975, c 159, pt of 2; ren and am L 1977, c 178, pt of 2; am L 2004, c 33, 1]
 323D-50 Certificates of need, penalties. (a) Any person who violates any provision of this part, or rules thereunder, with respect to the requirement for certificate of need shall be guilty of a misdemeanor for each seven-day period or fraction thereof that the violation continues. Each subsequent seven-day period shall constitute a separate offense.  (b) Any license to operate a health facility may be revoked or suspended by the department of health at any time in a proceeding before the department for any person proceeding with an action covered under section 323D-43 without a certificate of need. If any such license is revoked or suspended by the department, the holder of the license shall be notified in writing by the department of the revocation or suspension. Any license to operate a health facility that has been revoked under this section shall not be restored except by action of the department.  (c) Any person who violates any provision of this chapter or rules adopted under this chapter, with respect to the agency's requests for reporting, may be subject to an administrative penalty not to exceed $2,000 for each seven-day period or fraction thereof that the violation continues. The administrator of the state agency may impose the administrative penalty specified in this section by order; provided that no penalty shall be assessed unless the person charged shall have been given notice and an opportunity for a hearing pursuant to chapter 91. The administrative penalty contained in the notice of finding of violation shall become a final order unless, within twenty days of receipt of the notice, the person charged makes a written request for a hearing. For any judicial proceeding to recover the administrative penalty imposed, the administrator need only show that notice was given, a hearing was held or the time granted for requesting a hearing has expired without such a request, the administrative penalty was imposed, and that the penalty remains unpaid. [L 1975, c 159, pt of 2; ren and am L 1977, c 178, pt of 2; am L 1997, c 336, 12]
 323D-51 Injunctive relief. The state agency may, in the name of the people of the State through the attorney general of the State, apply for an injunction in any court of competent jurisdiction to enjoin any person who is not the holder of a certificate of need and who is not exempted from obtaining a certificate of need; and, upon the filing of a verified petition in the court, the court or any judge thereof, if satisfied by affidavit or otherwise, that the person is or has been proceeding with an action covered under section 323D-43 without a certificate of need, may issue a temporary injunction, without notice or bond, enjoining the defendant from further action. A copy of the verified complaint shall be served upon the defendant and the proceedings shall thereafter be conducted as in other civil cases. If it is established that the defendant has been or is proceeding with an action covered under section 323D-43 without a certificate of need, the court or any judge thereof may enter a decree enjoining the defendant from further action. In case of violation of any injunction issued under this section, the court may summarily try and punish the offender for contempt of court. The injunction proceeding shall be in addition to, and not in lieu of, all penalties and other remedies provided in this chapter. [L 1977, c 178, pt of 2; am L 1980, c 75, 22]
 323D-52 Letters of intent. Persons proposing construction projects shall submit to the state agency letters of intent in such detail as may be necessary to inform the agency of the scope and nature of the projects at the earliest possible opportunity in the course of planning of such construction projects. [L 1977, c 178, pt of 2]
 323D-53 Periodic reports from health facilities. Any health facility or business subject to regulation under this part shall, at the request of the state agency, supply such information to the state agency as is necessary to carry out the purposes of this chapter, including but not limited to:  (1) Periodic reports from holders of certificates of need respecting the development of the proposals for which certificates have been issued,  (2) Master plans, feasibility studies, and other long-range plans and studies,  (3) Financial information, and  (4) Utilization information. [L 1977, c 178, pt of 2]
 323D-54 Exemptions from certificate of need requirements. Nothing in this part or rules with respect to the requirement for certificates of need applies to:  (1) Offices of physicians, dentists, or other practitioners of the healing arts in private practice as distinguished from organized ambulatory health care facilities, except in any case of purchase or acquisition of equipment attendant to the delivery of health care service and the instruction or supervision for any private office or clinic involving a total expenditure in excess of the expenditure minimum;  (2) Laboratories, as defined in section 321-11(12), except in any case of purchase or acquisition of equipment attendant to the delivery of health care service and the instruction or supervision for any laboratory involving a total expenditure in excess of the expenditure minimum;  (3) Dispensaries and first aid stations located within business or industrial establishments and maintained solely for the use of employees; provided such facilities do not regularly provide inpatient or resident beds for patients or employees on a daily twenty-four-hour basis;  (4) Dispensaries or infirmaries in correctional or educational facilities;  (5) Dwelling establishments, such as hotels, motels, and rooming or boarding houses that do not regularly provide health care facilities or health care services;  (6) Any home or institution conducted only for those who, pursuant to the teachings, faith, or belief of any group, depend for healing upon prayer or other spiritual means;  (7) Dental clinics;  (8) Nonpatient areas of care facilities such as parking garages and administrative offices;  (9) Bed changes that involve ten per cent or ten beds of existing licensed bed types, whichever is less, of a facility's total existing licensed beds within a two-year period;  (10) Projects that are wholly dedicated to meeting the State's obligations under court orders, including consent decrees, that have already determined that need for the projects exists;  (11) Replacement of existing equipment with its modern-day equivalent;  (12) Primary care clinics under the expenditure thresholds referenced in section 323D-2;  (13) Equipment and services related to that equipment, that are primarily invented and used for research purposes as opposed to usual and customary diagnostic and therapeutic care;  (14) Capital expenditures that are required:  (A) To eliminate or prevent imminent safety hazards as defined by federal, state, or county fire, building, or life safety codes or regulations;  (B) To comply with state licensure standards;  (C) To comply with accreditation standards, compliance with which is required to receive reimbursements under Title XVIII of the Social Security Act or payments under a state plan for medical assistance approved under Title XIX of such Act;  (15) Extended care adult residential care homes and assisted living facilities; or  (16) Other facilities or services that the agency through the statewide council chooses to exempt, by rules pursuant to section 323D-62. [L 1975, c 159, pt of 2; ren and am L 1977, c 178, pt of 2; am L 1979, c 150, 1; am L 1980, c 75, 23; am L 1987, c 270, 14; am L 1997, c 302, 3 and c 336, 13] Revision Note  Paragraphs (15) and (16) redesignated pursuant to 23G-15(1).
 323D-55 REPEALED. L 1987, c 270, 16.
Note Part redesignated by L 1976, c 152, 2.  323D-61 Personnel. The administrator of the state agency shall hire necessary personnel under chapter 76 to carry out the purposes of this chapter. [L 1975, c 159, pt of 2; ree L 1977, c 178, pt of 2; am L 2000, c 253, 150]
 323D-62 Rules. The state agency and the statewide health coordinating council may adopt necessary rules for the purposes of this chapter in accordance with chapter 91. [L 1975, c 159, pt of 2; am L 1977, c 178, pt of 2; am L 1980, c 75, 25]
  323D-71 Definitions. For the purpose of this part, unless the context requires otherwise:  "Acquisition" means any acquisition by a person or persons of an ownership or controlling interest in a hospital, whether by purchase, merger, lease, gift, or otherwise, that results in a change of ownership or control of twenty per cent or greater or which results in the acquiring person or persons holding a fifty per cent or greater interest in the ownership or control of that hospital.  "Agency" means the state health planning and development agency.  "Hospital" means an institution with an organized medical staff, regulated under section 321-11(10) which admits patients for inpatient care, diagnosis, observation, and treatment, but does not include a public health facility under chapter 323F.  "Person" has the meaning found in section 323D-2. [L 1998, c 257, pt of 1; am L 2001, c 69, 1]
  323D-72 Acquisition of hospital.  (a) No person shall engage in the acquisition of a hospital without first:  (1) Applying for and receiving the approval of the agency; and  (2) Notifying the attorney general and, if applicable, receiving approval from the attorney general pursuant to this part.  (b) Any person not required to obtain the approval of the agency under this part shall give the attorney general at least ninety days prior notice of an impending acquisition, during which time the attorney general may take any necessary and appropriate action consistent with general duties of oversight with regard to the conduct of charities, if applicable. The notice shall briefly describe the impending acquisition, including any change in ownership of tangible or intangible assets.  (c) The application shall be submitted to the agency and the attorney general on forms provided by the agency and shall include:  (1) The name of the seller, the name of the purchaser, and the names of other parties to an acquisition;  (2) The terms of the proposed agreement;  (3) The sale price;  (4) A copy of the acquisition agreement;  (5) A financial and economic analysis and report from an independent expert or consultant of the effect of the acquisition under the criteria set forth in section 323D-76; and  (6) All other related documents. A copy of the application and copies of all additional related materials shall be submitted to the agency and to the attorney general at the same time. The applications and all related documents shall be considered government records. [L 1998, c 257, pt of 1; am L 2001, c 69, 2]
  323D-73 Notice; procedures. (a) Within five working days after receipt of a complete application under section 323D-72, the agency shall give public notice of the application in the affected county or counties where the hospital is located and shall notify by first-class mail any person who has requested notice of the filing of such applications. The public notice shall state that a completed application has been received, state the names of the parties to the agreement, describe the contents of the application, and state the date by which a person may submit written comments about the application to the agency.  (b) Within ninety days after receiving a complete application, the agency shall review the application in accordance with the standards set forth in this part and approve or disapprove the acquisition.  Within twenty days after receiving a complete application, the attorney general shall determine whether a review of the application in accordance with section 323D-76 is appropriate and notify the applicant if a review is warranted. If the attorney general determines that a review is unnecessary or not appropriate, then none of the other provisions of this part applicable to review by the attorney general shall apply.  (c) For acquisitions which require approval from the agency under this part and a certificate of need, the applicant shall submit a single application for both purposes and the application shall be reviewed under a single unified review process by the agency. Following the single unified review process, the agency shall simultaneously issue its decision regarding the certificate of need and its decision for purposes of the sale of a hospital under this part. [L 1998, c 257, pt of 1]
  323D-74 Hearings. (a) The agency, after consultation with the attorney general, shall, if appropriate, hold a public hearing during the course of review, which hearing may be held jointly with the certificate of need review panel or the statewide health coordinating council, and in which any person may file written comments and exhibits or appear and make a statement. The agency or the attorney general may subpoena additional information or witnesses, require and administer oaths, require sworn statements, take depositions, and use related discovery procedures for purposes of the hearing and at any time prior to making a decision on the application.  (b) The hearing shall be held no later than sixty days after receipt of a complete application. The hearing shall be held upon ten working days notice, not including days the application is deemed to be incomplete. [L 1998, c 257, pt of 1]
  323D-75 Review; decision; rules. (a) The attorney general shall conduct its review of the application in accordance with the standards enumerated in section 323D-76. Within ninety days after receipt of an application, the attorney general shall review and approve or disapprove the acquisition.  (b) If the attorney general does not act within ninety days after receipt of an application, the application shall be deemed approved. If the attorney general approves or disapproves the acquisition, the applicant, or any person who has submitted comments and has a legal interest in the hospital being acquired or in another hospital that has contracted with the acquired hospital for the provision of essential health services, may bring an action for declaratory judgment for a determination that the acquisition is or is not in the public interest under the criteria set forth in section 323D-76.  (c) The agency shall review the completed application in accordance with the standards enumerated in section 323D-77. Within ninety days after receipt of a completed application, the agency shall:  (1) Approve the acquisition, with or without any specific modifications; or  (2) Disapprove the acquisition. The agency shall not make its decision subject to any condition not directly related to criteria enumerated in section 323D-77, and any condition or modification shall bear a direct and rational relationship to the application under review.  (d) Any affected person may appeal a final decision by the agency to the reconsideration committee created under section 323D-47 under procedures substantially similar to those for appeals of health care certificate of need decisions. The reconsideration committee shall have the same powers and duties with respect to appeals under this part as exist for appeals to the reconsideration committee regarding issuance of certificates of need. The findings, conclusions, and decisions of the reconsideration committee shall constitute the determination of the agency. The agency, the applicant, or any affected person who has intervened in the matter before the reconsideration committee may seek judicial review of any agency determination.  (e) If both the agency and the attorney general review the application, it shall not be granted unless it is approved by both. [L 1998, c 257, pt of 1]
  323D-76 Acquisition in the public interest; decision of attorney general. If the attorney general determines that a review of the application is appropriate, the attorney general shall approve the application unless the attorney general finds that the acquisition is not in the public interest. An acquisition of a private nonprofit hospital is not in the public interest unless appropriate steps have been taken to safeguard the value of charitable assets and ensure that any proceeds of the transaction are used for appropriate charitable health care purposes as provided in paragraph (8). In determining whether the acquisition meets such criteria, the attorney general shall consider, as applicable:  (1) Whether the acquisition is permitted under chapter 414D governing nonprofit entities, trusts, or charities;  (2) Whether the hospital acted in a duly diligent manner in deciding to sell, selecting the purchaser, and negotiating the terms and conditions of the sale;  (3) The procedures used by the seller in making its decision, including whether appropriate expert assistance was used;  (4) Whether all conflicts of interest were disclosed, including, but not limited to, conflicts of interest related to board members of, executives of, and experts retained by the seller, purchaser, or parties to the acquisition;  (5) Whether the seller will receive reasonably fair value for its assets. The attorney general may employ, at the seller's expense, reasonably necessary expert assistance in making this determination;  (6) Whether charitable funds are placed at unreasonable risk, if the acquisition is financed in part by the seller;  (7) Whether any management contract under the acquisition is for reasonably fair value;  (8) Whether the sale proceeds will be used for appropriate charitable health care purposes consistent with the seller's original purpose or for the support and promotion of health care in the affected community, and will be controlled as charitable funds independent of the purchaser or parties to the acquisition; and  (9) Whether a right of first refusal to repurchase the assets by a successor nonprofit corporation or foundation has been retained, if the hospital is subsequently sold to, acquired by, or merged with another entity. [L 1998, c 257, pt of 1; am L 2002, c 40, 10]
  323D-77 Acquisition; decision by agency. In making a decision whether to approve or disapprove an application, the agency shall consider:  (1) Whether sufficient safeguards are included to ensure that the affected community has continued access to affordable care;  (2) Whether the purchaser and parties to the acquisition have made a commitment to provide health care to the disadvantaged, uninsured, and underinsured, and to provide benefits to the affected community to promote improved health care. Current and prior health care activities and funding for those activities by the seller or its successor nonprofit corporation or foundation may be considered in evaluating compliance with this commitment;  (3) If health care providers will be offered the opportunity to invest or own an interest in the purchaser or a related entity to the purchaser; and  (4) Whether procedures or safeguards are in place to avoid conflict of interest in patient referral and the nature of those procedures or safeguards.  This section does not apply higher standards to hospitals covered by this part than those applicable to hospitals not covered by this part. [L 1998, c 257, pt of 1]
  323D-78 Revocation; hearing. If the agency receives information indicating that the acquiring person is not fulfilling the commitment to the affected community under section 323D-77, the agency shall hold a hearing upon ten days notice to the affected parties. If after the hearing the agency determines that the information is true, the department may institute proceedings to revoke the license issued to the purchaser. [L 1998, c 257, pt of 1]
  323D-79 Public interest. The attorney general shall have the authority to ensure compliance with commitments made pursuant to section 323D-77. [L 1998, c 257, pt of 1]
  323D-80 License renewal. No license to operate a hospital may be issued or renewed by the department of health pursuant to this chapter, and a license which has been issued shall be subject to revocation or suspension, if:  (1) There is an acquisition of a hospital without first having received the approval of the agency under this part;  (2) There is an acquisition of a hospital without the approval of the attorney general, if the attorney general determines that a review of the application is appropriate under this part;  (3) There is an acquisition of a hospital and the attorney general disapproves the acquisition and there is a judicial determination that the acquisition is not in the public interest; or  (4) The hospital is not fulfilling its commitment under section 323D-77 or is not following procedures or safeguards required under section 323D-77(4).  This section does not limit the right to a hearing or the right of appeal for a hospital from such decision. [L 1998, c 257, pt of 1]
  323D-81 Prior acquisitions. Any acquisition of a hospital before July 20, 1998 and any acquisition in which an application for a certificate of need has been granted by the agency before July 20, 1998 is not subject to this part. [L 1998, c 257, pt of 1] Revision Note  "July 20, 1998" substituted for "the effective date of this part".
  323D-82 Maintenance of services. A person who has acquired or is engaged in the acquisition of a hospital shall not substantially reduce or eliminate direct patient care services at the hospital below the levels at which those services were available at the time of the acquisition, without first giving written notice of the planned reduction or elimination to the agency and receiving the agency's approval, prior to implementing the reduction or elimination of services. [L 1998, c 257, pt of 1; am L 1999, c 18, 6]
  323D-83 Statutory authority. No provision of this part shall derogate from the common law or statutory authority of the attorney general. [L 1998, c 257, pt of 1]
  323F-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Consumer" means any individual who may utilize a Hawaii health systems facility for health services and is not a provider.  "Corporation" means the body corporate and politic known as the Hawaii health systems corporation.  "Corporation board" means the board of directors of the corporation.  "Department" means the department of health.  "Director" means the director of health.  "Division" means the programs, services, and facilities operated by the department of health, division of community hospitals, prior to the transfer date.  "Health facility" means any one of the facilities that constitute the division of community hospitals.  "Health systems assets" means all property or rights in property, real, personal and mixed, tangible or intangible, existing on the transfer date, used by or accruing to the division in the normal course of its operations.  "Provider" means any supplier of medical or health care goods and services of the type provided at a Hawaii health systems facility.  "Regional system board" means a community-based governing board of directors of a regional system of the corporation.  "Transfer date" means a date agreed to by the department and the corporation for the transfer of health systems assets to and the assumption of health systems liabilities, which includes without limitation, all debts or other obligations, contingent or certain, owing on such date, by the corporation. [L 1996, c 262, pt of 2; am L 2007, c 290, 17]
  323F-10.5 Executive public health facility management advisory committee; establishment. (a) There is established within the corporation an executive public health facility management advisory committee to consist of the chairpersons of each of the five regional public health facility management advisory committees. The executive committee shall, through its chairperson, represent the interests of all regional committees on the corporation board.  (b) The executive committee shall select its own chairperson to serve on the corporation board and shall adopt rules governing the terms of office and removal from the corporation board. The executive committee shall also adopt rules governing the terms of office for each of the five regional committee chairpersons. The executive committee may also adopt other rules as it may consider necessary for the conduct of its business.  (c) The members of the executive committee shall serve without compensation, but shall be reimbursed for reasonable expenses incurred in the performance of their duties.  (d) Upon the establishment of a regional system board for a regional system pursuant to section 323F-3.5, this section shall no longer apply to that regional system. [L 1998, c 229, pt of 1; am L 2007, c 290, 27]
  323F-10.6 Peer review and credentialing. Peer review activities shall be subject to chapters 663 and 671D and all other provisions and restrictions of medical peer review committees established by state law. [L 1998, c 229, pt of 1; am L 2007, c 290, 28]
 323F-10 Regional public health facility management advisory committees. (a) On the transfer date, there shall be established within the corporation for each region, a public health facility management advisory committee to consist of nine members initially to be appointed by the chief executive officer of the corporation with the advice of the hospital administrators of the facilities in the affected regions. The members shall serve for a term of four years; provided that upon the initial appointment of the members, two shall be appointed for a term of one year, two for a term of two years, two for a term of three years, and three for a term of four years.  Following the initial appointments by the chief executive officer of the corporation board, any vacancies on a regional committee shall be filled by a simple majority vote of the members of the executive committee from a list of qualified nominees submitted by the regional committee in which the vacancy occurred. If a regional committee vacancy remains unfilled for more than thirty days, that vacancy may be filled by the chief executive officer of the corporation.  Each regional management advisory committee shall include medical and health care providers, consumers, and knowledgeable individuals in other appropriate areas such as business and law; provided that at least one member shall be a physician with active medical staff privileges at one of the region's public health facilities. At least three members of the committee shall be consumers.  The management advisory committee for the East Hawaii region shall have three members who reside in the Ka  u district, three members who reside in the Hamakua/North Hilo districts, and three members who reside in the South Hilo/Puna districts. The management advisory committee for the West Hawaii region shall have not less than three members who reside in the North Kohala/South Kohala districts.  Each regional committee shall select its own chairperson and vice chairperson and shall adopt rules governing the terms for removal of its chairperson from the executive management advisory committee. In the event of a regional committee voting to remove its chairperson who concurrently sits on the corporation board, that vote shall be unanimous. In the event of a regional committee voting to remove its physician member from the corporation board, that vote shall also be unanimous. Each regional committee may also adopt other rules as it may consider necessary for the conduct of its business.  The members of the regional committees shall serve without compensation, but shall be reimbursed for traveling expenses incurred in the performance of their duties. The corporation shall provide for the necessary expenses of the committees; provided that no expenses may be incurred without prior authorization by the chief executive officer.  (b) Each regional committee shall sit in an advisory capacity to the chief executive officer on matters concerning the formulation of regional operational and capital improvement budgets, and the planning, construction, improvement, maintenance, and operation of public health facilities within its respective jurisdiction and shall sit in an advisory capacity to the governor on matters concerning the nominees for positions on the corporation board. Nothing in this section shall be construed as precluding or preventing the committees from coordinating their efforts and activities with the facility administrators within their counties.  (c) Each regional committee may prepare a report for inclusion with the corporation's annual report and audit, which shall include but not be limited to comments and analyses on the corporation's regional operational and capital improvement budgets for its respective region.  (d) Upon the establishment of a regional system board for a regional system pursuant to section 323F-3.5, this section shall no longer apply to that regional system. [L 1996, c 262, pt of 2; am L 1998, c 229, 8; am L 2007, c 290, 26]
  323F-11 Executive branch; noninterference. Notwithstanding any other law to the contrary, the governor and executive branch agencies shall limit their responsibilities to that of review and oversight when the corporation or regional system board receives general funds from the State to subsidize the operating budgets of deficit facilities. The governor and executive branch agencies shall not interfere with the systemic change, capacity building, advocacy, budget, personnel, system plan development, or plan implementation activities of the corporation or any regional system board. The governor and executive branch agencies shall not interfere with the ability of the corporation or regional system board to function as a multiple facility public hospital system delivering health care services to the residents of the State. [L 1996, c 262, pt of 2; am L 2007, c 290, 29]
  323F-12 Public-private partnership. (a) There is established within the corporation for administrative purposes only a public-private partnership in a county that encompasses at least three islands inhabited by permanent residents, to research, develop, and implement a model of health care delivery that addresses the coordination of care across the spectrum of care from acute, to skilled nursing facility, to home, in a manner that is seamless, efficient, appropriate, and cost-effective.  (b) The public-private partnership shall:  (1) Work to resolve the challenges in the post-acute care environment;  (2) Expand inpatient capacity;  (3) Improve access to and quality of health care; and  (4) Enhance the operational and financial viability of public and private health care providers at all levels of care.  (c) The public-private partnership shall be mutually beneficial to stakeholders and consumers and shall be based upon the following:  (1) Short-term goals:  (A) Provide a mechanism to move waitlisted patients to an appropriate long-term care setting;  (B) Provide appropriate financial support to allow for the movement of patients along the continuum of care, regardless of the ability to pay;  (C) Maintain the financial viability of skilled nursing facilities by providing adequate funding from all sources; and  (D) Maintain the financial viability of full-service acute care facilities by reducing the number of waitlisted patients.  (2) Long-term goals:  (A) Improve the continuity of care and efficiency between providers;  (B) Enhance the quality of patient care;  (C) Create a patient-centered health care infrastructure;  (D) Maximize capacity and increase operational and financial viability among network organizations;  (E) Optimize existing resources to maximize return;  (F) Facilitate the transition of care between different levels of care;  (G) Reduce unnecessary transfers of patients and attract medically appropriate transfers from neighboring islands;  (H) Create reimbursement mechanisms that support integrated efforts;  (I) Reduce unnecessary health care use and prevent unnecessary hospitalizations and readmissions; and  (J) Expand access to specialty services to counties that encompass at least three islands inhabited by permanent residents. [L 2012, c 279, 2]
  323F-2 Hawaii health systems corporation.  (a) There is established the Hawaii health systems corporation, which shall be a public body corporate and politic and an instrumentality and agency of the State. The corporation shall be placed within the department of health for the administrative purposes specified in section 26-35(a)(6) only.  (b) [Subsection effective until December 30, 2022. For subsection effective December 31, 2022, see below.] The corporate organization shall be divided into five regional systems, as follows:  (1) The Oahu regional health care system;  (2) The Kauai regional health care system;  (3) The Maui regional health care system;  (4) The east Hawaii regional health care system, comprising the Puna district, north Hilo district, south Hilo district, Hamakua district, and Kau district; and  (5) The west Hawaii regional health care system, comprising the north Kohala district, south Kohala district, north Kona district, and south Kona district; and shall be identified as regional systems I, II, III, IV, and V, respectively.  (b) [Subsection effective December 31, 2022. For subsection effective until December 30, 2022, see above.] The corporate organization shall be divided into four regional systems, as follows:  (1) The Kauai regional health care system;  (2) The Maui regional health care system;  (3) The east Hawaii regional health care system, comprising the Puna district, north Hilo district, south Hilo district, Hamakua district, and Kau district; and  (4) The west Hawaii regional health care system, comprising the north Kohala district, south Kohala district, north Kona district, and south Kona district; and shall be identified as regional systems I, II, III, and IV, respectively. [L 1996, c 262, pt of 2; am L 2004, c 16, 5; am L 2007, c 290, 18; am L 2021, c 212, 2]
  323F-21 Fiscal provisions. (a) There is created in the state treasury a special fund to be known as the health systems special fund, into which shall be deposited all fees, proceeds, reimbursements, and the like owed to or received by the corporation, any regional system board, and its facilities, except as herein provided. There shall be established within the special fund regional subaccounts for each regional system board upon its establishment. The special fund and the regional subaccounts shall be used solely to fulfill the purposes outlined in this chapter.  The corporation and each regional system board may establish and maintain, within the health systems special fund or any regional subaccount, any other accounts that may be necessary and appropriate to carry out its purposes and responsibilities.  The corporation and any regional system board may deposit moneys into trustee accounts for the purposes of securing or issuing bonds.  The corporation and regional system boards may provide reasonable reserves for any of the following purposes:  (1) Insurance deductibles;  (2) The improvement, replacement, or expansion of their facilities or services;  (3) The securing of the corporation's or regional system boards' bonds, notes, or other instruments of indebtedness; or  (4) Any other purpose the corporation or the regional system boards deem necessary or appropriate in the performance of their purposes and responsibilities.  (b) The corporation board and regional system boards shall collaboratively develop budgetary guidelines and annual operating and capital budgets for each facility, taking into account anticipated surpluses from or subsidies to the facilities pursuant to the annual guidelines described in this section, accumulated corporation and regional reserves and accounts, subsidies, if any, that are determined to be needed from the general fund, and other sources of corporation-wide and regional income as may be identified. Two-year budgets will be approved for regional system boards, in alignment with State of Hawaii biennium budgeting. The corporate board shall not alter the two-year budget of a regional system except:  (1) Where state general funding is reduced;  (2) An emergency exists; or  (3) There is a renegotiated budget approved by a regional system board. The corporation and regional system boards shall collaboratively develop budgetary guidelines and negotiate with each facility reasonable corporation administrative costs, including funds determined by the corporation or any regional system board to be needed from or provided to each facility to:  (1) Repay corporation or regional system board debts;  (2) Provide subsidies to any facility determined to be unable to fund from within that facility's programs and services deemed essential to community needs; and  (3) Maintain appropriate reserves.  (c) The corporation and regional system boards shall collaboratively develop annual corporation operating and capital budgets, taking into account anticipated surpluses from or subsidies to the facilities pursuant to the annual guidelines described in this section, accumulated corporation and regional system board reserves and accounts, subsidies, if any, that are determined to be needed from the general fund, and other sources of corporation-wide and regional system board income as may be identified.  (d) Beginning with the first of the legislative biennium budget years following the establishment of a regional system board, and for each biennium period thereafter, the corporation shall call together all the regional systems through representatives selected by each regional system board, and the chairs of the facility management advisory committees, if any, to determine which services and functions should be provided by the corporation for the next biennium budget period, consistent with this chapter. As part of the biennium budgeting process, the corporation board and the representatives of each regional system, working through the corporation board regional representatives, shall agree upon an allocation methodology for funding the agreed upon and statutorily created corporate services and functions.  (e) The corporation may share in any facility's surplus and may offset any facility's deficits as provided herein. Any regional system board shall share in the surplus of any facility within the regional system and shall offset any facility deficits within its regional system. Operating surpluses of the regional system board shall be reinvested in the operations of that regional system in any prudent manner; provided that upon request, and subject to authorization by the regional system board, the regional system board may share its surplus or resources with a facility outside of the regional system to benefit the corporation-wide system of health care. Obligations undertaken by a facility shall be paid only from funds of that facility, unless the corporation board, the regional system board managing the facility, or an authorized agent explicitly agrees to guarantee the obligation. Loans and other transfers may be made between regional systems upon approval of the affected regional system boards to assist in the cash flow and operations of the public health facilities.  (f) In accordance with each annual facility budget, and subject to policies established by the corporation board and by each regional system board, each facility of the corporation and regional system board, respectively, shall:  (1) Bill and collect for its services;  (2) Maintain bank accounts; and  (3) Pay for needed personnel, supplies, equipment, and other operational and capital expenditures.  (g) The corporation and each regional system board, subject to policies established by the corporation and each regional system board, respectively, may elect to manage its own capital improvement project and funds, either directly or indirectly by contract; provided that annual reports of the project moneys are provided to the governor and legislature.  (h) The corporation board and regional system boards may hold public informational meetings on their budgets. Representatives of any county government, state government, or any other person having an interest in the budget, shall have the right to be heard at the meetings. [L 1996, c 262, pt of 2; am L 2007, c 290, 30]
  323F-22 Annual audit and report; disclosure of revenue projections; internal performance audit. (a) The corporation shall engage a certified public accountant to conduct an annual audit of its financial affairs, books, and records in accordance with generally accepted accounting principles. The corporation, in consultation with a regional system board, may permit or require a regional system board to retain an audit firm to conduct an independent audit of the regional system. Each regional system board shall submit the results of the annual audit to the corporation board within one hundred twenty days after the close of the regional system board's fiscal year. The corporation shall submit to the governor and the legislature, within one hundred fifty days after the close of the corporation's fiscal year, a report that shall include the audited financial report for that fiscal year for the corporation and each regional system board.  (b) In addition to the submittal of the audit required under subsection (a), the corporation, in cooperation with the regional system boards, shall submit a report to the legislature at least twenty days prior to the convening of each regular session that shall include but not be limited to:  (1) The projected revenues for each health care facility;  (2) A list of all proposed capital improvement projects planned for implementation during the following fiscal year; and  (3) All reports submitted by regional public health facility management advisory committees pursuant to section 323F-10(c).  (c) The regional system boards shall prepare a report for inclusion with the corporation's annual report and audit.  (d) There shall be an annual internal audit of the management and operations of the corporation and regions. The corporation, in cooperation with the regional system boards, shall submit a report to the legislature at least twenty days prior to the convening of each regular session on the results of the annual internal audit of the management and operations of the corporation and regions. [L 1996, c 262, pt of 2; am L 2007, c 290, 31; am L 2009, c 182, 15]
  323F-23 Exemption from taxation. The corporation and each regional system board shall be exempt from paying any:  (1) Assessments levied by any county; and  (2) State taxes of any kind. [L 1996, c 262, pt of 2; am L 2007, c 290, 32]
  323F-24 Budget oversight. The corporation's and each regional system board's operating and capital improvement budgets shall not be subject to review or approval by the governor or any state agency, except where state general funds or capital improvement moneys are requested. If general funds or capital improvement moneys are requested, then the corporation or any regional system board shall include, with its request, the proposed budget for which the funds or moneys are to be included. The corporation and regional system boards, once operational, shall collaboratively submit their budgets annually to the legislature for review and approval at least twenty days prior to the convening of the regular legislative session, beginning with the budgets for the 2010-2011 biennium fiscal years. [L 1996, c 262, pt of 2; am L 2007, c 290, 33]
  323F-25 Regional system board; community hospitals; community health centers; collaboration. Each regional system board and each community hospital under the jurisdiction of the corporation shall collaborate with community health centers within their respective geographic jurisdictions to maximize funding from the state and federal governments to:  (1) Maximize reimbursement for health care services provided;  (2) Acquire funds for capital investment;  (3) Provide expanded hours of service; and  (4) Ensure the provision of the appropriate level of care to the community served by each community health center. [L 2009, c 182, pt of 8]
  323F-3.5 Regional system boards. (a) There is hereby established a regional system board of directors to govern each of the five regional systems specified in section 323F-2, no later than January 1, 2008. The regional system boards of directors shall carry out the duties and responsibilities as set forth in this chapter and as further delegated by the corporation.  (b) Upon its establishment, a regional system board shall assume custodial care of all financial assets, real property, including land, structures, and fixtures, or other physical assets, such as personal property, including furnishings, equipment, and inventory, of the corporation within its regional system. No sale or encumbrance of any such real property or such other financial assets, physical assets of the corporation shall be permitted without the mutual consent of the Hawaii health systems corporation board and the appropriate regional system board. No additional debts or liabilities or superior debts shall be added by the corporation to any regional system board that would negatively impact the holders of bond notes. Each regional system board shall be liable for any liabilities arising from financial assets, real or personal property in its custodial care.  (c) Each regional system shall be governed by a regional system board of directors to consist of not less than seven members and not more than fifteen members, as determined by the regional system board after the initial regional system board is established.  (1) Each regional system board shall initially consist of twelve members to be appointed by the governor under section 26-34 or as provided in this section, as follows:  (A) Four members shall be appointed by the governor within thirty days of receipt of a qualified list of candidates as follows:  (i) Two members shall be chosen from a list of four individuals submitted by the speaker of the house of representatives within fifteen days of July 1, 2007; provided that this list shall not include physicians; and  (ii) Two members shall be chosen from a list of four individuals submitted by the president of the senate within fifteen days of July 1, 2007; provided that this list shall not include physicians;  (B) Four members shall be appointed by the governor within thirty days from a list of eight individuals nominated by the regional public health facility management advisory committee within fifteen days of July 1, 2007. These individuals may be medical and health care providers and professionals, consumers, and knowledgeable individuals in other appropriate areas such as business, finance, and law; provided that these individuals shall not be physicians currently in active practice;  (C) Three physicians shall be appointed by the governor within thirty days from a list submitted within fifteen days of July 1, 2007, of six physicians nominated by a majority vote of the medical staff of the public health facilities in the regional system present at a duly noticed meeting from a list of qualified candidates submitted by the medical executive committees in the regional system; and  (D) The corporation board chairperson or chairperson's designee shall serve as an ex officio, nonvoting member of each regional system board;  (2) One member of each regional system board nominated by the speaker of the house of representatives, the president of the senate, and medical executive committees in a regional system shall be appointed for a term of two years;  (3) One member of each initial regional system board nominated by the regional public health facility management advisory committee for the regional system shall be appointed for a term of two years;  (4) The remaining members of each initial regional system board and all members appointed thereafter shall be appointed for terms of three years; and  (5) New regional system board members appointed to any regional system board after the initial regional system board shall be selected by a two-thirds affirmative vote of the existing regional system board members. Except for the ex officio members of each regional system board, all other members of a regional system board shall be residents of the region. Each regional system board shall elect its own chair.  (d) Each regional system board shall:  (1) Be responsible for local governance, operations, and administration of the delivery of services in its respective regional system as set forth in this chapter and as further delegated by the corporation;  (2) Include medical and health care providers and professionals, consumers, and knowledgeable individuals in other appropriate areas, such as business, finance, and law; provided that no more than three members of the regional system board shall be physicians;  (3) Be as balanced and representative of the community stakeholders as possible; and  (4) Have the powers, duties, and responsibilities that are specific to the regional system board as provided in this chapter.  (e) Any member of a regional system board may be removed for cause by the governor or for cause by vote of a two-thirds majority of the regional system board's voting members then in office. For purposes of this section, "cause" shall include without limitation:  (1) Malfeasance in office;  (2) Persistent failure to attend regularly called meetings;  (3) Sentencing for conviction of a felony, to the extent allowed by section 831-3.1; or  (4) Any other cause that may render a member incapable of discharging or unfit to discharge the duties required under this chapter. [L 2007, c 290, pt of 2; am L 2009, c 182, 10] Revision Note  "July 1, 2007" substituted for "the effective date of this Act".
 323F-3 Corporation board. [Section effective until December 30, 2022. For section effective December 31, 2022, see below.] (a) The corporation shall be governed by an eighteen-member board of directors that shall carry out the duties and responsibilities of the corporation other than those duties and responsibilities relating to the establishment of any captive insurance company pursuant to section 323F-7(c)(20) and the operation thereof.  (b) The members of the corporation board shall be appointed as follows:  (1) The director of health as an ex officio, voting member;  (2) The five regional chief executive officers as ex officio, nonvoting members;  (3) Three members who reside in the county of Maui, two of whom shall be appointed by the Maui regional system board and one of whom shall be appointed by the governor, all of whom shall serve as voting members;  (4) Two members who reside in the eastern section of the county of Hawaii, one of whom shall be appointed by the East Hawaii regional system board and one of whom shall be appointed by the governor, both of whom shall serve as voting members;  (5) Two members who reside in the western section of the county of Hawaii, one of whom shall be appointed by the West Hawaii regional system board and one of whom shall be appointed by the governor, both of whom shall serve as voting members;  (6) Two members who reside on the island of Kauai, one of whom shall be appointed by the Kauai regional system board and one of whom shall be appointed by the governor, both of whom shall serve as voting members;  (7) Two members who reside on the island of Oahu, one of whom shall be appointed by the Oahu regional system board and one of whom shall be appointed by the governor, both of whom shall serve as voting members; and  (8) One member who shall be appointed by the governor and serve as an at-large voting member.  The appointed board members who reside in the county of Maui, eastern section of the county of Hawaii, western section of the county of Hawaii, on the island of Kauai, and on the island of Oahu shall each serve for a term of four years; provided that the terms of the initial appointments of the members who are appointed by their respective regional system boards shall be as follows: one of the initial members from the county of Maui shall be appointed to serve a term of two years and the other member shall be appointed to serve a term of four years; the initial member from East Hawaii shall be appointed to serve a term of two years; the initial member from West Hawaii shall be appointed to serve a term of four years; the initial member from the island of Kauai shall be appointed to serve a term of two years; and the initial member from the island of Oahu shall be appointed to serve a term of four years; and provided further that the terms of the initial appointments of the members who are appointed by the governor shall be four years. The at-large member appointed by the governor shall serve a term of two years.  Any vacancy shall be filled in the same manner provided for the original appointments. The corporation board shall elect its own chair from among its members. Appointments to the corporation board shall be as representative as possible of the system's stakeholders as outlined in this subsection. The board member appointments shall strive to create a board that includes expertise in the fields of medicine, finance, health care administration, government affairs, human resources, and law.  (c) The selection, appointment, and confirmation of any nominee shall be based on ensuring that board members have diverse and beneficial perspectives and experiences and that they include, to the extent possible, representatives of the medical, business, management, law, finance, and health sectors, and patients or consumers. Members of the board shall serve without compensation but may be reimbursed for actual expenses, including travel expenses incurred in the performance of their duties.  (d) Any member of the board may be removed for cause by vote of a two-thirds majority of the board's members then in office. For purposes of this section, cause shall include without limitation:  (1) Malfeasance in office;  (2) Failure to attend regularly called meetings;  (3) Sentencing for conviction of a felony, to the extent allowed by section 831-2; or  (4) Any other cause that may render a member incapable or unfit to discharge the duties required under this chapter. Filing nomination papers for elective office or appointment to elective office, or conviction of a felony consistent with section 831-3.1, shall automatically and immediately disqualify a board member from office. L 1996, c 262, pt of 2; am L 1997, c 265, 1; am L 1998, c 229, 4; am L 2007, c 278, 3 and c 290, 19; am L 2009, c 182, 9; am L 2011, c 126, 2; am L 2013, c 278, 2  323F-3 Corporation board. [Section effective December 31, 2022. For section effective until December 30, 2022, see above.] (a) The corporation shall be governed by a fifteen-member board of directors that shall carry out the duties and responsibilities of the corporation other than those duties and responsibilities relating to the establishment of any captive insurance company pursuant to section 323F-7(c)(20) and the operation thereof.  (b) The members of the corporation board shall be appointed as follows:  (1) The director of health as an ex officio, voting member;  (2) The four regional chief executive officers as ex officio, nonvoting members;  (3) Three members who reside in the county of Maui, two of whom shall be appointed by the Maui regional system board and one of whom shall be appointed by the governor, all of whom shall serve as voting members;  (4) Two members who reside in the eastern section of the county of Hawaii, one of whom shall be appointed by the East Hawaii regional system board and one of whom shall be appointed by the governor, both of whom shall serve as voting members;  (5) Two members who reside in the western section of the county of Hawaii, one of whom shall be appointed by the West Hawaii regional system board and one of whom shall be appointed by the governor, both of whom shall serve as voting members;  (6) Two members who reside on the island of Kauai, one of whom shall be appointed by the Kauai regional system board and one of whom shall be appointed by the governor, both of whom shall serve as voting members; and  (7) One member who shall be appointed by the governor and serve as an at-large voting member.  The appointed board members who reside in the county of Maui, eastern section of the county of Hawaii, western section of the county of Hawaii, and on the island of Kauai shall each serve for a term of four years; provided that the terms of the initial appointments of the members who are appointed by their respective regional system boards shall be as follows: one of the initial members from the county of Maui shall be appointed to serve a term of two years and the other member shall be appointed to serve a term of four years; the initial member from East Hawaii shall be appointed to serve a term of two years; the initial member from West Hawaii shall be appointed to serve a term of four years; and the initial member from the island of Kauai shall be appointed to serve a term of two years; and provided further that the terms of the initial appointments of the members who are appointed by the governor shall be four years. The at-large member appointed by the governor shall serve a term of two years.  Any vacancy shall be filled in the same manner provided for the original appointments. The corporation board shall elect its own chair from among its members. Appointments to the corporation board shall be as representative as possible of the system's stakeholders as outlined in this subsection. The board member appointments shall strive to create a board that includes expertise in the fields of medicine, finance, health care administration, government affairs, human resources, and law.  (c) The selection, appointment, and confirmation of any nominee shall be based on ensuring that board members have diverse and beneficial perspectives and experiences and that they include, to the extent possible, representatives of the medical, business, management, law, finance, and health sectors, and patients or consumers. Members of the board shall serve without compensation but may be reimbursed for actual expenses, including travel expenses, incurred in the performance of their duties.  (d) Any member of the board may be removed for cause by vote of a two-thirds majority of the board's members then in office. For purposes of this section, cause shall include without limitation:  (1) Malfeasance in office;  (2) Failure to attend regularly called meetings;  (3) Sentencing for conviction of a felony, to the extent allowed by section 831-2; or  (4) Any other cause that may render a member incapable or unfit to discharge the duties required under this chapter. Filing nomination papers for elective office or appointment to elective office, or conviction of a felony consistent with section 831-3.1, shall automatically and immediately disqualify a board member from office.  (e) Upon completion of the transition of the Oahu regional health care system into the department of health, the corporation board shall have no legal relationship with the Oahu regional health care system or its facilities. [L 1996, c 262, pt of 2; am L 1997, c 265, 1; am L 1998, c 229, 4; am L 2007, c 278, 3 and c 290, 19; am L 2009, c 182, 9; am L 2011, c 126, 2; am L 2013, c 278, 2; am L 2021, c 212, 3]
  323F-31 Maintenance of services. (a) No planned substantial reduction or elimination of direct patient care services at any facility shall be undertaken unless all of the following requirements are met:  (1) An initial determination is made by the regional chief executive officer as to critical and emergency services which shall not be subject to reduction or elimination pursuant to this section;  (2) The plan of the facility to substantially reduce or eliminate any direct patient care services at the health facility shall first be presented to the regional system board for its approval;  (3) Subsequent to the requisite regional system board approval, the regional chief executive officer shall present the plan to the community in which the facility is located, at a community informational meeting, in order to obtain community input on the plan; and  (4) Provided that if the regional system board approves the plan, the plan as approved by the regional system board shall be submitted to the corporation board for ratification.  (b) After the community informational meeting, but at least twenty days prior to the implementation of the plan approved by the regional system board, the regional system board shall give notice of implementation of the plan to the governor, senate president, and the speaker of the house of representatives.  (c) The decision of the regional system board shall be the final decision with respect to the plan. Implementation of the plan shall commence and continue, provided that no legislation is enacted that:  (1) Requires the reinstatement and continuation of the direct patient care services that are subject to reduction or elimination under the plan; and  (2) Includes an appropriation of additional moneys sufficient to adequately fund the mandated reinstatement and continuation of the subject direct patient care services. [L 1996, c 262, pt of 2; am L 2007, c 290, 34; am L 2009, c 182, 2]
  323F-32 Acquisition of Kahuku hospital. (a) Kahuku hospital on Oahu may be assimilated into the Hawaii health systems corporation in a manner and to an extent that may be negotiated between the corporation and Kahuku hospital. After assimilation, the physical assets and the ground lease of Kahuku hospital shall become the property of the corporation, and Kahuku hospital shall be operated by the corporation.  (b) None of the liabilities of Kahuku hospital shall become liabilities of the corporation.  (c) The corporation, at its discretion, may retain any or all medical and nonmedical employees of Kahuku hospital.  (d) The corporation, without regard to section 323F-31, may adjust the levels of services provided by Kahuku hospital.  (e) Kahuku hospital shall be exempt from chapter 102 and section 103-53, and its board of directors, if any, shall be exempt from part I of chapter 92.  (f) The purchase of goods and services by or on behalf of Kahuku hospital shall be exempt from chapters 103D and 103F.  (g) Employees of Kahuku hospital shall be exempt from chapters 76, 87A, 88, and 89, and shall not be considered as employees of the State. [L 2007, c 113, 2]
  323F-33 Hawaii Medical Center-East; affiliation; acquisition. (a) Hawaii Medical Center-East on Oahu may be assimilated into the corporation by negotiation between the corporation and the owners of Hawaii Medical Center-East. Assimilation may be accomplished with the creation of a new entity, a partnership, a long-term lease, or any other vehicle determined to be in the best interests of the public by the corporation board and as negotiated with the owners of Hawaii Medical Center-East. After assimilation, Hawaii Medical Center-East shall be operated by the corporation, either directly, through contractors, or through a subsidiary.  (b) None of the liabilities of Hawaii Medical Center-East shall become liabilities of the corporation.  (c) Hawaii Medical Center-East, once assimilated, shall be exempt from chapter 102 and section 103-53, and its board of directors, if any, shall be exempt from part I of chapter 92.  (d) The purchase of goods and services by or on behalf of Hawaii Medical Center-East, after assimilation, shall be exempt from chapters 103D and 103F.  (e) Assimilation of Hawaii Medical Center-East into the Hawaii health systems corporation shall be exempt from part VII of chapter 323D.  (f) As used in this section, "Hawaii Medical Center-East" means the facility previously known as Hawaii Medical Center-East located on Liliha street on the island of Oahu. [L 2012, c 281, 2]
  323F-34 Tobacco and electronic smoking devices use prohibited. (a) Notwithstanding the less restrictive requirements of chapter 328J, the Hawaii health systems corporation shall prohibit the use of any tobacco product or electronic smoking device by any person on the premises of all facilities operated by the corporation within the State, to the extent not prohibited by federal law and regulation.  (b) Pursuant to section 89-9(d), the tobacco and electronic smoking device use prohibitions under this section shall not be subject to collective bargaining.  (c) The corporation shall prominently display signs stating that "tobacco and electronic smoking device use is prohibited" at all entrances to the corporation's health facilities and at other conspicuous locations throughout the outdoor premises of each health facility.  (d) For the purposes of this section:  "Electronic smoking device" means any electronic product that can be used to aerosolize and deliver nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, hookah pipe, or hookah pen, and any cartridge or other component of the device or related product, whether or not sold separately.  "Premises" means all indoor and outdoor areas within the state-designated property boundary lines of each of the corporation's health facilities and shall include all employee and visitor parking lots.  "Tobacco or electronic smoking device use" does not include mere possession or storage of the same for use in locations outside the premises of the corporation's health facilities.  "Tobacco product" means any product made or derived from tobacco that contains nicotine or other substances, and is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by any other means, including, but not limited to, a cigarette, cigar, pipe tobacco, chewing tobacco, snuff, snus, or an electronic smoking device. "Tobacco product" does not include drugs, devices, or combination products approved for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. [L 2016, c 25, 2]
  323F-4.5 Captive insurance board. (a) There is established a ten-member captive insurance board that shall carry out the corporation's duties and responsibilities relating to the establishment of any captive insurance company pursuant to section [323F-7(c)(20)] and the operation thereof.  (b) Eight members of the captive insurance board shall be appointed by the governor as follows:  (1) Three members from a list of five persons submitted by the president of the senate; provided that at least one of these members shall have experience in the insurance industry and financial matters;  (2) Three members from a list of five persons submitted by the speaker of the house of representatives; provided that at least one of these members shall have experience in the insurance industry and financial matters; and  (3) Two members, one of whom shall be the chief executive officer or chief financial officer of an insurer licensed to do business in the State and shall serve as a nonvoting member.  The director of health or the director's designee and the insurance commissioner or the commissioner's designee shall serve as ex officio, nonvoting members.  Any vacancy shall be filled in the same manner provided for the original appointments. The captive insurance board shall elect its own chair from among its members.  (c) The selection, appointment, and confirmation of any appointed nominee shall be based on ensuring that captive insurance board members have diverse and beneficial perspectives and experiences and that they include, to the extent possible, representatives of the insurance and/or finance sectors. Members of the captive insurance board shall serve without compensation but may be reimbursed for actual expenses, including travel expenses incurred in the performance of their duties.  (d) Any appointed member of the captive insurance board may be removed for cause by the governor or for cause by vote of a two-thirds majority of the captive insurance board members then in office. For purposes of this section, cause shall include without limitation:  (1) Malfeasance in office;  (2) Failure to attend regularly called meetings;  (3) Sentencing for conviction of a felony, to the extent allowed by section 831-2; or  (4) Any other cause that may render a member incapable or unfit to discharge the duties required under this chapter. Filing nomination papers for elective office, appointment to elective office, or conviction of a felony consistent with section 831-3.1, shall automatically and immediately disqualify a board member from office.  (e) No member of the captive insurance board shall be an employee or vendor of the corporation, or an immediate family member thereof. For purposes of this subsection, "immediate family member" means a corporation board employee's or vendor's spouse, child, parent, grandparent, or any related individual who resides in the same household of the employee or vendor. [L 2007, c 278, 2]
 323F-4 Board meetings. (a) The corporation board and each regional system board shall be exempt from part I of chapter 92 and shall meet no fewer than four times a year; provided that the regional system boards and the corporation board shall meet together at least once a year. Each regional board shall meet at least six times each year; provided that two of these meetings shall be public community meetings for the purpose of informing the community and taking comment on the regional system's performance if these meetings are in addition to the four board meetings. The public community meetings shall be advertised in a newspaper of general circulation in the regional system at least two weeks in advance.  (b) All business of the corporation board and each regional system board shall be conducted at a regular or special meeting at which a quorum is present, consisting of at least a majority of the directors then in office. The corporation board and each regional system board shall adopt procedural rules for meetings, not subject to chapter 91, that shall include provisions for meetings via electronic and telephonic communications and other methods that allow the boards to conduct business in a timely and efficient manner. Any action of the corporation board or each regional system board shall require the affirmative vote of a majority of those present and voting at the meeting; except that a vote of two-thirds of the entire membership of the respective board then in office shall be required for any of the following actions:  (1) Removal by the corporation board or respective regional system board of one of its members;  (2) Amendment by the corporation or a regional system board of its bylaws;  (3) Hiring or removing a regional chief executive officer;  (4) Filling of vacancies on a board; and  (5) Any other actions as provided by the corporation or regional system board bylaws, except the hiring or removing of the chief executive officer of the corporation. [L 1996, c 262, pt of 2; am L 1998, c 229, 5; am L 2007, c 290, 20; am L 2009, c 182, 11]
  323F-5.5 Criminal history record checks. (a) The corporation may request a criminal history record check of persons who are employed or seeking employment, or are current or prospective contractors, providers, or volunteers in any of the corporation's health facilities, in accordance with section 846 2.7.  (b) For the purpose of this section, the criminal history record check shall be performed by the Hawaii criminal justice data center. The Hawaii criminal justice data center may assess providers and contractors a reasonable fee for criminal history record checks performed. Providers and contractors shall be responsible for payment to the Hawaii criminal justice data center of the fee for the criminal history record checks.  (c) Any person who is a current or prospective member of the corporation board or regional system board; employed or who seeks employment with the corporation; or is a current or prospective contractor, provider, or volunteer in any of the corporation's health facilities may be required to provide to the corporation:  (1) Personal identifying information including name, social security number, and date of birth;  (2) Written consent for the corporation to obtain criminal history record check information for verification; and  (3) Written consent to be fingerprinted for the purpose of a criminal history record check.  Information obtained pursuant to subsection (a) and this subsection shall be used by the corporation exclusively for the purposes of this section.  (d) Any inquiry into or consideration of the criminal history record of an employee or prospective employee of the corporation shall be limited to that which is allowed under section 378-2.5 or required under federal law.   (e) A current or prospective contractor, provider, or volunteer or a current or prospective member of the corporation board or regional system board who has been convicted of a criminal offense for which incarceration is a sentencing option, may be terminated, released, or not used. This action shall be based on the corporation's analysis of whether the nature and circumstances of the crime may pose a risk to the health, safety, or well-being of patients, residents, and organizations in its health facilities.  (f) For the purposes of this section:  "Contractor" means any individual who enters into a contract or agreement to provide services to the patients or residents in any of the corporation's health facilities.  "Criminal history record check" means an examination of an individual's criminal history records by means including fingerprint analysis and name inquiry into state and national criminal history record files.  "Provider" means any individual who currently provides or intends to enter into a contract or agreement to provide services to the patients or residents in any of the corporation's health facilities, or is a student in any program at any of the corporation's health facilities. [L 2009, c 182, 6]
  323F-5 Disclosure of interests. All corporation and regional system board members and employees of the corporation shall be subject to chapter 84. [L 1996, c 262, pt of 2; am L 2007, c 290, 21]
 323F-51 Definitions. As used in this part:  "Nonprofit management entity" means a nonprofit organization duly authorized to transact business in the State, the sole shareholder or member of which is the private entity, whose principal purpose is to manage and operate a medical care facility.  "Pre-transfer facility" means a facility of the Maui regional system prior to its transformation into a transferred facility.  "Private entity" means a business organization duly authorized to transact business in the State that:  (1) Has a certificate of need to operate one or more licensed hospitals in the State obtained from the state health planning and development agency pursuant to part V of chapter 323D; or  (2) Is the sole member of a nonprofit management entity or hospital that has a certificate of need to operate one or more licensed hospitals in the State obtained from the state health planning and development agency pursuant to part V of chapter 323D.  "Transfer completion date" means the date specified as the transfer completion date in an agreement entered into pursuant to section 323F-52, including any extensions allowed under the terms of such agreement.  "Transferred facility" means a medical facility of the Maui regional system for which the right and responsibility to manage, operate, and otherwise provide health care services at the facility is transferred to a private entity or its nonprofit management entity pursuant to this part. [L 2015, c 103, pt of 2]
  323F-52 Transfer of right and responsibility to manage, operate, and provide health care services in a facility of the Maui regional system to a nonprofit management entity. (a) Notwithstanding any other law to the contrary, including but not limited to section 27-1, section 76-16(b) and other sections of chapter 76, chapters 78, 89, 89A, 89C, and 171, part V of chapter 323D, and sections 323F-11 and 323F-31, the governor, with the assistance of the chief executive officer of the corporation, and the regional chief executive officer of the Maui regional system, or their designees, shall negotiate with a private entity to transfer the right and responsibility to manage, operate and otherwise provide health care services at one or more facilities of the Maui regional system, including Maui memorial medical center, Kula hospital and clinic, and Lanai community hospital, to a nonprofit management entity wholly-owned by the private entity; provided that the private entity submitted a statement of interest in response to a notice published in accordance with section 1-28.5 by the Maui regional system board, inviting private entities to submit statements of interest in acquiring the right and responsibility to manage, operate and otherwise provide health care services in one or more of the Maui regional system's facilities.  (b) Any agreement negotiated by the governor and entered into by the private entity and the governor, the corporation board, and the Maui regional system board, shall, at minimum, include a transfer completion date and a plan and schedule for completing the transfer that includes:  (1) Provisions and deadlines for conducting and completing due diligence;  (2) Provisions and a deadline to terminate the agreement before a transfer is completed, at the parties' respective option;  (3) Provisions for winding-down operations at the transferred facility or facilities and for terminating the agreement in the event that the lease entered into pursuant to section 323F-54 is terminated before the lease expires or the private entity or its nonprofit management entity abandons or otherwise discontinues its provision of health care services in a transferred facility; and  (4) Provisions to transfer or assign interests in equipment and furnishings, including any leases for the same; accounts receivable; medicare and other provider agreements; business and commercial licenses and registrations; intellectual property and goodwill; administrative, financial, and medical records and information; or any other interests or property of the Maui regional system facility or facilities to be transferred under this part, that the parties agree to transfer or assign.  (c) On and after the transfer completion date for the transfer of one or more facilities of the Maui regional system to a private entity or its nonprofit management entity pursuant to this part, the State, the corporation, and the Maui regional system and its board shall cease to have any responsibility for or control over the management and operation of the facility or facilities transferred by the agreement pursuant to this part. [L 2015, c 103, pt of 2] Case Notes  Although plaintiff argued that Act 103, Session Laws of Hawaii 2015, violated the contract clause of the United States Constitution because it interfered with the collective bargaining agreement (CBA) between unions representing public employees and the state Hawaii Health Systems Corporation (HHSC), court found that the transfer of management and operation of three state-owned medical facilities to a private entity did not substantially impair the CBA. The CBA did not guarantee employment for the duration of the CBA, contained no explicit or implicit term that required the HHSC to operate any facility for the duration of the CBA, and explicitly contemplated possibility of employer-wide layoff, as well as layoffs due to a lack of work, needs, or funds. 166 F. Supp. 3d 1159 (2016).  No diversity jurisdiction in an action where union, representing public employees who worked for state agency responsible for management of state-owned medical facilities, sought a preliminary injunction enjoining governor from implementing Hawaii law transferring management and operation of three state-owned medical facilities to a private entity. State of Hawaii, a real party in interest, was not a "citizen" for purposes of federal diversity jurisdiction and, thus, could not be sued in federal court. 166 F. Supp. 3d 1159 (2016).  Plaintiff did not show that Act 103, Session Laws of Hawaii 2015, substantially impaired any collective bargaining agreement provisions by depriving public employee union members, employed by the Hawaii Health Systems Corporation, of statutory protections concerning the State's civil service system and merit principle or public employees' bargaining rights. Thus, there was no violation of the contract clause of the United States Constitution since civil service positions were creations of state law and could be eliminated by legislative act without violating statutory protections. 166 F. Supp. 3d 1159 (2016).
 323F-53 Approvals required.  Any documents associated with the transfer of a Maui regional facility or facilities under this part shall be subject to review by the attorney general and the director of finance in their capacity to advise the governor. [L 2015, c 103, pt of 2]
 323F-54 Real property; terms and conditions. (a) The corporation shall enter into a fixed-term lease with the private entity or its nonprofit management entity to rent the real property, including all improvements and fixtures on the property, of the Maui regional system facility or facilities that is to be transferred to the private entity or its nonprofit management entity under this part.  (b) At minimum, the lease shall include the following terms and conditions:  (1) The lease shall not be terminated other than for good cause and upon a minimum of three hundred sixty-five days prior written notice to ensure that the delivery of health care services to the community served will not be disrupted;  (2) During the term of the lease, the private entity or its nonprofit management entity shall have exclusive control of all matters related to the management, operation, and provision of health care services in the leased facilities, except as otherwise set forth in the lease;  (3) The responsibility to oversee the performance of the terms and conditions of the lease by the private entity or its nonprofit management entity shall rest with the Maui regional system board as the custodial caretaker of the real property under section 323F-3.5; and  (4) The corporation or the State shall retain ownership of the leased property throughout the term of the lease. [L 2015, c 103, pt of 2]
  323F-55 Transfer or assignment of other business assets. Provisions to transfer ownership or assign the interest of the corporation or the Maui regional system in some or all of the equipment and furnishings of the facility or facilities transferred to the private entity or its nonprofit management entity under this part shall be included in the lease entered into under section 323F-54. [L 2015, c 103, pt of 2]
 323F-56 Liabilities. (a) The State, the Maui regional system board, or the corporation, separately or collectively, shall be responsible for any and all obligations incurred by the facility or facilities to be transferred, the Maui regional system, or the corporation prior to the transfer completion date including any accounts payable, accrued paid time off, debt, capital leases, malpractice liabilities, and other obligations incurred before the transfer completion date. Any and all liabilities of the pre-transfer facility that were transferred to the corporation upon its creation by Act 262, Session Laws of Hawaii 1996, all liabilities of the pre-transfer facility related to collective bargaining contracts negotiated by the State, and the liability for all current outstanding post-employment benefits of the regional system or the corporation shall remain the responsibility of the State.  (b) All liabilities arising out of a transferred facility's management and operation in a transferred facility, on or after the transfer completion date, shall be the responsibility of the private entity or its nonprofit management entity. [L 2015, c 103, pt of 2]
 323F-57 Employment, wages, and benefits. (a) The corporation and the unions representing employees of the facility or facilities shall meet to discuss the impact of a transfer on the employees and the feasibility of tempering the adverse effect of layoffs by amending the employees' collective bargaining agreements pursuant to section 89-8.5.  (b) The employees working at a transferred facility shall be subject to laws and regulations that apply to private sector employees. The employees of a private entity or its nonprofit management entity shall not be governed by state laws that apply to public officers and employees of the State including but not limited to section 76-16(b) and all other sections of chapter 76, chapters 89, 89A, and 89C, and any other laws and regulations that govern public or government employment in the State.  (c) The private entity or its nonprofit management entity shall offer all employees of the pre-transfer facility, employment for a period of no less than six months after the transfer completion date.   (d) No employee of the corporation who is separated from service as a result of implementation of an agreement and transfer under this part shall suffer any loss of any previously earned rights, benefits or privileges.  (e) Subject to subsection (c), the private entity or its nonprofit management entity shall take all reasonable steps necessary to provide for a smooth transition of employees from state employment to private employment by the private entity or its nonprofit management entity at a transferred facility. [L 2015, c 103, pt of 2] Case Notes  Although plaintiff argued that Act 103, Session Laws of Hawaii 2015, violated the contract clause of the United States Constitution because it interfered with the collective bargaining agreement (CBA) between unions representing public employees and the state Hawaii Health Systems Corporation (HHSC), court found that the transfer of management and operation of three state-owned medical facilities to a private entity did not substantially impair the CBA. The CBA did not guarantee employment for the duration of the CBA, contained no explicit or implicit term that required the HHSC to operate any facility for the duration of the CBA, and explicitly contemplated possibility of employer-wide layoff, as well as layoffs due to a lack of work, needs, or funds. 166 F. Supp. 3d 1159 (2016).  Plaintiff did not demonstrate that Act 103, Session Laws of Hawaii 2015, which directed the governor to transfer management and operation of three state-owned medical facilities to a private entity, conflicted with a provision of Act 262, Session Laws of Hawaii 1996, which established the state Hawaii Health Systems Corporation (HHSC), that prohibited the agency to enter into contractual or business relations, so as to impair, in violation of the contract clause of the United States Constitution, collective bargaining agreement between state and union representing public employees who worked for HHSC. 166 F. Supp. 3d 1159 (2016).  Plaintiff did not show that Act 103, Session Laws of Hawaii 2015, substantially impaired any collective bargaining agreement provisions by depriving public employee union members, employed by the Hawaii Health Systems Corporation, of statutory protections concerning the State's civil service system and merit principle or public employees' bargaining rights. Thus, there was no violation of the contract clause since civil service positions were creations of state law and could be eliminated by legislative act without violating statutory protections. 166 F. Supp. 3d 1159 (2016).
 323F-58 Operating support. (a) Without regard to chapter 42F, the private entity or its nonprofit management entity to which one or more of the facilities of the Maui regional system has been transferred pursuant to this part may seek funds from the State for its operating costs, as defined in section 37-62, of a transferred facility by preparing a budgetary request in accordance with procedures and criteria established by the director of finance. In no event shall the amount requested exceed the amount appropriated for the operating costs of the Maui regional system for the 2014 fiscal year. The director of finance shall review the request and may include some or all of the amount requested in the executive budget of the department of health. Any appropriation made in response to the request shall be subject to the allotment system generally applicable to all appropriations made by the legislature. The department of health shall be responsible for transferring the funds allotted to the private entity or its nonprofit management entity for expenditure.  (b) To qualify to request funds from the State under this section, the private entity or its nonprofit management entity to which one or more of the facilities of the Maui regional system has been transferred pursuant to this part shall satisfy the following standards and conditions:  (1) Be duly authorized to transact business in the State, and determined and designated to be a nonprofit organization by the Internal Revenue Service;  (2) Be licensed and accredited, in accordance with federal, state, or county statutes, rules, or ordinances, to conduct the activities for which funding is sought;  (3) Have a governing board whose members have no material conflict of interest and serve without compensation;  (4) Have bylaws or policies that describe the manner in which business is conducted, prohibit nepotism, and provide for the management of potential conflict of interest situations;  (5) Be in compliance with all of the requirements of chapter 323D with respect to the transferred facility and any other health care facility it operates;  (6) Submit tax clearances from the director of taxation and the Internal Revenue Service to the effect that all tax returns due have been filed and all taxes, interest, and penalties levied or accrued against have been paid;  (7) Submit to an annual audit, disclose revenue projections, and prepare an annual internal performance audit and itemized financial statements, including reimbursement rates, with respect to the transferred facility, to the extent practicable, in the same manner as described in section 323F-22; and  (8) Submit its annual budget with respect to a transferred facility to the legislature for review at least twenty days prior to the convening of the regular legislative session. [L 2015, c 103, pt of 2]
 323F-59 Capital project support. (a) Without regard to chapter 42F, the private entity or its nonprofit management entity to which one or more of the facilities of the Maui regional system has been transferred pursuant to this part may seek funds from the State for capital expenditures, as that term is defined in section 37-62, for a transferred facility for each or all of the first ten years of the lease entered into under section 323F-54. Each year's request for funds shall be submitted to the director of finance in accordance with procedures and criteria established by the director and shall be reviewed by the director and comptroller with pertinent capital planning and expenditure documents and the capital planning procedures supplied by the private entity or its nonprofit management entity. The director of finance may include some or all of the funds requested in the executive budget of the department of health. Any appropriation made in response to a request shall be subject to the allotment system generally applicable to all appropriations made by the legislature. The department of health shall be responsible for transferring the funds allotted to the private entity or its nonprofit management entity for expenditure.  (b) After the first ten years of the lease entered into under section 323F-54, the nonprofit management entity and the private entity shall be responsible for funding all capital expenditures of the transferred facility.  (c) To qualify to request funds from the State under this section, the private entity or its nonprofit management entity shall satisfy all of the standards and conditions set out in section 323F-58(b). In addition, the transferred facility shall demonstrate that the capital projects constructed, operated, and maintained with the requested funds will be in compliance with all federal, state, and county health care planning laws and rules, land use and zoning laws and rules, environmental laws and rules, and building and health codes, rules, and regulations. [L 2015, c 103, pt of 2]
  323F-6 Records. (a) The corporation and each regional system board shall be subject to the requirements of chapter 92F, except that the following categories of government records shall not be required to be disclosed:  (1) Applications for credentials or staff privileges at any of the corporation's medical facilities, records from peer review proceedings, and medical records; and  (2) Marketing strategies, strategic plans, evaluations, assessments, negotiations, or rates and charges, the disclosure of which would raise the cost of procurement or give a manifestly unfair advantage to any competitor or to any person or entity seeking to do business or proposing to enter into an agreement with a regional system board, the corporation, or any of its facilities.  Any person denied access to any such government records shall have available the remedies specified in sections 92F-15 and 92F-15.5. Government records protected from disclosure by this section shall be subject to the interagency disclosure provisions of section 92F-19. Section 624-25.5 shall apply to this part notwithstanding anything to the contrary contained in this section.  (b) The corporation shall have the authority to set rates for copies of records protected by this section from the disclosure requirements of chapter 92F. For medical records subpoenaed from any of the corporation's regional system facilities, copies shall be paid for by the requester in an amount based on the facility's actual cost of preparation; provided that the amount shall be no less than $1 per page and no more than $2 per page. [L 1996, c 262, pt of 2; am L 2007, c 290, 22; am L 2016, c 73, 1]
 323F-60 Strategic commitment during term of lease. (a) The private entity shall be committed to supporting the nonprofit management entity and any transferred facility to achieve excellence and improve access to services in Maui county.  (b) The private entity and the nonprofit management entity shall establish a governance and management structure for a transferred facility that seeks to improve its performance. The private entity and the nonprofit management entity shall apply efficiencies of scale, consolidation of shared services, and administrative and technological expertise to improve the health care performance of a transferred facility.  (c) The private entity and the nonprofit management entity shall support a transferred facility in:  (1) Expanding primary care access throughout Maui;  (2) Recruiting and rotating specialists to fill current service gaps;  (3) Extending the private entity or its nonprofit management entity's service line coordination to Maui, including but not limited to cancer, cardiology, orthopedics, mental health, pediatrics, and women's health services;  (4) Coordinating long-term care patients and reducing wait lists;  (5) Upgrading facilities and equipment as needed to provide high quality care and to enhance patient experience; and  (6) Incorporating the Maui region into the private entity or its nonprofit management entity's value-based contracting initiatives to better align quality and cost initiatives. [L 2015, c 103, pt of 2]
 323F-7.5 Regional system boards; delegated authority. If the Hawaii health systems corporation board is unable to act on important transactions in as timely a manner as the chairperson of the corporation board deems reasonable, the chairperson of the corporation board may further delegate authority to the regional system boards to take action on specific matters. [L 2007, c 290, pt of 2]
  323F-7.6 Transition of Hawaii health systems regional system or health facility to a new entity. (a) Notwithstanding any other law to the contrary, including but not limited to section 27-1 and chapter 171, any of the regional systems or individual facilities of the Hawaii health systems corporation is hereby authorized to transition into a new legal entity in any form recognized under the laws of the State, including but not limited to:  (1) A nonprofit corporation;  (2) A for-profit corporation;  (3) A municipal facility;  (4) A public benefit corporation;  (5) A division or branch under a state executive department; or  (6) Any two or more of the entities in paragraphs (1) through (5). A transition shall occur through the sale, lease, or transfer of all or substantially all of the assets of the facility or regional system, except for real property, which shall only be transferred by lease; provided that under a transfer that is effectuated pursuant to paragraph (5), real property shall transfer in its then-existing state, whether in lease, fee, or otherwise, to the department of land and natural resources. Any transition shall comply with chapter 323D.  (b) A transition shall only occur upon approval of the appropriate regional system board in the case of a regional system or individual facility transition, or upon approval of the regional system boards and the corporation in the case of the transition of the entire corporation. Any transition shall be subject to legal review by the attorney general, who shall approve the transition if satisfied that the transition conforms to all applicable laws, subject to the review of the director of the department of budget and finance, who shall approve the transition if it conforms to all applicable financing procedures, and subject to the governor's approval. In addition, the transition shall be subject to the following terms and conditions:  (1) All proceeds from the sale, lease, or transfer of assets shall be used for health care services in the respective regional system or facility, except that real property shall only be transferred by lease; provided that under a transfer that is effectuated pursuant to subsection (a)(5), real property shall transfer in its then-existing state, whether in lease, fee, or otherwise, to the department of land and natural resources;  (2) Any and all liabilities of a regional system or facility transitioning into a new entity that were transferred to the Hawaii health systems corporation upon its creation by Act 262, Session Laws of Hawaii 1996, and all liabilities of the regional system or facility related to collective bargaining contracts negotiated by the State, shall become the responsibility of the State; and  (3) During the period of transition:  (A) The State shall continue to fund the provision of health care services provided for by the regional system or individual facility; and  (B) All applicable provisions of this chapter shall continue to apply.  Upon the completion of the transition of all the facilities in a regional system to a new entity, the regional system board for that regional system shall terminate; provided that if not all of a regional system's facilities are transitioned to a new entity, the existing regional system board shall not terminate but shall continue to retain jurisdiction over those facilities remaining in the regional system. [L 2009, c 182, pt of 8; am L 2021, c 212, 4]
  323F-7 Duties and powers of the corporation and regional system boards. (a) Notwithstanding any other law to the contrary and unless otherwise specified, only those duties and powers related to corporation-wide matters, including but not limited to corporation-wide budgeting, personnel policies, procurement policies, fiscal policies, accounting policies, policies related to affiliations, joint ventures and contracts, regulatory compliance, risk management, continuing medical education programs, strategic planning, and capital planning, including the issuance of revenue bonds in any amount, shall be carried out by the corporation board in collaboration with the regional system boards. Duties and powers related to the operation of facilities within each regional system, including but not limited to regional system and facility budgeting, employment and removal of regional system and facility personnel, purchasing, regional system strategic and capital planning, organization, quality assurance, improvement and reporting, credentialing of medical staff, and the issuance of revenue bonds in any amount with corporation board approval, shall be carried out by the regional system boards, either directly or by delegation to regional and facility administration. Unless otherwise prohibited, the duties and powers granted to the corporation board may be delegated to the regional system boards.  (b) Duties and powers exercised by the regional system boards under this chapter or delegated to the regional system boards by the corporation board shall be consistent with corporation-wide policies. Wherever appropriate, corporation-wide policies shall take into account differences among regional systems and among types of facilities, particularly acute care, critical access, and long-term care facilities within the system.  New corporation-wide policies, and major changes to existing policies other than those changes mandated by legal or regulatory requirements, shall be developed by the corporation board after consultation with a policies committee. The policies committee shall be made up of representatives of the corporation board and each regional system board or designees of each board. The corporation board shall have two representatives on this committee. The corporation board shall review and consider approval of the policies within thirty days of transmittal by the policies committee or at the next board meeting; provided that, if the policies committee fails to take action within thirty days of receiving the proposed policy, the corporation board may consider and adopt or reject or revise the policy. The regional system boards and corporation board, as needed, may submit a request to the committee to alter corporation-wide policies along with detailed justification for the request. The regional system boards and the corporation board shall collaboratively establish a procedure to further implement this section.  (c) Notwithstanding any other law to the contrary, the corporation and any of the regional system boards shall exercise the following duties and powers:  (1) Developing corporation-wide policies, procedures, and rules necessary or appropriate to plan, operate, manage, and control the system of public health facilities and services without regard to chapter 91; provided that each regional system board shall be responsible for its own policies, procedures, and rules necessary or appropriate to plan, operate, manage, and control the public health facilities within its own regional system consistent with corporation policies;  (2) Evaluating the need for additional health facilities and services; provided that each regional system board shall be responsible for the evaluation within its own regional system;  (3) Entering into and performing any contracts, leases, cooperative agreements, partnerships, or other transactions whatsoever that may be necessary or appropriate in the performance of its purposes and responsibilities, and on terms the corporation, or regional system boards, may deem appropriate, with either:  (A) Any agency or instrumentality of the United States, or with any state, territory, or possession, or with any subdivision thereof; or  (B) Any person, firm, association, partnership, or corporation, whether operated on a for-profit or not-for-profit basis;  provided that the transaction furthers the public interest; and provided further that if any dispute arises between any contract, lease, cooperative agreement, partnership, or other transaction entered into by the corporation and a regional system board with regard to matters solely within that regional system, after July 1, 2007, the contract, lease, cooperative agreement, partnership, or other transaction entered into by the regional system board shall prevail; and provided further that such agreements are consistent with corporation policies;  (4) Conducting activities and entering into business relationships as the corporation board, or any regional system board, deems necessary or appropriate, including but not limited to:  (A) Creating nonprofit corporations, including but not limited to charitable fund-raising foundations, to be controlled wholly by the corporation, any regional system board, or jointly with others;  (B) Establishing, subscribing to, and owning stock in business corporations individually or jointly with others; and  (C) Entering into partnerships and other joint venture arrangements, or participating in alliances, purchasing consortia, health insurance pools, or other cooperative arrangements, with any public or private entity; provided that any corporation, venture, or relationship entered into under this section furthers the public interest; provided further that this paragraph shall not be construed to authorize the corporation or a regional system board to abrogate any responsibility or obligation under paragraph (15);  provided that each regional system board shall be responsible for conducting the activities under this paragraph in its own regional system consistent with policies established by the corporation board;  (5) Participating in and developing prepaid health care service and insurance programs and other alternative health care delivery programs, including programs involving the acceptance of capitated payments or premiums that include the assumption of financial and actuarial risk; provided that each regional system board shall be responsible for conducting the activities under this paragraph in its own regional system consistent with policies established by the corporation board;  (6) Executing, in accordance with all applicable bylaws, rules, and laws, all instruments necessary or appropriate in the exercise of any powers of the corporation or regional system boards;  (7) Preparing and executing all corporation-wide budgets, policies, and procedures or any regional system budgets, policies, and procedures; provided that the regional system boards shall submit their regional and facility budgets to the corporation to be consolidated into a corporation-wide budget for purposes of corporation-wide planning and appropriation requests. Regional system and facility budgets shall be received by the corporation and shall be included in the corporation-wide budget upon submittal to the corporation;  (8) Setting rates and charges for all services provided by the corporation without regard to chapter 91; provided that the duty and power of the corporation board shall be limited to approving the rates and charges developed by the regional system boards for the regional system's facilities and services. Rates and charges may vary among regional systems and facilities and may be consolidated with the rates of other regional systems into one charge master. Third-party payer contracts may be negotiated at the corporation-wide level with input from the regional systems, taking into consideration the rates set by the regional system boards. For purposes of securing revenue bonds, the corporation or regional system board may covenant to set, and if necessary increase, rates and charges as needed to pay debt service and related obligations plus a coverage factor;  (9) Developing a corporation-wide hospital system that is subject to chapters 76 and 89; provided that employment of regional system and facility personnel shall be the responsibility of the regional system boards pursuant to corporation-wide policies and procedures, applicable laws, rules, regulations, and collective bargaining agreements;  (10) Developing the corporation's corporation-wide capital and strategic plans or any regional system board's capital and strategic plans; provided that each regional system board shall be responsible for development of capital and strategic plans in its own regional system that shall be consistent with, and incorporated into, the overall corporation-wide plans; and provided further that the corporation and each regional system board shall be entitled to undertake the acquisition, construction, and improvement of property, facilities, and equipment to carry out these capital and strategic plans;  (11) Suing and being sued; provided that only the corporation may sue or be sued; and provided further that the corporation and regional system boards shall enjoy the same sovereign immunity available to the State;  (12) Making and altering corporation board and regional system board bylaws for its organization and management without regard to chapter 91 and consistent with this chapter; provided that each regional system board shall be responsible for the final approval of its regional system board bylaws;  (13) Adopting rules without regard to chapter 91 governing the exercise of the corporation's or regional system boards' powers and the fulfillment of its purpose under this chapter;  (14) Entering into any contract or agreement whatsoever, not inconsistent with this chapter or the laws of this State, and authorizing the corporation, regional system boards, and chief executive officers to enter into all contracts, execute all instruments, and do all things necessary or appropriate in the exercise of the powers granted in this chapter, including securing the payment of bonds; provided that the corporation board shall delegate to a regional system board its authority to enter into and execute contracts or agreements relating to matters exclusively affecting that regional system; provided further that a regional system board shall exercise this power consistent with corporation-wide policies; and provided further that contracts or agreements executed by a regional system board shall encumber only the regional subaccounts of that regional system board;  (15) Issuing revenue bonds up to $100,000,000 subject to the approval of the governor or the director of finance; provided that:  (A) All revenue bonds shall be issued pursuant to part III, chapter 39;  (B) The corporation and any regional system board shall have the power to issue revenue bonds in any amount without regard to any limitation in chapter 39; and  (C) The corporation shall have the power to incur debt, including the issuance of revenue bonds in any amount, and the regional system boards shall have the power to issue revenue bonds in any amount upon approval by the corporation board;  (16) Reimbursing the state general fund for debt service on general obligation bonds or reimbursable general obligation bonds issued by the State for the purposes of the corporation or any regional system board;  (17) Pledging or assigning all or any part of the receipts, revenues, and other financial assets of the corporation or the regional system boards for purposes of meeting or securing bond or health systems liabilities; provided that each regional system board shall be responsible for conducting the activities under this paragraph in its own regional system. Any pledge or assignment by the corporation or any regional system board to secure revenue bonds or health system liabilities shall be valid and binding in accordance with its terms against the pledgor, creditors, and all others asserting rights thereto from the time the pledge or assignment is made, without the need of physical delivery, recordation, filing, or further act. The corporation shall not take or omit to take any act that would interfere with, impair, or adversely affect any pledge or assignment by a regional system board pursuant to this chapter. In connection with issuing revenue bonds or related obligations, consistent with corporation policies and procedures, any regional system board may make such other covenants, binding on the regional system board and the corporation, that the regional system board determines to be necessary or appropriate to establish and maintain security for the revenue bonds or related obligations;  (18) Owning, purchasing, leasing, exchanging, or otherwise acquiring property, whether real, personal, or mixed, tangible or intangible, and of any interest therein, in the name of the corporation, which property is not owned or controlled by the State but is owned or controlled by the corporation; provided that:  (A) Regional system boards shall have custodial control over facilities and physical assets in their respective regional systems. A regional system board may own, purchase, lease, exchange, or otherwise acquire property, whether real, personal, or mixed, tangible or intangible, and of any interest therein, other than property owned or controlled by the corporation, in the name of the regional system board; provided further that a regional system board shall be subject to section 323F-3.5; and  (B) Each regional system board shall be responsible for conducting the activities under this paragraph in its own regional system;  (19) Maintaining, improving, pledging, mortgaging, selling, or otherwise holding or disposing of property, whether real, personal, or mixed, tangible or intangible, and of any interest therein, at any time and manner, in furtherance of the purposes and mission of the corporation or any regional system board; provided that the corporation or any regional system board legally holds or controls the property in its own name; provided further that other than to secure revenue bonds and related obligations and agents, and to transition into a new entity, the corporation or any regional system board shall not sell, assign, lease, hypothecate, mortgage, pledge, give, or dispose of all or substantially all of its property; and provided further that each regional system board shall be responsible for conducting the activities under this paragraph in its own regional system, and control over such property shall be delegated to each regional system board; provided further that this paragraph shall not be construed to authorize the sale, pledge, or mortgage of real property under the control of the corporation or a regional system board;  (20) Purchasing insurance and creating captive insurers in any arrangement deemed in the best interest of the corporation, including but not limited to funding and payment of deductibles and purchase of reinsurance; provided that only the corporation shall have the power to create captive insurers to benefit public health facilities and operations in all regional systems; and provided further that a regional system board may purchase insurance for its regional system in collaboration with the other regional systems and the corporation until captive coverage is provided by the corporation;  (21) Acquiring by condemnation, pursuant to chapter 101, any real property required by the corporation to carry out the powers granted by this chapter;  (22) Depositing any moneys of the corporation or any regional system board in any banking institution within or without the State, and appointing, for the purpose of making deposits, one or more persons to act as custodians of the moneys of the corporation or any regional system board; provided that regional system boards may deposit moneys in banking institutions pursuant to corporation-wide guidelines established by the corporation board;  (23) Contracting for and accepting any gifts, grants, and loans of funds, property, or any other aid in any form from the federal government, the State, any state agency, or any other source, or any combination thereof, and complying, subject to this chapter, with the terms and conditions thereof; provided that the regional system boards shall be responsible for contracting for and accepting any gifts, grants, loans, property, or other aid if intended to benefit the public health facilities and operations exclusively in their respective regional systems; and provided further that all contracting for or acceptance of gifts, grants, loans, property, or other aid shall be consistent with corporation-wide policies established by the corporation board;  (24) Providing health and medical services for the public directly or by agreement or lease with any person, firm, or private or public corporation, partnership, or association through or in the health facilities of the corporation or regional system boards or otherwise; provided that the regional system boards shall be responsible for conducting the activities under this paragraph in their respective regional systems;  (25) Approving medical staff bylaws, rules, and medical staff appointments and reappointments for all public health facilities of the corporation or any regional system board, including but not limited to determining the conditions under which a health professional may be extended the privilege of practicing within a health facility, as determined by the respective regional system board and consistent with corporation-wide policies, and adopting and implementing reasonable rules, without regard to chapter 91, for the credentialing and peer review of all persons and health professionals within the facility; provided that regional system boards shall be the governing body responsible for all medical staff organization, peer review, and credentialing activities to the extent allowed by law;  (26) (A) Investing any funds not required for immediate disbursement in property or in securities that meet the standard for investments established in chapter 88 as provided by the corporation board or any regional system board; provided that proceeds of bonds and moneys pledged to secure bonds may be invested in obligations permitted by any document that authorizes the issuance or securing of bonds; and provided further that the investment assists the corporation or any regional system board in carrying out its public purposes; selling from time to time securities thus purchased and held, and depositing any securities in any bank or financial institution within or without the State. Any funds deposited in a banking institution or in any depository authorized in this section shall be secured in a manner and subject to terms and conditions as the corporation board or a regional system board may determine, with or without payment of any interest on the deposit, including without limitation time deposits evidenced by certificates of deposit. Any bank or financial institution incorporated under the laws of this State may act as depository of any funds of the corporation or a regional system board and may issue indemnity bonds or may pledge securities as may be required by the corporation or regional system board; provided that regional system boards may exercise the powers under this subsection with respect to financial assets of the regional system consistent with corporation-wide policies; and  (B) Notwithstanding subparagraph (A), contracting with the holders of any of its notes or bonds as to the custody, collection, securing, investment, and payment of any moneys of the corporation or regional system board and of any moneys held in trust or otherwise for the payment of notes or bonds and carrying 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 such moneys, may be secured in the same manner as moneys of the corporation or regional system board, and all banks and trust companies are authorized to give security for the deposits;  (27) Entering into any agreement with the State, including but not limited to contracts for the provision of goods, services, and facilities in support of the corporation's programs or the regional system boards' programs, and contracting for the provision of services to or on behalf of the State; provided that the regional system boards shall be responsible for entering into agreements to provide goods, services, and facilities in support of programs in their respective regional systems consistent with corporation-wide policies;  (28) Having a seal and altering the same at pleasure;  (29) Waiving, by means that the corporation or regional system board deems appropriate, the exemption from federal income taxation of interest on the corporation's or regional system boards' bonds, notes, or other obligations provided by the Internal Revenue Code of 1986, as amended, or any other federal statute providing a similar exemption;  (30) Developing internal policies and procedures for the procurement of goods and services, consistent with the goals of public accountability and public procurement practices, and subject to management and financial legislative audits; provided that the regional system boards shall be responsible for developing internal policies and procedures for each of their regional systems consistent with the corporation's policies and procedures; and further provided that:  (A) The regional system boards and the corporation board shall enjoy the exemption under section 103-53(e);  (B) The regional system boards shall enjoy the exemption under chapter 103D; and  (C) The corporation shall be subject to chapter 103D;  (31) Authorizing and establishing positions; provided that regional system boards shall be responsible for hiring and firing regional and facility personnel consistent with corporation policies, except a regional chief executive officer shall only be hired or dismissed upon the approval of the regional system board as further set forth in section 323F-8.5;  (32) Having and exercising all rights and powers necessary or incidental to or implied from the specific powers granted in this chapter, which 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; provided that the regional system boards shall be responsible for having and exercising all powers and rights with respect to matters in their regional systems consistent with the law; and  (33) Each regional system, through its regional system board, shall:  (A) Develop policies and procedures necessary or appropriate to plan, operate, manage, and control the day-to-day operations of facilities within the regional system that are consistent with corporation-wide policies;  (B) Exercise custodial control over and use of all assets of the corporation that are located in the regional system pursuant to this chapter; and  (C) Expend funds within its approved regional system budget and expend additional funds in excess of its approved regional system budget upon approval of the corporation board.  (d) Each regional system board shall not be subject to chapters 36 to 38, 40, 41D, and 103D as well as part I of chapter 92 and shall enjoy the exemptions contained in sections 102-2 and 103-53(e), except as otherwise provided in this chapter. The corporation shall not be subject to chapters 36 to 38, 40, and 41D, as well as part I of chapter 92, and shall enjoy the exemptions contained in sections 102-2 and 103-53(e); provided that the exemption provided under this subsection to chapter 37D shall only apply to financing agreements of $5,000,000 or less; provided further that the aggregate value of financing agreements per fiscal year shall not exceed $25,000,000.  (e) The duties and powers granted to the corporation or any regional system board may not be used to enter into contractual or business relationships that have the practical effect of allowing or are intended to allow private-sector counterparts to replace existing employee positions or responsibilities within the corporation or in any regional system or its facilities; provided the corporation or regional system boards shall be allowed to enter into such relationships to the extent and for the purposes that the division of community hospitals could have done under collective bargaining contracts that were in effect for the 1995-1996 fiscal year. [L 1996, c 262, pt of 2; am L 1998, c 229, 6; am L 2000, c 279, 6; am L 2002, c 148, 37; am L 2004, c 216, 37; am L 2007, c 290, 23; am L 2009, c 182, 12] Case Notes  Plaintiff did not demonstrate that Act 103, Session Laws of Hawaii 2015, which directed the governor to transfer management and operation of three state-owned medical facilities to a private entity, conflicted with a provision of Act 262, Session Laws of Hawaii 1996, which established the state Hawaii Health Systems Corporation (HHSC), that prohibited the agency to enter into contractual or business relations, so as to impair, in violation of the contract clause of the United States Constitution, collective bargaining agreement between state and union representing public employees who worked for HHSC. 166 F. Supp. 3d 1159 (2016).
  323F-8.5 Regional chief executive officer; exempt position. (a) Upon establishment, a regional system board may appoint a regional chief executive officer whose salary shall be set by the corresponding regional system board and may discharge a regional chief executive officer; provided that the position shall be exempt from chapter 76 and section 26-35(a)(4). Each regional chief executive officer may also appoint, as necessary, other personnel, exempt from chapters 76 and 89, to work directly for the regional chief executive officer for the regional system and for the corresponding regional system board.  (b) Any regional system board or its designee may discharge its exempt personnel with or without cause; provided that removal without cause shall not prejudice any contract rights of personnel.  (c) Each regional chief executive officer or their designees may appoint, exempt from chapters 76 and 89, hospital administrators, assistant administrators, directors of nursing, medical directors, and staff physicians, to facilitate the management of facilities within the regional system.  (d) Hiring, firing, compensation packages, and other personnel actions with respect to employees not covered by chapters 76 and 89 shall be governed by policies adopted by each regional system board. These policies and guidelines shall be consistent with policies and guidelines adopted by the corporation board after consultation with the regional system boards. [L 2007, c 290, pt of 2; am L 2009, c 182, 14]
  323F-8 Chief executive officer; exempt positions. (a) The corporation board may appoint, by majority vote of its entire membership, a chief executive officer of the corporation whose salary shall be set by the corporation board and who shall be exempt from chapter 76 and section 26-35(a)(4). The chief executive officer may also appoint up to eighteen other personnel, exempt from chapters 76 and 89, to work directly for the chief executive officer and the corporate board.  (b) The corporation board or its designee may discharge its exempt personnel with or without cause; provided that removal without cause shall not prejudice any contract rights of personnel.  The discharge of the chief executive officer shall require a majority vote of the entire membership of the corporation board.  (c) The corporation's chief executive officer or the chief executive officer's designee may appoint, exempt from chapters 76 and 89, hospital administrators, assistant administrators, directors of nursing, medical directors, and staff physicians, to facilitate the management of facilities within the corporation; provided that directors of nursing appointed before July 1, 1998, may maintain their civil service status as provided in chapter 76 by so communicating in writing to the chief executive officer by October 31, 1998. Hospital administrators and assistant administrators appointed before July 1, 1983, may maintain their permanent civil service status as provided in chapter 76.  (d) Hiring, firing, compensation packages, and other personnel actions with respect to employees not covered by chapter 76 and 89 shall be governed by policies and guidelines established by the corporation, except as otherwise provided in this chapter.  (e) Upon the establishment of a regional system board, the authority to appoint regional hospital administrators, assistant administrators, directors of nursing, medical directors, and staff physicians under subsection (c) shall be superseded by section 323F-8.5 for that regional system. No incumbent personnel shall lose a position without specific action taken by the regional system board. [L 1996, c 262, pt of 2; am L 1998, c 229, 7; am L 2000, c 253, 150; am L 2002, c 148, 38; am L 2004, c 16, 6; am L 2007, c 290, 24; am L 2009, c 182, 13]
  323F-9 Hiring of attorneys. The corporation and regional system boards may employ or retain any attorney, by contract or otherwise, for the purpose of representing the corporation or regional system boards in any litigation, rendering legal counsel, or drafting legal documents for the corporation or regional system boards. [L 1996, c 262, pt of 2; am L 2007, c 290, 25]
 324-1 Requests for information; sources of information protected. (a) Upon written request from the director of health, all providers of health care, social services, and county and state agencies shall provide information, reports, statements, memoranda, death and birth records, or other data or material relating to the condition and treatment of any person to the department of health or its designee, to be used in the course of any study for the purpose of reducing maternal morbidity or mortality.  (b) To the extent that this section conflicts with other state confidentiality and disclosure laws, this section shall prevail.  (c) The department of health may request information regarding the deceased that is stored in electronic format or in paper copies, or gathered through interviews, subject to certain restrictions, which include but are not limited to:  (1) Social, medical, and legal histories;  (2) Death and birth certificates;  (3) Law enforcement investigative data;  (4) Medical examiner or coroner investigative data;  (5) Parole and probation information and records;  (6) Information and records of social service agencies;  (7) Educational records;  (8) Medical records; and  (9) Interviews with hospital employees that shall be subject to approval from hospital management.  Furthermore, all requested disclosures shall comply with state and federal privacy statutes and regulations, including the Health Insurance Portability and Accountability Act, and the department of health shall not request records of any hospital review committee, peer review committee, or quality improvement review process. The department may enter into a memorandum of agreement with hospitals regarding requests for information to be used for maternal mortality reviews.  No liability of any kind or character for damages or other relief shall arise or be enforced against any person or organization by reason of having provided the information or material, or by reason of having released or published the findings, conclusions, and summaries of the research or study committees to advance medical research and medical education.  (d) Except as otherwise provided in this part, all maternal mortality review information acquired by the department during its review of maternal deaths pursuant to this part is confidential and shall only be disclosed as necessary to carry out the purposes of this part.  (e) No individual participating in the review of a maternal death shall be questioned in any civil or criminal proceeding regarding information presented in or opinions formed as a result of a panel meeting. Nothing in this subsection shall be construed to prevent a person from testifying to information obtained independently of the department's request for maternal mortality review information or the panel's review of the maternal death, or which is public information, or where disclosure is required by a court of law.  (f) Maternal mortality review information held by the department as a result of maternal mortality reviews conducted pursuant to this part shall not be subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceeding, except that maternal mortality review information otherwise available from other sources shall not be immune from subpoena, discovery, or introduction into evidence through those sources solely because they were provided to the department as required by this part. [L 1963, c 109, 1; Supp, 48B-1; HRS 324-1; am L 1990, c 326, 13(1); am L 2016, c 203, 6]
Note Part heading amended by L 2011, c 220, 1.  324-11 Sources of information protected. Any person, public or private medical facility, or social or educational agency, may provide information, interviews, reports, statements, memoranda, or other data or relevant material relating to individuals to the department of health to be used in the course of any study for the purpose of reducing morbidity or mortality resulting from mental illness or intellectual disability.  No liability of any kind or character for damages or other relief shall arise or be enforced against any person or organization by reason of having provided the information or material, or by reason of having released or published the findings, conclusions, and summaries of the research or study committees to advance medical research and medical education. [L 1964, c 13, 2; Supp, 48B-11; HRS 324-11; am L 2011, c 220, 12]
 324-12 Identification of persons studied; restriction. The material shall be used or published only for the purpose of advancing medical research, medical education, or education of the public in the interest of reducing morbidity or mortality. The identity, or any group of facts which tends to lead to the identity, of any person whose condition or treatment has been studied shall be confidential and shall not be revealed in any reports or any other matter prepared, released, or published by the research or study committees under any circumstances. [L 1964, c 13, 3; Supp, 48B-12; HRS 324-12]
 324-13 Legal proceedings; information excluded from. Any findings, conclusions, or summaries resulting from medical studies within the scope of this part shall not be used or made available in any legal proceeding. Any information provided to any research or study committee shall not be used or made available in any legal proceeding unless it is unobtainable from the original source. In such event, the judicial officer shall in chambers inspect the committee's findings, conclusions, or summaries and make available factual information contained therein. [L 1964, c 13, 4; Supp, 48B-13; HRS 324-13]
 324-14 Penalty. Any person violating this part shall be guilty of a misdemeanor and fined not more than $500. [L 1964, c 13, 5; Supp, 48B-14; HRS 324-14] Cross References  Classification of offense and authorized punishment, see  701-107, 706-640, 663.
  324-2 Identification of persons studied; restriction. The department of health, or its designee, or any in-hospital staff committee shall use or publish this material only for the purpose of advancing medical research, medical education, or education of the public in the interest of reducing morbidity or mortality. In all events, the identity, or any group of facts which tends to lead to the identity, of any person whose condition or treatment has been studied shall be confidential and shall not be revealed under any circumstances. [L 1963, c 109, 2; Supp, 48B-2; HRS 324-2; am L 1990, c 326, 13(2); am L 2016, c 203, 7]
  324-21 Sources of information protected. (a) Any person, public or private medical facility, or social or educational agency, may provide information, interviews, reports, statements, memoranda, biological specimens, or other data or relevant material relating to individuals with cancer or pre-cancerous conditions to the Hawaii Tumor Registry. This information may be used in the course of any cancer research study approved by the cancer commission of the Hawaii Medical Association and the appropriate federally authorized human subjects protection board.  (b) Hospitals, skilled nursing homes, intermediate care homes, free-standing radiation oncology facilities, and other treatment or pathology facilities shall submit a report of any person admitted with or diagnosed as having cancer to the Hawaii Tumor Registry or participating hospital registry according to a format approved by the cancer commission of the Hawaii Medical Association. Physicians who diagnose or treat a patient for cancer shall also submit a report to the Hawaii Tumor Registry or participating hospital registry unless the patient has previously been admitted or treated at a hospital, skilled nursing home, intermediate care home, or free-standing radiation oncology facility for that particular cancer. The Hawaii Tumor Registry staff or their representative or hospital-based registry staff may assist the hospitals, institutions, treatment or pathology facilities, and physician offices in the preparation of the reports.  (c) No liability of any kind or character for damages or other relief shall arise or be enforced against any person or organization by reason of having provided the information or material, or by reason of having released or published the findings, conclusions, and summaries of the researchers to advance medical research and medical education. [L 1973, c 25, pt of 1; am L 1976, c 30, 1; am L 2000, c 17, 2; am L 2008, c 117, 3]
 324-22 Identity of persons studied and material, restrictions. (a) The material collected under this part shall be used or published only for the purpose of advancing medical research, medical education, or education of the public in the interest of reducing morbidity or mortality; provided that the Hawaii Tumor Registry may reveal all relevant information to a patient's attending physician.  (b) The identity or any group of facts that tends to lead to the identity of any person whose condition or treatment has been studied shall be confidential and shall not be revealed in any report or any other matter prepared, released, or published. Researchers, however, may use the names of persons when requesting additional information for research studies after being approved by the cancer commission of the Hawaii Medical Association and the appropriate federally authorized human subjects protection board.  (c) The use of additional information obtained by researchers shall also be governed by subsection (a) and, in addition, where the patient is still living and the information is to be obtained directly from the patient, the researcher shall first obtain the approval of the patient or the patient's immediate family, including a reciprocal beneficiary, in that order of priority. [L 1973, c 25, pt of 1; gen ch 1985; am L 1997, c 383, 41; am L 2008, c 117, 4]
 324-23 Legal proceedings; information excluded from. Except as otherwise provided, findings, conclusions, or summaries resulting from medical studies within the scope of this part shall not be used or made available in any legal proceeding. Any information provided to any researcher or study committee shall not be used or made available in any legal proceeding unless it is unobtainable from the original source. In such event, the judicial officer shall in chambers inspect the findings, conclusions, or summaries and make available factual information contained therein. [L 1973, c 25, pt of 1]
 324-24 Penalty. Any person violating this part shall be guilty of a violation. [L 1973, c 25, pt of 1; am L 1975, c 24, 9]
 324-3 Legal proceedings; information excluded from. Any findings, conclusions, or summaries resulting from medical studies within the scope of this part shall not be used or made available in any legal proceeding. Any information set forth in section 324-1 provided to any research or study committee shall not be used or made available in any legal proceeding unless it is unobtainable from the original source. In such event, the judicial officer shall in camera inspect the committee's findings, conclusions, or summaries and make available factual information contained therein. [L 1963, c 109, 3; Supp, 48B-3; HRS 324-3]
  324-31 Identity of persons studied and material, restrictions. The identity, or any group of facts or any system of records which may lead to the identity, of any person whose condition or treatment has been studied shall be confidential and shall not be revealed in any report, release, or publication. The department of health may, however, use the names of persons when requesting additional information; provided that approval shall first be obtained from the individual, the individual's parents or guardian in the case of a minor, or the next of kin in the case of a deceased person; and provided that the identity or facts identifying the person shall not be released outside of the department of health. [L 1977, c 117, pt of 1] Revision Note  Subsection designation deleted.
 324-32 Release of information. (a) Consistent with section 324-31 and Public Law 93-380, the department of health may, if not otherwise prohibited by law release statistical records or information relating to the health surveillance program. The materials collected under this part shall only be used for the analysis of health, demographic, socio-economic, environmental and related factors for the evaluation of health problems, health programs, delivery and utilization of medical care, analysis and interpretation of public health trends, forecasting long and short range public health needs and for the determination of programs to meet such needs.  (b) The department of health may collect additional information requested by other public or private agencies and may release statistical information from the health surveillance program for research, educational or program purposes to the public or private agencies or individuals. [L 1977, c 117, pt of 1]
 324-33 Legal proceedings; information excluded from. Findings, conclusions, or summaries pertaining to any individual resulting from studies within the scope of this part shall not be used against the individual or made available in any legal proceeding without the individual's consent. [L 1977, c 117, pt of 1]
 324-34 Penalty. Any person violating this part shall be guilty of a misdemeanor. [L 1977, c 117, pt of 1]
 324-4 Penalty. Any person violating this part shall be guilty of a misdemeanor and fined not more than $500. [L 1963, c 109, 4; Supp, 48B-4; HRS 324-4] Cross References  Classification of offense and authorized punishment, see  701-107, 706-640, 663.
  324-41 Definitions. As used in this part, unless the context requires otherwise:  "Adverse reproductive outcome" means a birth defect, stillbirth, infant death up to one year of age, or spontaneous or medical termination of pregnancy for a birth defect.  "Birth defect" means an abnormality of structure, function, or body metabolism present at birth that adversely affects a child's health and development, results in a physical or mental disability, or is fatal.  "Institutional review board" means an institutional review board established in accordance with 7 Code of Federal Regulations 1c.107, 10 Code of Federal Regulations 745.107, 14 Code of Federal Regulations 1230.107, 15 Code of Federal Regulations 27.107, 16 Code of Federal Regulations 1028.107, 21 Code of Federal Regulations 56.107, 22 Code of Federal Regulations 225.107, 24 Code of Federal Regulations 60.107, 28 Code of Federal Regulations 46.107, 32 Code of Federal Regulations 219.107, 34 Code of Federal Regulations 97.107, 38 Code of Federal Regulations 16.107, 40 Code of Federal Regulations 26.107, 45 Code of Federal Regulations 46.107, 45 Code of Federal Regulations 690.107, or 49 Code of Federal Regulations 11.107.  "Registry" means a collection of data organized so that the information can be processed and made available for research.  "Research" means a systematic investigation designed to develop or contribute to generalizable knowledge.  "Researcher" means a person who is conducting research which has been approved or declared exempt by an institutional review board. [L 2002, c 252, pt of 2]
  324-42 Information collection. (a) Health care facilities and health care providers shall make available to the [birth defects program] information contained in health care records that pertain to birth defects or other adverse reproductive outcomes.  (b) Any person or public or private health care facility may provide information or other data or relevant material relating to individuals with birth defects or adverse reproductive outcomes to the [birth defects program] for inclusion in the birth defects registry.  (c) This part shall not apply if the parent, guardian, or other person having custody or control of the child objects on the grounds that the collection of the information conflicts with their religious beliefs. The written objection shall be made a part of the child's medical record.  (d) No liability of any kind or character for damages or other relief shall arise or be enforced against any person or organization by reason of having provided information or material to the [birth defects program]. [L 2002, c 252, pt of 2] Cross References  Birth defects program, see 321-422.
  324-43 Use of collected information. (a) The information collected under this part shall be used by the department of health or researchers only for the purpose of advancing medical and public health research, medical education, or education of the public and health care providers in the interest of reducing morbidity or mortality or increasing physicians' knowledge of resources available for families of persons with birth defects, and only as approved or exempted by an institutional review board.  (b) The identity of, or any information which alone or in combination with other reasonably available information that may be used to identify, any person whose condition or treatment has been studied under this part shall be confidential.  (c) If the birth defects program or researchers intend to collect additional information directly from a patient or patient's relative for research studies approved by an institutional review board, the researcher shall first obtain approval for the request from the patient's primary care provider. If the patient's current physician is not known, the patient may be contacted directly using a method approved by an institutional review board. The use of the additional information obtained by researchers shall be governed by subsection (a). [L 2002, c 252, pt of 2; am L 2016, c 20, 1]
  324-44 Penalty. Any person violating this part shall be guilty of a misdemeanor and fined not more than $500. [L 2002, c 252, pt of 2]
  324-5 Multidisciplinary and multiagency reviews. The department of health may conduct multidisciplinary and multiagency reviews of maternal deaths to reduce the incidence of preventable maternal deaths. [L 2016, c 203, pt of 5]
  324-6 Maternal death review reports. (a) The director of health shall submit an annual written report to the legislature no later than twenty days prior to the convening of each regular session on the status of reviews of maternal deaths conducted by the department. The annual report shall cover the calendar year immediately prior to the year in which the report is due and shall describe the total number of deaths of women while pregnant or within one year after a pregnancy in Hawaii, the causes of those deaths and whether the causes of death were pregnancy related, any maternal mortality review activities conducted by the department, trends in maternal deaths, and recommendations for system changes, including any proposed legislation.  (b) The director of health shall submit a copy of any other maternal death review report published by the department of health, detailing findings and recommendations resulting from such a review, to the legislature upon the report's publication. [L 2016, c 203, pt of 5]
  325-1.5 Purpose. The purpose of this chapter is to address prevention, control, and treatment of, and advancement of knowledge about, communicable diseases in the State. [L 1989, c 67, 1]
  325-1 Diseases or conditions declared communicable or dangerous to public health. The director of health by rules adopted pursuant to chapter 91, may declare diseases or conditions to be communicable or dangerous to the public health. [L 1911, c 125, 3; RL 1925, 934; RL 1935, 1093; RL 1945, 2304; am L 1949, c 53, 29; RL 1955, 49-1; HRS 325-1; am L 1969, c 152, 1; am L 1981, c 185, 1; am L 1983, c 124, 16; am L 1987, c 265, 1]
  325-10 REPEALED. L 1996, c 211, 8.
Note Part heading amended by L 1988, c 290, 1. Cross References Informed consent for testing or disclosure, see 325-16.  Quality assurance standards for HIV antibody testing, see 325-17.  325-101 Confidentiality of records and information. (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, osteopathic 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 or osteopathic physician licensed pursuant to chapter 453 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 or osteopathic 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 or osteopathic 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, the osteopathic 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 or osteopathic 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 587A;  (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 587A 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 587A 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 or osteopathic 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, osteopathic 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, osteopathic 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.  (b) Recording or maintaining information protected under this part in a separate portion of an individual's file which is clearly designated as confidential shall not be construed as a breach per se of that individual's confidentiality.  (c) No person shall be compelled to consent to the release of information protected under this part or to disclose whether the person has been tested for the presence of HIV infection in order to obtain or maintain housing, employment, or education.  (d) Any person who receives or comes into possession of any record or information released or disclosed pursuant to subsection (a) shall be subject to the same obligation of confidentiality as the party from whom the record or information was received. [L 1986, c 161, pt of 1; am L 1987, c 238, 1; am L 1988, c 290,  2, 3; am L 1989, c 377, 1; am L 1991, c 141, 2; am L 1992, c 162, 1; am L 1998, c 238, 4; am L 2009, c 11, 38; am L 2010, c 135, 7] Cross References  Advisory committees for infected health care workers, see 325-18.
 325-102 Civil penalty. Any person or institution who wilfully violates any provision of this part shall be fined not less than $1,000 nor more than $10,000 for each violation plus reasonable court costs and attorney's fees as determined by the court, which penalty and costs shall be paid to the person or persons whose records were released. [L 1986, c 161, pt of 1; am L 1989, c 377, 2; am L 1992, c 162, 2]
  325-103 Custodian of records. No officer or employee of the department of health shall be examined in any civil, criminal, special, or other proceeding as to the existence or content of any individual's records retained by the department pursuant to this part, or as to the existence or contents of such reports received from any private physician or private health facility, without written consent of the affected individual. [L 1986, c 161, pt of 1]
 325-104 Responsibility to report. Notwithstanding any other law to the contrary, no provision in this part shall be construed so as to diminish, limit, or eliminate the responsibility of any person to report HIV infection, ARC, or AIDS to the proper authorities pursuant to section 325-2. [L 1986, c 161, pt of 1; am L 1988, c 290, 4]
 325-11 REPEALED. L 1988, c 140, 1.
Cross References Sale of sterile syringes for prevention of disease, see 325-21.  325-111 Definitions. As used in this part, unless the context otherwise requires:  "Department" means the department of health.  "Director" means the director of health.  "Participant" means an injection drug user who exchanges a sterile needle and syringe unit pursuant to the program.  "Program" means the sterile needle and syringe exchange program. [L 1992, c 152, pt of 2]
  325-112 Sterile needle and syringe exchange program established. The director of health may establish a sterile needle and syringe exchange program. The program shall be administered by the director or the director's designees. The director is authorized to designate private providers of service to operate the program. [L 1992, c 152, pt of 2]
  325-113 Operation of the program. (a) The program shall be operated for the purpose of:  (1) Preventing the transmission of the human immunodeficiency virus, the hepatitis B virus, and other blood borne diseases; and  (2) Providing injection drug users with referrals to appropriate health and social services.  (b) The program shall provide for maximum security of exchange sites and equipment, including a full accounting of the number of needles and syringes in use, the number in storage, and any other measure that may be required to control the use and dispersal of sterile needles and syringes; provided that a participant may exchange used needles and syringes at any exchange site if more than one site is available.  (c) The program shall provide for a one-to-one exchange, whereby the participant shall receive one sterile needle and syringe unit in exchange for each used one.  (d) The program shall provide procedures for the screening of participants to prevent non-injection drug users from participating in the programs.  (e) The department shall keep records to identify and authorize persons employed by the department or its designees to have access to needles, syringes, or the program's records.  (f) The program shall include services to:  (1) Educate the participant about the dangers of contracting HIV infection through needle-sharing practices; and  (2) Offer substance abuse treatment referral and counseling services to all participants.  (g) The program shall compile research data on behavioral changes, enrollment in drug abuse treatment, counseling, and education programs, disease transmission, and other information that may be relevant and useful to assist in the planning and evaluation of efforts to combat the spread of blood borne diseases. [L 1992, c 152, pt of 2]
  325-114 Criminal liability. (a) Exchanges under the sterile needle and syringe exchange program shall not constitute an offense under section 329-43.5 for the participant or for the employees of the department or its designees.  (b) Nothing in this part provides immunity from prosecution to any person for violation of any law prohibiting or regulating the use, possession, dispensing, distribution, or promotion of controlled substances, dangerous drugs, detrimental drugs, or harmful drugs. Nothing in this part provides immunity from prosecution to any person for violation of sections 329-41, 329-42, or 712-1241 through 712-1249.6. [L 1992, c 152, pt of 2]
  325-115 Program oversight committee. The director shall appoint a sterile needle exchange program oversight committee to provide assistance and advice in the oversight of the program. The committee shall meet periodically with the director to monitor the progress and effectiveness of the program and to examine available data compiled by the program. [L 1992, c 152, pt of 2]
  325-116 Reports. The department, on or before January 1 of each year, shall submit a report to the oversight committee. The report shall include:  (1) Information as to the number of participants served and the number of needles and syringes distributed;  (2) A demographic profile of the participants served, including but not limited to:  age, sex, ethnicity, area of residence, occupation, types of drugs used, length of drug use, and frequency of injection;  (3) Impact of the program on needle and syringe sharing and other high risk behavior;  (4) Data on participants regarding HIV testing, counseling, drug treatment, and other social services, including referrals for HIV testing and counseling and for drug abuse treatment;  (5) Impact on the transmission of HIV infection among injection drug users;  (6) Impact on behaviors that caused participants to be at risk for HIV transmission such as frequency of drug use and needle sharing;  (7) An assessment of the cost-effectiveness of the program versus direct and indirect costs of HIV infection; and  (8) Information on the percentage of persons served through treatment programs for injection drug users funded through the department that were attributed to needle exchange referrals.  The report shall address the strengths and weaknesses of the program, the advisability of its continuation, amendments to the law, if appropriate, and other matters that may be helpful to the oversight committee in evaluating the program's efficacy. [L 1992, c 152, pt of 2]
  325-117 Termination of the program. The director may terminate the program at any time if the program does not serve its intended purpose, presents a risk to the public health, safety, or welfare, or is no longer necessary. [L 1992, c 152, pt of 2]
 325-12 Common drinking cup prohibited. The use of a common drinking cup is prohibited in all public places within the State. [L 1911, c 118, 4; RL 1925, 941; RL 1935, 1101; RL 1945, 2319; RL 1955, 49-12; HRS 325-12]
 325-121 Definitions. As used in this part:  "Health care provider" means a program, agency, clinic, health care center, physician licensed under the provisions of chapter 453, advanced practice registered nurse licensed under the provisions of chapter 457, pharmacist licensed under the provisions of chapter 461, physician's assistant licensed under the provisions of chapter 453, person authorized to practice medicine as a physician or physician's assistant, or nursing as an advanced practice registered nurse, in federal facilities located in the State, that administers immunizations in Hawaii, or any other person authorized to prescribe vaccinations in Hawaii.  "Health organization" means a health insurance company, fraternal benefit society governed by article 2 of chapter 432, mutual benefit society governed by article 1 of chapter 432, health care service plan or health maintenance organization governed by chapter 432D, or any other entity delivering or issuing for delivery in the State accident and health or sickness insurance as defined in section 431:1-205.  "Immunization assessment report" means any registry-produced report designed to provide a detailed listing of the immunizations an individual has received as well as immunizations that are currently due or overdue. Immunization assessment reports may also include aggregate reports produced to monitor and improve the health of a specific population or public health in general.  "Post-secondary school" means any adult education school, business school, trade school, community college, college, or university enrolling or registering students above the age of compulsory attendance.  "Registry" means the Hawaii immunization registry.  "School" means any child care center, preschool, day care center, day nursery, head start program, group child care home, kindergarten, elementary, intermediate, middle, or secondary school that is responsible for ensuring student compliance with mandatory school immunization entrance requirements.  "Student" means any child or adult enrolled in any school or post-secondary school in the State. [L 2010, c 113, pt of 1; am L 2012, c 275, 1; am L 2015, c 35, 42]
 325-122 Hawaii immunization registry; establishment and purposes. The department of health may establish and maintain an immunization information system to be designated as the Hawaii immunization registry. The purposes of the registry shall be to maintain a single statewide repository of immunization records to aid, coordinate, and help promote efficient and cost-effective screening, prevention, and control of vaccine-preventable diseases, including pandemic influenza. [L 2010, c 113, pt of 1]
 325-123 Confidentiality and content of registry records. (a) All immunization records and reports made for the purposes of this part that directly or indirectly identify a person shall be kept confidential and shall not be disclosed by any person unless:  (1) The person identified, the person's legal guardian, or in the case of a minor, the minor's parent or legal guardian consents;  (2) Disclosure is deemed necessary by the director of health to carry out this chapter;  (3) A court directs upon its determination that disclosure is necessary for the conduct of proceedings before it;  (4) The disclosure is made between the person's health care provider and payor to obtain reimbursement for services rendered to the person; provided that disclosure shall be made only if the provider informs the person that a reimbursement claim will be made to the person's payor, the person is afforded an opportunity to pay the reimbursement directly, and the person does not pay; or  (5) The department of health releases aggregate immunization information that does not disclose any identifying information of persons whose information is maintained in the registry.  (b) Registry information shall be limited to patient name, demographic information, and contact information; information specific to immunizations or medications received by the patient, including types, manufacturers, lot numbers, expiration dates, anatomical sites of administration, routes of administration, vaccine information statement publication dates, doses, dates administered, the patient's history of vaccine-preventable diseases, and contraindications, precautions, adverse reactions to, or comments regarding immunizations or medications; and the name and contact information of the vaccination administrator or medication provider and the patient's health care provider.  (c) The department of health shall adopt administrative, physical, and technical measures to ensure the security of the registry; protect the confidentiality, integrity, and availability of registry data; and prevent unauthorized access to registry information. [L 2010, c 113, pt of 1; am L 2012, c 275, 2]
 325-124 Purposes for access to registry information; access not a disclosure.  (a) Notwithstanding section 325-123, it shall not be a disclosure for the persons listed in subsections (b), (c), (d), and (e) to have limited access to registry information for the purposes specified in each subsection.  (b) Registry information regarding specific individuals in the registry may be accessed by authorized health care providers who are treating, have treated, or have been assigned to treat those individuals; by authorized employees of these health care providers; and by authorized department of health personnel assigned to monitor the immunization or health status of those individuals for the purposes of:  (1) Recording the administration of any vaccination, including pandemic influenza vaccine;  (2) Determining the immunization history of a patient to deliver health care treatment accordingly;  (3) Notifying individuals or parents or legal guardians of the need to schedule a visit for an immunization;  (4) Generating official immunization records;  (5) Ensuring compliance with mandatory immunization requirements;  (6) Recording the distribution of prophylactic and treatment medications administered or dispensed in preparation for and in response to a potentially catastrophic disease threat; or (7) Complying with Hawaii vaccines for children and other state-provided vaccine programs' vaccine ordering and accountability policies and procedures.  (c) Registry information regarding specific individuals in the registry may be accessed by school and post-secondary school personnel authorized by the director of health, the superintendent of education, the director of the executive office on early learning, or the administrator of a private or post-secondary school for the purpose of ensuring compliance with mandatory student immunization requirements.  (d) Registry information regarding specific individuals in the registry may be accessed by authorized health organizations that have been contracted to provide health insurance or health plan coverage for those individuals; provided that access is limited to only the enrollees, members, subscribers, and insureds of the authorized health organization, and for the purpose of producing immunization assessment reports by the authorized health organization.  (e) Registry information regarding specific individuals in the registry may be accessed by the department of health or agents of the department of health for the purposes of:  (1) Ensuring compliance with mandatory immunization requirements;  (2) Performing immunization-related quality improvement or quality assessment activities;  (3) Complying with Hawaii vaccines for children and other state-provided vaccine programs' vaccine ordering and accountability policies and procedures;  (4) Producing aggregate immunization assessment reports to monitor and improve public health;  (5) Supporting efforts to prevent and manage outbreaks of vaccine-preventable diseases, including pandemic influenza;  (6) Assisting the department of health in the event of a public health emergency; or  (7) Managing and maintaining the Hawaii immunization registry system.  (f) The use of registry information accessed pursuant to this section shall be limited to the purposes for which access is granted. [L 2010, c 113, pt of 1; am L 2012, c 275, 3; am L 2018, c 175, 3]
 325-125 Registry record requirements; duration of retention.  (a) The establishment of an individual's record in the registry shall not require the prior consent of a patient or the consent of a patient's parent or legal guardian in the case of a minor or dependent.  (b) The department of health shall make available to the patient or the patient's parent or legal guardian in the case of a minor or dependent, via the patient's health care provider or birthing hospital, a written description of the purpose and benefits of the registry as well as the procedure for refusing inclusion in the registry.  (c) A patient's, or in the case of a minor, the minor's parent's or legal guardian's, choice to refuse inclusion in the registry shall be documented in writing on a form or in a format approved by the department of health.  (d) Each health care provider or birthing hospital shall maintain the records of refusal of inclusion and shall report any refusal to the department of health in a manner specified by rule.  (e) When a patient, or in the case of a minor, the minor's parent or legal guardian, chooses to refuse inclusion in the registry, minimal demographic information, including the patient's name and date of birth, shall be maintained within the registry system to identify the patient as having elected to refuse inclusion in the registry. If the patient has an existing record in the registry at the time that the refusal documentation is submitted, all other patient demographic and immunization information shall be removed from the registry.  (f) All registry authorized users shall make available for inspection by the department of health all medical records relating to patient demographic and immunization information recorded in the registry or documentation of the patient's, or in the case of a minor, the minor's parent's or legal guardian's refusal of inclusion in the registry for the purposes of performing registry-related quality improvement or quality assessment activities.  (g) Registry information for any individual included within the registry shall be retained as a part of the registry for twenty-five years after the last entry, except in the case of minors, whose records shall be retained during the period of minority plus twenty-five years after the minor reaches the age of majority. At the conclusion of the retention period, the data stored in the registry for that individual shall be archived. [L 2010, c 113, pt of 1; am L 2012, c 275, 4]
 325-126 Civil and criminal liability.  (a) Authorized users of the registry shall not be subject to civil liability for damages by reason of:  (1) Providing information to the registry in good faith; or  (2) Accessing and using information from the registry in good faith for the purposes specified in section 325-124.  (b) Any person who intentionally or knowingly discloses registry information contrary to the confidentiality provisions of this part shall be guilty of a misdemeanor. [L 2010, c 113, pt of 1]
  325-13 Rules. (a) For the purpose of carrying out this chapter, the director of health, with the approval of the governor, may adopt, amend, or repeal such rules as the director deems necessary which, when adopted in accordance with chapter 91, shall have the force and effect of law.  (b) The rules shall be designed to:  (1) Protect the health and safety of the public;  (2) Establish appropriate levels of access to Hawaii immunization registry information by authorized users;  (3) Establish data entry and reporting requirements for health care providers; and  (4) Establish penalties for the failure to comply with any rule. [L 1911, c 118, 17; RL 1925, 954; RL 1935, 1114; RL 1945, 2341; RL 1955, 49-13; am L 1965, c 96, 35; HRS 325-13; gen ch 1985; am L 2010, c 113, 2]
 325-14 Penalty. Any person violating this chapter, or any rule or regulation of the department of health relating thereto, shall be deemed guilty of a misdemeanor. Except as herein otherwise provided the punishment therefor shall be the same as provided by section 321-18. [L 1911, c 118, 16; RL 1925, 953; RL 1935, 1113; am L 1943, c 43, 5(b)(2); RL 1945, 2342; RL 1955, 49-14; HRS 325-14]
  325-15 REPEALED. L 2017, c 79, 2. 
  325-16.5  Counseling and testing of sexual assault victims; testing of sex offenders upon request of victim. (a) Any sexual assault victim, or the parent or guardian of a minor or incapacitated victim, shall be informed as soon as practicable after the assault, of the availability of human immunodeficiency virus testing for the victim, the availability of counseling for the victim, and the right of the victim to request that the person charged with an offense listed in section 325-16(c)(7), involving the victim, be tested for human immunodeficiency virus. The victim, or the parent or guardian of a minor or incapacitated victim, and the charged person shall be provided human immunodeficiency virus counseling prior to being tested, and follow-up counseling at the time the results are presented to the victim or the parent or guardian of a minor or incapacitated victim and the charged person.  Any sexual assault victim, or the parent or guardian of a minor or incapacitated victim, shall be informed as soon as practicable after a conviction, of the availability of human immunodeficiency virus testing for the victim, the availability of counseling for the victim, and the right of the victim to demand that the person convicted of an offense listed in section 325-16(c)(8), involving the victim, be tested for human immunodeficiency virus. The victim, or the parent or guardian of a minor or incapacitated victim, and the convicted person shall be provided human immunodeficiency virus counseling prior to being tested, and follow-up counseling at the time the results are presented to the victim or the parent or guardian of a minor or incapacitated victim and the convicted person.  (b) The court shall order a charged person to be tested for the etiological agent for the human immunodeficiency virus (HIV) if the victim has requested that the person be tested for HIV. The following procedures shall be used when ordering the test:  (1) The victim or the parent or guardian of a minor or incapacitated victim shall be informed, as soon as practicable, of the right to request that the charged person be tested for HIV, the availability of department of health funded HIV testing for the victim, and the availability of HIV counseling for the victim. If the victim or parent or guardian of a minor or incapacitated victim requests the HIV status of a charged person, the victim, parent, or guardian shall designate a physician or a certified HIV counselor to receive the test result, provide counseling, and notify the victim, parent, or guardian of the test result;  (2) If the victim or parent or guardian of a minor or incapacitated victim requests, in writing, that the charged person be tested for HIV, the court shall order the person to submit to an HIV test subject to a showing of probable cause. Notwithstanding any law to the contrary, for purposes of determining probable cause for this order, a court may consider all relevant facts indicating whether HIV transmission is demonstrated by the preponderance of the evidence. The proceedings to determine whether or not such an order is issued shall be in camera. Whenever practicable, blood samples taken for HIV testing under this section shall be taken in conjunction with samples taken for DNA testing under section 706-603; provided that the HIV test results shall not be disclosed to any person other than the physician or HIV counselor designated to receive the results by the victim or the parent or the guardian of a minor or incapacitated victim.  The HIV test results shall remain otherwise confidential and the court may fashion orders to effectuate the prohibition against dissemination of the information. The adult probation division shall not disclose the HIV test results obtained under this section through any report. The court shall not take into account the HIV test results obtained under this section for any purpose, including determination of pretrial release of defendants, trial and sentencing. The Hawaii paroling authority shall not take into account the HIV test results obtained under this section for any purpose, including determination of minimum terms of incarceration and granting or denying of parole.  (c) The court shall order a convicted person to be tested for the etiological agent for HIV. The procedures used when ordering the test shall be as follows:  (1) The victim or the parent or guardian of a minor or incapacitated victim shall be informed, as soon as practicable, of the court order mandating the convicted person be tested for HIV, the availability of department of health funded HIV testing for the victim, and the availability of HIV counseling for the victim. The victim, parent, or guardian shall designate a physician or a certified HIV counselor to receive the test results of the convicted person, provide counseling, and notify the victim, parent, or guardian of the test results; and  (2) The proceedings to issue such an order shall be in camera.  Whenever practicable, blood samples taken for HIV testing under this section shall be taken in conjunction with samples taken for DNA testing under section 706-603; provided that the HIV test results shall not be disclosed to any person other than the physician or HIV counselor designated to receive the results by the victim or the parent or the guardian of a minor or incapacitated victim.  The HIV test results shall remain otherwise confidential and the court may fashion orders to effectuate the prohibition against dissemination of the information. The adult probation division shall not disclose the HIV test results obtained under this section through any report. The court shall not take into account the HIV test results obtained under this section for any purpose, including determination of pretrial release of defendants, trial and sentencing. The Hawaii paroling authority shall not take into account the HIV test results obtained under this section for any purpose, including determination of minimum terms of incarceration and granting or denying of parole.  (d) The results of the charged or convicted person's HIV test shall be forwarded by the laboratory to the designated physician or HIV counselor, and shall be released by the physician, in consultation with the department of health or the HIV counselor, to the charged or convicted person and the victim or the parent or guardian of a minor or incapacitated victim. Prior to such release, the victim or the parent or guardian 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 pursuant to section 325-101.  (e) No person authorized under this paragraph to withdraw blood or assist in the performance of the HIV test, or any medical facility where the blood is drawn or tested that has been ordered by the court to withdraw or test blood, shall be liable in any civil or criminal action if the test is performed in a reasonable manner according to generally accepted medical practices.  (f) As used in this section, unless the context requires otherwise:  "Charged person" means a person who has been charged with an offense under section 707-730, 707-731, 707-732(1)(a), 707-733.6, or 707-741, including a juvenile charged of such an offense. A person is charged when a formal complaint, information, or indictment has been accepted by the court.  "Convicted person" means a person who has been convicted of an offense under section 707-730, 707-731, 707-732(1)(a), 707-733.6, or 707-741, including a juvenile adjudicated of such an offense. A person is convicted when a verdict or adjudication has been rendered by a judge or jury, or a plea of guilty or nolo contendere has been accepted by the court.  "HIV counseling" means HIV counseling which conforms to the guidelines of the department of health or the Centers for Disease Control and Prevention, and includes referral for appropriate health care and support services.  "HIV counselor" means any person who has been trained and certified in HIV counseling by the department of health or the Centers for Disease Control and Prevention and who is not a victim counselor employed by or a volunteer with any law enforcement agency. [L 1998, c 238, 2; am L 2002, c 238, 3; am L 2006, c 60, 3; am L 2009, c 116, 3] Law Journals and Reviews  Reconsidering Hawai  i's HIV Statute: The Need to Protect an Individual's Basic Liberties. 28 UH L. Rev. 169.
 325-16 Informed consent for testing or disclosure. (a) A health care provider may subject a person's body fluids or tissue to a test for the presence of human immunodeficiency virus infection after:  (1) Orally explaining to the person that certain personalized test results are maintained by the department of health, according to strict confidentiality protocols established by law;   (2) Orally advising the person that free and anonymous human immunodeficiency virus testing is available through the department of health and certain community agencies;   (3) Providing the person reasonable opportunity to decline the test; and  (4) Receiving the person's express oral consent to the test.  A health care provider may, for the purpose of obtaining consent to the test and in lieu of the oral-consent procedure specified in this subsection, use a written form that, at a minimum, provides equivalent information to that prescribed by paragraphs [(1) and (2)]; provided that the health care provider shall allow the person reasonable opportunity to decline consent by declining to sign the form.   (b) No blood bank, plasma center, or any other public or private agency, institution or individual (except a health care provider acting pursuant to subsections (a) or (c)), may subject a person's body fluids or tissue to a test for the presence of human immunodeficiency virus infection unless the subject of the test:  (1) Provides informed written consent pursuant to the standards in section 671-3 to the testing; and  (2) Is afforded the opportunity to receive human immunodeficiency virus pre-test counseling by the party ordering or requesting that the test be performed; provided that the person tested shall be provided with the test results by the blood bank, plasma center, agency, institution, or individual subjecting the person to the test. The opportunity to receive counseling shall be afforded both prior to obtaining a sample for human immunodeficiency virus testing, and upon disclosure of the test results, regardless of the serostatus of the individual tested, except that testing conducted pursuant to subsection (c)(1) and (2) shall be exempted from the counseling requirements of this subsection.  (c) Consent to testing is not required for any of the following:  (1) A health care provider or organ donor center that procures, processes, distributes, or uses human body parts donated for scientific purposes, without obtaining consent, may test for the presence of human immunodeficiency virus to assure medical acceptability of the gift for the purpose intended;  (2) The department of health, laboratories and research facilities, health care providers, blood banks, plasma centers, and educational institutions may subject any body fluids or tissue to be used in research to a test for human immunodeficiency virus infection if the test is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher;  (3) Anonymous testing carried out at human immunodeficiency virus test sites established by the department of health; provided that informed oral consent is obtained;  (4) Testing of body fluids or tissue ordered by a third party, so long as that third party, including an insurance company, employer, or school, obtains the informed written consent of the person to be tested authorizing the release of the test results to the third party, and transmits a signed copy of the written informed consent to the health care provider prior to any release of the requested test results to the third party. The health care provider shall provide all positive and indeterminate human immunodeficiency virus test results and offer post-test counseling to those individuals with positive and indeterminate human immunodeficiency virus test results;  (5) Informed consent is not required where the patient is unable to give consent and it is determined by the patient's treating physician that the patient's human immunodeficiency virus status is necessary to make a diagnosis or determine an appropriate course of treatment for the patient. The patient shall be informed in a timely manner that a test for the presence of human immunodeficiency virus has been performed pursuant to this paragraph, and the health care provider shall provide all positive and indeterminate human immunodeficiency virus test results and offer appropriate post-test counseling to those individuals with positive and indeterminate human immunodeficiency virus test results;  (6) A treating physician may order a human immunodeficiency virus test without the patient's informed consent if the physician has determined that the patient is incapable of giving consent prior to the rendering of treatment and when there is reason to believe that the safety of a health care worker may be affected due to exposure to the blood or bodily fluids of a patient suspected of possible human immunodeficiency virus infection. The availability and quality of health care services shall not be compromised based on the findings and testing performed pursuant to this paragraph. The costs of any testing performed shall be borne by the health care provider and may not be claimed against the patient or the patient's health care insurer. The patient and the health care worker shall be informed in a timely manner that a test for the presence of human immunodeficiency virus has been performed pursuant to the provisions of this paragraph. The health care provider shall provide all positive and indeterminate human immunodeficiency virus test results and offer appropriate post-test counseling to the individual being tested and afford the health care worker the opportunity to obtain the test results and appropriate post-test counseling;  (7) A person who has been charged, or a juvenile who has been charged, pursuant to section 707-730, 707-731, 707-732(1)(a), 707-733.6, or 707-741 shall be tested to determine the person's human immunodeficiency virus status upon court order issued pursuant to section 325-16.5. The test shall be performed according to the protocols set forth in section 325-17; and  (8) A person who has been convicted, or a juvenile who has been adjudicated, pursuant to section 707-730, 707-731, 707-732(1)(a), 707-733.6, or 707-741 shall be tested to determine the person's human immunodeficiency virus status upon court order issued pursuant to section 325-16.5. The test shall be performed according to the protocols set forth in section 325-17.  (d) The confidentiality of all records held pursuant to this section is governed by section 325-101.  (e) Any person or institution who wilfully violates any provision of this section shall be fined not less than $1,000 nor more than $10,000 for each violation plus reasonable court costs and attorney's fees as determined by the court, which penalty and costs shall be paid to the person whose records were released. This subsection shall not be construed as limiting the right of any person or persons to recover actual damages.  (f) The department of health shall make available to health care providers current information on accessing anonymous human immunodeficiency virus testing for the purpose of providing that information to patients.  (g) The department may adopt rules, pursuant to chapter 91, to establish procedures and standards to implement this section.  (h) As used in this section, "health care provider" means a physician or surgeon licensed under chapter 453, a podiatrist licensed under chapter 463E, a health care facility as defined in section 323D-2, and their employees. "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 an institution or service. [L 1987, c 308, 1; am L 1988, c 192, 1; am L 1989, c 376, 1 and c 377, 3; am L 1998, c 238, 3; am L 2002, c 238, 2; am L 2006, c 60, 2; am L 2009, c 116, 2] Law Journals and Reviews  Reconsidering Hawai  i's HIV Statute: The Need to Protect an Individual's Basic Liberties. 28 UH L. Rev. 169. Case Notes  Sentencing court had no authority to order defendant to undergo a human immunodeficiency virus test without defendant's informed consent, and defendant could not reasonably have expected that State would request such testing as a condition of probation. 79 H. 317 (App.), 901 P.2d 1296.
 325-17 Quality assurance standards for HIV antibody testing. (a) All laboratories performing screening and diagnostic tests for the presence of the antibody to HIV (human immunodeficiency virus) shall follow the recommended protocols as set forth below. Any test used for other than experimental purposes shall be approved by the Food and Drug Administration (FDA) of the United States for the use to which it is put. Any initially reactive FDA-approved screening test must be confirmed by a second test of the same type. Any specimen yielding reactive results to both FDA-approved screening tests must have a supplemental test performed such as a Western Blot, an IFA (immunofluorescence assay), or an antigen detection assay; provided that these standards may be superseded by rules adopted by the department pursuant to chapter 91.  (b) Any laboratory performing tests for the presence of HIV may be required by the department of health to refer a sample from any specimen yielding a reactive result to the department for the purpose of supplemental testing of some or all samples for quality assurance purposes. The department may specify the information which shall accompany the specimen for epidemiological purposes; provided that the information shall not include any personal identifiers.  (c) The penalty for any violation of this section shall be as specified in section 325-14. [L 1988, c 165, 2; am L 1997, c 217, 4]
  325-18 Advisory committees for health care workers infected with blood-borne infections. (a) The director of health may appoint ad hoc advisory committees as needed to provide advice and recommendations to health care workers infected with HIV, HBV, or other blood-borne infections on the risks of blood-borne disease transmission through exposure-prone invasive procedures. An advisory committee may recommend changes in a health care worker's practice, including patient notification, to reduce the possibility of transmission to patients. Each committee shall include:  (1) An infectious disease specialist with expertise appropriate to the case; and  (2) A professional peer of the infected health care worker, who has expertise in the professional practice performed by that worker. The committee may also include the health care worker's personal physician and, if the worker's practice is facility-based, members of the facility's infection control committee. The department of health shall provide oversight and necessary staff support to the advisory committees when resources permit.  (b) An advisory committee shall serve only as long as necessary for the particular case or cases for which the committee is appointed, but its members may be named to subsequent committees as needed. Members of advisory committees shall serve without compensation, but shall be reimbursed for travel expenses as necessary by the department of health for the performance of their duties.  (c) Notwithstanding any law to the contrary, work of the advisory committees, including records, shall be confidential, except that a summary of non-identifying information and general policy recommendations may be made available to the public. All committee meetings shall be closed to the public. [L 1994, c 265, 2]
  325-19 Rubella testing of pregnant women. Every person permitted by law to attend a pregnant woman in the State, during the period of gestation or at delivery, shall cause a blood specimen from that woman to be tested for immunity to rubella, except when the woman does not consent or there is documentation that the woman has been tested previously for immunity to rubella or has been immunized against rubella. [L 1995, c 153, 1]
 325-2.5 Health care-associated infection reporting. (a) Each health care facility in the State that is certified by the Centers for Medicare and Medicaid Services shall report information about health care-associated infections to the Centers for Disease Control and Prevention's national healthcare safety network, as specified in the rules of the Centers for Medicare and Medicaid Services.  (b) Health care facilities subject to this section shall authorize the Centers for Disease Control and Prevention to allow the department to access health care-associated infection data reported by those health care facilities to the national healthcare safety network.  (c) The department may adopt rules pursuant to chapter 91 to require that health care-associated infections that are multidrug-resistant be reported to the department through the national healthcare safety network. The rules shall specify which health care facilities are required to report those health care-associated infections that are multidrug-resistant through the national healthcare safety network, as well as the patient populations that are to be targeted in the reports. The first year of reporting required under this subsection shall be a pilot test of the reporting system and shall not be reported or disclosed to the public.  (d) The department shall preserve patient confidentiality and shall not disclose to the public any patient-level data obtained from any health care facility.  (e) The department may issue reports to the public regarding health care-associated infections in aggregate data form to protect individual patient identity. The reports may identify individual health care facilities. The reports shall use the methodology or any part of the methodology developed by the Centers for Disease Control and Prevention and the Centers for Medicare and Medicaid Services for national reporting of health care-associated infections.  (f) Health care-associated infection information held by the department as a result of reporting under this section is not subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceeding; provided that health care-associated infection information otherwise available from other sources is not immune from subpoena, discovery, or introduction into evidence through those sources solely because the information was reported as required by this section.  (g) Beginning on June 30, 2013, and no later than June 30 of each year, thereafter, the department shall prepare a public report, in accordance with this section, containing information pertaining to health care-associated infections in the State for the previous calendar year.  (h) For the purposes of this section:  "Department" means the department of health.  "Health care facility" means the same as in section 323D-2. [L 2011, c 177, 2] Revision Note  Section was enacted as an addition to chapter 321 but was renumbered to this chapter pursuant to 23G-15.
  325-2 Physicians, laboratory directors, and health care professionals to report. Every physician or health care professional having a client affected by or suspected of being affected by a disease or condition declared to be communicable or dangerous to the public health by the director of health shall report the incidence or suspected incidence of such disease or condition to the department of health in writing or in the manner specified by the department of health. Every laboratory director having laboratory data regarding an individual affected by or suspected of being affected by a disease or condition declared to be communicable or dangerous to the public health shall report such diseases or conditions to the department of health in writing or in a manner specified by the health department; provided that the laboratory data reported to the department of health shall include the individual's complete demographic information, including name, date of birth, residential address, and phone number, obtained and confirmed at the time of specimen collection for the purposes of facilitating a public health investigation as necessary by the department of health. Every physician, laboratory director, or health care professional who violates this section may be fined in an amount not to exceed $1,000 per violation, to be assessed by the director of health. The director of health is authorized to impose the penalty pursuant to this section. [PC 1869, c 59, 24; am L 1911, c 125, 1; am L 1919, c 22, 1; RL 1925, 932, pt of 1022; RL 1935, 1090; am L 1943, c 43, 5(b); RL 1945, 2301; am L 1949, c 53, 29; RL 1955, 49-2; am L Sp 1959 2d, c 1, 19; HRS 325-2; gen ch 1985; am L 1987, c 265, 2; am L 1988, c 158, 1; am L 2016, c 115, 2]
  325-20 Agreements; collaborative assistance in control of disease outbreaks. (a) The director may enter into agreements for collaborative assistance with licensed health care facilities and health care providers in the State to control an epidemic of a dangerous disease, which requires more physical facilities, materials, or personnel than the department has available.  (b) Whenever used in this section, unless a different meaning clearly appears from the context:  "Dangerous disease" means any illness or health condition that might pose a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability.  "Department" means the department of health.  "Director" means the director of health.  "Epidemic" means the occurrence of cases of an illness clearly in excess of normal expectancy, as determined by the director.  "Health care facility" means a facility as defined in section 323D-2.  "Health care provider" means a provider as defined in section 323D-2.  (c) Under collaborative agreements, health care facilities or health care providers shall provide prophylactic and treatment services for the epidemic disease in collaboration with and under the general direction of the department and shall seek reimbursement from the individuals who receive medical care, the parties responsible for their care, or their health plans. Persons having health plan benefits shall be responsible for any copayments to the facilities or health care providers.  (d) The agreements may provide that the department shall use reasonable efforts to seek legislative appropriations to reimburse health care facilities and health care providers for the use of physical facilities, professional services, and materials provided to persons without health plan coverage.  (e) Except in cases of wilful misconduct, the following persons shall not be liable for the death of or injury to any person who is provided care pursuant to this section or for damage to property when resulting from any act or omission in the performance of such services:  (1) The State or any political subdivision;  (2) A health care facility or health care provider acting at the direction of the department under an agreement as provided in this section; and  (3) Persons engaged in disease prevention and control functions pursuant to this section or sections 325-8 and 325-9, including volunteers whose services are accepted by any authorized person. [L 2002, c 169, 2]
  325-21 Sale of sterile syringes for the prevention of disease. (a) The sale of sterile hypodermic syringes in a pharmacy, physician's office, or health care institution for the purpose of preventing the transmission of dangerous blood-borne diseases, may be made solely by:  (1) A pharmacist licensed under chapter 461;  (2) A physician as defined in section 327E-2;  (3) A health care provider as defined in section 327E-2; or  (4) An authorized agent of a pharmacy, as defined in section 461-1, or of a health care institution, as defined in section 327E-2, operating under the direction of a licensed pharmacist or physician.  (b) The seller under subsection (a) shall provide the purchaser written educational material approved by the department of health under subsection (e) about prevention of blood-borne diseases, drug treatment, and safe disposal of used syringes at sites where syringes are sold.  (c) The sale or purchase of sterile hypodermic syringes under subsection (a) shall not constitute an offense under section 329-43.5.  (d) Nothing in this section provides immunity from prosecution to any person who violates any law that prohibits or regulates the use, possession, dispensing, distribution, or promotion of controlled substances, dangerous drugs, detrimental drugs, or harmful drugs, including but not limited to violation of section 329-41, 329-42, or 712-1241 to 712-1249.6.   (e) The department of health shall produce and make available to pharmacies, physicians' offices, and health care institutions written educational material about prevention of blood-borne diseases, drug treatment, and safe disposal of used syringes for distribution under subsection (b).  (f) For purposes of this section, "sell" or "sale" means to transfer to another for value or consideration. [L 2001, c 292, 1; am L 2004, c 151, 2] Cross References  Needle exchange program, see  325-111 to 117.
 325-3 Others to report. The director of health shall have the authority to determine which other persons shall report to the department of health communicable diseases or conditions dangerous to the public health. The director of health may assess an administrative fine not to exceed $1,000 per violation against persons who refuse or neglect to report immediately such diseases or conditions to the department of health. Persons assessed an administrative fine under this section shall not be subject to other sanctions provided by this chapter. [PC 1869, c 59, 25; am L 1911, c 125, 2; RL 1925, 933; RL 1935, 1091; RL 1945, 2302; RL 1955, 49-3; am L Sp 1959 2d, c 1, 19; HRS 325-3; am L 1987, c 265, 3]
  325-31 REPEALED. L 1974, c 6, 1.
 325-32 Immunization against infectious diseases. (a) The department of health may adopt rules requiring and governing immunization against typhoid fever, pertussis (whooping cough), diphtheria, tetanus, poliomyelitis, measles, mumps, hepatitis B, rubella, haemophilus influenzae type B, and any other communicable disease, if a suitable immunizing agent is available for the disease and a need for immunization against it exists within the State. The department may also provide vaccines and other immunizing agents to private and public health care providers for administration to the general public.  (b) The department may adopt, amend, or repeal rules pursuant to chapter 91 to establish a list of specific vaccines that are available or may become available. Notwithstanding the notice, public hearing, and comment requirements of chapter 91 and the provisions of chapter 201M, the director of health, in consultation with the state epidemiologist, may adopt, amend, or repeal as rules, the immunization recommendations of the United States Department of Health and Human Services, Advisory Committee on Immunization Practices, including interim recommendations, as they apply to the list of specific vaccines, if any, described in this subsection. The department shall make the adoption, amendment, or repeal of rules regarding United States Department of Health and Human Services, Advisory Committee on Immunization Practices immunization recommendations known to the public by:  (1) Giving public notice of the substance of the proposed rules at least once statewide; and  (2) Posting the full text of the proposed rulemaking action on the Internet as provided in section 91-2.6. The rules, when adopted or amended pursuant to chapter 91 as modified by this section, shall have the force and effect of law. The department may defer the effective date of adopted, amended, or repealed rules to allow sufficient time to ensure compliance with the new, amended, or repealed rules. [L 1945, c 171, pt of 1; RL 1955, 49-32; am L 1967, c 23, 2; HRS 325-32; am L 1974, c 6, 2(1); am L 1993, c 266, 2; am L 2013, c 231, 3] Cross References  Insurance coverage for immunizations, see 431:10A-115.5; 431:10A-206.5; 432:1-602.5.
 325-33 Performance of vaccination and immunization. Vaccinations or immunizations required of any person under this chapter shall be performed by duly licensed physicians or paramedical personnel under their direction, advanced practice registered nurses, physician assistants, pharmacists pursuant to chapter 461, or by authorized representatives of the department of health. A record of the immunization shall be maintained by the physician, physician assistant, advanced practice registered nurse, or pharmacist and shall be available to the department of education for school entry requirements and the department of health. [L 1945, c 171, pt of 1; am L 1947, c 165, 1(a); RL 1955, 49-33; am L 1967, c 23, 3; HRS 325-33; am L 1998, c 60, 6; am L 2009, c 151, 12; am L 2019, c 218, 1]
 325-34 Exemptions. Section 325-32 shall be construed not to require the vaccination or immunization of any person for three months after a duly licensed physician, physician assistant, advanced practice registered nurse, or an authorized representative of the department of health has signed two copies of a certificate stating the name and address of the person and that because of a stated cause the health of the person would be endangered by the vaccination or immunization, and has forwarded the original copy of the certificate to the person or, if the person is a minor or under guardianship, to the person's parent or guardian, and has forwarded the duplicate copy of the certificate to the department for its files.  No person shall be subjected to vaccination, revaccination or immunization, who shall in writing object thereto on the grounds that the requirements are not in accordance with the religious tenets of an established church of which the person is a member or adherent, or, if the person is a minor or under guardianship, whose parent or guardian shall in writing object thereto on such grounds, but no objection shall be recognized when, in the opinion of the director of health, there is danger of an epidemic from any communicable disease. [L 1945, c 171, pt of 1; am L 1947, c 165, 1(b); RL 1955, 49-34; am L Sp 1959 2d, c 1, 19; am L 1967, c 23, 4; HRS 325-34; am L 1974, c 6, 2(2); gen ch 1985; am L 2009, c 151, 13; am L 2014, c 45, 8]
 325-35 Forms and procedures. The department of health may prescribe forms and procedures to achieve the purposes of sections 325-32 to 325-34 and shall maintain a complete roster of all exemptions from vaccination or immunization. [L 1945, c 171, pt of 1; am L 1947, c 165, 1(c); RL 1955, 49-35; am L 1967, c 23, 5; HRS 325-35; am L 1974, c 6, 2(3); am L 1997, c 217, 5]
 325-36 Duty of adult, or of parent, guardian, or caregiver. (a) Every adult person required to be immunized, or to do any other act, unless the person is a minor or incompetent, shall cause the immunization or other act to be performed.  (b) If the person is a minor or incompetent, the person's parent, or guardian having the person's care, custody, and control, shall cause the immunization or other related act to be performed.  (c) If reasonable efforts have been made to obtain consent from the person's parent or guardian, and consent is not obtainable because the parent or guardian cannot be located or contacted, a caregiver with whom the minor or incompetent person lives, or a non-custodial parent, may cause the immunization or other related act to be performed. [L 1945, c 171, pt of 1; RL 1955, 49-36; HRS 325-36; gen ch 1985; am L 1993, c 266, 3]
 325-37 Fraud; wilful misrepresentation; failure to comply; penalties. Any person who by fraud or wilful misrepresentation circumvents or defeats or attempts to circumvent or defeat any purpose or provision of any of sections 325-32 to 325-34 or who, required by any provision of section 325-32, to be vaccinated or immunized, fails to be so vaccinated or immunized shall be fined not more than $25 or imprisoned not more than thirty days, or both. [L 1945, c 171, pt of 1; am L 1947, c 165, 1(d); RL 1955, 49-37; HRS 325-37; am L 1974, c 6, 2(4)]
 325-38 Immunization of indigent, medically indigent, and other persons. (a) The department of health shall provide for the free immunization and vaccination of indigent and medically indigent persons and may provide such immunizations for others, especially children, of high risk and susceptibility as may be defined by the director through rules adopted pursuant to chapter 91, for their protection against the types of diseases that, in the discretion of the director, would be inimical to the health and lives of persons who may contract these diseases, including but not limited to diphtheria, pertussis, tetanus, polio, typhoid, measles, mumps, rubella, haemophilus influenza (systemic), hepatitis B, influenza, and pneumococcal disease, and against other diseases for which vaccines have and will have been developed in the future.  (b) As used in this section:  "Indigent person" means a person without adequate and proper means of subsistence to whom the department of human services is liable or responsible for support.  "Medically indigent person" means a person otherwise able to subsist but who, in the emergency of sickness, is not able to care for the extra expenses necessary to maintain or restore health.  (c) The director, through rules adopted in accordance with chapter 91, may define terms necessary to carry out the purposes of this section. [L 1965, c 128, 1; Supp, 49-38; HRS 325-38; am L 1970, c 105, 5; am L 1987, c 339, 4; am L 1993, c 362, 2]
 325-4 Identity of patients safeguarded. Reports to the department of health provided for by this chapter shall not be made public so as to disclose the identity of the persons to whom they relate except as necessary to safeguard the public health against those who disobey the rules relating to these diseases or to secure conformity to the laws of the State.  Reports to the department of health of persons who had or have diseases or conditions transmittable by blood or blood products may be disclosed by the department to any blood bank to enable it to reject as donors those individuals, any law to the contrary notwithstanding. In addition, the department may disclose to any blood bank information on persons suspected by physical symptoms, clinical examination, or laboratory evidence of having diseases or conditions transmittable by blood or blood products, any law to the contrary notwithstanding. [L 1927, c 117, 1; RL 1935, 1092; RL 1945, 2303; RL 1955, 49-4; am L Sp 1959 2d, c 1, 19; HRS 325-4; am L 1973, c 6, 1; am L 1987, c 264, 1]
 325-5 Antitoxins, antiserums, vaccines, biologics, and drugs. The department of health shall purchase from time to time out of moneys which may be available to it therefor, and keep on hand and available for administration under this section in the several counties to persons unable to pay for them, antitoxins, antiserums, vaccines, and other biologics and drugs of types and in a supply sufficient for the public health, welfare, and safety.  The antitoxins, antiserums, vaccines, biologics, and drugs shall by any physician of the department or of any such county be administered free of charge to any person who is in need of them and is unable to pay for them or shall be furnished free of charge to the attending physician of the person for use in the treatment of the person; provided that the person so benefited, or the person's estate, or personal representatives, if subsequently able to do so, may be required by the department to pay for any such antitoxin, antiserum, vaccine, biologic, or drug furnished free of charge to or for the person under this chapter. [L 1931, c 197, 1; RL 1945, 2305; am L 1945, c 191, 1; RL 1955, 49-5; am L Sp 1959 2d, c 1, 19; HRS 325-5; gen ch 1985]
  325-51 Blood samples of pregnant women required. Every physician attending a pregnant woman in the State for conditions relating to the woman's pregnancy during the period of gestation or at delivery, shall, in the case of every woman so attended, take or cause to be taken one or more samples of the blood of the woman, except when the attending physician shall have evidence that a pregnant woman has met this requirement through a previous test for syphilis, and shall submit such samples to an approved laboratory for a standard serologic test for syphilis. Every other person permitted by law to attend pregnant women in the State, but not permitted by law to take blood samples, shall cause one or more samples of the blood of every pregnant woman attended by the person to be taken by a duly licensed physician or state certified laboratory, or any other person permitted by law to withdraw blood and shall have the samples submitted to an approved laboratory for a standard serologic test for syphilis. The samples of blood shall be taken at such times during the period of gestation as are designated by rules adopted by the department of health. Every pregnant woman shall permit the sample of the woman's blood to be taken as hereinabove provided. [L 1943, c 219, 1; RL 1945, 2310; RL 1955, 49-50; HRS 325-51; am L 1983, c 82, 1; gen ch 1985]
 325-52 Serologic tests; reports. For the purposes of this part a standard serologic test shall be a test for syphilis approved by the department of health and shall be made at a laboratory approved to make such tests by the department. Such laboratory tests as are required by this part shall be made on request without charge at the department laboratories. The department shall issue a "laboratory report form" to be distributed upon application to all laboratories approved to make tests called for in this section. Any laboratory making any such tests shall prepare the report thereof in triplicate. The original of the report shall be transmitted by the laboratory making the test to the certifying physician. The duplicate copy of such report shall be forwarded to the department. The triplicate shall be retained by the laboratory in its files and shall be open at any time for inspection by an authorized representative of the department. [L 1943, c 219, 2; RL 1945, 2311; am L 1945, c 105, 1; RL 1955, 49-51; am L Sp 1959 2d, c 1, 19; HRS 325-52]
 325-53 Reports of blood tests. In reporting a birth or fetal death, every physician or other person required to make such reports shall state, in a report accompanying the certificate, whether, according to the physician's or other person's knowledge or information, a blood test for syphilis has been made upon a specimen of blood taken from the woman who bore the child for which the birth or stillbirth certificate is filed and the approximate date when the specimen was taken. The department of health may investigate the circumstances surrounding the birth of any baby on whose mother no serologic test, as required by this part, appears to have been taken. Failure on the part of any physician or other person permitted by law to attend pregnant women to comply with this part may be punished by an administrative fine in an amount not to exceed $1,000 per violation, to be assessed by the director of health. The director of health is authorized to impose the penalty pursuant to this section. [L 1943, c 219, 3; RL 1945, 2312; RL 1955, 49-52; am L Sp 1959 2d, c 1, 19; HRS 325-53; gen ch 1985; am L 1988, c 158, 2]
 325-54 Reports confidential; penalty. Any information secured from the tests or the reports in this part required to be made by persons having access to such tests or reports shall be used only in connection with their professional duties or within the scope and course of their employment, but not otherwise, and except to the extent required in connection with enforcement of the laws and ordinances of the State, and its political subdivisions, and valid rules and regulations adopted thereunder, which are for the protection of the public health, shall not be divulged to others than the doctor and other person permitted by law to attend and attending a pregnant woman, laboratory technicians, or the department of health and its duly authorized representatives. Any person violating this section shall be fined $500, or imprisoned not more than ninety days, or both. [L 1943, c 219, 4; RL 1945, 2313; RL 1955, 49-53; am L Sp 1959 2d, c 1, 19; HRS 325-54] Cross References  Classification of offense and authorized punishment, see  701-107, 706-640, 663.
 325-55 Rules and regulations. The department of health may, subject to the approval of the governor, adopt, promulgate, and enforce rules and regulations for the more effective enforcement of this part. [L 1943, c 219, 5; RL 1945, 2314; RL 1955, 49-54; am L Sp 1959 2d, c 1, 19; HRS 325-55] Cross References  Rulemaking, see chapter 91.
 325-56 Penalty. Any physician or other person permitted by law to attend pregnant women, and any other person, who violates this part or any rule of the department of health adopted pursuant to this part, may be fined in an amount not to exceed $1,000 per violation, to be assessed by the director of health. The director of health is authorized to impose the penalty pursuant to this section. [L 1943, c 219, 6; RL 1945, 2315; RL 1955, 49-55; am L Sp 1959 2d, c 1, 19; HRS 325-56; am L 1988, c 158, 3]
 325-6 Epidemic control. Such appropriations as may be necessary for the purpose of controlling, suppressing, or preventing the spread of any communicable or preventable disease in the State or in any county thereof shall be allocated by the legislature out of the proceeds of the state general fund. The department shall include in its budgetary request for each upcoming fiscal period, the amounts necessary to effectuate the purposes of this section.  Whenever the department of health certifies that any communicable or preventable disease is present to such an extent that the usual facilities and personnel of the department are not adequate to properly control, suppress, or prevent the spread of the disease, expenditures may be made by the department, with the approval of the governor, for use, in whatever manner the department may deem necessary, in controlling, suppressing, or preventing the spread of any such disease. [L 1941, c 121,  1, 2; am L 1943, c 43, 2; RL 1945, 2306; RL 1955, 49-6; am L 1957, c 152, 1; am L Sp 1959 2d, c 1, 19; HRS 325-6; am L 1993, c 280, 35]
  325-7 REPEALED. L 1996, c 211, 7.
  325-71 Reports by physicians and others. (a) Every physician, and every individual in charge of an inpatient or outpatient health care facility, shall report in writing to the department of health the identity of and epidemiologic information concerning every person known or suspected to have tuberculosis and shall, upon request, provide to the department x-ray films and medical information from the record of any person known or suspected by the department to have tuberculosis.  (b) Every director of a laboratory identifying mycobacterium tuberculosis or organisms which may be mycobacterium tuberculosis in the sputum, body fluids, or tissues of any person, living or dead, shall submit a report of such examination in writing to the department of health.  (c) Release of information to the department of health pursuant to this section may be made without the prior informed consent of the individual to whom the information pertains.  (d) A report made by one of the above charged individuals does not absolve the others from their individual reporting responsibilities.  (e) The director of health may adopt rules pursuant to chapter 91 necessary for the purposes of this part. [L 1911, c 118, 7; RL 1925, 944; RL 1935, 1104; RL 1945, 2322; RL 1955, 49-60; am L Sp 1959 2d, c 1, 19; HRS 325-71; am L 1983, c 81, 1; gen ch 1985; am L 1989, c 95, 1]
 325-72 Examination of sputum. The bacteriologist of the department of health, when so requested by any physician, or by the authorities of any hospital or dispensary, shall make, or cause to be made, a microscopical examination of the sputum forwarded to the bacteriologist as that of a person having symptoms of tuberculosis, which shall be forwarded to the officer accompanied by a blank giving name, age, sex, nationality, occupation, place where last employed, if known, and address of the person whose sputum it is. The bacteriologist shall promptly make a report of the results of the examination, free of charge, to the physician or person upon whose application the same is made. [L 1911, c 118, 8; RL 1925, 945; RL 1935, 1105; RL 1945, 2323; RL 1955, 49-61; am L Sp 1959 2d, c 1, 19; HRS 325-72]
 325-73 Protection of record; penalty. The department of health shall cause all reports made in accordance with the provisions of section 325-71, and also all results of examinations showing the presence of the bacilli of tuberculosis, made in accordance with section 325-72, to be recorded in a register. The register shall remain in the care, custody, and control of the department. The department may disclose the contents of any such report or record to relatives or officials of social and welfare organizations in the State. The information disclosed to such officials shall not be divulged by them so as to disclose the identity of any person to whom it relates.  Any person who violates this section shall be fined not more than $1,000. [L 1911, c 118, 9; RL 1925, 946; am L 1929, c 202, 1; RL 1935, 1106; RL 1945, 2324; RL 1955, 49-62; am L Sp 1959 2d, c 1, 19; HRS 325-73]
 325-74 Physicians; precautions; instructions. A physician attending a patient having tuberculosis shall take all proper precautions and give proper instructions to provide for the safety of all individuals occupying the same house or apartment. [L 1911, c 118, 13; RL 1925, 950; RL 1935, 1110; RL 1945, 2328; RL 1955, 49-66; HRS 325-74]
 325-75 Reporting recovery of patient. Upon the recovery of any person having tuberculosis, the attending physician shall make a report of this fact to the department of health or its agent, who shall record the same, and shall relieve the person from further liability to any requirement imposed by this part. [L 1911, c 118, 15; RL 1925, 952; RL 1935, 1112; RL 1945, 2330; RL 1955, 49-68; am L Sp 1959 2d, c 1, 19; HRS 325-75]
 325-76 Examinations for tuberculosis. (a) Examinations for tuberculosis required or recommended by the department of health, including skin tests, x-rays, and other tests as may be appropriate for tuberculosis control purposes, shall be provided by the department at no charge.  (b) If any person suspected of having communicable tuberculosis by the department of health refuses to complete the examinations ordered by the department after having been notified by the department that such examinations are necessary, any court of competent jurisdiction, upon application to the court by the department, may order the person to be examined in a manner and by a facility acceptable to the department of health. [L 1947, c 79, 1; RL 1955, 49-69; am L Sp 1959 2d, c 1, 19; HRS 325-76; am L 1986, c 117, 1]
 325-77 Notice. The department of health shall conduct such examinations at such places throughout the State as it deems advisable after the giving of a public notice of the time and place the examinations are to be held. [L 1947, c 79, 2; am L 1949, c 60, 1; RL 1955, 49-70; am L Sp 1959 2d, c 1, 19; HRS 325-77]
 325-78 Test and treatment for tuberculosis. (a) The department of health may establish charges and collect fees for any diagnostic, medical, or treatment services relating to tuberculosis treatment or control; provided that the department shall not refuse to provide diagnostic, medical, or treatment services relating to tuberculosis treatment or control to any patient due to the patient's inability to pay for the service relating to tuberculosis treatment or control. Voluntary payments, contributions, or gifts for such purposes may be received, but shall not be requested or solicited from any patient or any of the patient's relatives, by the department.  (b) This section shall not prohibit the department from contracting with one or more other public or private agencies or persons for tests, diagnostic procedures, medical care, chemotherapy, or hospitalization of persons in reference to tuberculosis for specified fees or charges, or from accepting, holding, expending, or using voluntary payments, assignment of medical insurance payments, contributions, or gifts for purposes consistent with the terms or conditions of the payments, contributions, or gifts. [L 1949, c 90, 1; RL 1955, 49-71; am L Sp 1959 1st, c 13, 2; am L Sp 1959 2d, c 1, 19; am imp L 1961, c 26, 1; HRS 325-78; am L 1976, c 8, 2; gen ch 1985; am L 1992, c 28, 1] Cross References  Rulemaking, see chapter 91.
   325-79 to 84 REPEALED. L 2002, c 169,  6 to 11.
 325-8 Infected persons and quarantine. (a) As used in this section:  "Communicable disease" means any disease declared to be "communicable" by the director of health.  "Dangerous disease" means a disease as defined in section 325-20.  "Quarantine" means the compulsory physical separation, including the restriction of movement or confinement of individuals or groups believed to have been exposed to or known to have been infected with a contagious disease, from individuals who are believed not to have been exposed or infected, by order of the department or a court of competent jurisdiction.  (b) In implementing a quarantine, the dignity of the individual quarantined shall be respected at all times and to the greatest extent possible, consistent with the objective of preventing or limiting the transmission of the disease to others. The needs of individuals quarantined shall be addressed in as systematic and competent a fashion as is reasonable under the circumstances. To the greatest extent possible, the premises in which individuals are quarantined shall be maintained in a safe and hygienic manner, designed to minimize the likelihood of further transmission of infection or other harm to individuals subject to quarantine. Adequate food, clothing, medication, and other necessities, access to counsel, means of communication with those in and outside these settings, and competent medical care shall be provided to the person quarantined.  To the greatest extent possible, cultural and religious beliefs shall be considered in addressing the needs of quarantined individuals. The department may establish and maintain places of quarantine and quarantine any individual by the least restrictive means necessary to protect the public health.  The department shall take all reasonable means to prevent the transmission of infection between or among quarantined individuals. The quarantine of any individual shall be terminated when the director determines that the quarantine of that individual is no longer necessary to protect the public health.  (c) An individual subject to quarantine shall obey the department's rules and orders, shall not go beyond the quarantined premises, and shall not put the individual's self in contact with any individual not subject to quarantine other than a physician, health care provider, or individual authorized to enter a quarantined premises by the department. Violation of any of the provisions of this subsection is a misdemeanor.  (d) No individual, other than an individual authorized by the department, shall enter a quarantined premises. Any individual entering a quarantined premises without permission of the department shall be guilty of a misdemeanor. If, by reason of an unauthorized entry into a quarantined premises, the individual poses a danger to public health, the individual may be subject to the quarantine pursuant to this section.  (e) Before quarantining an individual, the department shall obtain a written, ex parte order from a court of this State authorizing such action. A petition for an ex parte order shall be filed with the circuit court of the circuit in which the individual resides, is suspected of residing, or is quarantined under subsection (f). Proceedings on or related to a petition for an ex parte order shall be a civil action. The court shall grant an ex parte order upon finding that probable cause exists to believe a quarantine is warranted pursuant to this section. A copy of the ex parte order shall be given to the individual quarantined, along with notification that the individual has a right to a hearing under this section.  (f) Notwithstanding subsection (e), the department may quarantine an individual without first obtaining a written, ex parte order from the court if any delay in the quarantine of the individual would pose an immediate threat to the public health. Following such a quarantine, the department shall promptly obtain a written, ex parte order from the court authorizing the quarantine.  (g) An individual quarantined pursuant to subsection (e) or (f) shall have the right to a court hearing to contest the ex parte order. If the individual, the individual's guardian ad litem, or the individual's counsel requests a hearing, the hearing shall be held within fourteen days of filing of the request. The request shall be in writing and shall be filed with the circuit court in the circuit in which the individual is quarantined. A request for a hearing shall not alter or stay the quarantine of the individual. The department shall be notified of the request for a hearing at least ten days before the hearing. At the hearing, the department shall show that the quarantine is warranted pursuant to this section. If, after hearing all relevant evidence, the court finds that the criteria for quarantine under subsection (i) have been met by clear and convincing evidence, the court shall authorize the continued quarantine of the individual.  (h) On or after thirty days following the issuance of an ex parte order or a hearing as provided for in this section, an individual quarantined pursuant to this section may request in writing a court hearing to contest the continued quarantine. The hearing shall be held within fourteen days of the filing of the request. The request shall be in writing and shall be filed with the circuit court for the circuit in which the individual is quarantined. A request for a hearing shall not alter or stay the order of quarantine. The department shall be notified of the request for a hearing at least ten days before the hearing. At the hearing, the department shall show that continuation of the quarantine is warranted pursuant to this section. If, after hearing all relevant evidence, the court finds that the criteria for the quarantine under subsection (i) have been met by clear and convincing evidence, the court shall authorize the continued quarantine of the individual.  (i) A court may order an individual to be quarantined if the court finds that:  (1) The individual is reasonably believed to have been exposed to or known to have been infected with a communicable or dangerous disease; and  (2) A quarantine is the least restrictive means by which the public's health, safety, and welfare can be protected, due to the transmittable nature of the communicable or dangerous disease and the lack of preventive measures, or due to the failure by the individual quarantined to accept or practice less restrictive measures to prevent disease transmission.  (j) An individual quarantined pursuant to this section may request a hearing in the courts of this State regarding the individual's treatment and the terms and conditions of the quarantine. Upon receiving a request, the court shall fix a date for a hearing. The hearing shall take place within fourteen days of the filing of the request with the court. The request for a hearing shall not alter or stay the order of quarantine. The department shall be notified of the request for a hearing at least ten days before the hearing. If, upon a hearing, the court finds that the quarantine of the individual is not in compliance with subsection (b), the court may fashion remedies reasonable under the circumstances and consistent with this chapter.  (k) Judicial decisions shall be based upon clear and convincing evidence, and a written record of the disposition of the case shall be made and retained. If the personal appearance before the court of a quarantined individual is determined by the director to pose a threat to individuals at the proceeding and the quarantined individual does not waive the right to attend the proceeding, the court shall appoint a guardian ad litem as provided in article V of chapter 560, to represent the quarantined individual throughout the proceeding or shall hold the hearing via any means that allow all parties to participate as fully and safely as is reasonable under the circumstances.  (l) Upon written request, the court shall appoint counsel at state expense to represent individuals or groups of individuals who are or who are about to be quarantined pursuant to this section and who are not otherwise represented by counsel. Adequate means of communication between those individuals or groups and their counsel and guardians ad litem shall be provided.  (m) In any proceeding brought pursuant to this section, in consideration of the protection of the public's health, the severity of the emergency, and the availability of necessary witnesses and evidence, the court may order the consolidation of claims by individuals involved or to be affected by a quarantine where:   (1) The number of individuals involved or to be affected by a quarantine is so large as to render individual participation impractical;   (2) There are questions of law or fact common to the individual claims or rights to be determined;   (3) The group claims or rights to be determined are typical of the affected individuals' claims or rights; and   (4) The entire group will be adequately represented in the consolidation.  (n) Each individual quarantined shall be responsible for the costs of food, lodging, and medical care, except for those costs covered and paid by the individual's health plan. [PC 1869, c 59, 26; am L 1911, c 125, 4; RL 1925, 935; RL 1935, 1095; am L 1941, c 262, 1; RL 1945, 2307; RL 1955, 49-8; am L Sp 1959 2d, c 1, 19; HRS 325-8; gen ch 1985; am L 2002, c 169, 5]
 325-9 Quarantine without removal; duty of police officers to assist in removals and enforcement of quarantine. If the department of health or its agent determines that the removal of the person infected or suspected of being infected would directly and seriously aggravate the disease so as to endanger the person's life, the department, or its agent may make provision for the person, as directed in section 325-8, in the house in which the person may be; and, in such case, the department or its agent may cause the persons in the neighborhood to be removed, and may take such other measures as it judges necessary for the public health and safety. The department or its agent, in effecting any removal or quarantine under this section or section 325-8, may require any sheriff, deputy sheriff, chief of police, or police officer to aid and assist it, and such force as is reasonably necessary to effect any such removal or quarantine may be used.  Every sheriff, deputy sheriff, chief of police, or police officer who is so required to aid and assist the department or its agent shall immediately aid and assist it. [PC 1869, c 59, 27; RL 1935, 1096; am L 1941, c 262, 2; RL 1945, 2308; RL 1955, 49-9; am L Sp 1959 2d, c 1, 19; HRS 325-9; gen ch 1985; am L 1989, c 211, 10; am L 1990, c 281, 11; am L 2005, c 29, 1; am L 2006, c 38, 8]
  325-91 Blood transfusion; hepatitis. In the procuring, furnishing, donating, processing, distributing or using of human whole blood, plasma, blood products or blood derivatives for the purpose of injecting or transfusing in the human body, there shall be no implied warranty that the blood, plasma, products or derivatives are free from the virus of serum hepatitis as long as there is no known scientific test to detect the virus of serum hepatitis. [L 1969, c 185, 1] Cross References  Advisory committees for infected health care workers, see 325-18.
  325-92 Prenatal hepatitis B screening and treatment of newborns. The department of health may adopt rules necessary to provide appropriate hepatitis B screening of pregnant women, including reporting and follow-up procedures for newborns of hepatitis B carrier mothers. The department may provide medications necessary for the treatment of newborns of indigent and medically indigent carrier mothers. [L 1987, c 13, 1]
  326-1.3 Liberty, autonomy, and dignity of patient residents. (a) In recognition of the disruptions and hardships experienced over the course of their lives by former Hansen's disease patients residing at Kalaupapa, the legislature declares its intent to ensure that all residents at Kalaupapa are treated with dignity, respect, courtesy, and sensitivity and that the protections extended by this chapter to the patient residents at Kalaupapa are honored and upheld by the department of health to the extent possible within their purview.  (b) Notwithstanding any other law to the contrary, the department of health shall promote and protect the personal liberty, autonomy, and dignity of all patient residents at Kalaupapa. [L 2005, c 37, 1]
  326-1.5 Patients living in the community; policy on services. It is the policy of the State that all persons who were institutionalized for segregation by order of the department of health because of Hansen's disease and who live in the community shall be accorded adequate health care and other medical treatment and services for the remainder of their lives as provided under sections 326-1 and 326-13, as long as they reside in the State; provided that the department of health shall be the payor of last resort for medical treatment and services not related to the treatment and care of Hansen's disease. [L 1992, c 156, 2]
 326-1 Establishment of facilities for the treatment and care of persons with Hansen's disease. The department of health, subject to the approval of the governor, shall establish and maintain facilities and services as are necessary for the care and treatment of persons with Hansen's disease and persons who were institutionalized for segregation by order of the department of health because of Hansen's disease.  Every such facility or service provider shall exercise every reasonable effort to effect a cure of those persons. All such persons shall be cared for as well as circumstances will permit, in accordance with accepted medical practices. Every patient shall be encouraged to take complete treatment so that prompt recovery can be attained. Isolation and treatment shall be compulsory only in those cases where, in the opinion of the department, that treatment is necessary to protect the health of the public, and the department may take such measures as may be necessary to enforce this section, including the adoption of rules pursuant to chapter 91. [L 1909, c 81, 1; RL 1925, 1183; am L 1931, c 139, 5; am imp L 1933, c 118, 2; RL 1935, 1140; RL 1945, 2401; am L 1949, c 53, 1; am L 1951, c 157, 1; am L 1953, JR 41, 5; RL 1955, 50-1; am L Sp 1959 2d, c 1, 19; HRS 326-1; am L 1969, c 152, 2; am L 1981, c 185, 3; am L 1985, c 250, 2; am L 1992, c 156, 3] Cross References  General excise tax exemption, see 237-23.  Income tax exemption, see 235-7.  Real property tax exemption, see 246-30. Case Notes  Segregation of Hansen's disease sufferers legal. 5 H. 162.  See also case notes to 326-3.
 326-11 Voluntary transfer to and from Kalaupapa. Any person undergoing treatment and receiving care for Hansen's disease at Hale Mohalu on June 30, 1969, may be transferred to Kalaupapa for care and treatment if the person desires. Any person who may undergo treatment and receive care for Hansen's disease at Hale Mohalu after June 30, 1969, may apply to the director of health for transfer to Kalaupapa. Any person undergoing treatment and receiving care for Hansen's disease at Kalaupapa may be transferred to Hale Mohalu for care and treatment if the person desires. A person transferred may be retransferred to Kalaupapa if the person desires. [L 1953, JR 41, 1; RL 1955, 50-13; am L Sp 1959 2d, c 1, 19; HRS 326-11; am L 1969, c 152, 4; am L 1981, c 185, 8; am L 1985, c 250, 6]
 326-12 REPEALED. L 1969, c 152, 11.
 326-13 Expenses; rules. (a) The department of health shall bear all expenses of travel and other necessary expenses incurred under sections 326-1 to 326-14 and may adopt all rules and forms and perform all acts necessary and proper for carrying out their provisions.  (b) Expenses related to patients shall be tracked separately from nonpatient costs, whenever appropriate and possible. [L 1909, c 81, 8; RL 1925, 1190; RL 1935, 1152; RL 1945, 2414; RL 1955, 50-15; am L Sp 1959 2d, c 1, 19; HRS 326-13; am L 2004, c 232, 3] Note  Sections 326-6 to 10, 12, and 14 referred to in text are repealed. Cross References  Rulemaking, see chapter 91.
   326-14, 15 REPEALED. L 1969, c 152, 11.
  326-16 REPEALED. L 1992, c 156, 10.
  326-17 to 19 REPEALED. L 1969, c 152, 11.
 326-2 Equal treatment of patients. Every Hansen's disease sufferer at Hale Mohalu and Kalaupapa shall be accorded as nearly equal care and privileges as is practicable under the different operating conditions of the two institutions. [L 1953, JR 41, 7; RL 1955, 50-2; HRS 326-2; am L 1969, c 152, 1; am L 1981, c 185, 4]
 326-20  REPEALED. L 1992, c 156, 11.
 326-21 Employment of patients. At any facility for the care and treatment of persons with Hansen's disease, the department of health, with the consent of a patient, may employ that patient to perform labor or service.  When there are vacancies in positions, classified under chapter 76, at a facility exclusively for the care and treatment of persons with Hansen's disease, employment preference shall be given to temporary release patients and discharged patients from those facilities provided that the persons so hired shall be otherwise qualified under chapter 76.  Discharged patients who have been employed prior to December 30, 1960, under chapter 76 in accordance with the second paragraph of this section shall be eligible to receive the same rights and privileges as those enjoyed by temporary release patients employed under the second paragraph of this section. [L 1937, c 108, 1; RL 1945, 2424; am L 1951, c 157, 11; am L 1953, c 241, 1; RL 1955, 50-24; am L 1957, c 10, 1; am L Sp 1959 2d, c 1, 19; am L 1961, c 13, 1; HRS 326-22; am L 1969, c 152, 1; am L 1974, c 115, 2; am L 1981, c 185, 10; ren and am L 1983, c 183, 2; am L 1985, c 250, 8; am L 1992, c 156, 5; am L 2000, c 253, 150] Case Notes  Existence or nonexistence of Hansen's disease not to be determined collaterally in habeas corpus proceedings. 19 H. 218.
 326-22 Compensation of patient employees. The compensation for patients employed under section 326-21 shall be set by the department of health; provided that in no case shall the compensation be less than the minimum wage as established by section 387-2.  Each patient employee of the department shall be entitled to and granted sick leave with pay and a vacation with pay each calendar year, each calculated at the following rate:  For patients working six hours a day, one and one-half days for each month of service;  For patients working five hours a day, one and one-quarter days for each month of service;  For patients working four hours a day, one day for each month of service.  A month of service is defined as eighty or more hours of work which may be accumulated over any period of time to total eighty hours. No more than twelve months of service may be earned and credited in any calendar year, even if the total number of hours worked should exceed nine hundred sixty hours. [PC 1869, c 62, 5; am L 1929, c 149, pt of 1; am L 1931, c 139, 5; am L 1933, c 118, 1; RL 1945, 2423; am L 1945, c 159, 1; am L 1949, c 371, 1 and c 378, 1; RL 1955, 50-23; am L 1959, c 146, 1; am L Sp 1959 2d, c 1, 19; am L 1962, c 28, 32; HRS 326-21; am L 1968, c 34, 2; am L 1974, c 115, 1; ren and am L 1983, c 183, 3; am L 1989, c 66, 1]
  326-23 Pensions for patient employees at facilities. (a) All patient employees or patient laborers at every facility maintained for the treatment and care of persons with Hansen's disease shall be entitled, upon retirement after twenty years or more service with the department of health, to a pension in an amount which shall be equal to sixty-six and two-thirds per cent of the monthly wage or salary which the patient was receiving at the time of retirement, or to a pension in an amount which shall be equal to sixty-six and two-thirds per cent of the average monthly wage or salary which the patient employee was receiving during the last twelve months of employment at the department of health, whichever is higher. For the period from July 1, 2007, to June 30, 2008, the pension amounts shall be adjusted as follows:  (1) Retired patient employees receiving less than $4,000 annually shall be granted a five per cent increase;  (2) Retired patient employees receiving $4,000 or more but less than $5,000 annually shall be granted a four per cent increase; and  (3) Retired patient employees receiving $5,000 or more annually shall be granted a 2.5 per cent increase. For the period from July 1, 2008, to June 30, 2009, all retired patient employees shall be granted a 2.5 per cent increase. Thereafter, the pension amounts shall remain as adjusted effective for the period ending June 30, 2009.  (b) Patient employees may use service with any state department or agency not exceeding five years which has not been credited under the state retirement system in lieu of service with a facility maintained for the treatment and care of persons with Hansen's disease to satisfy the requirements of subsection (a); provided that the service shall be authenticated by official records of the department where service was performed.  (c) When work is available at Kalaupapa which may be fulfilled by patient residents of the facility under section 326-21 and there are no applicants for those positions from among the eligible patients, pensioned patients who are in residence at Kalaupapa may be reemployed, not to exceed nineteen hours per week, without relinquishing the pension granted to them under this section. Furthermore, notwithstanding any other law relating to this subject, that reemployment shall not result in suspension or termination of payment of the pension granted originally or serve to increase, decrease, or alter the pension in any way. [L 1945, c 229, 1; am L 1949, c 53, 16; am L 1951, c 157, 12; RL 1955, 50-25; am L 1957, c 57, 1; am L Sp 1959 2d, c 1, 19; HRS 326-23; am L 1970, c 43, 1; am L 1979, c 18, 1; am L 1981, c 185, 11; am L 1985, c 250, 9; am L 1992, c 156, 6; am L 2008, c 49, 1] Attorney General Opinions  District magistrate of Kalawao is not in "service with the board of health". Att. Gen. Op. 63-21.
 326-24 Rules. The director of health may adopt rules pursuant to chapter 91 necessary for the conduct of all matters pertaining to Hansen's disease, the treatment and care thereof, and other services provided to persons affected with Hansen's disease, and the full and complete governance of the county of Kalawao, except as limited by this chapter. [L 1870, c 33, pt of 1; RL 1925, 1199; am L 1931, c 139, 5; am L 1933, c 118, 1; RL 1935, 1162; RL 1945, 2425; am L 1949, c 53, 17; am L 1951, c 157, 13; RL 1955, 50-26; am L 1965, c 96, 36; HRS 326-24; am L 1969, c 152, 6; am L 1981, c 185, 12; am L 1985, c 250, 10]
  326-25.5 Annual report. The department of health shall submit a report to the legislature no later than twenty days prior to the convening of each regular session that addresses the following with regard to Kalaupapa Settlement:  (1) The department's provision of medical and basic living needs of the patients;  (2) The department's progress toward defining and addressing the nonmedical needs of patients;  (3) The department's progress toward promoting a positive living environment;  (4) The department's management of state resources, including benefits given to employees that are not statutorily defined;  (5) The department's progress toward establishing written policies and procedures for Kalaupapa store;  (6) The department's progress toward establishing and maintaining a complaint file and adequately addressing complaints;  (7) The performance of the administrator, including compliance with job duties;  (8) The department's progress toward adequate accountability of state property; and  (9) Details and justification of approved employee air travel requests and trail pay. [L 2004, c 232, 2]
 326-25 Accounts, reports. The department of health shall keep an accurate and detailed account of all sums of money expended by it. The department shall report to the legislature at its regular sessions, such expenditures in detail, together with such information regarding Hansen's disease as it may deem to be of interest to the public. [PC 1869, c 62, 7; RL 1925, 1200; am L 1931, c 139, 5; am L 1933, c 118, 1; RL 1935, 1163; RL 1945, 2426; am L 1949, c 53, 18; RL 1955, 50-27; am L Sp 1959 2d, c 1, 19; HRS 326-25; am L 1969, c 152, 1; am L 1982, c 147, 15]
 326-26 Persons allowed at places for Hansen's disease patients. (a) No person, not having Hansen's disease, shall be allowed to visit or remain upon any land, place, or inclosure set apart by the department of health for the domiciles and community facilities of persons affected with Hansen's disease, without the written permission of the director of health, or some officer authorized thereto by the department, under any circumstances whatever, and any person found upon such land, place, or inclosure without a written permission shall be fined not less than $10 nor more than $100 for such offense; provided that any patient resident of Kalaupapa desiring to remain at the facility shall be permitted to do so for as long as the person may choose, regardless of whether the person has been successfully treated.  (b) Notwithstanding subsection (a), upon the request of a patient, the non-patient-spouse of a patient residing at Kalaupapa shall be allowed to reside with the patient-spouse at Kalaupapa. The non-patient-spouse shall not be entitled to receive any services or benefits accorded specifically to Hansen's disease patients at Kalaupapa. [L 1870, c 33, pt of 1; am L 1903, c 8, 2; RL 1925, 1201; am L 1931, c 139, 5; am L 1933, c 118, 1; RL 1935, 1164; RL 1945, 2427; am L 1949, c 53, 19; RL 1955, 50-28; am L Sp 1959 2d, c 1, 19; HRS 326-26; am L 1969, c 152, 1; am L 1977, c 25, 3; am L 1981, c 185, 13; am L 1982, c 147, 16; am L 1985, c 250, 11; am L 1996, c 2, 1]
 326-27 Kalaupapa store; loans for operation and maintenance. (a) All moneys to enable the department of health to operate and maintain the Kalaupapa store, situated in Kalaupapa, Molokai, shall be allocated by the legislature through appropriations out of the state general fund.  (b) The department shall include in its budgetary request for each upcoming fiscal period, the amounts necessary to effectuate the purposes of this section.  (c) All moneys received in reimbursement of payments made under this section shall be deposited to the credit of the state general fund. [L 1915, c 15, 1; RL 1925, 1202; am L 1931, c 139, 5; am L 1933, c 118, 1; RL 1935, 1165; RL 1945, 2428; RL 1955, 50-29; am L Sp 1959 2d, c 1, 19; HRS 326-27; am L 1993, c 280, 38]
 326-28 Kalaupapa store prices; penalty. It shall be unlawful for the department of health or its agents to sell or offer for sale any merchandise at the Kalaupapa store at prices exceeding the actual cost thereof, free on board steamer or any other means of transportation at Honolulu. Any person violating this section shall be fined $25 and in addition thereto shall, in the discretion of the department, be subject to removal from office. [L 1927, c 245,  1, 2; am imp L 1931, c 139, 5; am imp L 1933, c 118, 1; RL 1935, 1166; RL 1945, 2429; am L 1949, c 80, 1(4); RL 1955, 50-30; am L Sp 1959 2d, c 1, 19; HRS 326-28]
 326-29 Fishing laws exemption; Kalaupapa. Notwithstanding any provision of law to the contrary, state laws on fishing shall not be applicable to Hansen's disease patients of Kalaupapa, provided the patients engage in fishing along the shorelines and in waters immediately adjacent to the county of Kalawao.  No fish or other marine products obtained by patients may be sold outside of the county of Kalawao.  The department of health shall adopt rules pursuant to chapter 91 necessary to control all fishing and acquisition of marine products by Hansen's disease patients. [L 1957, c 106,  1 to 3; am L Sp 1959 2d, c 1, 19; Supp, 50-41; HRS 326-29; am L 1969, c 152, 1; am L 1981, c 185, 14; am L 1985, c 250, 12] Cross References  Fishing regulations, generally, see chapter 188, pt II.
 326-3 Care in other hospitals, homes, etc. Notwithstanding any law relating to this subject matter, the department of health may make arrangements for the care and treatment of any person within the State at any hospital, nursing home, or other residential facility in the State, either public or private, and bear all expenses of the hospitalization and treatment and any other necessary expenses in the same manner as though the person were staying at any facility for the care and treatment of persons with Hansen's disease established under section 326-1. Any moneys at any time appropriated for the care of patients or maintenance of a facility established under section 326-1 may be used by the department to pay any hospital, nursing home, or other residential facility with which the department has made those arrangements. When those arrangements have been made the other provisions of this chapter relating to the examination, care, treatment, and discharge of patients shall apply to the institution and patient involved in the same manner as they apply to a facility established under section 326-1. [L 1949, c 392, 1; am L 1951, c 157, 2; RL 1955, 50-3; am L Sp 1959 2d, c 1, 19; HRS 326-3; am L 1969, c 152, 1; am L 1981, c 185, 5; am L 1985, c 250, 3; am L 1992, c 156, 4] Case Notes  Sections 326-1 and 326-3, taken together, appear to authorize patient transfers at will. While Hale Mohalu residents would have only "unilateral expectation" to services at that facility, entitlement to treatment at some facility requires due process protection. State may not reduce services to leprosy patients to point of imperiling life or imposing severe hardship without pretermination hearing. Transfer of Hale Mohalu patients may work such reduction due to phenomenon of "transfer trauma". 616 F.2d 410.  State decision to close Hale Mohalu and transfer patients. 720 F.2d 564.
 326-30 Making or taking of pictures without permission prohibited. (a) No person shall photograph, film, or videotape any patient at any facility maintained by the department of health for the care and treatment of persons with Hansen's disease, without the written permission of the patient.  (b) Any person violating this section shall be fined not more than $1,000 per incident. [L 1923, c 78,  1, 2; RL 1925, 1203; am L 1925, c 98, 1; am L 1931, c 139, 5; am L 1933, c 118, 1; RL 1935, 1167; RL 1945, 2430; am L 1949, c 80, 1(5); am L 1951, c 157, 14; RL 1955, 50-31; HRS 326-30; am L 1969, c 152, 7; am L 1981, c 185, 15; am L 1985, c 250, 13; am L 1992, c 156, 7]
  326-31, 32 REPEALED. L 1969, c 152, 11.
 326-33 Damien Memorial Chapel. The Father Damien Memorial Chapel at Kalawao, Molokai, and the premises and graveyard thereof are hereby declared to be a public memorial to Father Damien. [L 1935, c 38, 1; RL 1945, 2437; RL 1955, 50-34; HRS 326-33] Cross References  Saint Damien deVeuster Day, see 8-8.
 326-34 County of Kalawao; governance. (a) The county of Kalawao shall consist of that portion of the island of Molokai known as Kalaupapa, Kalawao, and Waikolu, and commonly known or designated as the Kalaupapa Settlement, and shall not be or form a portion of the county of Maui, but is constituted a county by itself. As a county it shall have only the powers especially conferred and given by sections 326-34 to 326-38 and, except as provided in those sections, none of the provisions of the Hawaii Revised Statutes regarding counties shall be deemed to refer to or shall be applicable to the county of Kalawao.  (b) The county of Kalawao shall be under the jurisdiction and control of the department of health and be governed by the laws, and rules relating to the department and the care and treatment of persons affected with Hansen's disease, except as otherwise provided by law. [L 1905, c 39, 2; RL 1925, 1577; am L 1931, c 138, 1; am imp L 1933, c 118,  1, 2; RL 1935, 2928; RL 1945, 2438; am L 1949, c 53, 26; am L 1951, c 157, 15; RL 1955, 50-35; am L Sp 1959 2d, c 1, 19; HRS 326-34; am L 1969, c 152, 8; am L 1981, c 185, 16; am L 1988, c 263, 10] Cross References  District of Kalawao, see 4-1. 
 326-35 Sheriff, appointment, removal. There shall be no county officer in the county other than a sheriff, who shall be a patient resident of and be appointed in the county by the department of health and who shall hold office at the pleasure of the department or until a successor is appointed by the department. When a qualified patient resident is not available, the department may appoint a staff employee or other qualified person to serve as sheriff. [L 1905, c 39, 3; am L 1911, c 134, 1; RL 1925, 1578; am L 1931, c 138, 1; am imp L 1933, c 118,  1, 2; RL 1935, 2929; RL 1945, 2439; am L 1951, c 157, 16; RL 1955, 50-36; am L Sp 1959 2d, c 1, 19; HRS 326-35; am L 1985, c 250, 14; am L 1989, c 97, 1 and c 211, 10; am L 1990, c 281, 11]
 326-36 Sheriff, salary. The salary of the sheriff shall be fixed and paid by the department of health out of the appropriation allowed by the legislature for the care and treatment of persons affected with Hansen's disease. [L 1905, c 39, 4; RL 1925, 1579; am L 1931, c 138, 1; am imp L 1933, c 118,  1, 2; RL 1935, 2930; RL 1945, 2440; am L 1949, c 53, 27; am L 1951, c 157, 17; RL 1955, 50-37; am L Sp 1959 2d, c 1, 19; HRS 326-36; am L 1969, c 152, 9; am L 1981, c 185, 17; am L 1985, c 250, 15; am L 1989, c 97, 2 and c 211, 10; am L 1990, c 281, 11]
 326-37 Sheriff, duties. The sheriff of the county of Kalawao shall preserve the public peace and shall arrest and take before the district judge for examination all persons who attempt to commit or who have committed a public offense and prosecute the same to the best of the sheriff's ability. [L 1905, c 39, 5; RL 1925, 1580; RL 1935, 2931; RL 1945, 2441; RL 1955, 50-38; HRS 326-37; am L 1970, c 188, 39; gen ch 1985; am L 1989, c 211, 10; am L 1990, c 281, 11]
 326-38 Sheriff, powers. The sheriff may appoint and dismiss and reappoint as many police officers as may be authorized by the department of health for the county. Patient residents, for the services rendered as police officers, shall receive pay as the department determines and which pay shall be taken out of and from the appropriation made by the legislature for the care and treatment of persons affected with Hansen's disease. The sheriff shall have other powers and duties within the county of Kalawao and appropriate thereto as are prescribed by law for the chiefs of police or police officers of the several counties respectively. [L 1905, c 39, 6; RL 1925, 1581; am L 1931, c 138, 1; am imp L 1933, c 118,  1, 2; RL 1935, 2932; RL 1945, 2442; am L 1949, c 53, 28 and c 80, 1(7); am L 1951, c 157, 18; RL 1955, 50-39; am L Sp 1959 2d, c 1, 19; HRS 326-38; am L 1969, c 152, 10; am L 1977, c 191, 2; am L 1981, c 185, 18; am L 1985, c 250, 16; am L 1989, c 211, 10; am L 1990, c 281, 11]
 326-39 Penalty. Any person violating this chapter, or any rule or regulation of the department of health relating thereto, shall be deemed guilty of a misdemeanor. Except as herein otherwise provided, the punishment therefor shall be the same as provided by section 321-18. [L 1951, c 157, 19; RL 1955, 59-40; am L Sp 1959 2d, c 1, 19; HRS 326-39]
 326-4 Officers and employees; sickness and accident; expense. In case any officer or employee of the department of health becomes ill or is injured at the facility at Kalaupapa and, in the opinion of the physician of the facility, or in the absence of the physician an authorized agent of the department of health, suitable medical, hospital, nursing, or other services or facilities are not available there, the department shall incur and pay the reasonable and necessary expenses of removing and transporting the officer or employee to and from a place within the State where suitable hospital facilities or treatment can be secured. [L 1941, c 108, 1; RL 1945, 2405; RL 1955, 50-6; am L Sp 1959 2d, c 1, 19; HRS 326-4; am L 1968, c 63, 2; am L 1969, c 105, 1; am L 1985, c 250, 4]
 326-40 Kalaupapa; policy on residency. The legislature finds that Hawaii's Hansen's disease victims have in many ways symbolized the plight of those afflicted with this disease throughout the world. Their sufferings and social deprivations helped eventually to bring the story of the disease and an understanding of its health ravages to people everywhere. Those patients who settled in Kalaupapa remain a living memorial to a long history of tragic separation, readjustment, and endurance.  It is the policy of the State that the patient residents of Kalaupapa shall be accorded adequate health care and other services for the remainder of their lives. Furthermore, it is the policy of the State that any patient resident of Kalaupapa desiring to remain at the facility shall be permitted to do so for as long as that patient may choose, regardless of whether or not the patient has been successfully treated. A patient resident of Kalaupapa desiring to take leave may do so without loss of financial allowance or coverage of health care costs given those who remain at Kalaupapa. [L 1977, c 25, 2; am L 1981, c 185, 19; am L 1985, c 250, 17; am L 1992, c 156, 8]
 326-5 Appropriations, how spent. All moneys at any time appropriated for the upkeep, support, maintenance, and conduct of any hospital, facility, or place for persons affected with Hansen's disease, shall be expended under the supervision and authority and by the order of the department of health, upon vouchers signed by the director of health. [L 1931, c 139, 4; am L 1933, c 118, 1; RL 1935, 1144; RL 1945, 2406; am L 1949, c 53, 3; am imp L 1949, c 109; RL 1955, 50-7; am L Sp 1959 2d, c 1, 19; HRS 326-5; am L 1969, c 152, 1; am L 1981, c 185, 6; am L 1985, c 250, 5]
  326-6 REPEALED. L 1992, c 156, 9.
  326-7 to 10 REPEALED. L 1969, c 152, 11.
   327-1 to 9 REPEALED. L 1988, c 267, 2. PART I. [OLD] UNIFORM ANATOMICAL GIFT ACT    327-1 to 14 REPEALED. L 2008, c 122, 4. Note  L 2008, c 9, 3 purports to amend repealed 327-1. [Part I.] REVISED UNIFORM ANATOMICAL GIFT ACT  327-1 Short title. This part may be cited as the "Revised Uniform Anatomical Gift Act". [L 2008, c 122, pt of 1]
  327-10 Manner of making, amending, or revoking an anatomical gift of decedent's body or body part. (a) A person authorized to make an anatomical gift under section 327-9 may make an anatomical gift by a document of gift signed by the person making the gift or 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.  (b) Subject to subsection (c), an anatomical gift by a person authorized under section 327-9 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available; provided that any response other than an express, contrary indication regarding the decedent's anatomical gift shall prohibit amendment or revocation of an anatomical gift of the decedent's body or body parts. If more than one member of the prior class is reasonably available, the gift made by a person authorized under section 327-9 may be amended or revoked only if a majority of the reasonably available members of that class agree to the amending or revoking of the gift; provided that any response other than an express, contrary indication by the majority of the reasonably available members of that class regarding the decedent's anatomical gift shall prohibit amendment or revocation of an anatomical gift of the decedent's body or body parts.  (c) A revocation under subsection (b) is effective only if the procurement organization or transplant hospital or the physician or technician knows of the revocation before an incision has been made to remove a body part from the donor, or before invasive procedures have begun to prepare the recipient. [L 2008, c 122, pt of 1; am L 2010, c 156, 2]
  327-11 Persons that may receive anatomical gift; purpose of anatomical gift. (a) An anatomical gift of a body or body part may be made to the following persons:  (1) A named hospital, accredited medical school, dental school, college, university, or procurement organization for research or education;  (2) A named individual designated by the person making the anatomical gift if the individual is the recipient of the body part; or, if the body part for any reason cannot be transplanted into the individual, the body part shall pass in accordance with subsection (f) in the absence of an express, contrary indication by the person making the anatomical gift; or  (3) A named eye bank or tissue bank.  (b) If an anatomical gift of one or more specific body parts or of all body parts is made in a document of gift that does not name a person described in subsection (a) but identifies the purpose for which an anatomical gift may be used, the following rules shall apply:  (1) If the body part is an eye and the gift is for transplantation or therapy, the gift shall pass to the appropriate eye bank;  (2) If the body part is tissue and the gift is for transplantation or therapy, the gift shall pass to the appropriate tissue bank;  (3) If the body part is an organ and the gift is for transplantation or therapy, the gift shall pass to the appropriate organ procurement organization as custodian of the organ; and  (4) If the body part is an organ, an eye, or tissue and the gift is for research or education, the gift shall pass to the appropriate procurement organization.  (c) For the purpose of subsection (h), if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift shall be used for transplantation or therapy if suitable for those purposes and, if the gift cannot be used for transplantation or therapy, the gift may be used for research or education.  (d) If an anatomical gift of one or more specific body parts is made in a document of gift that does not name a person described in subsection (a) and does not identify the purpose of the gift, the decedent's body parts may be used only for transplantation or therapy, and the gift shall pass in accordance with subsection (f).  (e) 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 decedent's body parts may be used only for transplantation or therapy, and the gift shall pass in accordance with subsection (f).  (f) For purposes of subsections (a)(2), (c), and (d), the following rules shall apply:  (1) If the body part is an eye, the gift shall pass to the appropriate eye bank;  (2) If the body part is tissue, the gift shall pass to the appropriate tissue bank; and  (3) If the body part is an organ, the gift shall pass to the appropriate organ procurement organization as custodian of the organ.  (g) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under subsection (a)(2), shall pass to the organ procurement organization as custodian of the organ.  (h) If an anatomical gift does not pass pursuant to subsections (a) through (g), or the decedent's body or body part is not used for transplantation, therapy, research, or education, custody of the body or body part shall pass to the person under obligation to dispose of the body or body part.  (i) A person may not accept an anatomical gift if the person knows that the gift was not effectively made under section 327-5 or 327-10 or if the person knows that the decedent made a refusal under section 327-7 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.  (j) Except as otherwise provided in subsection (a)(2), nothing in this part shall affect the allocation of organs for transplantation or therapy. [L 2008, c 122, pt of 1; am L 2020, c 43, 2]
  327-12 Search and notification.  (a) The following persons shall make a reasonable search of an individual who the searcher 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:  (1) A law enforcement officer, firefighter, paramedic, or other emergency rescuer finding the individual; and  (2) If no other source of the information is immediately available, a hospital, as soon as practical after the individual's arrival at the hospital.  (b) If a document of gift or a refusal to make an anatomical gift is located by the search required by subsection (a)(1) 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.  (c) A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this section but may be subject to administrative sanctions. [L 2008, c 122, pt of 1]
  327-13 Delivery of document of gift not required; right to examine. (a) A document of gift need not be delivered during the donor's lifetime to be effective.  (b) 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 327-11. [L 2008, c 122, pt of 1]
  327-14 Rights and duties of procurement organization and others. (a) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of any donor registry and records of the state or county department of motor vehicles that it knows exist for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.  (b) A procurement organization shall be allowed reasonable access to information in the records of the state or county department of motor vehicles to ascertain whether an individual at or near death is a donor.  (c) 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 body 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 body part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent or the attending physician has determined that continuing these measures would not be consistent with generally accepted standards of care for terminally ill patients.  (d) Unless prohibited by law other than this part, at any time after a donor's death, the person to which a body part passes under section 327-11 may conduct any reasonable examination necessary to ensure the medical suitability of the body or body part for its intended purpose.  (e) Unless prohibited by law other than this part, an examination under subsection (c) or (d) may include an examination of all medical records of the donor or prospective donor.  (f) If a donor, at the time of death, is under eighteen years of age, a procurement organization shall conduct a reasonable search for the parents of the donor and, unless the procurement organization knows the donor is an emancipated minor as deemed by section 577-25, provide the parents with an opportunity to revoke or amend the anatomical gift or revoke a refusal.  (g) A procurement organization shall make a reasonable search for any person listed in section 327-9 having priority to make an anatomical gift on behalf of a prospective donor.  (h) 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.  (i) Subject to sections 327-11(h) and 327-23, the rights of the person to which a body part passes under section 327-11 are superior to rights of all others with respect to the body part. The person to whom an anatomical gift passes under this chapter shall accept or reject the anatomical gift unless the anatomical gift is medically unsuitable for transplantation, therapy, research, or education. The acceptance shall occur when the anatomical gift is made under this chapter, regardless of whether another person, including family members of the donor, has made an anatomical gift. Subject to the terms of the document of gift and this part, a person that accepts an anatomical gift of an entire body may allow embalming or cremation and use of remains in a funeral service. If the gift is of a body part, the person to which the body part passes under section 327-11, upon the death of the donor and before embalming or cremation, shall cause the body part to be removed without unnecessary mutilation.  (j) 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 body part from the decedent.  (k) A physician or technician may remove a donated body part from the body of a donor that the physician or technician is qualified to remove. [L 2008, c 122, pt of 1; am L 2012, c 270, 2]
  327-15 Coordination of procurement and use. Each hospital in this State, after consultation with procurement organizations, shall establish agreements or affiliations for coordination of procurement and use of human bodies and body parts. [L 2008, c 122, pt of 1]
  327-16 Sale or purchase of body parts prohibited. (a) Except as otherwise provided in subsection (b), a person that knowingly, for valuable consideration, purchases or sells a body part for transplantation or therapy if removal of a body part from an individual is intended to occur after the individual's death commits a class C felony and upon conviction is subject to a fine not exceeding $50,000, imprisonment not exceeding five years, or both.  (b) A person may charge a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation, or disposal of a body part. [L 2008, c 122, pt of 1]
  327-17 Penalty. Any person that, 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 to make an anatomical gift commits a class C felony and upon conviction is subject to a fine not exceeding $50,000, imprisonment not exceeding five years, or both. [L 2008, c 122, pt of 1]
  327-18 Immunity. (a) A person that acts in accordance with this part 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.  (b) 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.  (c) A person who documents the making, amending, or revoking of an anatomical gift under this part may rely upon representations of the individuals listed in section 327-9(a)(2),(3), (4), (5), (6), (7), and (8) relating to their relationship to the donor or prospective donor unless the person knows that the representation is untrue. [L 2008, c 122, pt of 1]
  327-19 Law governing validity; choice of law as to execution of document of gift; presumption of validity. (a) A document of gift shall be valid if executed in accordance with:  (1) This part;  (2) The laws of the state or country where it was executed; or  (3) 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.  (b) If a document of gift is valid under this section, the laws of this State govern the interpretation of the document of gift.  (c) 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. [L 2008, c 122, pt of 1]
 327-2 Definitions. As used in this part, unless the context otherwise requires:  "Agent" means an individual:  (1) Authorized to make health care decisions on the principal's behalf by a power of attorney for health care; or  (2) Expressly authorized to make an anatomical gift on the principal's behalf by any other record signed by the principal.  "Anatomical gift" means a donation of all or part of a human body to take effect after the donor's death for the purposes of transplantation, therapy, research, or education.  "Body part" means an eye or other organ, or tissue of a human being. The term shall not include the whole body.  "Decedent" means a deceased individual whose body or body 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 part, a fetus.  "Disinterested witness" means a witness other than the spouse, reciprocal beneficiary, 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 shall not include a person to which an anatomical gift could pass under section 327-11.  "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.  "Donor" means an individual whose body or body part is the subject of an anatomical gift.  "Donor registry" means a database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.  "Driver's license" means a license or permit issued by a state or county authority to operate a vehicle whether or not conditions are attached to the license or permit.  "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.  "Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health, and welfare of an individual. The term shall not include a guardian ad litem.  "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.  "Identification card" means an identification card issued by a state or county authority or a driver's license issued by the examiner of drivers.  "Know" means to have actual knowledge.  "Organ procurement organization" means a person designated by the United States Secretary of Health and Human Services as an organ procurement organization.  "Parent" means a parent whose parental rights have not been terminated.  "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.  "Physician" means an individual authorized to practice medicine or osteopathy under the law of any state.  "Procurement organization" means an eye bank, organ procurement organization, or tissue bank.  "Prospective donor" means an individual who is dead or near death and has been determined by a procurement organization to have a body part that could be medically suitable for transplantation, therapy, research, or education. The term shall not include an individual who has made a refusal.  "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.  "Recipient" means an individual into whose body a decedent's body part has been or is intended to be transplanted.  "Reciprocal beneficiary" means a party to a valid reciprocal beneficiary relationship as defined in chapter 572C.  "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.  "Refusal" means a record created under section 327-7 that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or body part.  "Sign" means, with the present intent to authenticate or adopt a record:  (1) To execute or adopt a tangible symbol; or  (2) To attach or logically associate with the record an electronic symbol, sound, or process.  "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.  "Technician" means an individual determined to be qualified to remove or process body parts by an appropriate organization that is licensed, accredited, or regulated under federal or state law. The term includes an enucleator.  "Tissue" means a portion of the human body other than an organ or an eye. The term shall not include blood unless the blood is donated for research or education.  "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.  "Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients. [L 2008, c 122, pt of 1]
  327-20 Donor registry.  (a) The examiner of drivers shall adopt rules pursuant to chapter 91 to allow an organ procurement organization twenty-four-hour telephone access to the driver's license database information, solely for determining whether a driver has indicated a willingness to be an organ donor pursuant to section 286-109.5.  (b) The examiner of drivers shall cooperate with any donor registry that this State establishes, contracts for, or recognizes for transferring to the donor registry all relevant information regarding a donor's making, amendment to, or revocation of an anatomical gift.  (c) A donor registry shall:  (1) Provide a database that allows a donor or other person authorized under section 327-4 to include on the donor registry a statement or symbol that the donor has made, amended, or revoked an anatomical gift;  (2) 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  (3) Be accessible for purposes of paragraphs (1) and (2) seven-days-a-week on a twenty-four-hour basis.  (d) Personally identifiable information on a donor registry about a donor or prospective donor may not be used or disclosed without the express consent of the donor, prospective donor, or the person that made the anatomical gift for any purpose other than 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.  (e) This section shall not prohibit any person from creating or maintaining a donor registry that is not established by or under contract with the State. However, the registry shall comply with subsections (c) and (d). [L 2008, c 122, pt of 1]
   327-21 to 24 REPEALED. L 1969, c 81, 2. PART II. DISPOSITION OF DEAD HUMAN BODIES Note  Part heading amended by L 2012, c 75, 2. Revision Note  This part was renumbered from part III.   327-31 REPEALED. L 2012, c 75, 6.
  327-21 Effect of anatomical gift on advance health-care directive. (a) 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 body 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 if 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 shall 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 327-9. Before resolution of the conflict, measures necessary to ensure the medical suitability of the body 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.  (b) As used in this section:  "Advance health-care directive" means a record signed or authorized by a prospective donor containing the prospective donor's direction concerning a health-care decision for the prospective donor or a power of attorney for health care.  "Declaration" means a record signed by a prospective donor specifying the circumstances under which a life support system may be withheld or withdrawn.  "Health-care decision" means any decision regarding the health care of the prospective donor. [L 2008, c 122, pt of 1]
  327-22 Cooperation between medical examiner or coroner and procurement organization. (a) A medical examiner or coroner shall cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts for transplantation, therapy, research, or education.  (b) If a medical examiner or coroner receives notice from a procurement organization that an anatomical gift might be available or was made with respect to a decedent whose body is under the jurisdiction of the medical examiner or coroner and a post-mortem examination is going to be performed, unless the medical examiner or coroner denies recovery in accordance with section 327-23, the medical examiner or coroner or designee shall make a reasonable attempt to conduct a post-mortem examination of the body or the body part in a manner and within a period compatible with its preservation for the purposes of the gift.  (c) A body part may not be removed from the body of a decedent under the jurisdiction of a medical examiner or coroner for transplantation, therapy, research, or education unless the body part is the subject of an anatomical gift. The body of a decedent under the jurisdiction of the medical examiner or coroner may not be delivered to a person for research or education unless the body is the subject of an anatomical gift. This subsection shall not preclude a medical examiner or coroner from performing the medicolegal investigation upon the body or body parts of a decedent under the jurisdiction of the medical examiner or coroner. [L 2008, c 122, pt of 1]
  327-23 Facilitation of an anatomical gift from a decedent whose body is under the jurisdiction of the medical examiner or coroner.  (a) Upon request of a procurement organization, a medical examiner or coroner shall release to the procurement organization the name, contact information, and available medical and social history of a decedent whose body is under the jurisdiction of the medical examiner or coroner. If the decedent's body or body part is medically suitable for transplantation, therapy, research, or education, the medical examiner or coroner shall release post-mortem examination results to the procurement organization. The procurement organization may make a subsequent disclosure of the post-mortem examination results or other information received from the medical examiner or coroner only if relevant to transplantation or therapy.  (b) The medical examiner or coroner may conduct a medicolegal examination by reviewing all medical records, laboratory test results, x-rays, other diagnostic results, and other information that any person possesses about a donor or prospective donor whose body is under the jurisdiction of the medical examiner or coroner, which the medical examiner or coroner determines may be relevant to the investigation.  (c) A person that has any information requested by a medical examiner or coroner pursuant to subsection (b) shall provide that information as expeditiously as possible to allow the medical examiner or coroner to conduct the medicolegal investigation within a period compatible with the preservation of body parts for transplantation, therapy, research, or education.  (d) If an anatomical gift has been or might be made of a body part of a decedent whose body is under the jurisdiction of the medical examiner or coroner and a post-mortem examination is not required, or the medical examiner or coroner determines that a post-mortem examination is required but that the recovery of the body part that is the subject of an anatomical gift will not interfere with the examination, the medical examiner or coroner and procurement organization shall cooperate in the timely removal of the body part from the decedent for transplantation, therapy, research, or education.  (e) If an anatomical gift of a body part from the decedent under the jurisdiction of the medical examiner or coroner has been or might be made, but the medical examiner or coroner initially believes that the recovery of the body part could interfere with the post-mortem investigation into the decedent's cause or manner of death, the medical examiner or coroner shall consult with the procurement organization or physician or technician designated by the procurement organization about the proposed recovery. The procurement organization shall provide the medical examiner or coroner with all information it has which could relate to the cause or manner of the decedent's death. After consultation, the medical examiner or coroner may allow the recovery.  (f) Following the consultation under subsection (e), in the absence of mutually agreed-upon protocols to resolve conflict between the medical examiner or coroner and the procurement organization, if the medical examiner or coroner intends to deny recovery of the body part, the medical examiner or coroner or designee, at the request of the procurement organization, shall make reasonable efforts to attend the removal procedure for the body part before making a final determination not to allow the procurement organization to recover the body part. During the removal procedure, the medical examiner or coroner or designee may allow recovery by the procurement organization to proceed, or, if the medical examiner or coroner or designee reasonably believes that the body part may be involved in determining the decedent's cause or manner of death, deny recovery by the procurement organization.  (g) If the medical examiner or coroner or designee denies recovery under subsection (f), the medical examiner or coroner or designee shall include the reasons in the records of the medical examiner or coroner; and make those reasons available to the procurement organization upon request.  (h) If the medical examiner or coroner or designee allows recovery of a body part, the procurement organization shall cooperate with the medical examiner or coroner in any documentation of injuries and the preservation and collection of evidence prior to and during the recovery of the body part and, upon request, shall cause the physician or technician who removes the body part to provide the medical examiner or coroner with a record describing the condition of the body part, a biopsy, a photograph, and any other information and observations that would assist in the post-mortem examination. [L 2008, c 122, pt of 1]
  327-24 Hawaii organ and tissue education special fund. There is established in the state treasury the Hawaii organ and tissue education special fund. Moneys collected under section 286-109.7 shall be deposited into the fund. The fund shall be administered and distributed by the department of health and shall be used exclusively for public education programs and activities on organ, tissue, and eye donation. [L 2008, c 122, pt of 1]
  327-25 Uniformity of application and construction. In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. [L 2008, c 122, pt of 1]
  327-26 Relation to Electronic Signatures in Global and National Commerce Act. This part modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 United States Code section 7001 et. seq., but shall not modify, limit, or supersede section 101(a) of that Act, 15 United States Code section 7001, or authorize electronic delivery of any of the notices described in section 103(b) of that Act, 15 United States Code section 7003(b). [L 2008, c 122, pt of 1]
  327-3 Applicability. This part applies to an anatomical gift or amendment to, revocation of, or refusal to make an anatomical gift, whenever made. [L 2008, c 122, pt of 1]
  327-32 Administration; duties of health officers. Every head officer of a hospital, nursing home, correctional facility, funeral parlor, or mortuary and every county medical examiner or coroner and every state or county officer, and every other person who has possession, charge, or control of any unclaimed dead human body that may be cremated at public expense pursuant to section 346-15 shall:  (1) Exercise due diligence to notify the relatives, friends of the decedent, any representative of a fraternal society of which the deceased was a member, and any legally responsible party;  (2) Submit in writing to the department of human services a description of the efforts used in making the determination that the dead human body is unclaimed in accordance with section 346-15, if payment for cremation is sought.  Nothing in this section shall be construed to affect the requirements relating to the filing of a certificate of death with the department of health pursuant to chapter 338. [L 1967, c 240, pt of 1; HRS 327-32; am L 2012, c 75, 3]
  327-33 to 327-35 REPEALED. L 2012, c 75,  7 to 9.
 327-36 Final disposition of anatomical gifts.  A person or procurement organization that holds a dead human body as a result of an anatomical gift shall, when the body is deemed of no further value for purposes of transplantation, therapy, research, or education, be responsible for the final disposition of that dead human body and all of its parts, except those parts used for transplantation. The person or procurement organization shall dispose of the remains by cremation, except as otherwise provided in section 327-14 or as directed in a document of gift, subject to any required disposition permits. [L 1967, c 240, pt of 1; HRS 327-36; am L 2012, c 75, 4; am L 2020, c 43, 3]
 327-37 REPEALED. L 2012, c 75, 10.
  327-38 Prohibitions; penalty. (a) No person shall give, offer, or promise any money or other things of value to any other person in consideration of receiving a dead human body.  (b) No person shall provide a dead human body to any other person in consideration of any money or other things of value, or any offer or promise of money or other things of value.  (c) No person shall display a dead human body for commercial purposes; provided that this subsection shall not apply to a display of a dead human body that:  (1) Has been dead for more than eighty years;  (2) Consists solely of human teeth or hair;  (3) Is part of the ordinary display or viewing of the deceased at a funeral establishment or part of a similar funeral or memorial service;  (4) Is an object of religious veneration;  (5) Is an object of research or educational display in the possession of any federal, state, or county agency, any public or private institution of higher learning accredited under federal or state law, or any private entity in receipt of a federal, state, or county grant for health-related research; or  (6) Is in the possession of a museum facility.  (d) Any person who violates this section shall be fined not more than $5,000 or imprisoned not more than one year, or both.  (e) As used in this section:  "Dead human body" means:  (1) An individual who has sustained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem; provided that the determination of death be made in accordance with accepted medical standards; and  (2) Includes plastinated human bodies or remains, including tissue, organs, and other body parts, that are preserved from decay by replacing the water and fats in the human remains with a polymer.  "Museum facility" means a public or private nonprofit institution that:  (1) Is accredited by the American Association of Museums or is part of an accredited college or university;  (2) Is organized on a permanent basis for essentially educational or aesthetic purposes; and  (3) Owns or uses tangible objects, cares for those objects, and exhibits them to the general public on a regular basis. [L 1967, c 240, pt of 1; HRS 327-38; am L 2009, c 118, 1; am L 2012, c 75, 5]
 327-39 Immunity from liability. A person or public or private agency shall not be liable for any damage or subject to criminal prosecution for any act done pursuant to and in compliance with this part. [L 1967, c 240, pt of 1; HRS 327-39]
  327-4 Who may make an anatomical gift before donor's death.  Subject to section 327-8, an anatomical gift of a donor's body or body part may be made during the life of the donor for transplantation, therapy, research, or education in the manner provided in section 327-5 by:  (1) The donor, if the donor is at least eighteen years of age or is under eighteen years of age and is:  (A) An emancipated minor, as deemed pursuant to section 577-25; or  (B) Authorized under a state law to apply for a driver's license under part VI of chapter 286;  (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 under eighteen years of age and not emancipated; or  (4) The donor's guardian. [L 2008, c 122, pt of 1]
  327-5 Manner of making an anatomical gift before donor's death. (a) A donor may make an anatomical gift:  (1) 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;  (2) In a will; or  (3) During a terminal illness or injury of the donor, by any form of communication addressed to at least two other individuals who are at least eighteen years of age, one of whom is a disinterested witness.  (b) A donor or other person authorized to make an anatomical gift under section 327-4 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 the other person and shall:  (1) Be witnessed by at least two other individuals who are at least eighteen years of age, one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and  (2) State that it has been signed and witnessed as provided in paragraph (1).  (c) Revocation, suspension, expiration, or cancellation of the driver's license or identification card issued to a donor shall not invalidate an anatomical gift.  (d) An anatomical gift made by a will shall take effect upon the donor's death whether or not the will is probated. Invalidation of the will after the donor's death shall not invalidate the gift. [L 2008, c 122, pt of 1]
Revision Note This part was renumbered from part IV.  327-51 Exemption from strict liability. No physician, surgeon, hospital, blood bank, tissue bank, or other person or entity who donates, obtains, prepares, transplants, injects, transfuses, or otherwise transfers, or who assists or participates in obtaining, preparing, transplanting, injecting, transfusing, or otherwise transferring any tissue, organ, blood or component thereof, from one or more persons, living or dead, to another person, shall be liable as a result of any such activity, save and except that each such person or entity shall remain liable for the person's or its own negligence or wilful misconduct. [L 1971, c 102, 1; gen ch 1985] Law Journals and Reviews  Tort and Insurance "Reform" in a Common Law Court. 14 UH L. Rev. 55. Case Notes  Blood shield law precluded strict liability but not negligence claims of hemophiliac exposed to AIDS virus through injections of blood component, although actual tortfeasor was not identified, under market-share theory of liability. 72 H. 416, 823 P.2d 717; 971 F.2d 375.
  327-52 Requests for anatomical gifts. Any person in charge of a hospital, or the designated representative of the person in charge of the hospital, other than a person connected with the determination of death, may request any of the persons in section [327-9], in the order of priority stated, to give consent to the gift of all or any part of the decedent's body to any potential donee for any purpose provided in section [327-11]. [L 1986, c 118, 1]
 327-6 Amending or revoking an anatomical gift before donor's death. (a) Subject to section 327-8, a donor or other person authorized to make an anatomical gift under section 327-4 may amend or revoke an anatomical gift by:  (1) A record signed by:  (A) The donor;  (B) The other person; or  (C) Subject to subsection (b), 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  (2) 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.  (b) A record signed pursuant to subsection (a)(1)(C) shall:  (1) Be witnessed by at least two other individuals who are at least eighteen years of age, one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and  (2) State that it has been signed and witnessed as provided in paragraph (1).  (c) Subject to section 327-8, a donor or other person authorized to make an anatomical gift under section 327-4 may revoke the gift by the destruction or cancellation of the document of gift, or a portion of the document of gift used to make the gift, with the intent to revoke the gift.  (d) 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 other individuals who are at least eighteen years of age, one of whom is a disinterested witness.  (e) 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 (a). [L 2008, c 122, pt of 1]
 327-7 Refusal to make an anatomical gift and effect of refusal. (a) An individual may refuse to make an anatomical gift of the individual's body or body part by:  (1) A record signed by:  (A) The individual; or  (B) Subject to subsection (b), another individual acting at the direction of the individual if the individual is physically unable to sign;  (2) The individual's will whether or not the will is admitted to probate or invalidated after the individual's death; or  (3) Any form of communication made by the individual during the individual's terminal illness or injury addressed to at least two other individuals who are at least eighteen years of age, one of whom is a disinterested witness.  (b) A record signed pursuant to subsection (a)(1)(B) shall:  (1) Be witnessed by at least two other individuals who are at least eighteen years of age, one of whom is a disinterested witness, who have signed at the request of the individual; and  (2) State that it has been signed and witnessed as provided in paragraph (1).  (c) An individual may amend or revoke a refusal:  (1) In the manner provided in subsection (a) for making a refusal;  (2) By subsequently making an anatomical gift pursuant to section 327-5 that is inconsistent with the refusal; or  (3) By the destruction or cancellation of the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal.  (d) Except as otherwise provided in section 327-8(h), 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 a body part bars all other persons from making an anatomical gift of the individual's body or the body part. [L 2008, c 122, pt of 1]
  327-8 Preclusive effect of an anatomical gift, amendment, or revocation. (a) Except as otherwise provided in subsection (g), 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 body part if the donor made an anatomical gift of the donor's body or body part under section 327-5, or an amendment to an anatomical gift of the donor's body or the body part under section 327-6.  (b) A donor's revocation of an anatomical gift of the donor's body or a body part under section 327-6 is not a refusal and shall not bar another person specified in section 327-4 or 327-9 from making an anatomical gift of the donor's body or a body part under section 327-5 or 327-10.  (c) If a person other than the donor makes an unrevoked anatomical gift of the donor's body or a body part under section 327-5, or an amendment to an anatomical gift of the donor's body or a body part under section 327-6, another person may not make, amend, or revoke the gift of the donor's body or body part under section 327-10.  (d) A revocation of an anatomical gift of the donor's body or a body part under section 327-6 by a person other than the donor shall not bar another person from making an anatomical gift of the body or a body part under section 327-5 or 327-10.  (e) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under section 327-4, an anatomical gift of a body part is neither a refusal to give another body part nor a limitation on the making of an anatomical gift of another body part at a later time by the donor or another person.  (f) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under section 327-4, an anatomical gift of a body part for one or more of the purposes set forth in section 327-4 is not a limitation on the making of an anatomical gift of the body part for any of the other purposes by the donor or any other person under section 327-5 or 327-10.  (g) If a donor who is an unemancipated minor dies under eighteen years of age, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or body part.  (h) If an unemancipated minor who signed a refusal dies under eighteen years of age, a parent of the individual who is reasonably available may revoke the individual's refusal. [L 2008, c 122, pt of 1]
  327-9 Who may make an anatomical gift of decedent's body or body part. (a) Subject to subsections (b) and (c) and unless barred by subsection (d), an anatomical gift of a decedent's body or body part for purposes of transplantation, therapy, research, or education may be made, in the order of priority listed, by any member of the following classes of persons who is reasonably available:  (1) An agent of the decedent at the time of death who could have made an anatomical gift under section 327-4(2) immediately before the decedent's death;  (2) The spouse or reciprocal beneficiary of the decedent;  (3) Adult children of the decedent;  (4) Parents of the decedent;  (5) Adult siblings of the decedent;  (6) Adult grandchildren of the decedent;  (7) Grandparents of the decedent;  (8) An adult who exhibited special care and concern for the decedent;  (9) The persons who were acting as the guardian of the person of the decedent at the time of death; and  (10) Any other person having the authority to dispose of the decedent's body.  (b) If there is more than one member of a class listed in subsection (a)(l), (3), (4), (5), (6), (7), or (9) 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 can pass under section 327-11 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.  (c) No person may make an anatomical gift if, at the time of the decedent's death, a person in a prior class under subsection (a) is reasonably available to make or to object to the making of an anatomical gift.  (d) An anatomical gift may not be made if doing so is barred by section 327-7 or 327-8. [L 2008, c 122, pt of 1]
 327C-1 Determination of death. (a) Except as provided in subsection (b), a person shall be considered dead if, in the announced opinion of a physician or osteopathic physician licensed under part I of chapter 453, physician or osteopathic physician excepted from licensure by section 453-2(b)(3), physician assistant licensed under chapter 453, or registered nurse licensed under chapter 457, based on ordinary standards of current medical practice, the person has experienced irreversible cessation of spontaneous respiratory and circulatory functions. Death will have occurred at the time when the irreversible cessation of the functions first coincided.  (b) In the event that artificial means of support preclude a determination that respiratory and circulatory functions have ceased, a person shall be considered dead if, in the opinion of an attending physician or osteopathic physician licensed under part I of chapter 453, or attending physician or osteopathic physician excepted from licensure by section 453-2(b)(3), and of a consulting physician or osteopathic physician licensed under part I of chapter 453, or consulting physician or osteopathic physician excepted from licensure by section 453-2(b)(3), based on ordinary standards of current medical practice, the person has experienced irreversible cessation of all functions of the entire brain, including the brain stem. The opinions of the physicians or osteopathic physicians shall be evidenced by signed statements. Death will have occurred at the time when the irreversible cessation of all functions of the entire brain, including the brain stem, first occurred. Death shall be pronounced before artificial means of support are withdrawn and before any vital organ is removed for purposes of transplantation.  (c) When a part of a donor is used for direct organ transplantation under chapter 327, and the donor's death is established by determining that the donor experienced irreversible cessation of all functions of the entire brain, including the brain stem, the determination shall only be made under subsection (b). The determination of death in all other cases shall be made under subsection (a). The physicians or osteopathic physicians making the determination of death shall not participate in the procedures for removing or transplanting a part, or in the care of any recipient.  (d) All death determinations in the State shall be made pursuant to this section and shall apply to all purposes, including but not limited to civil and criminal actions, any laws to the contrary notwithstanding; provided that presumptive deaths under the Uniform Probate Code shall not be affected by this section.  (e) The director of health may convene in every odd-numbered year, a committee which shall be composed of representatives of appropriate general and specialized medical professional organizations, licensed attorneys, and members of the public. The committee shall review medical practice, legal developments, and other appropriate matters to determine the continuing viability of this section, and shall submit a report of its findings and recommendations to the legislature, prior to the convening of the regular session held in each even-numbered year. [L 1978, c 248, 1; am L 1979, c 193, 1; am L 1982, c 112, 1; am L 1983, c 216, 1; am L 1984, c 189, 1; am L 1985, c 197, 1; am L 1997, c 70, 1; am L 1998, c 277, 1; am L 2009, c 11, 39 and c 151, 14]
 REPEALED. L 1999, c 169, 4. Cross References  For similar provisions, see chapter 327E.
  327E-1 Short title. This chapter may be cited as the Uniform Health-Care Decisions Act (Modified). [L 1999, c 169, pt of 1]
 327E-10 Statutory damages. (a) A health-care provider or institution that intentionally violates this chapter shall be subject to liability to the individual or the individual's estate for damages of $500 or actual damages resulting from the violation, whichever is greater, plus reasonable attorney's fees.  (b) A person who intentionally falsifies, forges, conceals, defaces, or obliterates an individual's advance health-care directive or a revocation of an advance health-care directive without the individual's consent, or who coerces or fraudulently induces an individual to give, revoke, or not to give an advance health-care directive, shall be subject to liability to that individual for damages of $2,500 or actual damages resulting from the action, whichever is greater, plus reasonable attorney's fees. [L 1999, c 169, pt of 1]
 327E-11 Capacity. (a) This chapter does not affect the right of an individual to make health-care decisions while having capacity to do so.  (b) An individual is presumed to have capacity to make a health-care decision, to give or revoke an advance health-care directive, and to designate or disqualify a surrogate. [L 1999, c 169, pt of 1]
 327E-12 Effect of copy. A copy of a written advance health-care directive, revocation of an advance health-care directive, or designation or disqualification of a surrogate has the same effect as the original. [L 1999, c 169, pt of 1]
  327E-13 Effect of this chapter. (a) This chapter shall not create a presumption concerning the intention of an individual who has not made or who has revoked an advance health-care directive.  (b) Death resulting from the withholding or withdrawal of health care in accordance with this chapter shall not for any purpose constitute a suicide or homicide or legally impair or invalidate a policy of insurance or an annuity providing a death benefit, notwithstanding any term of the policy or annuity to the contrary.  (c) This chapter shall not authorize mercy killing, assisted suicide, euthanasia, or the provision, withholding, or withdrawal of health care, to the extent prohibited by other statutes of this State; provided that this subsection shall not apply to actions taken under chapter 327L.  (d) This chapter shall not authorize or require a health-care provider or institution to provide health care contrary to generally accepted health-care standards applicable to the health-care provider or institution.  (e) This chapter shall not authorize an agent or surrogate to consent to the admission of an individual to a psychiatric facility as defined in chapter 334, unless the individual's written advance health-care directive expressly so provides.  (f) This chapter shall not affect other statutes of this State governing treatment for mental illness of an individual involuntarily committed to a psychiatric facility. [L 1999, c 169, pt of 1; am L 2000, c 42, 1; am L 2018, c 2, 4]
 327E-14 Judicial relief. On petition of a patient, the patient's agent, guardian, or surrogate, or a health-care provider or institution involved with the patient's care, any court of competent jurisdiction may enjoin or direct a health-care decision or order other equitable relief. A proceeding under this section shall be governed by part 3 of article V of chapter 560. [L 1999, c 169, pt of 1]
 327E-15 Uniformity of application and construction. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it. [L 1999, c 169, pt of 1]
 327E-16 Optional form. The following sample form may be used to create an advance health-care directive. This form may be duplicated. This form may be modified to suit the needs of the person, or a completely different form may be used that contains the substance of the following form. "ADVANCE HEALTH-CARE DIRECTIVE Explanation  You have the right to give instructions about your own health care. You also have the right to name someone else to make health-care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding the designation of your health-care provider. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.  Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health-care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator, or employee of a health-care institution where you are receiving care.  Unless the form you sign limits the authority of your agent, your agent may make all health-care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health-care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:  (1) Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition;  (2) Select or discharge health-care providers and institutions;  (3) Approve or disapprove diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and  (4) Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care.  Part 2 of this form lets you give specific instructions about any aspect of your health care. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, including the provision of artificial nutrition and hydration, as well as the provision of pain relief medication. Space is provided for you to add to the choices you have made or for you to write out any additional wishes.  Part 4 of this form lets you designate a physician to have primary responsibility for your health care.  After completing this form, sign and date the form at the end and have the form witnessed by one of the two alternative methods listed below. Give a copy of the signed and completed form to your physician, to any other health-care providers you may have, to any health-care institution at which you are receiving care, and to any health-care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility.  You have the right to revoke this advance health-care directive or replace this form at any time. PART 1 DURABLE POWER OF ATTORNEY FOR HEALTH-CARE DECISIONS  (1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health-care decisions for me:  ___________________________________________________   (name of individual you choose as agent)  ___________________________________________________   (address) (city) (state) (zip code)  ___________________________________________________   (home phone) (work phone)  OPTIONAL: If I revoke my agent's authority or if my agent is not willing, able, or reasonably available to make a health-care decision for me, I designate as my first alternate agent:  ___________________________________________________   (name of individual you choose as first alternate agent)  ___________________________________________________   (address) (city) (state) (zip code)  ___________________________________________________   (home phone) (work phone)  OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a health-care decision for me, I designate as my second alternate agent:  ___________________________________________________   (name of individual you choose as second alternate agent)  ___________________________________________________   (address) (city) (state) (zip code)  ___________________________________________________   (home phone) (work phone)  (2) AGENT'S AUTHORITY: My agent is authorized to make all health-care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration, and all other forms of health care to keep me alive, except as I state here:  ___________________________________________________   ___________________________________________________   ___________________________________________________   (Add additional sheets if needed.)  (3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's authority becomes effective when my primary physician determines that I am unable to make my own health-care decisions unless I mark the following box. If I mark this box [ ], my agent's authority to make health-care decisions for me takes effect immediately.  (4) AGENT'S OBLIGATION: My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health-care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.  (5) NOMINATION OF GUARDIAN: If a guardian needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as guardian, I nominate the alternate agents whom I have named, in the order designated. PART 2 INSTRUCTIONS FOR HEALTH CARE  If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out this part of the form. If you do fill out this part of the form, you may strike any wording you do not want.  (6) END-OF-LIFE DECISIONS: I direct that my health-care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: (Check only one box.)  [ ] (a) Choice Not To Prolong Life I do not want my life to be prolonged if (i) I have an incurable and irreversible condition that will result in my death within a relatively short time, (ii) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (iii) the likely risks and burdens of treatment would outweigh the expected benefits, OR   [ ] (b) Choice To Prolong Life I want my life to be prolonged as long as possible within the limits of generally accepted health-care standards.  (7) ARTIFICIAL NUTRITION AND HYDRATION: Artificial nutrition and hydration must be provided, withheld or withdrawn in accordance with the choice I have made in paragraph (6) unless I mark the following box. If I mark this box [ ], artificial nutrition and hydration must be provided regardless of my condition and regardless of the choice I have made in paragraph (6).  (8) RELIEF FROM PAIN: If I mark this box [ ], I direct that treatment to alleviate pain or discomfort should be provided to me even if it hastens my death.  (9) OTHER WISHES: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:  ___________________________________________________   ___________________________________________________   (Add additional sheets if needed.) PART 3 DONATION OF ORGANS AT DEATH (OPTIONAL)  (10) Upon my death: (mark applicable box)   [ ] (a) I give any needed organs, tissues, or parts,  OR  [ ] (b) I give the following organs, tissues, or parts only  __________________________________________   [ ] (c) My gift is for the following purposes (strike any of the following you do not want)  (i) Transplant  (ii) Therapy  (iii) Research  (iv) Education PART 4 PRIMARY PHYSICIAN (OPTIONAL)  (11) I designate the following physician as my primary physician:  ___________________________________________________   (name of physician)  ___________________________________________________   (address) (city) (state) (zip code)  ___________________________________________________   (phone)  OPTIONAL: If the physician I have designated above is not willing, able, or reasonably available to act as my primary physician, I designate the following physician as my primary physician:  ___________________________________________________   (name of physician)  ___________________________________________________   (address) (city) (state) (zip code)  ___________________________________________________   (phone)  (12) EFFECT OF COPY: A copy of this form has the same effect as the original.  (13) SIGNATURES: Sign and date the form here:  _______________________ _______________________   (date) (sign your name)  _______________________ _______________________   (address) (print your name)  _______________________   (city) (state)  (14) WITNESSES: This power of attorney will not be valid for making health-care decisions unless it is either (a) signed by two qualified adult witnesses who are personally known to you and who are present when you sign or acknowledge your signature; or (b) acknowledged before a notary public in the State. ALTERNATIVE NO. 1  Witness  I declare under penalty of false swearing pursuant to section 710-1062, Hawaii Revised Statutes, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as agent by this document, and that I am not a health-care provider, nor an employee of a health-care provider or facility. I am not related to the principal by blood, marriage, or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law.  _______________________ _______________________   (date) (signature of witness)  _______________________ _______________________   (address) (printed name of witness)  _______________________   (city) (state)  Witness  I declare under penalty of false swearing pursuant to section 710-1062, Hawaii Revised Statutes, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as agent by this document, and that I am not a health-care provider, nor an employee of a health-care provider or facility.  _______________________ _______________________   (date) (signature of witness)  _______________________ _______________________   (address) (printed name of witness)  _______________________   (city) (state) ALTERNATIVE NO. 2 State of Hawaii County of ________________ On this _____________ day of _______________, in the year _______, before me, __________________ (insert name of notary public) appeared _________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it. Notary Seal  ____________________________  (Signature of Notary Public)" [L 1999, c 169, pt of 1; am L 2004, c 161, 36] Revision Note  Paragraphs redesignated pursuant to 23G-15(1).
 327E-2 Definitions. Whenever used in this chapter, unless the context otherwise requires:  "Advance health-care directive" means an individual instruction or a power of attorney for health care.  "Agent" means an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power.  "Best interest" means that the benefits to the individual resulting from a treatment outweigh the burdens to the individual resulting from that treatment and shall include:  (1) The effect of the treatment on the physical, emotional, and cognitive functions of the patient;  (2) The degree of physical pain or discomfort caused to the individual by the treatment or the withholding or withdrawal of the treatment;  (3) The degree to which the individual's medical condition, the treatment, or the withholding or withdrawal of treatment, results in a severe and continuing impairment;  (4) The effect of the treatment on the life expectancy of the patient;  (5) The prognosis of the patient for recovery, with and without the treatment;  (6) The risks, side effects, and benefits of the treatment or the withholding of treatment; and  (7) The religious beliefs and basic values of the individual receiving treatment, to the extent that these may assist the surrogate decision-maker in determining benefits and burdens.  "Capacity" means an individual's ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision.  "Emancipated minor" means a person under eighteen years of age who is totally self-supporting.  "Guardian" means a judicially appointed guardian having authority to make a health-care decision for an individual.  "Health care" means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual's physical or mental condition, including:  (1) Selection and discharge of health-care providers and institutions;  (2) Approval or disapproval of diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and  (3) Direction to provide, withhold, or withdraw artificial nutrition and hydration; provided that withholding or withdrawing artificial nutrition or hydration is in accord with generally accepted health care standards applicable to health-care providers or institutions.  "Health-care decision" means a decision made by an individual or the individual's agent, guardian, or surrogate, regarding the individual's health care.  "Health-care institution" means an institution, facility, or agency licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business.  "Health-care provider" means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession.  "Individual instruction" means an individual's direction concerning a health-care decision for the individual.  "Interested persons" means the patient's spouse, unless legally separated or estranged, a reciprocal beneficiary, any adult child, either parent of the patient, an adult sibling or adult grandchild of the patient, or any adult who has exhibited special care and concern for the patient and who is familiar with the patient's personal values.  "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.  "Physician" means an individual authorized to practice medicine or osteopathy under chapter 453.  "Power of attorney for health care" means the designation of an agent to make health-care decisions for the individual granting the power.  "Primary physician" means a physician designated by an individual or the individual's agent, guardian, or surrogate, to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility.  "Reasonably available" means able to be contacted with a level of diligence appropriate to the seriousness and urgency of a patient's health care needs, and willing and able to act in a timely manner considering the urgency of the patient's health care needs.  "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States.  "Supervising health-care provider" means the primary physician or the physician's designee, or the health-care provider or the provider's designee who has undertaken primary responsibility for an individual's health care.  "Surrogate" means an individual, other than a patient's agent or guardian, authorized under this chapter to make a health-care decision or to act as a medicaid authorized representative for the patient. [L 1999, c 169, pt of 1; am L 2004, c 161, 3; am L 2009, c 11, 40; am L 2018, c 125, 2]
 327E-3 Advance health-care directives. (a) An adult or emancipated minor may give an individual instruction. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.  (b) An adult or emancipated minor may execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity. The power remains in effect notwithstanding the principal's later incapacity and may include individual instructions. Unless related to the principal by blood, marriage, or adoption, an agent may not be an owner, operator, or employee of the health-care institution at which the principal is receiving care. The power shall be in writing, contain the date of its execution, be signed by the principal, and be witnessed by one of the following methods:  (1) Signed by at least two individuals, each of whom witnessed either the signing of the instrument by the principal or the principal's acknowledgment of the signature of the instrument; or  (2) Acknowledged before a notary public at any place within this State.  (c) A witness for a power of attorney for health care shall not be:  (1) A health-care provider;  (2) An employee of a health-care provider or facility; or  (3) The agent.  (d) At least one of the individuals used as a witness for a power of attorney for health care shall be someone who is neither:  (1) Related to the principal by blood, marriage, or adoption; nor  (2) Entitled to any portion of the estate of the principal upon the principal's death under any will or codicil thereto of the principal existing at the time of execution of the power of attorney for health care or by operation of law then existing.  (e) Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity.  (f) Unless otherwise specified in a written advance health-care directive, a determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, shall be made by the primary physician.  (g) An agent shall make a health-care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.  (h) A health-care decision made by an agent for a principal shall be effective without judicial approval.  (i) A written advance health-care directive may include the individual's nomination of a guardian.  (j) An advance health-care directive shall be valid for purposes of this chapter if it complies with this chapter, or if it was executed in compliance with the laws of the state where it was executed. [L 1999, c 169, pt of 1; am L 2004, c 161, 36] Law Journals and Reviews  Becoming a "Dementia-Capable" Attorney -- Representing Individuals with Dementia. 18 HBJ, no. 13, at 1 (2015).  Your Body, Your Choice: How Mandatory Advance Health-Care Directives Are Necessary to Protect Your Fundamental Right to Accept or Refuse Medical Treatment. 27 UH L. Rev. 201.
 327E-4 Revocation of advance health-care directive. (a) An individual may revoke the designation of an agent only by a signed writing or by personally informing the supervising health-care provider.  (b) An individual may revoke all or part of an advance health-care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.  (c) A health-care provider, agent, guardian, or surrogate who is informed of a revocation shall promptly communicate the fact of the revocation to the supervising health-care provider and to any health-care institution at which the patient is receiving care.  (d) A decree of annulment, divorce, dissolution of marriage, or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in a power of attorney for health care.  (e) An advance health-care directive that conflicts with an earlier advance health-care directive revokes the earlier directive to the extent of the conflict. [L 1999, c 169, pt of 1]
  327E-5 Health-care decisions; surrogates. (a) A patient may designate or disqualify any individual to act as a surrogate by personally informing the supervising health-care provider. In the absence of such a designation, or if the designee is not reasonably available, a surrogate may be appointed to make a health-care decision for the patient.  (b) A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available. Upon a determination that a patient lacks decisional capacity to provide informed consent to or refusal of medical treatment, the primary physician or the physician's designee shall make reasonable efforts to notify the patient of the patient's lack of capacity. The primary physician, or the physician's designee, shall make reasonable efforts to locate as many interested persons as practicable, and the primary physician may rely on such individuals to notify other family members or interested persons.  (c) Upon locating interested persons, the primary physician, or the physician's designee, shall inform such persons of the patient's lack of decisional capacity and that a surrogate decision-maker should be selected for the patient.  (d) Interested persons shall make reasonable efforts to reach a consensus as to who among them shall make health-care decisions on behalf of the patient. The person selected to act as the patient's surrogate should be the person who has a close relationship with the patient and who is the most likely to be currently informed of the patient's wishes regarding health-care decisions. If any of the interested persons disagrees with the selection or the decision of the surrogate, or, if after reasonable efforts the interested persons are unable to reach a consensus as to who should act as the surrogate decision-maker, then any of the interested persons may seek guardianship of the patient by initiating guardianship proceedings pursuant to chapter 551 or chapter 560, as applicable. Only interested persons involved in the discussions to choose a surrogate may initiate such proceedings with regard to the patient.  (e) If any interested person, the guardian, or primary physician believes the patient has regained decisional capacity, the primary physician shall reexamine the patient and determine whether or not the patient has regained decisional capacity and shall enter a decision and the basis for such decision into the patient's medical record and shall notify the patient, the surrogate decision-maker, and the person who initiated the redetermination of decisional capacity.  (f) A surrogate who has been designated by the patient may make health-care decisions for the patient that the patient could make on the patient's own behalf.  (g) A surrogate who has not been designated by the patient may make all health-care decisions for the patient that the patient could make on the patient's own behalf, except that artificial nutrition and hydration may be withheld or withdrawn for a patient upon a decision of the surrogate only when the primary physician and a second independent physician certify in the patient's medical records that the provision or continuation of artificial nutrition or hydration is merely prolonging the act of dying and the patient is highly unlikely to have any neurological response in the future.  The surrogate who has not been designated by the patient shall make health-care decisions for the patient based on the wishes of the patient, or, if the wishes of the patient are unknown or unclear, on the patient's best interest.  The decision of a surrogate who has not been designated by the patient regarding whether life-sustaining procedures should be provided, withheld, or withdrawn shall not be based, in whole or in part, on either a patient's preexisting, long-term mental or physical disability, or a patient's economic status. A surrogate who has not been designated by the patient shall inform the patient, to the extent possible, of the proposed procedure and the fact that someone else is authorized to make a decision regarding that procedure.  (h) A health-care decision made by a surrogate for a patient is effective without judicial approval.  (i) A surrogate may act as a medicaid authorized representative, pursuant to federal and state medicaid laws relating to authorized representatives, on the patient's behalf for the purposes of medicaid, including but not limited to assisting with, submitting, and executing a medicaid application, redetermination of eligibility, and other on-going medicaid-related communications with the department of human services. For the purposes of medicaid, the surrogate may access medicaid records of the patient on whose behalf the surrogate was designated to act. For a surrogate to be able to act under this subsection, the surrogate shall agree to be legally bound by the federal and state authorities related to authorized representatives, including but not limited to maintaining the confidentiality of any information provided by the department of human services, in compliance with all state and federal confidentiality laws. The surrogate's status as an authorized representative for the purposes of medicaid shall terminate when revoked by a patient who no longer lacks decisional capacity, upon appointment or availability of an agent or guardian of the person, or upon the patient's death.  (j) A supervising health-care provider shall require a surrogate to provide a written declaration under the penalty of false swearing stating facts and circumstances reasonably sufficient to establish the claimed authority. [L 1999, c 169, pt of 1; am L 2018, c 125, 3] Law Journals and Reviews  Becoming a "Dementia-Capable" Attorney -- Representing Individuals with Dementia. 18 HBJ, no. 13, at 1 (2015).
 327E-6 Decisions by guardian. (a) A guardian shall comply with the ward's individual instructions and shall not revoke the ward's pre-incapacity advance health-care directive unless expressly authorized by a court.  (b) Absent a court order to the contrary, a health-care decision of a guardian appointed pursuant to chapter 560 takes precedence over that of an agent.  (c) A health-care decision made by a guardian for the ward is effective without judicial approval. [L 1999, c 169, pt of 1; am L 2004, c 161, 4]
 327E-7 Obligations of health-care provider. (a) Before implementing a health-care decision made for a patient, a supervising health-care provider, if possible, shall promptly communicate to the patient the decision made and the identity of the person making the decision.  (b) A supervising health-care provider who knows of the existence of an advance health-care directive, a revocation of an advance health-care directive, or a designation or disqualification of a surrogate, shall promptly record its existence in the patient's health-care record and, if it is in writing, shall request a copy and if one is furnished shall arrange for its maintenance in the health-care record.  (c) A supervising health-care provider who makes or is informed of a determination that a patient lacks or has recovered capacity, or that another condition exists which affects an individual instruction or the authority of an agent, guardian, or surrogate, shall promptly record the determination in the patient's health-care record and communicate the determination to the patient, if possible, and to any person then authorized to make health-care decisions for the patient.  (d) Except as provided in subsections (e) and (f), a health-care provider or institution providing care to a patient shall:  (1) Comply with an individual instruction of the patient and with a reasonable interpretation of that instruction made by a person then authorized to make health-care decisions for the patient; and  (2) Comply with a health-care decision for the patient made by a person then authorized to make health-care decisions for the patient to the same extent as if the decision had been made by the patient while having capacity.  (e) A health-care provider may decline to comply with an individual instruction or health-care decision for reasons of conscience. A health-care institution may decline to comply with an individual instruction or health-care decision if the instruction or decision is contrary to a policy of the institution which is expressly based on reasons of conscience and if the policy was timely communicated to the patient or to a person then authorized to make health-care decisions for the patient.  (f) A health-care provider or institution may decline to comply with an individual instruction or health-care decision that requires medically ineffective health care or health care contrary to generally accepted health-care standards applicable to the health-care provider or institution.  (g) A health-care provider or institution that declines to comply with an individual instruction or health-care decision shall:  (1) Promptly so inform the patient, if possible, and any person then authorized to make health-care decisions for the patient;  (2) Provide continuing care to the patient until a transfer can be effected; and  (3) Unless the patient or person then authorized to make health-care decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health-care provider or institution that is willing to comply with the instruction or decision.  (h) A health-care provider or institution may not require or prohibit the execution or revocation of [an] advance health-care directive as a condition for providing health care. [L 1999, c 169, pt of 1]
 327E-8 Health-care information. Unless otherwise specified in an advance health-care directive, a person then authorized to make health-care decisions for a patient has the same rights as the patient to request, receive, examine, copy, and consent to the disclosure of medical or any other health-care information. [L 1999, c 169, pt of 1]
 327E-9 Immunities. (a) A health-care provider or institution acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care provider or institution shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for:  (1) Complying with a health-care decision of a person apparently having authority to make a health-care decision for a patient, including a decision to withhold or withdraw health care;  (2) Declining to comply with a health-care decision of a person based on a belief that the person then lacked authority; or  (3) Complying with an advance health-care directive and assuming that the directive was valid when made and has not been revoked or terminated.  (b) An individual acting as agent, guardian, or surrogate under this chapter shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for health-care decisions made in good faith. [L 1999, c 169, pt of 1]
 REPEALED. L 2004, c 224, 3.
 327G-1 Purpose. The State finds that all competent persons have the fundamental right to control decisions relating to their own mental health care, including the decision to accept or refuse all types of mental health treatment. The rights of individuals shall be respected when they have lost the capacity to participate actively in decisions regarding themselves or their mental health care and treatment. The laws of the State of Hawaii shall recognize the right of persons eighteen years of age or older and emancipated minors to make a written advance mental health care directive expressing their preferences and instructions regarding mental health care and treatment, including the consent to, or refusal of, that care and treatment, and to designate an agent or alternate agents to make mental health care decisions on behalf of the individual, when that individual later loses the capacity to make those decisions due to a mental illness. [L 2004, c 224, pt of 2]
  327G-10 Obligations of health care providers; limitations on liability. (a) The supervising health care provider, health care provider, or health care institution shall continue to obtain the principal's informed consent to all mental health treatment decisions when the principal has capacity to provide informed consent or refusal. Unless the principal is deemed to lack capacity pursuant to this chapter, the instructions or decisions of the principal at the time of mental health treatment shall supersede the preferences or instructions expressed in the principal's advance mental health care directive.  (b) Upon being presented with an advance mental health care directive, the supervising health care provider or health care institution shall make the advance mental health care directive a part of the principal's medical record. When acting under the authority of an advance mental health care directive, the supervising health care provider, health care provider, or health care institution shall comply with it to the fullest extent possible, consistent with reasonable medical practice, the availability of treatments requested, and applicable law. In the event that one or more parts of the advance mental health care directive cannot be followed, all other parts of the advance mental health care directive shall nonetheless be followed.  (c) A supervising health care provider, health care provider, or health care institution may consider an advance mental health care directive to be valid and rely upon it in the absence of actual knowledge or notice of its revocation or invalidity.  (d) If the supervising health care provider or health care institution is unwilling at any time to comply with the advance mental health care directive or instructions of an agent, the supervising health care provider or health care institution may withdraw from providing mental health treatment consistent with the exercise of independent medical judgment. Upon withdrawal, the supervising health care provider or health care institution shall promptly notify the principal and agent and shall promptly record the notification in the principal's medical record.  (e) A physician or licensed psychologist, who in good faith determines that the principal has or lacks capacity in accordance with this chapter to decide whether to invoke an advance mental health care directive, is not subject to criminal prosecution, civil liability, or professional disciplinary action for making and acting upon that determination.  (f) In the absence of actual knowledge or notice of the revocation of an advance mental health care directive, the supervising health care provider, health care provider, or health care institution shall not be subject to criminal prosecution, civil liability, or professional disciplinary action as a result of providing or withholding mental health treatment to a principal in accordance with this chapter or the advance mental health care directive, unless the absence of actual knowledge or notice resulted from the negligence of the supervising health care provider, health care provider, or health care institution.  (g) The supervising health care provider, health care provider, or health care institution who provides or withholds mental health treatment under this chapter or the advance mental health care directive shall not incur liability arising out of a claim to the extent that the claim is based upon lack of informed consent or authorization for the action.  (h) This section shall not be construed as affecting or limiting liability that arises out of a negligent act or omission in connection with the medical diagnosis, care, or mental health treatment of a principal under an advance mental health care directive or that arises out of any deviation from reasonable medical standards.  (i) This chapter does not authorize or require a supervising health care provider, health care provider, or health care institution to provide mental health treatment contrary to generally accepted health care standards applicable to the health care provider or institution. [L 2004, c 224, pt of 2]
  327G-11 Statutory damages. (a) A supervising health care provider or health care institution that intentionally violates this chapter shall be liable to the principal or the principal's estate for damages of $500 or actual damages resulting from the violation, whichever is greater, and reasonable attorney's fees. The damages payable in this section shall be in addition to any other damages permitted by law.  (b) A person who intentionally alters, conceals, obliterates, or falsifies an individual's advance mental health care directive or a revocation of an advance mental health care directive without the individual's consent, or who coerces or fraudulently induces an individual to give, revoke, or not to give an advance mental health care directive, shall be subject to liability to that individual for damages of $2,500 or actual damages resulting from the action, whichever is greater, and reasonable attorney's fees. [L 2004, c 224, pt of 2]
  327G-12 Effect of copy. A copy of an advance mental health care directive, revocation of an advance mental health care directive, or designation, revocation, withdrawal, or rescission of withdrawal of an agent has the same effect as the original. [L 2004, c 224, pt of 2]
  327G-13 Judicial relief. (a) On petition of a principal, the principal's agent or guardian, a health care provider, or a health care institution involved with the principal's care, any court of competent jurisdiction may enjoin or direct a mental health care decision or order other equitable relief. A proceeding under this section shall be governed by part 3 of article V of chapter 560.  (b) Any such petition filed shall include notice of the existence of an advance mental health care directive and a copy of the directive shall be provided to the court. [L 2004, c 224, pt of 2]
  327G-14 Optional form. The following sample form may be used to create an advance mental health care directive. This sample form may be duplicated, or modified to suit the needs of the person. Any written document that contains the substance of the following information may be used in an advance mental health care directive: "ADVANCE MENTAL HEALTH CARE DIRECTIVE Explanation  You have the right to give instructions about your own mental health care. You also have the right to name someone else to make mental health treatment decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding the designation of your health care providers. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.  Part 1 of this form is a list of options you may designate as part of your mental health care and treatment. For ease of designating specific instructions, mark those options in Part 1.  Part 2 of this form is a power of attorney for mental health care. This lets you name another individual as your agent to make mental health treatment decisions for you, if you become incapable of making your own decisions, or if you want someone else to make those decisions for you now, even though you are still capable of making your own decisions. You may name alternate agents to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator, or employee of a health care institution where you are receiving care.  You may allow your agent to make all mental health treatment decisions for you. However, if you wish to limit the authority of your agent, you may specify those limitations on the form. If you do not limit the authority of your agent, your agent will have the right to:  (1) Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a mental condition;  (2) Select or discharge health care providers and institutions;  (3) Approve or disapprove diagnostic tests, surgical procedures, and programs of medication; and  (4) Approve or disapprove of electroconvulsive treatment.  Part 3 of this form lets you give specific instructions about any aspect of your mental health care and treatment. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of medication and treatment. Space is provided for you to add to the choices you have made or for you to write out any additional wishes.  Part 4 of this form must be completed in order to activate the advance mental health care directive. After completing this form, sign and date the form at the end and have the form witnessed by one or both of the two methods listed below. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any mental health care agents you have named. You should talk to the persons you have named as agents to make sure that they understand your wishes and are willing to take the responsibility.  You have the right to revoke this advance mental health care directive or replace this form at any time, unless otherwise specified in writing in the advance mental health care directive.  If you are in imminent danger of causing bodily harm to yourself or others, or have been involuntarily committed to a health care institution for mental health treatment, the advance mental health care directive will not apply. PART 1 CHECKLIST OF MENTAL HEALTH CARE OPTIONS NOTE TO PROVIDER: The following is a checklist of selections I have made regarding my mental health care and treatment. I include this statement to express my strong desire for you to acknowledge and abide by my rights, under state and federal laws, to influence decisions about the care I will receive. (Declarant: Put a check mark in the left-hand column for each section you have completed.)  ___ Designation of my mental health care agent(s).  ___ Authority granted to my agent(s).  ___ My preference for a court appointed guardian.  ___ My preference of treating facility and alternatives to hospitalization.  ___ My preferences about the physicians or other mental health care providers who will treat me if I am hospitalized.  ___ My preferences regarding medications.  ___ My preferences regarding electroconvulsive therapy (ECT or shock treatment).  ___ My preferences regarding emergency interventions (seclusion, restraint, medications).  ___ Consent for experimental drugs or treatments.  ___ Who should be notified immediately of my admission to a facility.  ___ Who should be prohibited from visiting me.  ___ My preferences for care and temporary custody of my children or pets.  ___ Other instructions about mental health care and treatment. PART 2 DURABLE POWER OF ATTORNEY FOR MENTAL HEALTH TREATMENT DECISIONS  (1) DESIGNATION OF AGENT: I designate the following individual as my agent to make mental health care decisions for me:  ___________________________________________________   (name of individual you choose as agent)  ___________________________________________________   (address) (city) (state) (zip code)  ___________________________________________________   (home phone) (work phone) OPTIONAL: If I revoke my agent's authority or if my agent is not willing, able, or reasonably available to make a mental health care decision for me, I designate as my first alternate agent:  ___________________________________________________   (name of individual you choose as first alternate agent)  ___________________________________________________   (address) (city) (state) (zip code)  ___________________________________________________   (home phone) (work phone) OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a mental health care decision for me, I designate as my second alternate agent:  ___________________________________________________   (name of individual you choose as second alternate agent)  ___________________________________________________   (address) (city) (state) (zip code)  ___________________________________________________   (home phone) (work phone)  (2) AGENT'S AUTHORITY: My agent is authorized to make all mental health care treatment decisions for me, including decisions to provide, withhold, or withdraw medication and treatment, and all other forms of mental health care, except as I state here:  ___________________________________________________   ___________________________________________________   ___________________________________________________   (Add additional sheets if needed.)  (3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's authority becomes effective when my supervising health care provider who is a physician and one other physician or licensed psychologist determine that I am unable to make my own mental health care decisions.  (4) AGENT'S OBLIGATION: My agent shall make mental health care decisions for me in accordance with this power of attorney for mental health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make mental health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.  (5) NOMINATION OF GUARDIAN: If a guardian needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as guardian, I nominate the alternate agents whom I have named, in the order designated. PART 3 INSTRUCTIONS FOR MENTAL HEALTH CARE AND TREATMENT  If you are satisfied to allow your agent to determine what is best for you, you need not fill out this part of the form. If you do fill out this part of the form, you may strike any wording you do not want.  (6) My preference of treating facility and alternatives to hospitalization:  (7) My preferences about the physicians or other mental health care providers who will treat me if I am hospitalized:  (8) My preferences regarding medications:  (9) My preferences regarding electroconvulsive therapy (ECT or shock treatment):  (10) My preferences regarding emergency interventions (seclusion, restraint, medications):  (11) Consent for experimental drugs or treatments:  (12) Who should be notified immediately of my admission to a facility:  (13) Who should be prohibited from visiting me:  (14) My preferences for care and temporary custody of my children or pets:  (15) My preferences about revocation of my advance mental health care directive during a period of incapacity:  (16) OTHER WISHES: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:  ___________________________________________________   ___________________________________________________   ___________________________________________________   (Add additional sheets if needed.) PART 4 WITNESSES AND SIGNATURES  (17) EFFECT OF COPY: A copy of this form has the same effect as the original.  (18) SIGNATURES: Sign and date the form here: ____________________________ ___________________________   (date) (sign your name) ____________________________ ___________________________   (address) (print your name) ____________________________   (city) (state)  (19) WITNESSES: This power of attorney will not be valid for making mental health care decisions unless it is either: (a) signed by two qualified adult witnesses who are personally known to you and who are present when you sign or acknowledge your signature; or (b) acknowledged before a notary public in the State. AFFIRMATION OF WITNESSES Witness 1 I declare under penalty of false swearing pursuant to section 710-1062, Hawaii Revised Statutes, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as agent by this document, and that I am not a health care provider, nor an employee of a health care provider or facility. I am not related to the principal by blood, marriage, or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law. ____________________________ ___________________________   (date) (sign your name) ____________________________ ___________________________   (address) (print your name) ____________________________   (city) (state) Witness 2 I declare under penalty of false swearing pursuant to section 710-1062, Hawaii Revised Statutes, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as agent by this document, and that I am not a health care provider, nor an employee of a health care provider or facility. I am not related to the principal by blood, marriage, or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law. ____________________________ ___________________________   (date) (sign your name) ____________________________ ___________________________   (address) (print your name) ____________________________   (city) (state) DECLARATION OF NOTARY State of Hawaii County of ________________ On this _____________ day of _______________, in the year _______, before me, __________________ (insert name of notary public) appeared _________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it. Notary Seal  ____________________________  (Signature of Notary Public)" [L 2004, c 224, pt of 2; am L 2005, c 22, 17]
  327G-2 Definitions.  Whenever used in this chapter, unless the context otherwise requires:  "Advance mental health care directive" means a written document expressing preferences, instructions, or a power of attorney for mental health treatment.  "Agent" means a competent adult designated in a power of attorney contained in an advance mental health care directive to make a mental health care decision for the individual granting the power and includes all designated alternate agents.  "Best interests" means that the benefits to the principal resulting from a mental health treatment outweigh the burdens to the principal resulting from that treatment and includes:  (1) The effect of the mental health treatment on the physical, mental, emotional, and cognitive functions of the principal;  (2) The degree of physical and mental pain or discomfort caused to the principal by the mental health treatment or the withholding or withdrawal of that treatment;  (3) The degree to which the principal's medical condition, the mental health treatment, or the withholding or withdrawal of mental health treatment, results in a severe and continuing impairment;  (4) The effect of the mental health treatment on the life expectancy of the principal;  (5) The prognosis of the principal for recovery or remission, with and without the mental health treatment;  (6) The risks, side effects, and benefits of the mental health treatment or the withholding of mental health treatment; and  (7) The religious beliefs and basic values of the principal receiving mental health treatment known to the agent, to the extent that these may assist the agent in determining benefits and burdens.  "Capacity" means a principal's ability to understand the significant benefits, risks, and alternatives to proposed mental health care or treatment and to make and communicate a mental health care decision.  "Competent adult" means an individual eighteen years of age or older who has the capacity to understand the significant benefits, risks, and alternatives to proposed mental health care or treatment and to make and communicate mental health care decisions.  "Emancipated minor" means an individual less than eighteen years of age who is deemed to be emancipated pursuant to section 577-25.  "Guardian" means a judicially appointed guardian or conservator having authority to make a mental health care decision for a principal, appointed under part 3 of article V of chapter 560.  "Health care institution" means an institution, facility, or agency licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business.  "Health care provider" means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession.  "Mental health care" means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a principal's mental condition, including:  (1) Selection and discharge of health care providers and institutions;  (2) Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication; and  (3) Approval or disapproval of electroconvulsive treatment.  "Mental health care decision" means a decision made by a principal or the principal's agent or guardian regarding the principal's mental health care or mental health treatment.  "Mental health treatment" means any form of treatment used for the treatment of mental illness, including but not limited to electroconvulsive treatment, the use of psychotropic medication, and admission to and retention in a health care facility for the care or treatment of mental illness.  "Physician" means an individual authorized to practice medicine or osteopathy under chapter 453.  "Power of attorney" means the designation of an agent to make mental health care decisions for the principal granting the power.  "Primary physician" means a physician designated by a principal or the principal's agent or guardian to have primary responsibility for the principal's health care, including mental health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility.  "Principal" means a competent adult or emancipated minor who has executed a written advance mental health care directive or power of attorney for mental health care.  "Psychologist" means an individual authorized to practice psychology under chapter 465.  "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States.  "Supervising health care provider" means the primary physician or the physician's designee, or the health care provider or the provider's designee who has undertaken primary responsibility for a principal's health care, that includes mental health care. [L 2004, c 224, pt of 2; am L 2009, c 11, 41]
  327G-3 Advance mental health care directive; designation of agent. (a) A competent adult or emancipated minor may make a written advance mental health care directive declaring preferences or instructions regarding mental health treatment. The preferences or instructions may include consent to, or refusal of, mental health treatment. An advance mental health care directive may be a part of, or combined with, a written advance health care directive under chapter 327E.  (b) A principal, in a power of attorney contained in the written advance mental health care directive, may designate a competent adult to act as an agent to make any and all mental health care and mental health treatment decisions on behalf of the principal when the principal lacks capacity, unless otherwise specified or limited by the advance mental health care directive. A principal, in a power of attorney contained in the written advance mental health care directive, may also designate competent adults to act as alternate agents, in the order so designated, if the original agent is unable or unwilling to act.  (c) A written advance mental health care directive may include the principal's nomination of a guardian. The court shall make its appointment of a guardian in accordance with the principal's most recent nomination in a valid and unrevoked advance mental health care directive, except for good cause shown.  (d) No individual shall be required to execute or refrain from executing an advance mental health care directive or power of attorney as a condition for insurance coverage, receiving mental or physical health services, receiving privileges while in a health care institution, or as a condition of discharge from a health care institution.  (e) An advance mental health care directive is valid and effective only if it is in writing, contains the date of its execution, is signed by the principal, and is witnessed in one of the following methods:  (1) Signed by at least two competent adults, except those as provided in subsection (f), each of whom shall attest that the principal is known to them, signed the advance mental health care directive in their presence, and appears to be of sound mind and not under duress, fraud, or undue influence; or  (2) Acknowledged before a notary public within this State.  (f) None of the following may serve as a witness to the signing of an advance mental health care directive:  (1) A health care provider, supervising health care provider, or an employee or relative of a health care provider or supervising health care provider;  (2) An owner, operator, or employee of a health care provider or health care institution in which the principal is a patient or resident;  (3) A person related to the principal by blood, marriage, or adoption; or  (4) The agent or alternate agents.  (g) None of the following may serve as an agent or alternate agent under a designation in a power of attorney contained in an advance mental health care directive:  (1) A health care provider, supervising health care provider, or an employee of a health care provider or supervising health care provider, unless that person is related to the principal by blood, marriage, or adoption; or  (2) An owner, operator, or employee of a health care provider or health care institution in which the principal is a patient or resident, unless that person is related to the principal by blood, marriage, or adoption.  (h) An advance mental health care directive and power of attorney becomes effective when it is delivered to a health care provider, supervising health care provider, or health care institution and remains effective until revoked.  (i) An advance mental health care directive executed prior to [July 13, 2004,] shall be valid for the purposes of this chapter if it complies substantially with this chapter or if it was executed in compliance with the laws of the state where it was executed. [L 2004, c 224, pt of 2; am L 2005, c 22, 15]
  327G-4 Revocation of advance mental health care directive. (a) A principal who has capacity at the time may revoke all or part of an advance mental health care directive, including the designation of an agent or alternate agents, at any time and in any manner that communicates intent to revoke. The principal shall give notice of the revocation to a health care provider, supervising health care provider, health care institution, agent, or guardian.  (b) A health care provider, agent, or guardian who is informed of a revocation shall promptly communicate the fact and extent of the revocation to the supervising health care provider and to any health care institution in which the principal is a patient or resident.  (c) A revocation is effective when notice of the revocation is received by the supervising health care provider or health care institution. The supervising health care provider or health care institution shall promptly record the fact and extent of the revocation, including the date and time of the revocation, in the principal's medical record.  (d) A decree of annulment, divorce, dissolution of marriage, or legal separation revokes a previous designation of a spouse as agent, unless otherwise specified in the decree or in the advance mental health care directive.  (e) An advance mental health care directive that conflicts with an earlier advance mental health care directive revokes the earlier directive to the extent of the conflict. [L 2004, c 224, pt of 2]
  327G-5 Authority and duty of agent; limitations on liability. (a) The authority of an agent becomes effective only upon a determination that the principal lacks capacity and ceases to be effective upon a determination made under section 327G-7 that the principal has recovered capacity, unless otherwise specified in the advance mental health care directive.  (b) An agent has the authority to make any and all mental health care decisions on behalf of the principal while the principal lacks capacity, unless otherwise specified or limited in the advance mental health care directive.  (c) In exercising authority, an agent has a duty to act consistently with the provisions of the advance mental health care directive. An agent shall make all mental health care decisions in accordance with the principal's preferences or instructions expressed in the advance mental health care directive, if any, and the principal's other wishes to the extent known to the agent. If the principal's preferences, instructions, and wishes are not expressed or known, the agent shall make the decision in accordance with the agent's good faith determination of the principal's best interests. In determining the principal's best interests, the agent shall consider the principal's personal values to the extent known to the agent.  (d) An agent has the same right as the principal to receive information regarding the proposed mental health treatment and to receive, review, and consent to disclosure of medical records relating to that treatment, unless limited by the advance mental health care directive or any federal law. This right of access and disclosure does not waive any evidentiary privilege.  (e) A mental health care decision made by an agent for a principal shall be effective without judicial approval.  (f) An agent is not, solely as a result of acting in that capacity, personally liable for the cost of treatment provided to the principal.  (g) An agent whose decisions regarding the principal are made in good faith, pursuant to the provisions of the advance mental health care directive, shall not be subject to criminal prosecution, civil liability, or professional disciplinary action with respect to those decisions. [L 2004, c 224, pt of 2]
  327G-6 Withdrawal of agent; rescission of withdrawal. (a) An agent may withdraw by giving notice to the principal, if the principal has capacity at the time. If the principal lacks capacity, the agent may withdraw by giving notice to the supervising health care provider or health care institution. The supervising health care provider or health care institution shall promptly record the withdrawal, including the date and time of the withdrawal, in the principal's medical record.  (b) An individual who has withdrawn under subsection (a) may rescind the withdrawal by executing and dating a written acceptance of the designation as agent after the date of the withdrawal. An individual who rescinds a withdrawal shall give notice and a copy of the written acceptance to the principal, if the principal has capacity at the time. If the principal lacks capacity, the individual who rescinds a withdrawal shall give notice and a copy of the written acceptance to the supervising health care provider or health care institution. The supervising health care provider or health care institution shall promptly record the rescission, including the date and time of the rescission, in the principal's medical record and make the written acceptance a part of the principal's medical record. [L 2004, c 224, pt of 2]
  327G-7 Presumption of capacity; determination of lack of capacity; recovery of capacity. (a) A principal is presumed to have capacity to make mental health care decisions and to execute or revoke an advance mental health care directive or power of attorney designating an agent. Even if the principal has an advance mental health care directive, the principal has the right to make decisions regarding mental health care or mental health treatment, so long as the principal has capacity.   (b) The fact that a principal has executed an advance mental health care directive shall not create a presumption, nor constitute evidence or an indication, that the principal is mentally incompetent or lacks capacity.  (c) This chapter shall not create a presumption concerning the intention of an individual who has not executed or who has revoked an advance mental health care directive or power of attorney.  (d) For the purposes of this chapter, the determination that a principal lacks capacity shall be made by the supervising health care provider who is a physician and one other physician or licensed psychologist after both have conducted an examination of the principal. Upon examination and a joint determination that the principal lacks capacity, the supervising health care provider shall promptly note the determination in the principal's medical record, including the facts and professional opinions that form the basis of the determination, and shall promptly notify the agent that the principal lacks capacity and that the advance mental health care directive has been invoked.  (e) The determination that a principal has recovered capacity shall be made by the supervising health care provider who is a physician. The supervising health care provider shall promptly note the recovery of capacity in the principal's medical record, and shall promptly notify the agent that the principal has recovered capacity. [L 2004, c 224, pt of 2]
  327G-8 Limitations on applicability of advance mental health care directive. (a) A supervising health care provider, health care provider, or health care institution may subject the principal to mental health treatment in a manner contrary to the principal's preferences and instructions as expressed in an advance mental health care directive only:  (1) When a court order under part 3 of article V of chapter 560 contradicts the principal's preferences and instructions as expressed in the advance mental health care directive; or  (2) In cases of emergency when the principal poses an imminent threat to the safety of self or others.  (b) Neither an advance mental health care directive nor this chapter limits any authority either to take an individual into custody or to admit, retain, or treat an individual in a health care institution pursuant to part IV of chapter 334. [L 2004, c 224, pt of 2]
  327G-9 Decisions by guardian. (a) A duly appointed guardian for the principal shall comply with the principal's preferences or instructions expressed in the advance mental health care directive and shall not revoke the principal's advance mental health care directive, unless otherwise expressly authorized by a court of competent jurisdiction.  (b) Absent a court order to the contrary, a mental health care decision of an agent takes precedence over that of a guardian.  (c) A mental health care decision made by a guardian for the principal is effective without judicial approval, unless contrary to the principal's preferences or instructions expressed in the advance mental health care directive. [L 2004, c 224, pt of 2; am L 2005, c 22, 16]
  327H-1 Pain patient's bill of rights; findings. The legislature finds that:  (1) Inadequate treatment of severe acute pain and severe chronic pain originating from cancer or noncancerous conditions is a significant health problem;  (2) For some patients, pain management is the single most important treatment a physician can provide;  (3) A patient who suffers from severe acute pain or severe chronic pain should have access to proper treatment of pain;  (4) Due to the complexity of their problems, many patients who suffer from severe acute pain or severe chronic pain may require referral to a physician with expertise in the treatment of severe acute pain and severe chronic pain. In some cases, severe acute pain and severe chronic pain is best treated by a team of clinicians to address the associated physical, psychological, social, and vocational issues;  (5) In the hands of knowledgeable, ethical, and experienced pain management practitioners, opiates administered for severe acute pain or severe chronic pain can be safe; and  (6) Opiates may be part of an overall treatment plan for a patient in severe acute pain or severe chronic pain who has not obtained relief from any other means of treatment. [L 2004, c 189, pt of 1]
  327H-2 Bill of rights. (a) The pain patient's bill of rights includes the following:  (1) A patient who suffers from severe acute pain or severe chronic pain has the option to request or reject the use of any or all modalities to relieve the pain;  (2) A patient who suffers from severe acute pain or severe chronic pain has the option to choose from appropriate pharmacologic treatment options to relieve severe acute pain or severe chronic pain, including opiate medications, without first having to submit to an invasive medical procedure.  For purposes of this paragraph, "invasive medical procedure" means surgery, destruction of a nerve or other body tissue by manipulation, or the implantation of a drug delivery system or device;  (3) A patient's physician may refuse to prescribe opiate medication for a patient who requests a treatment for severe acute pain or severe chronic pain. However, that physician may inform the patient of physicians who are qualified to treat severe acute pain and severe chronic pain employing methods that include the use of opiates;  (4) A physician who uses opiate therapy to relieve severe acute pain or severe chronic pain may prescribe a dosage deemed medically necessary to relieve the pain;  (5) A patient may voluntarily request that the patient's physician provide an identifying notice of the prescription for purposes of emergency treatment or law enforcement identification; and  (6) With regard to pain patients, the application of this section shall be guided by the medical principle that physical tolerance and dependence are normal consequences of sustained use of opiate medication, distinguishable from psychological dependency or addiction that bears no relationship to pain experienced by a patient. For the purposes of this section, psychological dependency shall be characterized by a patient's compulsion to take a drug notwithstanding the fact that the patient knows the harmful and destructive effect of the drug on the patient. The distinction is one of treatment of pain as opposed to feeding a psychological need. A patient who suffers severe acute pain or severe chronic pain secondary to a diagnosis in any form of disease and chronic conditions may be entitled to receive a prescription of opiate medication for the treatment of the pain, if requested by that patient; provided that:  (A) The particular opiate is appropriate to the treatment of that pain; and  (B) The patient is not addicted to the opiate. For the purposes of this subparagraph, the term "addicted" refers to a psychological dependence, rather than a progressive physical tolerance for the opiate to relieve the pain; provided that the term does not include a narcotic-dependent person as defined in section 329-40.  (b) Nothing in this section shall be construed to:  (1) Expand the authorized scope of practice of any licensed physician;  (2) Limit any reporting or disciplinary provisions applicable to licensed physicians and surgeons who violate prescribing practices; and  (3) Prohibit the discipline or prosecution of a licensed physician for:  (A) Failing to maintain complete, accurate, and current records that document the physical examination and medical history of a patient, the basis for the clinical diagnosis of a patient, and the treatment plan for a patient;  (B) Writing false or fictitious prescriptions for controlled substances scheduled in the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 United States Code 801 et seq. or in chapter 329;  (C) Prescribing, administering, or dispensing pharmaceuticals in violation of the provisions of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 United States Code 801 et seq. or of chapter 329;  (D) Diverting medications prescribed for a patient to the licensed physician's own personal use; and  (E) Causing, or assisting in causing, the suicide, euthanasia, or mercy killing of any individual; provided that:  (i) It is not "causing, or assisting in causing, the suicide, euthanasia, or mercy killing of any individual" to prescribe, dispense, or administer medical treatment for the purpose of treating severe acute pain or severe chronic pain, even if the medical treatment may increase the risk of death, so long as the medical treatment is not also furnished for the purpose of causing, or the purpose of assisting in causing, death for any reason; and  (ii) This subparagraph shall not apply to actions taken under chapter 327L. [L 2004, c 189, pt of 1; am L 2008, c 131, 2; am L 2018, c 2, 5]
  327K-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Department" means the department of health.  "Form" means a provider orders for life-sustaining treatment form adopted by the department.  "Health care provider" means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of the individual's business or profession.  "Legally authorized representative" means an agent, guardian, or surrogate, as those terms are defined in section 327E-2, or agent designated through a power of attorney for health care, as defined in section 327E-2.  "Patient's provider" means a physician licensed pursuant to chapter 453 or an advanced practice registered nurse licensed pursuant to chapter 457 who has examined the patient.  "Provider orders for life-sustaining treatment form" means a form signed by a patient, or if incapacitated, by the patient's legally authorized representative and the patient's provider, that records the patient's wishes and that directs a health care provider regarding the provision of resuscitative and life-sustaining measures. A provider orders for life-sustaining treatment form is not an advance health-care directive. [L 2009, c 186, pt of 1; am L 2014, c 154, 3; am L 2015, c 35, 43]
  327K-2 Provider orders for life-sustaining treatment form; execution; explanation; compliance; revocation. (a) The following may execute a form:  (1) The patient;  (2) The patient's provider; and  (3) The legally authorized representative, but only if the patient:  (A) Lacks capacity; or  (B) Has designated that the legally authorized representative is authorized to execute the form. The patient's provider may medically evaluate the patient and, based upon the evaluation, may recommend new orders consistent with the most current information available about the individual's health status and goals of care. The patient's provider shall consult with the patient or the patient's legally authorized representative before issuing any new orders on a form. The patient or the patient's legally authorized representative may choose to execute or not execute any new form. If a patient is incapacitated, the patient's legally authorized representative shall consult with the patient's provider before requesting the patient's provider to modify treatment orders on the form. To be valid, a form shall be signed by the patient's provider and the patient, or the patient's provider and the patient's legally authorized representative. At any time, a patient, or, if incapacitated, the patient's legally authorized representative, may request alternative treatment that differs from the treatment indicated on the form.  (b) The patient's physician or a health care provider shall explain to the patient the nature and content of the form, including any medical intervention or procedures, and shall also explain the difference between an advance health-care directive and the form. The form shall be prepared by the patient's physician or a health care provider based on the patient's preferences and medical indications.  (c) Any health care provider, including the patient's physician, emergency medical services personnel, and emergency physicians shall comply with a properly executed and signed form and treat the patient according to the orders on the form; provided that compliance shall not be required if the orders on the form request medically ineffective health care or health care that is contrary to generally accepted health care standards.  (d) A patient having capacity, or, if the patient is incapacitated, the patient's legally authorized representative, may revoke a form at any time and in any manner that communicates intent to revoke. [L 2009, c 186, pt of 1; am L 2014, c 154, 4]
  327K-3 Immunity. (a) No physician, advanced practice registered nurse, health care professional, nurse's aide, hospice provider, home care provider, including private duty and medicare home health providers, emergency medical services provider, adult residential care home operator, skilled nursing facility operator, hospital, or person employed by or under contract with a hospital shall be subject to criminal prosecution, civil liability, or be deemed to have engaged in unprofessional conduct for:  (1) Carrying out in good faith, a decision regarding treatment orders, including cardiopulmonary resuscitation by or on behalf of a patient pursuant to orders in a form and in compliance with the standards and procedures set forth in this chapter; or  (2) Providing cardiopulmonary resuscitation to a patient for whom an order not to resuscitate has been issued on a form; provided the person reasonably and in good faith:  (A) Was unaware of the issuance of an order not to resuscitate; or  (B) Believed that any consent to treatment orders, including the order not to resuscitate, had been revoked or canceled.  (b) No person shall be subject to criminal prosecution or civil liability for consenting or declining to consent, in good faith and on behalf of a patient, to the issuance of an order not to resuscitate pursuant to this chapter. [L 2009, c 186, pt of 1; am L 2014, c 154, 5]
  327K-4 Rules. The director of health may adopt rules in accordance with chapter 91 to carry out this chapter. [L 2009, c 186, pt of 1]
  328-1 Definitions. For the purposes of this chapter:  "Agent" means a person who acts on behalf of or under the direction of another person.  "Brand" or "brand name" means any registered trade name commonly used to identify a drug.  "Certificate of medical necessity" means the United States Department of Health and Human Services, Health Care Financing Administration's FORM HCFA 484, which identifies the patient-recipient, the supplier, and the prescriber of medical services and establishes an estimated length of time of need for equipment or therapy, or both, to treat the ailment indicated by the diagnosis codes listed thereon.  "Color additive" means a material which:  (1) Is a dye, pigment, or other substance made by a process of synthesis or similar artifice, or extracted, isolated, or otherwise derived, with or without intermediate or final change of identity from a vegetable, animal, mineral, or other source; or  (2) When added or applied to a food, drug, or cosmetic, or to the human body or any part thereof, is capable (alone or through reaction with other substance) of imparting color thereto, except that the term does not include any material which has been or hereafter is exempted under the Federal Act;  The term "color" includes black, white, and intermediate grays.  Nothing in this definition shall be construed to apply to any pesticide chemical, soil or plant nutrient, or other agricultural chemical solely because of its effect in aiding, retarding, or otherwise affecting, directly or indirectly, the growth or other natural physiological process of produce of the soil and thereby affecting its color, whether before or after harvest.  "Computer" means a programmable electronic device, capable of multiple functions including but not limited to storage, retrieval, and processing of information.  "Consumer commodity" means any food, drug, cosmetic, or device as those terms are defined by this part or the Federal Act. The term shall not include:  (1) Any meat or meat products or poultry or poultry products, except as these products are sold at retail in stores and restaurants in normal retail quantities; provided that any labeling requirements imposed under authority of this part shall comply with those established by the Secretary of Agriculture, United States Department of Agriculture;  (2) Any tobacco or tobacco products;  (3) Any commodity subject to packaging and labeling requirements imposed by the Secretary of Agriculture pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act or the provisions of the eighth paragraph under the heading "Bureau of Animal Industry" of the Act of March 4, 1913 (37 Stat. 832-833; 21 U.S.C.  151-158), commonly known as the Virus-Serum-Toxin Act;  (4) Any drug subject to section 503(b)(1) or 506 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.  353(b)(1) and 356);  (5) Any beverage subject to or complying with packaging and labeling requirements imposed under the Federal Alcohol Administration Act (27 U.S.C.  201-219a); or  (6) Any commodity subject to the Federal Seed Act (7 U.S.C.  1551-1611).  "Cosmetic" means:  (1) Articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance; or  (2) Articles intended for use as a component of any such articles, except that the term shall not include soap intended for cleansing purposes only.  "Department" means the department of health.  "Device", except when used (e.g., as an identification device in labeling) in sections 328-3(a), 328-6(10), 328-10(6), 328-15(3), and 328-19(3), means instruments, apparatus, and contrivances, including their components, parts, and accessories, intended:  (1) For use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or animals; or  (2) To affect the structure or any function of the body of humans or animals.  "Director" means the director of health.  "Downtime" means the period of time that a prescription information processing system is not operable.  "Drug" means:  (1) Articles recognized in the official United States Pharmacopoeia, official United States Pharmacopoeia Dispensing Information, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;  (2) Articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or animals;  (3) Articles (other than food or clothing) intended to affect the structure or any function of the body of humans or animals; or  (4) Articles intended for use as a component of any article specified in paragraph (1), (2), or (3); provided that the term "drug" shall not include devices or their components, parts or accessories, cosmetics, or liquor as defined in section 281-1.  "Drug sample" means a unit of a prescription drug that is not to be sold and is distributed to promote the sale of the drug under requirements of Public Law 100-293.  "Electronic prescription" means a prescription or certificate of medical necessity, which is electronically transmitted or conveyed, including a facsimile transmission.  "Established name" or "generic name" when applied to a drug has the meaning given in section 502(e)(3) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 352(e)(3)).  "Federal Act" means the Federal Food, Drug, and Cosmetic Act (52 Stat. 1040; 21 U.S.C.  301-395).  "Food" means:  (1) Articles used for food or drink by humans, dogs, or cats;  (2) Chewing gum; or  (3) Articles used for components of any such article.  "Food additive" means any substance, the intended use of which results or may be reasonably expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food (including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food; and including any source of radiation intended for any such use), if the substance is not generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures (or, in the case of a substance used in a food prior to January 1, 1958, through either scientific procedures or experience based on common use in food) to be safe under the conditions of its intended use, except that the term does not include:  (1) A pesticide chemical in or on a raw agricultural commodity;  (2) A pesticide chemical to the extent that it is intended for use or is used in the production, storage, or transportation of any raw agricultural commodity;  (3) A color additive; or  (4) Any substance used in accordance with a sanction or approval granted prior to the enactment of the Food Additives Amendment of 1958, pursuant to the Federal Act, the Poultry Products Inspection Act (21 U.S.C.  451-470), or the Meat Inspection Act of March 4, 1907 (34 Stat. 1260), as amended and extended (21 U.S.C.  601-695).  "Good manufacturing practices for drugs" means requirements for the manufacture, repacking, production, storage, and dispensing of drug products as stated in 21 C.F.R. Parts 207, 210, and 211.  "Legible" means information that is capable of being read and understood.  "Medical oxygen" means the prescription drug oxygen.  "Medical oxygen distributor" means any person, including a licensed prescription drug wholesale distributor, who holds a permit under chapter 461 to distribute or dispense medical oxygen pursuant to a prescription.  "Nonprescription drug", "over-the-counter drug", or "nonlegend drug", means any packaged, bottled, or nonbulk chemical, drug, or medicine that may be lawfully sold without a practitioner's order.  "Official compendium" means the official United States Pharmacopoeia, official United States Pharmacopoeia Dispensing Information, official Homeopathic Pharmacopoeia of the United States, official National Formulary, or any supplement to any of them.  "Out-of-state practitioner" means a physician, surgeon, osteopathic physician and surgeon, advanced practice registered nurse, dentist, podiatrist, or veterinarian authorized to prescribe drugs to patients under the applicable laws of any state of the United States except the State of Hawaii, or a physician, surgeon, osteopathic physician and surgeon, advanced practice registered nurse, dentist, podiatrist, or veterinarian authorized to prescribe drugs under the applicable laws of Hawaii, but practicing in a state other than Hawaii.  "Pesticide chemical" means any substance which, alone, in chemical combination, or in formulation with one or more other substances is an "economic poison" within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.  135-135k) as amended, and which is used in the production, storage, or transportation of raw agricultural commodities.  "Pharmacist" means a person who is licensed or holds a permit under chapter 461 to practice in a pharmacy, including a pharmacy intern under the immediate and direct supervision of a licensed pharmacist.  "Pharmacy" means a place of business operating as a pharmacy as permitted under chapter 461.  "Practitioner" means an individual licensed by the State or authorized by the laws of the State to prescribe prescription drugs within the scope of the person's practice.  "Prescriber's authorized agent" means a person, including but not limited to an institutional facility, who acts on behalf of, and under the direction of, the prescribing practitioner.  "Prescription" means an order or formula issued by a practitioner for the compounding or dispensing of drugs, or an order or formula issued by an out-of-state practitioner in compliance with section 328-17.6.  "Prescription drug" means:  (1) Any drug required by federal or state statutes, regulations, or rules to be dispensed only upon a prescription, including finished dosage forms and active ingredients subject to section 328-16 or section 503(b) of the Federal Act; or  (2) Any drug product compounded or prepared pursuant to a practitioner's order.  "Prescription information processing system" means a system for creating, generating, sending, receiving, storing, displaying, or processing prescription information, including but not limited to any electronic hardware, software, or files.  "Raw agricultural commodity" means any food in its raw or natural state, including all fruits that are washed, colored, or otherwise treated in their unpeeled natural form prior to marketing.  "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium.  "Supply" means to sell, trade, distribute, exchange, barter, give, offer for sale, lease, rent, or provide.  "21 C.F.R." means Title 21, Code of Federal Regulations. [L 1941, c 318, pt of 2; RL 1945, 2201; RL 1955, 51-1; am L Sp 1959 2d, c 1, 19; am L 1967, c 152, 1; HRS 328-1; am L 1972, c 151, 1; am L 1977, c 200, 1; am L 1983, c 100, 4; am L 1986, c 179, 4; gen ch 1993; am L 1994, c 172, 1; am L 1996, c 208, 1; am L 1997, c 214, 1; am L 2000, c 83, 1; am L 2001, c 124, 2; am L 2003, c 56, 1; am L 2004, c 28, 1; am L 2016, c 183, 2]
  328-10.5 Regulations for exemption from labeling requirements. The director may adopt regulations exempting from any labeling requirement of this part food which is, in accordance with the practice of the trade, to be processed, labeled or repacked in substantial quantities at establishments other than those where originally processed or packed, on condition that such food is not adulterated or misbranded under the provisions of this part upon removal from such processing, labeling or repacking establishment. [L 1972, c 151, 6]
 328-10 Foods deemed misbranded when. A food shall be deemed to be misbranded:  (1) If its labeling is false or misleading in any particular; or if its labeling or packaging fails to conform with the requirements of sections 328-2 and 328-19.1;  (2) If it is offered for sale under the name of another food;  (3) If it is an imitation of another food for which a definition and standard of identity has been prescribed by rules as provided by section 328-8; or if it is an imitation of another food that is not subject to paragraph (7), unless its label bears in type of uniform size and prominence, the word "imitation" and, immediately thereafter, the name of the food imitated;  (4) If its container is so made, formed, or filled as to be misleading;  (5) If in package form, unless it bears a label containing (A) the name and place of business of the manufacturer, packer, or distributor; (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count, which statement shall be separately and accurately stated in a uniform location upon the principal display panel of the label; provided that under subparagraph (B) reasonable variations shall be permitted, and exemptions as to small packages shall be established, by rules adopted by the department of health;  (6) If any word, statement, or other information required by or under authority of this part to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;  (7) If it purports to be or is represented as a food for which a definition and standard of identity have been prescribed by rules as provided by section 328-8, unless (A) it conforms to such definition and standard, and (B) its label bears the name of the food specified in the definition and standards, and, insofar as may be required by the rules, the common names of optional ingredients (other than spices, flavoring, and coloring) present in the food;  (8) If it purports to be or is represented as:  (A) A food for which a standard of quality has been prescribed by rules as provided by section 328-8 and its quality falls below such standard unless its label bears, in such manner and form as the rules specify, a statement that it falls below such standard; or  (B) A food for which a standard or standards of fill of container have been prescribed by rules as provided by section 328-8, and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as the rules specify, a statement that it falls below such standard;  (9) If it is not subject to paragraph (7), unless its label bears (A) the common or usual name of the food, if any there be, and (B) in case it is fabricated from two or more ingredients, the common or usual name of each such ingredient; except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings, without naming each; provided that to the extent that compliance with the requirements of subparagraph (B) is impractical or results in deception or unfair competition, exemptions shall be established by rules prescribed by the department; and, provided further that the requirements of subparagraph (B) shall not apply to food products which are packaged at the direction of purchasers at retail at the time of sale, the ingredients of which are disclosed to the purchasers by other means in accordance with rules prescribed by the department;  (10) If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the department determines to be, and by rules prescribes, as necessary in order to fully inform purchasers as to its value for such uses;  (11) If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; provided that to the extent that compliance with the requirements of this paragraph is impracticable, exemptions shall be established by rules prescribed by the department; and, provided further that this paragraph and paragraphs (7) and (9) with respect to artificial coloring shall not apply in the case of butter, cheese, or ice cream. The provisions of this paragraph regarding chemical preservatives shall not apply to a pesticide chemical when used in or on a raw agricultural commodity which is the produce of the soil;  (12) If it is a product intended as an ingredient of another food and, when used according to the directions of the purveyor, will result in the final food product being adulterated or misbranded;  (13) If it is a color additive unless its packaging and labeling are in conformity with the packaging and labeling requirements applicable to the color additive prescribed under the Federal Act;  (14) If it is a raw agricultural commodity which is the produce of the soil, bearing or containing a pesticide chemical applied after harvest, unless the shipping container of such commodity bears labeling which declares the presence of such chemical in or on such commodity and the common or usual name and the function of such chemical; provided that no such declaration shall be required while such commodity, having been removed from the shipping container, is being held or displayed for sale at retail out of such container in accordance with the custom of the trade;  (15) If it is a confectionery and contains alcohol in excess of one-half of one per cent by weight and that fact does not appear on the label for the food. [L 1941, c 318, 7; RL 1945, 2210; RL 1955, 51-10; am L Sp 1959 2d, c 1, 19; am L 1967, c 152, 5; HRS 328-10; am L 1972, c 151, 5; am L 1979, c 105, 34; am L 1987, c 52, 1; am L 1988, c 402, 3] Attorney General Opinions  Sale of "Grade AA Pasteurized Milk" as "Grade A Recombined Milk" constitutes misbranding. Att. Gen. Op. 67-19.
  328-100 REPEALED. L 1992, c 177, 4. Note  L 1992, c 193, 2 purports to amend this section.
 328-101 REPEALED. L 1992, c 177, 5.
  328-102 Criminal penalty. Any person who wilfully violates this part or rules adopted under this part shall be guilty of a misdemeanor. [L 1996, c 209, pt of 1]
  328-103 Administrative penalties. (a) Any person who violates this part or any rule adopted by the department of health pursuant to this part shall be fined not more than $10,000 for each separate offense. Any action taken to collect the penalty provided for in this subsection shall be considered a civil action.  (b) In addition to any other administrative or judicial remedy provided by this part, or by rules adopted pursuant to this part, the director of health may impose by order the administrative penalty specified in this section. Factors to be considered in imposing the administrative penalty include the nature and history of the violation and of any prior violations, and the opportunity, difficulty, and history of corrective action. For any judicial proceeding to recover the administrative penalty imposed, the director of health need only show that notice was given, a hearing was held or the time granted for requesting a hearing has expired without such a request, the administrative penalty was imposed, and the penalty remains unpaid. [L 1996, c 209, pt of 1]
 [ 328-104] Injunctive relief. The director of health may institute a civil action in any court of competent jurisdiction for injunctive relief to prevent any violation of this part or of any rule adopted under this part. The court shall have the power to grant relief in accordance with the Hawaii rules of civil procedure. L 1996, c 209, pt of 1 Rules of Court  Injunctions, see HRCP rule 65.
  328-105 Powers and duties. The department of health shall enforce this part and shall have, in connection therewith, all the powers and duties conferred and imposed upon it pursuant to part I. [L 1996, c 209, pt of 1]
  328-106 Pharmacy benefit manager; maximum allowable cost. (a) A pharmacy benefit manager that reimburses a contracting pharmacy for a drug on a maximum allowable cost basis shall comply with the requirements of this section.  (b) The pharmacy benefit manager shall include the following in the contract information with a contracting pharmacy:  (1) Information identifying any national drug pricing compendia; or  (2) Other data sources for the maximum allowable cost list.  (c) The pharmacy benefit manager shall make available to a contracting pharmacy, upon request, the most up-to-date maximum allowable cost price or prices used by the pharmacy benefit manager for patients served by the pharmacy in a readily accessible, secure, and usable web-based or other comparable format.  (d) A drug shall not be included on a maximum allowable cost list or reimbursed on a maximum allowable cost basis unless all of the following apply:  (1) The drug is listed as "A" or "B" rated in the most recent version of the Orange Book or has a rating of "NR", "NA", or similar rating by a nationally recognized reference;   (2) The drug is generally available for purchase in this State from a national or regional wholesaler; and  (3) The drug is not obsolete.  (e) The pharmacy benefit manager shall review and make necessary adjustments to the maximum allowable cost of each drug on a maximum allowable cost list at least once every seven days using the most recent data sources available, and shall apply the updated maximum allowable cost list beginning that same day to reimburse the contracted pharmacy until the pharmacy benefit manager next updates the maximum allowable cost list in accordance with this section.  (f) The pharmacy benefit manager shall have a clearly defined process for a contracting pharmacy to appeal the maximum allowable cost for a drug on a maximum allowable cost list that complies with all of the following:  (1) A contracting pharmacy may base its appeal on one or more of the following:  (A) The maximum allowable cost for a drug is below the cost at which the drug is available for purchase by similarly situated pharmacies in this State from a national or regional wholesaler; or  (B) The drug does not meet the requirements of subsection (d);  (2) A contracting pharmacy shall be provided no less than fourteen business days following receipt of payment for a claim to file the appeal with the pharmacy benefit manager;  (3) The pharmacy benefit manager shall make a final determination on the contracting pharmacy's appeal no later than fourteen business days after the pharmacy benefit manager's receipt of the appeal;  (4) If the maximum allowable cost is upheld on appeal, the pharmacy benefit manager shall provide to the contracting pharmacy the reason therefor and the national drug code of an equivalent drug that may be purchased by a similarly situated pharmacy at a price that is equal to or less than the maximum allowable cost of the drug that is the subject of the appeal; and  (5) If the maximum allowable cost is not upheld on appeal, the pharmacy benefit manager shall adjust, for the appealing contracting pharmacy, the maximum allowable cost of the drug that is the subject of the appeal, within one calendar day of the date of the decision on the appeal and allow the contracting pharmacy to reverse and rebill the appealed claim.  (g) A contracting pharmacy shall not disclose to any third party the maximum allowable cost list and any related information it receives, either directly from a pharmacy benefit manager or through a pharmacy services administrative organization or similar entity with which the pharmacy has a contract to provide administrative services for that pharmacy. [L 2015, c 175, 1]
 328-11 Regulations to prevent contamination; emergency permits to manufacturers, processors and packers. Whenever the department of health finds after investigation that the distribution in the State of any class of food may, by reason of contamination with microorganisms during manufacture, processing, or packing thereof in any locality, be injurious to health, and that the injurious nature cannot be adequately determined after such articles have entered commerce, it then, and in such case only, shall prescribe regulations providing for the issuance, to manufacturers, processors, or packers of such class of food in the locality, of permits to which shall be attached such conditions governing the manufacture, processing, or packing of such class of food, for such temporary period of time, as may be necessary to protect the public health. After the effective date of the regulations, and during the temporary period, no person shall introduce or deliver for introduction into commerce any such food manufactured, processed, or packed by any such manufacturer, processor, or packer unless the manufacturer, processor, or packer holds a permit issued by the department as provided by such regulations. [L 1941, c 318, pt of 8; RL 1945, 2211; RL 1955, 51-11; am L Sp 1959 2d, c 1, 19; HRS 328-11]
  328-111 Objective. The purpose of this part is to establish the minimum requirements for the storage and handling of wholesale prescription drugs and for the establishment and maintenance of prescription drug distribution records by wholesale distributors, as required by the federal Prescription Drug Marketing Act of 1987, Pub. L. 100-293, and 21 C.F.R. Part 205. [L 1992, c 196, pt of 2]
  328-112 Definitions. As used in this part:  "Blood" means whole blood collected from a single donor and processed either for transfusion or for further manufacturing.  "Blood component" means that part of blood separated by physical or mechanical means.  "Common control" means the power to direct or cause the direction of the management and policies of a person or an organization, whether by ownership of stock, by voting rights, by contract, or otherwise.  "Department" means the department of health except when otherwise provided.  "Drug sample" means a unit of a prescription drug that is not intended to be sold and is intended to promote the sale of the drug.  "Manufacturer" means anyone who is engaged in manufacturing, preparing, propagating, compounding, processing, packaging, repackaging, or labeling a prescription drug.  "Prescription drug" means any human drug required by federal or state statutes, regulations, or rules to be dispensed only by a prescription, including finished dosage forms and active ingredients subject to section 328-16 or to section 503(b) of the federal Food, Drug, and Cosmetic Act.  "Wholesale distribution" means the distribution of prescription drugs to persons other than a consumer or patient, but does not include:  (1) Intracompany sales, defined as any transaction or transfer between an entity and any division, subsidiary, parent, or affiliated or related company under common ownership and control;  (2) The purchase or other acquisition, by a hospital or other health care entity that is a member of a group purchasing organization, of a drug for the entity's own use, from the group purchasing organization or from other hospitals or health care entities that are members of the group purchasing organization;  (3) The sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug by a charitable organization described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended, to a nonprofit affiliate of the organization to the extent otherwise permitted by law;  (4) The sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug among hospitals or other health care entities that are under common control;  (5) The sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug for emergency medical reasons; for purposes of this definition the term "emergency medical reasons" includes, but is not limited to, transfers of prescription drugs by a retail pharmacy to another retail pharmacy to alleviate a temporary shortage, except that the gross dollar value of such transfers shall not exceed five per cent of the total prescription drug sales revenue of either the transferor or transferee pharmacy during any period of twelve consecutive months;  (6) The sale, purchase, or trade of a drug, or an offer to sell, purchase, or trade a drug, or the dispensing of a drug, pursuant to a prescription;  (7) The distribution of drug samples by manufacturers' representatives or distributors' representatives; or  (8) The sale, purchase, or trade of blood and blood components intended for transfusion.  "Wholesale distributor" means any person or entity engaged in wholesale distribution of prescription drugs, including, but not limited to, manufacturers; repackers; own-label distributors; jobbers; private label distributors; brokers; warehouses, including manufacturers' and distributors' warehouses, chain drug warehouses, and wholesale drug warehouses; independent wholesale drug traders; prescription drug repackagers; physicians; dentists; veterinarians; birth control and other clinics; individuals; hospitals; nursing homes and their providers; health maintenance organizations and other health care providers; and retail and hospital pharmacies that conduct wholesale distributions. The term "wholesale distributor" shall not include any carrier for hire or person or entity hired solely to transport prescription drugs. [L 1992, c 196, pt of 2] Cross References  Wholesale prescription drug distributor licenses, see 461-8.6.
  328-113 Rules.  (a) The department may adopt such rules as may be necessary to carry out the purposes and enforce the provisions of this part and to implement the requirements of 21 Code of Federal Regulations Part 205, including minimum requirements for the storage and handling of wholesale prescription drugs; the keeping of records regarding their receipt and distribution; written policies and procedures for wholesale prescription drug distributors; and the salvaging and reprocessing of prescription drugs. All rules adopted under this part shall meet or exceed the requirements of the wholesale prescription drug distributor guidelines contained in 21 Code of Federal Regulations Part 205, and in case of conflict between any rule adopted under this part and the provisions of 21 Code of Federal Regulations Part 205, the more stringent provision shall prevail.  (b) The director may, without regard to chapter 91, adopt standards regarding conditions and temperatures for the storage of prescription drugs by reference to the provisions of an official compendium such as the United States Pharmacopeia/National Formulary (USP/NF), as updated from time to time. [L 1992, c 196, pt of 2]
  328-114 Notice. Before any violation of this part is reported for the institution of a criminal proceeding, the person against whom the proceeding is contemplated shall be given appropriate notice and an opportunity to present the person's views before the department either orally or in writing, in person or by an attorney, with regard to the contemplated proceeding. [L 1992, c 196, pt of 2]
  328-115 Inspection. Wholesale distributors shall permit agents of the department, agents of the department of commerce and consumer affairs, and authorized federal, state, or local law enforcement officials to enter and inspect their premises and delivery vehicles, and to audit their records, written operating procedures, and lists of responsible persons, at reasonable times and in a reasonable manner, to the extent authorized by law. [L 1992, c 196, pt of 2]
  328-116 Penalty; exceptions.  (a) Any person who violates this part or rules adopted under this part shall be fined not more than $500, or imprisoned not more than one year, or both.  (b) No person shall be subject to the penalties of subsection (a) of this section for having violated this part or rules adopted under this part if the person establishes a guaranty or undertaking signed by, and containing the name and address of, the individual from whom the person received the article in good faith, to the effect that the article is not adulterated or misbranded within the meaning of part I of this chapter. [L 1992, c 196, pt of 2]
  328-117 Administrative penalties. (a) Any person who violates this part or any rule adopted by the department pursuant to this part shall be fined not more than $10,000 for each separate offense. Any action taken to collect the penalty provided for in this subsection shall be considered a civil action.  (b) In addition to any other administrative or judicial remedy provided by this part, or by rules adopted pursuant to this part, the director may impose by order the administrative penalty specified in this section. Factors to be considered in imposing the administrative penalty include the nature and history of the violation and of any prior violation, and the opportunity, difficulty, and history of corrective action. For any judicial proceeding to recover the administrative penalty imposed, the director need only show that notice was given, a hearing was held, or the time granted for requesting a hearing has expired without such a request, the administrative penalty was imposed, and the penalty remains unpaid. [L 1992, c 196, pt of 2]
  328-118 Injunctive relief. The director may institute a civil action in any court of competent jurisdiction for injunctive relief to prevent any violation of this part or any rule adopted under this part. The court shall have powers to grant relief in accordance with the Hawaii rules of civil procedure. [L 1992, c 196, pt of 2] Rules of Court  Injunctions, see HRCP rule 65.
  328-119 Minimum requirements for the storage and handling of prescription drugs. Wholesale distributors of prescription drugs and their officers, agents, representatives, and employees shall ensure that the following requirements are met:  (1) Facilities. All facilities at which prescription drugs are stored, warehoused, handled, held, offered for sale or distribution, marketed, or displayed shall:  (A) Be of suitable size and construction to facilitate cleaning, maintenance, and proper operations;  (B) Have storage areas designed to provide adequate lighting, ventilation, temperature, sanitation, humidity, space, equipment, and security conditions;  (C) Have a quarantine area for storage of prescription drugs that are outdated, damaged, deteriorated, misbranded, or adulterated, or that are in immediate containers or sealed secondary containers that have been opened;  (D) Be maintained in a clean and orderly condition; and  (E) Be free from infestation by insects, rodents, birds, and vermin of any kind.  (2) Security.  (A) All facilities used for wholesale distribution, storage, or warehousing of prescription drugs shall be secure from unauthorized entry.  (i) Access from outside the premises shall be kept to a minimum and shall be well controlled.  (ii) The outside perimeter of the premises shall be well lighted.  (iii) Entry into areas where prescription drugs are held shall be limited to authorized personnel.  (B) All facilities shall be equipped with an alarm system to detect entry after hours.  (C) All facilities shall be equipped with a security system that will provide suitable protection against theft and diversion. When appropriate, the security system shall provide protection against theft or diversion that is facilitated or hidden by tampering with computers or electronic records.  (3) Storage. All prescription drugs shall be stored at appropriate temperatures and under appropriate conditions in accordance with the requirements, if any, in the labeling of the drugs, or in accordance with the standards regarding conditions and temperatures for the storage of prescription drugs adopted under this part.  (A) If no storage requirements are established for a prescription drug, the drug may be held at controlled room temperature, as defined in an official compendium, to help ensure that its identity, strength, quality, and purity are not adversely affected.  (B) Appropriate manual, electromechanical, or electronic temperature and humidity recording equipment, devices, or logs shall be used to document the proper storage of prescription drugs.  (4) Examination of materials.  (A) Upon receipt, each outside shipping container of prescription drugs shall be examined visually to confirm the identity of the drugs and to prevent the acceptance of contaminated prescription drugs or prescription drugs that are otherwise unfit for distribution. This examination shall be adequate to reveal container damage that would suggest possible contamination or other damage to the contents.  (B) Each outgoing shipment of prescription drugs shall be inspected carefully to confirm the identity of the drugs and to ensure that no prescription drugs are delivered that have been damaged in storage or held under improper conditions.  (C) The recordkeeping requirements in section 328-120 shall be followed for all incoming and outgoing prescription drugs.  (5) Returned, damaged, outdated, deteriorated, misbranded, and adulterated prescription drugs.  (A) Prescription drugs that are damaged, outdated, deteriorated, misbranded, or adulterated shall be physically separated from other prescription drugs and stored, in such a way that no cross-contamination or confusion are possible, until they are destroyed or returned to the supplier.  (B) Any prescription drugs whose immediate or sealed outer or sealed secondary containers are found upon arrival to have been opened or used shall be identified as such, and shall be physically separated from other prescription drugs and stored, in such a way that no cross-contamination or confusion are possible, until they are destroyed or returned to the supplier.  (C) If the conditions under which a prescription drug has been returned cast doubt on the drug's safety, identity, strength, quality, or purity, then the drug shall be either destroyed or returned to the supplier, unless examination, testing, or other investigation proves that the drug meets appropriate standards of safety, identity, strength, quality, and purity. In determining whether the conditions under which a drug has been returned cast doubt on the drug's safety, identity, strength, quality, or purity, the wholesale distributor shall consider, among other things, the conditions under which the drug has been held, stored, or shipped before or during its return and the condition of the drug and its container, carton, or labeling as a result of storage or shipping.  (D) The recordkeeping requirements in section 328-120 shall be followed for all outdated, damaged, deteriorated, misbranded, adulterated or returned prescription drugs. [L 1992, c 196, pt of 2] Revision Note  "This part" substituted for "the new part in section 2 of this Act".  "Section 328-120" substituted for "section 8 of this Act".
  328-12.3 Protection of food. All food shall be prepared, stored, displayed, dispensed, placed, sold, and served so as to be protected from dust, insects, rodents, unnecessary handling, droplet infection, overhead leakage, or other contamination. [L 1983, c 150, pt of 1]
 328-12.4 Food establishments; use of latex gloves prohibited. The use of latex gloves by personnel in a food establishment permitted under title 11, chapter 50 of the Hawaii administrative rules, shall be prohibited. [L 2016, c 180, 4]
  328-12.7 Display of unpackaged processed food. (a) Unpackaged processed food, except potentially hazardous food, may be displayed and sold in bulk in self-service containers if all of the following conditions are satisfied:  (1) Each self-service container has a tight-fitting lid permanently attached in a manner that prevents the lid from touching the floor, which is kept in a closed position at all times except during customer service;  (2) Each self-service container has a utensil with a handle for dispensing the food;  (3) Self-service containers, lids, and utensils are constructed of nontoxic materials and provide for easy cleaning and repair;  (4) Self-service containers, lids, and utensils are maintained in a sanitary condition and in a manner that prevents spoilage and infestation;  (5) A sign is posted prominently and conspicuously within the immediate display area directing customers to utilize the utensils provided when serving themselves; and  (6) A label is conspicuously displayed in plain view of the customer and securely attached to each self-service container or in a clear relationship thereto, which contains the following:  (A) Common name of product; and  (B) Declaration of each ingredient used in the manufacture by their common or usual name in descending order of predominate weight. This declaration shall be provided in writing to the food establishment by the manufacturer, packer, or distributor.  (b) Unpackaged processed food may be displayed and sold in bulk in other than self-service containers if all of the following conditions are satisfied:  (1) The food is served by an employee of the food establishment directly to a consumer; and  (2) The food is displayed in clean, sanitary, and covered or otherwise protected containers.  (c) If the director makes a specific finding that a disease is actually transmitted by the method of dispensing unpackaged processed food, as prescribed by this section, the director may establish by rule greater restrictions on the sale of such food than are required by this section. Such rule shall bear directly on the specific relationship between the disease actually transmitted and the dispensing methods permitted by this section. [L 1983, c 150, pt of 1]
 328-12 Suspension and reinstatement of permits. The department of health may suspend immediately upon notice any permit issued under authority of section 328-11 if it is found that any of the conditions of the permit have been violated. The holder of a permit so suspended shall be privileged at any time to apply for the reinstatement of the permit, and the department shall, immediately after prompt hearing and an inspection of the establishment, reinstate the permit if it is found that adequate measures have been taken to comply with and maintain the conditions of the permit, as originally issued, or as amended.  Any officer or employee duly designated by the director of health shall have access to any factory or establishment, the operator of which holds a permit from the department, for the purpose of ascertaining whether or not the conditions of the permit are being complied with, and denial of access for such inspection shall be grounds for suspension of the permit until such access is freely given by the operator. [L 1941, c 318, pt of 8; RL 1945, 2212; RL 1955, 51-12; am L Sp 1959 2d, c 1, 19; HRS 328-12] Cross References  Other food safety issues, see  321-4.5, 4.6, 11.51, and 27.5.
  328-120 Recordkeeping. (a) Wholesale distributors shall establish and maintain inventories and records of all transactions regarding the receipt and distribution or other disposition of prescription drugs. These records shall include the following information:  (1) The source of the drugs, including the name and principal address of the seller or transferor, and the address of the location from which the drugs were shipped;  (2) The identity and quantity of the drugs received and distributed or disposed of; and  (3) The dates of receipt and distribution or other disposition of the drugs.  (b) Inventories and records shall be made available for inspection and photocopying by the department or any authorized federal, state, or local law enforcement officials for a period of five years following disposition of the drugs.  (c) Records described in this section that are kept at the inspection site or that can be retrieved immediately by computer or other electronic means shall be readily available for authorized inspection during the retention period. Records kept at a central location apart from the inspection site and not electronically retrievable shall be made available for inspection within two working days of a request by the department or any authorized official of a federal, state, or local law enforcement agency. [L 1992, c 196, pt of 2]
  328-121 Written policies and procedures. Wholesale distributors shall establish, maintain, and follow written policies and procedures for the receipt, security, storage, inventory, and distribution of prescription drugs, including policies and procedures for identifying, recording, and reporting losses or thefts and for correcting all errors and inaccuracies in inventories. Wholesale distributors shall include in their written policies and procedures the following:  (1) A procedure whereby the oldest approved stock of a prescription drug is distributed first. The procedure may permit deviation from this requirement if the deviation is temporary and appropriate.  (2) A procedure for handling recalls and withdrawals of prescription drugs. The procedure shall be adequate to deal with recalls and withdrawals caused by:  (A) Any action initiated at the request of the department, the Food and Drug Administration, or any other federal, state, or local law enforcement or other government agency;  (B) Any voluntary action by the manufacturer to remove defective or potentially defective drugs from the market; or  (C) Any action undertaken to promote public health and safety by replacing existing merchandise with an improved product or new package design.  (3) A procedure to ensure that the distributor prepares for, protects against, and handles properly any crisis that affects security or operation of any facility in the event of strike, fire, flood, or other natural disaster, or in other emergencies.  (4) A procedure to ensure that all outdated prescription drugs are segregated from other drugs and either returned to the manufacturer or destroyed. This procedure shall require written documentation of the disposition of outdated prescription drugs, which documentation shall be maintained for five years after disposition of the outdated drugs. [L 1992, c 196, pt of 2]
  328-122 Responsible persons. Wholesale distributors shall establish and maintain current lists of officers, directors, managers, and other persons in charge of the wholesale distribution, storage, and handling of prescription drugs, including a description of each person's duties and a summary of each person's qualifications. [L 1992, c 196, pt of 2]
  328-123 Salvaging and reprocessing. Wholesale distributors shall be subject to the provisions of 21 Code of Federal Regulations Parts 207, 210, and 211, regarding salvaging and reprocessing of prescription drugs. [L 1992, c 196, pt of 2]
 328-13 Adding of poisonous or deleterious substance, regulation of. (a) Any added poisonous or deleterious substance, and food additive, any pesticide chemical in or on a raw agricultural commodity, or any color additive, shall, with respect to any particular use or intended use, be deemed unsafe for the purpose of application of clause (B)(i) of section 328-9(1) with respect to any food, section 328-14(1) with respect to any drug or device, or section 328-18(1) with respect to any cosmetic, unless there is in effect a regulation pursuant to section 328-19.1, or subsection (b) of this section limiting the quantity of the substance, and the use or intended use of the substance conform to the terms prescribed by the regulation. While the regulation relating to such substance is in effect, a food, drug, or cosmetic shall not, by reason of bearing or containing the substance in accordance with the regulation, be considered adulterated within the meaning of section 328-9(1)(A), section 328-14(1), or section 328-18(1).  (b) The director of health, whenever public health or other considerations in the State so require, may adopt, amend, or repeal regulations whether or not in accordance with regulations promulgated under the Federal Act prescribing therein tolerances for any added poisonous or deleterious substances, for food additives, for pesticide chemicals in or on raw agricultural commodities, or for color additives, including, but not limited to, zero tolerances, and exemptions from tolerances in the case of pesticide chemicals in or on raw agricultural commodities, and prescribing the conditions under which a food additive or a color additive may be safely used and exemptions where the food additive or color additive is to be used solely for investigational or experimental purposes, upon the director's own motion or upon the petition of any interested party requesting that such a regulation be established. It shall be incumbent upon the petitioner to establish by data submitted to the director that a necessity exists for the regulation, and that its effect will not be detrimental to the public health. If the data furnished by the petitioner is not sufficient to allow the director to determine whether such regulation should be promulgated, the director may require additional data to be submitted and failure to comply with the request shall be sufficient grounds to deny the request. In adopting, amending, or repealing regulations relating to such substances the director shall consider among other relevant factors, the following which the petitioner, if any, shall furnish:  (1) The name and all pertinent information concerning the substance including where available, its chemical identity and composition, a statement of the conditions of the proposed use, including directions, recommendations, and suggestions and including specimens of proposed labeling, all relevant data bearing on the physical or other technical effect and the quantity required to produce such effect;  (2) The probable composition of any substance formed in or on a food, drug, or cosmetic resulting from the use of such substance;  (3) The probable consumption of such substance in the diet of humans and animals taking into account any chemically or pharmacologically related substance in such diet;  (4) Safety factors which, in the opinion of experts qualified by scientific training and experience to evaluate the safety of such substances for the use or uses for which they are proposed to be used, are generally recognized as appropriate for the use of animal experimentation data;  (5) The availability of any needed practicable methods of analysis for determining the identity and quantity of (A) such substance in or on an article, (B) any substance formed in or on such article because of the use of such substance, and (C) the pure substance and all intermediates and impurities; and  (6) Facts supporting a contention that the proposed use of such substance will serve a useful purpose. [L 1941, c 318, 9; RL 1945, 2213; RL 1955, 51-13; am L 1967, c 152, 6; HRS 328-13; am L 1972, c 151, 7; gen ch 1985, 1993] Revision Note  In subsection (a), "328-19.1" substituted for "328-18.1".
 328-14 Drugs or devices deemed adulterated when. A drug or device shall be deemed to be adulterated:  (1) (A) If it consists in whole or in part of any filthy, putrid, or decomposed substance; or  (B) (i) If it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been contaminated with filth, or whereby it may have been rendered injurious to health; or  (ii) If the methods used in, or the facilities or controls used for, its manufacture, processing, packing, or holding do not conform to or are not operated or administered in conformity with current good manufacturing practice to assure that the drug or device meets the requirements of this part as to safety and has the identity and strength, and meets the quality and purity characteristics which it purports or is represented to possess; or  (C) If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or  (D) If:  (i) It bears or contains, for purposes of coloring only, a color additive which is unsafe within the meaning of the Federal Act; or  (ii) It is a color additive, the intended use of which is for purposes of coloring only, and is unsafe within the meaning of the Federal Act;  (2) If it purports to be or is represented as a drug the name of which is recognized in an official compendium, and its strength differs from, or its quality or purity falls below, the standard set forth in the compendium. Such a determination as to strength, quality, or purity shall be made in accordance with the tests or methods of assay set forth in the compendium, or in the absence of or inadequacy of these tests or methods of assay, those prescribed under authority of the Federal Act. No drug defined in an official compendium shall be deemed to be adulterated under this paragraph because it differs from the standard of strength, quality, or purity therefor set forth in the compendium, if its difference in strength, quality, or purity from that standard is plainly stated on its label. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States it shall be subject to the requirements of the United States Pharmacopoeia unless it is labeled and offered for sale as a homeopathic drug, in which case it shall be subject to the Homeopathic Pharmacopoeia of the United States and not those of the United States Pharmacopoeia;  (3) If it is not subject to paragraph (2) and its strength differs from, or its purity or quality falls below, that which it purports or is represented to possess;  (4) If it is a drug and any substance has been (A) mixed or packed therewith so as to reduce its quality or strength; or (B) substituted wholly or in part therefor. [L 1941, c 318, 10; RL 1945, 2214; RL 1955, 51-14; am L 1967, c 152, 8; HRS 328-14; am L 1995, c 6, 1]
  328-15 Drugs or devices deemed misbranded when; prescriptions excepted, when. A drug or device shall be deemed to be misbranded:  (1) If its labeling is false or misleading in any particular, or if its labeling or packaging fails to conform with the requirements of section 328-19.1.  (2) If in package form, unless it bears a label containing:  (A) The name and place of business of the manufacturer, packer, or distributor; and  (B) An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count, which statement shall be separately and accurately stated in a uniform location upon the principal display panel of the label, provided that under this subparagraph reasonable variations shall be permitted, and exemptions as to small packages shall be allowed, in accordance with rules adopted by the director. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count shall not be required for any commodity subject to packaging and labeling requirements imposed by the Secretary of Agriculture pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act or the provisions of the eighth paragraph under the heading "Bureau of Animal Industry" of the Act of March 4, 1913 (37 Stat. 832-833; 21 U.S.C.  151-158), commonly known as the Virus-Serum-Toxin Act.  (3) If any word, statement, or other information required by or under authority of this part to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.  (4) If it is for use by a person and contains any quantity of the narcotic or hypnotic substance alpha-eucaine, barbituric acid, beta-eucaine, bromal, cannabis, cabromal, chloral, coca, cocaine, codeine, heroin, marijuana, morphine, opium, paraldehyde, peyote, or sulphomethane, or any chemical derivative of such substance, which derivative, after investigation, has been found to be and designated as habit forming, by rules adopted by the director under this part, or by regulations issued pursuant to section 502(d) of the Federal Act, unless its label bears the name and quantity or proportion of the substance or derivative and in juxtaposition therewith the statement "Warning--May be habit forming."  (5) (A) If it is a drug unless:  (i) Its label bears, to the exclusion of any other nonproprietary name (except the applicable systematic chemical name or the chemical formula), the established name, as defined in subparagraph (B), of the drug, if such there be; and in case it is fabricated from two or more ingredients, the established name and quantity of each active ingredient, including the kind and quantity or proportion of any alcohol, and also including, whether active or not, the established name and quantity or proportion of any bromides, ether, chloroform, acetanilid, acetophenetidin, amidopyrine, antipyrine, atropine, hyoscine, hyoscyamine, arsenic, digitalis, glucosides, mercury, ouabain, strophanthin, strychnine, thyroid, or any derivative or preparation of any such substances, contained therein; provided that the requirement for stating the quantity of the active ingredients, other than the quantity of these specifically named in this paragraph, shall apply only to prescription drugs; and  (ii) For any prescription drug the established name of such drug or ingredient, as the case may be, on such label (and on any labeling on which a name for such drug or ingredient is used) is printed prominently and in type at least half as large as that used thereon for any proprietary name or designation for such drug or ingredient; provided further that to the extent that compliance with the requirements of this subparagraph is impracticable, exemptions shall be allowed under rules adopted by the director.  (B) As used in this paragraph, the term "established name", with respect to a drug or ingredient thereof, means:  (i) The applicable official name designated pursuant to section 508 of the Federal Act;  (ii) If there is no such name and the drug, or the ingredient, is an article recognized in an official compendium, then the official title thereof in the compendium; or  (iii) If neither clause (i) nor clause (ii) of this subparagraph applies, then the common or usual name, if any, of such drug or of the ingredient;  provided further that where clause (ii) of this subparagraph applies to an article recognized in the United States Pharmacopoeia, in the United States Pharmacopoeia Dispensing Information, and in the Homeopathic Pharmacopoeia under different official titles, the official title used in the United States Pharmacopoeia shall apply unless it is labeled and offered for sale as a homeopathic drug, in which case the official title used in the Homeopathic Pharmacopoeia shall apply.  (6) Unless its labeling bears:  (A) Adequate directions for use; and  (B) Such adequate warnings against use in those pathological conditions or by children where its use may be dangerous to health, or against unsafe dosage or methods or duration of administration or application, in such manner and form, as are necessary for the protection of users; provided that where any requirement of subparagraph (A), as applied to any drug or device, is not necessary for the protection of the public health, the director shall adopt rules exempting the drug or device from such requirements; provided further that articles exempted under regulations issued under section 502(f) of the Federal Act may also be exempt.  (7) If it purports to be a drug the name of which is recognized in an official compendium, unless it is packaged and labeled as prescribed therein; provided that the method of packaging may be modified with the consent of the director, or if consent is obtained under the Federal Act. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States, it shall be subject to the requirements of the United States Pharmacopoeia with respect to the packaging and labeling unless it is labeled and offered for sale as a homeopathic drug, in which case it shall be subject to the Homeopathic Pharmacopoeia of the United States and not to the United States Pharmacopoeia; provided that in the event of inconsistency between the requirements of this paragraph and those of paragraph (5) as to the name by which the drug or its ingredients shall be designated, the requirements of paragraph (5) shall prevail.  (8) If it has been found by the director to be a drug liable to deterioration, unless it is packaged in such form and manner, and its label bears a statement of such precautions, as the rules adopted by the director or regulations issued under the Federal Act require as necessary for the protection of public health. No such rule shall be established for any drug recognized in an official compendium until the director shall have informed the appropriate body charged with the revision of the compendium of the need for such packaging or labeling requirements and such body shall have failed within a reasonable time to prescribe such requirements.  (9) (A) If it is a drug and its container is so made, formed, or filled as to be misleading;  (B) If it is an imitation of another drug; or  (C) If it is offered for sale under the name of another drug.  (10) If it is dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof.  (11) If it is, purports to be, or is represented as a drug composed wholly or partly of insulin, unless:  (A) It is from a batch with respect to which a certificate or release has been issued pursuant to section 506 of the Federal Act; and  (B) The certificate or release is in effect with respect to the drug.  (12) If it is, purports to be, or is represented as a drug composed wholly or partly of any kind of penicillin, streptomycin, chlortetracycline, chloramphenicol, bacitracin, or any other antibiotic drug, or any derivative thereof, unless:  (A) It is from a batch with respect to which a certificate or release has been issued pursuant to section 507 of the Federal Act; and  (B) The certificate or release is in effect with respect to the drug; provided that this paragraph shall not apply to any drug or class of drugs exempted by regulations promulgated under section 507(c) or (d) of the Federal Act.   For the purpose of this paragraph, the term "antibiotic drug" means any drug intended for use by a person containing any quantity of any chemical substance which is produced by a microorganism and which has the capacity to inhibit or destroy microorganisms in dilute solution (including the chemically synthesized equivalent of any such substance).  (13) If it is a color additive, the intended use of which in or on drugs is for the purpose of coloring only, unless its packaging and labeling are in conformity with the packaging and labeling requirements applicable to such color additive prescribed under section 328-13(b).  (14) In the case of any prescription drug distributed or offered for sale in this State, unless the manufacturer, packer, or distributor thereof includes in all advertisements and other descriptive printed matter issued or caused to be issued by the manufacturer, packer, or distributor with respect to that drug a true statement of:  (A) The established name, as defined in paragraph (5)(B), printed prominently and in type at least half as large as that used for any trade or brand name thereof;  (B) The formula showing quantitatively each ingredient of the drug to the extent required for labels under section 502(e) of the Federal Act; and  (C) Such other information in brief summary relating to side effects, contra-indications, and effectiveness as shall be required in rules adopted by the director.  (15) If a trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of the foregoing has been placed thereon or upon its container with intent to defraud.  (16) Drugs and devices which are, in accordance with the practice of the trade, to be processed, labeled, or repacked in substantial quantities at establishments other than those where originally processed or packed shall be exempt from any labeling or packaging requirements of this part; provided that such drugs and devices are being delivered, manufactured, processed, labeled, repacked, or otherwise held in compliance with rules adopted by the director.  (17) If it has met or exceeded the expiration date established by the manufacturer or principal labeler. [L 1941, c 318, 11; RL 1945, 2215; RL 1955, 51-15; am L Sp 1959 2d, c 1, 19; am L 1963, c 36, 1; am L 1964, c 15,  2, 3; am L 1967, c 152, 9; HRS 328-15; am L 1972, c 151, 8; gen ch 1993; am L 1997, c 214, 3]
  328-16.2 Customized patient medication package. (a) A pharmacy may provide a customized patient medication package to any person; provided that:  (1) The pharmacy has obtained the consent of the patient, patient's caregiver, patient's guardian, or prescribing practitioner; provided that the consent may be communicated in writing, orally, or by electronic transmission; provided further that the format of the consent shall be identified on the prescription record required to be maintained under section 328-17.7;  (2) The consent is accompanied by the patient's current prescription; and  (3) The customized patient medication package meets the requirements of section 328-16.  (b) As used in this section, "customized patient medication package" means a package that is prepared by a pharmacist for a specific patient and contains one or more prescribed solid oral dosage forms. [L 2020, c 27, 1]
  328-16.5 Prescription labeling. (a) A practitioner or the practitioner's authorized representative shall:  (1) Offer to the consumer the option of having the symptom or condition for which a drug is being prescribed listed on the consumer's prescription drug label; and  (2) Inform the consumer of the consumer's right to not have the symptom or condition listed on the prescription drug label.  (b) The symptom or condition shall not appear on the prescription drug label if the consumer refuses.  (c) Instructions for including the symptom or condition on the consumer's prescription drug label shall be written by the practitioner on the prescription.  (d) The symptom or condition shall be printed on the prescription drug label only if it is written on the prescription as part of the directions for use. Any symptom or condition written on a prescription that is not part of the directions for use shall not be printed on the prescription drug label. [L 1995, c 206, 1]
  328-16 Drugs limited to dispensing on prescription. (a) A prescription drug shall be dispensed only if its label bears the following:  (1) The name, business address, and telephone number of the seller. The business address shall be the physical location of the pharmacy or the dispensing practitioner's office;  (2) Except as otherwise authorized for expedited partner therapy in section 453-52 or an opioid antagonist in section 461-11.8, the name of the person for whom the drug was prescribed or the name of the owner of the animal for which the drug was prescribed;  (3) The serial number of the prescription;  (4) The date the prescription was prepared;  (5) The name of the practitioner if the seller is not the practitioner;  (6) The name, strength, and quantity of the drug;  (7) The "use by" date for the drug, which shall be:  (A) The expiration date on the manufacturer's container; or  (B) One year from the date the drug is dispensed,  whichever is earlier;  (8) The number of refills available, if any;  (9) In the case of the dispensing of an equivalent generic drug product, the statement "same as (brand name of the drug product prescribed or the referenced listed drug name)", or words of similar meaning;  (10) In the case of the dispensing of an interchangeable biological product, the statement "interchangeable with (brand name of the biological product prescribed or the referenced biological drug name)", or words of similar meaning; and  (11) Specific directions for the drug's use; provided that if the specific directions for use are too lengthy for inclusion on the label, the notation "take according to written instructions" may be used if separate written instructions for use are actually issued with the drug by the practitioner or the pharmacist, but in no event shall the notation "take as directed", referring to oral instructions, be considered acceptable. If any prescription for a drug does not indicate the number of times it may be refilled, if any, the pharmacist shall not refill that prescription unless subsequently authorized to do so by the practitioner. The act of dispensing a prescription drug other than a professional sample or medical oxygen contrary to this subsection shall be deemed to be an act that results in a drug being misbranded while held for sale.  (b) In addition to the requirements enumerated in subsection (a), a prescription drug shall be dispensed only:  (1) By a pharmacist pursuant to a valid prescription or section 453-52, 461-1, or 461-11.8;  (2) By a medical oxygen distributor pursuant to a prescription or certificate of medical necessity; provided that the drug to be dispensed is medical oxygen; or  (3) By a practitioner to an ultimate user; provided that:  (A) Except as otherwise authorized for expedited partner therapy in section 453-52, the practitioner shall inform the patient, prior to dispensing any drug other than a professional sample, that the patient may have a written, orally ordered, or electronically transmitted or conveyed prescription directed to a pharmacy or a medical oxygen distributor of the patient's own choice;  (B) The practitioner shall promptly record in the practitioner's records:  (i) The prescription in full;  (ii) The name, strength, and quantity of the drug, and specific directions for the drug's use;  (iii) The date the drug was dispensed;  (iv) Except as otherwise authorized for expedited partner therapy in section 453-52 or for an opioid antagonist in section 461-11.8, the name and address of the person for whom the drug was prescribed or the name of the owner of the animal for which the drug was prescribed; and  (v) Prescription drugs dispensed or prescribed for expedited partner therapy as authorized under section 453-52 or for an opioid antagonist in section 461-11.8;  (C) The records described in subparagraph (B) shall be subject to the inspection of the department or its agents at all times; and  (D) No undisclosed rebate, refund, commission, preference, discount, or other consideration, whether in the form of money or otherwise, has been offered to the practitioner as compensation or inducement to dispense or prescribe any specific drug in preference to other drugs that might be used for the identical therapeutic indication.  (c) A prescription may be communicated in writing, orally, or by electronic transmission, and shall include the following information:  (1) The authorization of the practitioner noted as follows:  (A) Written prescriptions shall include the original signature of the practitioner;  (B) Oral prescriptions shall be promptly recorded by the pharmacist or medical oxygen distributor and shall include the practitioner's oral code designation; and  (C) Electronic prescriptions shall be irrefutably traceable to the prescribing practitioner by a recognizable and unique practitioner identifier such as:  (i) A bitmap or graphic image of the prescriber's handwritten signature and the prescriber's oral code designation (or license number or other identifier if the prescriber is an out-of-state practitioner);  (ii) An electronic signature;  (iii) A digital signature; or  (iv) By other means as approved by the director;  (2) The date of issuance;  (3) The practitioner's name, business telephone number, and business address, unless the practitioner is otherwise uniquely identified and the pharmacy or medical oxygen distributor dispensing the prescription has the prescriber's contact information on file accessible within the dispensing area;  (4) The name, strength, and quantity of the drug to be dispensed, and specific directions for the drug's use;  (5) Except as otherwise authorized for expedited partner therapy in section 453-52 or for an opioid antagonist in section 461-11.8, the name and address of the person for whom the prescription was written or the name of the owner of the animal for which the drug was prescribed, unless the pharmacy or medical oxygen distributor dispensing the prescription has the address on file accessible within the dispensing area;  (6) The room number and route of administration, if the patient is in an institutional facility; and  (7) The number of allowable refills, if the prescription is refillable. If the number of refills authorized by the practitioner is indicated using the terms "as needed" or "prn", the prescription may be refilled up to twelve months from the date the original prescription was written. After the twelve-month period, the "as needed" or "prn" prescription may be refilled for a subsequent three-month period; provided:  (A) The prescription is refilled only once during the three-month period;  (B) The refill does not exceed a thirty-day supply of the drug;  (C) The refill does not provide any amount of the drug fifteen months beyond the date the original prescription was written;  (D) In the case of medical oxygen, the duration of therapy indicated on a certificate of medical necessity shall supersede any limitations or restrictions on refilling; and  (E) Subparagraphs (A) to (D) shall apply only to pharmacies and medical oxygen distributors practicing in the State.  (d) Any prescription may be refilled by the pharmacy and a prescription for medical oxygen may be refilled by the medical oxygen distributor if that refilling is authorized by the practitioner either:  (1) In the original prescription; or  (2) By oral or electronic order, which shall be promptly recorded and filed by the receiving pharmacist or medical oxygen distributor.  (e) Prescription information may be transferred between pharmacies, between a pharmacy and a medical oxygen distributor, and between medical oxygen distributors for dispensing purposes; provided that:  (1) Medical oxygen distributors may communicate or receive prescription information related only to the dispensing of medical oxygen;  (2) The prescription information includes all elements of subsection (c)(2) to (7) and the following:  (A) Authentication of the transmitting pharmacy or medical oxygen distributor who is providing the prescription information including the following:  (i) The name of the pharmacist or medical oxygen distributor providing the information;  (ii) The name, telephone number, and address or location of the pharmacy or medical oxygen distributor firm providing the information; and  (iii) The serial number, prescription number, control number, or other unique identifier of the prescription record from which the information was transferred;  (B) The date the original prescription was issued;  (C) The date of the last refill; and  (D) The number of refills remaining.  (f) For the purposes of this section, a "prescription drug" is a drug intended for use by a person that:  (1) Is a habit forming drug to which section 328-15(4) applies;  (2) Because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner; or  (3) Is limited by an approved application under section 505 of the Federal Act, or section 328-17, to use under the professional supervision of a practitioner.  (g) Any drug other than medical oxygen dispensed pursuant to a prescription shall be exempt from the requirements of section 328-15 (except paragraphs (1), (9), (11), and (12), and the packaging requirements of paragraphs (7) and (8)), if the drug bears a label containing:  (1) The name and address of the pharmacy;  (2) The serial number and the date of the prescription or of its filling;  (3) The name of the practitioner;  (4) Except as otherwise authorized for expedited partner therapy in section 453-52 or for an opioid antagonist in section 461-11.8, the name of the patient;  (5) The directions for use; and  (6) Any cautionary statements contained in the prescription. This exemption shall not apply to any drug dispensed in the course of the conduct of a business of dispensing drugs pursuant to diagnosis by mail, or to a drug dispensed in violation of subsection (a), (b), (c), or (d).  (h) The director of health, by rule, may remove drugs subject to sections 328-15(4) and 328-17 from the requirements of subsection (a), (b), (c), or (d) when such requirements are not necessary for the protection of the public health. Drugs removed from the prescription requirements of the Federal Act by regulations issued thereunder may also, by rules issued by the director, be removed from the requirements of subsection (a), (b), (c), or (d).  (i) A drug that is subject to subsections (a), (b), (c), and (d) shall be deemed to be misbranded if, at any time prior to dispensing, its label fails to bear the statement "Caution: Federal law prohibits dispensing without prescription", "Caution: State law prohibits dispensing without prescription", or "Rx only". A drug to which subsections (a), (b), (c), and (d) do not apply shall be deemed to be misbranded if, at any time prior to dispensing, its label bears a caution statement quoted in the preceding sentence.  (j) Nothing in this section shall be construed to relieve any person from any requirement, prescribed by or under authority of law with respect to drugs now included or that may hereafter be included within the classifications of controlled substances as defined in the applicable federal and state laws relating to controlled substances.  (k) Oral code numbers or designations shall be issued by the department of public safety, pursuant to applicable laws and rules.  (l) Any person who transmits, maintains, or receives any prescription or prescription refill orally, in writing, or electronically shall ensure the security, integrity, and confidentiality of the prescription and any information contained therein. [L 1967, c 152, 10; HRS 328-16; am L 1972, c 151, 9; am L 1979, c 96, 1; am L 1982, c 87, 1; am L 1984, c 25, 1; am L 1994, c 172, 2; am L 1996, c 208, 2; am L 1997, c 214, 4 and c 215, 1; am L 2000, c 83, 2; am L 2001, c 124, 3; am L 2002, c 256, 4; am L 2003, c 56, 2; am L 2013, c 250, 4; am L 2016, c 242, 2; am L 2018, c 154, 4] Law Journals and Reviews  Pharmaceutical Soundings in Hawaii. VII HBJ No. 13, at pg. 33.
  328-17.5 Principal labeler responsibility under recall of drug. Whenever the manufacturer of a drug voluntarily recalls the drug or the Federal Food and Drug Administration or a court orders the recall of a drug, the principal labeler of the drug shall remove the drug from all pharmacies, prescriber offices, medical oxygen distributors, distributors of non-prescription drugs, and health care facilities. [L 1982, c 122, 1(1); am L 2000, c 83, 3]
  328-17.6 Out-of-state prescriptions. (a) An out-of-state practitioner may issue a written, oral, or electronic prescription within the confines of the practitioner's license and in accordance with Hawaii laws and rules. An oral or electronic prescription shall be issued by the out-of-state practitioner or the prescriber's authorized agent and received only by a pharmacist; provided that a medical oxygen order may be received by a medical oxygen distributor.  (b) An out-of-state pharmacy may transfer prescription information for refilling purposes and an out-of-state medical oxygen distributor may transfer prescription information for the purpose of refilling a medical oxygen order.  (c) Any pharmacist or medical oxygen distributor who fills or refills a prescription from an out-of-state practitioner shall:  (1) Note the following on the prescription record: the out-of-state practitioner's full name, address, and telephone number;  (2) Be responsible for validating and verifying the practitioner's prescriptive authority by virtue of a valid out-of-state license, a Drug Enforcement Administration registration number, or other measures as appropriate; and  (3) Except as otherwise authorized for expedited partner therapy in section 453-52 or for an opioid antagonist in section 461-11.8, demand proper identification from the person whose name appears on the prescription prior to filling the prescription, in addition to complying with any identification procedures established by the department for filling and refilling an out-of-state prescription.  (d) Before refilling a transferred out-of-state prescription, a pharmacist or medical oxygen distributor shall:  (1) Except as otherwise authorized for expedited partner therapy in section 453-52 or for an opioid antagonist in section 461-11.8, advise the person whose name appears on the prescription that the prescription on file at the originating out-of-state pharmacy or medical oxygen distributor may be canceled; and  (2) Record all information required to be on a prescription, including:  (A) The date of issuance of the original prescription;  (B) The number of refills authorized on the original prescription;  (C) The date the original prescription was dispensed;  (D) The number of valid refills remaining and the date of the last refill;  (E) The out-of-state pharmacy's or out-of-state medical oxygen distributor's name, telephone number, and address, and the original prescription number or control number from which the prescription information was transferred; and  (F) The name of the transferor pharmacist or the medical oxygen distributor's agent.  (e) A pharmacist or medical oxygen distributor who fills or refills an out-of-state prescription shall be responsible if the prescription is not written in the form prescribed by Hawaii laws and rules.  (f) An out-of-state prescription record shall state the date of filling or refilling and, except as otherwise authorized for expedited partner therapy in section 453-52 or for an opioid antagonist in section 461-11.8, the local address of the person whose name appears on the prescription.  (g) All transferred prescriptions shall be maintained for a period of five years from the date of filling or refilling. Filled out-of-state prescriptions shall be kept on file for five years. The department may establish additional recordkeeping and reporting procedures for filled and refilled out-of-state prescriptions.  (h) Nothing in this section shall be construed to relieve any person from any requirement, prescribed by or under authority of law with respect to drugs now included or that may hereafter be included within the classifications of controlled substances as defined in the applicable federal and state laws relating to controlled substances including but not limited to chapter 329. [L 1992, c 177, pt of 1; am L 1993, c 69, 1; am L 1994, c 79, 1; am L 2000, c 83, 4; am L 2001, c 124, 4; am L 2003, c 56, 3; am L 2013, c 250, 5; am L 2018, c 154, 5]
  328-17.7 Record of prescriptions. (a) Every practitioner, pharmacist, or medical oxygen distributor who compounds, sells, or delivers any prescribed drug to a patient or a patient's agent shall maintain records that identify:  (1) The specific drug product dispensed, including:  (A) The product's national drug code (NDC) number; or  (B) The brand name or the established name and the name or commonly accepted abbreviation of the principal labeler of the drug product dispensed, the product strength, and the dosage form;  (2) The quantity of the drug;  (3) Directions for use;  (4) The number of allowable refills;  (5) The date of initial dispensing and the dates of all refilling;  (6) The date of any transfer of the prescription;  (7) The name, business address, and telephone number of the recipient pharmacist or medical oxygen distributor for any transfer of prescription;  (8) The prescribing practitioner, including name, business address, and telephone number;  (9) The format (oral, written, or electronic) in which the prescription was received;  (10) Except as otherwise authorized for expedited partner therapy in section 453-52 or for an opioid antagonist in section 461-11.8, the patient, including name, address, and telephone number;  (11) The date of prescribing; and  (12) The name of the practitioner, pharmacist, or medical oxygen distributor dispensing the drug. Every prescription dispensed shall have the name of the pharmacist, dispensing practitioner, or medical oxygen distributor responsible for the dispensing appended to the prescription record, and every prescription record shall be preserved and legible for a period of not less than five years. The prescription records shall be subject at all times to the inspection of the director of health or the director's agent.  (b) Prescription records may be electronically maintained using an appropriate prescription information processing system; provided that:  (1) There are procedures to maintain the records, including but not limited to auxiliary procedures for backing up files, computer downtime, and the protection of patient confidentiality; and  (2) Upon request the prescription records, or a subset thereof, shall be provided to the director or the director's agent, in a form specified by the director, within forty-eight hours.  (c) Prescription records shall be maintained electronically or manually such that the information is readily retrievable during the pharmacy's normal operating hours. [L 1992, c 177, pt of 1; am L 1997, c 214, 5; am L 2000, c 83, 5; am L 2001, c 124, 5; am L 2003, c 56, 4; am L 2013, c 250, 6; am L 2018, c 154, 6]
  328-17.8 Electronic prescription information. (a) Prescription information may be transmitted electronically; provided that:  (1) The information shall be communicated only between the prescribing practitioner or the prescriber's authorized agent and pharmacies or medical oxygen distributors of the patient's choice;  (2) The information shall be communicated in a retrievable, recognizable format acceptable to the intended recipient;  (3) No electronic system, software, or other intervening mechanism or party shall alter the practitioner's prescription, order entry, selection, or intended selection without the practitioner's approval, on a per prescription or per order basis. Transmitted prescription information shall not be altered by any system, software, or other intervening mechanism or party prior to receipt by the intended pharmacy or medical oxygen distributor recipient;  (4) The prescription information processing system shall provide for adequate confidentiality safeguards provided by any applicable federal or state law; and  (5) Practitioners, pharmacists, and medical oxygen distributors shall exercise prudent and professional judgment regarding the accuracy, validity, and authenticity of any prescription information communicated, received, or transferred.  (b) Nothing in this section shall be construed or interpreted to prevent the transmission of health care information, including prescription information, between health plans and their authorized agents and prescribing practitioners, pharmacists, and medical oxygen distributors for the purpose of the adjudication or payment of claims. [L 2001, c 124, pt of 1]
  328-17.9 Supply of electronic equipment. No person shall supply prescription information processing system equipment, including computer hardware, software, facsimile machines, and related equipment, to practitioners, pharmacists, pharmacies, or medical oxygen distributors, on the condition, agreement, or understanding that the recipient of the equipment shall not deal in the commodity of a competitor, shall not deal with a competitor, or shall deal only with persons identified by the supplier of the equipment. [L 2001, c 124, pt of 1]
 328-17 New drugs, regulation of sale, etc.; exceptions. (a) No person shall sell, deliver, offer for sale, hold for sale, or give away any new drug unless (1) an application with respect thereto has been approved and the approval has not been withdrawn under section 505 of the Federal Act, or (2) when not subject to the Federal Act, unless the drug has been tested and has been found to be safe for use and effective in use under the conditions prescribed, recommended, or suggested in the labeling thereof, and prior to selling or offering for sale the drug, there has been filed with the director of health an application setting forth (A) full reports of investigations which have been made to show whether or not the drug is safe for use and whether the drug is effective in use; (B) a full list of the articles used as components of the drug; (C) a full statement of the composition of the drug; (D) a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and packing of the drugs; (E) such samples of the drug and of the articles used as components thereof as the director may require; and (F) specimens of the labeling proposed to be used for the drug.  (b) An application provided for in subsection (a)(2) shall become effective on the one hundred eightieth day after the filing thereof, except that if the director finds, after due notice to the applicant and giving him an opportunity for a hearing, (1) that the drug is not safe or not effective for use under the conditions prescribed, recommended, or suggested in the proposed labeling thereof; or (2) the methods used in, and the facilities and controls used for the manufacture, processing, and packing of such drugs are inadequate to preserve its identity, strength, quality, and purity; or (3) based on a fair evaluation of all material facts, such labeling is false or misleading in any particular, he shall, prior to the effective date of the application, issue an order refusing to permit the application to become effective.  (c) An order refusing to permit an application under this section to become effective may be revoked by the director.  (d) The director shall promulgate regulations for exempting from the operation of the foregoing subsections of this section drugs intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety and effectiveness of drugs. Such regulations may, within the discretion of the director, among other conditions relating to the protection of the public health, provide for conditioning such exemption upon: (1) the submission to the director before any clinical testing of a new drug is undertaken, of reports, by the manufacturer or the sponsor of the investigation of such drug, of preclinical tests (including tests on animals) of such drug adequate to justify the proposed clinical testing; (2) the manufacturer or the sponsor of the investigation of a new drug proposed to be distributed to investigators for clinical testing obtaining a signed agreement from each of such investigators that patients to whom the drug is administered will be under his personal supervision, or under the supervision of investigators responsible to him, and that he will not supply such drug to any other investigator, or to clinics, for administration to human beings; and (3) the establishment and maintenance of such records, and the making of such reports to the director by the manufacturer or the sponsor of the investigation of such drug, of data (including but not limited to analytical reports by investigators) obtained as the result of such investigational use of such drugs, as the director finds will enable him to evaluate the safety and effectiveness of such drug in the event of the filing of an application pursuant to subsection (b). Such regulations shall provide that such exemption shall be conditioned upon the manufacturer, or the sponsor of the investigation, requiring that experts using such drugs for investigational purposes certify to such manufacturer or sponsor that they will inform any person to whom such drugs, or any controls used in connection therewith, are being administered, or their representatives, that such drugs are being used for investigational purposes and will obtain the consent of such person or their representatives, except where they deem it not feasible or, in their professional judgment, contrary to the best interests of such person.  (e) In the case of any drug for which an approval of an application filed pursuant to this section is in effect, the [applicant] shall establish and maintain such records, and make such reports to the director, of data relating to clinical experience and other data or information, received or otherwise obtained by such applicant with respect to such drugs, as the director may by regulation, or by order with respect to such application, prescribe; provided that regulations and orders issued under this subsection and under subsection (d) shall have due regard for the professional ethics of the medical profession and the interests of patients and shall provide, where the director deems it to be appropriate, for the examination, upon request, by the persons to whom such regulations or orders are applicable, of similar information received or otherwise obtained by the director.  Every person required under this section to maintain records, and every person in charge or custody thereof, shall, upon request of an officer or employee designated by the director permit such officer or employee at all reasonable times to have access to and copy and verify such records.  (f) The director may, after affording an opportunity for hearing, revoke an application approved pursuant to this section if he finds that the drug, based on evidence acquired after such approval, may not be safe or effective for its intended use, or that the facilities or controls used in the manufacture, processing, or labeling of such drug may present a hazard to the public health. [L 1941, c 318, 12; RL 1945, 2216; RL 1955, 51-16; am L 1967, c 152, 11; HRS 328-17; am L 1972, c 151, 10]
 328-18 Cosmetics deemed adulterated when. A cosmetic shall be deemed to be adulterated:  (1) If it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling or advertisement thereof, or under such conditions of use as are customary or usual; provided that this provision shall not apply to coal-tar hair dye, the label of which bears the following legend conspicuously displayed thereon: "Caution--This product contains ingredients which may cause skin irritation on certain individuals and a preliminary test according to accompanying directions should first be made. This product must not be used for dyeing the eyelashes or eyebrows; to do so may cause blindness", and the labeling of which bears adequate directions for such preliminary testing. For the purposes of this paragraph and paragraph (5) the term "hair dye" shall not include eyelash dyes or eyebrow dyes;  (2) If it consists in whole or in part of any filthy, putrid, or decomposed substance;  (3) If it has been produced, prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health;  (4) If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health;  (5) If it is not a hair dye and it is or bears or contains a color additive which is unsafe within the meaning of the Federal Act. [L 1941, c 318, 13; RL 1945, 2217; RL 1955, 51-17; am L 1967, c 152, 12; HRS 328-18]
 328-19.1 Consumer commodities; labeling; packaging. (a) All labels of consumer commodities, as defined by this part, shall conform with the requirements for the declaration of net quantity of contents of section 4 of the Fair Packaging and Labeling Act (15 U.S.C. 1451, et seq.) and the regulations promulgated pursuant thereto; provided that consumer commodities exempted from such requirements of section 4 of the Fair Packaging and Labeling Act shall also be exempt from this subsection.  (b) The label of any package of a consumer commodity which bears a representation as to the number of servings of such commodity contained in such package shall bear a statement of the net quantity (in terms of weight, measure, or numerical count) of each such serving.  (c) No person shall distribute or cause to be distributed in commerce any packaged consumer commodity if any qualifying words or phrases appear in conjunction with the separate statement of the net quantity of contents required by subsection (a), but nothing in this section shall prohibit supplemental statements, at other places on the package, describing in nondeceptive terms the net quantity of contents; provided that such supplemental statements of net quantity of contents shall not include any term qualifying a unit of weight, measure, or count that tends to exaggerate the amount of the commodity contained in the package.  (d) Wherever the director determines that regulations containing prohibitions or requirements other than those prescribed by subsection (a) of this section are necessary to prevent the deception of consumers or to facilitate value comparisons as to any consumer commodity, the director shall promulgate with respect to that commodity regulations effective to:  (1) Establish and define standards for the characterization of the size of a package enclosing any consumer commodity, which may be used to supplement the label statement of net quantity of contents of packages containing such commodity but this paragraph shall not be construed as authorizing any limitation on the size, shape, weight, dimensions, or number of packages which may be used to enclose any commodity;  (2) Regulate the placement upon any package containing any commodity, or upon any label affixed to such commodity, of any printed matter stating or representing by implication that such commodity is offered for retail sale at a price lower than the ordinary and customary retail sale price or that a retail sale price advantage is accorded to purchasers thereof by reason of the size of that package or the quantity of its contents;  (3) Require that the label on each package of a consumer commodity bear (A) the common or usual name of such consumer commodity, if any, and (B) in case such consumer commodity consists of two or more ingredients, the common or usual name of each such ingredient listed in order of decreasing predominance, but nothing in this paragraph shall be deemed to require that any trade secret be divulged; or  (4) Prevent the nonfunctional slack-fill of packages containing consumer commodities.  For the purposes of clause (4) of this subsection, a package shall be deemed to be nonfunctionally slack-filled if it is filled to substantially less than its capacity for reasons other than (A) protection of the contents of such package or (B) the requirements of machines used for enclosing the contents in such packages. [L 1972, c 151, 12] Cross References  Measurements, packaging, and labeling, see chapter 486.
 328-19 Cosmetics deemed misbranded when. A cosmetic shall be deemed to be misbranded:  (1) If its labeling is false or misleading in any particular, or if its labeling or packaging fails to conform with the requirements of section 328-19.1 of this part;  (2) If in package form, unless it bears a label containing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count, which statement shall be separately and accurately stated in a uniform location upon the principal display panel of the label; provided that under clause (B) of this paragraph reasonable variations shall be permitted, and exemptions as to small packages shall be established by regulations prescribed by the director;  (3) If any word, statement, or other information required by or under authority of this part to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;  (4) If its container is so made, formed or filled as to be misleading;  (5) If it is a color additive, unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to the color additive prescribed under the Federal Act. This paragraph shall not apply to packages of color additives which, with respect to their use for cosmetics, are marketed and intended for use only in or on hair dyes (as defined in the last sentence of section 328-18(1));  (6) Unless it is a cosmetic which is, in accordance with the practice of the trade, to be processed, labeled or repacked in substantial quantities at an establishment other than the establishment where it was originally processed or packed. Such cosmetic is exempted from the affirmative labeling requirements of this part while it is in transit in commerce from the one establishment to the other, if such transit is made in good faith for such completion purposes only; but it is otherwise subject to all applicable provisions of this part. [L 1941, c 318, 14; RL 1945, 2218; RL 1955, 51-18; am L 1967, c 152, 13; HRS 328-19; am L 1972, c 151, 11] Case Notes  See 315 U.S. 257; 11 F.2d 399.
 328-2.1 REPEALED. L 1977, c 58, 44 and c 200, 3.
 328-2 Same; label, etc. "Label" means a display of written, printed, or graphic matter upon the immediate container of any article; and a requirement made by or under authority of this part that any word, statement, or other information appears on the label shall not be considered to be complied with unless the word, statement, or other information also appears on the outside container or wrapper, if any there be, of the retail package of the article, or is easily legible through the outside container or wrapper.  "Immediate container" does not include package liners.  "Labeling" means all labels and other written, printed, or graphic matter (1) upon an article or any of its containers or wrappers, or (2) accompanying the article.  "Package" means any container or wrapping in which any consumer commodity is enclosed for use in the delivery or display of that consumer commodity to retail purchasers, but does not include (1) shipping containers or wrappings used solely for the transportation of any consumer commodity in bulk or in quantity to manufacturers, packers, or processors, or to wholesale or retail distributors thereof; (2) shipping containers or outer wrappings used by retailers to ship or deliver any commodity to retail customers if such containers and wrappings bear no printed matter pertaining to any particular commodity.  "Principal display panel" means that part, or those parts, of a package or label that is, or are, so designed as to most likely be displayed, presented, shown or examined under normal and customary conditions of display and purchase.  Whenever the principal display panel of the package is not coincident with the principal display panel of the label, the principal display panel of the package shall govern the declaration of quantity type size and the principal display panel of the label shall govern its location.  Whenever a difference of opinion exists as to which panel of a package constitutes the principal display panel, the larger panel most likely to be displayed shall be so construed.  Whenever a consumer package has more than one principal display panel, each such panel shall bear all mandatory information required by this part and by the Federal Act.  "Principal labeler" means the manufacturer, packer, or distributor whose name is on the package which contains the finished drug and is distributed to the dispenser. If more than one name is on the package, the principal labeler shall be the manufacturer, packer, or distributor whose name is on the package and who had possession of the package immediately before the dispenser of the drug. [L 1941, c 318, pt of 2; RL 1945, 2202; RL 1955, 51-2; HRS 328-2; am L 1972, c 151, pt of 2; am L 1977, c 58, 43; am L 1982, c 122, 1(2)]
 328-20 False advertising; exceptions. (a) An advertisement of a food, drug, device, or cosmetic shall be deemed to be false if it is false or misleading in any particular.  (b) For the purpose of this part the advertisement of a drug or device representing it to have any effect in albuminuria, appendicitis, arteriosclerosis, blood poison, bone disease, Bright's disease, cancer, carbuncles, cholecystitis, diabetes, diphtheria, dropsy, erysipelas, gallstones, heart and vascular diseases, high blood pressure, mastoiditis, measles, meningitis, mumps, nephritis, otitis media, paralysis, pneumonia, poliomyelitis (infantile paralysis), prostate gland disorders, pyelitis, scarlet fever, sexual impotence, sinus infection, smallpox, tuberculosis, tumors, typhoid, uremia, or venereal disease shall also be deemed to be false, except that no advertisement not in violation of subsection (a) shall be deemed to be false under this subsection if it is disseminated only to members of the medical, osteopathic, podiatric, dental, or veterinary professions, or appears only in the scientific periodicals of these professions, or is disseminated only for the purpose of public health education by persons not commercially interested, directly or indirectly, in the sale of such drugs or devices; provided that whenever the department determines that an advance in medical science has made any type of self-medication safe as to any of the diseases named above, the department shall by regulation authorize the advertisement of drugs having curative or therapeutic effect for such disease, subject to such conditions and restrictions as the department may deem necessary in the interest of public health; provided that this subsection shall not be construed as indicating that self-medication for diseases other than those named herein is safe or efficacious. [L 1941, c 318, 15; RL 1945, 2219; RL 1955, 51-19; am L Sp 1959 2d, c 1, 19; am L 1964, c 15, 2; HRS 328-20]
 328-21 Rules and regulations, hearings. (a) Subject to chapter 91 the director of health may adopt and enforce such rules or regulations as the director may deem necessary for the efficient enforcement of this part. The director may make the rules or regulations prescribed under this part conform insofar as practicable with those promulgated under the Federal Act.  (b) Hearings authorized or required by this part shall be conducted by the director or any officer, agent, or employee designated by the director for that purpose and shall be subject to chapter 91. [L 1941, c 318, 16; RL 1945, 2220; RL 1955, 51-20; am L 1965, c 96, 37; HRS 328-21; gen ch 1985]
 328-22 Duties of department. The department of health shall inquire carefully into the quality of any food, drug, device, or cosmetic manufactured, sold, or kept or exhibited or offered for sale by any person; and it may in a lawful manner procure samples thereof, submit the same to careful examination and report the result of such analysis of all or any such food, drugs, devices, or cosmetics as are adulterated, impure, or unwholesome, in contravention of the laws of the State, to the director; and the director shall make complaint with the necessary evidence through the proper authorities, against such person; provided that nothing in this part shall require the department to report for the institution of proceedings under this part, minor violations of this part, whenever it believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning; provided further that whenever the department believes that the public interest will be adequately served by the issuance of a warning to the general public by virtue of the degree of adulteration, impurity, or unwholesomeness in contravention of the laws of the State present in any food, drugs, devices, or cosmetics which constitute a hazardous condition, it shall issue a warning through all available news media including television, radio, newspaper, and other available methods of communication. When the hazardous condition has been corrected, the department shall issue a statement to be made through all available news media that conditions as corrected have returned to a safe and normal level.  The department shall investigate complaints on the information of any person who lays before it satisfactory evidence of the same. [L 1941, c 318, 18; RL 1945, 2222; RL 1955, 51-22; am L Sp 1959 2d, c 1, 19; HRS 328-22; am L 1973, c 34, 1; gen ch 1985]
 328-23 Inspection powers of director. The director of health or any of the director's agents are authorized upon presenting appropriate credentials to the owner, operator or agent in charge, (1) to enter at all reasonable hours any factory, warehouse, or establishment in which food, drugs, devices, or cosmetics are manufactured, processed, packed, or held for introduction into commerce, or after such introduction, or to enter any vehicle being used to transport or hold such food, drugs, devices, or cosmetics in commerce; (2) to inspect at reasonable times and within reasonable limits and in a reasonable manner such factory, warehouse, establishment, or vehicle and all pertinent equipment, finished and unfinished materials, containers and labeling therein to determine if this part is being violated; (3) to have access to and to copy all records of carriers in commerce showing the movement in commerce of any food, drug, device, or cosmetic, or the holding thereof during or after such movement, and the quantity, shipper and consignee thereof; provided that evidence obtained under this subsection shall not be used in a criminal prosecution of the person from whom obtained; and provided further that carriers shall not be subject to the other provisions of this part by reason of their receipt, carriage, holding, or delivery of food, drugs, devices, or cosmetics in the usual course of business as carriers; and (4) to secure samples or specimens of any food, drug, device, or cosmetic after paying or offering to pay for the sample. The director shall make or cause to be made examinations of samples secured under this section to determine whether or not this part is being violated. [L 1941, c 318, 20; RL 1945, 2224; RL 1955, 51-24; am L Sp 1959 2d, c 1, 19; HRS 328-23; am L 1972, c 151, 13; gen ch 1985] Rules of Court  Injunctions, see HRCP rule 65.
 328-24 Furnishing of samples to director. (a) If any person manufacturing, keeping for sale, exhibiting for sale, or offering for sale any food, drug, device, or cosmetic included in this part refuses to furnish the duly appointed director of health or any of the director's agents, upon demand, either personal or in writing, a sample sufficient for the analysis of the food, drug, device, or cosmetic, which is in the person's possession, such refusal shall be prima facie evidence that the food, drug, device, or cosmetic so manufactured, kept for sale, exhibited for sale, or offered for sale is adulterated within the meaning of this part.  (b) A sample of any product covered under this section that is known to be or suspected of being contaminated shall be furnished upon request to the director or any of the director's agents at no cost to the department.  The director or agent securing a sample under this section from any retailer or wholesaler or any person other than the manufacturer shall, prior to leaving the premises, provide the establishment with a receipt describing the sample obtained. The receipt may be used for reimbursement from the appropriate supplier or manufacturer. [L 1941, c 318, 21; RL 1945, 2225; RL 1955, 51-25; am L Sp 1959 2d, c 1, 19; HRS 328-24; am L 1985, c 144, 2; gen ch 1985]
  328-25 Director's right to inspect, require recordkeeping, demand records, seize, and conduct hearings. (a) The director of health or any of the director's agents may in the performance of their duties:  (1) Enter at all reasonable hours into any creamery, factory, restaurant, store, salesroom, storage room, drug store, or laboratory, or any place where they have probable cause to believe that food, drugs, devices, cosmetics, or consumer commodity as defined by this part are made, prepared, sold, or kept, exhibited or offered for sale, and open any cask, tub, bottle, case, or package containing or supposed to contain any such food, drug, device, cosmetic, or consumer commodity, and examine or cause to be examined the contents thereof;  (2) Adopt rules pursuant to chapter 91 requiring a person to keep records relating to the manufacture, distribution, or sale of food, drugs, devices, cosmetics, or consumer commodity; and  (3) Demand a person to provide records or copies of records relating to the manufacture, distribution, or sale of food, drugs, devices, cosmetics, or consumer commodity which the director has probable cause to believe is adulterated or misbranded; provided that no confidential information concerning secret processes or methods of manufacture secured pursuant to this section by any person who is an official or employee of the department of health within the scope and course of the person's employment shall be disclosed by the person except as it relates directly to the adulteration or misbranding of a commodity, and then, only in connection with the person's official duties and within the scope and course of the person's employment. Any officer, employee or agent of the department acquiring confidential information concerning secret processes or methods of manufacture who divulges information except as authorized in this section or as ordered by a court or at an administrative hearing regarding an alleged adulteration or misbranding or of any rule or regulation or standard adopted pursuant to this part shall be guilty of a misdemeanor.  (b) If any food, drug, device, cosmetic, or consumer commodity is found to be adulterated or misbranded within the meaning of this part and the owner or person in charge thereof refuses to comply with the instructions of the director or any of the director's agents for the proper disposal thereof, the food, drug, device, cosmetic, or consumer commodity shall be liable to seizure. The director or any of the director's agents shall affix to the article or articles a tag or other appropriate marking, giving notice that the article is, or is suspected of, being adulterated or misbranded, and has been detained or embargoed, and warning all persons not to remove or dispose of the article by sale or otherwise until permission for removal or disposal is given by the director or any of the director's agents or by the court or judge having jurisdiction over such matters. Upon the request of the director or any of the director's agents, made to such court, the court shall order and direct that the food, drug, device, cosmetic, or consumer commodity be seized and delivered into the custody of the court, and the same shall be held in such custody until a hearing has been held to determine whether or not it is adulterated or misbranded. [L 1941, c 318, pt of 22; RL 1945, 2226; RL 1955, 51-26; am L Sp 1959 2d, c 1, 19; HRS 328-25; am L 1972, c 151, 14; am L 1983, c 148, 1; am L 1984, c 12, 3; gen ch 1985]
 328-26 Disposal of questioned articles; court orders; expenses; bond. If the court finds that a detained or embargoed article is adulterated or misbranded, the article shall, after entry of the decree be destroyed at the expense of the claimant thereof, under the supervision of the director of health or any of the director's deputies; and all court costs and fees, and storage and other proper expenses, shall be taxed against the claimant of the article or the claimant's agent; provided that when the adulteration or misbranding can be corrected by proper labeling or processing of the article, the court, after entry of the decree and after such costs, fees, and expenses have been paid and a good and sufficient bond, conditioned that the article shall be so labeled or processed, has been executed, may by order direct that the article be delivered to the claimant thereof for such labeling or processing under the supervision of the director or any of the director's agents. The expense of supervision shall be paid by the claimant. The bond shall be returned to the claimant of the article on representation to the court by the director or any of the director's agents that the article is no longer in violation of this part, and that the expenses of supervision have been paid. [L 1941, c 318, pt of 22; RL 1945, 2227; RL 1955, 51-27; am L Sp 1959 2d, c 1, 19; HRS 328-26; gen ch 1985]
 328-27 Perishables destroyed when. Whenever the director of health or any of the director's agents find in any room, building, vehicle of transportation, or other structure, any meat, seafood, poultry, vegetable, fruit, or other perishable articles which are unsound, or contain any filthy, decomposed, or putrid substance, or that may be poisonous or deleterious to health or otherwise unsafe, the same being hereby declared to be a nuisance, the director or any of the director's agents, shall forthwith condemn or destroy the same, or in any other manner render the same unsalable as human food. [L 1941, c 318, pt of 22; RL 1945, 2228; RL 1955, 51-28; am L Sp 1959 2d, c 1, 19; HRS 328-27; gen ch 1985]
 328-28 Duties of county attorneys, prosecuting attorney. Each county attorney, or prosecuting attorney to whom the department of health reports any violation of this part, shall cause appropriate proceedings to be instituted in the proper courts without delay and to be prosecuted in the manner required by law. Before any violation of this part is reported to any such attorney for the institution of a criminal proceeding, the person against whom the proceeding is contemplated shall be given appropriate notice and an opportunity to present the person's views before the department either orally or in writing, in person or by attorney, with regard to such contemplated proceeding. [L 1941, c 318, 24; RL 1945, 2230; RL 1955, 51-29; am L Sp 1959 2d, c 1, 19; HRS 328-28; gen ch 1985] Revision Note  Reference to "prosecuting attorney of the city and county of Honolulu" deleted as unnecessary.
 328-29 Penalty; exceptions. (a) Any person who violates section 328-6 shall be fined not more than $500, or imprisoned not more than one year, or both.  (b) No person shall be subject to the penalties of subsection (a) of this section, for having violated section 328-6(1) or (3) if he establishes a guaranty or undertaking signed by, and containing the name and address of, the person residing in the State from whom he received in good faith the article, to the effect that the article is not adulterated or misbranded within the meaning of this part, designating this part.  (c) No publisher, radio-broadcast licensee, or agency or medium for the dissemination of an advertisement, except the manufacturer, packer, distributor, or seller of the article to which a false advertisement relates, shall be liable under this section by reason of the dissemination by him of such false advertisement, unless he has refused on the request of the department of health to furnish the department the name and post office address of the manufacturer, packer, distributor, seller, or advertising agency residing in the State who caused him to disseminate such advertisement. [L 1941, c 318, 25; RL 1945, 2231; am L 1953, c 110, 1; RL 1955, 51-30; am L Sp 1959 2d, c 1, 19; HRS 328-29]
 328-3 Same; misbranding or misleading advertisement. (a) If an article is alleged to be misbranded because the labeling is misleading, or if an advertisement is alleged to be false because it is misleading, then in determining whether the labeling or advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or in any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of the representations or material with respect to consequences which may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement thereof or under such conditions of use as are customary or usual.  (b) "Advertisement" means all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of food, drugs, devices, or cosmetics. [L 1941, c 318, pt of 2; RL 1945, 2203; RL 1955, 51-3; HRS 328-3]
 328-30 Administrative penalties. (a) Any person who violates this part or any rule adopted by the department pursuant to this part shall be fined not more than $10,000 for each separate offense. Any action taken to collect the penalty provided for in this subsection shall be considered a civil action.  (b) In addition to any other administrative or judicial remedy provided by this part, or by rules adopted pursuant to this part, the director may impose by order the administrative penalty specified in this section. Factors to be considered in imposing the administrative penalty include the nature and history of the violation and of any prior violation, and the opportunity, difficulty, and history of corrective action. For any judicial proceeding to recover the administrative penalty imposed, the director need only show that notice was given, a hearing was held or the time granted for requesting a hearing has expired without such a request, the administrative penalty was imposed, and that the penalty remains unpaid. [L 1983, c 100, pt of 2; am L 1984, c 12, 4]
  328-31 Injunctive relief. The director may institute a civil action in any court of competent jurisdiction for injunctive relief to prevent any violation of this part or any rule adopted to implement this part. The court shall have powers to grant relief in accordance with the Hawaii rules of civil procedure. [L 1983, c 100, pt of 2] Rules of Court  Injunctions, see HRCP rule 65.
 328-4 Same; antiseptic, germicide; new drug; contamination. (a) The representation of a drug, in its labeling, or advertisement, as an antiseptic shall be considered to be a representation that it is a germicide, except in the case of a drug purporting to be, or represented as, an antiseptic for inhibitory use as a wet dressing, ointment, dusting powder, or such other use as involves prolonged contact with the body.  (b) "New drug" means (1) any drug the composition of which is such that the drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof; or (2) any drug the composition of which is such that the drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized, but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions.  (c) "Contaminated with filth" applies to any food, drug, device, or cosmetic not securely protected from dust, dirt, and as far as may be necessary by all reasonable means, from all foreign or injurious contaminations. [L 1941, c 318, pt of 2; RL 1945, 2204; RL 1955, 51-4; am L 1967, c 152, 2; HRS 328-4]
  328-41 Definitions. "Cold storage" as used in sections 328-41 to 328-48 means a place artificially cooled to a temperature of forty degrees Fahrenheit or below but does not include such a place in a private home, hotel, restaurant, or exclusively retail establishment not storing articles of food for other persons. "Cold stored" as used in such sections means the keeping of articles of food in cold storage for a period exceeding thirty days from the date of placing them in any cold storage or refrigerating warehouse. "Storer" means the person who offers articles of food for cold storage. "Operator" means any person operating a cold storage. [L 1925, c 194, 1; RL 1935, 1063; RL 1945, 2232; RL 1955, 51-40; HRS 328-41]
 328-42 Department of health regulations. Every cold storage or refrigerating warehouse wherein are stored articles of food, shall be properly located, constructed, equipped for the business of cold storage, and kept in a sanitary condition as prescribed by the department of health regulations. [L 1925, c 194, 2; RL 1935, 1064; RL 1945, 2233; RL 1955, 51-41; am L Sp 1959 2d, c 1, 19; HRS 328-42]
 328-43 Records, food to be marked. Every operator or storer shall keep an accurate record of the receipts and the withdrawals with reference to cold storage of all articles of food within the operator's possession and control. Every operator shall also keep an accurate record of storers having exclusive possession of a portion of the operator's or storer's cold storage.  All articles of food when deposited in cold storage shall be marked plainly on or in connection with the containers in which they are packed or on the individual article, with the date of receipt, and, when removed from cold storage, shall be marked with the date of withdrawal, in accordance with such forms as may be prescribed by the department of health.  The department shall have free access to these records at any time. [L 1925, c 194,  3, 5; RL 1935, 1065; RL 1945, 2234; RL 1955, 51-42; am L Sp 1959 2d, c 1, 19; HRS 328-43; gen ch 1985]
 328-44 Bad food; bait. No storer or operator shall place in cold storage any article of food if diseased, tainted, or deteriorated so as to injure its keeping qualities or if not properly slaughtered, handled, and prepared for storage; provided that this section shall not apply to bait to be used for fishing purposes. All such bait shall be stored in rooms specially set aside for such purposes. [L 1925, c 194, 4; RL 1935, 1066; RL 1945, 2235; RL 1955, 51-43; HRS 328-44]
 328-45 Length of storage time. No person having control as storer shall keep in cold storage any articles of food for a longer period than twelve calendar months, except with the consent of the department of health, as hereinafter provided. The department shall, upon application, grant permission to extend the period of storage beyond twelve months for a particular consignment of goods, if the goods in question are found, upon examination, to be in proper condition for further storage at the end of twelve months. The length of time for which storage is allowed shall be specified in the order granting permission. [L 1925, c 194, 6; RL 1935, 1067; RL 1945, 2236; RL 1955, 51-44; am L Sp 1959 2d, c 1, 19; HRS 328-45]
 328-46 Restorage prohibited. It shall be unlawful for any storer or operator to return to cold storage any article of food that has once been released from such storage and placed on the market for sale to consumers, but nothing in this section shall prevent the transfer of goods from one cold storage or refrigerating warehouse to another; provided that such transfer is not made for the purpose of evading sections 328-41 to 328-47. [L 1925, c 194, 7; RL 1935, 1068; RL 1945, 2237; RL 1955, 51-45; HRS 328-46]
 328-47 Cold stored goods to be labeled; sales of. It shall be unlawful to sell or to offer for sale uncooked articles of food, which have been cold stored without notifying persons purchasing, or intending to purchase, the same that they have been kept in cold storage by the display, in a conspicuous place and upon the articles of food, of a sign marked, These are cold stored goods , in large, plain type; and it shall be unlawful to represent or advertise as fresh goods, articles of food which have been placed in cold storage. [L 1925, c 194, 8; RL 1935, 1069; RL 1945, 2238; RL 1955, 51-46; HRS 328-47]
 328-48 Penalty. Any person violating any of the provisions of sections 328-41 to 328-47 shall be fined not less than $10 nor more than $200 for each offense. [L 1925, c 194, 9; RL 1935, 1070; RL 1945, 2239; RL 1955, 51-47; HRS 328-48]
 328-49 What fish and when same may be put in cold storage for future sale. All catches of the following food fishes, such as weke, ahuluhulu, kumu, uhu, opelu, oama, manini, moi, amaama, papiopio, ulua, awa, akule, oio, nehu, maomao, iao, omaka, lauhau, laenihi, puhikii, akilolo, hahalalu, iheihe, opae, piha, laipala, aholehole, uiui, malolo, kole, paoo, puhi, auau, ohua aliko, ohua palemo, alaihi, upapalu, uu, ahaaha, puili, alalauwa, aweoweo, maikoiko, kala, aloiloi, maiii, aalaheo, pakii, oopu nopili, oopu nakea, mamamo, oopukai, hinalea, hinana, goldfish, catfish, and mudfish, and all other smaller fishes of any species caught after twelve o'clock noon of any calendar day, shall be marketed as soon as brought to shore. Any fishes which cannot be marketed or which remain unsold in the market at the close of the market in the evening may be placed in cold storage or ice house for future sale; provided that no fishes shall be so placed in cold storage which have been caught more than twelve hours, unless the fishes were artificially chilled as soon as caught, or which have been bruised, torn or otherwise rendered liable to spoil. [L 1921, c 38, 1; RL 1925, 4260; RL 1935, 1071; RL 1945, 2240; RL 1955, 51-48; HRS 328-49]
 328-5 Same; "selling" includes what. The provisions of this part regarding the selling of food, drugs, devices, or cosmetics, include the manufacture, production, processing, packing, exposure, offer, possession, and holding of any such article for sale; the sale, dispensing, and giving of any such article; and the supplying or applying of any such article in the conduct of any food, drug, or cosmetic establishment. [L 1941, c 318, pt of 2; RL 1945, 2205; RL 1955, 51-5; HRS 328-5]
 328-50 Fishing on commercial fishing vessels. Anything in the statute or rules and regulations to the contrary notwithstanding, fish caught and immediately placed on ice or otherwise adequately chilled on commercial fishing vessels may be sold upon their return to port. Any fish remaining unsold shall be placed in cold storage and may be later sold at any time thereafter as long as the fish are not spoiled and unfit for human consumption. [L 1947, c 187, 1; RL 1955, 51-49; HRS 328-50]
 328-51 Causing preventable deterioration of; penalty. Any person who by interference, intimidation, or carelessness, causes or permits preventable deterioration or waste in connection with the marketing of such fishes or their preservation, or who prevents or attempts to prevent lawful cold storage of such fishes, shall be fined not more than $200, or imprisoned not more than three months, or both. [L 1921, c 38, 2; RL 1925, 4261; RL 1935, 1072; RL 1945, 2241; RL 1955, 51-50; HRS 328-51] Cross References  Classification of offense and authorized punishment, see  701-107, 706-640, 663.
 328-6 Prohibited acts. The following acts and the causing thereof within the State by any person are prohibited:  (1) The manufacture, sale, delivery, holding, or offering for sale of any food, drug, device, or cosmetic that is adulterated or misbranded;  (2) The adulteration or misbranding of any food, drug, device, or cosmetic;  (3) The receipt in commerce of any food, drug, device, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise;  (4) The sale, delivery for sale, holding for sale, or offering for sale of any article in violation of section 328-11, 328-12, or 328-17;  (5) The dissemination of any false advertisement;  (6) The refusal to permit entry or inspection, or to permit the taking of a sample, as authorized by sections 328-22 and 328-23 to 328-27, or to permit access to or copying of any record as authorized by section 328-23;  (7) The giving of a guaranty or undertaking which guaranty or undertaking is false, except by a person who relied on a guaranty or undertaking to the same effect signed by, and containing the name and address of the person residing in the State from whom the person received in good faith the food, drug, device, or cosmetic;  (8) The removal or disposal of a detained or embargoed article in violation of sections 328-25 to 328-27;  (9) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to a food, drug, device, or cosmetic, if the act is done while the article is held for sale and results in the article being adulterated or misbranded;  (10) Forging, counterfeiting, simulating, or falsely representing, or without proper authority using any mark, stamp, tag, label, or other identification device authorized or required by rules adopted under this part or regulations adopted under the Federal Act;  (11) The use, on the labeling of any drug or in any advertisement relating to the drug, of any representation or suggestion that an application with respect to the drug is effective under section 328-17, or that the drug complies with that section;  (12) The use by any person to the person's own advantage, or revealing other than to the department of health or to the courts when relevant in any judicial proceeding under this part, any information acquired under authority of section 328-11, 328-12, 328-17, or 328-23, concerning any method or process which as a trade secret is entitled to protection;  (13) In the case of a prescription drug distributed or offered for sale in this State, the failure of the manufacturer, packer, or distributor thereof to maintain for transmittal, or to transmit, to any practitioner who makes written request for information as to the drug, true and correct copies of all printed matter which is required to be included in any package in which that drug is distributed or sold, or such other printed matter as is approved under the Federal Act. Nothing in this paragraph shall be construed to exempt any person from any labeling requirement imposed by or under other provisions of this part;  (14) (A) Placing or causing to be placed upon any drug or device or container thereof, with intent to defraud, the trade name or other identifying mark, or imprint of another or any likeness of any of the foregoing; or  (B) Selling, dispensing, disposing of, or causing to be sold, dispensed, or disposed of, or concealing or keeping in possession, control, or custody, with intent to sell, dispense, or dispose of, any drug, device, or any container thereof, with knowledge that the trade name or other identifying mark or imprint of another or any likeness of any of the foregoing has been placed thereon in a manner prohibited by subparagraph (A); or  (C) Making, selling, disposing of, or causing to be made, sold, or disposed of, or keeping in possession, control, or custody, or concealing, with intent to defraud, any punch, die, plate, or other thing designed to print, imprint, or reproduce that trade name or other identifying mark or imprint of another or any likeness of any of the foregoing upon any drug, device, or container thereof;  (15) Except as provided in part VI and section 461-1, dispensing or causing to be dispensed a different drug or brand of drug in place of the drug or brand of drug ordered or prescribed without express permission in each case of the person ordering or prescribing;  (16) The distribution in commerce of a consumer commodity as defined in this part, if such commodity is contained in a package, or if there is affixed to that commodity a label, which does not conform to this part and of rules adopted under authority of this part; provided that this prohibition shall not apply to persons engaged in business as wholesale or retail distributors of consumer commodities except to the extent that such persons:  (A) Are engaged in the packaging or labeling of such commodities; or  (B) Prescribe or specify by any means the manner in which such commodities are packaged or labeled;  (17) The selling or dispensing in restaurants, soda fountains, drive-ins, lunch wagons, or similar public eating establishments of imitation milk and imitation milk products in place of fresh milk and fresh milk products respectively; of liquid or dry products which simulate cream but do not comply with content requirements for cream in place of cream; of non-dairy frozen desserts which do not comply with content requirements for dairy frozen desserts in place of dairy frozen desserts; and of any other imitation food or one made in semblance of a genuine food in place of such genuine food, unless the consumer is notified by either proper labeling or conspicuous posted signs or conspicuous notices on menu cards and advertisements informing of such substitution, to include but not limited to the substitution of imitation milk in milk shake and malted milk drinks;  (18) Wilfully and falsely representing or using any devices, substances, methods, or treatment as effective in the diagnosis, cure, mitigation, treatment, or alleviation of cancer. This paragraph shall not apply to any person who depends exclusively upon prayer for healing in accordance with teachings of a bona fide religious sect, denomination, or organization, nor to a person who practices such teachings;  (19) The selling or offering for sale at any food facility which serves or sells over the counter directly to the consumer an unlabeled or unpackaged food that is a confectionery which contains alcohol in excess of one-half of one per cent by weight unless the consumer is notified of that fact by either proper labeling or conspicuous posted signs or conspicuous notices on menu cards and advertisements;  (20) The sale to a person below the age of twenty-one years of any food which is a confectionery which contains alcohol in excess of one-half of one per cent by weight. [L 1941, c 318, 3; RL 1945, 2206; RL 1955, 51-6; am L 1959, c 24, 1; am L Sp 1959 2d, c 1, 19; am L 1967, c 152, 3; HRS 328-6; am L 1972, c 151, 3; am L 1976, c 31, 1 and c 129, 1; am L 1980, c 187, 2; am L 1988, c 402, 1; am L 1989, c 108, 1; am L 1997, c 214, 2; am L 2002, c 256, 3]
  328-61 Notifying consumer. No person shall sell or offer to sell any uncooked thawed food which substantially resembles the physical appearances of the fresh food without a label, as hereinafter described, notifying the purchaser that such food had been frozen and then thawed out; provided that this section shall not apply if the thawed foods are processed by grinding or have been dehydrated before being offered for retail sale. [L 1967, c 206, pt of 1; HRS 328-61; am L 1980, c 40, 2]
 328-62 Description of label. Label  means the information required in this part to be placed on any food products by means of a stamp, stencil, or printing by machine, or by attaching to the immediate package, by sign, handbill, placard, or otherwise, the words PREVIOUSLY FROZEN  in letter size easily seen under customary conditions of purchase. [L 1967, c 206, pt of 1; HRS 328-62; am L 1980, c 40, 3]
 328-63 Injunction. Any violations of this part may be enjoined or abated in a suit filed and prosecuted in the circuit court of the State by the department of health. [L 1967, c 206, pt of 1; HRS 328-63]
 328-64 Offense, penalty. Each day that this part is violated shall be a separate offense. Any person, firm, partnership, or corporation who violates this part shall be fined not more than $500. [L 1967, c 206, pt of 1; HRS 328-64]
 328-65 Administration and enforcement. The department of health shall administer and enforce this part. [L 1967, c 206, pt of 1; HRS 328-65]
  328-66 Thawed food. The term thawed food  means food previously frozen throughout at a temperature of, or below thirty-two degrees Fahrenheit. [L 1980, c 40, 1]
 328-7 Remedies for violation of law. In addition to the remedies hereinafter provided the department of health may apply to a circuit judge for and the judge shall have jurisdiction upon hearing and for cause shown to grant, a temporary or permanent injunction restraining any person from violating section 328-6, irrespective of whether or not there exists any other remedy. [L 1941, c 318, 4; RL 1945, 2207; RL 1955, 51-7; am L Sp 1959 2d, c 1, 19; HRS 328-7] Rules of Court  Injunctions, see HRCP rule 65.
  328-71 Definitions. When used in sections 328-71 to 328-76, unless the context otherwise requires:  Department  means the department of health.  Enriched  as applied to flour means the addition to flour of the vitamins and other nutritional ingredients necessary to make it conform to the definition and standard of identity of enriched flour, or enriched bromated flour or enriched self-rising flour, as the case may be, promulgated by the Federal Food and Drug Administration (21 C.F.R. Part 137), or as the same may be from time to time amended or modified.  Flour  is limited to the foods defined as (A) flour, white flour, wheat flour, plain flour, (B) bromated flour, (C) self-rising flour, self-rising white flour, self-rising wheat flour, and (D) phosphated flour, phosphated white flour, and phosphated wheat flour, in the definitions and standards of identity promulgated by the Federal Food and Drug Administration (21 C.F.R. Part 137), or as they may be amended, but does not include special flours not used for bread, roll, bun, or biscuit baking, such as specialty cake, pancake, and pastry flours.  Person  means an individual, a corporation, a partnership, an association, a joint stock company, a trust, or an unincorporated organization to the extent engaged in the commercial manufacture or sale of flour, white bread or rolls.  Rolls  includes plain white rolls and buns of the semi-bread dough type, such as soft rolls, hamburger, hot dog, Parker House, etc., hard rolls, such as Vienna, Kaiser, etc., all made without fillings or icings, but shall not include yeast-raised sweet rolls or sweet buns, cinnamon rolls or buns, butterfly rolls, etc.  White bread  means any bread, whether baked in a pan or on a hearth or screen, which is commonly known or usually represented and sold as white bread, including, but not restricted to, Vienna bread, French bread, and Italian bread. [L 1945, c 101, 1; RL 1945, 2246.01; RL 1955, 51-55; am L Sp 1959 2d, c 1, 19; HRS 328-71; am L 1977, c 53, 1] Revision Note  Numeric designations deleted and definitions rearranged.
 328-72 Flour must be enriched. It shall be unlawful for any person to manufacture, mix, compound, sell, or offer for sale in this State for human consumption therein, any unenriched flour; provided that unenriched flour may be used in the manufacture of macaroni, cracker, soy sauce, or other nonbaking products; provided further that unenriched flour may be sold to commercial bakers of bread, rolls, or buns if, prior to or simultaneously with delivery, the baker furnishes to the seller a certificate of intent in such form as the department of health shall by regulation prescribe, certifying that such flour will be used only in the manufacture, mixing, or compounding of flour or white bread or rolls enriched to meet the requirements of sections 328-71 to 328-76. It shall be unlawful for the baker to use the flour so purchased in any manner other than as stated in the certificate. [L 1945, c 101, 2; RL 1955, 51-56; am L 1963, c 105, 1; HRS 328-72]
 328-73 Bread, rolls, buns, standard for. It shall be unlawful for any person to manufacture, bake, sell, or offer for sale, in this State, for human consumption therein, any white bread or rolls unless the same conforms to the definition and standard of identity then in effect for enriched bread, and enriched rolls, or enriched buns, as fixed and established by order of an appropriate federal agency or officer, pursuant to the Federal Food, Drug, and Cosmetic Act; provided that if during any period no such order of any such federal agency or officer fixing and establishing a definition and standard of identity for enriched bread, and enriched rolls or enriched buns, is in effect, it shall be unlawful for any person during any such period to manufacture, bake, sell, or offer for sale in this State, for human consumption, any white bread or rolls unless the same conforms to the proposed definition and standard of identity for enriched bread and enriched rolls or enriched buns promulgated by the Federal Food and Drug Administration (21 C.F.R. Part 136), or as the same as may be from time to time amended or modified. [L 1945, c 101, 3; RL 1955, 51-57; HRS 328-73; am L 1977, c 53, 2]
 328-74 Flour, wrapped bread, rolls, standard for. It shall be unlawful to sell or offer for sale, in this State, for human consumption therein, any flour or wrapped white bread or rolls meeting the requirements of sections 328-72 and 328-73 which fail to conform to the labeling requirements of the Federal Food, Drug, and Cosmetic Act, and the regulations promulgated thereunder, with respect to such product when introduced in interstate commerce; provided this section shall not apply to white bread or rolls which bear no labeling of any kind and which are sold directly to the consumer by the manufacturer thereof. [L 1945, c 101, 4; RL 1955, 51-58; HRS 328-74]
 328-75 Enforcement; suspension. (a) The department of health shall enforce sections 328-71 to 328-76 and shall have, in connection therewith, all the powers and duties conferred and imposed upon it by and pursuant to part I.  (b) In the event of findings by the department that there is an existing or imminent shortage of any ingredient required by section 328-72 or 328-73, and that because of such shortage the sale and distribution of flour or white bread or rolls may be impeded by the enforcement of sections 328-71 to 328-76, the department shall issue an order, to be effective immediately upon issuance, permitting the omission of the ingredient from flour or white bread or rolls; and if it finds it necessary or appropriate, excepting such foods from the labeling requirements until the further order of the department. Any such findings may be made without hearing, on the basis of an order or of factual information supplied by the appropriate federal agency or officer. In the absence of any such order of the appropriate federal agency or factual information supplied by it, the department on its own motion may, and upon receiving the sworn statements of ten or more persons subject to sections 328-71 to 328-76 that they believe such a shortage exists or is imminent shall, within twenty days thereafter hold a public hearing with respect thereto at which any interested person may present evidence; and shall make findings based upon the evidence presented. The department shall publish notice of any such hearing at least ten days prior thereto.  Whenever the department has reason to believe that the shortage no longer exists, it shall hold a public hearing, after at least ten days TM notice shall have been given, at which any interested person may present evidence, and it shall make findings based upon the evidence so presented. If its findings are that the shortage no longer exists, it shall issue an order to become effective not less than thirty days after publication thereof, revoking the previous order; provided that undisposed floor stocks of flour on hand at the effective date of the revocation order, or flour manufactured prior to the effective date, for sale in this State may thereafter be lawfully sold or disposed of.  (c) All orders, rules, and regulations adopted by the department pursuant to sections 328-71 to 328-76 shall be published in the manner prescribed by section 321-10 and, within the limits specified by sections 328-71 to 328-76, shall become effective upon such date as the department shall fix.  (d) For the purpose of sections 328-71 to 328-76, the director of health and any of the director TMs agents may take samples for analysis and conduct examinations and investigations, and they shall have free access at all reasonable hours and may enter in and upon any factory, mill, warehouse, shop, or establishment where flour, white bread, or rolls are manufactured, processed, packed, sold, or held, or any vehicle being used for the transportation thereof, and inspect any such place or vehicle and any flour, white bread, or rolls therein, and all pertinent equipment, materials, containers and labeling.  (e) If any person manufacturing, processing, packing, keeping for sale, exhibiting for sale, or offering for sale, any flour, white bread, or rolls included within sections 328-71 to 328-76 refuses to furnish the director of health and any of the director TMs agents, upon demand, either personal or in writing, a sufficient sample for the analysis of any such flour, white bread, or rolls, which are in the person TMs possession, the director of health and any of the director TMs agents tendering the market price therefor, such refusal shall be prima facie evidence that the flour, white bread, or rolls are not enriched as required. [L 1945, c 101, 5; RL 1955, 51-59; am L Sp 1959 2d, c 1, 19; HRS 328-75; gen ch 1985]
 328-76 Penalty. Any person who violates any of the provisions of sections 328-71 to 328-75 or the orders, rules or regulations of the department of health under authority thereof, shall be fined not more than $500, or imprisoned not more than one hundred days, or both. [L 1945, c 101, 6; RL 1955, 51-60; am L Sp 1959 2d, c 1, 19; HRS 328-76] Cross References  Classification of offense and authorized punishment, see  701-107, 706-640, 663.
  328-79 Home-based agricultural producer of honey; exemption. (a) A home-based agricultural producer of honey shall not be required to process honey in a certified honey house or food processing establishment, or be required to obtain a permit from the department, if the producer:  (1) Sells less than five hundred gallons of honey a year;  (2) Sells the honey directly to consumers or directly to a retail store that in turn sells the honey directly to consumers;  (3) Labels each container of honey sold with:  (A) The name and address of the producer;  (B) The net weight and volume of the honey, by standard measure;  (C) The date the honey was produced;  (D) The statement, "Honey should not be consumed by infants under one year of age." in clear and conspicuous print; and  (E) The statement, "This product is home-produced and processed and has not been inspected by the Department of Health." in clear and conspicuous print;  (4) Attends a department of health approved food safety workshop and passes the food safety certification exam; and  (5) Keeps honey production volume and honey product distribution records for a period of at least two years and makes the records available to the department.  (b) The State and counties shall not be liable for claims associated with honey distributed by home-based agricultural producers of honey; except for instances of gross negligence and intentional misconduct by the State or counties. [L 2005, c 63, pt of 1; am L 2013, c 131, 2]
 328-8 Regulations to be prescribed. (a) Whenever in the judgment of the department of health such action will promote honesty and fair dealing in the interest of consumers, the department shall prescribe regulations fixing and establishing for any food or class of food a reasonable definition and standard of identity, or reasonable standard of quality or fill of container. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the department shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients which shall be named on the label. The definitions and standards so prescribed shall conform so far as practicable to the definitions and standards promulgated under authority of the Federal Act.  (b) Temporary permits now or hereafter granted for interstate shipment of experimental packs of food varying from the requirements of federal definitions and standards of identity are automatically effective in this State under the conditions provided in such permits. In addition, the director may issue additional permits where they are necessary to the completion or conclusiveness of an otherwise adequate investigation and where the interests of consumers are safeguarded. Such permits shall be subject to such terms and conditions as the director may prescribe.  (c) The director may establish rules as necessary for the enforcement of this part. The rules shall be adopted pursuant to chapter 91; except that the director may, without regard to chapter 91, establish tolerance levels and regulatory or action levels by reference to the provisions of the regulations or guidelines of the United States established in 40 Code of Federal Regulations Parts 180 and 185 or the United States Food and Drug Administration Compliance Policy Guides as the regulations or guidelines become effective at any time or from time to time. [L 1941, c 318, 5; RL 1945, 2208; RL 1955, 51-8; am L Sp 1959 2d, c 1, 19; HRS 328-8; am L 1972, c 151, 4; am L 1977, c 200, 2; am L 1983, c 100, 5; am L 1984, c 12, 2; am L 1985, c 144, 1; am L 1989, c 72, 1]
 328-80 Home-based agricultural producer of honey; inspections. If the department receives a consumer complaint about a home-based agricultural producer of honey, the producer shall be subject to food sampling and subsequent inspection of its premises to determine if the producer's products are misbranded or adulterated. [L 2005, c 63, pt of 1]
   328-81 to 89 REPEALED. L 1972, c 10,  7, 8. Cross References  For present provisions, see chapter 321, part XVI, and chapter 329.
 328-9 Foods deemed adulterated when. A food shall be deemed to be adulterated:  (1) (A) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but if the substance is not an added substance, the food shall not be considered adulterated under this clause if the quantity of the substance in the food does not ordinarily render it injurious to health; or  (B) (i) If it bears or contains any added poisonous or added deleterious substance, other than one which is a pesticide chemical in or on a raw agricultural commodity; a food additive; or a color additive, which is unsafe within the meaning of section 328-13(a); or  (ii) If it is a raw agricultural commodity and it bears or contains a pesticide chemical which is unsafe within the meaning of section 408(a) of the Federal Act as amended; or  (iii) If it is or it bears or contains any food additive which is unsafe within the meaning of section 409 of the Federal Act as amended;  provided that where a pesticide chemical has been used in or on a raw agricultural commodity in conformity with an exemption granted or tolerance prescribed under section 408 of the Federal Act, and the raw agricultural commodity has been subjected to processing such as canning, cooking, freezing, dehydrating, or milling, the residue of such pesticide chemical remaining in or on such processed food, notwithstanding section 328-13 and clause (iii) of this paragraph (1), shall not be deemed unsafe if the residue in or on the raw agricultural commodity has been removed to the extent possible in good manufacturing practice, and the concentration of such residue in the processed food when ready-to-eat, is not greater than the tolerance prescribed for the raw agricultural commodity; or  (C) If it consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or  (D) If it has been produced, prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health; or  (E) If it is the product of a diseased animal or an animal which has died otherwise than by slaughter, or that has been fed upon the uncooked offal from a slaughterhouse; or  (F) If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health;  (2) (A) If any valuable constituent has been in whole or in part omitted or abstracted therefrom; or  (B) If any substance has been substituted wholly or in part therefor; or  (C) If damage or inferiority has been concealed in any manner; or  (D) If any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength or make it appear better or of greater value than it is;  (3) If it is confectionery and:  (A) Has partially or completely embedded therein any nonnutritive object; provided that this clause shall not apply in the case of any nonnutritive object if, in the judgment of the director of health, as provided by rules, promulgated under this part, the object is of practical functional value to the confectionery product and would not render the product injurious or hazardous to health;  (B) Bears or contains any alcohol in excess of five per cent by weight; or  (C) Bears or contains any nonnutritive substance; provided that this clause shall not apply to a safe nonnutritive substance which is in or on confectionery by reason of its use for some practical functional purpose in the manufacture, packaging, or storage of the confectionery if the use of the substance does not promote deception of the consumer or otherwise result in adulteration or misbranding in violation of this part; and provided further that the director, for the purpose of avoiding or resolving uncertainty as to the application of this clause, may issue rules under this part, allowing or prohibiting the use of particular nonnutritive substances;  (4) If it is or bears or contains any color additive which is unsafe within the meaning of the Federal Act. [L 1941, c 318, 6; RL 1945, 2209; RL 1955, 51-9; am L 1957, c 140, 1; am L 1967, c 152, 4; HRS 328-9; am L 1986, c 339, 41; am L 1988, c 402, 2] Cross References  Rulemaking, see chapter 91.
Cross References Pharmacy benefit managers; health information; prohibited marketing practices, see 487J-7.  Prescription drug benefits, see chapter 431R.  Prescription drugs; mail order opt out option, see 87A-16.3.  328-91 Definitions. As used in this part:  "Agent" means a person under the direct supervision of a pharmacist, acting in the pharmacist's presence.  "Bioequivalents" means chemical equivalents which, when administered to the same individuals in the same dosage regimen, will result in comparable bioavailability, as defined by the Federal Food and Drug Administration.  "Biological product" or "biologic product" has the same meaning as defined in Title 42 United States Code section 262, as the same may be amended.  "Drug product" means a drug as defined in section 328-1 other than a biological product as defined in this part.  "Equivalent generic drug product" means a drug product approved by the director as substitutable by pharmacists and included in the Hawaii list of equivalent generic drug products and interchangeable biological products.  "Hawaii list of equivalent generic drug products and interchangeable biological products" means the list of equivalent generic drug products and interchangeable biological products, which may include references to the Orange Book, the Purple Book, and other published findings and approvals of the United States Food and Drug Administration, created and published by the director pursuant to the director's authority in this part to approve drug products and biological products that pharmacists may substitute with equivalent generic drug products and interchangeable biological products.  "Interchangeable biological product" means a biological product approved by the director as substitutable by pharmacists and included in the Hawaii list of equivalent generic drug products and interchangeable biological products.  "Maximum allowable cost" means the maximum amount that a pharmacy benefit manager shall reimburse a pharmacy for the cost of a drug.  "Maximum allowable cost list" means a list of drugs for which a maximum allowable cost has been established by a pharmacy benefit manager.  "Obsolete" means a drug that may be listed in a national drug pricing compendia but cannot be dispensed based on the expiration date of the last lot manufactured.  "Orange Book" means the United States Food and Drug Administration's "Approved Drug Products with Therapeutic Equivalence Evaluations" publication and its cumulative supplements, which include a list of approved prescription drug products with therapeutic equivalence evaluations.  "Purple Book" means the United States Food and Drug Administration's "Lists of Licensed Biological Products with Reference Product Exclusivity and Biosimilarity or Interchangeability Evaluations" publication and its cumulative supplements, which include lists of licensed biological products with biosimilarity and interchangeability evaluations.  "Savings" means the financial benefit derived from utilizing the substituted equivalent generic drug product or interchangeable biological product from the perspective of the consumer or the ultimate payer, including third party payers.  "United States Food and Drug Administration-approved generic drug product with therapeutic equivalency evaluations" means a generic drug product approved for marketing by the United States Food and Drug Administration pursuant to 21 C.F.R. Part 314 and with established bioequivalency to the referenced brand drug pursuant to 21 C.F.R. Part 320. [L 1980, c 187, pt of 1; am L 1982, c 122, 1(3); am L 1996, c 209, 2; am L 1997, c 214, 10; am L 1999, c 209, 1; am L 2003, c 56, 5; am L 2004, c 28, 2; am L 2015, c 175, 2; am L 2016, c 242, 3; am L 2017, c 12, 63]
 328-92 Drug product and biological product selection. (a) When filling a prescription order for a drug prescribed by its brand name, a pharmacist or the pharmacist's authorized agent shall:  (1) Offer to the consumer an equivalent generic drug product or an interchangeable biological product from the Hawaii list of equivalent generic drug products and interchangeable biological products adopted pursuant to section 328-96;  (2) Upon the request of the consumer, inform the consumer of the savings; and  (3) Inform the consumer of the consumer's right to refuse substitution. The pharmacist shall substitute an equivalent generic drug product or an interchangeable biological product if the practitioner does not prohibit substitution under subsection (b), and the substitute equivalent generic drug product or interchangeable biological product results in a savings. The pharmacist shall not substitute if the consumer refuses.   (b) The pharmacist shall not substitute an equivalent generic drug product or an interchangeable biological product if the practitioner indicates "brand medically necessary" or words of similar meaning on the prescription. The designation "brand medically necessary" or other similar words or phrases must be handwritten by the practitioner and shall not be preprinted or stamped on the written prescription. The pharmacist shall not substitute an equivalent generic drug product or an interchangeable biological product if a prescription is orally or electronically ordered and the practitioner or authorized employee of the practitioner indicates "brand medically necessary" or other similar words or phrases.  The pharmacist shall note the practitioner's instructions on the prescription record required to be maintained under section 328-17.7.  This subsection shall not apply when it does not comply with any federal requirement for services reimbursable by medicaid or medicare.  (c) The pharmacist shall not substitute an equivalent generic drug product or an interchangeable biological product for any prescription for an anti-epileptic drug, except upon the consent of the practitioner and the patient or the patient's parent or guardian. This narrow exception for epileptic patients shall not be construed as a policy decision to make exceptions for any other conditions.  (d) Within two business days following the dispensing of a biological product, the dispensing pharmacist or the pharmacist's designee shall communicate to the practitioner the specific product provided to the patient, including the name of the product and the manufacturer. The communication shall be conveyed by making an entry that is electronically accessible to the practitioner through:  (1) An interoperable electronic medical records system;  (2) An electronic prescribing technology;  (3) A pharmacy benefit management system; or  (4) A pharmacy record.  (e) Entry into an electronic records system as described in subsection (d) is presumed to provide notice to the prescriber. Otherwise, the pharmacist shall communicate the biological product dispensed to the prescriber using facsimile, telephone, electronic transmission, or other prevailing means, provided that communication shall not be required where:  (1) There is no interchangeable biological product approved by the United States Food and Drug Administration for the product prescribed; or  (2) A refill prescription is not changed from the product dispensed on the prior filling of the prescription.  (f) The county prosecutors and the attorney general may bring action upon complaint by an aggrieved person or upon their own motion in the name of the State against any person to enjoin any violation of this part. [L 1980, c 187, pt of 1; am L 1982, c 122, 1(4); gen ch 1985; am L 1992, c 193,  1, 5; am L 1996, c 209, 3; am L 1997, c 214, 6; am L 2003, c 56, 6; am L 2016, c 242, 4]
 328-93 REPEALED. L 2003, c 56, 9.
 328-94 Prescription record. Each pharmacist or practitioner shall maintain a record of any substitution of an equivalent generic drug product or an interchangeable biological product for a prescribed brand name drug product as provided in this part. [L 1980, c 187, pt of 1; am L 1996, c 209, 5; am L 2003, c 56, 7; am L 2016, c 242, 5]
  328-95 REPEALED. L 2016, c 242, 9.
 328-96 Hawaii list of equivalent generic drug products and interchangeable biological products. (a) The director may adopt rules, pursuant to chapter 91, to effectuate the purpose of this part. Without regard to chapter 91, the director may adopt as rules, and amend as necessary, the Hawaii list of equivalent generic drug products and interchangeable biological products, which shall serve as the state list of substitutable equivalent generic drug products and interchangeable biological products. The director's approval of the substitutability of equivalent generic drug products and interchangeable biological products shall be informed by the findings of the United States Food and Drug Administration, which are documented and periodically updated through the following:  (1) For a generic drug product: the Orange Book and any United States Food and Drug Administration documentation of any United States Food and Drug Administration-approved generic drug product with therapeutic equivalency, including:  (A) Letters of approval of Abbreviated New Drug Applications with therapeutic equivalency evaluations;  (B) Published listings of approved New Drug Applications or approved Abbreviated New Drug Applications with therapeutic equivalency evaluations; and  (C) Listing of first time generics with therapeutic equivalency evaluations;  (2) For a biological product: approval under the Public Health Service Act, the Purple Book, and any United States Food and Drug Administration documentation of any United States Food and Drug Administration-approved interchangeability determination, including:  (A) Letters of approval of Biologic Licensing Applications with a determination that the biological product meets the criteria for interchangeability as set forth in title 42 United States Code section 262(k)(4); and  (B) Published listings of approved Biologic Licensing Applications with a determination that the biological product meets the criteria for interchangeability as set forth in title 42 United States Code section 262(k)(4); and  (3) For a biological product approved under the Federal Food, Drug, and Cosmetic Act: the Orange Book and any United States Food and Drug Administration documentation of any United States Food and Drug Administration-approved interchangeability determination, including:  (A) Letters of approval of approved New Drug Applications or approved Abbreviated New Drug Applications with therapeutic equivalency evaluations; and  (B) Published listings of approved New Drug Applications or approved Abbreviated New Drug Applications with therapeutic equivalency evaluations.  (b) The director shall maintain an official record of, and update as necessary, the Hawaii list of equivalent generic drug products and interchangeable biological products electronically on the department's website, which shall be accessible to pharmacists and other interested persons.  (c) The Hawaii list of equivalent generic drug products and interchangeable biological products shall only include substitutable generic drug products and interchangeable biological products that are determined by the director to be safe, effective, and therapeutically equivalent or interchangeable. The director shall not approve as substitutable, and the Hawaii list of equivalent generic drug products and interchangeable biological products shall not include, any biological products that the United States Food and Drug Administration has neither licensed and determined as meeting the standards for interchangeability pursuant to title 42 United States Code section 262(k)(4) nor determined as therapeutically equivalent as set forth in the latest edition of or supplement to the United States Food and Drug Administration's approved drug products with therapeutic equivalence evaluations.  (d) The director may remove from the Hawaii list of equivalent generic drug products and interchangeable biological products any products upon the director's finding that the safety, quality, efficacy, or therapeutic equivalency or bioequivalency, as appropriate, is not adequately assured.  (e) Any person who requests that any modification be made to, or that a drug product or biological product be added to or removed from, the Hawaii list of equivalent generic drug products and interchangeable biological products shall have the burden of proof to show cause why the modification, addition, or removal should be made.  (f) Each pharmacy in the State shall update and maintain its physical copies and electronic records of the Hawaii list of equivalent generic drug products and interchangeable biological products as it is approved and periodically updated and amended by the director.  (g) The department shall provide for public education regarding the provisions of this part and shall monitor the effects of this part. [L 1980, c 187, pt of 1; am L 1982, c 122, 1(6), (7); am L 1986, c 174, 1; am L 1996, c 209, 6; am L 1997, c 214, 7; am L 1999, c 209, 2; am L 2003, c 56, 8; am L 2004, c 28, 3; am L 2016, c 242, 6; am L 2017, c 12, 64]
 328-97 Posting requirements. Every pharmacy shall prominently display, in clear and unobstructed public view, a sign in block letters that shall read: "HAWAII LAW REQUIRES THAT LESS EXPENSIVE GENERICALLY EQUIVALENT DRUG PRODUCTS AND INTERCHANGEABLE BIOLOGICAL PRODUCTS BE OFFERED TO THE CONSUMER. CONSULT YOUR PHYSICIAN AND PHARMACIST CONCERNING THE AVAILABILITY OF THE LEAST EXPENSIVE DRUG PRODUCT FOR YOUR USE." The letters must be at least one inch in height. [L 1980, c 187, pt of 1; am L 2016, c 242, 7]
 328-98 Pharmacist liability. A pharmacist who selects an equivalent generic drug product or an interchangeable biological product pursuant to this part assumes no greater liability for selecting the dispensed drug product than would be incurred in filling a prescription for a drug product prescribed by its established name. [L 1980, c 187, pt of 1; am L 1996, c 209, 7; am L 2016, c 242, 8]
 328-99 Exceptions. Out-of-state prescriptions filled pursuant to section 328-17.6 shall be exempt from this part. [L 1980, c 187, pt of 1; am L 1987, c 283, 22; am L 1992, c 177, 2]
 REPEALED. L 1976, c 84, 2.
 REPEALED. L 2004, c 190, 11.
  328C-1 Definitions. Whenever used in this chapter unless the context otherwise requires:  "Charitable, religious, or nonprofit organization" means any organization which was organized and is operating in the State for charitable or religious purposes or to promote social welfare, which is exempt from income taxation under chapter 235, and which distributes pharmaceuticals and health care supplies at no cost to needy persons.  "Institutional facility" means a:  (1) Hospital;  (2) Convalescent home;  (3) Nursing home;  (4) Extended care facility;  (5) Mental institution;  (6) Rehabilitation center;  (7) Health maintenance organization;  (8) Psychiatric center;  (9) Intellectual disability center;  (10) Penal institution; or  (11) Any other organization whose primary purpose is to provide a physical environment for patients to obtain health care services or at-home care services, except those places where physicians, dentists, veterinarians, osteopaths, podiatrists, or other prescribers who are duly licensed, engage in private practice.  "Needy person" means any natural person who lacks the means to obtain adequate or proper pharmaceuticals or health care supplies, as determined by a practitioner at a Hawaii qualified health center, established under section 346-41.5, to be in need of service.  "Pharmaceuticals and health care supplies" means any medicine (prescription or nonprescription, excluding all controlled substances listed in chapter 329) or health care supplies such as soap, personal sanitary products, baby formula, dietary supplement, health care aids such as thermometers, surgical gloves, or bandages, or any other item which is customarily fit for human consumption or external use, before the expiration date stamped on the product, if any. [L 1997, c 337, pt of 2; am L 2001, c 207, 1; am L 2004, c 190,  4, 11; L 2011, c 220, 12]
  328C-2  Exceptions to liability.  (a) A charitable, religious, or nonprofit organization which in good faith receives pharmaceuticals or health care supplies, apparently fit for human consumption or external use, and distributes them to needy persons at no charge, shall not be liable for any civil damages or criminal penalties resulting from the use of the pharmaceuticals or health care supplies donated to needy persons unless an injury or illness results to those needy persons as a result of that organization's gross negligence or wanton acts or omissions.  (b) Any pharmacy, wholesale prescription drug distributor, pharmaceutical company, institutional facility, or practitioner that in good faith provides pharmaceuticals, including previously dispensed prescription drugs, and health care supplies to needy persons without remuneration or expectation of remuneration, shall be exempt from civil liability for injuries and damages resulting from their acts or omissions in providing pharmaceuticals and health care supplies, except for gross negligence, or wanton acts or omissions on the part of the pharmacy, wholesale prescription drug distributor, pharmaceutical company, institutional facility, or practitioner.  (c) Any donated, previously dispensed, prescription drug:  (1) Shall be in its dispensed, unopened, tamper-evident single user unit;  (2) Shall have remained at all times in the control of a person trained and knowledgeable in the storage and administration of drugs in institutional facilities;  (3) Shall not have been adulterated, misbranded, or stored under conditions contrary to standards established by the United States Pharmacopoeia or the product manufacturer; and  (4) Shall be used before the expiration date on the unit.  (d) This section shall not relieve any organization from any other duty imposed upon it by law for the inspection of donated pharmaceuticals or health care supplies or for any provisions regarding the handling of those products, or relieve any health care provider from liability arising out of the prescription of such pharmaceuticals or health care supplies.  (e) For purposes of this section:  "Needy person" means any natural person who lacks the means to obtain adequate or proper pharmaceuticals or health care supplies as determined by a practitioner at a Hawaii qualified health center established under section 346-41.5, to be in need of service.  "Pharmaceutical company" means any company that manufactures pharmaceuticals and health care supplies.  "Pharmaceuticals and health care supplies" means any medicine (prescription or nonprescription, excluding all controlled substances listed in chapter 329) or health care supplies such as soap, personal sanitary products, baby formula, dietary supplement, health care aids such as thermometers, surgical gloves, or bandages, or any other item that is customarily fit for human consumption or external use, before the expiration date stamped on the product, if any.  "Pharmacy" is as defined in chapter 461. [L 1997, c 337, pt of 2; am L 2001, c 207, 2; am L 2004, c 190,  7, 11]
  328C-3 Sale of donated pharmaceuticals or health care supplies, prohibited; fines. (a) No person or organization shall sell, or offer for sale, any pharmaceutical or health care supply donated or distributed under this chapter.  (b) Any violation of this section is punishable by a fine not to exceed $1,000. [L 1997, c 337, pt of 2]
  328C-4 Labeling of donated pharmaceuticals or health care supplies. Any charitable, religious, or nonprofit organization which receives and distributes donated pharmaceuticals or health care supplies pursuant to this chapter shall affix a label upon those items stating that the items are donated and are not for resale and stating that they were fit for human consumption or use on the date that they left control of the charitable, religious, or nonprofit organization. [L 1997, c 337, pt of 2]
  328C-5 Reserving the State's authority to regulate, inspect, or ban the use of donated pharmaceuticals or health care supplies. Nothing in this chapter is intended to restrict the authority of any state department to regulate, inspect, or ban the use of donated pharmaceuticals or health care supplies for human consumption or use. Pharmaceuticals and health care supplies that are distributed by a charitable, religious, or nonprofit organization, and the activities associated with that distribution, shall comply with the applicable provisions of chapter 328, including part VII, which relates to prescription drug wholesalers. Any provisions to the contrary notwithstanding, all activities conducted by an organization under this chapter involving the distribution of prescription drugs to persons other than a consumer or patient shall be included within the definition of "wholesale distribution" as defined by section 328-112. [L 1997, c 337, pt of 2]
   328C-6, 7 REPEALED. L 2004, c 190, 11.
  328D-1 Definitions. For the purposes of this chapter:  "Approved laboratory" means a laboratory approved by the department or other government agency or agencies having jurisdiction or certified by the United States Environmental Protection Agency.  "Approved source", when used in reference to a bottled water plant's product water or water used in the plant's operations, means the source of the water, whether from a spring, artesian well, drilled well, public or community water system, or any other source that has been inspected and the water sampled, analyzed, and found to be of a safe and sanitary quality. The presence in the plant of a current certificate or notification of approval from the department or other government agency or agencies having jurisdiction shall constitute approval of the source.  "Artesian water" means bottled water from a well tapping a confined aquifer in which the water level stands above the water table. "Artesian water" shall meet the requirements of "natural water".  "Bottled water" means water that is placed in a sealed container or package and is offered for sale for human consumption or other consumer uses.  "Bottled water plant" means any place or establishment in which bottled water is prepared for sale.  "Carbonated water" or "sparkling water" means bottled water containing carbon dioxide.  "C.F.R." means the Code of Federal Regulations.  "Department" means the department of health.  "Director" means the director of health.  "Distilled water" means bottled water which has been produced by a process of distillation and meets the definition of purified water in the most recent edition of the United States Pharmacopeia.  "Drinking water" means bottled water obtained from an approved source that has at minimum undergone treatment consisting of filtration (activated carbon or particulate) and ozonation or an equivalent disinfection process.  "EPA" means the United States Environmental Protection Agency.  "FDA" means the United States Food and Drug Administration.  "Fluoridated water" means bottled water containing fluoride. The label shall specify whether the fluoride is naturally occurring or added. Any water which meets this definition shall contain not less than 0.5 and not more than 1.0 milligrams per liter fluoride ion and otherwise comply with the Food and Drug Administration (FDA) quality standards in section 103.35(d)(2), Title 21 of the Code of Federal Regulations.  "Mineral water" means bottled water that contains not less than 500 parts per million total dissolved solids. "Natural mineral water" shall meet the requirements of "natural water".  "Natural water" means bottled spring, mineral, artesian, or well water which is derived from an underground formation and is not derived from a municipal system or public water supply.  "Plant operator" means any person who owns or operates a bottled water plant.  "Purified water" means bottled water produced by distillation, deionization, reverse osmosis, or other suitable process and that meets the definition of purified water in the most recent edition of the United States Pharmacopeia. Water which meets the definition of this paragraph and is vaporized, then condensed, may be labeled "distilled water".  "Spring water" means water derived from an underground formation from which water flows naturally to the surface of the earth. "Spring water" shall meet the requirements of "natural water".  "Water dealer" means any person who imports bottled water or causes bulk water to be transported for bottling for human consumption or other consumer uses.  "Well water" means water from a hole bored, drilled, or otherwise constructed in the ground which taps the water of an aquifer. "Well water" shall meet the requirements of "natural water". [L 1988, c 304, pt of 1]
 328D-10 Injunctive relief. The director may institute a civil action in any court of competent jurisdiction for injunctive relief to prevent any violation of this chapter or any rule adopted to implement this chapter. The court shall have powers to grant relief in accordance with the Hawaii rules of civil procedure. [L 1988, c 304, pt of 1] Rules of Court  Injunctions, see HRCP rule 65.
  328D-2 Product quality. (a) All bottled water shall be from an approved source and shall not contain any constituent in quantities that may be injurious to health, as established by rules adopted by the department or other government agency or agencies having jurisdiction. All bottled water shall meet standards prescribed by the FDA in title 21 C.F.R. section 165.110.  (b) Except as provided in subsection (a), bottled water, including mineral water, shall not exceed any maximum contaminant level (MCL) established by the EPA under the Safe Drinking Water Act or standards established by the department or other government agency or agencies having jurisdiction for any organic or inorganic chemical. [L 1988, c 304, pt of 1; am L 2021, c 161, 2]
 328D-3 Manufacturing, operations; requirements. (a) All bottled water, including mineral water, shall be filtered and processed and packaged in accordance with the FDA good manufacturing practice regulations (GMPs) 21 C.F.R. Parts 110 and 129, and any other rules adopted by the department or government agency or agencies having jurisdiction.  (b) Bottled water production, including transporting, processing, packaging, and storage, shall be conducted under conditions and controls necessary to minimize the potential for microbiological contamination of the finished product. These conditions and controls shall include the following:  (1) Bottled water shall be subject to effective germicidal treatment by ozonation or carbonation at a minimum of three volumes of carbon dioxide or other equivalent disinfection approved by the department or government agency or agencies having jurisdiction; and  (2) Bottled water shall not be transported or stored in bulk tanks or processed or bottled through equipment or lines used for any nonfood product.  (c) Each bottled water plant operator and water dealer shall develop and maintain a procedure for product recall and shall implement this procedure for any product for which the operator or dealer knows or has reason to believe circumstances exist that may adversely affect its safety for the consumer.  (d) Artesian water may be collected with the assistance of external force to enhance the natural underground pressure so long as such measures do not alter the physical properties, composition, and quality of the water.  (e) Natural water shall not be modified by blending with water of another type or by deletion or addition of dissolved solids except as related to disinfection or other treatment to reduce the concentration of any naturally present constituent which exceeds government-sanctioned or approved safety standards or guidelines. It may be collected and transported by pumps, pipes, tunnels, trucks, or similar devices.  (f) Spring water shall be collected only at the spring or through a bore hole that is adjacent to the point of emergence. Spring water collected with the assistance of external force to protect the water shall retain all the physical properties of and be of the same composition and quality as the water that flows naturally to the surface of the earth. [L 1988, c 304, pt of 1; am L 2021, c 161, 3]    
  328D-4 Source water monitoring. (a) The plant operator shall be responsible for sampling and analysis of all approved sources for the contaminants specified in section 328D-2 to assure that product water derived from approved sources continues to comply with section 328D-2. Such monitoring shall be at least annually, except that analysis for microbiological contaminants shall be weekly if the source is other than a public water system.  (b) Approved sources shall be monitored every four years for contaminants for which the EPA under the Safe Drinking Water Act, the department, or other government agency or agencies having jurisdiction requires source water monitoring.  (c) In lieu of source monitoring required by this section, a plant operator using a public water system as its source may obtain and display a certificate from the public water system demonstrating that the public water system conducts the monitoring required by this section.  (d) Where a bottled water plant operator, water dealer, or regulatory agency knows or has reason to believe that a contaminant not otherwise monitored is present in the source water because of a spill, release of a hazardous substance, or otherwise, and its presence would create a potential health hazard to consumers, the plant operator or water dealer upon receipt of such information shall monitor the source water for the contaminant.  (e) Detection of any contaminant in source monitoring required pursuant to this section shall be followed immediately by a program of periodic monitoring to confirm the presence in the source water of the contaminant. If the listed unregulated contaminant is confirmed to be present in the source water at a concentration that exceeds a published EPA health advisory, or an FDA or department or other government agency action level for drinking water, the plant operator or water dealer shall employ appropriate treatment techniques to remove or to reduce the contaminant in the product water below the concentration and shall employ a program of periodic monitoring for the contaminant in the source water until such time as the contaminant is not detectable in the source water.  (f) The required source water sampling shall be performed by qualified personnel and required analysis shall be performed by an approved laboratory. Records of the required sampling and analyses shall be maintained on file at the plant for not less than two years and shall be available for official review upon request of the department or other government agency or agencies having jurisdiction. [L 1988, c 304, pt of 1]
  328D-5 Finished product monitoring. (a) To assure that bottled water complies with section 328D-2, the following product monitoring of representative samples derived from the bottled product shall be performed:  (1) For microbiological contaminants specified in section 328D-2, a representative sample from a batch or segment of a continuous production for each type of bottled water produced by the plant shall be analyzed weekly; and  (2) For chemical, physical, and radiological contaminants specified in section 328D-2, a representative sample from a batch or segment of continuous product run for each type of bottled drinking water produced by the plant shall be analyzed annually.  (b) The required product water sampling shall be performed by qualified personnel and required analysis shall be performed by an approved laboratory.  (c) Records of required sampling and analysis shall be maintained at the plant not less than two years and shall be available for official review upon request of the department or government agency or agencies having jurisdiction. [L 1988, c 304, pt of 1]
  328D-6 Labeling requirements. All bottled water shall conform to applicable federal and state labeling laws and be labeled in compliance with the following standards:  (1) Mineral water may be labeled mineral water . Bottled water to which minerals are added shall be labeled so as to disclose that minerals are added, and may not be labeled natural mineral water .  (2) Spring water may be labeled spring water  or natural spring water .  (3) Water containing carbon dioxide that emerges from the source and is bottled directly with its entrapped gas or from which the gas is mechanically separated and later reintroduced at a level not higher than naturally occurring in the water may bear on its label the words naturally carbonated  or naturally sparkling .  (4) Bottled water which contains carbon dioxide other than that naturally occurring in the source of the product shall be labeled with the words carbonated , carbonation added , or sparkling  when the carbonation is obtained from a natural or manufactured source.  (5) Well water may be labeled well water  or natural well water .  (6) Artesian water may be labeled artesian water  or natural artesian water .  (7) Purified water shall be labeled purified water  and the method of preparation shall be stated on the label, except that purified water produced by distillation may be labeled as distilled water .  (8) Drinking water may be labeled drinking water .  (9) Any bottler, distributor, or vendor of bottled water whose corporate name, brand name, or trademark contains the words spring , well , artesian , mineral , or natural  or any derivative of those words shall label each bottle with the type of bottled water in typeface at least equal to the size of the typeface of the corporate name, brand name, or trademark, if the type of the bottled water is different from the type stated or implied in the corporate name, brand name, or trademark.  (10) The use of the word spring , or any derivative thereof other than in a trademark, trade name, or company name to describe water that is not spring water as defined in section 328D-1 shall be prohibited.  (11) A product meeting more than one definition as stated in section 328D-1 may be identified by any of the applicable product types defined in section 328D-1, except where otherwise specifically prohibited.  (12) Supplemental printed information and graphics concerning recognized uses of the water may appear on the label but shall not imply properties of the product or preparation methods which are not factual. [L 1988, c 304, pt of 1]
  328D-7 Exemption; soda water, soft drink. (a) Bottled soft drinks, soda, seltzer, or other products commonly recognized as soft drinks and labeled with a common or usual name other than one of those specified in section 328D-1 or food complying with 21 C.F.R. 165.175 are exempt from the requirements of this chapter. Water that is not in compliance with the requirements of this chapter may not be labeled as artesian water , bottled water , distilled water , drinking water , fluoridated water , mineral water , natural water , purified water , spring water , or well water .  (b) Bottled water that is not sold for human consumption shall be exempt from the requirements of this chapter, provided that the product is labeled not for human consumption  in prominent lettering. [L 1988, c 304, pt of 1]
  328D-8 Rules. The director shall adopt rules pursuant to chapter 91 to implement this chapter. [L 1988, c 304, pt of 1]
  328D-9 Administrative penalties. (a) Any person who violates this chapter or any rule adopted by the department pursuant to this chapter shall be fined not more than $10,000 for each separate offense. Any action taken to collect the penalty provided for in this subsection shall be considered a civil action.   (b) In addition to any other administrative or judicial remedy provided by this chapter, or by rules adopted pursuant to this chapter, the director may impose by order the administrative penalty specified in this section. Factors to be considered in imposing the administrative penalty include the nature and history of the violation and of any prior violation, and the opportunity, difficulty, and history of corrective action. For any judicial proceeding to recover the administrative penalty imposed, the director need only show that notice was given, a hearing was held or the time granted for requesting a hearing has expired without such a request, the administrative penalty was imposed, and that the penalty remains unpaid. [L 1988, c 304, pt of 1]
  328E-1 Purpose. The purpose of this chapter is to restrict the sale and use in the State of certain compounds which induce an intoxicated condition in the user. [L 1970, c 204, 1]
  328E-2 Use prohibited. No person shall breathe, inhale or drink any compound, liquid or chemical containing toluol, hexane, trichloroethylene, acetone, toluene, ethyl acetate, methyl ethyl ketone, trichloroethane, isopropanol, methyl isobutyl ketone, methyl cellosolve acetate, cyclohexanone, or any other substance for the purpose of inducing a condition of intoxication, stupefaction, depression, giddiness, paralysis or irrational behavior, or in any manner changing, distorting or disturbing the auditory, visual or mental processes. For the purposes of this chapter, any such condition so induced shall be deemed to be an intoxicated condition. [L 1970, c 204, 2] Cross References  Use of certain chemical substances as inhalants, see 330-8.
  328E-3 Sale or delivery to person under eighteen. No person shall knowingly sell or offer for sale, deliver or give to any person under 18 years of age, unless upon written order of such person's parent or guardian, any compound liquid or chemical containing toluol, hexane, trichloroethylene, acetone, toluene, ethyl acetate, methyl ethyl ketone, trichloroethane, isopropanol, methyl isobutyl ketone, methyl cellosolve acetate, cyclohexanone, or any other substance which will induce an intoxicated condition, as defined herein, when the seller, offeror or deliveror knows or has reason to know that such compound is intended for use to induce such condition. [L 1970, c 204, 3]
  328E-4 When not applicable. This chapter shall not apply to any person who commits any act described herein pursuant to the direction or prescription of a practitioner, as defined in the Hawaii Food, Drug and Cosmetic Act  (section 328-16). [L 1970, c 204, 4]
  328E-5 Misdemeanor. Whosoever violates any provision of this chapter shall be guilty of a misdemeanor. [L 1970, c 204, 5]
 328J-1  Definitions. As used in this chapter, unless the context otherwise requires:   "Bar" means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises regardless of whether food is served, including but not limited to taverns, cocktail lounges, and cabarets, including outdoor areas of bars.  "Building" means any area enclosed or partially enclosed by a roof and at least three walls.  "Business" means a sole proprietorship, partnership, joint venture, corporation, or other business entity, either for-profit or not-for-profit, including retail establishments where goods or services are sold, professional corporations, and other entities where legal, medical, dental, engineering, architectural, or other professional services are delivered.  "Department" means the department of health.  "Director" means the director of health.  "Electronic smoking device" means any electronic product that can be used to aerosolize and deliver nicotine or other substances to the person inhaling from the device, including but not limited to an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, hookah pipe, or hookah pen, and any cartridge or other component of the device or related product, whether or not sold separately.  "Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and a person who volunteers the person's services for a nonprofit entity.  "Employer" means a person, business, partnership, association, corporation, including the State or any of its political subdivisions, a trust, or nonprofit entity that employs the services of one or more individual persons, but shall not include the United States.  "Enclosed or partially enclosed" means closed in by a roof or overhang and at least two walls. Enclosed or partially enclosed areas include but are not limited to areas commonly described as public lobbies, lanais, interior courtyards, patios, and covered walkways.  "Health care facility" means an office or institution, including all waiting rooms, hallways, private rooms, semiprivate rooms, and wards, which provides care or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including but not limited to hospitals, rehabilitation hospitals or other clinics, including weight control clinics, nursing homes, homes for the aging or chronically ill, laboratories, and offices of surgeons, chiropractors, physical therapists, physicians, dentists, and all specialists within these professions.  "Multifamily dwelling" means a building containing more than two dwelling units.  "Nightclub" means an establishment in which live entertainment is provided or facilities for dancing by patrons either by live entertainment or recorded music may be provided, regardless of whether alcoholic beverages are served.  "Open to the public" means enclosed or partially enclosed areas to which the public is invited or permitted and areas within any building available for use by or accessible to the general public during the normal course of business conducted therein by either private or public entities, including but not limited to bars, educational facilities, financial institutions, health care facilities, hotel and motel lobbies, lanais, laundromats, public transportation facilities, including airport areas from curb to cabin and including all areas within and immediately in front of and adjacent to passenger terminals and pick-up areas, throughout the airport facility, and up to the passenger loading gates of all state airports, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, and waiting rooms, but does not include a private residence unless it is used as a child care, adult day care, or health care facility.  "Place of employment" means an area under the control of a public or private employer that employees normally frequent during the course of employment, including but not limited to auditoriums, cafeterias, classrooms, clubs, common work areas, conference rooms, elevators, employee lounges, hallways, medical facilities, meeting rooms, private offices, restrooms, and stairs. A private residence is not a "place of employment" unless it is used as a child care, adult day care, or health care facility.  "Restaurant" means an eating establishment, including but not limited to coffee shops, cafeterias, sandwich stands, 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" includes a bar area within the restaurant and outdoor areas of restaurants.   "Retail tobacco store" means a retail store used primarily for the sale of tobacco products and accessories.  "Service line" means an indoor line in which one or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money.  "Shopping mall" means an enclosed or partially enclosed public walkway or hall area that serves to connect retail or professional establishments.  "Smoke" or "smoking" means inhaling, exhaling, burning, or carrying any lighted or heated tobacco product or plant product intended for inhalation in any manner or in any form. "Smoking" includes the use of an electronic smoking device.  "Sports arena" means any sports pavilion, stadium, gymnasium, health spa, boxing arena, swimming pool, roller or ice rink, bowling alley, and any other similar place where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events.  "Tobacco product" means any product made or derived from tobacco, that contains nicotine or other substances, and is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by any other means, including, but not limited to, a cigarette, cigar, pipe tobacco, chewing tobacco, snuff, snus, or an electronic smoking device. "Tobacco product" does not include drugs, devices, or combination products approved for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. [L 2006, c 295, pt of 2; am L 2015, c 19,  2, 3]
  328J-10 Nonretaliation and nonwaiver of rights. (a)  No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because that employee, applicant, or customer exercises any rights afforded by this chapter or reports or attempts to prosecute a violation of this chapter.  (b) An employee who works in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party. [L 2006, c 295, pt of 2]
 328J-11.5 Statewide concern. (a) Sales of cigarettes, tobacco products, and electronic smoking devices are a statewide concern. It is the intent of the legislature to regulate the sale of cigarettes, tobacco products, and electronic smoking devices in a uniform and exclusive manner.  (b) All local ordinances or regulations that regulate the sale of cigarettes, tobacco products, and electronic smoking devices are preempted, and existing local laws and regulations conflicting with this chapter are null and void.  (c) Nothing in this chapter shall be construed to limit a county's authority under section 328J-15. [L 2018, c 206, 6]
  328J-11 Compliance and administration. (a) Enforcement of compliance with this chapter shall be under the jurisdiction of the department.  (b) The director shall adopt rules under chapter 91 as are appropriate to carry out the purposes of this chapter and for the efficient administration thereof.  (c) Any citizen who wants to register a complaint under this chapter may initiate an enforcement action with the department as set forth by the director.  (d) An owner, manager, operator, or employee of an establishment regulated by this chapter shall inform persons violating this chapter of its provisions.  (e) Notwithstanding any other provision of this chapter, an employee or private citizen may bring legal action to enforce this chapter.  (f) Notwithstanding any other provision of this chapter, the department, other appropriate county agency, county, or any other person aggrieved by the failure of the owner, operator, manager, or other person in control of a place open to the public or a place of employment to comply with this chapter may apply for injunctive relief to enforce this chapter in any court of competent jurisdiction. [L 2006, c 295, pt of 2]
  328J-12 Penalties. (a) A person who smokes in an area where smoking is prohibited by this chapter shall be guilty of a violation and fined not more than $50 to be deposited into the general fund. The district courts may assess costs not to exceed $25 for issuing a penal summons upon any person who fails to appear at the place within the time specified in the citation issued to the person.  (b) Any authorized police officer, upon making an arrest, shall take the name and address of the alleged violator and shall issue the violator a summons or citation in writing.  (c) There shall be provided for use by an officer or employee of the respective government jurisdictions, duly authorized to issue a summons or citation, or any police officer, a form of summons or citation for use in citing a violator of this chapter that shall not provide for the physical arrest of the violator. The form and content of this summons or citation shall be as adopted or prescribed by the administrative judge of the district court. When a citation is issued, the original of the citation shall be given to the violator; provided that the administrative judge of the district court may prescribe that the violator be given a copy of the citation and provide for the disposition of the original and any other copies. Every citation shall be consecutively numbered and each copy shall bear the same number as its respective original.  (d) If any person fails to comply with a penal summons given to the person, the court shall issue a warrant for the person's arrest.  (e) Any police officer or other officer or employee of the respective government jurisdictions may eject from the premises any person to whom a citation has been issued and who continues to smoke after the person has been so cited.  (f) A person who owns, manages, operates, or otherwise controls any place or facility designated by this chapter and fails to comply with this chapter shall be guilty of a violation and fined:  (1) Not more than $100 for a first violation;  (2) Not more than $200 for a second violation within one year of the date of the first violation; and  (3) Not more than $500 for each additional violation within one year of the date of the preceding violation.  (g) In addition to the fines established by this section, violation of this chapter by a person who owns, manages, operates, or otherwise controls any place or facility designated by this chapter may result in the suspension or revocation of any permit or license issued to the person or the place for the premises on which the violation occurred.  (h) Each day on which a violation of this chapter occurs shall be considered a separate and distinct violation. [L 2006, c 295, pt of 2]
  328J-13 Public education. The department shall engage in a public education program to explain and clarify the purposes and requirements of this chapter to the public, and to guide owners, operators, and managers in their compliance with it. The program may include but is not limited to publication of a brochure for affected businesses and individuals explaining this chapter. [L 2006, c 295, pt of 2]
  328J-14 Other applicable laws. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. [L 2006, c 295, pt of 2]
  328J-15 County ordinances. (a) Nothing in this chapter shall be construed to supersede or in any manner affect a county smoking ordinance; provided that the ordinance is at least as protective of the rights of nonsmokers as this chapter.  (b) Nothing in this chapter shall prohibit a county from enacting ordinances more stringent than this chapter. [L 2006, c 295, pt of 2]
  328J-16 Cigarette sales from vending machines and by lunch wagons prohibited. (a) The sale or distribution at no charge of cigarettes by the following methods is prohibited:  (1) From cigarette vending machines unless the vending machine is located in a bar, cabaret, or any establishment for which the minimum age for admission is eighteen; or  (2) From a lunch wagon engaging in any sales activity within one thousand feet of any public or private elementary or secondary school grounds.  (b) Violations of subsection (a), including placement of a cigarette vending machine in a location other than a bar, cabaret, or any establishment for which the minimum age for admission is eighteen, are subject to a fine of up to $1,000 per day for each violation.  (c) As used in this section:  "Cigarette vending machine" means a self-service device that dispenses cigarettes, cigars, tobacco, or any other product containing tobacco.  "Lunch wagon" means a mobile vehicle designed and constructed to transport food and from which food is sold to the general public and includes but is not limited to manapua trucks.  "Sell" or "sale" means to solicit and receive an order for; to have, keep, offer, or expose for sale; to deliver for value or in any other manner than purely gratuitously; to peddle; to keep with intent to sell; or to traffic in. [L 2006, c 295, pt of 2]
  328J-17 Distribution of sample cigarette or tobacco products, cigarette or tobacco promotional materials, and coupons redeemable for cigarette or tobacco products or promotional materials. (a) It is unlawful for any person to distribute samples of cigarette or tobacco products, or coupons redeemable for cigarette or tobacco products, in or on any public street, sidewalk, or park, or within one thousand feet of any elementary, middle or intermediate, or high school.  (b) It is unlawful for any person to distribute cigarette or tobacco promotional materials, or coupons redeemable for cigarette or tobacco promotional materials, within one thousand feet of any elementary, middle or intermediate, or high school.  (c) This section shall not apply:  (1) Within private commercial establishments, such as stores and restaurants, where tobacco products are sold, as long as distribution is not visible to the public from outside the establishment; or  (2) To commercial establishments where access to the premises by persons under eighteen years of age is prohibited by law.  (d) Any person convicted of violating this section shall be fined not more than $1,000.  (e) As used in this section:  "Distribute" means to pass out to members of the general public free of charge for the exclusive purpose of promoting a product. [L 2006, c 295, pt of 2]
  328J-18 Placement of cigarettes and tobacco products. (a) Except as otherwise provided under this section, a retailer may sell cigarettes, smokeless tobacco, and all other tobacco products only in a direct, face-to-face exchange between the retailer and the consumer. Examples of methods of sale that are not permitted include vending machines and self-service displays.  (b) A retailer may only display or store cigarettes and tobacco products:  (1) Behind a sales counter or in any other area of the establishment that is inaccessible to the public; or  (2) In a locked container.  (c) This section shall not apply to:  (1) A duty-free sales enterprise selling duty-free merchandise in accordance with the provisions of title 19 United States Code section 1555(b), and any implementing regulations; and  (2) Retail tobacco stores, bars, or any other establishment for which the minimum age for admission is eighteen. [L 2013, c 227, 3; am L 2018, c 206, 7]
 328J-2 Prohibition in facilities owned by the State or the counties. Smoking shall be prohibited in all enclosed or partially enclosed areas, including buildings and vehicles owned, leased, or operated by the State or any county. [L 2006, c 295, pt of 2]
 328J-3 Prohibition in enclosed or partially enclosed places open to the public. Smoking shall be prohibited in all enclosed or partially enclosed areas open to the public, including but not limited to the following places:  (1) Airports and public transportation facilities and vehicles, including buses and taxicabs, under the authority of the State or county, and ticket, boarding, and waiting areas of public transit depots, including airports from curb to cabin and including all areas within and immediately in front of and adjacent to passenger terminals and pick-up areas, throughout the airport facility, and up to the passenger loading gates of all state airports;  (2) Aquariums, galleries, libraries, and museums;  (3) Areas available to and customarily used by the general public, including but not limited to restrooms, lobbies, reception areas, hallways, and other common areas, in businesses and nonprofit entities patronized by the public, including but not limited to professional offices, banks, laundromats, hotels, and motels;  (4) Bars;  (5) Bowling alleys;  (6) Convention facilities;  (7) Educational facilities, both public and private;  (8) Elevators;  (9) Facilities primarily used for exhibiting a motion picture, stage, drama, lecture, musical recital, or other similar performance, except when part of the performance;  (10) Health care facilities;  (11) Hotel and motel lobbies, meeting rooms, and banquet facilities;  (12) Licensed child care and adult day care facilities;  (13) Lobbies, hallways, and other common areas in apartment buildings, condominiums, retirement facilities, nursing homes, multifamily dwellings, and other multiple-unit residential facilities;  (14) Nightclubs;  (15) Polling places;  (16) Restaurants;  (17) Retail stores;  (18) Rooms, chambers, places of meeting or public assembly under the control of an agency, board, commission, committee or council of the State or county, to the extent the place is subject to the jurisdiction of the State or county;  (19) Service lines; and  (20) Shopping malls. [L 2006, c 295, pt of 2]
 328J-4 Prohibition in enclosed or partially enclosed places of employment. Smoking shall be prohibited in all enclosed or partially enclosed areas of places of employment. [L 2006, c 295, pt of 2]
 328J-5 Prohibition in sports arenas, outdoor arenas, stadiums, and amphitheaters. Smoking shall be prohibited in the enclosed or partially enclosed areas and in seating areas of sports arenas, outdoor arenas, stadiums, and amphitheaters. [L 2006, c 295, pt of 2]
 328J-6 Presumptively reasonable distance. Smoking is prohibited within a presumptively reasonable minimum distance of twenty feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited. Owners, operators, managers, employers, or other persons who own or control a place open to the public or place of employment may seek to rebut the presumption that twenty feet is a reasonable distance by submitting an application to the department. The presumption will be rebutted if the applicant can show by clear and convincing evidence that, given the circumstances presented by the location of entrances, exits, windows that open, ventilation intakes, or other factors, smoke will not infiltrate into the place open to the public or place of employment. [L 2006, c 295, pt of 2]
 328J-7 Exceptions. Notwithstanding any other provision of this chapter to the contrary, the following areas shall be exempt from the provisions of sections 328J-3, 328J-4, and 328J-5:  (1) Private residences, except when used as a licensed child care, adult day care, or health care facility;  (2) Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided that not more than twenty per cent of rooms rented to guests in a hotel or motel may be so designated. All smoking rooms on the same floor shall be contiguous and smoke from these rooms shall not infiltrate into areas where smoking is prohibited under this chapter. The status of rooms as smoking or nonsmoking may not be changed, except to add additional nonsmoking rooms;  (3) Retail tobacco stores; provided that smoke from these places shall not infiltrate into areas where smoking is prohibited under this chapter;  (4) Private and semiprivate rooms in nursing homes and long-term care facilities that are occupied by one or more persons, all of whom are smokers and have requested in writing to be placed in a room where smoking is permitted; provided that smoke from these places shall not infiltrate into areas where smoking is prohibited under this chapter;  (5) Outdoor areas of places of employment except those covered by the provisions of sections 328J-3 and 328J-5;  (6) All areas covered by this chapter when smoking is part of a production being filmed; and  (7) State correctional facilities; provided that smoking shall only be authorized for employees and volunteers of a correctional facility in an area outside the secure confines of a correctional facility restricted from access by inmates or detainees that has been designated by the warden of a correctional facility. [L 2006, c 295, pt of 2; am L 2009, c 99, 1]
  328J-8  Declaration of establishment as nonsmoking. (a) Notwithstanding any other provision of this chapter, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that an entire establishment, facility, or outdoor area or any part thereof as a place where smoking is prohibited.   (b) Smoking shall be prohibited in any place in which a sign conforming to the requirements of section 328J-9 is posted. [L 2006, c 295, pt of 2]
  328J-9 Signs. Clearly legible signs that include the words "Smoking Prohibited by Law" with letters of not less than one inch in height or the international "No Smoking" symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it, shall be clearly and conspicuously posted in and at the entrance to every place open to the public and place of employment where smoking is prohibited by this chapter by the owner, operator, manager, or other person in control of that place. [L 2006, c 295, pt of 2]
 REPEALED. L 2006, c 295, 3.  Cross References  For present provisions, see chapter 328J.
 328L-1 Definitions. Whenever used in this chapter, unless the context otherwise requires:  "Children's health program" means health care for needy children.  "Department" means the department of health.  "Director" means the director of health.  "Health promotion and disease prevention programs" means those public health programs that attempt to reduce resources spent on treating preventable illness and functional impairment, enhance the quality of life, and reduce disparities in the health status of populations.  "Tobacco prevention and control" means activities or programs that attempt to reduce tobacco consumption.  "Tobacco settlement moneys" refers to moneys received by the State pursuant to the tobacco master settlement agreement. [L 1999, c 304, pt of 2]
 328L-2 Hawaii tobacco settlement special fund. (a) There is established in the state treasury the Hawaii tobacco settlement special fund into which shall be deposited:  (1) All tobacco settlement moneys; and  (2) All interest and earnings accruing from the investment of moneys in the fund; provided that of all tobacco settlement moneys received by the State each fiscal year, the sum representing the first $350,000 of those moneys shall first be deposited in the state treasury in each fiscal year to the credit of the tobacco enforcement special fund. The Hawaii tobacco settlement special fund shall be administered by the department.  (b) The fund shall be used for the purpose of receiving, allocating, and appropriating the tobacco settlement moneys as follows:  (1) Fifteen per cent shall be appropriated into the emergency and budget reserve fund under section 328L-3;   (2) Twelve and one-half per cent shall be appropriated into the Hawaii tobacco prevention and control trust fund under section 328L-5;  (3) Twenty-six per cent shall be appropriated into the university revenue-undertakings fund created in section 304A-2167.5, to be applied to the payment of the principal of and interest on, and to generate required coverage, if any, for, revenue bonds issued by the board of regents of the University of Hawaii to finance the cost of construction of a university health and wellness center, including a new medical school facility, to be situated on the island of Oahu; and  (4) Any remaining amounts shall be deposited to the credit of the state general fund; in the succeeding fiscal year. [L 1999, c 304, pt of 2; am L 2001, c 270, 11; am L Sp 2001 3d, c 14, 2; am L 2003, c 177, 6 and c 178, 57; am L 2006, c 75, 11; am L 2007, c 264,  1, 4; am L 2008, c 16, 22; am L 2009, c 119,  2, 6; am L 2010, c 138, 2; am L 2011, c 124, 59; am L 2012, c 2,  2, 6; am L 2015, c 118, 2] Case Notes  Where plaintiffs, Hawai  i medicaid recipients who suffered from tobacco-related illnesses, alleged that state officials violated and continued to violate federal disbursement rules for medicaid recovery: plaintiffs had standing; plaintiffs' claims were ripe for adjudication; suit not barred by sovereign immunity under the Eleventh Amendment; plain language of amendment to federal medicaid statute barred plaintiffs' claims to any portion of master settlement agreement funds. 311 F.3d 929.
  328L-3 Emergency and budget reserve fund. (a) There is established in the state treasury the emergency and budget reserve fund, which shall be a special fund administered by the director of finance and into which shall be deposited:  (1) Moneys received from the tobacco settlement moneys under section 328L-2;  (2) Notwithstanding any other law to the contrary, any moneys received through a civil action in which the State is a party and no other law or court order specifically provides for the deposit elsewhere of moneys received through the action;   (3) Appropriations made by the legislature to the fund; and  (4) Five per cent of the state general fund balance at the close of the fiscal year, whenever state general fund revenues for each of two successive fiscal years exceeds revenues for each of the preceding fiscal years by five per cent. For the purpose of this section, the general fund balance at the close of the fiscal year shall be calculated after any:  (A) Tax refund or tax credit is provided by the legislature;  (B) Deposit into the emergency and budget reserve fund or another reserve fund is appropriated by the legislature; or  (C) Prepayment of general obligation bond debt service or pension or other post-employment benefit liability is appropriated by the legislature;  during the same regular session as the transfer depositing such moneys to the emergency and budget reserve fund; provided that transfers shall not be made to the emergency and budget reserve fund whenever the balance of the emergency and budget reserve fund is equal to or more than ten per cent of general fund revenues for the preceding fiscal year. The transfer shall be executed by the director of finance. All moneys deposited into the emergency and budget reserve fund under paragraphs (1), (2), and (3) and all moneys deposited under paragraph (4) shall be kept in separate and distinct accounts.  (b) All interest earned from moneys in the emergency and budget reserve fund shall be credited to the emergency and budget reserve fund.  (c) Expenditures from the emergency and budget reserve fund shall be a temporary supplemental source of funding for the State during times of emergency, severe economic downturn, or unforeseen reduction in revenues. No expenditures shall be made from the emergency and budget reserve fund except pursuant to appropriations. The general appropriations bill or the supplemental appropriations bill, as defined in section 9 of article VII of the Hawaii constitution, shall not be used to appropriate moneys from the emergency and budget reserve fund. The governor, through an appropriations bill, may recommend expenditures from the emergency and budget reserve fund by setting forth the purposes of the expenditures consistent with subsection (d), the amounts, and the reasons justifying the necessity for the appropriations.  (d) The legislature may make appropriations from the fund for the following purposes:  (1) To maintain levels of programs determined to be essential to public health, safety, welfare, and education;  (2) To provide for counter cyclical economic and employment programs in periods of economic downturn;  (3) To restore facilities destroyed or damaged or services disrupted by disaster in any county; and  (4) To meet other emergencies when declared by the governor or determined to be urgent by the legislature.  Any act making appropriations from the emergency and budget reserve fund shall include a declaration of findings and purposes setting forth the purposes, the amounts, and the reasons why the appropriations are necessary and shall require a two-thirds majority vote of each house of the legislature.  (e) Appropriations for the following purposes from the emergency and budget reserve fund are specifically prohibited:  (1) To meet expenses of the legislature;  (2) To provide for salary adjustments for officials appointed pursuant to article V, section 6 or article VI, section 3 of the Hawaii constitution and for others whose salaries are directly related to salaries of these officials; and  (3) To fund cost items in any collective bargaining contract.  (f) The legislature shall not appropriate from the emergency and budget reserve fund:  (1) More than fifty per cent of the total balance of the fund in a fiscal year;   (2) In a fiscal year, an amount that exceeds ten per cent of the total discretionary funds appropriated by the legislature for the same fiscal year for which emergency and budget reserve fund moneys are appropriated. For the purpose of this paragraph, "discretionary funds" means the total amount of general fund moneys appropriated or authorized by the legislature for expenditure during the fiscal year for operating costs less nondiscretionary funds; where "nondiscretionary funds" means the total amount of general fund moneys appropriated or authorized by the legislature for expenditure during the same fiscal year for:  (A) Debt service payments for general obligation bonds;  (B) Employer contributions for pension and retirement benefits of state government employees;  (C) Employer contributions for health insurance benefits of state government employees and state government retirees;  (D) Medicaid service costs, meaning the costs of services provided to low-income persons under the medical assistance program established under chapter 346 and funded in part under title XIX of the federal Social Security Act, as amended. "Medicaid service costs" does not include the costs of management, administrative, or other overhead services performed by the department of human services for medicaid; and  (E) Other costs, including but not limited to payroll, lease costs for real property, and equipment for the same fiscal year, as determined by the legislature; and  (3) Any amount for expenditure in the succeeding fiscal year, unless the State has collected or is projected to collect less general fund tax revenue in the current fiscal year compared to the immediately preceding fiscal year. [L 1999, c 304, pt of 2; am L 2002, c 16, 24 and c 178, 3; am L 2009, c 119,  3, 6; am L 2010, c 138,  1, 2; am L 2017, c 6, 3, c 8, 1, and c 207, 1; am L 2021, c 9, 2]
  328L-4 REPEALED. L 2015, c 118, 4. Note  L 2015, c 35, 49 purports to amend this section.
 328L-5 Hawaii tobacco prevention and control trust fund. (a) There is established the Hawaii tobacco prevention and control trust fund as a separate fund of a nonprofit entity having a board of directors and qualifying under section 501(c)(3) of the Internal Revenue Code of 1986, as amended, into which shall be deposited moneys received as provided under section 328L-2(b)(2). The director of health with the concurrence of the governor, shall select, in accordance with law, the entity based upon the proven record of accomplishment of the entity in administering a similar trust fund.  (b) Notwithstanding that the Hawaii tobacco prevention and control trust fund is established within a private entity, the department of budget and finance shall have oversight authority over the fund and may make periodic financial audits of the fund; provided that the director of finance may contract with a certified public accountancy firm for this purpose. The director of health with the concurrence of the governor in their sole discretion may rescind the selection of the entity. If the selection of the entity [is] rescinded, moneys in the trust fund shall revert back to the State and shall be deemed to be trust moneys.  (c) The entity selected under subsection (a), for each fiscal year, may expend up to fifty per cent of the total market value of the Hawaii tobacco prevention and control trust fund on the preceding June 30, for tobacco prevention and control, including but not limited to, reducing cigarette smoking and tobacco use among youth and adults through education and enforcement activities, and controlling and preventing chronic diseases where tobacco is a risk factor.  (d) The Hawaii tobacco prevention and control trust fund may receive appropriations, contributions, grants, endowments, or gifts in cash or otherwise from any source, including the State, corporations or other businesses, foundations, government, individuals, and other interested parties; provided that any appropriations made by the State shall not supplant or diminish the funding of existing tobacco prevention and control programs or any health related programs funded in whole or in part by the State.  (e) The assets of the Hawaii tobacco prevention and control trust fund shall consist of:  (1) Moneys appropriated under section 328L-2(b)(2);  (2) Moneys appropriated to the Hawaii tobacco prevention and control trust fund by the state, county, or federal government;  (3) Private contributions of cash or property; and  (4) Income and capital gains earned by the trust fund.  (f) The aggregate principal sum deposited in the Hawaii tobacco prevention and control trust fund shall be invested by the entity selected under subsection (a) in a manner intended to maximize the rate of return on investment of the trust fund consistent with the objective of preserving the trust fund's principal.  (g) If the entity selected under subsection (a) is dissolved, the director of health, with the concurrence of the governor, shall select a successor entity. If the Hawaii tobacco prevention and control trust fund is terminated, the moneys remaining in the trust fund shall revert back to the State and shall be deemed to be trust moneys.  (h) The administration of the Hawaii tobacco prevention and control trust fund shall be advised by the tobacco prevention and control advisory board created under section 328L-6. [L 1999, c 304, pt of 2; am L Sp 2001 3d, c 14, 3; am L 2015, c 118, 3] Note  The L 2010, c 138 amendment is exempt from the repeal and reenactment condition of L 2009, c 119, 6. L 2010, c 138, 4.
 328L-6 Tobacco prevention and control advisory board. (a) There is established a tobacco prevention and control advisory board under the department for administrative purposes.  (b) The tobacco prevention and control advisory board shall consist of members who are involved in tobacco prevention and control. Membership of the board shall be as follows:  (1) One member of the governor's staff, appointed by the governor;  (2) One member to be appointed by the governor from a list of two names submitted by the president of the senate;  (3) One member to be appointed by the governor from a list of two names submitted by the speaker of the house of representatives;  (4) The director or the director's designee;  (5) The superintendent of education or the superintendent's designee;  (6) Three members having demonstrated interest in and having backgrounds beneficial to controlling and preventing the use of tobacco, appointed by the director of health; and  (7) Three members representing populations at risk for tobacco use, appointed by the governor.  (c) Members shall:  (1) Be appointed or designated, as applicable, without regard to section 26-34;  (2) Serve without compensation; and  (3) Serve for a term of three years.  (d) The tobacco prevention and control advisory board, in collaboration with the department, shall develop a strategic plan for tobacco prevention and control, including:  (1) Developing and implementing effective and cost efficient programs, including health promotion and disease prevention;  (2) Developing adequate standards and benchmarks by which measures of program success under paragraph (1) of this subsection may be appropriately evaluated; and  (3) Assessing the effectiveness of programs engaged in health promotion and disease prevention.  The strategic plan shall be in writing and shall be a public document.  (e) The tobacco prevention and control advisory board shall advise the on the administration of the Hawaii tobacco prevention and control trust fund. [L 1999, c 304, pt of 2] Note  Subsection (e) is printed as enacted.
  328L-7 Limitation on bond requirements in litigation involving master settlement agreement signatories, successors, and affiliates. (a) In civil litigation under any legal theory involving a signatory, a successor of a signatory, or an affiliate of a signatory to the tobacco master settlement agreement, the supersedeas bond to be furnished to stay the execution of the judgment during the entire course of appellate review shall be set in accordance with applicable laws or court rules, except that the total bond that is required of all appellants collectively shall not exceed $150,000,000, regardless of the amount of the judgment.  (b) Notwithstanding subsection (a), if an appellee proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid the payment of a judgment, a court may require the appellant to post a bond in an amount up to the full amount of the judgment. [L 2004, c 157, 8]
  329-1 Definitions. As used in this chapter:  "Abuse" means the misuse of a substance or the use of a substance to an extent deemed deleterious or detrimental to the user, to others, or to society.  "Address" means, with respect to prescriptions, the physical location where an individual resides such as:  (1) Street address, city, and state;  (2) Tax map key number; or  (3) The description of a physical location.  "Administer" means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by:  (1) A practitioner (or, in the practitioner's presence or at the practitioner's direction, by a licensed or registered health care professional acting as the practitioner's authorized agent), or  (2) The patient or research subject at the direction or in the presence of the practitioner.  "Administrator" means the administrator of the narcotics enforcement division of the department of public safety.  "Advanced practice registered nurse with prescriptive authority" means a person licensed under section 457-8.6 who is registered under this chapter to administer or prescribe a controlled substance; provided that an advanced practice registered nurse with prescriptive authority shall not be authorized to request, receive, or sign for professional controlled substance samples.  "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser. It does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman.  "Bureau" or "DEA" means the Drug Enforcement Administration, United States Department of Justice, or its successor agency.  "Central fill pharmacy" means a pharmacy located in the State that is registered pursuant to section 329-32 to prepare controlled substance orders for dispensing to the ultimate user pursuant to a valid prescription transmitted to it by a registered pharmacy.  "Central repository" means a central repository established under section 329-102.  "Controlled substance" means a drug, substance, or immediate precursor in schedules I through V of part II.  "Counterfeit substance" means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person who in fact manufactured, distributed, or dispensed the substance.  "Deliver" or "delivery" means the actual, constructive, or attempted transfer or sale from one person to another of a controlled substance or drug paraphernalia, whether or not there is an agency relationship.  "Department" means the department of public safety.  "Designated member of the health care team" includes physician assistants, advanced practice registered nurses, and covering physicians who are authorized under state law to prescribe drugs.  "Designated state agency" means the narcotics enforcement division, department of public safety.  "Detoxification treatment" means the dispensing, for a specific period of time, of a narcotic drug or narcotic drugs in decreasing doses to an individual to alleviate adverse physiological or psychological effects incident to withdrawal from the continuous or sustained use of a narcotic drug and as a method of bringing the individual to a narcotic drug-free state within a specified period of time. There are two types of detoxification treatments: short-term detoxification treatment and long-term detoxification treatment;  (1) Short-term detoxification treatment is for a period not in excess of thirty days; and  (2) Long-term detoxification treatment is for a period more than thirty days but not in excess of one hundred eighty days.  "Dispense" means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the administering of a practitioner's controlled substances, and packaging, labeling, or compounding necessary to prepare the substance for that delivery. A controlled substance is dispensed when:  (1) It is compounded, prepared, labeled, and packaged pursuant to the lawful order of a practitioner by a licensed pharmacist acting in the usual course of the licensed pharmacist's professional practice and who is either registered individually or employed in a registered pharmacy or by a registered institutional practitioner, for delivery to the ultimate user;  (2) It is compounded, prepared, labeled and packaged for delivery to the ultimate user by a practitioner acting in the usual course of the practitioner's professional practice;  (3) It is prepared, labeled, and packaged pursuant to the lawful order of a practitioner by a registered health care professional acting as an agent of the practitioner for delivery to the ultimate user by the practitioner; or  (4) It is prepackaged by a pharmacist for use in an emergency facility for delivery to the ultimate user by a licensed or registered health care professional pursuant to the order of a physician.  "Dispenser" means a practitioner who dispenses.  "Distribute" means to deliver other than by administering or dispensing a controlled substance.  "Distributor" means a person who distributes.  "Drug" means:  (1) Substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;  (2) Substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animals;  (3) Substances (other than food) intended to affect the structure or any function of the body of man or animals; and  (4) Substances intended for use as a component of any article specified in clause (1), (2), or (3) of this subsection. It does not include devices or their components, parts, or accessories.  "Drug Enforcement Administration registration number" means the practitioner's Drug Enforcement Administration controlled substance registration number.  "Drug paraphernalia" means all equipment, products, and materials of any kind which are used, primarily intended for use, or primarily designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes but is not limited to:  (1) Kits used, primarily intended for use, or primarily designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a prohibited controlled substance can be derived;  (2) Kits used, primarily intended for use, or primarily designed for use in manufacturing, compounding, converting, producing, processing, or preparing prohibited controlled substances;  (3) Isomerization devices used, primarily intended for use, or primarily designed for use in increasing the potency of any species of plant which is a prohibited controlled substance;  (4) Testing equipment used, primarily intended for use, or primarily designed for use in identifying, or in analyzing the strength, effectiveness, or purity of prohibited controlled substances;  (5) Scales and balances used, primarily intended for use, or primarily designed for use in weighing or measuring prohibited controlled substances;  (6) Diluents and adulterants; such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, used, primarily intended for use, or primarily designed for use in cutting prohibited controlled substances;  (7) Separation gins and sifters used, primarily intended for use, or primarily designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, prohibited marijuana;  (8) Blenders, bowls, containers, spoons, and mixing devices used, primarily intended for use, or primarily designed for use in compounding prohibited controlled substances;  (9) Capsules, balloons, envelopes, and other containers used, primarily intended for use, or primarily designed for use in packaging small quantities of prohibited controlled substances;  (10) Containers and other objects used, primarily intended for use, or primarily designed for use in storing or concealing prohibited controlled substances;  (11) Hypodermic syringes, needles, and other objects used, primarily intended for use, or primarily designed for use in parenterally injecting prohibited controlled substances into the human body;  (12) Objects used, primarily intended for use, or primarily designed for use in ingesting, inhaling, or otherwise introducing prohibited marijuana, cocaine, hashish, hashish oil, or methamphetamine into the human body, such as:  (A) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;  (B) Water pipes;  (C) Carburetion tubes and devices;  (D) Smoking and carburetion masks;  (E) Roach clips: meaning objects used to hold burning materials, such as marijuana cigarettes, that have become too small or too short to be held in the hand;  (F) Miniature cocaine spoons, and cocaine vials;  (G) Chamber pipes;  (H) Carburetor pipes;  (I) Electric pipes;  (J) Air-driven pipes;  (K) Chillums;  (L) Bongs; and  (M) Ice pipes or chillers.  In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:  (1) Statements by an owner or by anyone in control of the object concerning its use;  (2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;  (3) The proximity of the object, in time and space, to a direct violation of this chapter;  (4) The proximity of the object to controlled substances;  (5) The existence of any residue of controlled substances on the object;  (6) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to a person or persons whom the owner or person in control knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;  (7) Instructions, oral or written, provided with the object concerning its use;  (8) Descriptive materials accompanying the object which explain or depict its use;  (9) National and local advertising concerning its use;  (10) The manner in which the object is displayed for sale;  (11) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;  (12) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;  (13) The existence and scope of legitimate uses for the object in the community; and  (14) Expert testimony concerning its use.  "Electronic prescription" means a prescription that is generated on an electronic prescription application and transmitted as an electronic data file that complies with all applicable requirements of title 21 Code of Federal Regulations part 1311 and any additional rules adopted by the department.  "Electronic prescription application" means electronic prescription software either as a stand-alone application or as a module in an electronic health record application.  "Electronic signature" means a method of signing an electronic message that identifies a particular person as the source of the message and indicates the person's approval of the information contained in the message.  "Ephedrine" includes any synthetic compound, salt, derivative, mixture, or preparation extracted from the plant (genus) Ephedra that contains the substance ephedrine.  "Exception report" means an output of data indicating schedule II controlled substances dispensation that is outside expected norms for a practitioner practicing a particular specialty or field of health care, for a dispenser doing business in a particular location, or for a patient.  "Hemp" [Definition repealed June 30, 2022. L 2020, c 14,  9.] means all parts of the plant cannabis sativa L., whether growing or not, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, with a delta-9-tetrahydrocannabinol concentration of not more than 0.3 per cent on a dry weight basis, as measured post-decarboxylation or other similarly reliable methods.  "Identification number" means, with respect to a patient:  (1) The patient's unique valid driver's license number or state identification card number, followed by the abbreviation of the state issuing the driver's license or state identification card, or the patient's military identification number;  (2) If the patient is a foreign patient, the patient's passport number;  (3) If the patient does not have a valid driver's license, state identification card, or military identification, the patient's social security number;  (4) If the patient is less than eighteen years of age and has none of the identification referred to in paragraph (1), (2), or (3), the unique number on the valid driver's license, state identification card, military identification, or passport of the patient's parent or guardian; or  (5) If the controlled substance is obtained for an animal, the unique number of the animal's owner as described in paragraph (1), (2), or (3).  "Immediate precursor" means a substance which the department of public safety has found to be and by rule designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit manufacture.  "Locum tenens practitioner" means a practitioner who is licensed in this State and who temporarily substitutes for another practitioner for a period not to exceed sixty days at that other practitioner's registered place of business. Locum tenens practitioners are not eligible to receive an oral code number as designated by section 328-16(k).  "Maintenance treatment" means the dispensing of a narcotic drug in the treatment of an individual for dependence upon heroin or other morphine-like drug, for a period in excess of twenty-one days.  "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for the individual's own use or the preparation, compounding, packaging, or labeling of a controlled substance:  (1) By a practitioner as an incident to the practitioner's administering or dispensing of a controlled substance in the course of the practitioner's professional practice, or  (2) By a practitioner, or by the practitioner's authorized agent under the practitioner's supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.  "Marijuana" [Repeal and reenactment on June 30, 2022. L 2020, c 14,  9.] means all parts of the plant (genus) Cannabis whether growing or not; the seeds thereof, the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.  Marijuana shall not include:  (1) The mature stalks of the plant (genus) Cannabis, fiber produced from the stalks, oil, or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant that is incapable of germination;  (2) Hemp that is in the possession, custody, or control of an individual or entity that holds a license to produce hemp, issued by the Secretary of the United States Department of Agriculture pursuant to title 7 United States Code section 1639q;  (3) Hemp that is in the possession, custody, or control of a person or entity that is authorized under state law to process hemp; and  (4) A product containing or derived from hemp that:  (A) Does not include any living hemp plants, viable seeds, leaf materials, or floral materials; and  (B) Has a delta-9-tetrahydrocannabinol concentration of not more than 0.3 per cent on a dry weight basis, as measured post-decarboxylation or other similarly reliable methods.  "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:  (1) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate.  (2) Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause (1), but not including the isoquinoline alkaloids of opium.  (3) Opium poppy and poppy straw.  (4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.  "Opiate" means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under section 329-11, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.  "Opium poppy" means the plant of the species Papaver somniferum, except its seeds.  "Person" means individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.  "Pharmacist" means a person who is licensed or holds a permit under chapter 461 to practice pharmacy, including a pharmacy intern who is under the immediate and direct supervision of a licensed pharmacist.  "Pharmacy delegate" means an individual employed by the pharmacy and selected by the pharmacist to act as that pharmacist's agent to whom the pharmacist has delegated the task of accessing electronic prescription accountability system information and for whose actions the pharmacist takes full responsibility.  "Physician assistant" means a person licensed under section 453-5.3, who is registered under this chapter to administer, prescribe, or dispense a controlled substance under the authority and supervision of a physician registered under section 329-33, but who is not authorized to request, receive, or sign for professional controlled substance samples.  "Physician-patient relationship" means the collaborative relationship between physicians and their patients. To establish this relationship, the treating physician or the physician's designated member of the health care team, at a minimum shall:  (1) Personally perform a face-to-face history and physical examination of the patient that is appropriate to the specialty training and experience of the physician or the designated member of the physician's health care team, make a diagnosis and formulate a therapeutic plan, or personally treat a specific injury or condition;  (2) Discuss with the patient the diagnosis or treatment, including the benefits of other treatment options; and  (3) Ensure the availability of appropriate follow-up care.  "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.  "Practitioner" means:  (1) A physician, dentist, veterinarian, scientific investigator, or other person licensed and registered under section 329-32 to distribute, dispense, or conduct research with respect to a controlled substance in the course of professional practice or research in this State;  (2) An advanced practice registered nurse with prescriptive authority licensed and registered under section 329-32 to prescribe and administer controlled substances in the course of professional practice in this State; and  (3) A pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this State.  "Practitioner delegate" means an agent or employee of a practitioner (physician, dentist, veterinarian, advanced practice registered nurse with prescriptive authority, or physician assistant) to whom the practitioner has delegated the task of accessing electronic prescription accountability system information and for whose actions the practitioner takes full responsibility.  "Prescribe" means to direct, designate, or order the use of a formula for the preparation of a medicine for a disease or illness and the manner of using them.  "Prescriber" means one who is authorized to issue a prescription.  "Prescription" means an order for medication, which is dispensed to or for an ultimate user. "Prescription" shall not include an order for medication that is dispensed for immediate administration to the ultimate user, such as a chart order to dispense a drug to a bed patient for immediate administration in a hospital.  "Production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.  "Reverse distributor" means a registrant who is registered under section 329-32 to receive controlled substances acquired from another state certified controlled substance registrant pursuant to title 21 Code of Federal Regulations part 1317, for the purpose of:   (1) Returning unwanted, unusable, or outdated controlled substances to the manufacturer or the manufacturer's agent; or   (2) Where necessary, processing such substances or arranging for the processing of such substances for disposal as authorized by the administrator.  "State", when applied to a part of the United States, includes any state, district, commonwealth, territory, insular possession thereof, and any area subject to the legal authority of the United States of America.  "Supervising physician" means a physician licensed to practice medicine in the State and registered under section 329-33, who supervises a physician assistant and retains full professional and legal responsibility for the performance of the supervised physician assistant and the care and treatment of the patient.  "System" means an electronic prescription accountability system as described in part VIII.  "Ultimate user" means a person who lawfully possesses a controlled substance for the person's own use or for the use of a member of the person's household or for administering to an animal owned by the person or by a member of the person's household. [L 1972, c 10, pt of 1; am L 1975, c 163, 7; gen ch 1985; am L 1986, c 214, 1; am L 1988, c 259, 1; am L 1989, c 293, 1; am L 1990, c 13, 1 and c 281,  4, 10; am L 1991, c 159,  3 to 6; am L 1996, c 268, 4; am L 1999, c 90, 1 and c 252, 1; am L 2001, c 203, 1; am L 2004, c 44, 4; am L 2006, c 69, 2; am L 2008, c 186, 2; am L 2009, c 169, 6; am L 2010, c 57, 3; am L 2013, c 20, 2; am L 2016, c 218, 1; am L 2020, c 14, 4] Law Journals and Reviews  Marijuana Prohibition in Hawaii, Steven K. Christensen, 13 HBJ No. 3 Fall 1977, pg. 9. Case Notes  In prosecution under 329-43.5(b), trial court should provide jury with an instruction enumerating all fourteen factors listed in statutory definition of drug paraphernalia. 75 H. 80, 856 P.2d 1246.  No error in court failing to dismiss count against defendant for possessing "everyday household items not intended or designed for use as drug paraphernalia" as broad definition of drug paraphernalia and multiple examples of such contraband enumerated in this section weighed against defendant's contention that the ordinary nature of the containers defendant possessed did not involve the harm or evil sought to be avoided under 329-43.5 or amounted to extenuations that would not have been envisioned by the legislature. 98 H. 196, 46 P.3d 498.
  329-101 Reporting of dispensation of controlled substances; electronic prescription accountability system; requirements; penalty. (a) A controlled substance electronic prescription accountability system shall be established within six months of June 18, 1996.  (b) The designated state agency shall determine those schedules of controlled substances, classes of controlled substances, and specific controlled substances that are purportedly being misused and abused in the State. As part of the controlled substance registration process, all practitioners, except veterinarians, and pharmacies shall be registered with the department to utilize the electronic prescription accountability system. No identified controlled substances may be dispensed unless information relevant to the dispensation of the substance is reported electronically or by means indicated by the designated state agency to the central repository established under section 329-102, in accordance with rules adopted by the department.  (c) The information required by this section shall be transmitted: on an electronic device that is compatible with the receiving device of the central repository; or by computer diskette, magnetic tape, or pharmacy universal claim form that meets the specifications provided in the rules of the designated state agency. The information to be transmitted under subsection (b) shall include at least the following for each dispensation:  (1) The patient's name;  (2) The patient's identification number;  (3) The patient's date of birth;  (4) The patient's address;  (5) The eight-digit national drug code number of the substance dispensed;  (6) The date the prescription was issued;  (7) The date of dispensation;  (8) The quantity and number of refills authorized;  (9) The practitioner's Drug Enforcement Administration registration number;  (10) The pharmacy's National Association of Boards of Pharmacy number and location; and   (11) The practitioner's practice specialty and subspecialties, as determined by the applicable licensure boards.  (d) Under the system:  (1) Information shall be reported in numerical format, not less than once every seven days, on the filling of prescriptions for designated controlled substances and the dispensing of drug samples by a licensed practitioner; and  (2) Each dispenser shall maintain a record of such filled prescriptions, including all information described in subsection (c), for a period of five years. Each dispenser shall keep these records available for inspection and copying by the designated state agency.  (e) The system shall provide for the use of a central repository in accordance with section 329-102. The operation of the system shall be overseen by the designated state agency. The system shall include provisions to protect the confidentiality of information in the system, in accordance with section 329-104.  (f) Intentional or knowing failure to transmit any information as required by this section, including a request by the designated state agency for data corrections, shall be a misdemeanor, may incur administrative fines, and shall result in the immediate suspension of that pharmacy or practitioner's ability to dispense controlled substances in the State until authorized by the administrator. [L 1996, c 268, pt of 2; am L 1997, c 280, 6; am L 1999, c 252, 13; am L 2001, c 203, 8; am L 2008, c 186, 7; am L 2010, c 123, 7; am L 2011, c 73, 4; am L 2016, c 55, 3 and c 218, 16] Revision Note  "June 18, 1996" substituted for "the effective date of this part".
  329-102 Central repository. (a) Except as provided in subsection (b), the transmittal of information under this section shall be made: through an electronic transmitting device that is compatible with the receiving device of the central repository; or by computer diskette, magnetic tape, or other appropriate electronic means that meets the specifications provided by rules of the designated state agency.  (b) The administrator may exempt individual dispensing entities from the electronic information reporting requirements of subsection (a) if:  (1) The imposition of the requirement would result in financial hardship for a particular pharmacy; and  (2) The pharmacy agrees to provide the information to the designated state agency through use of a pharmacy universal claim form.  (c) The administrator, in consultation with the state pharmacist membership organizations and applicable licensure boards, shall develop policies that account for the transmission of data fields in section 329-101 that include unintentional data errors. Data errors collected by the designated state agency shall be presumed to be accidental in nature, unless a pattern of transmission errors occurs as determined by the agency.  (d) The system shall provide for the maintenance of information collected in a central repository that meets the following requirements:  (1) The central repository shall be a data processing system maintained by, or under contract with, the designated state agency. The system shall be capable of aggregating and displaying the collected information in formats required by the designated state agency, including reports showing controlled substances by the:  (A) Practitioner's name, practice specialty and subspecialties, and identifying number or numbers as specified by the designated state agency, including the practitioner's Drug Enforcement Administration registration number;  (B) Pharmacy's name, National Association of Boards of Pharmacy number, and registration number;  (C) Patient's name, identification number, and date of birth; and  (D) Eight-digit national drug code number, frequency of use, quantity, number of refills, and whether new or refill prescription;  (2) The central repository shall provide the designated state agency with continual, twenty-four hour per day, on-line access to information;  (3) The central repository shall secure the information against access by unauthorized persons and shall be subject to review and oversight by the administrator or the administrator's designee, to ensure the security of the information and the system;  (4) If the central repository is not operated by the designated state agency, the vendor-repository:  (A) Shall provide information in response to the designated state agency's inquiries within twenty-four hours and shall provide routine reports on a regular schedule to be specified by the designated state agency; and  (B) Shall not withhold access to the collected information for any reason other than failure of the designated state agency to pay agreed fees and charges for the use of the central repository; and  (5) If the relationship between the designated state agency and the vendor-repository is terminated, the vendor-repository shall provide to the designated state agency within thirty days all collected information, the database maintained by the vendor-repository, and such software as is needed to access the information and the database.  (e) The administrator shall select the most overall cost-effective and efficient computerization system, and automatic data processing services and equipment, to ensure the successful implementation of the system. The administrator may enter into a contract with a vendor to implement the central repository. The repository may include an existing system, such as the State's medicaid management information system, or other existing computerization systems and automated data processing services available to the designated state agency.  (f) All prescriptions for controlled substances in schedules II through V and other substances of concern designated by the designated state agency that are processed by an out-of-state pharmacy shall conform to reporting and registration requirements adopted by the State, and to any additional rules the department adopts. [L 1996, c 268, pt of 2; am L 2008, c 186, 8; am L 2011, c 73, 5]
  329-103 Designated state agency. The designated state agency shall:  (1) Oversee and administer the collection of information under the system;  (2) Control access to the information in the system; and  (3) Produce exception reports as defined in section 329-1. [L 1996, c 268, pt of 2]
  329-104 Confidentiality of information; disclosure of information.  (a) The information collected under this part shall not be available to the public or used for any commercial purpose. Ownership of all data collected shall reside with the State.  (b) Responsibility for limiting access to information in the system is vested in the administrator. Access to the information collected at the central repository pursuant to this part shall be confidential, and access to the information shall be limited to personnel of the designated state agency.  (c) This section shall not prevent the disclosure, at the discretion of the administrator, of investigative information to:  (1) Law enforcement officers, investigative agents of federal, state, or county law enforcement or regulatory agencies, United States attorneys, county prosecuting attorneys, or the attorney general; provided that the administrator has reasonable grounds to believe that the disclosure of any information collected under this part is in furtherance of an ongoing criminal or regulatory investigation or prosecution;  (2) Registrants authorized under chapters 448, 453, and 463E who are registered to administer, prescribe, or dispense controlled substances and their practitioner delegate; provided that the information disclosed relates only to the registrant's own patient;  (3) Pharmacists or pharmacist delegates, employed by a pharmacy registered under section 329-32, who request prescription information about a customer relating to a violation or possible violation of this chapter;  (4) Other state-authorized governmental prescription-monitoring programs;  (5) The chief medical examiner or licensed physician designee who requests information and certifies the request is for the purpose of investigating the death of an individual;  (6) Qualified personnel for the purpose of bona fide research or education; provided that data elements that would reasonably identify a specific recipient, prescriber, or dispenser shall be deleted or redacted from the information prior to disclosure; provided further that release of the information may be made only pursuant to a written agreement between qualified personnel and the administrator in order to ensure compliance with this subsection;  (7) Other entities or individuals authorized by the administrator to assist the program with projects that enhance the electronic prescription accountability system;  (8) Authorized employees of the State of Hawaii department of health alcohol and drug abuse division and the emergency medical services and injury prevention system branch; and  (9) The United States Department of Defense health agency prescription monitoring program. Information disclosed to a registrant, pharmacist, or authorized government agency under this section shall be transmitted by a secure means determined by the designated agency.  (d) No person shall knowingly disclose or attempt to disclose, or use or attempt to use, information in the system in violation of this section. Any person who violates this section is guilty of a class C felony.  (e) The designated state agency shall purge or cause to be purged from the central repository system, no later than five years after the date a patient's prescription data are made available to the designated state agency, the identification number of the patient, unless the information is part of an active investigation. [L 1996, c 268, pt of 2; am L 1999, c 145, 1; am L 2001, c 162, 1; am L 2006, c 69, 6; am L 2009, c 11, 42; am L 2010, c 123, 8; am L 2016, c 218, 17; am L 2019, c 230, 1]
  329-11 Authority to schedule controlled substances. (a) Annually, upon the convening of each regular session of the state legislature, the department of public safety shall report to the legislature additions, deletions, or revisions in the schedules of substances enumerated in sections 329-14, 329-16, 329-18, 329-20, and 329-22, and any other recommendations that it deems necessary. Three months prior to the convening of each regular session, the department of public safety shall post public notice, at the state capitol and in the office of the lieutenant governor for public inspection, of the department's recommendations to the legislature concerning any additions, deletions, or revisions in these schedules; provided that the posting shall not be required if official notice has been received that the substance has been added, deleted, or rescheduled as a controlled substance under federal law. In making a determination regarding a substance, the department of public safety shall assess the degree of danger or probable danger of the substance by considering the following:  (1) The actual or probable abuse of the substance including:  (A) Its history and current pattern of abuse;  (B) The scope, duration, and significance of abuse; and  (C) A judgment of the degree of actual or probable detriment that may result from the abuse of the substance;  (2) The biomedical hazard of the substance including:  (A) Its pharmacology: the effects and modifiers of effects of the substance;  (B) Its toxicology: the acute and chronic toxicity, interaction with other substances whether controlled or not, and liability to psychic or physiological dependence;  (C) Risk to public health and particular susceptibility of segments of the population; and  (D) Existence of therapeutic alternatives for substances that are or may be used for medical purposes;  (3) A judgment of the probable physical and social impact of widespread abuse of the substance;  (4) Whether the substance is an immediate precursor of a substance already controlled under this part; and  (5) The current state of scientific knowledge regarding the substance.  (b) After considering the factors enumerated in subsection (a), the department of public safety shall make a recommendation to the legislature, specifying to what schedule the substance should be added, deleted, or rescheduled if it finds that the substance has a degree of danger or probable danger. The department of public safety may make its recommendation to the legislature prior to the submission of its annual report, in which case the department of public safety shall publish and give notice to the public of the recommendation.  (c) If the legislature designates a substance as an immediate precursor, substances that are precursors of the controlled precursor shall not be subject to control solely because they are precursors of the controlled precursor.  (d) If a substance is added, deleted, or rescheduled as a controlled substance under federal law and notice of the designation is given to the department of public safety, the department of public safety shall recommend that a corresponding change in Hawaii law be made. The department of public safety shall similarly designate the substance as added, deleted, or rescheduled under this chapter, after the expiration of thirty days from publication in the Federal Register of a final order, and this change shall have the effect of law. If a substance is added, deleted, or rescheduled under this subsection, the control shall be temporary and, if the next regular session of the state legislature has not made the corresponding changes in this chapter, the temporary designation of the added, deleted, or rescheduled substance shall be nullified.  (e) The administrator may make an emergency scheduling by placing a substance into schedule I, II, III, IV, or V on a temporary basis, if the administrator determines the action is necessary to address or avoid a current or imminent danger to the health and safety of the public. In making the determination of whether to emergency schedule a substance, the administrator shall assess the degree of danger or probable danger of the substance by considering the following:  (1) The actual or possible abuse of the substance including:  (A) Its history and current pattern of abuse;  (B) The scope, duration, and significance of abuse; and  (C) A judgment of the degree of actual or possible detriment that may result from the abuse of the substance; and  (2) The risk to public health. The department shall post a public notice thirty days prior to the effective date of the emergency scheduling action, at the state capitol, in the office of the lieutenant governor, and on the department's website for public inspection. If a substance is added or rescheduled under this subsection, the control shall be temporary and, if the next regular session of the state legislature has not enacted the corresponding changes in this chapter, the temporary designation of the added or rescheduled substance shall be nullified. [L 1972, c 10, pt of 1; am L 1987, c 113, 1; am L 1990, c 281, 10; am L 1997, c 280, 1 and c 356, 6; am L 2013, c 68, 1] Law Journals and Reviews  The "Grande Iced Nonfat Chai with a Shot of Espresso" Problem: Dealing with Designer Drugs in the Wake of McFadden v. United States. 39 UH L. Rev. 265 (2016).
  329-12 Nomenclature. The controlled substances listed or to be listed in the schedules in sections 329-14, 329-16, 329-18, 329-20, and 329-22 are included by whatever official, common, usual, chemical, or trade name designated. [L 1972, c 10, pt of 1]
Note Part heading amended by L 2017, c 170, 2.  Conforming amendments to title 11 of the Hawaii administrative rules; department of health to make conforming revisions to all documents, letterhead, websites, etc. by December 31, 2019. L 2017, c 170,  3, 4. Cross References Medical cannabis; economic and other data; collection, see 201-13.9.  Medical cannabis; tenant use; eviction, see 521-39.  Medical cannabis testing and research programs, see 304A-1865. Law Journals and Reviews Gonzales v. Raich: How the Medical Marijuana Debate Invoked Commerce Clause Confusion. 28 UH L. Rev. 261.  The "Grande Iced Nonfat Chai with a Shot of Espresso" Problem: Dealing with Designer Drugs in the Wake of McFadden v. United States. 39 UH L. Rev. 265 (2016). Case Notes District court erred in re-determining the fact of medical use in contrast to the parties' stipulation that petitioner possessed and transported medical marijuana under a valid Medical Marijuana Registry Patient Identification Certificate, thus preempting consideration of petitioner's affirmative defense; given that the State presented no evidence showing that the marijuana was for any other use other than a medical use, petitioner proved that petitioner was authorized to possess marijuana for medical purposes pursuant to this part for purposes of an affirmative defense under 712-1240.1(2). 129 H. 397, 301 P.3d 607 (2013).  329-121 Definitions. As used in this part:  "Adequate supply" means an amount of medical cannabis jointly possessed between the qualifying patient and the primary caregiver that is not more than is reasonably necessary to ensure the uninterrupted availability of cannabis for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition; provided that an "adequate supply" shall not exceed: ten cannabis plants, whether immature or mature, and four ounces of usable cannabis at any given time. The four ounces of usable cannabis shall include any combination of usable cannabis and manufactured cannabis products, as provided in chapter 329D, with the cannabis in the manufactured cannabis products being calculated using information provided pursuant to section 329D-9(c).  "Adequate supply for a qualifying out-of-state patient" means an amount of cannabis individually possessed by a qualifying out-of-state patient or jointly possessed by a qualifying out-of-state patient who is under eighteen years old and the caregiver of the qualifying out-of-state patient that is not more than is reasonably necessary to ensure the uninterrupted availability of cannabis for the purpose of alleviating the symptoms or effects of the qualifying out-of-state patient's debilitating medical condition; provided that an "adequate supply for a qualifying out-of-state patient" shall not exceed four ounces of usable cannabis at any given time and shall not include live plants. The four ounces of usable cannabis shall include any combination of usable cannabis and manufactured cannabis products, as provided in chapter 329D; provided that the usable cannabis in the manufactured products shall be calculated using information provided pursuant to section 329D-9(c).  "Advanced practice registered nurse" means an advanced practice registered nurse with prescriptive authority as described in section 457-8.6 and registered under section 329-32.  "Cannabis" shall have the same meaning as "marijuana" and "marijuana concentrate" as provided in sections 329-1 and 712-1240.  "Caregiver of a qualifying out-of-state patient" means a parent, guardian, or person having legal custody of a qualifying out-of-state patient who is under the age of eighteen years.  "Debilitating medical condition" means:  (1) Cancer, glaucoma, lupus, epilepsy, multiple sclerosis, rheumatoid arthritis, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;  (2) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following:  (A) Cachexia or wasting syndrome;  (B) Severe pain;  (C) Severe nausea;  (D) Seizures, including those characteristic of epilepsy;  (E) Severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn's disease; or  (F) Post-traumatic stress disorder; or  (3) Any other medical condition approved by the department of health pursuant to administrative rules in response to a request from a physician or advanced practice registered nurse or potentially qualifying patient.  "Medical use" means the acquisition, possession, cultivation, use, distribution, or transportation of cannabis or paraphernalia relating to the administration of cannabis to alleviate the symptoms or effects of a qualifying patient's debilitating medical condition; provided that "medical use" does not include the cultivation or distribution of cannabis or paraphernalia by a qualifying out-of-state patient or the caregiver of a qualifying out-of-state patient. For the purposes of "medical use", the term "distribution" is limited to the transfer of cannabis and paraphernalia.  "Physician" means a person who is licensed to practice under chapter 453 and is licensed with authority to prescribe drugs and is registered under section 329-32. "Physician" does not include a physician assistant as described in section 453-5.3.  "Primary caregiver" means a person eighteen years of age or older, other than the qualifying patient and the qualifying patient's physician or advanced practice registered nurse, who has agreed to undertake responsibility for managing the well-being of the qualifying patient with respect to the medical use of cannabis. In the case of a minor or an adult lacking legal capacity, the primary caregiver shall be a parent, guardian, or person having legal custody.  "Qualifying out-of-state patient" or "registered qualifying out-of-state patient" means a person who is registered for the medical use of cannabis in another state, a United States territory, or the District of Columbia.  "Qualifying patient" means a person who has been diagnosed by a physician or advanced practice registered nurse as having a debilitating medical condition.  "Usable cannabis" means the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture or preparation thereof, that are appropriate for the medical use of cannabis. "Usable cannabis" does not include the seeds, stalks, and roots of the plant.  "Written certification" means the qualifying patient's medical records or a statement signed by a qualifying patient's physician or advanced practice registered nurse, stating that in the physician's or advanced practice registered nurse's professional opinion, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of cannabis would likely outweigh the health risks for the qualifying patient. The department of health may require, through its rulemaking authority, that all written certifications comply with a designated form. "Written certifications" are valid for one year from the time of signing; provided that the department of health may allow for the validity of any written certification for up to three years if the qualifying patient's physician or advanced practice registered nurse states that the patient's debilitating medical condition is chronic in nature. [L 2000, c 228, pt of 2; am L 2009, c 11, 43 and c 169, 7; am L 2010, c 57, 4; am L 2013, c 178, 2; am L 2015, c 241, 6; am L 2016, c 230, 7; am L 2017, c 41, 2 and c 170, 2; am L 2018, c 116, 4] Revision Note  Definitions of "adequate supply", "cannabis", "medical use", and "usable cannabis": "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15. Case Notes  Rule of lenity required the construction, under the specific facts of the case, of  329-122 and 329-125 and this section against the government, as there was an irreconcilable inconsistency between the authorized transportation of medical marijuana under this section, and the prohibition on transport of medical marijuana through "any ... place open to the public" under [ 329-122(c)(2)(E)]; thus, under 701-115(2)(b), petitioner was entitled to an acquittal because petitioner's evidence, when considered in light of any contrary prosecution evidence proved by a preponderance of the evidence the specified fact or facts with negatived penal liability. 129 H. 397, 301 P.3d 607 (2013).
  329-122 Medical use of cannabis; conditions of use. (a) Notwithstanding any law to the contrary, the medical use of cannabis by a qualifying patient shall be permitted only if:  (1) The qualifying patient has been diagnosed by a physician or advanced practice registered nurse as having a debilitating medical condition;  (2) The qualifying patient's physician or advanced practice registered nurse has certified in writing that, in the physician's or advanced practice registered nurse's professional opinion, the potential benefits of the medical use of cannabis would likely outweigh the health risks for the particular qualifying patient; and  (3) The amount of cannabis possessed by the qualifying patient does not exceed an adequate supply.  (b) Subsection (a) shall not apply to a qualifying patient under the age of eighteen years, unless:  (1) The qualifying patient's physician or advanced practice registered nurse has explained the potential risks and benefits of the medical use of cannabis to the qualifying patient and to a parent, guardian, or person having legal custody of the qualifying patient; and  (2) A parent, guardian, or person having legal custody consents in writing to:  (A) Allow the qualifying patient's medical use of cannabis;  (B) Serve as the qualifying patient's primary caregiver; and  (C) Control the acquisition of the cannabis, the dosage, and the frequency of the medical use of cannabis by the qualifying patient.  (c) Notwithstanding any law to the contrary, the medical use of cannabis within the State by a qualifying out-of-state patient aged eighteen years or older legally authorized to use cannabis for medical purposes in another state, a United States territory, or the District of Columbia shall be permitted only if the qualifying out-of-state patient:  (1) Provides to the department of health a valid medical use of cannabis card with an explicit expiration date that has not yet passed from the issuing jurisdiction and a valid photographic identification card or driver's license issued by the same jurisdiction;  (2) Attests under penalty of law pursuant to section 710-1063 that the condition for which the qualifying out-of-state patient is legally authorized to use cannabis for medical purposes is a debilitating medical condition as defined in section 329-121;  (3) Provides consent for the department of health to obtain information from the qualifying out-of-state patient's certifying medical provider and from the entity that issued the medical cannabis card for the purpose of allowing the department of health to verify the information provided in the registration process;  (4) Pays the required fee for out-of-state registration to use cannabis for medical purposes;  (5) Registers with the department of health pursuant to section 329-123.5 to use cannabis for medical purposes;  (6) Receives a medical cannabis registry card from the department of health; and  (7) Abides by all laws relating to the medical use of cannabis, including not possessing an amount of cannabis that exceeds an adequate supply.  (d) Notwithstanding any law to the contrary, the medical use of cannabis by a qualifying out-of-state patient under eighteen years of age shall only be permitted if:  (1) The caregiver of the qualifying out-of-state patient provides the information required pursuant to subsection (c); and  (2) The caregiver of the qualifying out-of-state patient consents in writing to:  (A) Allow the qualifying out-of-state patient's medical use of cannabis;  (B) Undertake the responsibility for managing the well-being of the qualifying out-of-state patient who is under eighteen years of age with respect to the medical use of cannabis; and  (C) Control the acquisition of the cannabis, the dosage, and the frequency of the medical use of cannabis by the qualifying out-of-state patient who is under eighteen years of age.  (e) The authorization for the medical use of cannabis in this section shall not apply to:  (1) The medical use of cannabis that endangers the health or well-being of another person;  (2) The medical use of cannabis:  (A) In a school bus, public bus, or any moving vehicle;  (B) In the workplace of one's employment;  (C) On any school grounds;  (D) At any public park, public beach, public recreation center, recreation or youth center; or  (E) At any other place open to the public; provided that a qualifying patient, primary caregiver, qualifying out-of-state patient, caregiver of a qualifying out-of-state patient, or an owner or employee of a medical cannabis dispensary licensed under chapter 329D shall not be prohibited from transporting cannabis or any manufactured cannabis product, as that term is defined in section 329D-1, in any public place; provided further that the cannabis or manufactured cannabis product shall be transported in a sealed container, not be visible to the public, and shall not be removed from its sealed container or consumed or used in any way while it is in the public place; and  (3) The use of cannabis by a qualifying patient, parent, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient, for purposes other than medical use permitted by this part.  (f) For the purposes of this section, "transport" means the transportation of cannabis, usable cannabis, or any manufactured cannabis product between:  (1) A qualifying patient and the qualifying patient's primary caregiver;  (2) A qualifying out-of-state patient under eighteen years of age and the caregiver of a qualifying out-of-state patient;  (3) The production centers and the retail dispensing locations under a dispensary licensee's license; or  (4) A production center, retail dispensing location, qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient and a certified laboratory for the purpose of laboratory testing; provided that a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient may only transport up to one gram of cannabis per test to a certified laboratory for laboratory testing and may only transport the product if the qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient:  (A) Secures an appointment for testing at a certified laboratory;  (B) Obtains confirmation, which may be electronic, that includes the specific time and date of the appointment and a detailed description of the product and amount to be transported to the certified laboratory for the appointment; and  (C) Has the confirmation, which may be electronic, available during transport.  For purposes of interisland transportation, "transport" of cannabis, usable cannabis, or any manufactured cannabis product, by any means is allowable only between a production center or retail dispensing location and a certified laboratory for the sole purpose of laboratory testing pursuant to section 329D-8, as permitted under section 329D-6(m) and subject to section 329D-6(j), and with the understanding that state law and its protections do not apply outside of the jurisdictional limits of the State. Allowable transport pursuant to this section does not include interisland transportation by any means or for any purpose between a qualified patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient and any other entity or individual, including an individual who is a qualified patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient. [L 2000, c 228, pt of 2; am L 2001, c 55, 15; am L 2013, c 178, 3; am L 2015, c 241, 7; am L 2016, c 230, 8; am L 2017, c 41, 3 and c 170, 2; am L 2018, c 116, 5] Revision Note  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15. Law Journals and Reviews  Gonzales v. Raich: How the Medical Marijuana Debate Invoked Commerce Clause Confusion. 28 UH L. Rev. 261. Case Notes  Rule of lenity required the construction, under the specific facts of the case, of  329-121 and 329-125 and this section against the government, as there was an irreconcilable inconsistency between the authorized transportation of medical marijuana under 329-121, and the prohibition on transport of medical marijuana through "any ... place open to the public" under subsection [(c)(2)(E)]; thus, under 701-115(2)(b), petitioner was entitled to an acquittal because petitioner's evidence, when considered in light of any contrary prosecution evidence proved by a preponderance of the evidence the specified fact or facts with negatived penal liability. 129 H. 397, 301 P.3d 607 (2013).
 329-123.5 Registration requirements; qualifying out-of-state patient; caregiver of a qualifying out-of-state patient. (a) Notwithstanding section 329-123, a qualifying out-of-state patient and a caregiver of a qualifying out-of-state patient shall register with the department of health as established by rule. The registration shall be effective for no more than sixty days and may be renewed for no more than one additional sixty-day period that begins no later than twelve months after the preceding registration date; provided that the department shall not register any qualifying out-of-state patient for a period that exceeds the term of validity of the qualifying out-of-state patient's authority to use medical cannabis in the qualifying out-of-state patient's home jurisdiction.  (b) A qualifying out-of-state patient aged eighteen or older, at a minimum, shall meet the following criteria for registration:  (1) Provide a valid government-issued medical cannabis card issued to the qualifying out-of-state patient by another state, United States territory, or the District of Columbia; provided that the medical cannabis card has an expiration date and has not expired;  (2) Provide a valid photographic identification card or driver's license issued by the same jurisdiction that issued the medical cannabis card; and  (3) Have a debilitating medical condition, as defined in section 329-121.  (c) A qualifying out-of-state patient under eighteen years of age may be registered pursuant to this section only if the qualifying patient has a debilitating medical condition as defined in section 329-121 and the caregiver of the qualifying out-of-state patient, at a minimum, meets the requirements of paragraphs (1) and (2) of subsection (b) and consents in writing to:  (1) Allow the qualifying out-of-state patient's medical use of cannabis;  (2) Undertake the responsibility for managing the well-being of the qualifying out-of-state patient who is under eighteen years of age, with respect to the medical use of cannabis; and  (3) Control the acquisition of the cannabis, the dosage, and the frequency of the medical use of cannabis by the qualifying out-of-state patient who is under eighteen years of age.  (d) In the case of any qualifying out-of-state patient who is under eighteen years of age, the department of health shall register the qualifying out-of-state patient and the caregiver of the qualifying out-of-state patient; provided that the department may register two caregivers for a qualifying out-of-state patient if each caregiver is the parent, guardian, or person having legal custody of the qualifying out-of-state patient who is under eighteen years of age.  (e) Each qualifying out-of-state patient shall pay a fee in an amount established by rules adopted by the department pursuant to chapter 91 for each registration and renewal.  (f) Upon inquiry by a law enforcement agency, the department of health shall immediately verify whether the subject of the inquiry has registered with the department of health and may provide reasonable access to the registry information for official law enforcement purposes. An inquiry and verification under this subsection may be made twenty-four hours a day, seven days a week.  (g) The department of health may temporarily suspend the registration of a qualifying out-of-state patient or a registered caregiver of a qualifying out-of-state patient for a period of up to thirty days if the department of health determines that the registration process for qualifying patients or primary caregivers is being adversely affected or the supply of cannabis for medical use available in licensed dispensaries is insufficient to serve qualifying patients and qualifying out-of-state patients. A temporary suspension may be extended by thirty-day periods until the department of health determines that:  (1) Adequate capacity exists to register qualifying out-of-state patients and caregivers of qualifying out-of-state patients in addition to qualifying patients and primary caregivers; and  (2) The licensed dispensaries are able to meet the demands of qualifying patients. [L 2018, c 116, 2; am L 2021, c 169, 3]
  329-123 Registration requirements; qualifying patients; primary caregivers. (a) Physicians or advanced practice registered nurses who issue written certifications shall provide, in each written certification, the name, address, patient identification number, and other identifying information of the qualifying patient. The department of health shall require, in rules adopted pursuant to chapter 91, that all written certifications comply with a designated form completed by or on behalf of a qualifying patient. The form shall require information from the applicant, primary caregiver, and physician or advanced practice registered nurse as specifically required or permitted by this chapter. The form shall require the address of the location where the cannabis is grown and shall appear on the registry card issued by the department of health. The certifying physician or advanced practice registered nurse shall be required to have a bona fide physician-patient relationship or bona fide advanced practice registered nurse-patient relationship, as applicable, with the qualifying patient. All current active medical cannabis permits shall be honored through their expiration date.  (b) Qualifying patients shall register with the department of health. The registration shall be effective until the expiration of the certificate issued by the department of health and signed by the physician or advanced practice registered nurse. Every qualifying patient shall provide sufficient identifying information to establish the personal identities of the qualifying patient and the primary caregiver. Qualifying patients shall report changes in information within ten working days. Every qualifying patient shall have only one primary caregiver at any given time. The department of health shall issue to the qualifying patient a registration certificate and may charge a fee for the certificate in an amount adopted by rules pursuant to chapter 91.  (c) Primary caregivers shall register with the department of health. Every primary caregiver shall be responsible for the care of only one qualifying patient at any given time, unless the primary caregiver is the parent, guardian, or person having legal custody of more than one minor qualifying patient, in which case the primary caregiver may be responsible for the care of more than one minor qualifying patient at any given time; provided that the primary caregiver is the parent, guardian, or person having legal custody of all of the primary caregiver's qualifying patients. The department of health may permit registration of up to two primary caregivers for a minor qualifying patient; provided that both primary caregivers are the parent, guardian, or person having legal custody of the minor qualifying patient.  (d) Upon inquiry by a law enforcement agency, which inquiry may be made twenty-four hours a day, seven days a week, the department of health shall immediately verify whether the subject of the inquiry has registered with the department of health and may provide reasonable access to the registry information for official law enforcement purposes.  (e) This section shall not apply to registration of a qualifying out-of-state patient or a caregiver of a qualifying out-of-state patient. [L 2000, c 228, pt of 2; am L 2011, c 73, 6; am L 2013, c 178, 4; am L 2015, c 241, 8; am L 2016, c 230, 9; am L 2017, c 170, 2; am L 2018, c 116, 6; am L 2021, c 169, 2] Revision Note  Pursuant to 23G-15, in:  (1) Subsection (a), "marijuana" changed to "cannabis" to  conform to L 2017, c 170; and  (2) Subsection (c), "up to two" substituted for "up two".
  329-124 Insurance not applicable. This part shall not be construed to require insurance coverage for the medical use of cannabis. [L 2000, c 228, pt of 2; am L 2017, c 170, 2]
  329-125.5 Medical cannabis patient and caregiver protections. (a) No school shall refuse to enroll or otherwise penalize, and no landlord shall refuse to lease property to or otherwise penalize, a person solely for the person's status as a qualifying patient or primary caregiver in the medical cannabis program under this part, unless failing to do so would cause the school or landlord to lose a monetary or licensing-related benefit under federal law or regulation; provided that the qualifying patient or primary caregiver strictly complied with the requirements of this part; provided further that the qualifying patient or primary caregiver shall present a medical cannabis registry card or certificate and photo identification, to ensure that the qualifying patient or primary caregiver is validly registered with the department of health pursuant to section 329-123.  (b) For the purposes of medical care, including organ transplants, a registered qualifying patient's use of cannabis in compliance with this part shall be considered the equivalent of the use of any other medication under the direction of a physician and shall not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care.  (c) No qualifying patient or primary caregiver under this part shall be denied custody of, visitation with, or parenting time with a minor, and there shall be no presumption of neglect or child endangerment, for conduct allowed under this part; provided that this subsection shall not apply if the qualifying patient's or primary caregiver's conduct created a danger to the safety of the minor, as established by a preponderance of the evidence.  (d) This section shall apply to qualifying patients, primary caregivers, qualifying out-of-state patients, and caregivers of qualifying out-of-state patients who are validly registered with the department of health pursuant to this part and the administrative rules of the department of health. [L 2015, c 242, 2; am L 2017, c 170, 2; am L 2018, c 116, 8] Revision Note  In subsection (b), "marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
  329-125.6 Protections afforded to an owner or qualified employee of a licensed medical cannabis dispensary. (a) An owner or employee of a medical cannabis dispensary that is licensed under chapter 329D may assert the production or distribution of medical cannabis as an affirmative defense to any prosecution involving marijuana under this part, part IV, chapter 329D, or part IV of chapter 712; provided that the owner or employee strictly complied with the requirements of chapter 329D and any administrative rules adopted thereunder.  (b) An owner or employee of a licensed medical cannabis dispensary not strictly complying with the requirements of chapter 329D, and any administrative rules adopted thereunder, shall not be afforded the protections provided by subsection (a). [L 2015, c 241, pt of 5; am L 2016, c 230, 11; am L 2017, c 170, 2; am L 2018, c 18, 21]
  329-125 Protections afforded to a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient. (a) A qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient may assert the medical use of cannabis authorized under this part as an affirmative defense to any prosecution involving marijuana under this part, part IV, or part IV of chapter 712; provided that the qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient strictly complied with the requirements of this part.  (b) Any qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient not complying with the permitted scope of the medical use of cannabis shall not be afforded the protections against searches and seizures pertaining to the misapplication of the medical use of cannabis.  (c) No person shall be subject to arrest or prosecution for simply being in the presence or vicinity of the medical use of cannabis as permitted under this part. [L 2000, c 228, pt of 2; am L 2016, c 230, 10; am L 2017, c 170, 2; am L 2018, c 18, 20 and c 116, 7] Case Notes  Rule of lenity required the construction, under the specific facts of the case, of  329-121 and 329-122 and this section against the government, as there was an irreconcilable inconsistency between the authorized transportation of medical marijuana under 329-121, and the prohibition on transport of medical marijuana through "any ... place open to the public" under [ 329-122(c)(2)(E)]; thus, under 701-115(2)(b), petitioner was entitled to an acquittal because petitioner's evidence, when considered in light of any contrary prosecution evidence proved by a preponderance of the evidence the specified fact or facts with negatived penal liability. 129 H. 397, 301 P.3d 607 (2013).
  329-126 Protections afforded to a treating physician or advanced practice registered nurse. (a) No physician or advanced practice registered nurse shall be subject to arrest or prosecution, penalized in any manner, or denied any right or privilege for providing written certification for the medical use of cannabis for a qualifying patient; provided that:  (1) The physician or advanced practice registered nurse has diagnosed the patient as having a debilitating medical condition, as defined in section 329-121;  (2) The physician or advanced practice registered nurse has explained the potential risks and benefits of the medical use of cannabis, as required under section 329-122;  (3) The written certification is based upon the physician's or advanced practice registered nurse's professional opinion after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship or bona fide advanced practice registered nurse-patient relationship, as applicable; and  (4) The physician or advanced practice registered nurse has complied with the registration requirements of section 329-123.  (b) For purposes of this section, a bona fide physician-patient relationship may be established via telehealth, as defined in section 453-1.3(j), and a bona fide advanced practice registered nurse-patient relationship may be established via telehealth, as defined in section 457-2; provided that treatment recommendations that include certifying a patient for the medical use of cannabis via telehealth shall be allowed only after an initial in-person consultation between the certifying physician or advanced practice registered nurse and the patient. [L 2000, c 228, pt of 2; am L 2016, c 230, 12; am L 2017, c 170, 2; am L 2018, c 116, 24]
  329-127 Protection of cannabis and other seized property. (a) Cannabis, paraphernalia, or other property seized from a qualifying patient or primary caregiver in connection with a claimed medical use of cannabis under this part shall be returned immediately upon the determination by a court that the qualifying patient or primary caregiver is entitled to the protections of this part, as evidenced by a decision not to prosecute, dismissal of charges, or an acquittal; provided that law enforcement agencies seizing live plants as evidence shall not be responsible for the care and maintenance of such plants.  (b) This section shall also apply to qualifying out-of-state patients and caregivers of qualifying out-of-state patients who are validly registered with the department of health pursuant to this part and the administrative rules of the department of health; provided that notwithstanding subsection (a) to the contrary, under no circumstances shall cannabis, paraphernalia, or other property be returned to any location outside of the island from which it was seized. [L 2000, c 228, pt of 2; am L 2017, c 170, 2; am L 2018, c 116, 9] Revision Note  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
  329-128 Fraudulent misrepresentation; penalty. (a) Notwithstanding any law to the contrary, fraudulent misrepresentation to a law enforcement official of any fact or circumstance relating to the medical use of cannabis to avoid arrest or prosecution under this part or chapter 712 shall be a petty misdemeanor and subject to a fine of $500.  (b) Notwithstanding any law to the contrary, fraudulent misrepresentation to a law enforcement official of any fact or circumstance relating to the issuance of a written certificate by a physician or advanced practice registered nurse not covered under section 329-126 for the medical use of cannabis shall be a misdemeanor. This penalty shall be in addition to any other penalties that may apply for the non-medical use of cannabis.  (c) Notwithstanding any law to the contrary, fraudulent misrepresentation to the department of an entitlement to use cannabis for medical purposes in another state, a United States territory, or the District of Columbia for the purpose of registering as a qualifying out-of-state patient or caregiver of a qualifying out-of-state patient shall be a misdemeanor. This penalty shall be in addition to any other penalties that may apply for the non-medical use of cannabis.  (d) Nothing in this section is intended to preclude the conviction of any person under section 710-1060 or for any other offense under part V of chapter 710 or any other offense. [L 2000, c 228, pt of 2; am L 2016, c 230, 13; am L 2017, c 170, 2; am L 2018, c 116, 10]
  329-129 Prohibited acts; flammable solvents. (a) No qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient shall use butane to extract tetrahydrocannabinol from cannabis plants.  (b) Any person who violates this section shall be guilty of a class C felony. [L 2015, c 241, pt of 5; am L 2018, c 116, 11] Revision Note  In subsection (a), "marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
  329-13 Schedule I tests. A substance shall be placed in schedule I if it has the highest degree of danger or probable danger according to the determination made pursuant to section 329-11. [L 1972, c 10, pt of 1]
  329-130 Authorized sources of medical cannabis. (a) After December 31, 2023, a qualifying patient shall obtain medical cannabis or manufactured cannabis products only:  (1) From a dispensary licensed pursuant to chapter 329D; provided that the cannabis shall be purchased and paid for at the time of purchase; or  (2) By cultivating cannabis in an amount that does not exceed an adequate supply for the qualifying patient, pursuant to section 329-122; provided that each location used to cultivate cannabis shall be used by no more than five qualifying patients. After December 31, 2023, no primary caregiver shall be authorized to cultivate cannabis for any qualifying patient.  (b) This section shall not apply to:  (1) A qualifying patient who is a minor or an adult lacking legal capacity and the primary caregiver is the parent, guardian, or person having legal custody of a qualifying patient described in this paragraph; or  (2) A qualifying patient on any island on which there is no medical cannabis dispensary licensed pursuant to chapter 329D.  (c) A qualifying out-of-state patient and a caregiver of a qualifying out-of-state patient shall be authorized to obtain cannabis for medical use only from retail dispensing locations of dispensaries licensed pursuant to chapter 329D. [L 2015, c 241, pt of 5; am L 2017, c 41, 4 and c 170, 2; am L 2018, c 116, 12] Revision Note  In subsection (a), "marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
  329-131 Prescription and pharmacy requirements not applicable. Notwithstanding any other law to the contrary, the prescription requirements of section 329-38 and the board of pharmacy licensure or regulatory requirements under chapter 461 shall not apply to the medical use of cannabis under this part. [L 2015, c 241, pt of 5; am L 2017, c 170, 2]
  329-14 Schedule I. (a) The controlled substances listed in this section are included in schedule I.  (b) Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, unless specifically excepted, whenever the existence of these isomers, esters, ethers, and salts is possible within the specific chemical designation:  (1) Acetyl-alpha-methylfentanyl (N-[1-(1-methyl-2-phenethyl)-4-piperidinyl]-N-phenylacetamide);  (2) Acetylmethadol;  (3) Allylprodine;  (4) Alphacetylmethadol (except levo-alphacetylmethadol, levomethadyl acetate, or LAAM);  (5) Alphameprodine;  (6) Alphamethadol;  (7) Alpha-methylfentanyl (N-[1-(alpha-methyl-beta-phenyl)ethyl-4-piperidyl] propionanilide; 1-(1-methyl-2-phenylethyl)-4-(N-propanilido) piperidine);  (8) Alpha-methylthiofentanyl (N-[1-methyl-2-(2-thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide);  (9) Benzethidine;  (10) Betacetylmethadol;  (11) Beta-hydroxyfentanyl (N-[1-(2-hydroxy-2-phenethyl)-4-piperidinyl]-N-phenylpropanamide);  (12) Beta-hydroxy-3-methylfentanyl (N-[1-(2-hydroxy-2-phenethyl)-3-methyl-4-piperidinyl]-N-phenylpropanamide);  (13) Betameprodine;  (14) Betamethadol;  (15) Betaprodine;  (16) Clonitazene;  (17) Dextromoramide;  (18) Diampromide;  (19) Diethylthiambutene;  (20) Difenoxin;  (21) Dimenoxadol;  (22) Dimepheptanol;  (23) Dimethylthiambutene;  (24) Dioxaphetyl butyrate;  (25) Dipipanone;  (26) Ethylmethylthiambutene;  (27) Etonitazene;  (28) Etoxeridine;  (29) Furethidine;  (30) Hydroxypethidine;  (31) Ketobemidone;  (32) Levomoramide;  (33) Levophenacylmorphan;  (34) 3-Methylfentanyl (N-[3-methyl-1-(2-phenylethyl)-4-piperidyl]-N-phenylpropanamide);  (35) 3-methylthiofentanyl (N-[3-methyl-1-(2-thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide);  (36) Morpheridine;  (37) MPPP (1-methyl-4-phenyl-4-propionoxypiperidine);  (38) Noracymethadol;  (39) Norlevorphanol;  (40) Normethadone;  (41) Norpipanone;  (42) Para-fluorofentanyl (N-(4-fluorophenyl)-N-[1-(2-phenethyl)-4-piperidinyl] propanamide;  (43) PEPAP (1-(-2-phenethyl)-4-phenyl-4-acetoxypiperidine;  (44) Phenadoxone;  (45) Phenampromide;  (46) Phenomorphan;  (47) Phenoperidine;  (48) Piritramide;  (49) Proheptazine;  (50) Properidine;  (51) Propiram;  (52) Racemoramide;  (53) Thiofentanyl (N-phenyl-N-[1-(2-thienyl)ethyl-4-piperidinyl]-propanamide);  (54) Tilidine;  (55) Trimeperidine;  (56) N-[1-benzyl-4-piperidyl]-N-phenylpropanamide (benzylfentanyl), its optical isomers, salts, and salts of isomers;  (57) N-[1-(2-thienyl)methyl-4-piperidyl]-N-phenylpropanamide (thenylfentanyl), its optical isomers, salts, and salts of isomers;  (58) N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide, (acetyl fentanyl), its optical, positional, and geometric isomers, salts, and salts of isomers;   (59) AH-7921 (3,4-dichloro-N-[(1-dimethylamino) cyclohexylmethyl]benzamide), its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers;  (60) N-(1-phenethylpiperidin-4-yl)-N-phenylbutyramide, its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers (Other names: Butyryl fentanyl);  (61) N-[1-[2-hydroxy-2-(thiophen-2-yl)ethyl]piperidin-4-yl]-N-phenylpropionamide, its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers (Other names: beta-hydroxythiofentanyl);  (62) N-(1-phenethylpiperidin-4-yl)-N-phenylfuran-2-carboxamide, its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers (Other names: Furanyl fentanyl);  (63) 3,4-dichloro-N-[2-(dimethylamino)cyclohexyl]-N-methylbenzamide, its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers (Other names: U-47700);  (64) 4-fluoroisobutyryl fentanyl or para-fluoroisobutyryl fentanyl [N-(4-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)isobutyramide];  (65) Acryl fentanyl or acryloylfentanyl [N-(1-phenethylpiperidin-4-yl)-N-phenylacrylamide];  (66) Ocfentanil [N-(2-fluorophenyl)-2-methoxy-N-(1-phenethylpiperidin-4-yl)acetamide];  (67) Cyclopropyl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylcyclopropanecarboxamide;  (68) Methoxyacetyl fentanyl (2-methoxy-N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide);  (69) Ortho-fluorofentanyl (N-(2-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)propionamide) (Other name: 2-fluorofentanyl); and  (70) Para-fluorobutyryl fentanyl (N-(4-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)butyramide).  (c) Any of the following opium derivatives, their salts, isomers, and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation:  (1) Acetorphine;  (2) Acetyldihydrocodeine;  (3) Benzylmorphine;  (4) Codeine methylbromide;  (5) Codeine-N-Oxide;  (6) Cyprenorphine;  (7) Desomorphine;  (8) Dihydromorphine;  (9) Drotebanol;  (10) Etorphine;  (11) Heroin;  (12) Hydromorphinol;  (13) Methyldesorphine;  (14) Methyldihydromorphine;  (15) Morphine methylbromide;  (16) Morphine methylsulfonate;  (17) Morphine-N-Oxide;  (18) Myrophine;  (19) Nicocodeine;  (20) Nicomorphine;  (21) Normorphine;  (22) Phoclodine; and  (23) Thebacon.  (d) Any material, compound, mixture, or preparation that contains any quantity of the following hallucinogenic substances, their salts, isomers, and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation:  (1) Alpha-ethyltryptamine (AET);  (2) 2,5-dimethoxy-4-ethylamphetamine (DOET);  (3) 2,5-dimethoxyamphetamine (2,5-DMA);  (4) 3,4-methylenedioxy amphetamine;  (5) 3,4-methylenedioxymethamphetamine (MDMA);  (6) N-hydroxy-3,4-methylenedioxyamphetamine (N-hydroxy-MDA);  (7) 3,4-methylenedioxy-N-ethylamphetamine (MDE);  (8) 5-methoxy-3,4-methylenedioxy-amphetamine;  (9) 4-bromo-2,5-dimethoxy-amphetamine (4-bromo-2,5-DMA);  (10) 4-Bromo-2,5-dimethoxyphenethylamine (Nexus);  (11) 3,4,5-trimethoxy amphetamine;  (12) Bufotenine;  (13) 4-methoxyamphetamine (PMA);  (14) Diethyltryptamine;  (15) Dimethyltryptamine;  (16) 4-methyl-2,5-dimethoxy-amphetamine;  (17) Gamma hydroxybutyrate (GHB) (some other names include gamma hydroxybutyric acid; 4-hydroxybutyrate; 4-hydroxybutanoic acid; sodium oxybate; sodium oxybutyrate);  (18) Ibogaine;  (19) Lysergic acid diethylamide;  (20) Marijuana;  (21) Parahexyl;  (22) Mescaline;  (23) Peyote;  (24) N-ethyl-3-piperidyl benzilate;  (25) N-methyl-3-piperidyl benzilate;  (26) Psilocybin;  (27) Psilocyn;  (28) 1-1-(2-Thienyl) cyclohexyl Pyrrolidine (TCPy);  (29) Ethylamine analog of phencyclidine (PCE);  (30) Pyrrolidine analog of phencyclidine (PCPy, PHP);  (31) Thiophene analog of phencyclidine (TPCP; TCP);  (32) Gamma-butyrolactone, including butyrolactone; butyrolactone gamma; 4-butyrolactone; 2(3H)-furanone dihydro; dihydro-2(3H)furanone; tetrahydro-2-furanone; 1,2-butanolide; 1,4-butanolide; 4-butanolide; gamma-hydroxybutyric acid lactone; 3-hydroxybutyric acid lactone and 4-hydroxybutanoic acid lactone with Chemical Abstract Service number 96-48-0 when any such substance is intended for human ingestion;  (33) 1,4 butanediol, including butanediol; butane-1,4-diol; 1,4- butylenes glycol; butylene glycol; 1,4-dihydroxybutane; 1,4- tetramethylene glycol; tetramethylene glycol; tetramethylene 1,4- diol with Chemical Abstract Service number 110-63-4 when any such substance is intended for human ingestion;  (34) 2,5-dimethoxy-4-(n)-propylthiophenethylamine (2C-T-7), its optical isomers, salts, and salts of isomers;  (35) N-benzylpiperazine (BZP; 1-benzylpiperazine) its optical isomers, salts, and salts of isomers;  (36) 1-(3-trifluoromethylphenyl)piperazine (TFMPP), its optical isomers, salts, and salts of isomers;  (37) Alpha-methyltryptamine (AMT), its isomers, salts, and salts of isomers;  (38) 5-methoxy-N,N-diisopropyltryptamine (5-MeO-DIPT), its isomers, salts, and salts of isomers;  (39) Salvia divinorum;  (40) Salvinorin A;  (41) Divinorin A;  (42) 5-Methoxy-N,N-Dimethyltryptamine (5-MeO-DIPT) (some trade or other names: 5-methoxy-3-[2-(dimethylamino)ethyl]indole; 5-MeO-DMT);  (43) 2-(2,5-Dimethoxy-4-ethylphenyl)ethanamine (2C-E);  (44) 2-(2,5-Dimethoxy-4-methylphenyl)ethanamine (2C-D);  (45) 2-(4-Chloro-2,5-dimethoxyphenyl)ethanamine (2C-C);  (46) 2-(4-Iodo-2,5-dimethoxyphenyl)ethanamine (2C-I);  (47) 2-[4-(Ethylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-2);  (48) 2-[4-(Isopropylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-4);  (49) 2-(2,5-Dimethoxyphenyl)ethanamine (2C-H);  (50) 2-(2,5-Dimethoxy-4-nitro-phenyl)ethanamine (2C-N);  (51) 2-(2,5-Dimethoxy-4-(n)-propylphenyl)ethanamine (2C-P);  (52) 2-(4-iodo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine, its optical, positional, and geometric isomers, salts, and salts of isomers (Other names: 25I-NBOMe; 2C-I-NBOMe; 25I; Cimbi-5);  (53) 2-(4-chloro-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine, its optical, positional, and geometric isomers, salts, and salts of isomers (Other names: 25C-NBOMe; 2C-C-NBOMe; 25C; Cimbi-82); and  (54) 2-(4-bromo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine, its optical, positional, and geometric isomers, salts, and salts of isomers (Other names: 25B-NBOMe; 2C-B-NBOMe; 25B; Cimbi-36).  (e) Depressants. Unless specifically excepted, the schedule shall include any material, compound, mixture, or preparation which contains any quantity of the substance:  (1) Mecloqualone;  (2) Methaqualone;  (3) Etizolam (including its optical, positional, and geometric isomers, salts, and salts of isomers, where possible); or  (4) Flualprazolam (including its optical, positional, and geometric isomers, salts, and salts of isomers, where possible).  (f) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers:  (1) Aminorex;  (2) Cathinone;  (3) Fenethylline;  (4) Methcathinone;  (5) N-ethylamphetamine;  (6) 4-methylaminorex;  (7) N,N-dimethylamphetamine; and  (8) Substituted cathinones, any compound, except bupropion or compounds listed under a different schedule, structurally derived from 2-aminopropan-1-one by substitution at the 1-position with either phenyl, naphthyl, or thiophene ring systems, whether or not the compound is further modified in any of the following ways:  (A) By substitution in the ring system to any extent with alkyl, alkylenedioxy, alkoxy, haloalkyl, hydroxyl, or halide substituents, whether or not further substituted in the ring system by one or more other univalent substituents;  (B) By substitution at the 3-position with an acyclic alkyl substituent; or  (C) By substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl, or methoxybenzyl groups, or by inclusion of the 2-amino nitrogen atom in a cyclic structure.  Some other trade names: Mephedrone (2-methylamino-1-p-tolylpropan-1-one), also known as 4-methylmethcathinone (4-MMC), methylephedrone or MMCAT; Methylenedioxypyrovalerone (MDPV, MDPK); methylone or 3,4-methylenedioxymethcathinone; and 1-(benzo[d][1,3]dioxol-5-yl)-2-(ethylamino)propan-1-one, monohydrochloride, also known as Ethylone, bk-MDEA hydrochloride, MDEC; 3,4-Methylenedioxy-N-ethylcathinone; bk-Methylenedioxyethylamphetamine, 4-methyl-N-ethylcathinone (4-MEC); 4-methyl-alpha-pyrrolidinopropiophenone (4-MePPP); alpha-pyrrolidinopentiophenone ([alpha]-PVP); 1-(1,3-benzodioxol-5-yl)-2-(methylamino)butan-1-one (butylone, bk-MBDB e); 2-(methylamino)-1-phenylpentan-1-one (pentedrone); 1-(1,3-benzodioxol-5-yl)-2-(methylamino)pentan-1-one (pentylone, bk-MBDP); 4-fluoro-N-methylcathinone (4-FMC, flephedrone); 3-fluoro-N-methylcathinone (3-FMC); 1-(naphthalen-2-yl)-2-(pyrrolidin-1-yl)pentan-1-one (naphyrone); alpha-pyrrolidinobutiophenone ([alpha]-PBP) and their optical, positional, and geometric isomers, salts and salts of isomers, whenever the existence of such salts, isomers, and salts of isomers is possible.  (g) Any of the following cannabinoids, their salts, isomers, and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation:  (1) Tetrahydrocannabinols; meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, sp. or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant, such as the following: Delta 1 cis or trans tetrahydrocannabinol, and their optical isomers; Delta 6 cis or trans tetrahydrocannabinol, and their optical isomers; and Delta 3,4 cis or trans-tetrahydrocannabinol, and its optical isomers (since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions, are covered);  (2) Naphthoylindoles; meaning any compound containing a 3-(1-naphthoyl)indole structure with substitution at the nitrogen atom of the indole ring by a alkyl, haloalkyl, alkenyl, cycloalkylmethyl,cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent;  (3) Naphthylmethylindoles; meaning any compound containing a 1H-indol-3-yl-(1-naphthyl) methane structure with substitution at the nitrogen atom of the indole ring by a alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl) methyl or 2-(4-morpholinyl) ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent;  (4) Naphthoylpyrroles; meaning any compound containing a 3-(1-naphthoyl)pyrrole structure with substitution at the nitrogen atom of the pyrrole ring by a alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl or 2-(4-morpholinyl) ethyl group whether or not further substituted in the pyrrole ring to any extent, whether or not substituted in the naphthyl ring to any extent;  (5) Naphthylmethylindenes; meaning any compound containing a naphthylideneindene structure with substitution at the 3-position of the indene ring by a alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl) methyl or 2-(4-morpholinyl) ethyl group whether or not further substituted in the indene ring to any extent, whether or not substituted in the naphthyl ring to any extent;  (6) Phenylacetylindoles; meaning any compound containing a 3-phenylacetylindole structure with substitution at the nitrogen atom of the indole ring by a alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl) methyl or 2-(4-morpholinyl) ethyl group whether or not further substituted in the indole ring to any extent, whether or not substituted in the phenyl ring to any extent;  (7) Cyclohexylphenols; meaning any compound containing a 2-(3-hydroxycyclohexyl) phenol structure with substitution at the 5-position of the phenolic ring by a alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl) methyl or 2-(4-morpholinyl) ethyl group whether or not substituted in the cyclohexyl ring to any extent;  (8) Benzoylindoles; meaning any compound containing a 3-(benzoyl) indole structure with substitution at the nitrogen atom of the indole ring by a alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl) methyl, or 2-(4-morpholinyl) ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent;  (9) [2,3-Dihydro-5-methyl-3-(4-morpholinylmethyl) pyrrolo[1,2,3-de]-1, 4-benzoxazin-6-yl]-1-naphthalenylmethanone (another trade name is WIN 55,212-2);  (10) (6a,10a)-9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol (Other trade names are: HU-210/HU-211);  (11) Tetramethylcyclopropanoylindoles; meaning any compound containing a 3-tetramethylcyclopropanoylindole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the tetramethylcyclopropyl ring to any extent;  (12) N-(1-adamantyl)-1-pentyl-1H-indazole-3-carboxamide, its optical, positional, and geometric isomers, salts, and salts of isomers (Other names: APINACA, AKB48);  (13) Quinolin-8-yl 1-pentyl-1H-indole-3-carboxylate, its optical, positional, and geometric isomers, salts, and salts of isomers (Other names: PB-22; QUPIC);  (14) Quinolin-8-yl 1-(5fluoropentyl)-1H-indole-3-carboxylate, its optical, positional, and geometric isomers, salts, and salts of isomers (Other names: 5-fluoro-PB-22; 5F-PB-22);  (15) N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1H-indazole-3-carboxamide, its optical, positional, and geometric isomers, salts, and salts of isomers (Other names: AB-FUBINACA);  (16) N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-pentyl-1H-indazole-3-carboxamide, its optical, positional, and geometric isomers, salts, and salts of isomers (Other names: ADB-PINACA);  (17) N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-carboxamide, its optical, positional, and geometric isomers, salts, and salts of isomers (Other names: AB-CHMINACA);  (18) N-(1-amino-3-methyl-1-oxobutan-2-yl)-1-pentyl-1H-indazole-3-carboxamide, and geometric isomers, salts, and salts of isomers (Other names: AB-PINACA);  (19) [1-(5-fluoropentyl)-1H-indazol-3-yl](naphthalen-1-yl)methanone, and geometric isomers, salts, and salts of isomers (Other names: THJ-2201);  (20) Methyl (1-(4-fluorobenzyl)-1H-indazole-3-carbonyl)-L-valinate, and geometric isomers, salts, and salts of isomers (Other names: FUB-AMB, Methyl 2-(1-(4-fluorobenzyl)-1H-indazole-3-carboxamido)-3-methylbutanoate, MMB-FUBINACA, AMB-FUBINACA);  (21) (S)-methyl 2-(1-(5-fluoropentyl)-1H-indazole-3-carboxamido)-3-methylbutanoate, and geometric isomers, salts, and salts of isomers (Other names: 5-fluoro-AMB, 5-fluoro-AMP);  (22) N-((3s,5s,7s)-adamantan-1-yl)-1-(5-fluoropentyl)-1H-indazole-3-carboxamide, and geometric isomers, salts, and salts of isomers (Other names: AKB48 N-(5-fluoropentyl) analog, 5F-AKB48, APINACA 5-fluoropentyl analog, 5F-APINACA);  (23) N-adamantyl-1-fluoropentylindole-3-Carboxamide, and geometric isomers, salts, and salts of isomers (Other names: STS-135, 5F-APICA; 5-fluoro-APICA);  (24) Naphthalen-1-yl 1-(5-fluoropentyl)-1H-indole-3-carboxylate, and geometric isomers, salts, and salts of isomers (Other names: NM2201);  (25) N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-carboxamide, and geometric isomers, salts, and salts of isomers (Other names: MAB-CHMINACA and ADB-CHMINACA);  (26) Methyl 2-[1-(5-fluoropentyl)-1H-indazole-3-carboxamido]-3,3-dimethylbutanoate (Other names: 5F-ADB, 5-flouro-ADB, and 5F-MDMB-PINACA), its optical, positional, and geometric isomers, salts, and salts of isomers; and  (27) 1-(4-cyanobutyl)-N-(2-phenylpropan-2-yl)indazole-3-carboxamide (CUMYL-4CN-BINACA), its optical, positional, and geometric isomers, salts, and salts of isomers; also known as SGT-78, 4-CN-CUMYL-BINACA; CUMYL-CB-PINACA; CUMYL-CYBINACA; 4-cyano CUMYL-BUTINACA. [L 1972, c 10, pt of 1; am L 1974, c 217, 1; am L 1977, c 116, 1; am L 1978, c 68, 2; am L 1979, c 194, 1; am L 1980, c 140, 1 and c 232, 16; am L 1984, c 166, 1; am L 1985, c 150, 1; am L 1986, c 214,  2, 3; am L 1988, c 59, 1; am L 1990, c 138, 3; am L 1993, c 8, 1; am L 1995, c 122, 1; am L 1997, c 356, 1; am L 1999, c 252, 2; am L 2000, c 98, 1; am L 2001, c 203, 2; am L 2003, c 151,  1, 2; am L 2008, c 119, 3; am L 2010, c 123, 1; am L 2011, c 73, 1; am L 2012, c 29, 1; am L 2013, c 48, 1; am L 2014, c 54, 1; am L 2015, c 195, 1; am L 2016, c 218,  2, 3; am L 2017, c 155, 1; am L 2018, c 190, 1; am L 2020, c 27, 2 and c 70, 48; am L 2021, c 233, 1] Case Notes  Proscription of distribution of lysergic acid "diethylamine" under this section (1974) cannot be extended by analogy under 701-104 to distribution of lysergic acid diethylamide. 61 H. 74, 595 P.2d 288.
  329-15 Schedule II tests. A substance shall be placed in schedule II if it has a high degree of danger or probable danger according to the determination made pursuant to section 329-11. [L 1972, c 10, pt of 1]
  329-16 Schedule II. (a) The controlled substances listed in this section are included in schedule II.  (b) Any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:  (1) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, excluding apomorphine, thebaine-derived butorphanol, dextrorphan, nalbuphine, nalmefene, naloxegol, naloxone, and naltrexone, and their respective salts, but including the following:  (A) Raw opium;  (B) Opium extracts;  (C) Opium fluid;  (D) Powdered opium;  (E) Granulated opium;  (F) Codeine;  (G) Ethylmorphine;  (H) Etorphine hydrochloride;  (I) Hydrocodone;  (J) Hydromorphone;  (K) Metopon;  (L) Morphine;  (M) Oxycodone;  (N) Oxymorphone;  (O) Thebaine;  (P) Dihydroetorphine;  (Q) Oripavine; and  (R) Tincture of opium;  (2) Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in paragraph (1), but not including the isoquinoline alkaloids of opium;  (3) Opium poppy and poppy straw;  (4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocanized coca leaves or extractions which do not contain cocaine or ecgonine; cocaine or any salt or isomer thereof; and  (5) Concentrate of poppy straw (the crude extract of poppy straw in either liquid, solid, or powder form that contains the phenanthrene alkaloids of the opium poppy).  (c) Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, whenever the existence of these isomers, esters, ethers, and salts is possible within the specific chemical designation:  (1) Alfentanil;  (2) Alphaprodine;  (3) Anileridine;  (4) Bezitramide;  (5) Bulk Dextropropoxyphene (nondosage form);  (6) Carfentanil;  (7) Dihydrocodeine;  (8) Diphenoxylate;  (9) Fentanyl;  (10) Isomethadone;  (11) Levo-alphacetylmethadol (LAAM);  (12) Levomethorphan;  (13) Levorphanol;  (14) Metazocine;  (15) Methadone;  (16) Methadone-Intermediate, 4-cyano-2-dimethylamino-4, 4-diphenyl butane;  (17) Moramide-Intermediate, 2-methyl-3-morpholino-1, 1-diphenyl-propane-carboxylic acid;  (18) Pethidine (Meperidine);  (19) Pethidine-Intermediate-A, 4-cyano-1-methyl-4-phenylpiperidine;  (20) Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-4-carboxylate;  (21) Pethidine-Intermediate-C, 1-methyl-4-phenylpiperidine-4-carboxylic acid;  (22) Phenazocine;  (23) Piminodine;  (24) Racemethorphan;  (25) Racemorphan;  (26) Remifentanil;  (27) Sufentanil;  (28) Tapentadol; and  (29) Thiafentanil.  (d) Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, unless specifically excepted, whenever the existence of these isomers, esters, ethers, and salts is possible within the specific chemical designation:  (1) Amobarbital;  (2) Glutethimide;  (3) Pentobarbital;  (4) Phencyclidine;  (5) Secobarbital.  (e) Stimulants. Any material, compound, mixture, or preparation which contains any quantity of the following substances having a danger or probable danger associated with a stimulant effect on the central nervous system:  (1) Amphetamine, its salts, optical isomers, and salts of its optical isomers;  (2) Any substance which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers;  (3) Phenmetrazine and its salts;  (4) Methylphenidate; and  (5) Lisdexamfetamine, its salts, isomers, and salts of its isomers.  (f) Immediate precursor. Unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances:  (1) Immediate precursor to amphetamine and methamphetamine:  (A) Phenylacetone, phenyl-2-propanone(P2P), benzyl methyl ketone, methyl benzyl ketone;  (2) Immediate precursors to phencyclidine (PCP):  (A) 1-phenylcyclohexylamine; or  (B) 1-piperidinocyclohexanecarbonitrile(PCC); or  (3) Immediate precursor to Fentanyl:  (A) 4-anilino-N-phenethyl-4-piperidine (ANPP); or  (B) N-phenyl-N-(piperidin-4-yl)propionamide (norfentanyl).  (g) Hallucinogenic substances, unless listed in another schedule, shall include:  (1) Nabilone; and  (2) Dronabinol (-)-delta-9-trans tetrahydrocannabinol in an oral solution in a drug product approved for marketing by the United States Food and Drug Administration. [L 1972, c 10, pt of 1 and am c 114, 2(2); am L 1974, c 217, 2; am L 1975, c 26, 1; am L 1978, c 68, 3; am L 1979, c 194, 2; am L 1981, c 125,  1, 2; am L 1984, c 166, 2; am L 1985, c 150, 2; am L 1987, c 203, 1; am L 1988, c 59, 2; am L 1990, c 138, 4; am L 1991, c 159, 7; am L 1995, c 122, 2; am L 1997, c 356, 2; am L 2000, c 98,  2, 3; am L 2001, c 203, 3; am L 2002, c 165, 1; am L 2003, c 151, 3; am L 2008, c 119, 4; am L 2009, c 117,  1, 2; am L 2010, c 123, 2; am L 2011, c 73, 2; am L 2012, c 29, 2; am L 2013, c 48, 2; am L 2017, c 155, 2; am L 2018, c 152, 1 and c 190, 2; am L 2021, c 233, 2] Case Notes  Method used to prove that capsules of methaqualone hydrochloride contained methaqualone accepted as evidence. 1 H. App. 31, 613 P.2d 919.
  329-17 Schedule III tests. A substance shall be placed in schedule III if the substance has a degree of danger or probable danger less than the substances listed in schedules I and II according to the determination made pursuant to section 329-11. [L 1972, c 10, pt of 1]
  329-18 Schedule III. (a) The controlled substances listed in this section are included in schedule III.  (b) Stimulants. Unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including their salts, isomers, and salts of isomers, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation:  (1) Those compounds, mixtures, or preparations in dosage unit form containing any stimulant substance listed in schedule II, and any other drug of the quantitative composition or which is the same except that it contains a lesser quantity of controlled substances;  (2) Benzphetamine;  (3) Chlorphentermine;  (4) Clortermine;  (5) Mazindol;  (6) Phendimetrazine.  (c) Depressants. Unless listed in another schedule, any material, compound, mixture, or preparation containing any quantity of the following substances having a depressant effect on the central nervous system:  (1) Any compound, mixture, or preparation containing amobarbital, secobarbital, pentobarbital, or any salt thereof and one or more other active medicinal ingredients which are not listed in any schedule;  (2) Any suppository dosage form containing amobarbital, secobarbital, pentobarbital, or any salt of any of these drugs and approved by the Food and Drug Administration for marketing only as a suppository;  (3) Any substance that contains any quantity of a derivative of barbituric acid or any salt thereof, including the substance butalbital;  (4) Chlorhexadol;  (5) Embutramide (Tributame);  (6) Ketamine, its salts, isomers, and salts of isomers, also known as (+ or -)-2-(2-chlorophenyl)-2-(methylamino)-cyclohexanone;  (7) Lysergic acid;  (8) Lysergic acid amide;  (9) Methyprylon;  (10) Sulfondiethylmethane;  (11) Sulfonethylmethane;  (12) Sulfonmethane;  (13) Tiletamine/Zolazepam (Telazol, 2-(ethylamino)-2-(-thienyl)-cyclohexanone, flupyrazapon) or any salts thereof;  (14) Gamma hydroxybutyric acid and its salts, isomers, and salts of isomers that are contained in a drug product for which an application has been approved under section 505 of the federal Food, Drug, and Cosmetic Act;  (15) Perampanel [2-(2-oxo-1-phenyl-5-pyridin-2-yl-l,2-dihydropyridin-3-yl)benzonitrile], including its salts, isomers, and salts of isomers; and  (16) Alfaxalone 5[alpha]-pregnan-3alpha-ol-11,20-dione, including its salts, isomers, and salts of isomers.  (d) Nalorphine.  (e) Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any of the following narcotic drugs, or their salts, or alkaloid, in limited quantities as set forth below:  (1) Not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium;  (2) Not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;  (3) Not more than 1.8 grams of dihydrocodeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;  (4) Not more than 300 milligrams of ethylmorphine, or any of its salts, per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more ingredients in recognized therapeutic amounts;  (5) Not more than 500 milligrams of opium per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one or more active nonnarcotic ingredients in recognized therapeutic amounts;  (6) Not more than 50 milligrams of morphine or any of its salts, per 100 milliliters or per 100 grams with one or more active, nonnarcotic ingredients in recognized therapeutic amounts; and  (7) Buprenorphine.  (f) The department of public safety may except by rule any compound, mixture, or preparation containing any stimulant or depressant substance listed in subsections (b) and (c) from the application of all or any part of this chapter if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances which have a stimulant or depressant effect on the central nervous system.  (g) Any anabolic steroid. The term "anabolic steroid" means any drug or hormonal substance chemically and pharmacologically related to testosterone (other than estrogens, progestins, and corticosteroids) that promotes muscle growth, and includes:  (1) Boldenone;  (2) Clostebol (4-Chlorotestosterone);  (3) Dehydrochlormethyltestosterone;  (4) Dihydrotestosterone (4-dihydrotestosterone);  (5) Drostanolone;  (6) Ethylestrenol;  (7) Fluoxymesterone;  (8) Formebolone (Formyldienolone);  (9) Mesterolone;  (10) Methandranone;  (11) Methandriol;  (12) Methandrostenolone (Methandienone);  (13) Methenolone;  (14) Methyltestosterone;  (15) Mibolerone;  (16) Nandrolone;  (17) Norethandrolone;  (18) Oxandrolone;  (19) Oxymesterone;  (20) Oxymetholone;  (21) Stanolone (Dihydrotestosterone);  (22) Stanozolol;  (23) Testolactone;  (24) Testosterone;  (25) Trenbolone;  (26) 3[beta], 17-dihydroxy-5a-androstane;  (27) 3[alpha], 17[beta]-dihydroxy-5a-androstane;  (28) 5[alpha]-androstan-3, 17-dione;  (29) 1-androstenediol (3[beta], 17[beta]-dihydroxy-5[alpha]-androst-1-ene);  (30) 1-androstenediol (3[alpha], 17[beta]-dihydroxy-5[alpha]-androst-1-ene);  (31) 4-androstenediol (3[beta], 17[beta]-dihydroxy-androst-4-ene);  (32) 5-androstenediol (3[beta], 17[beta]-dihydroxy-androst-5-ene);  (33) 1-androstenedione ([5[alpha]]-androst-1-en-3, 17-dione);  (34) 4-androstenedione (androst-4-en-3, 17-dione);  (35) 5-androstenedione (androst-5-en-3, 17-dione);  (36) Bolasterone (7[alpha], 17[alpha]-dimethyl-17[beta]-hydroxyandrost-4-en-3-one);  (37) Calusterone (7[beta], 17[alpha]-dimethyl-17[beta]-hydroxyandrost-4-en-3-one);  (38) [Delta]1-dihydrotestosterone (a.k.a. '1-testosterone') (17[beta]-hydroxy-5[alpha]-androst-1-en-3-one);  (39) Furazabol (17[alpha]-methyl-17[beta]-hydroxyandrostano[2,3-c]-furazan);  (40) 13[beta]-ethyl-17[beta]-hydroxygon-4-en-3-one;  (41) 4-hydroxytestosterone (4,17[beta]-dihydroxy-androst-4-en-3-one);  (42) 4-hydroxy-19-nortestosterone (4,17[beta]-dihydroxy-estr-4-en-3-one);  (43) Mesterolone (1[alpha]methyl-17[beta]-hydroxy-[5[alpha]]-androstan-3-one);  (44) Methandienone (17[alpha]-methyl-17[beta]-hydroxyandrost-1,4-dien-3-one);  (45) Methandriol (17[alpha]-methyl-3[beta], 17[beta]-dihydroxyandrost-5-ene);  (46) Methenolone (1-methyl-17[beta]-hydroxy-5[alpha]-androst-1-en-3-one);  (47) 17[alpha]-methyl-3[beta], 17[beta]-dihydroxy-5a-androstane;  (48) 17[alpha]-methyl-3[alpha], 17[beta]-dihydroxy-5a-androstane;  (49) 17[alpha]-methyl-3[beta], 17[beta]-dihydroxyandrost-4-ene;  (50) 17[alpha]-methyl-4-hydroxynandrolone (17[alpha]-methyl-4-hydroxy-17[beta]-hydroxyestr-4-en-3-one);  (51) Methyldienolone (17[alpha]-methyl-17[beta]-hydroxyestra-4, 9(10)-dien-3-one);  (52) Methyltrienolone (17[alpha]-methyl-17[beta]-hydroxyestra-4, 9-11-trien-3-one);  (53) 17[alpha]-methyl-[Delta] 1-dihydrotestosterone (17b [beta]-hydroxy-17[alpha]-methyl-5[alpha]-androst-1-en-3-one) (a.k.a. '17-[alpha]-methyl-1-testosterone');  (54) 19-nor-4-androstenediol (3[beta], 17[beta]-dihydroxyestr-4-ene);  (55) 19-nor-4-androstenediol (3[alpha], 17[beta]-dihydroxyestr-4-ene);  (56) 19-nor-5-androstenediol (3[beta], 17[beta]-dihydroxyestr-5-ene);  (57) 19-nor-5-androstenediol (3[alpha], 17[beta]-dihydroxyestr-5-ene);  (58) 19-nor-4-androstenedione (estr-4-en-3, 17-dione);  (59) 19-nor-5-androstenedione (estr-5-en-3, 17-dione);  (60) Norbolethone (13[beta], 17[alpha]-diethyl-17[beta]-hydroxygon-4-en-3-one);  (61) Norclostebol (4-chloro-17[beta]-hydroxyestr-4-en-3-one);  (62) Normethandrolone (17[alpha]-methyl-17[beta]-hydroxyestr-4-en-3-one);  (63) Stenbolone (17[beta]-hydroxy-2-methyl-[5[alpha]]-androst-1-en-3-one);  (64) Tetrahydrogestrinone (13[beta], 17[alpha]-diethyl-17[beta]-hydroxygon-4, 9, 11-trien-3-one);  (65) Desoxymethyltestosterone (17a-methyl-5a-androst-2-en-17-ol, madol);  (66) 19-nor-4,9(10)-androstadienedione (estra-4,9(10)-diene-3,17-dione);  (67) Boldione (Androsta-1,4-diene-3,17-dione);   (68) Methasterone (2 alpha-17 alpha-dimethyl-5 alpha-androstan-17beta-ol-3-one);  (69) Prostanozol (17 beta-hydroxy-5 alpha-androstano[3,2-c]pryazole; and  (70) Any salt, ester, or isomer of a drug or substance described or listed in this subsection, if that salt, ester, or isomer promotes muscle growth, except the term "anabolic steroid" does not include an anabolic steroid that is expressly intended for administration through implants to cattle or other nonhuman species and that has been approved by the Secretary of Health and Human Services for nonhuman administration. If any person prescribes, dispenses, or distributes an anabolic steroid intended for administration to nonhuman species for human use, the person shall be considered to have prescribed, dispensed, or distributed an anabolic steroid within the meaning of this paragraph.  (h) Hallucinogenic substances, unless listed in another schedule, shall include Dronabinol (synthetic), in sesame oil and encapsulated in a soft gelatin capsule in a United States Food and Drug Administration approved drug product. [L 1972, c 10, pt of 1 and am c 114, 2(1); am L 1974, c 217, 3; am L 1975, c 26, 2; am L 1977, c 116, 2; am L 1978, c 68, 4; am L 1988, c 59, 3; am L 1990, c 281, 10; am L 1991, c 159, 8; am L 1992, c 151, 1; am L 1995, c 122, 3; am L 1997, c 356,  3, 4; am L 2000, c 98, 4; am L 2001, c 203, 4; am L 2003, c 151, 4; am L 2004, c 193, 2; am L 2008, c 186, 3; am L 2009, c 117, 3; am L 2011, c 73, 3; am L 2013, c 48, 3; am L 2014, c 54, 2; am L 2015, c 195, 2]
  329-19 Schedule IV tests. A substance shall be placed in schedule IV if the substance has a degree of danger or probable danger less than the substances listed in schedule III according to the determination made pursuant to section 329-11. [L 1972, c 10, pt of 1]
 329-2 Hawaii advisory commission on drug abuse and controlled substances; number; appointment. There shall be established a state advisory commission on drug abuse and controlled substances consisting of not more than fifteen nor less than nine members appointed by the governor, as provided in section 26-34. The members shall be selected on the basis of their ability to contribute to the solution of problems arising from the abuse of controlled substances, and to the extent possible, shall represent the pharmacological, medical, community and business affairs, youth action, educational, legal defense, enforcement, and corrections segments of the community. One of the appointed members shall be a member of the state council on mental health established by section 334-10, and shall be knowledgeable about the community and the relationships between mental health, mental illness, and substance abuse. The commission shall elect a chairperson from among its members. The members shall serve without compensation, but shall be paid their necessary expenses in attending meetings of the commission. The commission shall be a part of the department of health for administrative purposes; provided that the department of health shall appoint an ex-officio non-voting representative to the commission who shall regularly attend meetings of both this commission and the state council on mental health, and make regular reports to both bodies. [L 1972, c 10, pt of 1 and am c 114, 2(4); am L 1985, c 7, 1; am L 1987, c 198, 1; am L 1993, c 210, 1] Cross References  Needle exchange program, see chapter 325, part VII.
  329-20 Schedule IV. (a) The controlled substances listed in this section are included in schedule IV.  (b) Depressants. Any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers, esters, ethers, and salts of isomers, whenever the existence of these isomers, esters, ethers, and salts is possible within the specific chemical designation, that has a degree of danger or probable danger associated with a depressant effect on the central nervous system:  (1) Alprazolam;  (2) Barbital;  (3) Bromazepam;  (4) Butorphanol;  (5) Camazepam;  (6) Carisoprodol;  (7) Chloral betaine;  (8) Chloral hydrate;  (9) Chlordiazepoxide;  (10) Clobazam;  (11) Clonazepam;  (12) Clorazepate;  (13) Clotiazepam;  (14) Cloxazolam;  (15) Delorazepam;  (16) Dichloralphenazone (Midrin);  (17) Diazepam;  (18) Estazolam;  (19) Ethchlorvynol;  (20) Ethinamate;  (21) Ethyl loflazepate;  (22) Fludiazepam;  (23) Flunitrazepam;  (24) Flurazepam;  (25) Fospropofol (Lusedra);  (26) Halazepam;  (27) Haloxazolam;  (28) Ketazolam;  (29) Loprazolam;  (30) Lorazepam;  (31) Lormetazepam;  (32) Mebutamate;  (33) Medazepam;  (34) Meprobamate;  (35) Methohexital;  (36) Methylphenobarbital (mephorbarbital);  (37) Midazolam;  (38) Nimetazepam;  (39) Nitrazepam;  (40) Nordiazepam;  (41) Oxazepam;  (42) Oxazolam;  (43) Paraldehyde;  (44) Petrichloral;  (45) Phenobarbital;  (46) Pinazepam;  (47) Prazepam;  (48) Quazepam;  (49) Suvorexant;  (50) Temazepam;  (51) Tetrazepam;  (52) Triazolam;  (53) Zaleplon;  (54) Zolpidem;  (55) Zopiclone (Lunesta); and  (56) Brexanolone.  (c) Fenfluramine. Any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers, and salts of isomers, whenever the existence of such salts, isomers, and salts of isomers is possible: Fenfluramine.  (d) Stimulants. Unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:  (1) Cathine ((+)-norpseudoephedrine);  (2) Diethylpropion;  (3) Fencamfamin;  (4) Fenproporex;  (5) Mazindol;  (6) Mefenorex;  (7) Modafinil;  (8) Phentermine;  (9) Pemoline (including organometallic complexes and chelates thereof);  (10) Pipradrol;  (11) Sibutramine;  (12) SPA (1-dimethylamino-1,2-diphenylethane, lefetamine);  (13) Lorcaserin; and  (14) Solriamfetol.  (e) Other substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances, including its optical isomers and its salts, isomers, and salts of isomers:   (1) Pentazocine; and  (2) Eluxadoline (5-[[[(2S)-2-amino-3-[4-aminocarbonyl)-2,6-dimethylphenyl]-1-oxopropyl][(1S)-1-(4-phenyl-1H-imidazol-2-yl)ethyl]amino]methyl]-2-methoxybenzoic acid.  (f) The department of public safety may except by rule any compound, mixture, or preparation containing any depressant substance listed in subsection (b) or any stimulant listed in subsection (d) from the application of all or any part of this chapter if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a depressant or stimulant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion, or concentration that vitiate the degree of danger or probable danger of the substances which have a depressant or stimulant effect on the central nervous system.  (g) Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below:  (1) Not more than one milligram of difenoxin and not less than twenty-five micrograms of atropine sulfate per dosage unit;   (2) Dextropropoxyphene (alpha-(+)-4-dimethylamino-1, 2-diphenyl-3-methyl-2-propionoxybutane); and  (3) 2-[(dimethylamino)methyl]-1-(3-methoxyphenyl)cyclohexanol, its salts, optical and geometric isomers and salts of these isomers (including tramadol). [L 1972, c 10, pt of 1; am L 1973, c 184, 1; am L 1974, c 217, 4; am L 1977, c 116, 3; am L 1978, c 68, 5; am L 1979, c 194, 3; am L 1980, c 140, 2; am L 1985, c 150, 3; am L 1987, c 203, 2; am L 1990, c 281, 10; am L 1993, c 9, 1; am L 1995, c 122, 4; am L 2000, c 98, 5; am L 2001, c 203, 5; am L 2002, c 165, 2; am L 2003, c 151, 5; am L 2006, c 171, 1; am L 2008, c 119, 5; am L 2010, c 123, 3; am L 2014, c 54, 3; am L 2015, c 195, 3; am L 2016, c 218, 4; am L 2021, c 233, 3]
  329-21 Schedule V tests. A substance shall be placed in schedule V if it has a degree of danger or probable danger less than the substances listed in schedule IV according to the determination made pursuant to section 329-11. [L 1972, c 10, pt of 1]
  329-22 Schedule V. (a) The controlled substances listed in this section are included in schedule V.  (b) Narcotic drugs containing nonnarcotic active medicinal ingredients. Any compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, which also contains one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation, valuable medicinal qualities other than those possessed by the narcotic drug alone:  (1) Not more than 200 milligrams of codeine, or any of its salts, per 100 milliliters or per 100 grams;  (2) Not more than 100 milligrams of dihydrocodeine, or any of its salts, per 100 milliliters or per 100 grams;  (3) Not more than 100 milligrams of ethylmorphine, or any of its salts, per 100 milliliters or per 100 grams;  (4) Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit;  (5) Not more than 100 milligrams of opium per 100 milliliters or per 100 grams; and  (6) Not more than 0.5 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit.  (c) Stimulants. Unless specifically exempted or excluded or unless listed in another schedule, any material, compound, mixture, or preparation that contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers.  (d) Depressants. Unless specifically exempted or excluded or unless listed in another schedule, any material, compound, mixture, or preparation that contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers:  (1) Lacosamide [(R)-2-acetoamido-N-benzyl-3-methoxy-propionamide], (Vimpat);  (2) Pregabalin [(S)-3-(aminomethyl)-5-methylhexanoic acid]; and  (3) Brivaracetam ((2S)-2[(4R)-2-oxo-4-propylpyrrolidin-1-yl]butanamide) (Other names: BRV; UCB-34714; Briviact) and its salts. [L 1972, c 10, pt of 1; am L 1978, c 68, 6; am L 1985, c 150, 4; am L 2003, c 151, 6; am L 2008, c 119, 6; am L 2010, c 123, 4; am L 2017, c 155, 3; am L 2019, c 95, 1; am L 2021, c 233, 4]
 329-23 Republishing and distribution of schedules. (a) The department of public safety shall make available to the public on the department's website the schedules annually or more often, as may be necessary to update the schedules.  (b) The department of public safety shall publicly announce and, in addition, shall make available to the public copies of any changes to the schedules as such changes are made. [L 1972, c 10, pt of 1; am L 1979, c 194, 4; am L 1990, c 281, 10; am L 2016, c 218, 5]
  329-3 Annual report. The commission shall prepare and present to the governor in the month of January in each year a report respecting its actions during the preceding fiscal year, together with its recommendations respecting legislation, copies of which reports shall be furnished by the governor to the legislature. [L 1972, c 10, pt of 1]
  329-31.5 Clinics. Registration as a clinic is required when an out-patient medical facility maintains centralized ordering, storage, and record keeping of controlled substances to be administered and/or dispensed to patients. Registration of a clinic requires that:  (1) Each location where controlled substances are stocked be registered by name, location, and designated principal practitioner or affiliated pharmacy. The principal practitioner or affiliated pharmacy shall be responsible for the accurate maintenance of records which document all controlled substances ordered, received, administered, and dispensed within the clinic;  (2) Controlled substances stocked at a clinic under the clinic State of Hawaii and Drug Enforcement Administration registration numbers be administered to clinic patients by licensed or registered health care professionals under the supervision of the treating practitioner;  (3) Controlled substances stocked at a clinic under the clinic State of Hawaii and Drug Enforcement Administration registration numbers be dispensed to clinic patients only by the treating practitioner for emergency and urgent care, when a written prescription would not be practical;  (4) A centralized record signed and dated by the treating practitioner which indicates the patient, controlled substance, date and time of administration and/or dispensing be maintained and stored with the current controlled substance inventory, ordering, and receipt records. These records shall be maintained for five years; and  (5) A clinic practitioner who individually maintains a personal stock of controlled substances does so under the practitioner's individual State and Drug Enforcement Administration registration number. These controlled substances shall be kept separate from clinic stock and cannot be accessed by other practitioners.  The term "affiliated pharmacy" as used in this section means a licensed pharmacy which supplies and monitors the controlled substances stocked in a registered clinic.  The term "clinic" as used in this section means an out-patient medical facility owned and operated by a legal entity that employs individual practitioners for the treatment of patients and which may or may not provide after-hours emergency or urgent care.  The term "principal physician" means the practitioner in a clinic whose signature appears on the clinic's State of Hawaii and Drug Enforcement Administration registrations, and who is responsible for the proper maintenance, storage, and record keeping of the controlled substances ordered and centrally stocked in the clinic using the clinic Drug Enforcement Administration registration number. [L 1991, c 159, 1; am L 1999, c 252, 3] Case Notes  Mentioned: 732 F. Supp. 2d 1107.
  329-31 Rules. The department of public safety may adopt rules and charge reasonable fees relating to the registration and control of the manufacture, distribution, prescribing, dispensing, or reverse distribution with controlled substances within this State. [L 1972, c 10, pt of 1; am L 1990, c 281, 10; am L 2016, c 218, 6]
  329-32 Registration requirements. (a) Every person who:  (1) Manufactures, distributes, prescribes, dispenses, or conducts reverse distribution with any controlled substance within this State;  (2) Proposes to engage in the manufacture, distribution, prescription, dispensing, or reverse distribution of any controlled substance within this State; or  (3) Dispenses or proposes to dispense any controlled substance for use in this State by shipping, mailing, or otherwise delivering the controlled substance from a location outside this State; shall obtain a registration issued by the department of public safety in accordance with the department's rules. A licensed or registered health care professional who acts as the authorized agent of a practitioner and who administers controlled substances at the direction of the practitioner shall not be required to obtain a registration.  (b) Persons registered by the department of public safety under this chapter to manufacture, distribute, prescribe, dispense, store, conduct research, or conduct reverse distribution with controlled substances may possess, manufacture, distribute, prescribe, dispense, store, or conduct research with those substances to the extent authorized by their registration and in conformity with this part.  (c) Except as otherwise provided by law, the following persons shall not be required to register and may lawfully possess controlled substances under this chapter:  (1) An agent or employee of any registered manufacturer, distributor, or dispenser of any controlled substance, if the agent or employee is acting in the usual course of the agent's or employee's business or employment;  (2) A common or contract carrier or warehouser, or an employee thereof, whose possession of any controlled substance is in the usual course of the person's business or employment; and  (3) An ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner.  (d) The department of public safety may waive the registration or filing requirement for certain manufacturers, distributors, prescribers, or dispensers by rule if:  (1) It is consistent with the public health and safety; and  (2) The department of public safety states the specific reasons for the waiver and the time period for which the waiver is to be valid.  (e) A separate registration shall be required at each principal place of business or professional practice where the applicant manufactures, distributes, prescribes, dispenses, or conducts reverse distribution with controlled substances, except an office used by a practitioner (who is registered at another location) where controlled substances are prescribed but neither administered nor otherwise dispensed as a regular part of the professional practice of the practitioner at such office, and where no supplies of controlled substances are maintained.  (f) The department of public safety may inspect the establishment of a registrant or applicant for registration in accordance with the department's rule.  (g) The department of public safety may require a registrant to submit documents or written statements of fact relevant to a registration that the department deems necessary to determine whether the registration should be granted or denied. The failure of the registrant to provide the documents or statements within a reasonable time after being requested to do so shall be deemed to be a waiver by the registrant of the opportunity to present the documents or statements for consideration by the department in granting or denying the registration.  (h) The failure to renew the controlled substance registration on a timely basis or to pay the applicable fees or payment with a check that is dishonored upon first deposit shall cause the registration to be automatically forfeited. [L 1972, c 10, pt of 1; gen ch 1985; am L 1990, c 281, 10; am L 1991, c 159, 9; am L 1993, c 19, 1; am L 1996, c 206, 1; am L 1997, c 280, 2; am L 2003, c 151, 7; am L 2016, c 218, 7] Cross References  Regulation of wholesale prescription drug distributors, see  328-111 to 123.
 329-33 Registration. (a) The department of public safety shall register an applicant to manufacture, dispense, prescribe, distribute, or conduct reverse distribution with controlled substances included in sections 329-14, 329-16, 329-18, 329-20, and 329-22 unless it determines that the issuance of that registration would be inconsistent with the public interest. In determining the public interest, the department of public safety shall consider the following factors:  (1) Maintenance of effective controls against diversion of controlled substances into other than legitimate medical, scientific, or industrial channels;  (2) Compliance with applicable state and local law;  (3) Any convictions of the applicant under any federal and state laws relating to any controlled substance;  (4) Past experience in the manufacture or distribution of controlled substances, and the existence in the applicant's establishment of effective controls against diversion;  (5) Furnishing by the applicant of false or fraudulent material in any application filed under this chapter;  (6) Suspension, revocation, or surrender of the applicant's federal registration to manufacture, distribute, prescribe, or dispense controlled substances as authorized by federal law; and  (7) Any other factor relevant to and consistent with the public health and safety.  (b) Registration under subsection (a) does not entitle a registrant to manufacture, dispense, prescribe, and distribute controlled substances in schedule I or II other than those specified in the registration.  (c) Practitioners shall be registered to dispense or to prescribe any controlled substances or to conduct research with controlled substances in schedules II through V if they are authorized to dispense or to prescribe or conduct research under the law of this State. The department of public safety need not require separate registration under this part for practitioners engaging in research with nonnarcotic controlled substances in schedules II through V where the registrant is already registered under this part in another capacity. Practitioners registered under federal law to conduct research with schedule I substances may conduct research with schedule I substances within this State upon furnishing the department of public safety evidence of that federal registration.  (d) Compliance by manufacturers and distributors with the provisions of the federal law respecting registration (excluding fees) entitles them to be registered under this chapter. [L 1972, c 10, pt of 1; am L 1990, c 281, 10; am L 2009, c 117, 4; am L 2016, c 218, 8]
 329-34 Revocation and suspension of registration. (a) A registration under section 329-33 to manufacture, distribute, dispense, or conduct reverse distribution with a controlled substance may be suspended or revoked by the department of public safety upon a finding that the registrant:  (1) Has furnished false or fraudulent material information in any application filed under this chapter;  (2) Has been convicted of a felony or has been granted a motion for the deferral of acceptance of a guilty plea or a nolo contendere plea to a felony, pursuant to chapter 853 and under any state or federal law relating to any controlled substance;  (3) Has had the registrant's federal registration suspended or revoked to manufacture, distribute, prescribe, dispense, or conduct reverse distribution with controlled substances; or  (4) Has had the registrant's state license to practice the registrant's profession suspended or revoked by the applicable governing state board.  (b) The department of public safety may limit revocation or suspension of a registration to the particular controlled substance with respect to which grounds for revocation or suspension exist.  (c) If the department of public safety suspends or revokes a registration, all controlled substances owned or possessed by the registrant at the time of suspension or the effective date of the revocation order may be placed under seal. No disposition may be made of substances under seal until the time for taking an appeal has elapsed or until all appeals have been concluded unless a court, upon application therefor, orders the sale of perishable substances and the deposit of the proceeds of the sale with the court. Upon a revocation order becoming final, all controlled substances may be forfeited to the State.  (d) The department of public safety shall promptly notify the Bureau of all orders suspending or revoking registration and all forfeitures of controlled substances. [L 1972, c 10, pt of 1; am L 1980, c 147, 1; gen ch 1985; am L 1986, c 214, 4; am L 1990, c 281, 10; am L 2016, c 218, 9]
 329-35 Order to show cause. (a) If, upon examination of the application for registration from any applicant and other information gathered by the department regarding the applicant, the administrator is unable to make the determinations required by the applicable provisions of sections 329-32 and 329-33 and applicable rules to register the applicant, the administrator shall serve upon the applicant an order to show cause why the registration should not be denied.  (b) If, upon information gathered by the department regarding any registrant, the administrator determines that the registration of a registrant warrants suspension or revocation pursuant to section 329-34 or applicable rules, the department shall serve upon the registrant an order to show cause why the registration should not be revoked or suspended.  (c) The order to show cause shall call upon the applicant or registrant to:  (1) Appear before the department at a time and place stated in the order, which shall not be less than thirty days after the date of receipt of the order, to admit to the allegations in the order to show cause; or  (2) Request a hearing as provided in subsection (d).  The order to show cause shall also contain a statement of the legal basis for such hearing and the reasons that support the administrator's intent to deny the application, or the revocation or suspension of registration, and a summary of the matters of fact and law asserted.  (d) Upon receipt of an order to show cause, the applicant or registrant, if the registrant or applicant desires a hearing, shall file a request for a hearing with the department within thirty days after service of the order to show cause. Failure to request a hearing shall result in the automatic termination of the registrant's registration and in the case of a new application or renewal the unprocessed application shall be returned to the applicant.  (e) Notwithstanding subsections (a) to (d), [the] department of public safety may suspend any registration simultaneously with the institution of proceedings under section 329-34, or where renewal of registration is refused, if it finds that there is an imminent danger to the public health or safety which warrants this action. The suspension shall continue in effect until the conclusion of the proceedings, including judicial review thereof, unless sooner withdrawn by the department of public safety or dissolved by a court of competent jurisdiction.  (f) The department of public safety may subpoena and examine witnesses under oath upon all such charges as may be referred before it. [L 1972, c 10, pt of 1; am L 1986, c 214, 5; am L 1990, c 281, 10; am L 2010, c 123, 5]
 329-36 Records of registrants. Persons registered to manufacture, distribute, prescribe, dispense, or conduct reverse distribution with controlled substances under this chapter shall keep records and maintain inventories in conformance with the recordkeeping and inventory requirements of federal law and with any additional rules the department of public safety issues. [L 1972, c 10, pt of 1; am L 1990, c 281, 10; am L 2016, c 218, 10]
 329-37 Filing requirements. All persons registered to manufacture, distribute, conduct reverse distribution, or dispense controlled substances and all persons who transport, warehouse, or otherwise handle controlled substances, shall file with the department of public safety on forms and within the time and manner prescribed by the department of public safety, copies of order, receipt and distribution of schedule I and schedule II controlled substances and other controlled substances designated by the department of public safety, showing the amounts of such controlled substances ordered, received, distributed, transported, warehoused, or otherwise handled. [L 1972, c 10, pt of 1; am L 1990, c 281, 10; am L 2016, c 218, 11]
 329-38.2 Prescriptions; additional restrictions. [Section repealed June 30, 2023. L 2018, c 153, 4.] (a) The prescription restrictions in this section shall apply in addition to the restrictions described in section 329-38.  (b) No prescriber shall prescribe a schedule II, III, or IV controlled substance without first requesting, receiving, and considering records of the ultimate user from the state electronic prescription accountability system as needed to reduce the risk of abuse of or addiction to a controlled substance, as needed to avoid harmful drug interactions, or as otherwise medically necessary; provided that this subsection shall not apply to any prescription:  (1) For a supply of three days or less that is made in an emergency situation, by an emergency medical provider, or in an emergency room;  (2) That will be administered directly to a patient under the supervision of a health care provider licensed to practice within the State; provided that a medically-indicated query of the electronic prescription accountability system is made when the patient is initially admitted for inpatient care at a hospital;  (3) That is an initial prescription for a patient being treated for post-operative pain; provided that the prescription is limited to a three-day supply with no refills;  (4) For a patient with a terminal disease receiving hospice or other types of palliative care; provided that for purposes of this paragraph, "terminal disease" means an incurable and irreversible disease that will, within reasonable medical judgment, produce death within six months;  (5) Prescribed while the state electronic prescription accountability system is nonfunctional; or  [(6)] Written pursuant to chapter 327L.  (c) The administrator of the state electronic prescription accountability system shall promptly disclose only the requested data to the requesting prescriber or the requesting prescriber's delegate. Disclosure as required under this section is permissible under the duty of confidentiality imposed by section 329-104. To the extent that this section conflicts with other state confidentiality and disclosure laws, this section shall prevail.  (d) A violation of this section shall not be subject to the penalty provisions of part IV of chapter 329; provided that a violation of this section may result in disciplinary action by the appropriate licensing authority. [L 2018, c 153, 2; am L 2019, c 251, 2 and c 256, 2]
 329-38.5 Opioid therapy; informed consent process; requirement for written policies. [Section repealed June 30, 2023. L 2017, c 66, 6.] (a) Beginning on July 1, 2018, any provider authorized to prescribe opioids shall adopt and maintain written policy or policies that include execution of a written agreement to engage in an informed consent process between the prescribing provider and qualifying opioid therapy patient.  (b) The department of health shall develop and make available a template of an opioid therapy informed consent process agreement for use in the State. The template shall be posted to the department of health's website no later than December 31, 2017.  (c) For the purposes of this section, "qualifying opioid therapy patient" means:  (1) A patient requiring opioid treatment for more than three months;  (2) A patient who is prescribed benzodiazepines and opioids together; or  (3) A patient who is prescribed a dose of opioids that exceeds ninety morphine equivalent doses; provided that the term "qualifying opioid therapy patient" shall not apply to any qualifying patient who is issued or receives a prescription pursuant to chapter 327L.  (d) A violation of this section shall not be subject to the penalty provisions of part IV of chapter 329. [L 2017, c 66, 2; am L 2019, c 256, 3]
  329-38 Prescriptions. [Repeal and reenactment on June 30, 2023. L 2017, c 66, 6.] (a) No controlled substance in schedule II may be dispensed without a written prescription of a practitioner, except:  (1) In the case of an emergency situation, a pharmacist may dispense a controlled substance listed in schedule II upon receiving oral authorization from a prescribing practitioner; provided that:  (A) The quantity prescribed and dispensed is limited to the amount adequate to treat the patient during the emergency period (dispensing beyond the emergency period shall be pursuant to a written prescription signed by the prescribing practitioner);  (B) If the prescribing practitioner is not known to the pharmacist, the pharmacist shall make a reasonable effort to determine that the oral authorization came from a registered practitioner, which may include a callback to the prescribing practitioner using the phone number in the telephone directory or other good faith efforts to identify the prescriber; and  (C) Within seven days after authorizing an emergency oral prescription, the prescribing practitioner shall cause a written prescription for the emergency quantity prescribed to be delivered to the dispensing pharmacist. In addition to conforming to the requirements of this subsection, the prescription shall have written on its face "Authorization for Emergency Dispensing". The written prescription may be delivered to the pharmacist in person or by mail, and if by mail, the prescription shall be postmarked within the seven-day period. Upon receipt, the dispensing pharmacist shall attach this prescription to the oral emergency prescription, which had earlier been reduced to writing. The pharmacist shall notify the administrator if the prescribing practitioner fails to deliver a written prescription to the pharmacy within the allotted time. Failure of the pharmacist to do so shall void the authority conferred by this paragraph to dispense without a written prescription of a prescribing individual practitioner. Any practitioner who fails to deliver a written prescription within the seven-day period shall be in violation of section 329-41(a)(1);  (2) No schedule II narcotic controlled substance may be prescribed or dispensed for more than a thirty-day supply, except where such substances come in a single unit dose package that exceeds the thirty-day limit or where a terminally ill patient is certified by a physician to exceed the thirty-day limit;  (3) When dispensed directly by a practitioner, other than a pharmacist, to the ultimate user. The practitioner in dispensing a controlled substance in schedule II shall affix to the package a label showing:  (A) The date of dispensing;  (B) The name, strength, and quantity of the drug dispensed;  (C) The dispensing practitioner's name and address;  (D) The name of the patient;  (E) The "use by" date for the drug, which shall be:  (i) The expiration date on the manufacturer's or principal labeler's container; or  (ii) One year from the date the drug is dispensed, whichever is earlier; and  (F) Directions for use, and cautionary statements, if any, contained in the prescription or as required by law.  A complete and accurate record of all schedule II controlled substances ordered, administered, prescribed, and dispensed shall be maintained for five years. Prescriptions and records of dispensing shall otherwise be retained in conformance with the requirements of section 329-36. No prescription for a controlled substance in schedule II may be refilled; or  (4) In the case of an electronic prescription, a pharmacist may dispense a controlled substance listed in schedule II upon receiving an electronic prescription.  (b) A schedule II controlled substance prescription shall:  (1) Be filled within seven days following the date the prescription was issued to the patient; and  (2) Be supplied to a patient only if the prescription has been filled and held by the pharmacy for not more than seven days; provided that a prescription issued to a qualified patient pursuant to chapter 327L shall be supplied to the patient if the prescription has been filled and held by the pharmacy for not more than thirty days.  (c) Initial concurrent prescriptions for opioids and benzodiazepines shall not be for longer than seven consecutive days unless the prescription is issued for a qualified patient pursuant to chapter 327L or a supply of longer than seven days is determined to be medically necessary for the treatment of:  (1) Pain experienced while the patient is in post-operative care;  (2) Chronic pain and pain management;  (3) Substance abuse or opioid or opiate dependence;  (4) Cancer;  (5) Pain experienced while the patient is in palliative care; or  (6) Pain experienced while the patient is in hospice care; provided that if a prescribing practitioner issues a concurrent prescription for more than a seven-day supply of an opioid and benzodiazepine, the practitioner shall document in the patient's medical record the condition for which the practitioner issued the prescription and that an alternative to the opioid and benzodiazepine was not appropriate treatment for the condition.  (d) After an initial concurrent prescription for opioids and benzodiazepines has been made, a prescribing practitioner may authorize subsequent prescriptions through a telephone consultation with the patient when the prescribing practitioner deems such action to be medically necessary for post-operative and pain management patients; provided that a prescribing practitioner shall consult with a patient in person at least once every ninety days for the duration during which the practitioner concurrently prescribes opioids and benzodiazepines to the patient.  (e) The transfer of original prescription information for a controlled substance listed in schedule III, IV, or V for the purpose of dispensing is permissible between pharmacies on a one time basis only. However, pharmacies electronically sharing a real-time, online database may transfer up to the maximum refills permitted by law and the prescriber's authorization. Transfers are subject to the following requirements:  (1) The transfer shall be communicated directly between two licensed pharmacists, and the transferring pharmacist shall:  (A) Write or otherwise place the word "VOID" on the face of the invalidated prescription;  (B) Record on the reverse of the invalidated prescription the name, address, and Drug Enforcement Administration registration number of the pharmacy to which it was transferred and the name of the pharmacist receiving the prescription information; and  (C) Record the date of the transfer and the name of the pharmacist transferring the information;  (2) The pharmacist receiving the transferred prescription information shall reduce to writing the following:  (A) Write or otherwise place the word "transfer" on the face of the transferred prescription;  (B) Record all information required to be on a prescription, including:  (i) The date of issuance of original prescription;  (ii) The original number of refills authorized on original prescription;  (iii) The date of original dispensing;  (iv) The number of valid refills remaining and dates and locations of previous refills;  (v) The pharmacy's name, address, Drug Enforcement Administration registration number, and original prescription number from which the prescription information was transferred;  (vi) The name of the transferor pharmacist; and  (vii) The pharmacy's name, address, and Drug Enforcement Administration registration number, along with the prescription number from which the prescription was originally filled;  (3) Both the original and transferred prescription shall be maintained for a period of five years from the date of last refill; and  (4) Any pharmacy electronically accessing a prescription record shall satisfy all information requirements of a manual mode prescription transferal.  Failure to comply with this subsection shall void the authority of the pharmacy to transfer prescriptions or receive a transferred prescription to or from another pharmacy.  (f) A pharmacy and an authorized central fill pharmacy may share information for initial and refill prescriptions of schedule III, IV, or V controlled substances. The following requirements shall apply:  (1) A pharmacy may electronically transmit, including by facsimile, prescriptions for controlled substances listed in schedule III, IV, or V to a central fill pharmacy. The pharmacy transmitting the prescription information shall:  (A) Ensure that all information required to be on a prescription pursuant to subsection (i) is transmitted to the central fill pharmacy either on the face of the prescription or electronically; and  (B) Keep a record of receipt of the filled prescription, including the date of receipt, the method of delivery (private, common, or contract carrier) and the identity of the pharmacy employee accepting delivery; and  (2) The central fill pharmacy receiving the transmitted prescription shall:  (A) Keep for five years a copy of a prescription received by facsimile or an electronic record of all the information transmitted by the pharmacy, including the name, address, and Drug Enforcement Administration registration number of the pharmacy transmitting the prescription;  (B) Keep a record of the date of receipt of the transmitted prescription, the name of the licensed pharmacists filling the prescription, and the dates the prescription was filled or is refilled; and  (C) Keep a record of the date the filled prescription was shipped to the pharmacy.  (g) No controlled substance in schedule III, IV, or V may be dispensed without a written, facsimile of a written, oral prescription of a practitioner, or receipt of an electronic prescription, except when a controlled substance is dispensed directly by a practitioner, other than a pharmacist, to an ultimate user. The practitioner, in dispensing a controlled substance in schedule III, IV, or V, shall affix to the package a label showing:  (1) The date of dispensing;  (2) The name, strength, and quantity issued of the drug;  (3) The dispensing practitioner's name and business address;  (4) The name of the patient;  (5) The "use by" date for the drug, which shall be:  (A) The expiration date on the manufacturer's or principal labeler's container; or  (B) One year from the date the drug is dispensed, whichever is earlier;  (6) Directions for use; and  (7) Cautionary statements, if any, contained in the prescription or as required by law. A complete and accurate record of all schedule III, IV, and V controlled substances administered, prescribed, and dispensed shall be maintained for five years. Prescriptions and records of dispensing shall be retained in conformance with the requirements of section 329-36 unless otherwise provided by law. Prescriptions may not be filled or refilled more than three months after the date of the prescription or be refilled more than two times after the date of the prescription, unless the prescription is renewed by the practitioner.  (h) The effectiveness of a prescription for the purposes of this section shall be determined as follows:  (1) A prescription for a controlled substance shall be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of the practitioner's professional practice. The responsibility for the proper prescribing and dispensing of controlled substances shall be upon the prescribing practitioner, but a corresponding responsibility shall rest with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or for legitimate and authorized research shall not be deemed a prescription within the meaning and intent of this section, and the person who knowingly fills such a purported prescription, as well as the person who issues the prescription, shall be subject to the penalties provided for violations of this chapter;  (2) A prescription may not be issued to allow an individual practitioner to obtain controlled substances for supplying the individual practitioner for the purpose of general dispensing to patients;  (3) A prescription may not be issued for "medically managed withdrawal", also known as "detoxification treatment" or "maintenance treatment", unless the prescription is for a schedule III, IV, or V narcotic drug approved by the Food and Drug Administration specifically for use in maintenance or detoxification treatment and the practitioner is in compliance with title 21 Code of Federal Regulations section 1301.28, the registration requirements of section 329-32(e), and any other federal or state regulatory standards relating to treatment qualification, security, records, and unsupervised use of drugs;  (4) A practitioner may administer or dispense directly (but not prescribe) a narcotic drug listed in any schedule to a narcotic dependent person for the purpose of maintenance or detoxification treatment if the practitioner meets both of the following conditions:  (A) The practitioner is separately registered with the Drug Enforcement Administration as a narcotic treatment program; and  (B) The practitioner is in compliance with Drug Enforcement Administration regulations regarding treatment qualifications, security, records, and unsupervised use of the drugs pursuant to this chapter;  (5) Nothing in this section shall prohibit a physician who is not specifically registered to conduct a narcotic treatment program from administering (but not prescribing) narcotic drugs to a person for the purpose of relieving acute withdrawal symptoms when necessary while arrangements are being made for referral for treatment. Not more than one day's medication may be administered to the person or for the person's use at one time. Such emergency treatment may be carried out for not more than three days and may not be renewed or extended;  (6) This section is not intended to impose any limitations on a physician or authorized hospital staff to administer or dispense narcotic drugs in a hospital to maintain or detoxify a person as an incidental adjunct to medical or surgical treatment of conditions other than addiction, or to administer or dispense narcotic drugs to persons with intractable pain in which no relief or cure is possible or none has been found after reasonable efforts;  (7) A practitioner may administer or dispense (including prescribe) any schedule III, IV, or V narcotic drug approved by the Food and Drug Administration specifically for use in maintenance or detoxification treatment to a narcotic dependent person if the practitioner complies with the requirements of title 21 Code of Federal Regulations section 1301.28, the registration and any other requirements of section 329-32(e), and any other federal or state regulatory standards relating to treatment qualification, security, records, and unsupervised use of drugs;  (8) An individual practitioner shall not prescribe or dispense a substance included in schedule II, III, IV, or V for that individual practitioner's personal use, except in a medical emergency; and  (9) A pharmacist shall not dispense a substance included in schedule II, III, IV, or V for the pharmacist's personal use.  (i) Prescriptions for controlled substances shall be issued only as follows:  (1) All prescriptions for controlled substances shall originate from within the State and be dated as of, and signed on, the day when the prescriptions were issued and shall contain:  (A) The first and last name and address of the patient; and  (B) The drug name, strength, dosage form, quantity prescribed, and directions for use. Where a prescription is for gamma hydroxybutyric acid, methadone, or buprenorphine, the practitioner shall record as part of the directions for use, the medical need of the patient for the prescription.  Except for electronic prescriptions, controlled substance prescriptions shall be no larger than eight and one-half inches by eleven inches and no smaller than three inches by four inches. A practitioner may sign a prescription in the same manner as the practitioner would sign a check or legal document (e.g., J.H. Smith or John H. Smith) and shall use both words and figures (e.g., alphabetically and numerically as indications of quantity, such as five (5)), to indicate the amount of controlled substance to be dispensed. Where an electronic prescription is permitted, either words or figures (e.g., alphabetically or numerically as indications of quantity, such as five or 5), to indicate the amount of controlled substance to be dispensed shall be acceptable. Where an oral order or electronic prescription is not permitted, prescriptions shall be written with ink or indelible pencil or typed, shall be manually signed by the practitioner, and shall include the name, address, telephone number, and registration number of the practitioner. The prescriptions may be prepared by a secretary or agent for the signature of the practitioner, but the prescribing practitioner shall be responsible in case the prescription does not conform in all essential respects to this chapter and any rules adopted pursuant to this chapter. In receiving an oral prescription from a practitioner, a pharmacist shall promptly reduce the oral prescription to writing, which shall include the following information: the drug name, strength, dosage form, quantity prescribed in figures only, and directions for use; the date the oral prescription was received; the full name, Drug Enforcement Administration registration number, and oral code number of the practitioner; and the name and address of the person for whom the controlled substance was prescribed or the name of the owner of the animal for which the controlled substance was prescribed.  A corresponding liability shall rest upon a pharmacist who fills a prescription not prepared in the form prescribed by this section. A pharmacist may add a patient's missing address or change a patient's address on all controlled substance prescriptions after verifying the patient's identification and noting the identification number on the back of the prescription document on file. The pharmacist shall not make changes to the patient's name, the controlled substance being prescribed, the quantity of the prescription, the practitioner's Drug Enforcement Administration number, the practitioner's name, the practitioner's electronic signature, or the practitioner's signature;  (2) An intern, resident, or foreign-trained physician, or a physician on the staff of a Department of Veterans Affairs facility or other facility serving veterans, exempted from registration under this chapter, shall include on all prescriptions issued by the physician:  (A) The registration number of the hospital or other institution; and  (B) The special internal code number assigned to the physician by the hospital or other institution in lieu of the registration number of the practitioner required by this section.  The hospital or other institution shall forward a copy of this special internal code number list to the department as often as necessary to update the department with any additions or deletions. Failure to comply with this paragraph shall result in the suspension of that facility's privilege to fill controlled substance prescriptions at pharmacies outside of the hospital or other institution. Each written prescription shall have the name of the physician stamped, typed, or hand-printed on it, as well as the signature of the physician;  (3) An official exempted from registration shall include on all prescriptions issued by the official:  (A) The official's branch of service or agency (e.g., "U.S. Army" or "Public Health Service"); and  (B) The official's service identification number, in lieu of the registration number of the practitioner required by this section. The service identification number for a Public Health Service employee shall be the employee's social security or other government issued identification number.  Each prescription shall have the name of the officer stamped, typed, or handprinted on it, as well as the signature of the officer; and  (4) A physician assistant registered to prescribe controlled substances under the authorization of a supervising physician shall include on all controlled substance prescriptions issued:  (A) The Drug Enforcement Administration registration number of the supervising physician; and  (B) The Drug Enforcement Administration registration number of the physician assistant.  Each written controlled substance prescription issued shall include the printed, stamped, typed, or hand-printed name, address, and phone number of both the supervising physician and physician assistant, and shall be signed by the physician assistant. The medical record of each written controlled substance prescription issued by a physician assistant shall be reviewed and initialed by the physician assistant's supervising physician within seven working days.  (j) A prescription for controlled substances may only be filled by a pharmacist acting in the usual course of the pharmacist's professional practice and either registered individually or employed in a registered pharmacy, central fill pharmacy, or registered institutional practitioner. A central fill pharmacy authorized to fill prescriptions on behalf of a pharmacy shall have a contractual relationship with the pharmacy that provides for this activity or shall share a common owner with the pharmacy. A central fill pharmacy shall not prepare prescriptions for any controlled substance listed in schedule II.  (k) Partial filling of controlled substance prescriptions shall be determined as follows:  (1) The partial filling of a prescription for a controlled substance listed in schedule II is permissible if the pharmacist is unable to supply the full quantity called for in a written, electronic prescription, or emergency oral prescription and the pharmacist makes a notation of the quantity supplied on the face of the written prescription (or written record of the electronic prescription or emergency oral prescription). The remaining portion of the prescription may be filled within seventy-two hours of the first partial filling; provided that if the remaining portion is not or cannot be filled within the seventy-two-hour period, the pharmacist shall notify the prescribing individual practitioner. No further quantity shall be supplied beyond seventy-two hours without a new prescription;  (2) The partial filling of a prescription for a controlled substance listed in schedule III, IV, or V is permissible; provided that:  (A) Each partial filling is recorded in the same manner as a refilling;  (B) The total quantity dispensed in all partial fillings does not exceed the total quantity prescribed;  (C) No dispensing occurs more than three months after the date on which the prescription was issued; and  (D) The prescription is refilled no more than two times after the initial date of the prescription, unless the prescription is renewed by the practitioner; and  (3) A prescription for a schedule II controlled substance issued for a patient in a long-term care facility or for a patient with a medical diagnosis documenting a terminal illness may be filled in partial quantities to include individual dosage units. If there is any question whether a patient may be classified as having a terminal illness, the pharmacist shall contact the practitioner prior to partially filling the prescription. Both the pharmacist and the prescribing practitioner have a corresponding responsibility to assure that the controlled substance is for a terminally ill patient. The pharmacist shall record on the prescription document on file whether the patient is "terminally ill" or a "long-term care facility patient". For the purposes of this section, "TI" means terminally ill and "LTCF" means long-term care facility. A prescription that is partially filled and does not contain the notation "TI" or "LTCF patient" shall be deemed to have been filled in violation of this section. For each partial filling, the dispensing pharmacist shall record on the back of the prescription (or on another appropriate record, uniformly maintained, and readily retrievable) the date of the partial filling, quantity dispensed, remaining quantity authorized to be dispensed, and the identification of the dispensing pharmacist. The total quantity of schedule II controlled substances dispensed in all partial fillings shall not exceed the total quantity prescribed, nor shall a prescription be partially filled more than three times after the initial date of the prescription. Schedule II controlled substance prescriptions for patients in a long-term care facility or patients with a medical diagnosis documenting a terminal illness shall be valid for a period not to exceed thirty days from the issue date unless sooner terminated by the discontinuance of medication.  (l) A prescription for a schedule II controlled substance may be transmitted by the practitioner or the practitioner's agent to a pharmacy by facsimile equipment; provided that the original written, signed prescription is presented to the pharmacist for review prior to the actual dispensing of the controlled substance, except as noted in subsections (m), (n), and (o). The original prescription shall be maintained in accordance with section 329-36. A prescription for a schedule III, IV, or V controlled substance may be transmitted by the practitioner or the practitioner's agent to a pharmacy by facsimile; provided that:  (1) The information shall be communicated only between the prescribing practitioner or the prescriber's authorized agent and the pharmacy of the patient's choice. The original prescription shall be maintained by the practitioner in accordance with section 329-36;  (2) The information shall be communicated in a retrievable, recognizable format acceptable to the intended recipient and shall include the physician's oral code designation and the name of the recipient pharmacy;  (3) No electronic system, software, or other intervening mechanism or party shall alter the practitioner's prescription, order entry, selection, or intended selection without the practitioner's approval on a per prescription per order basis. Facsimile prescription information shall not be altered by any system, software, or other intervening mechanism or party prior to receipt by the intended pharmacy;  (4) The prescription information processing system shall provide for confidentiality safeguards required by federal or state law; and  (5) Prescribing practitioners and pharmacists shall exercise prudent and professional judgment regarding the accuracy, validity, and authenticity of any facsimile prescription information. The facsimile shall serve as the original written prescription for purposes of this section and shall be maintained in accordance with section 329-36.  (m) A prescription prepared in accordance with subsection (i) written for a narcotic listed in schedule II to be compounded for the direct administration to a patient by parenteral, intravenous, intramuscular, subcutaneous, or intraspinal infusion, but does not extend to the dispensing of oral dosage units of controlled substances, may be transmitted by the practitioner or the practitioner's agent to the pharmacy by facsimile. The original prescription shall be maintained by the practitioner in accordance with section 329-36. The pharmacist shall note on the face of the facsimile prescription in red ink "Home Infusion/IV" and this facsimile shall serve as the original written prescription for purposes of this section and it shall be maintained in accordance with section 329-36.  (n) A prescription prepared in accordance with subsection (i) written for a schedule II substance for a patient enrolled in a hospice care program certified or paid for by medicare under Title XVIII or a hospice program that is licensed by the State may be transmitted by the practitioner or the practitioner's agent to the dispensing pharmacy by facsimile. The original prescription shall be maintained by the practitioner in accordance with section 329-36. The practitioner or practitioner's agent shall note on the prescription that the patient is a hospice patient. The pharmacist shall note on the face of the facsimile prescription in red ink "HOSPICE" and this facsimile shall serve as the original written prescription for purposes of this section and it shall be maintained in accordance with section 329-36.  (o) A prescription prepared in accordance with subsection (i) written for a schedule II controlled substance for a resident of a state-licensed long-term care facility may be transmitted by the practitioner or the practitioner's agent to the dispensing pharmacy by facsimile. The original prescription shall be maintained by the practitioner in accordance with section 329-36. The pharmacist shall note on the face of the facsimile prescription in red ink "LTCF" and this facsimile shall serve as the original written prescription for purposes of this section and it shall be maintained in accordance with section 329-36.  (p) An electronic prescription for a schedule II, III, IV, or V controlled substance may be electronically transmitted by the practitioner to a pharmacy; provided that:  (1) The information shall be communicated only between the prescribing practitioner and the pharmacy of the patient's choice. The electronic prescription shall be maintained by the practitioner in accordance with section 329-36;  (2) The information shall be communicated in a retrievable, recognizable format acceptable to the intended recipient;  (3) No electronic system, software, or other intervening mechanism or party shall alter the practitioner's prescription, order entry, selection, or intended selection without the practitioner's approval on a per-prescription, per-order basis. Transmitted prescription information shall not be altered by any electronic system, software, or other intervening mechanism or party prior to receipt by the intended pharmacy;  (4) The prescription information processing system shall provide for confidentiality safeguards required by any applicable federal or state law; and  (5) Prescribing practitioners and pharmacists shall exercise prudent and professional judgment regarding the accuracy, validity, and authenticity of any electronic prescription information. [L 1972, c 10, pt of 1; am L 1973, c 206, 1; am L 1979, c 194, 5; am L 1984, c 25, 2; am L 1986, c 214, 6; am L 1988, c 59, 4; am L 1991, c 159,  10 to 12; am L 1996, c 206, 2; am L 1997, c 280, 3; am L 1999, c 90, 2 and c 252, 4; am L 2002, c 165, 3; am L 2003, c 151, 8; am L 2006, c 69, 3; am L 2008, c 131, 3 and c 186, 4; am L 2009, c 117, 5; am L 2013, c 20, 3; am L 2016, c 218, 12; am L 2017, c 66, 3; am L 2018, c 18, 19 and c 152, 2; am L 2019, c 95, 2 and c 256, 1] Note  The L 2018, c 18, 19 amendment is exempt from the repeal and reenactment condition of L 2017, c 66, 6. L 2018, c 18, 53.  The L 2019, c 256, 1 amendment is exempt from the repeal and reenactment condition of L 2017, c 66, 6. L 2019, c 256, 5. Cross References  Prescription requirements not applicable to medical use of cannabis, see 329-131.
 329-39.5 Opioid warning label. In addition to any requirements for labeling of drugs under part I of chapter 328, part III of this chapter, and any other requirement for labeling of prescription drugs pursuant to state or federal law, a health care professional or pharmacist who dispenses any opioid drug shall include on the drug's package a warning label that contains wording substantially similar to the following warning:  "Caution: Opioid. Risk of overdose and addiction." [L 2018, c 151, 2]
 329-39 Labels. (a) Whenever a producer, manufacturer, or wholesaler of controlled substances, or a pharmacy sells or dispenses any such drug to:  (1) A producer, manufacturer, or wholesaler of controlled substances; or  (2) A pharmacy, physician, dentist, podiatrist, veterinarian, or practitioner; the producer, manufacturer, wholesaler, or pharmacist shall securely affix to each package in which that drug is contained: a label showing in legible English the name and address of the vendor or dispenser; and the amount, quantity, kinds, and form of controlled substances contained in each package.  (b) Whenever a pharmacist sells or dispenses any controlled substance on a prescription issued by a physician, dentist, podiatrist, or veterinarian, the pharmacist shall affix to the bottle or other container in which the drug is sold or dispensed:  (1) The pharmacy's name and business address;  (2) The serial number of the prescription;  (3) The name of the patient or, if the patient is an animal, the name of the owner of the animal and the species of the animal;  (4) The name of the physician, dentist, podiatrist, or veterinarian by whom the prescription is written; and  (5) Such directions as may be stated on the prescription.  (c) No person shall alter, deface, or remove any label affixed to a package, bottle, or other container in which a drug is sold or dispensed, except for the purpose of replacing the label with the person's own lawful authorized label. [L 1931, c 152, 10; RL 1935, 1279; RL 1945, 2610; am L 1955, c 180, 1; RL 1955, 52-21; am L 1959, c 71, 3; HRS 329-14; ren L 1972, c 10, 7(1); am L 1977, c 116, 4; gen ch 1985; am L 1996, c 206, 3]
  329-4 Duties of the Hawaii advisory commission on drug abuse and controlled substances. The Hawaii advisory commission on drug abuse and controlled substances shall:  (1) Assist the department of health in coordinating all action programs of community agencies (state, county, military, or private) specifically focused on the problem of drug abuse;  (2) Assist the department of health in carrying out educational programs designed to prevent and deter abuse of controlled substances;  (3) Create public awareness and understanding of the problems of drug abuse;  (4) Sit in an advisory capacity to the governor and other state departments as may be appropriate on matters relating to the commission's work; and  (5) Act in an advisory capacity to the director of health in substance abuse matters under chapter 321, part XVI. For the purposes of this paragraph, "substance" shall include alcohol in addition to any drug on schedules I through IV of this chapter and any substance that includes in its composition volatile organic solvents. [L 1972, c 10, pt of 1 and am c 114, 2(3); am L 1975, c 190, 3; am L 1990, c 281, 5; am L 2012, c 87, 1]
 329-40 Methadone treatment programs. (a) Notwithstanding any other provision of law to the contrary, methadone may be administered or dispensed or both as part of a state-registered and federal Substance Abuse and Mental Health Services Administration approved methadone treatment program by a practitioner who is licensed and registered under state and federal law to administer and dispense methadone for patients or by an agent of the practitioner, supervised by and under the order of the practitioner. The agent must be a pharmacist, registered nurse, or licensed practical nurse. The licensed practitioner shall be responsible for the amounts of methadone administered or dispensed in accordance with Substance Abuse and Mental Health Services Administration regulations and shall record, approve, and countersign all changes in dosage schedules.  (b) Registration of a methadone treatment program requires that:  (1) The methadone treatment program obtain a controlled substance registration from the State of Hawaii and the Drug Enforcement Administration;  (2) The medical director of a methadone treatment program obtain a controlled substance registration from the State of Hawaii and the Drug Enforcement Administration at the location of the program;  (3) Admission to a methadone treatment program be limited to the narcotic-dependent persons as defined in this chapter;  (4) Unless otherwise stated in this chapter, admission to a methadone treatment program be in accordance with Title 21 Code of Federal Regulations Part 291 and Title 42 Code of Federal Regulations Part 8;  (5) All medical orders including initial medication orders, all subsequent medication order changes, all changes in the frequency of take-home medication, and the prescription of additional take-home medication for emergency situations be authorized by a licensed registered physician employed by the program;  (6) Only the medical director or other designated program physician authorize a patient's admission for treatment in accordance with Title 21 Code of Federal Regulations Part 291 and Title 42 Code of Federal Regulations Part 8; and  (7) Take-home doses of methadone be dispensed to patients in accordance with Title 21 Code of Federal Regulations Part 291 and Title 42 Code of Federal Regulations Part 8, but shall not exceed a fourteen-day supply at any given time nor more than the maximum amount of take-homes for Levo-alphacetylmethadol (LAAM/Orlamm) that would allow a patient to be away from the clinic for dosing for more than two weeks unless authorized by the state authority.  The term "methadone treatment program" as used in this section means an organization or a person (including a private physician) that administers or dispenses methadone to a narcotic-dependent person for maintenance or detoxification treatment and who provides the medical and rehabilitative services required by Title 21 Code of Federal Regulations Part 291 or Title 42 Code of Federal Regulations Part 8 and is approved to do so by the State and by the United States Substance Abuse and Mental Health Services Administration, and who holds a controlled substance registration as required by this chapter and the United States Drug Enforcement Administration to use methadone for the treatment of narcotic-dependent persons.  The term "narcotic-dependent person" as used in this section means an individual who physiologically needs heroin or a morphine-like drug to prevent the onset of signs of withdrawal.  The term "state authority" as used in this section means the agency within the State which exercises the responsibility for governing the treatment of narcotic-dependent persons with the narcotic drug methadone. [L 1990, c 46, 1; am L 1991, c 159, 13; am L 2002, c 165, 4]
  329-41 Prohibited acts B--penalties. (a) It is unlawful for any person:  (1) Who is subject to part III to distribute, administer, prescribe, or dispense a controlled substance in violation of section 329-38 or rules authorized under section 329-31; however, a licensed manufacturer or wholesaler may sell or dispense a controlled substance to a master of a transpacific ship or a person in charge of a transpacific aircraft upon which no physician is regularly employed, for the actual medical needs of persons on board such ship or aircraft when not in port; provided schedule I or II controlled substances shall be sold to the master of such ship or person in charge of such aircraft only in accordance with the provisions set forth in 21 Code of Federal Regulations, sections 1301, 1305, and 1307, adopted pursuant to Title 21, United States Code, section 821;  (2) Who is a registrant to manufacture a controlled substance not authorized by the registrant's registration or to distribute or dispense a controlled substance not authorized by the registrant's registration to another registrant or another authorized person;  (3) To refuse or fail to make available, keep, or furnish any record, notification, order form, prescription, statement, invoice, or information in patient charts relating to the administration, dispensing, or prescribing of controlled substances;  (4) To refuse any lawful entry into any premises for any inspection authorized by this chapter;  (5) Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place for the purpose of using these substances or which is used for keeping or selling them in violation of this chapter or chapter 712, part IV;  (6) Who is a practitioner or pharmacist to dispense a controlled substance to any individual not known to the practitioner or pharmacist, except under the following circumstances:  (A) When dispensing a controlled substance directly to an individual, the practitioner or pharmacist shall first obtain and document, in a log book or an electronic database, the full name, identification number, identification type, and signature, whether by actual signature or by electronic signature capture device, of the individual obtaining the controlled substance. If the individual does not have any form of proper identification, the pharmacist shall verify the validity of the prescription and identity of the patient with the prescriber, or their authorized agent, before dispensing the controlled substance; and  (B) For mail order prescriptions, the practitioner or pharmacist shall not be subject to subparagraph (A); provided that all other requirements of chapter 329 shall apply and that the practitioner or pharmacist, as part of the initial registration process of an individual in a mail order prescription drug plan and prior to the controlled substance being dispensed, shall obtain all identification information, including the full name, identification number, identification type, signature, and a photocopy of a form of proper identification of the individual obtaining the controlled substance. The practitioner or pharmacist shall also comply with other requirements set forth by rule.  For the purpose of this section, "proper identification" means government-issued identification containing the photograph, printed name, identification number, and signature of the individual obtaining the controlled substance;  (7) Who is a practitioner to predate or pre-sign prescriptions to facilitate the obtaining or attempted obtaining of controlled substances; or  (8) Who is a practitioner to facilitate the issuance or distribution of a written prescription or to issue an oral prescription for a controlled substance when not physically in the State.  (b) It shall be unlawful for any person subject to part III of this chapter except a pharmacist, to administer, prescribe, or dispense any controlled substance without a bona fide physician-patient relationship.  (c) Any person who violates this section is guilty of a class C felony. [L 1972, c 10, pt of 1; gen ch 1985; am L 1986, c 214, 7; am L 1998, c 147, 1; am L 2006, c 69, 4; am L 2008, c 186, 5; am L 2009, c 117, 6]
  329-42 Prohibited acts C--penalties. (a) It is unlawful for any person knowingly or intentionally:  (1) To distribute as a registrant a controlled substance classified in schedule I or II, except pursuant to an order form as required by section 329-37;  (2) To use in the course of the manufacture, distribution, administration, or prescribing of a controlled substance a registration number that is fictitious, revoked, suspended, expired, or issued to another person;  (3) To obtain or attempt to obtain any controlled substance or procure or attempt to procure the administration of any controlled substance:  (A) By fraud, deceit, misrepresentation, embezzlement, theft;  (B) By the forgery or alteration of a prescription or of any written order;  (C) By furnishing fraudulent medical information or the concealment of a material fact;  (D) By the use of a false name, patient identification number, or the giving of false address;  (E) By the unauthorized use of a practitioner's oral call-in number;   (F) By the alteration of a prescription by the addition of future refills;  (G) By the unauthorized use of a practitioner's electronic prescription application; or  (H) By the unauthorized transmission of an electronic prescription;  (4) To furnish false or fraudulent material information in, or omit any material information from, any application, report, or other document required to be kept or filed under this chapter, or any record required to be kept by this chapter;  (5) To make, distribute, or possess any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as to render the drug a counterfeit substance;  (6) To misapply or divert to the person's own use or other unauthorized or illegal use or to take, make away with, or secrete, with intent to misapply or divert to the person's own use or other unauthorized or illegal use, any controlled substance that shall have come into the person's possession or under the person's care as a registrant or as an employee of a registrant who is authorized to possess controlled substances or has access to controlled substances by virtue of the person's employment; or  (7) To make, distribute, possess, or sell any prescription form, whether blank, faxed, computer generated, photocopied, electronically transmitted, or reproduced in any other manner without the authorization of the licensed practitioner.  (b) Any person who violates this section is guilty of a class C felony. [L 1972, c 10, pt of 1; am L 1991, c 159, 14; am L 1997, c 280, 4; am L 2000, c 98, 6; am L 2006, c 69, 5; am L 2008, c 186, 6; am L 2013, c 20, 4]
  329-43.5 Prohibited acts related to drug paraphernalia. (a) Except as provided in subsection (e), it is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. A violation of this subsection shall constitute a violation subject to a fine of no more than $500.  (b) Except as provided in subsection (e), it is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. A violation of this subsection shall constitute a violation subject to a fine of no more than $500.  (c) Any person eighteen years of age or over who violates subsection (b) by delivering drug paraphernalia to a person or persons under eighteen years of age who are at least three years younger than that adult person is guilty of a class B felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.  (d) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.  (e) Subsections (a) and (b) shall not apply to a person who is authorized to:  (1) Acquire, possess, cultivate, use, distribute, or transport cannabis pursuant to the definition of "medical use" under section 329-121, while the person is facilitating the medical use of cannabis by a qualifying patient; or  (2) Dispense, manufacture, or produce cannabis or manufactured cannabis products pursuant to and in compliance with chapter 329D, while the person is facilitating the medical use of cannabis by a qualifying patient pursuant to part IX of chapter 329. [L 1988, c 259, 2; am L 2016, c 230, 6; am L 2017, c 72, 2 and c 170, 2] Revision Note  In subsection (e), "marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15. Cross References  Forfeitures, see 329-55.  Sale of sterile syringes for the prevention of disease, see 325-21. Case Notes  In a prosecution under subsection (b): of a merchant, jury should be instructed that it must first find that the defendant-seller delivered the object(s) in question to the buyer with the specific intent that the object(s) be used with illegal drugs; trial court should provide jury with an instruction enumerating all fourteen factors listed in the statutory definition of drug paraphernalia. 75 H. 80, 856 P.2d 1246.  Subsection (b): not void for vagueness; contains mens rea requirement of "intentionally"; mere fact that the buyer is actually an undercover police officer, which fact is unknown to the defendant, cannot render it "factually and legally" impossible that the defendant should reasonably have known that the items sold would be used with illegal drugs. 75 H. 80, 856 P.2d 1246.  No error in court failing to dismiss count against defendant for possessing "everyday household items not intended or designed for use as drug paraphernalia" as broad definition of drug paraphernalia and multiple examples of such contraband enumerated in 329-1 weighed against defendant's contention that the ordinary nature of the containers defendant possessed did not involve the harm or evil sought to be avoided under this section or amounted to extenuations that would not have been envisioned by the legislature. 98 H. 196, 46 P.3d 498.  Legislature intended to impose penal sanctions for constructive and actual possession of contraband items. 8 H. App. 610, 822 P.2d 23.  Insufficient evidence to support jury's verdict that defendant possessed scale with intent to use it for any of the purposes stated in subsection (a). 92 H. 472 (App.), 992 P.2d 741.
  329-43.6 Overdose prevention; limited immunity. (a) As used in this section:  "Drug or alcohol overdose" means:  (1) A condition, including but not limited to extreme physical illness, decreased level of consciousness, respiratory depression, coma, mania, or death, that is the result of consumption or use of a controlled substance or alcohol or a substance with which the controlled substance or alcohol was combined; or  (2) A condition that a layperson would reasonably believe to be a drug or alcohol overdose that requires medical assistance.  "Seeks medical assistance" or "seeking medical assistance" includes but is not limited to reporting a drug or alcohol overdose to law enforcement, the 911 system, a poison control center, or a medical provider; assisting someone so reporting; or providing care to someone who is experiencing a drug or alcohol overdose while awaiting the arrival of medical assistance.  (b) A person or persons who, in good faith, seek medical assistance for someone who is experiencing a drug or alcohol overdose and a person experiencing a drug or alcohol overdose who seeks medical assistance for the person's self or is the subject of such a good faith request shall not be arrested, charged, prosecuted, or convicted; have their property subject to civil forfeiture; or otherwise be penalized for:  (1) Possession of a controlled substance or drug paraphernalia under this chapter or part IV of chapter 712;  (2) Committing a prohibited act under section 281-101.5 or 712-1250.5;  (3) Violation of a restraining order; or  (4) Violation of probation or parole; if the evidence for the arrest, charge, prosecution, conviction, seizure, or penalty was gained as a result of the seeking of medical assistance.  (c) The act of seeking medical assistance for someone who is experiencing a drug or alcohol overdose shall be considered by the court as a mitigating factor in any controlled substance or alcohol-related criminal prosecution for which immunity is not provided by this section. [L 2015, c 217, 2]
  329-43 Penalties under other laws. Any penalty imposed for violation of this chapter is in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise authorized by law. [L 1972, c 10, pt of 1]
 329-44 Notice of conviction to be sent to licensing board, department of commerce and consumer affairs. On the conviction of any physician, osteopathic physician and surgeon, dentist, podiatrist, veterinarian, practitioner, apothecary, manufacturer, wholesaler, or producer, of the wilful violation of this chapter, a copy of the sentence and of the opinion of the court or district judge, if any is filed, shall be sent by the clerk of the court, or by the judge, to the board or officer, if any, by whom the convicted defendant has been licensed to practice the convicted defendant's profession or to carry on the convicted defendant's business; and if the convicted defendant is a physician or osteopathic physician and surgeon, a copy of the sentence and of the opinion, if any, shall be sent to the department of commerce and consumer affairs. [L 1931, c 152, 16; RL 1935, 1285; RL 1945, 2616; RL 1955, 52-29; am L 1959, c 71, 3; HRS 329-22; am L 1970, c 188, 39; ren L 1972, c 10, 7(2); am L 1984, c 168, 6; am L 1985, c 197, 18; gen ch 1985]
 329-45 REPEALED. L 1991, c 159, 15.
  329-46 Prohibited acts related to visits to more than one practitioner to obtain controlled substance prescriptions. (a) It is unlawful for any person knowingly or intentionally to visit more than one practitioner and withhold information regarding previous practitioner visits for the purpose of obtaining one or more controlled substance prescriptions for quantities that:  (1) Exceed what any single practitioner would have prescribed or dispensed for the time period and legitimate medical purpose represented; and  (2) Would constitute an offense pursuant to part IV of chapter 712.  (b) Information communicated to a physician in an effort to unlawfully procure a controlled substance, or to unlawfully procure the administration, prescribing, or dispensing of any controlled substance shall not be deemed a privileged communication.  (c) Any person who violates this section is guilty of a crime which is of the grade and class identical to that imposed under part IV of chapter 712 for the same type and equivalent quantity of controlled substance. [L 1991, c 159, 2; am L 1999, c 252, 5]
  329-49 Administrative penalties. (a) Any person who violates this chapter or any rule adopted by the department pursuant to this chapter shall be fined not more than $10,000 for each separate offense. Any action taken to collect the penalty provided for in this subsection shall be considered a civil action and the fine shall be deposited into the state general fund.  (b) The director may impose by order the administrative penalty specified in this section, in addition to any other administrative or judicial remedy provided by this part, or by rules adopted pursuant to this chapter. Factors to be considered in imposing the administrative penalty include:  (1) The nature and history of the violation;  (2) Any prior violation; and  (3) The opportunity, difficulty, and history of corrective action.  For any judicial proceeding to recover the administrative penalty imposed, the administrator need only show that notice was given, a hearing was held or the time granted for requesting a hearing has expired without such a request, the administrative penalty was imposed, and the penalty remains unpaid. [L 2008, c 186, pt of 1]
 329-50 Injunctive relief. The administrator may institute a civil action in any court of competent jurisdiction for injunctive relief to prevent any violation of this chapter or any rule adopted to implement this chapter. The court shall have powers to grant relief in accordance with the Hawaii rules of civil procedure. [L 2008, c 186, pt of 1]
  329-51 Powers of enforcement personnel. Any officer or employee of the department of public safety designated by the director of public safety may:  (1) Carry firearms in the performance of the officer's or employee's official duties;  (2) Execute and serve search warrants, arrest warrants, administrative inspection warrants, subpoenas, and summonses issued under the authority of this State;  (3) Make arrests without warrant for any offense under this chapter and under part IV of chapter 712 committed in the officer's or employee's presence, or if the officer or employee has probable cause to believe that the person to be arrested has committed or is committing a violation of this chapter or part IV of chapter 712 which may constitute a felony;  (4) Make seizures of property pursuant to this chapter; or  (5) Perform other law enforcement duties as the director of public safety designates. [L 1972, c 10, pt of 1; am L 1979, c 194, 6; gen ch 1985; am L 1990, c 281, 10] Attorney General Opinions  Narcotics enforcement division investigators may carry firearms, serve warrants, subpoenas and summons, and make arrests; qualify as law enforcement officers for purposes of excluding personal use value of state vehicle from gross income. Att. Gen. Op. 91-03.
  329-52 Administrative inspections.  (a) The administrator or any of the administrator's agents may make administrative inspections of controlled premises upon presenting appropriate credentials to the registrant or persons subject to parts III, IV, VIII, and IX of this chapter or their agents in accordance with the following provisions:  (1) Inspections shall be at reasonable times and within reasonable limits and in a reasonable manner of controlled premises and vehicles in which persons registered or exempted from registration requirements under this chapter are permitted to hold, manufacture, compound, process, sell, dispense, deliver, or otherwise dispose of any controlled substance or regulated chemical designated under section 329-61 and all pertinent equipment, finished and unfinished materials, containers, and labeling therein to determine if this chapter is being violated;  (2) The administrator or any of the administrator's agents shall have access to and may copy any and all records, books, logs, or documents pertaining to the administering, prescribing, dispensing, or sale of controlled substances or regulated chemicals designated under this chapter without a warrant; and  (3) The administrator or any of the administrator's agents may inventory any stock of any controlled substance or regulated chemical designated under section 329-61 and secure samples or specimens of any drug, device, or chemical not seized as evidence by paying or offering to pay for the sample. The administrator shall make or cause to be made examinations of samples secured under this section to determine whether or not this chapter is being violated.  (b) An inspection of records authorized by this section shall not extend to financial data relating to pricing of items other than shipment and sale amounts, unless the owner, operator, or agent in charge of the controlled premises consents in writing.  (c) For purposes of this section, "controlled premises" means:  (1) Places where persons registered or exempted from registration requirements under this chapter are required to keep records; and  (2) Places, including factories, warehouses, establishments, and conveyances in which persons registered or exempted from registration requirements under this chapter are permitted to hold, manufacture, compound, process, sell, dispense, deliver, conduct chemical analysis, or otherwise dispose of any controlled substance or regulated chemical designated under section 329-61. [L 1972, c 10, pt of 1; gen ch 1985; am L 1990, c 281, 10; am L 2009, c 117, 7; am L 2016, c 218, 13]
  329-53 Injunctions. (a) The circuit courts of this State may exercise jurisdiction to restrain or enjoin violations of this chapter.  (b) The defendant may demand trial by jury for an alleged violation of an injunction or restraining order under this section. [L 1972, c 10, pt of 1]
 329-54 Cooperative arrangements and confidentiality. (a) The department of public safety shall cooperate with federal and other state agencies in discharging its responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances. To this end, it may:  (1) Arrange for the exchange of information among governmental officials concerning the use and abuse of controlled substances;  (2) Coordinate and cooperate in training programs concerning controlled substance law enforcement at local and state levels;  (3) Cooperate with the Bureau by establishing a centralized unit to accept, catalogue, file, and collect statistics, including records of drug dependent persons and other controlled substance law offenders within the State, and make the information available for federal, state and local law enforcement purposes. It shall not furnish the name or identity of a patient or research subject whose identity could not be obtained under subsection (c); and  (4) Conduct programs of eradication aimed at destroying wild or illicit growth of plant species from which controlled substances may be extracted.  (b) Results, information, and evidence received from the Bureau relating to the regulatory functions of this chapter, including results of inspections conducted by it may be relied and acted upon by the department of public safety in the exercise of its regulatory functions under this chapter.  (c) A practitioner engaged in medical research is not required or compelled to furnish the name or identity of a research subject to the department of public safety, nor may the practitioner be compelled in any state or local civil, criminal, administrative, legislative, or other proceedings to furnish the name or identity of any research subject that the practitioner is obligated to keep confidential unless the subject violates section 329-41 or 329-46 or commits an offense pursuant to part IV of chapter 712. [L 1972, c 10, pt of 1; gen ch 1985; am L 1990, c 281, 10; am L 1997, c 280, 5; am L 2016, c 218, 14]
 329-55 Forfeitures. (a) The following are subject to forfeiture according to the procedures set forth in the Penal Code:  (1) All controlled substances and anabolic steroids which have been manufactured, cultivated, grown, distributed, dispensed, or acquired in violation of this chapter;  (2) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, cultivating, growing, compounding, processing, delivering, importing, or exporting any controlled substance or anabolic steroid in violation of this chapter;  (3) All property which is used, or intended for use, as a container for property described in paragraph (1) or (2);  (4) All conveyances, including aircraft, vehicles, or vessels which are used or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale, delivery or receipt of property described in paragraph (1) or (2), subject to the provisions of chapter 712A;  (5) All books, records, and research products and materials, including formulas, microfilms, tapes, and data which are used, or intended for use, in violation of this chapter;  (6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or anabolic steroid in violation of this chapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter, subject to the provisions of chapter 712A;  (7) All firearms which are visible, carried during, or used in furtherance of a violation of this chapter or chapter 712, part IV; and  (8) All drug paraphernalia as defined by section 329-1.  (b) Property subject to forfeiture under this chapter may be seized in accordance with the provisions of chapter 712A.  (c) Controlled substances listed in schedule I that are possessed, transferred, sold, or offered for sale in violation of this chapter are contraband and shall be seized and summarily forfeited to the State. Controlled substances listed in schedule I, which are seized or come into the possession of the State, the owners of which are unknown, are contraband and shall be summarily forfeited to the State.  (d) Species of plants from which controlled substances in schedules I and II may be derived which have been planted or cultivated in violation of this chapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the State.  (e) The failure, upon demand by the department of public safety, or its authorized agent, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate registration, or proof that the person is the holder thereof, constitutes authority for the seizure and forfeiture of the plants. [L 1972, c 10, pt of 1; am L 1977, c 120, 1; am L 1980, c 216, 1; am L 1983, c 90, 1; am L 1985, c 150, 5; gen ch 1985; am L 1986, c 214, 8; am L 1988, c 259, 3 and c 260,  3, 7; am L 1990, c 168, 3, c 197, 1 and c 281, 10; am L 1993, c 196, 1; am L 1996, c 104, 6]
 329-56 Burden of proof; liabilities. (a) It is not necessary for the State to negate any exemption or exception in this chapter in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under this chapter. The burden of proof of any exemption or exception is upon the person claiming it.  (b) In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this chapter, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.  (c) No liability is imposed by this chapter upon any authorized state, county or municipal officer, engaged in the lawful performance of the officer's duties. [L 1972, c 10, pt of 1; gen ch 1985]
 329-57 Judicial review. All final determinations, findings and conclusions of the department of public safety under this chapter are final and conclusive decisions of the matters involved. Any person aggrieved by the decision may obtain review of the decision pursuant to chapter 91. Findings of fact by the department of public safety, if supported by substantial evidence, are conclusive. [L 1972, c 10, pt of 1; am L 1990, c 281, 10]
  329-58 Education and research. (a) The department of public safety shall carry out educational programs designed to prevent and determine misuse and abuse of controlled substances. In connection with these programs it may:  (1) Promote better recognition of the problems of misuse and abuse of controlled substances within the regulated industry and among interested groups and organizations;  (2) Assist the regulated industry and interested groups and organizations in contributing to the reduction of misuse and abuse of controlled substances;  (3) Consult with interested groups and organizations to aid them in solving administrative and organizational problems;  (4) Evaluate procedures, projects, techniques, and controls conducted or proposed as part of educational programs on misuse and abuse of controlled substances;  (5) Disseminate the result of research on misuse and abuse of controlled substances to promote a better public understanding of what problems exist and what can be done to combat them;  (6) Assist in the education and training of state and local law enforcement officials in their efforts to control misuse and abuse of controlled substances.  (b) The department of public safety may authorize persons engaged in research on the use and effects of controlled substances to withhold the names and other identifying characteristics of individuals who are the subjects of the research. Persons who obtain this authorization are not compelled in any civil, criminal, administrative, legislative, or other proceeding to identify the individuals who are subjects of research for which the authorization was obtained.  (c) The department of public safety may authorize the possession and distribution of controlled substances by persons engaged in research. Persons who obtain this authorization are exempt from state prosecution for possession and distribution of controlled substances to the extent of the authorization. [L 1972, c 10, pt of 1; am L 1990, c 281, 10; am L Sp 1993, c 8, 54; am L 2004, c 216, 38]
  329-59 Controlled substance registration revolving fund; established. (a) There is established within the state treasury the controlled substance registration revolving fund. The fund shall be expended at the discretion of the director of public safety for the purpose of:  (1) Offsetting the cost of the electronic prescription accountability system, investigation of violations of this chapter, the registration and control of the manufacture, distribution, prescription, and dispensation of controlled substances and regulated chemicals listed under section 329-61, within the State;  (2) Funding positions authorized by the legislature by law; and  (3) Funding the narcotics enforcement division's forensic drug laboratory facility.  (b) The fund shall consist of all moneys derived from fees collected pursuant to sections 329-31 and 329-67 and legislative appropriations. All fees collected pursuant to sections 329-31 and 329-67 shall be deposited in the controlled substance registration revolving fund. [L 1996, c 268, 3; am L 1999, c 252, 6; am L 2002, c 165, 5; am L 2008, c 119, 2; am L 2013, c 177, 3]
Note Part heading amended by L 1993, c 225, 1; L 1999, c 252, 7. Revision Note In this part, "part" substituted for "chapter". 329-61 Substances subject to reporting. (a) List 1 chemicals. Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any of the following substances to any person in this State or for use in this State shall submit a report to the department of all those transactions:  (1) Phenyl-2-propanone;  (2) Methylamine and its salts;  (3) Phenylacetic acid, its esters and salts;  (4) Ephedrine, its salts, optical isomers, and salts of optical isomers;  (5) Pseudoephedrine, its salts, optical isomers, and salts of optical isomers;  (6) Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers;  (7) Phenylpropanolamine, its salts, optical isomers, and salts of optical isomers;  (8) Hydriodic acid;  (9) Benzyl cyanide;  (10) Benzyl chloride;  (11) N-methylformamide;  (12) N-methylephedrine, its salts, optical isomers, and salts of optical isomers;  (13) N-ethylephedrine;  (14) N-ethylpseudoephedrine;  (15) N-methylpseudoephedrine, its salts, optical isomers, and salts of optical isomers;  (16) Chloroephedrine;  (17) Chloropseudoephedrine;  (18) Ethylamine;  (19) D-lysergic acid;  (20) Ergotamine and its salts;  (21) Piperidine and its salts;  (22) N-acetylanthranilic acid, its esters and salts;  (23) Anthranilic acid, its esters and salts;  (24) Propionic anhydride;  (25) Isosafrole;  (26) Safrole;  (27) Piperonal;  (28) Thionychloride;  (29) Ergonovine and its salts;  (30) 3,4-Methylenedioxyphenyl-2-propanone;  (31) Benzaldehyde;  (32) Nitroethane;  (33) Red phosphorus;  (34) Iodine crystals;  (35) Iodine at concentrations greater than 1.5 per cent by weight in a solution or matrix above the threshold of two ounces in a single transaction;  (36) Gamma butyrolactone (GBL) including butyrolactone; butyrolactone gamma; 4-butyrolactone; 2(3H)-furanone dihydro; dihydro-2(3H)-furanone; tetrahydro-2-furanone; 1,2-butanolide; 1,4-butanolide; 4-butanolide; gamma-hydroxybutyric acid lactone; 3-hydroxybutyric acid lactone; and 4-hydroxybutanoic acid lactone with chemical abstract service number 96-48-0;   (37) 1,4-butanediol, including butanediol; butane-1,4-diol; 1,4-butylene glycol; butylene glycol; 1,4-dihydroxybutane; 1,4-tetramethylene glycol; tetramethylene glycol; and tetramethylene; 1,4-diol;  (38) Hypophosphorous acid and its salts (including ammonium hypophosphite, calcium hypophosphite, iron hypophosphite, potassium hypophosphite, manganese hypophosphite, magnesium hypophosphite, and sodium hypophosphite);  (39) White phosphorus (other names yellow phosphorus); and  (40) Anhydrous ammonia.  (b) List 2 chemicals. Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any extraordinary quantity of any of the following chemicals, or sells, transfers, or otherwise furnishes the chemicals through the use of an uncommon method of payment or delivery or under any other circumstances that may make that person believe that the following chemicals could be used in violation of this part by any person in this State, shall report to the department all those transactions of:  (1) Acetic anhydride;  (2) Acetone;  (3) Ethyl ether;  (4) Potassium permanganate;  (5) 2-Butanone (or methyl ethyl ketone or MEK);  (6) Toluene;  (7) Hydrochloric acid;  (8) Sulfuric acid;   (9) Methyl isobutyl ketone (MIBK);  (10) Hydrogen chloride; and  (11) Methyl sulfone (MSM, DMS, Dimethyl sulfone or DMSO2).  (c) Additional chemicals. If a chemical is added or deleted as a regulated list 1 or list 2 chemical under federal law and notice of the designation is given to the department, the department may recommend that a corresponding change be made to state law. The department of public safety shall designate the chemical as added or deleted under this chapter after the expiration of thirty days from publication in the Federal Register of a final order and the change shall have the effect of law. If a chemical is added or deleted under this subsection, the control shall be temporary and, if the temporary designation of the added or deleted chemical is not permanently enacted in corresponding changes to this chapter at the next regular session of the legislature, the temporary designation shall be nullified.  (d) The department of public safety shall adopt rules pursuant to chapter 91 necessary for the purposes of this section; provided the rules adopted to add or subtract to list 1 or list 2 may be adopted without regard to chapter 91. [L 1990, c 200, pt of 1; am L 1993, c 225, 2; am L 1997, c 356, 5; am L 1999, c 252, 8; am L 2001, c 203, 6; am L 2003, c 151, 9; am L 2004, c 193, 3]
 329-62 Proper identification. (a) Any manufacturer, wholesaler, retailer, or other person who receives from a source outside of the State any substance specified in section 329-61 prior to selling, transferring, or otherwise furnishing any substance specified in section 329-61 to a person in this State, shall require proper identification from the purchaser.  (b) For the purposes of this section, "proper identification" means a motor vehicle operator's license or other official state-issued identification of the purchaser which contains a photograph of the purchaser; the residential or mailing address of the purchaser other than a post office box number, or the tax map key number if no other address is available; the motor vehicle license number of any motor vehicle owned or operated by the purchaser; a letter of authorization from the business for which any substance specified in section 329-61 is being furnished, which includes the general excise license number and address of the business; a full description of how the substance is to be used; and the signature of the purchaser. The person selling, transferring, or otherwise furnishing any substance specified in section 329-61 shall sign as a witness to the signature and identification of the purchaser.  (c) Any manufacturer, wholesaler, retailer or other person who does not obtain the proper identification as required by this section shall be fined not more than $5,000, or imprisoned not more than thirty days, or both. [L 1990, c 200, pt of 1]
  329-63 Person required to keep records and file reports. (a) Any manufacturer, wholesaler, retailer, or other person who sells, transfers, receives, or brings in from outside the State, or otherwise furnishes a substance specified in section 329-61, or an encapsulating or tableting machine shall keep a record of each transaction for a period of two years after the date of transaction.  (b) Any manufacturer, wholesaler, retailer, or other person who sells, transfers, receives, or brings in from outside the State, or otherwise furnishes a substance specified in section 329-61, for use by a person in this State shall report to the administrator the following:  (1) Any regulated transaction involving:  (A) An above threshold quantity;  (B) Any suspicious or out-of-the-ordinary quantity of a chemical listed in [section] 329-61;  (C) An uncommon method of payment or delivery; or  (D) Any other circumstances that the regulated person believes may indicate that the regulated chemical will be used in violation of this part;  (2) Any proposed regulated transaction with a person whose description or other identifying characteristics the department has previously furnished to the regulated person;  (3) Any unusual or excessive loss or disappearance of a regulated chemical listed under section 329-61 that is under the control of the regulated person, to include exempted items. The regulated person responsible for reporting a loss in-transit is the supplier;  (4) Any regulated transaction of a tableting machine or an encapsulating machine; and  (5) All single entity ephedrine transactions.  (c) The department of public safety shall provide a common reporting form for the substances in section 329-61 that contains at least the following information:  (1) Name of the substance;  (2) Quantity of the substance sold, transferred, or furnished;  (3) The date the substance was sold, transferred, or furnished;  (4) The name and address of the person buying or receiving the substance; and  (5) The name and address of the manufacturer, wholesaler, retailer, or other person selling, transferring, or furnishing such substance.  (d) Each report submitted pursuant to subsection (b) of this section, whenever possible, shall be made orally to the department at the earliest practicable opportunity after the regulated person becomes aware of the circumstances involved and as much in advance of the conclusion of the transaction as possible. A written report shall also be submitted to the department following an oral report. [L 1990, c 200, pt of 1; am L 1999, c 252, 9]
  329-64 Exceptions. (a) The requirements imposed by sections 329-62 and 329-63(a) of this part shall not apply to any of the following:  (1) Any pharmacist or other authorized person who sells or furnishes a substance upon the prescription of a physician, dentist, podiatrist, or veterinarian;  (2) Any physician, dentist, podiatrist, or veterinarian who administers or furnishes a substance to patients;  (3) Any manufacturer or wholesaler licensed by the State who sells, transfers, or otherwise furnishes a substance to a licensed pharmacy, physician, dentist, podiatrist, or veterinarian; and  (4) Any sale, transfer, furnishing, or receipt of any drug that contains pseudoephedrine or norpseudoephedrine that is lawfully sold, transferred, or furnished over the counter without a prescription pursuant to the federal Food, Drug, and Cosmetic Act (21 United States Code section 301 et seq.) or regulations adopted thereunder as long as it complies with the requirements of sections 329-73, 329-74, and 329-75.  (b) Notwithstanding the exceptions created by subsection (a) of this section, any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise distributes in this State any list 1 or list 2 chemical, as defined in section 329-61, and who is required to register with the federal Drug Enforcement Administration as a list I chemical distributor under federal law (or who registers as a controlled substance distributor in lieu thereof), shall submit a copy of that registration application to the department of public safety. When such application is granted, the distributor shall file a copy of the federal Drug Enforcement Administration List I Chemical Registration (or Controlled Substance Registration) with the department. The distributor shall also file with the department a duplicate copy of any reports required under federal law at the same time as such reports are filed with the federal Drug Enforcement Administration for any transactions involving list I chemicals that shall be shipped into or otherwise transferred or distributed in this State.  (c) The exceptions set forth in subsection (a) of this section shall not be a defense to any offense as set forth in section 329-65(c) and (d). [L 1990, c 200, pt of 1; am L 1999, c 252, 10; am L 2006, c 171, 2; am L 2010, c 123, 6]
  329-65 Penalty. (a) Any manufacturer, wholesaler, retailer, or other person who does not submit a report as required by section 329-63 or who knowingly submits a report with false or fictitious information shall be fined not more than $5,000, or imprisoned not more than thirty days, or both.  (b) Any manufacturer, wholesaler, retailer, or other person who has previously been convicted of violating subsection (a), upon a subsequent conviction thereof, shall be fined not more than $100,000, or imprisoned not more than one year, or both.  (c) Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any of the substances listed in section 329-61 with knowledge or the intent that the recipient will use the substance to unlawfully manufacture any controlled substance shall be fined not more than $100,000, or imprisoned not more than five years, or both. For the purpose of this part, "unlawfully manufacture" means to manufacture, compound, convert, produce, derive, process, or prepare, either directly or indirectly by chemical extraction, or independently by means of chemical synthesis, any controlled substance specified in section 329-14, 329-16, 329-18, 329-20, or 329-22 without a valid state controlled substance registration as designated under section 329-33.  (d) Any manufacturer, wholesaler, retailer, or other person who possesses any of the substances listed in section 329-61 with the intent to unlawfully manufacture any controlled substance shall be fined not more than $100,000, or imprisoned not more than ten years, or both.  (e) Any person who possesses, sells, distributes, purchases for resale, or causes to be sold, distributed, or purchased for resale any ephedrine-containing product with a label that claims or implies that consumption of the product will produce effects such as ecstasy, euphoria, increased sexual sensations, legal "highs", and other similar effects shall be fined not more than $5,000, or imprisoned not more than one year, or both.  (f) It is unlawful for any person to knowingly or intentionally obtain or attempt to obtain any of the substances listed in section 329-61 or procure or attempt to procure any substances listed in section 329-61:  (1) By fraud, deceit, misrepresentation, embezzlement, or theft;  (2) By furnishing fraudulent documentation or information or the concealment of a material fact regarding the use, location, or ultimate user of the substances listed in section 329-61; or  (3) By the use of a false name, photo identification, general excise tax information, or the giving of a false address.  (g) Any person who violates subsection (f) shall be fined not more than $100,000, or imprisoned not more than five years, or both. [L 1990, c 200, pt of 1; am L 1993, c 225, 3; am L 1999, c 252, 11; am L 2001, c 203, 7; am L 2003, c 151, 10]
  329-66 Theft, loss, and discrepancy reports. (a) The theft or loss of any substance regulated pursuant to section 329-61 discovered by any person regulated by this part shall be reported to the department of public safety within three days of the receipt of actual knowledge of the discrepancy.  (b) Any report made pursuant to this section shall also include the name of the common carrier or person who transports the substance and date of shipment of the substance. [L 1990, c 200, pt of 1]
  329-67  Permit for conduct of business; applications; forms; fees; renewal; violations. (a) Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any substance specified in section 329-61 for use by a person in this State or who receives from a source outside of the State any substance specified in section 329-61 shall obtain a permit for the conduct of that business from the department of public safety.  (b) Applications for permits shall be filed in writing and signed by the applicant, and shall set forth the name of the applicant, the business in which the applicant is engaged, the business address of the applicant, and a full description of any substance sold, transferred, or otherwise furnished, or received.  (c) The department of public safety may grant permits which shall be effective for not more than one year from the date of issuance. Applications and permits shall be uniform through the State, on forms prescribed by the department of public safety.  (d) Each applicant shall pay at the time of filing an application for a permit a fee determined by the department of public safety in accordance with the department's rules.  (e) A permit granted pursuant to this part may be renewed one year from the date of issuance, and annually thereafter, upon the filing of a renewal application and the payment of a permit renewal fee in accordance with the department's rules.  (f) (1) Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes, or receives any substance specified in section 329-61 without a permit shall be guilty of a misdemeanor; and  (2) Any manufacturer, wholesaler, retailer, or other person who has previously been convicted of violating section 329-67(a), upon a subsequent conviction thereof shall be guilty of a class C felony. [L 1990, c 200, pt of 1; am L 1999, c 252, 12]
 329-68 Protection of records; divulging confidential information prohibited; penalties. (a) All records and information required under this part shall be kept confidential; provided that disclosure of records and information to authorized state, county, and federal agencies is permissible.  (b) The department of public safety shall adopt and enforce rules as may be necessary to prevent improper acquisition or use of confidential information.  (c) Any manufacturer, wholesaler, retailer or other person, including one who is authorized to obtain information, who, knowing the information obtained is from confidential records or files, intentionally discloses the records or information other than authorized by law, or who intentionally or knowingly aids or abets in the inspection or disclosure of such records or information by any person not authorized to inspect such records and information, shall be imprisoned not more than thirty days or fined not more than $5,000, or both. [L 1990, c 200, pt of 1; am L 1993, c 225, 4]
  329-69 Subpoena powers. Subject to the privileges which witnesses have in the courts of this State, the director of public safety or the director's designated subordinate is empowered pursuant to and in accordance with the rules of court to subpoena witnesses, examine them under oath and require the production of books, papers, documents or objects where the director of public safety reasonably believes the information sought is relevant or material to enforcement of this chapter. Books, papers, documents, or objects obtained pursuant to exercise of these powers may be retained by the director of public safety or the director's designate for forty-eight hours for the purpose of examination, audit, copying, testing, or photographing. Upon application by the director of public safety, obedience to the subpoenas may be enforced by the circuit court in the county where the person subpoenaed resides or is found in the same manner as a subpoena issued by the clerk of a circuit court. [L 1990, c 200, pt of 1 and am c 281, 10; am L 2000, c 98, 7]
  329-70 Forfeiture. (a) Precursor chemicals that are possessed, transferred, sold, or offered for sale in violation of this part shall be subject to seizure and forfeiture as provided in chapter 712A.  (b) All conveyances, including aircraft, vehicles, or vessels that are used, or intended for use, to transport or in any manner facilitate the transportation of precursor chemicals for a purpose that would constitute a violation of section 329-65(c) or (d), shall be subject to seizure and forfeiture as provided in chapter 712A.  (c) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for any of the substances listed in section 329-61 that facilitate any violation of section 329-65(c) or (d), and all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of section 329-65(c) or (d), shall be subject to seizure and forfeiture as provided in chapter 712A. [L 1990, c 200, pt of 1; am L 2008, c 185, 1]
  329-71 Requirements when selling specific chemicals.  (a) Any manufacturer, wholesaler, retailer, or other person in this State who sells to any person in this State or any other state any quantity of sodium cyanide, potassium cyanide, cyclohexanone, bromobenzene, magnesium turnings, mercuric chloride, sodium metal, lead acetate, paladium black, red phosphorus, white phosphorus (other names yellow phosphorus), iodine, hydrogen chloride gas, trichlorofluoromethane (fluorotrichloromethane), dichlorodifluoromethane, 1,1,2-trichloro-1,2,2-trifluoroethane (trichlorotrifluoroethane), sodium acetate, or acetic anhydride, notwithstanding any other provision of law, shall do the following:  (1) Require proper purchaser identification for in-state sales that shall include a valid motor vehicle operator's license or other official and valid state-issued identification of the purchaser that contains a photograph of the purchaser, and includes the residential or mailing address of the purchaser, other than a post office box number, the motor vehicle license number of the motor vehicle used by the purchaser at the time of purchase, a description of how the substance is to be used, the Environmental Protection Agency certification number or general excise tax license number assigned to the individual or business entity for which the individual is purchasing any chlorofluorocarbon product, and the signature of the purchaser. Proper purchaser identification for out-of-state sales shall include all of the above information, except the motor vehicle license number and the signature of the purchaser. The out-of-state sale information shall also include the means by which the purchase was delivered or provided to the purchaser and the delivery address, if different from the identification address provided by the purchaser;   (2) Prepare a bill of sale that both describes with particularity the specific items and quantities sold and sets forth the proper purchaser identification information and affix to the bill of sale the preparer's signature as witness to the sale and identification of the purchaser;  (3) Retain the original bill of sale containing the purchaser identification information for at least three years in a readily producible manner, and produce the bill of sale containing the sale information and purchaser identification information upon demand by any law enforcement officer or authorized representative of the department; and  (4) Submit a report to the department of public safety of all sales covered by this section.   (b) Any manufacturer, wholesaler, retailer, or other person in this State who purchases any item listed in subsection (a) shall do the following:  (1) Prepare a record of the purchase including information identifying the source of the items purchased, the date of purchase, the specific items purchased, the quantities of each item purchased, and the cost of the items purchased; and  (2) Retain the record of purchase for at least three years in a readily producible manner and produce the record of purchase upon demand to any law enforcement officer or authorized representative of the department.  (c) Additional requirements for manufacturers, wholesalers, retailers, or other persons who sell iodine or red or white phosphorous are as follows:  (1) Except as provided in subsection (d), no manufacturer, wholesaler, retailer, or other person shall sell to any individual, and no individual shall buy, more than four ounces of iodine in any thirty-day period; and  (2) Except as provided in subsection (d), no manufacturer, wholesaler, retailer, or other person shall sell to any individual, and no individual shall buy, more than two ounces of red or white phosphorous in any thirty day period. This paragraph shall not apply to any sale of red phosphorous made to a person or business that is licensed or regulated by state or federal law with respect to the purchase or use of red or white phosphorous.  (d) The requirements of this section do not apply to either of the following:  (1) Any sale of iodine at concentrations less than 1.5 per cent by weight in a solution or matrix under the threshold of two ounces in a single transaction; or  (2) Any sale of iodine made to a licensed health care facility, any manufacturer licensed by the department of health, or wholesaler licensed by the Hawaii state board of pharmacy who sells, transfers, or otherwise furnishes the iodine to a licensed pharmacy, physician, dentist, podiatrist, or veterinarian.  (e) A person violating this section shall be guilty of a misdemeanor and fined not more than $100,000. [L 2004, c 193, pt of 1]
  329-72 Rules. The department of public safety may adopt rules and assess reasonable fees relating to the registration and control of the sale, distribution, or possession of regulated chemicals under part VI of chapter 329. [L 2004, c 193, pt of 1]
  329-73 REPEALED. L 2016, c 218, 18.
  329-74 Unlawful transport of pseudoephedrine. (a) A person commits the offense of unlawful transport of pseudoephedrine if the person transports more than three packages of any product the sale of which is restricted by section 329-75.  (b) For purposes of this section, "transportation" means the transfer of a pseudoephedrine product by a person other than a wholesaler, distributor, or retailer of such product authorized to conduct business as such by the State.  (c) Unlawful transport of pseudoephedrine is a misdemeanor. [L 2005, c 193, pt of 1; am L 2016, c 218, 15]
  329-75 Sales of products, mixtures, or preparations containing pseudoephedrine; reporting requirement for wholesalers. (a) Notwithstanding any other law to the contrary, a pharmacy or retailer may sell or distribute to a person without a prescription products containing not more than 3.6 grams per day or not more than nine grams per thirty-day period of pseudoephedrine, without regard to the number of transactions; provided that the pharmacy or retailer shall comply with the following conditions:  (1) The product, mixture, or preparation shall be sold or distributed from an area not accessible by customers or the general public, such as behind the counter or in a locked display case and where the pharmacy or retailer delivers the product directly into the custody of the person purchasing or obtaining the substances;  (2) Any person purchasing or otherwise obtaining any product, mixture, or preparation shall produce valid, government-issued identification containing the photograph, date of birth, printed name, signature, and address of the person purchasing or obtaining the substance;  (3) The pharmacy or retailer shall maintain a written or electronic log of required information for each sale of a nonprescription product containing pseudoephedrine, including:  (A) The date and time of any transaction under paragraph (2);  (B) The name, address, and date of birth of the person purchasing or obtaining the substance;  (C) The type of identification provided by the person purchasing or obtaining the substance and identification number;  (D) The agency issuing the identification used; and  (E) The name of the compound, mixture, or preparation, and the amount; and  (4) The pharmacy or retailer shall require every person purchasing or obtaining the substance to sign a written or electronic log attesting to the validity of the information. The information shall be retained by the pharmacy or retailer for a period of two years. The written or electronic log shall be capable of being checked for compliance against all state and federal laws, including interfacing with other states to ensure comprehensive compliance, and shall be subject to random and warrantless inspection by county or state law enforcement officers.  (b) Beginning January 1, 2013, before completing a sale of an over-the-counter product containing pseudoephedrine, a pharmacy or retailer shall electronically submit the information required pursuant to subsection (a) to the National Precursor Log Exchange administered by the National Association of Drug Diversion Investigators; provided that the National Precursor Log Exchange is available to pharmacies or retailers in the State without a charge for accessing the system. The pharmacy or retailer shall not complete the sale if the system generates a stop sale alert. Except in the case of negligence, wantonness, recklessness, or deliberate misconduct, any pharmacy or retailer using the electronic sales tracking system in accordance with this subsection shall not be civilly liable as a result of any act or omission in carrying out the duties required by this subsection and shall be immune from liability to any third party, unless the pharmacy or retailer has violated this subsection, in relation to a claim brought for such violation.  (c) If a pharmacy or retailer selling an over-the-counter product containing pseudoephedrine experiences mechanical or electronic failure of the electronic sales tracking system and is unable to comply with the electronic sales tracking requirement under this section, the pharmacy or retailer shall maintain a written log or an alternative electronic recordkeeping mechanism until such time as the pharmacy or retailer is able to comply with the electronic sales tracking requirement.  (d) A pharmacy or retailer selling an over-the-counter product containing pseudoephedrine may seek an exemption from submitting transactions to the electronic sales tracking system in writing to the administrator stating the reasons therefore. The administrator may grant an exemption for good cause shown, but in no event shall the exemption exceed one hundred eighty days. Any pharmacy or retailer that receives an exemption shall maintain a hard copy log and shall require the person purchasing or obtaining the substance to provide the information required under this section before completion of any sale. The log shall be maintained as a record of each sale for inspection by any law enforcement officer or inspector of the board of pharmacy during normal business hours.  (e) The National Association of Drug Diversion Investigators shall forward Hawaii transaction records in the National Precursor Log Exchange to the narcotics enforcement division of the department of public safety weekly and provide real-time access to National Precursor Log Exchange information through the National Precursor Log Exchange online portal to law enforcement in the State as authorized by the narcotics enforcement division; provided that the narcotics enforcement division executes a memorandum of understanding with the National Association of Drug Diversion Investigators governing access to the information; provided further that the department of public safety narcotics enforcement division shall establish the electronic tracking system in conjunction with the State's existing narcotics tracking system beginning no later than January 1, 2015.  (f) This system shall be capable of generating a stop sale alert, which shall be a notification that completion of the sale would result in the pharmacy or retailer, or person purchasing or obtaining the substance, violating the quantity limits set forth in this section. The system shall contain an override function that may be used by a pharmacy or retailer selling pseudoephedrine who has a reasonable fear that imminent bodily harm will result if the sale is not completed. Each instance where the override function is used shall be logged by the system.  (g) No person shall knowingly purchase, receive, or otherwise acquire products containing more than 3.6 grams per day or more than nine grams per thirty-day period of pseudoephedrine, except that this limit shall not apply to any quantity of such product, mixture, or preparation dispensed pursuant to a valid prescription.  (h) Any person who violates subsection (g) is guilty of a class C felony.  (i) The department, by rule, may exempt other products from this section, if the administrator finds that the products are not used in the illegal manufacture of methamphetamine or other controlled substances. A manufacturer of a drug product may apply for removal of the product from this section if the product is determined by the administrator to have been formulated in such a way as to effectively prevent the conversion of the active ingredient into methamphetamine.  (j) Notwithstanding any other provision of this chapter to the contrary, every wholesaler shall report to the administrator all sales made to any retailer, of any product, mixture, or preparation containing any detectable quantity of pseudoephedrine, its salts, optical isomers, or salts of optical isomers, as the only active ingredient or in combination with other active ingredients. The department shall provide a common reporting form that contains at least the following information about the product, mixture, or preparation:  (1) Generic or other name;  (2) Quantity sold;  (3) Date of sale;  (4) Name and address of the wholesaler; and  (5) Name and address of the retailer.  (k) Intentional or knowing failure of a retailer or pharmacy to transmit any information as required by this section shall be a misdemeanor and shall result in the immediate suspension of that retailer's ability to sell any product, mixture, or preparation containing any detectable quantity of pseudoephedrine, its salts, optical isomers, or salts of optical isomers as the only active ingredient or in combination with other active ingredients until authorized by the administrator. [L 2005, c 193, pt of 1; am L 2006, c 171, 3; am L 2008, c 119, 7 and c 184, 1; am L 2012, c 119, 1; am L 2013, c 48, 4]
   329-81 to 91 REPEALED. L 1993, c 225, 5.
  329B-1 Purpose. The purpose of this chapter is to ensure that appropriate and uniform substance abuse test procedures are employed throughout the State, to protect the privacy rights of persons tested, and to achieve reliable and accurate results. [L 1990, c 236, pt of 1]
  329B-2.5 Exemptions. This chapter does not apply to:  (1) Toxicology tests used in the direct clinical management of patients;  (2) Tests for alcohol under chapter 286 or chapter 291;  (3) Tests made pursuant to subpart C of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (53 Federal Register 11986); and  (4) Substance abuse testing of individuals under the supervision or custody of the judiciary, the department of public safety, the Hawaii paroling authority, and the office of youth services. However, these state governmental entities shall establish chain of custody procedures which require that all specimens be sealed and coded in the presence of the individual being tested and that the individual shall sign an approved form acknowledging that the specimen has been sealed and coded in the individual's presence. The procedure shall include a tracking form documenting the handling and storage of the specimen from collection to final disposition of the specimen. The individual also shall be afforded the option of a confirmatory test by a licensed, certified laboratory. The cost of the confirmatory test shall be paid for by the State; provided that in those instances where a positive test result is confirmed, the individual shall be charged with the cost of the confirmation test. Test results shall not require review by a medical review officer. Positive test results of substance abuse testing and the availability of a confirmatory test shall be provided to the individual in writing. A positive test result from a substance abuse test that fails to meet the requirements of this section shall not be reported or recorded. [L 1993, c 158, 1]
 329B-2 Definitions. As used in this [chapter]:  "Confirmatory test" means a drug or alcohol test that uses a method of analysis determined by the director of health to be reliable in establishing the identity and quantity of alcohol, drugs, or metabolites of drugs detected in an initial screening test.  "Department" means the department of health.  "Director" means the director of health.  "Drug" means a controlled substance as defined in chapter 329.  "Medical review officer" means an individual who has knowledge of substance abuse disorders and toxicology as determined by the department, and is appointed by the third party to receive, review, and interpret the results of laboratory tests requested by the third party. The department may specify through rules the qualifications of a medical review officer, and any additional responsibilities that may be required to carry out this chapter.  "Positive test result" means a finding through confirmatory testing of the presence of drugs, alcohol, or the metabolites of drugs in the sample tested in the levels at or above the cutoff levels established by the director.  "Substance abuse on-site screening test" means a portable substance abuse test that meets the requirements of the United States Food and Drug Administration for commercial distribution or is manufactured by a facility that is minimally certified as meeting the ISO 13485 standard established by the International Organization for Standardization and which may be used by an employer in the workplace.  "Substance abuse test" means any testing procedure designed to take and analyze body fluids or materials from the body for the purpose of measuring the amount of drugs, alcohol, or the metabolites of drugs in the sample tested.  "Third party" means any person, agency, employer or any other entity who requests substance abuse testing of another person or persons. Unless otherwise specified, the "third party" shall include the party's designated staff. [L 1990, c 236, pt of 1; am L 1992, c 201, 2; am L 1993, c 158, 2; am L 1999, c 206, 2; am L 2007, c 179, 1]
  329B-3 Limitations. No third party shall require, request, or suggest that any individual submit to a substance abuse test that does not meet all the requirements of this chapter except for third parties who are covered by a drug testing regulation adopted by the department of transportation or the United States Department of Transportation or any other federal agencies. All costs, including confirmatory testing costs, shall be paid for by the third party. Nothing in this chapter shall be construed to preclude the department or any laboratory certifying agency approved by the director from examining the records of laboratories, including substance abuse on-site screening locations, licensed for substance abuse testing to ascertain compliance with licensure or certification requirements, or to preclude the administration of breath tests to determine the alcohol content of the tested individual's blood for purposes of this chapter. [L 1990, c 236, pt of 1; am L 1999, c 206, 3]
 329B-4 Laboratory requirements. (a) All substance abuse testing performed in the State shall be performed by a testing laboratory licensed by the department for that purpose, or certified for substance abuse testing by the Substance Abuse and Mental Health Services Administration of the United States Department of Health and Human Services, and approved by the director, except as provided in section 329B-5.5.  (b) Testing of samples from this State performed in another state shall be performed only by laboratories certified for substance abuse testing by the Substance Abuse and Mental Health Services Administration of the United States Department of Health and Human Services, and approved by the director. No laboratory located outside of the State shall be licensed by the department to perform substance abuse testing.  (c) The director shall adopt rules governing:  (1) Standards for approval and licensure of qualified testing laboratories, and suspension and revocation of a license;  (2) Qualifications of laboratory personnel;  (3) Body component samples that are appropriate for substance abuse testing;  (4) Selection of medical review officers determined to be qualified by the department, and procedures to be followed by medical review officers in the reception, review, and interpretation of the results of laboratory tests requested by a third party;  (5) Procedures for taking samples that ensure privacy to the individuals tested and prevent or detect tampering with the sample;  (6) Methods of analysis and procedures to ensure reliable testing results, including standards for initial screening and confirmatory tests; provided that confirmatory tests for drugs or metabolites of drugs shall utilize a gas chromatograph with a mass spectrometer detector or other reliable methods approved by the director;  (7) Cutoff levels of alcohol, drugs, or the metabolites of drugs;  (8) Chain of custody procedures to ensure proper identification, labeling, and handling of the samples to be tested;  (9) Retention and storage procedures and durations to ensure availability of samples for retesting when necessary;  (10) Establishing fees for licensing of laboratories;  (11) Retention of substance abuse test information by the laboratory; and  (12) Procedures to ensure confidentiality of the substance abuse testing procedures and substance abuse test information.  (d) No laboratory shall be licensed to perform substance abuse testing in the State unless the laboratory participates in and continues to demonstrate satisfactory performance in drug proficiency testing as determined by the director. [L 1990, c 236, pt of 1; am L 1993, c 139, 1 and c 158, 3; am L 1999, c 206, 4] Revision Note  Subsections redesignated.
  329B-5.5 Substance abuse on-site screening tests, testing procedures, and confidentiality. The substance abuse on-site screening test shall be administered according to the instructions of the manufacturer and this section:  (1) Every employer using a substance abuse on-site screening test shall administer the test according to the package insert that accompanies the substance abuse on-site screening test;  (2) Any indication of the presence of drugs, alcohol, or the metabolites of drugs by the substance abuse on-site screening test shall not be used to deny or deprive a person of employment or any benefit, or result in any adverse action against the employee or prospective employee, unless a substance abuse test is conducted according to section 329B-5 and the requirements of paragraph (3) are met;  (3) Upon the indication of the presence of drugs, alcohol, or the metabolites of drugs by the substance abuse on-site screening test, the employer shall have the employee or prospective employee report within four hours to a laboratory licensed by the department under section 329B-4 and be tested under section 329B-5. The employer shall bear the cost of the laboratory referral. An employee or prospective employee who fails to report for the substance abuse test may be denied or deprived of employment or any benefit, or have adverse action taken against the employee or prospective employee for refusing or failing to report for the substance abuse test; provided that the employer has provided to the employee or prospective employee written notice stating that:  (A) At the time of the substance abuse on-site screening test, the employer followed the procedures under section 329B-5.5;  (B) The employee or prospective employee was informed that the employee or prospective employee may refuse to submit to the substance abuse test; and  (C) If the employee or prospective employee refuses or fails to submit to the substance abuse test, the employer may take adverse employment action against the employee or prospective employee;  (4) The operator who administers the substance abuse on-site screening test shall have been trained in the use and administering of the on-site screening test by the manufacturer of the on-site screening test or the manufacturer's designee; and  (5) Any information concerning the substance abuse on-site screening test shall be strictly confidential. Such information shall not be released to anyone without the informed written consent of the individual tested and shall not be released or made public upon subpoena or any other method of discovery, except that information relating to a positive on-site screening test result of an individual shall be disclosed to the individual, a third party, the laboratory to which the individual is referred, and the decision maker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the individual tested and arising from the positive on-site screening test result. [L 1999, c 206, 1; am L 2007, c 179, 2]
  329B-5 Substance abuse testing procedures and interpretation of test results. (a) Prior to the collection of any sample for substance abuse testing, the individual to be tested shall receive a written statement of the specific substances to be tested for and a statement that over-the-counter medications or prescribed drugs may result in a positive test result.  (b) In accordance with this section, the director shall adopt rules pertaining to:  (1) The qualifications, responsibilities, and licensing of the medical review officer;   (2) The method of transmittal of laboratory test results and any interpretations of test results to the third party and the tested individual; and   (3) The obtaining, disclosure, and confidentiality of substance abuse testing information.  (c) No laboratory, including a substance abuse on-site screening location, may test for any substance not included on the written statement containing the specific substances to be tested for.  (d) As used in this section, "test results" means laboratory test results or the results of substance abuse on-site screening tests. [L 1990, c 236, pt of 1; am L 1999, c 206, 5; am L 2001, c 53, 1]
  329B-6 Test results. (a) The laboratory report shall include the following information and shall be reported in a timely manner:  (1) The type of test conducted;  (2) The test results, which, for each substance tested can be negative due to a negative screening or confirmatory test result, positive due to a positive confirmatory test result, or no result due to an unsatisfactory sample or other reason;  (3) The cutoff level used to distinguish positive and negative samples on both the initial and confirmatory tests;  (4) The name and address of the laboratory; and  (5) Any additional information provided by the laboratory concerning the individual's test.  (b) The indication of a substance below the cutoff level as established by the director shall be recorded as a negative test result. The laboratory's report shall not contain any information indicating the possible presence of a substance below a cut-off level, as so established.  (c) Any information concerning a substance abuse test pursuant to this chapter shall be strictly confidential. Such information shall not be released to anyone without the informed written consent of the individual tested and shall not be released or made public upon subpoena or any other method of discovery, except that information related to a positive test result of an individual shall be disclosed to the individual, the third party, or the decision maker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the individual tested and arising from positive confirmatory test result. Any person who receives or comes into possession of any information protected under this chapter shall be subject to the same obligation of confidentiality as the party from whom the information was received.  (d) Failure to adopt or adhere to all the procedures contained in this chapter shall invalidate the test result and the result may not be reported or otherwise used for any purpose. [L 1990, c 236, pt of 1]
  329B-7 Remedies. [(a)] Any person, agency, or entity that wilfully and knowingly violates any provision of this chapter shall be fined not less than $1,000 but not more than $10,000 for each violation as set by the department, plus reasonable court costs and attorney's fees as determined by the court, which penalty and costs shall be paid to the aggrieved person. This subsection shall not be construed as limiting the right of any person or persons to recover actual damages.  (b) In addition to any other enforcement mechanism allowed by law, any person, agency, or entity that commits, or proposes to commit, any act in violation of this chapter may be enjoined therefrom by a court of competent jurisdiction. An action for injunctive relief under this subsection may be brought by any aggrieved person that will fairly and adequately represent the interests of the protected class. [L 1990, c 236, pt of 1]
  329B-8 Rulemaking. The department may adopt rules under chapter 91 necessary to implement this chapter. [L 1990, c 236, pt of 1]
  329C-1 Definitions. Whenever used in this chapter, unless the context otherwise requires:  "Controlled substance" means a substance as defined in section 329-1.  "Distribute" means the actual, constructive, or attempted transfer, delivery, or dispensing to another of an imitation controlled substance.  "Imitation controlled substance" means a substance that is not a controlled substance, which by dosage unit, appearance (including color, shape, size, and markings), or by representations made, would lead a reasonable person to believe that the substance is a controlled substance. In any case when the appearance of the dosage unit is not reasonably sufficient to establish that the substance is an "imitation controlled substance" (for example in the case of powder or liquid), the court or authority concerned shall consider, in addition to all other logically relevant factors, the following factors as related to representations made in determining whether the substance is an imitation controlled substance:  (1) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect;  (2) Statements made to the recipient that the substances may be resold for inordinate profit;  (3) Whether the substance is packaged in a manner normally used for illicit controlled substances;  (4) Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities;  (5) Prior convictions, if any, of an owner, or anyone in control of the object, under state or federal law related to controlled substances or fraud; and  (6) The proximity of the substances to controlled substances.  "Manufacture" means the production, preparation, or repackaging, labeling, or relabeling, of an imitation controlled substance. [L 1984, c 222, pt of 1]
  329C-2 Offenses. (a) No person shall manufacture, distribute, or possess with intent to distribute, an imitation controlled substance. Any person who violates this subsection shall be guilty of a misdemeanor.  (b) No person eighteen years of age or over shall violate subsection (a) by distributing an imitation controlled substance to a person under eighteen years of age. Any person who violates this subsection shall be guilty of a class C felony.  (c) No person shall use, or possess with intent to use, an imitation controlled substance. Any person who violates this subsection shall be guilty of a petty misdemeanor, except that possession of a substance imitating a controlled substance which is subject to section 712-1249 shall constitute a violation.  (d) No person shall place in any newspaper, magazine, handbill, or other publication, or post or distribute in any public place, any advertisement or solicitation with reasonable knowledge that the purpose of the advertisement or solicitation is to promote the distribution of imitation controlled substances. Any person who violates this subsection shall be guilty of a misdemeanor.  (e) No civil or criminal liability shall be imposed by virtue of this chapter on any person registered under chapter 329 who manufactures, distributes, or possesses an imitation controlled substance for use as a placebo by a registered practitioner in the course of professional practice or research. [L 1984, c 222, pt of 1]
 329C-3 Forfeiture. All imitation controlled substances are subject to forfeiture according to the procedures set forth in chapter 712A. [L 1984, c 222, pt of 1; am L 1989, c 261, 13]
 329D-1 Definitions. As used in this chapter:  "Cannabis" shall have the same meaning as in section 329-121.  "Caregiver of a qualifying out-of-state patient" shall have the same meaning as in section 329-121.  "Department" means the department of health.  "Dispense" or "dispensing" means the act of a licensed dispensary providing cannabis or manufactured cannabis products to a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient for a fee.  "Enclosed indoor facility" means a permanent, stationary structure with a solid floor, rigid exterior walls that encircle the entire structure on all sides, and a roof that protects the entire interior area from any exterior view and elements of weather; provided that the roof of an enclosed indoor facility utilized as a production center pursuant to a medical cannabis dispensary license application or license renewal application submitted after January 29, 2016, may be partially or completely transparent or translucent. An enclosed indoor facility excludes a greenhouse or shade house that does not comply with these requirements. Nothing in this definition shall be construed to relieve a medical cannabis dispensary license applicant or license renewal applicant of the duty to comply with all applicable building codes and regulations.  "Manufacture" means the preparation, propagation, compounding, conversion, or processing of a substance containing cannabis or its principal psychoactive constituent tetrahydrocannabinol, either directly or indirectly, by a person other than a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient for the qualifying patient's or qualifying out-of-state patient's use, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.  "Manufactured cannabis product" means any capsule, lozenge, oil or oil extract, tincture, ointment or skin lotion, pill, transdermal patch, or pre-filled and sealed container used to aerosolize and deliver cannabis orally, such as an inhaler or nebulizer, that has been manufactured using cannabis, or any other products as specified by the department pursuant to section 329D-10(a)(11).  "Medical cannabis dispensary" or "dispensary" means a person licensed by the State pursuant to this chapter to own, operate, or subcontract up to two production centers and up to two retail dispensing locations.  "Medical cannabis production center" or "production center" means a farm or facility wholly owned, operated, or subcontracted by a person licensed by the State pursuant to this chapter as a medical cannabis dispensary that produces cannabis and manufactured cannabis products solely to supply cannabis and manufactured cannabis products to one or more of the retail dispensing locations of the licensed medical cannabis dispensary.  "Person" means an individual, firm, corporation, partnership, association, or any form of business or legal entity.  "Primary caregiver" shall have the same meaning as in section 329-121.  "Production" or "produce" means the planting, cultivating, growing, or harvesting of cannabis. "Production" includes the manufacture of medical cannabis products pursuant to this chapter.  "Qualifying out-of-state patient" and "registered qualifying out-of-state patient" shall have the same meaning as in section 329-121.  "Qualifying patient" shall have the same meaning as in section 329-121.  "Retail dispensing location" means an establishment owned, operated, or subcontracted by a medical cannabis dispensary where cannabis and manufactured cannabis are made available for retail sale to a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient.  "Subcontractor" or "contractor" means any person or entity with whom the dispensary licensee has a contract to perform any of its production center or retail dispensing location operations; provided that it does not include a person or entity retained by a dispensary licensee to perform services ancillary to the operations of a dispensary, including but not limited to construction, installation, or maintenance of the dispensary's facility, security systems, or tracking system, and laboratory testing. [L 2015, c 241, pt of 2; am L 2016, c 230, 14; am L 2017, c 170, 2; am L 2018, c 116, 13; am L 2019, c 111, 13; am L 2020, c 38, 2] Revision Note  Definitions of "cannabis", "'dispense' or 'dispensing'", "manufacture", "manufactured cannabis product", "'medical cannabis production center' or 'production center'", "'production' or 'produce'", and "retail dispensing location": "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
  329D-10 Types of manufactured cannabis products. (a) The types of medical cannabis products that may be manufactured and distributed pursuant to this chapter shall be limited to:  (1) Capsules;  (2) Lozenges;  (3) Pills;  (4) Oils and oil extracts;  (5) Tinctures;  (6) Ointments and skin lotions;  (7) Transdermal patches;  (8) Pre-filled and sealed containers used to aerosolize and deliver cannabis orally, such as with an inhaler or nebulizer; provided that containers need not be manufactured by the licensed dispensary but shall be filled with cannabis, cannabis oils, or cannabis extracts manufactured by the licensed dispensary; shall not contain nicotine, tobacco-related products, or any other non-cannabis derived products; and shall be designed to be used with devices used to provide safe pulmonary administration of manufactured cannabis products;  (9) Devices that provide safe pulmonary administration; provided that:  (A) The heating element of the device, if any, is made of inert materials such as glass, ceramic, or stainless steel, and not of plastic or rubber;  (B) The device is distributed solely for use with single-use, pre-filled, tamper-resistant, sealed containers that do not contain nicotine or other tobacco products;  (C) The device is used to aerosolize and deliver cannabis by inhalation, such as an inhaler, medical-grade nebulizer, or other similar medical grade volitization device;  (D) There is a temperature control on the device that is regulated to prevent the combustion of cannabis oil; and  (E) The device need not be manufactured by the licensed dispensary;  (10) Other products, including edible cannabis products, as specified by the department; and  (11) Other products as specified by the department.  (b) As used in this section, "lozenge" means a small tablet manufactured in a manner to allow for the dissolving of its medicinal or therapeutic component slowly in the mouth.  (c) As used in this section, "edible cannabis products" means manufactured cannabis products intended for gastrointestinal administration of any cannabinoid extracted from the cannabis plant and regulated as manufactured cannabis products and not as a "drug" or "food" as defined and regulated in chapter 328, or as "bottled water" as defined and regulated in chapter 328D.  (d) Any medical cannabis product manufactured pursuant to this chapter shall be regulated and approved by the department and meet all requirements of rules adopted pursuant to this chapter; provided that the department shall establish requirements for child-resistant packaging and accurate and proper labeling. [L 2015, c 241, pt of 2; am L 2016, c 230, 17; am L 2017, c 170, 2; am L 2018, c 116, 27; am L 2020, c 38, 4] Revision Note  In subsection (a)(8), "marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
  329D-11 Advertising and packaging. (a) The department shall establish standards regarding the advertising and packaging of cannabis and manufactured cannabis products; provided that the standards, at a minimum, shall require the use of packaging that:  (1) Is child-resistant and opaque so that the product cannot be seen from outside the packaging;  (2) Uses only black lettering on a white background with no pictures or graphics;  (3) Is clearly labeled with the phrase "For medical use only";  (4) Is clearly labeled with the phrase "Not for resale or transfer to another person";  (5) Includes instructions for use and "use by date";  (6) Contains information about the contents and potency of the product;  (7) Includes the name of the production center where cannabis in the product was produced, including the batch number and date of packaging;  (8) Includes a barcode generated by tracking software; and  (9) In the case of a manufactured cannabis product, includes a:  (A) Listing of the equivalent physical weight of the cannabis used to manufacture the amount of the product that is within the packaging, pursuant to section 329D-9(c);  (B) Clearly labeled warning stating that the product:  (i) Is a medication that contains cannabis, and is not a food; and  (ii) Should be kept away from children; and  (C) Date of manufacture.  (b) Any capsule, lozenge, or pill containing cannabis or its principal psychoactive constituent tetrahydrocannabinol shall be packaged so that one dose, serving, or single wrapped item contains no more than ten milligrams of tetrahydrocannabinol; provided that no manufactured cannabis product that is sold in a pack of multiple doses, servings, or single wrapped items, nor any containers of oils, shall contain more than a total of one thousand milligrams of tetrahydrocannabinol per pack or container; provided further that no dispensary shall exceed the dispensing limits imposed by section 329D-7.  (c) All manufactured cannabis products shall be individually wrapped at the original point of manufacture.  (d) The department shall be authorized to allow dispensaries to provide, disseminate, and publish educational and scientific materials relating to medical cannabis and its approved products and sponsor events about medical cannabis. [L 2015, c 241, pt of 2; am L 2017, c 170, 2; am L 2018, c 116, 28; am L 2020, c 38, 5] Revision Note  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
  329D-12 Background checks. (a) The following shall be subject to background checks conducted by the department or its designee, including but not limited to criminal history record checks in accordance with section 846-2.7:  (1) Each applicant and licensee for a medical cannabis dispensary license, including the individual applicant and all officers, directors, members of a limited liability corporation; shareholders with at least twenty-five per cent or more ownership interest in a corporation; and managers of an entity applicant;  (2) Each employee of a medical cannabis dispensary;  (3) Each employee of a subcontracted production center or retail dispensing location;  (4) All officers, directors, members of a limited liability corporation; and shareholders with at least twenty-five per cent or more ownership interest in a corporate owner of a subcontracted production center or retail dispensing location; and  (5) Any person permitted to enter and remain in a dispensary facility pursuant to section 329D-15(a)(4) or 329D-16(a)(3). The person undergoing the background check shall provide written consent and all applicable processing fees to the department or its designee to conduct the background checks.  (b) This section shall not apply to:  (1) A qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient who enters or remains on the premises of a retail dispensing location for the purpose of a transaction conducted pursuant to sections 329D-6 and 329D-13; or  (2) Government officials and employees acting in an official capacity and employees of a certified laboratory who enter or remain on the premises of a retail dispensing location or production center for any purpose authorized by this chapter. [L 2015, c 241, pt of 2; am L 2016, c 230,  18, 19; am L 2017, c 170, 2; am L 2018, c 116, 17] Note  L 2016, c 230, 25(2) provides:  "SECTION 25. This Act shall take effect on July 1, 2016; provided that:  *** (2) Section 19 [amending 329D-12(a)] shall take effect on January 1, 2017, and shall not apply to medical marijuana dispensary license applications submitted on or before January 29, 2016; provided that section 19 shall apply to medical marijuana dispensary license renewal applications and to medical marijuana license applications submitted after January 29, 2016."
 329D-13 Dispensing limits. (a) A qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient shall be allowed to purchase no more than four ounces of cannabis within a consecutive period of fifteen days, or no more than eight ounces of cannabis within a consecutive period of thirty days.  (b) A qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient may purchase cannabis from any dispensary location in the State, subject to the limits set forth in subsection (a).  (c) Beginning on January 1, 2018, this section may apply to qualifying out-of-state patients from other states, territories of the United States, or the District of Columbia; provided that the patient meets the registration requirements of section 329-123.5. [L 2015, c 241, pt of 2; am L 2018, c 116, 18] Revision Note  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
 329D-14 Prohibited acts related to exceeding limits; fraud; penalties. (a) It shall be unlawful for any person to obtain or attempt to procure any medical cannabis or medical cannabis product by:  (1) Fraud, deceit, misrepresentation, embezzlement, or theft;  (2) The forgery or alteration of a medical cannabis permit;  (3) Furnishing fraudulent medical information or the concealment of a material fact;  (4) The use of a false name or patient identification number, or the giving of a false address; or  (5) The alteration of a state issued medical use of cannabis permit card.  (b) Any person who violates subsection (a) shall be guilty of a class C felony. [L 2015, c 241, pt of 2; am L 2017, c 170, 2]
 329D-15 Criminal offense; unauthorized access to retail dispensing location. (a) No person shall intentionally or knowingly enter or remain upon the premises of a medical cannabis retail dispensing location unless the individual is:  (1) An individual licensee or registered employee of the dispensary;  (2) A qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient;  (3) A government employee or official acting in the person's official capacity; or  (4) Previously included on a current department-approved list provided to the department by the licensee of those persons who are allowed into that dispensary's facilities for a specific purpose for that dispensary, including but not limited to construction, maintenance, repairs, legal counsel, providers of paratransit or other assistive services required by a qualifying patient to access a retail dispensary location, or investors; provided that:  (A) The person has been individually approved by the department to be included on the list;  (B) The person is at least twenty-one years of age, as verified by a valid government issued identification card;  (C) The department has confirmed that the person has no felony convictions;  (D) The person is escorted by an individual licensee or registered employee of the dispensary at all times while in the dispensary facility;  (E) The person is only permitted within those portions of the dispensary facility as necessary to fulfill the person's purpose for entering;  (F) The person is only permitted within the dispensary facility during the times and for the duration necessary to fulfill the person's purpose for entering;  (G) The dispensary shall keep an accurate record of each person's first and last name, date and times upon entering and exiting the dispensary facility, purpose for entering, and the identity of the escort; and  (H) The approved list shall be effective for one year from the date of the department approval.  (b) No individual licensee or registered employee of a medical cannabis dispensary with control over or responsibility for a retail dispensing location shall intentionally or knowingly allow another to enter or remain upon the premises of the retail dispensing location, unless the other is permitted to enter and remain as specified in subsection (a).  (c) Unauthorized access to a retail dispensing location is a class C felony. [L 2015, c 241, pt of 2; am L 2017, c 41, 9 and c 170, 2; am L 2018, c 116, 19]
 329D-16 Criminal offense; unauthorized access to production centers. (a) No person shall intentionally or knowingly enter or remain upon the premises of a medical cannabis production center unless the person is:  (1) An individual licensee or registered employee of the production center;  (2) A government employee or official acting in the person's official capacity; or  (3) Previously included on a current department-approved list provided to the department by the licensee of those persons who are allowed into that dispensary's facilities for a specific purpose for that dispensary, including but not limited to construction, maintenance, repairs, legal counsel, or investors; provided that:  (A) The person has been individually approved by the department to be included on the list;  (B) The person is at least twenty-one years of age, as verified by a valid government issued identification card;  (C) The department has confirmed that the person has no felony convictions;  (D) The person is escorted by an individual licensee or registered employee of the dispensary at all times while in the dispensary facility;  (E) The person is only permitted within those portions of the dispensary facility as necessary to fulfill the person's purpose for entering;  (F) The person is only permitted within the dispensary facility during the times and for the duration necessary to fulfill the person's purpose for entering;   (G) The dispensary shall keep an accurate record of each person's identity, date and times upon entering and exiting the dispensary facility, purpose for entering, and the identity of the escort; and  (H) The approved list shall be effective for one year from the date of department approval.  (b) No individual licensee or registered employee of a medical cannabis dispensary with control over or responsibility for a production center shall intentionally or knowingly allow another to enter or remain upon the premises of the production center, unless the other is permitted to enter and remain as specified in subsection (a).  (c) Unauthorized access to a production center is a class C felony. [L 2015, c 241, pt of 2; am L 2017, c 170, 2]
 329D-17 Prohibition of distribution of medical cannabis and medical cannabis products to minors; penalties. (a) A person commits the offense of promoting medical cannabis or medical cannabis products to a minor if the person intentionally or knowingly distributes any amount of cannabis or manufactured cannabis products that came from a dispensary or production center to a minor who is not a registered qualifying patient or a registered qualifying out-of-state patient under eighteen years of age.  (b) Any person who violates this section shall be guilty of a class B felony. [L 2015, c 241, pt of 2; am L 2017, c 170, 2; am L 2018, c 116, 20] Revision Note  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
 329D-18 Diversion from dispensary or production center; penalties. (a) A person commits diversion from a dispensary or production center if the person is a licensee, operator, or employee of a dispensary or production center and intentionally or knowingly diverts to the person's own use or other unauthorized or illegal use, or takes, makes away with, or secretes, with intent to divert to the person's own use or other unauthorized or illegal use, any medical cannabis, manufactured cannabis product, or cannabis concentrate under the person's possession, care, or custody as a licensee, operator, or employee of a medical cannabis dispensary or production center licensed by the department.  (b) Any person who violates this section shall be guilty of a class C felony. [L 2015, c 241, pt of 2; am L 2017, c 170, 2] Revision Note  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
 329D-19 Criminal offense; alteration or falsification of medical cannabis dispensary records. (a) A person commits the offense of alteration or falsification of medical cannabis dispensary records if the person intentionally or knowingly:  (1) Makes or causes a false entry in medical cannabis dispensary records;  (2) Alters, erases, obliterates, deletes, removes, or destroys a true entry in medical cannabis dispensary records;  (3) Omits to make a true entry in medical cannabis dispensary records in violation of a duty that the person knows to be imposed upon the person by law or by the nature of the person's position; or  (4) Prevents the making of a true entry or causes the omission thereof in medical cannabis dispensary records.  (b) Alteration or falsification of medical cannabis dispensary records is a class C felony.  (c) For the purposes of this section:  "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or other similar capabilities.  "Information" includes data, text, images, sounds, codes, computer programs, software, or databases.  "Medical cannabis dispensary records" means any inventory tracking records and other records maintained by a licensed medical cannabis dispensary, including the records of its retail dispensing locations and production centers, that are required by law to be created and retained or provided to the department.  "Record" means information that is written or printed or that is stored in an electronic or other medium and is retrievable in a perceivable form. [L 2015, c 241, pt of 2; am L 2017, c 170, 2]
 329D-2.5 Office of medical cannabis control and regulation; established; duties. (a) There is established within the department the office of medical cannabis control and regulation, which shall report to the deputy director of health resources administration.  (b) The office of medical cannabis control and regulation shall administer medical cannabis dispensary licensure and regulation, pursuant to this chapter, and the registration of qualifying patients and primary caregivers, pursuant to part IX of chapter 329. [L 2018, c 159, 2]
 329D-2 Medical cannabis dispensaries; authorized; licensure. (a) No person shall operate a medical cannabis dispensary unless the person has a license issued by the department pursuant to this chapter.  (b) The director of health shall grant medical cannabis dispensary licenses to allow dispensaries to produce, manufacture, and dispense cannabis and manufactured cannabis products pursuant to this chapter.  (c) Each medical cannabis dispensary license shall allow production, manufacture, and dispensing of cannabis and manufactured cannabis products only in the county for which the license is granted.  (d) The department shall issue eight dispensary licenses statewide; provided that three dispensary licenses shall be issued for the city and county of Honolulu, two dispensary licenses each shall be issued for the county of Hawaii and the county of Maui, and one dispensary license shall be issued for the county of Kauai; provided further that no dispensary license shall be issued for the county of Kalawao.  (e) No person may be granted a dispensary license in more than one county.  (f) Up to two production centers shall be allowed under each dispensary license; provided that, except as otherwise specified in subsection (k), each production center shall be limited to no more than three thousand cannabis plants. For purposes of this subsection, "plant" means a cannabis plant that is greater than twelve vertical inches in height from where the base of the stalk emerges from the growth medium to the tallest point of the plant, or greater than twelve horizontal inches in width from the end of one branch to the end of another branch; provided that multiple stalks emanating from the same root ball or root system shall be considered part of the same single plant.  (g) A dispensary licensee may establish up to two retail dispensing locations under the licensee's dispensary license, except as otherwise specified in subsection (l).  (h) Each dispensary licensee may commence dispensing medical cannabis and manufactured cannabis products to qualifying patients or primary caregivers no sooner than July 15, 2016, with approval by the department, in accordance with this chapter.  (i) Retail dispensing locations shall not be at the same location as the dispensary licensee's production centers.  (j) Notwithstanding subsection (d), the department shall determine whether, based on the qualifying patient need, additional dispensary licenses shall be offered to qualified applicants in the State after October 1, 2018; provided that the department shall make available not more than one license per five hundred qualifying patients residing in any single county; provided further that in considering whether to award a new license, the department shall consider an applicant's capability to serve and supply medical cannabis to qualified patients in a rural or underserved geographical area of a county; provided further that a "rural or underserved geographical area" shall be determined by considering the number of registered medical cannabis patients that reside within a certain zip code compared to the quantity of medical cannabis that the closest production center and retail dispensing location have the capability to provide.  (k) Notwithstanding subsection (f) to the contrary, the department may determine whether dispensary licensees shall be allowed an additional two thousand cannabis plants at each of the licensee's production centers. In no case shall a licensee be allowed more than five thousand plants at a single production center.  (l) Notwithstanding any provision of subsection (g) to the contrary, the department may determine whether dispensary licensees shall be allowed one additional retail dispensing location per licensee. In considering whether to allow additional retail dispensing locations, the department shall consider the licensee's capability to serve and supply medical cannabis to qualified patients in a rural or underserved geographical area of a county. For purposes of this subsection, a "rural or underserved geographical area" shall be determined by considering the number of registered medical cannabis patients that reside within a certain zip code compared to the quantity of medical cannabis that the closest production center and retail dispensing location have the capability to provide.  (m) Notwithstanding any other law to the contrary, a dispensary shall not be subject to the prescription requirement of section 329-38 or to the board of pharmacy licensure or regulatory requirements under chapter 461. [L 2015, c 241, pt of 2; am L 2016, c 230, 15; am L 2017, c 41, 5 and c 170, 2] Revision Note  In subsections (b), (c), (f), and (k), "marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
 329D-20 Law enforcement access to dispensary and production center records. Notwithstanding any other law, the department shall disclose information, documents, and other records regarding medical cannabis dispensaries and production centers, upon request, to any state, federal, or county agency engaged in the criminal investigation or prosecution of violations of applicable state, county, or federal laws or regulations related to the operations or activities of a medical cannabis dispensary. [L 2015, c 241, pt of 2; am L 2017, c 170, 2]
 329D-21 Revocation and suspension of licenses. (a) In addition to any other actions authorized by law, the department may deny, revoke, or suspend any license applied for or issued by the department, in accordance with this chapter, and to fine or otherwise discipline a licensee for any cause authorized by law, including but not limited to the following:  (1) Procuring a license through fraud, misrepresentation, or deceit;  (2) Professional misconduct, gross carelessness, or manifest incapacity;  (3) Violation of any of the provisions of this chapter or the rules adopted thereto;  (4) False, fraudulent, or deceptive advertising;  (5) Any other conduct constituting fraudulent or dishonest dealings;  (6) Failure to comply with a department order; and  (7) Making a false statement on any document submitted or required to be filed by this chapter, including furnishing false or fraudulent material information in any application.  (b) Any person who violates any of the provisions of this chapter or the rules adopted pursuant thereto shall be fined not less than $100 nor more than $1,000 for each violation.  (c) If the department revokes or suspends a license under this section, the licensee shall not:  (1) Dispense, sell, transfer, or otherwise dispose of any cannabis or manufactured cannabis products owned by or in the possession of the licensee; or  (2) Manufacture cannabis products. Upon a revocation order becoming final, all cannabis and manufactured cannabis products may be forfeited to the State.  (d) All proceedings for denial, suspension, fine, or revocation of a license on any ground specified in subsection (a) shall be conducted pursuant to chapter 91, including the right to judicial review. [L 2015, c 241, pt of 2; am L 2017, c 170, 2] Revision Note  In subsection (c), "marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
 329D-22 Medical cannabis zoning. (a) Medical cannabis production centers and dispensaries shall comply with all county zoning ordinances, rules, or regulations; provided that:  (1) A medical cannabis production center shall be permitted in any area in which agricultural production is permitted except as provided within this chapter; and  (2) No medical cannabis production center or dispensary shall be permitted within seven hundred fifty feet of the real property comprising a playground or school.  (b) As used in this section:  "Playground" means any public outdoor facility, including any parking lot appurtenant thereto, that is intended for recreation, with any portion thereof containing three or more separate apparatus intended for the recreation of children, including but not limited to sliding boards, swing sets, and teeterboards.  "School" means any public or private preschool, kindergarten, elementary, intermediate, middle, secondary, or high school. [L 2015, c 241, pt of 2; am L 2017, c 170, 2; am L 2019, c 240, 4; am L 2020, c 70, 49]
 329D-23 Annual inspections, audits, and reports. (a) Each medical cannabis production center and dispensary licensed pursuant to this part shall:  (1) Be subject to an annual announced inspection and unlimited unannounced inspections of its operations by the department; provided that inspections for license renewals shall be unannounced;  (2) Submit reports on at least a quarterly basis, or as otherwise required, and in the format specified by the department; and  (3) Annually cause an independent financial audit, at the dispensary licensee's own expense, to be conducted of the dispensary, its production center, and retail dispensing locations and shall submit the audit's findings to the department.  (b) The department shall report annually to the governor and the legislature on the establishment and regulation of medical cannabis production centers and dispensaries including but not limited to the number and location of production centers and dispensaries licensed, the total licensing fees collected, the total amount of taxes collected from production centers and dispensaries, and any licensing violations determined by the department. [L 2015, c 241, pt of 2; am L 2016, c 184, 7; am L 2017, c 170, 2]
 329D-24 Cultivation of medical cannabis by qualifying patients and primary caregivers. Nothing in this chapter shall be construed as prohibiting a qualifying patient or primary caregiver from cultivating or possessing an adequate supply of medical cannabis pursuant to part IX of chapter 329.  A qualifying out-of-state patient or a caregiver of a qualifying out-of-state patient shall not be authorized to cultivate cannabis. [L 2015, c 241, pt of 2; am L 2017, c 170, 2; am L 2018, c 116, 21]
 329D-25 Coordination among state and federal agencies. The department shall initiate ongoing dialogue among relevant state and federal agencies to identify processes and policies that ensure the privacy of qualifying patients and qualifying out-of-state patients and the compliance of qualifying patients, primary caregivers, qualifying out-of-state patients, and caregivers of qualifying out-of-state patients and medical cannabis dispensaries with state laws and regulations related to medical cannabis. [L 2015, c 241, pt of 2; am L 2017, c 170, 2; am L 2018, c 116, 22]
 329D-26 Public education. (a) The department shall conduct a continuing education and training program to explain and clarify the purposes and requirements of this chapter or to provide substance abuse prevention and education. The program shall target community partner agencies, physicians and other health care providers, patients and caregivers, law enforcement agencies, law and policy makers, and the general public.  (b) The department shall employ at least one full-time staff member whose qualifications and duties include the provision of medical cannabis health education. [L 2015, c 241, pt of 2; am L 2017, c 170, 2]
  329D-27 Administrative rules. (a) The department shall adopt rules pursuant to chapter 91 to effectuate the purposes of this chapter.  (b) No later than January 4, 2016, the department shall adopt interim rules, which shall be exempt from chapter 91 and chapter 201M, to effectuate the purposes of this chapter; provided that the interim rules shall remain in effect until July 1, 2025, or until rules are adopted pursuant to subsection (a), whichever occurs sooner.  (c) The department may amend the interim rules, and the amendments shall be exempt from chapters 91 and 201M, to effectuate the purposes of this chapter; provided that any amended interim rules shall remain in effect until July 1, 2025, or until rules are adopted pursuant to subsection (a), whichever occurs sooner. [L 2015, c 241, pt of 2; am L 2016, c 230, 20; am L 2017, c 41, 10; am L 2018, c 159, 3]
  329D-3 Qualifications for licensure. (a) Each application for a dispensary license shall include both an individual applicant and an applying entity.  (b) The application shall be submitted to the department and shall include supporting documentation to establish the following:  (1) That the individual applicant:  (A) Has been a legal resident of the State for not less than five years preceding the date of application;  (B) Is not less than twenty-one years of age; and  (C) Has had no felony convictions;  (2) That the applying entity:  (A) Has been organized under the laws of the State;  (B) Has a Hawaii tax identification number;  (C) Has a department of commerce and consumer affairs business registration division number and suffix;  (D) Has a federal employer identification number;  (E) Is not less than fifty-one per cent held by Hawaii legal residents or entities wholly controlled by Hawaii legal residents who have been Hawaii legal residents for not less than five years immediately preceding the date the application was submitted;  (F) Has financial resources under its control of not less than $1,000,000 for each license applied for, plus not less than $100,000 for each retail dispensing location allowed under the license applied for, in the form of bank statements or escrow accounts, and that the financial resources have been under the control of the applying entity for not less than ninety days immediately preceding the date the application was submitted; and  (G) Is composed of principals or members, each of whom has no felony convictions.  (c) A dispensary license shall not be sold or otherwise transferred from one person to another person. [L 2015, c 241, pt of 2]
 329D-4 Medical cannabis dispensaries; license application procedure and verification; fees.  (a) The department shall make a medical cannabis dispensary license application form available to the public on January 11, 2016, commencing at 8:00 a.m., Hawaii-Aleutian Standard Time.  (b) The department shall establish an open application period for each available license, the first of which shall be no later than 8:00 a.m., Hawaii-Aleutian Standard Time, on January 12, 2016, during which an application may be submitted. This submittal period shall be closed on January 29, 2016, at 4:30 p.m. The department shall publish notice of the open application period no less than thirty days prior to the start of the open application period.  (c) A nonrefundable application fee of $5,000 for each license application shall be submitted to the department by certified or cashier's check. Within seven days of approval, a dispensary license fee of $75,000 for each license approved shall be submitted to the department by certified or cashier's check or the department shall issue a license to the next qualified applicant.  (d) All fees collected pursuant to this section shall be deposited in the medical cannabis registry and regulation special fund pursuant to section 321-30.1.  (e) Immediately upon receipt of each completed application form, the department shall issue a receipt to each applicant that includes the date and time of receipt.  (f) If an applicant submits an application form in which all required information is not complete and valid, the application shall not be accepted by the department and the nonrefundable application fee shall be deposited in the medical cannabis registry and regulation special fund established pursuant to section 321-30.1.  (g) The medical cannabis dispensary application form shall request information necessary to verify that applicants meet the required qualifications pursuant to section 329D-3. Applicants shall provide a minimum of the following information:  (1) Legal name and date of birth of individual applicant;  (2) Last four digits of individual applicant's social security number;  (3) Validation code from an eCrim report for the individual applicant generated by the Hawaii criminal justice data center no earlier than December 12, 2015, at 8:00 a.m., Hawaii-Aleutian Standard Time;  (4) Street address, telephone number, fax number, and e-mail address of the individual applicant;  (5) A tax clearance certificate issued by the department of taxation dated not more than thirty days prior to the date of the application;  (6) Name of the applying entity and any other name under which the applying entity does business, if applicable;  (7) Street address, telephone number, fax number, and e-mail address of the applying entity;  (8) Date the applying entity was organized under the laws of Hawaii;  (9) A certified copy of the organizing documents of the applying entity;  (10) A copy of the applying entity's bylaws;  (11) Federal employer identification number of the applying entity;  (12) Hawaii tax identification number of applying entity;  (13) Department of commerce and consumer affairs business registration number and suffix of the applying entity;  (14) Name(s) of all owners of the applying entity, in whole or in part, and their percentage of ownership;  (15) Date when continuous legal residence in Hawaii began for each Hawaii legal resident that owns a percentage of the applying entity;  (16) Total percentage of the applying entity that is owned by Hawaii legal residents;  (17) Designation of the county for which the dispensary license applied for and proof that the required minimum financial resources of $1,200,000 are met;  (18) Total dollar amount of financial resources under control of the applying entity in the form of bank statements or escrow accounts;  (19) Date from when financial resources have been continuously controlled by the applying entity; and  (20) Copies of the entity's bank statements for the twelve months prior to the date of the application.  (h) The department shall maintain a record of the time and date that all completed application forms were submitted.  (i) The department shall process and deposit the application fee within four business days of receipt of the completed application form.  (j) If, for any reason, the application fee is not available for deposit, the application shall be deemed void and the department shall inform the applicant in writing that its application has been rejected.  (k) The department shall review and verify the information and documentation materials only of applicants whose nonrefundable application fee has been processed and deposited.  (l) The department shall verify that the information submitted in the application is true and valid and meets the requirements established in section 329D-3(b).  (m) Upon verification of the minimum requirements, the department shall place the verified application into the pool of applicants for further review and selection based on merit by the department.  (n) A dispensary license may be renewed annually by payment of an annual renewal fee of $50,000 and subject to verification by the department through an unannounced inspection that the individual licensee and entity licensee continue to meet all licensing requirements from the date the initial licenses were issued. [L 2015, c 241, pt of 2; am L 2016, c 184, 5; am L 2017, c 170, 2]
  329D-5.5 Sale or transfer of dispensary license. (a) In the event of death, legal incapacity, or permanent disability of an individual dispensary licensee, the relevant entity licensee shall notify the department within thirty days of the individual licensee's inability to continue in the individual's capacity as a licensee, and shall provide to the department within thirty days of the notice a plan for the sale or transfer of the individual license to another individual who meets all the requirements under this chapter and has been a resident of the State for not less than five years preceding the proposed date of transfer.  (b) In the event of a voluntary resignation by an individual licensee, termination of an individual licensee's employment with an entity licensee with or without cause, or any other permanent separation of the relationship between an individual licensee and an entity licensee, the relevant entity licensee shall submit a plan to the department for approval at least thirty days prior to any sale or transfer of the individual license to another individual who shall meet all the requirements under this chapter and shall have been a resident of the State for not less than five years preceding the date of transfer.  (c) The department may deny a request for transfer of ownership if it deems the transferee has failed to meet all the requirements of section 329D-3 for ownership. [L 2019, c 240, 2]
 329D-5 Medical cannabis dispensaries; selection.  (a) By January 4, 2016, the department shall provide for a selection process and criteria based on merit for verified applicants for medical cannabis dispensary licenses; provided that the selection process, at minimum, includes the criteria of section 329D-7(3).  (b) This selection process shall be utilized by the department to grant medical cannabis dispensary licenses. Licensees selected will be announced by April 15, 2016. A dispensary licensed pursuant to this chapter may begin dispensing not sooner than July 15, 2016, with the approval of the department. [L 2015, c 241, pt of 2; am L 2017, c 170, 2]
 329D-6 Dispensary operations. (a) No person shall operate a dispensary, nor engage in the production, manufacture, or sale of cannabis or manufactured cannabis products, unless the person has obtained a license from the department pursuant to this chapter.  (b) No dispensary licensee, its officers, employees, or agents shall provide written certification for the use of medical cannabis or manufactured cannabis products for any person.  (c) No person under the age of twenty-one shall be employed by a dispensary licensee.  (d) Notwithstanding any other law to the contrary, including but not limited to sections 378-2 and 378-2.5, dispensaries:  (1) Shall deny employment to any individual who has been:  (A) Convicted of murder in any degree;  (B) Convicted of a class A or class B felony; or  (C) Convicted of a class C felony involving trafficking, distributing, or promoting a schedule I or II controlled substance other than cannabis within the last ten years; and  (2) May deny employment to any individual who has been convicted of a class C felony involving:  (A) Fraud, deceit, misrepresentation, embezzlement, or theft; or  (B) Endangering the welfare of a minor. Employment under this chapter shall be exempt from section 378-2(a)(1), as it relates to arrest and court record discrimination, and section 378-2.5.  (e) Retail dispensing locations shall not be open for retail sales before 8:00 a.m. or after 8:00 p.m., Hawaii-Aleutian Standard Time, Monday through Sunday.  (f) All dispensary facilities, including but not limited to production centers and retail dispensing locations, shall be enclosed indoor facilities and shall maintain twenty-four hour security measures, including but not limited to an alarm system, video monitoring and recording on the premises, and exterior lighting. A dispensary licensee who intends to utilize, as a production center, an enclosed indoor facility that includes a roof that is partially or completely transparent or translucent, as provided under section 329D-1, shall notify the department of that intention prior to altering or constructing the facility. Production centers shall remain locked at all times. Retail dispensing locations shall remain locked at all times, other than business hours as authorized by subsection (e), and shall only be opened for authorized persons.  (g) In all dispensary facilities, only the licensee, if an individual, registered employees of the dispensary licensee, registered employees of a subcontracted production center or retail dispensing location, employees of a certified laboratory for testing purposes, state employees authorized by the director of health, and law enforcement and other government officials acting in their official capacity shall be permitted to touch or handle any cannabis or manufactured cannabis products, except that a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient may receive manufactured cannabis products at a retail dispensing location following completion of a sale.  (h) A dispensary shall provide the department with the address, tax map key number, and a copy of the premises lease, if applicable, of the proposed location of a production center allowed under a license for a county not later than thirty days prior to any medical cannabis or manufactured cannabis products being produced or manufactured at that production center.  (i) A dispensary shall provide the department with the address, tax map key number, and a copy of the premises lease, if applicable, of the proposed location of each retail dispensing location allowed under a license not less than sixty days prior to opening for business.  (j) The department shall establish, maintain, and control a computer software tracking system that shall have real time, twenty-four-hour access to the data of all dispensaries.  (1) The computer software tracking system shall collect data relating to:  (A) The total amount of cannabis in possession of all dispensaries from either seed or immature plant state, including all plants that are derived from cuttings or cloning, until the cannabis, cannabis plants, or manufactured cannabis product is sold or destroyed pursuant to section 329D-7;  (B) The total amount of manufactured cannabis product inventory, including the equivalent physical weight of cannabis that is used to manufacture manufactured cannabis products, purchased by a qualifying patient, primary caregiver, qualifying out-of-state patient, and caregiver of a qualifying out-of-state patient from all retail dispensing locations in the State in any fifteen-day period;  (C) The amount of waste produced by each plant at harvest; and  (D) The transport of cannabis and manufactured cannabis products between production centers and retail dispensing locations, including tracking identification issued by the tracking system, the identity of the person transporting the cannabis or manufactured cannabis products, and the make, model, and license number of the vehicle being used for the transport;  (2) The procurement of the computer software tracking system established pursuant to this subsection shall be exempt from chapter 103D; provided that:  (A) The department shall publicly solicit at least three proposals for the computer software tracking system; and  (B) The selection of the computer software tracking system shall be approved by the director of the department and the chief information officer; and  (3) Notwithstanding any other provision of this subsection to the contrary, once the department has authorized a licensed dispensary to commence sales of cannabis or manufactured cannabis products, if the department's computer software tracking system is inoperable or is not functioning properly, as an alternative to requiring dispensaries to temporarily cease operations, the department may implement an alternate tracking system that will enable a qualifying patient, primary caregiver, qualifying out-of-state patient, and caregiver of a qualifying out-of-state patient to purchase cannabis or manufactured cannabis products from a licensed dispensary on a temporary basis. The department shall seek input regarding the alternate tracking system from medical cannabis licensees. The alternate tracking system may operate as follows:  (A) The department may immediately notify all licensed dispensaries that the computer software tracking system is inoperable; and  (B) Once the computer software tracking system is operational and functioning to meet the requirements of this subsection, the department may notify all licensed dispensaries, and the alternate tracking system in this subsection shall be discontinued.  (k) A dispensary licensed pursuant to this chapter shall purchase, operate, and maintain a computer software tracking system that shall:  (1) Interface with the department's computer software tracking system established pursuant to subsection (j);  (2) Allow each licensed dispensary's production center to submit to the department in real time, by automatic identification and data capture, all cannabis, cannabis plants, and manufactured cannabis product inventory in possession of that dispensary from either seed or immature plant state, including all plants that are derived from cuttings or cloning, until the cannabis or manufactured cannabis product is sold or destroyed pursuant to section 329D-7;  (3) Allow the licensed dispensary's retail dispensing location to submit to the department in real time for the total amount of cannabis and manufactured cannabis product purchased by a qualifying patient, primary caregiver, qualifying out-of-state patient, and caregiver of a qualifying out-of-state patient from the dispensary's retail dispensing locations in the State in any fifteen day period; provided that the software tracking system shall impose an automatic stopper in real time, which cannot be overridden, on any further purchases of cannabis or manufactured cannabis products, if the maximum allowable amount of cannabis has already been purchased for the applicable fifteen day period; provided further that additional purchases shall not be permitted until the next applicable period; and  (4) Allow the licensed dispensary to submit all data required by this subsection to the department and permit the department to access the data if the department's computer software tracking system is not functioning properly and sales are made pursuant to the alternate tracking system under subsection (j).  (l) No free samples of cannabis or manufactured cannabis products shall be provided at any time, and no consumption of cannabis or manufactured cannabis products shall be permitted on any dispensary premises.  (m) A dispensary shall not transport cannabis or manufactured cannabis products to another county or another island; provided that this subsection shall not apply to the transportation of cannabis or any manufactured cannabis product solely for the purposes of laboratory testing pursuant to section 329D-8, and subject to subsection (j); provided further that a dispensary shall only transport samples of cannabis and manufactured cannabis products for laboratory testing for purposes of this subsection in an amount and manner prescribed by the department, in rules adopted pursuant to this chapter, and with the understanding that state law and its protections do not apply outside of the jurisdictional limits of the State.  (n) A dispensary shall be prohibited from off-premises delivery of cannabis or manufactured cannabis products to a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient.  (o) A dispensary shall not:  (1) Display cannabis or manufactured cannabis products in windows or in public view; or  (2) Post any signage other than a single sign no greater than one thousand six hundred square inches bearing only the business or trade name in text without any pictures or illustrations; provided that if any applicable law or ordinance restricting outdoor signage is more restrictive, that law or ordinance shall govern.  (p) No cannabis or manufactured cannabis products shall be transported to, from, or within any federal fort or arsenal, national park or forest, any other federal enclave, or any other property possessed or occupied by the federal government.  (q) A dispensary licensed pursuant to this chapter shall be prohibited from providing written certification pursuant to section 329-122 for the use of medical cannabis for any person. [L 2015, c 241, pt of 2; am L 2016, c 230, 16; am L 2017, c 41, 6 and c 170, 2; am L 2018, c 116,  14, 30; am L 2019, c 240, 3] Revision Note  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
 329D-7 Medical cannabis dispensary rules. The department shall establish standards with respect to:  (1) The number of medical cannabis dispensaries that shall be permitted to operate in the State;  (2) A fee structure for the submission of applications and renewals of licenses to dispensaries; provided that the department shall consider the market conditions in each county in determining the license renewal fee amounts;  (3) Criteria and procedures for the consideration and selection, based on merit, of applications for licensure of dispensaries; provided that the criteria shall include but not be limited to an applicant's:  (A) Ability to operate a business;  (B) Financial stability and access to financial resources; provided that applicants for medical cannabis dispensary licenses shall provide documentation that demonstrates control of not less than $1,000,000 in the form of escrow accounts, letters of credit, surety bonds, bank statements, lines of credit or the equivalent to begin operating the dispensary;  (C) Ability to comply with the security requirements developed pursuant to paragraph (6);  (D) Capacity to meet the needs of qualifying patients and qualifying out-of-state patients;  (E) Ability to comply with criminal background check requirements developed pursuant to paragraph (8); and  (F) Ability to comply with inventory controls developed pursuant to paragraph (13);  (4) Specific requirements regarding annual audits and reports required from each production center and dispensary licensed pursuant to this chapter;  (5) Procedures for announced and unannounced inspections by the department or its agents of production centers and dispensaries licensed pursuant to this chapter; provided that inspections for license renewals shall be unannounced;  (6) Security requirements for the operation of production centers and retail dispensing locations; provided that, at a minimum, the following shall be required:  (A) For production centers:  (i) Video monitoring and recording of the premises; provided that recordings shall be retained for fifty days;  (ii) Fencing that surrounds the premises and that is sufficient to reasonably deter intruders and prevent anyone outside the premises from viewing any cannabis in any form;  (iii) An alarm system; and  (iv) Other reasonable security measures to deter or prevent intruders, as deemed necessary by the department;  (B) For retail dispensing locations:  (i) Presentation of a valid government-issued photo identification and a valid identification as issued by the department pursuant to section 329-123 by a qualifying patient or caregiver, or section 329-123.5 by a qualifying out-of-state patient or caregiver of a qualifying out-of-state patient, upon entering the premises;  (ii) Video monitoring and recording of the premises; provided that recordings shall be retained for fifty days;  (iii) An alarm system;  (iv) Exterior lighting; and  (v) Other reasonable security measures as deemed necessary by the department;  (7) Security requirements for the transportation of cannabis and manufactured cannabis products between production centers and retail dispensing locations and between a production center, retail dispensing location, qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient and a certified laboratory, pursuant to section 329-122(f);  (8) Standards and criminal background checks to ensure the reputable and responsible character and fitness of all license applicants, licensees, employees, subcontractors and their employees, and prospective employees of medical cannabis dispensaries to operate a dispensary; provided that the standards, at a minimum, shall exclude from licensure or employment any person convicted of any felony;  (9) The training and certification of operators and employees of production centers and dispensaries;  (10) The types of manufactured cannabis products that dispensaries shall be authorized to manufacture and sell pursuant to sections 329D-9 and 329D-10;  (11) Laboratory standards related to testing cannabis and manufactured cannabis products for content, contamination, and consistency;  (12) The quantities of cannabis and manufactured cannabis products that a dispensary may sell or provide to a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient; provided that no dispensary shall sell or provide to a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient any combination of cannabis and manufactured products that:  (A) During a period of fifteen consecutive days, exceeds the equivalent of four ounces of cannabis; or  (B) During a period of thirty consecutive days, exceeds the equivalent of eight ounces of cannabis;  (13) Dispensary and production center inventory controls to prevent the unauthorized diversion of cannabis or manufactured cannabis products or the distribution of cannabis or manufactured cannabis products to a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient in quantities that exceed limits established by this chapter; provided that the controls, at a minimum, shall include:  (A) A computer software tracking system as specified in section 329D-6(j) and (k); and  (B) Product packaging standards sufficient to allow law enforcement personnel to reasonably determine the contents of an unopened package;  (14) Limitation to the size or format of signs placed outside a retail dispensing location or production center; provided that the signage limitations, at a minimum, shall comply with section 329D-6(o)(2) and shall not include the image of a cartoon character or other design intended to appeal to children;  (15) The disposal or destruction of unwanted or unused cannabis and manufactured cannabis products;  (16) The enforcement of the following prohibitions against:  (A) The sale or provision of cannabis or manufactured cannabis products to unauthorized persons;  (B) The sale or provision of cannabis or manufactured cannabis products to a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient in quantities that exceed limits established by this chapter;  (C) Any use or consumption of cannabis or manufactured cannabis products on the premises of a retail dispensing location or production center; and  (D) The distribution of cannabis or manufactured cannabis products, for free, on the premises of a retail dispensing location or production center;  (17) The establishment of a range of penalties for violations of this chapter or rule adopted thereto; and  (18) A process to recognize and register patients who are authorized to purchase, possess, and use medical cannabis in another state, a United States territory, or the District of Columbia as qualifying out-of-state patients; provided that this registration process may commence no sooner than January 1, 2018. [L 2015, c 241, pt of 2; am L 2016, c 184, 6; am L 2017, c 41, 7 and c 170, 2; am L 2018, c 116, 15] Revision Note  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
 329D-8 Laboratory standards and testing; laboratory certification. (a) The department shall establish and enforce standards for laboratory-based testing of cannabis and manufactured cannabis products for content, contamination, and consistency; provided that in establishing these standards, the department shall:  (1) Review and take guidance from the testing programs and standards utilized in other jurisdictions;  (2) Consider the impact of the standards on the retail cost of the product to the qualifying patient;  (3) Review and take guidance from the testing programs and standards for pesticides under the regulations of the United States Environmental Protection Agency;  (4) Consider processes that may allow cannabis or manufactured cannabis products that fail testing standards to be remediated;  (5) For the testing for microbiological impurities, consider the benefits of organically grown cannabis that features the use of bacteria in lieu of pesticides; and  (6) Include permission for qualifying patients and primary caregivers to obtain testing services directly from certified laboratories on the island where the qualifying patient and primary caregiver reside.  (b) The department may certify laboratories that can test cannabis and manufactured cannabis products prior to the sale of cannabis and manufactured cannabis products.  (c) If a dispensary licensee obtains a laboratory result indicating that a sample of a batch of its cannabis or manufactured cannabis products does not meet the department's standards for patient safety, the dispensary licensee, at its own expense, may have the same sample or a different sample from the same batch retested by the same laboratory or a different laboratory. If a retest at a different laboratory yields a different result, the department shall determine which result controls whether the batch may be approved for sale or whether further testing shall be required. [L 2015, c 241, pt of 2; am L 2017, c 41, 8 and c 170, 2; am L 2018, c 116, 16; am L 2020, c 38, 3] Revision Note  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
 329D-9 Manufacturing of medical cannabis products. (a) Any medical cannabis dispensary licensed by the department pursuant to this chapter shall be permitted to manufacture cannabis products; provided that the dispensary shall also obtain any other state or county permits or licenses that may be necessary for a particular manufacturing activity.  (b) The department shall establish health, safety, and sanitation standards regarding the manufacture of manufactured cannabis products.  (c) A manufacturer of a manufactured cannabis product shall calculate the equivalent physical weight of the cannabis that is used to manufacture the product and shall make the equivalency calculations available to the department and to a consumer of the manufactured cannabis product. [L 2015, c 241, pt of 2; am L 2017, c 170, 2] Revision Note  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.
 330-1 Definition of poison. The term "poison" as used in this chapter, includes any chemical or preparation that has properties that are commonly considered poisonous or is capable of affecting the human organism in such a way and to such an extent that its possession, sale, transfer, use, or storage is found by the department to require regulation for public health and safety. The term "poison" does not include any drug for which a prescription is required by state or federal law. [PC 1869, c 88, 2; RL 1925, 1005; am L 1931, c 224, pt of 1; RL 1935, 1431; RL 1945, 2951; am L 1945, c 139, 1(a); RL 1955, 53-1; am L Sp 1959 2d, c 1, 19; HRS 330-1; am L 1986, c 179, 5; am L 2001, c 2, 1]
 330-10 Penalty. Any person violating this chapter, except where punishment is otherwise specifically provided, shall be fined not more than $1,000 for each offense. [PC 1869, c 88, 5; am L 1919, c 132, 1; RL 1925, 1010; RL 1935, 1435; RL 1945, 2956; RL 1955, 53-6; HRS 330-10]
  330-2 Rules concerning poisons. The department of health may adopt rules concerning poisons and poison containers. [PC 1869, c 88, 1; am L 1872, c 16, 1; RL 1925, 1004; am L 1931, c 224, pt of 1; RL 1935, 1430; RL 1945, 2952; am L 1945, c 139, 1(b); RL 1955, 53-2; am L Sp 1959 2d, c 1, 19; HRS 330-2; am L 2001, c 2, 2] Cross References  Rulemaking, see chapter 91.
 330-3 Penalty for violations. Any person who violates any such rule or regulation of the department of health, shall be fined not less than $50 nor more than $500, or imprisoned not less than one month nor more than six months, or both. [L 1872, c 16, 2; RL 1925, 1006; am L 1931, c 224, pt of 1; RL 1935, 1432; RL 1945, 2953; RL 1955, 53-3; am L Sp 1959 2d, c 1, 19; HRS 330-3] Cross References  Classification of offense and authorized punishment, see  701-107, 706-640, 663.
 330-4 REPEALED. L 1977, c 130, 1.
  330-5 to 7 REPEALED. L 1986, c 179,  6 to 8.
 330-8 Use of certain chemical substances as inhalants unlawful. It shall be unlawful for any person to use as an inhalant any substance, not a "food" as defined in section 328-1, which substance includes in its composition volatile organic solvents including amylacetate, trichloroethylene, and acetone or any other chemical substance, capable of producing upon inhalation any degree of intoxication; provided that this section shall not apply to any person using as an inhalant any such chemical substance pursuant to the direction of a physician. [L 1963, c 115, pt of 2; Supp, 53-5.5; HRS 330-8; am L 1998, c 11, 18] Cross References  Intoxicating compounds, see chapter 328E.
 330-9 Penalty. Any person who violates section 330-8 shall, upon conviction, be punished by a fine not exceeding $100 or by imprisonment not exceeding three months, or by both. [L 1963, c 115, pt of 2; Supp, 53-5.6; HRS 330-9] Cross References  Classification of offense and authorized punishment, see  701-107, 706-640, 663.
  330C-1 Short title. This chapter shall be cited as the "Hawaii Poison Prevention Packaging Act". [L 1974, c 216, pt of 1]
  330C-2 Purpose. The dangers arising from accidental ingestion of substances produced or distributed for sale for consumption, use, or storage by individuals in or about the household, particularly by young children necessitates legislation designed to help reduce injuries to, and illnesses of young children ingesting such substances. It is the purpose of this chapter to require household substances which are accessible to young children and which may cause injury or illness to be contained in special packaging that is designed to be significantly difficult for children under five years of age to open or obtain a toxic or harmful amount of such substances within a reasonable time, but not difficult for normal adults to use properly. [L 1974, c 216, pt of 1]
  330C-3 Definitions. For the purposes of this chapter:  (1) "Director" means the director of health.  (2) "Household substance" means any substance which is customarily produced or distributed for sale for consumption or use, or customarily stored, by individuals in or about the household and which is:  (A) A hazardous substance as defined by this section;  (B) A pesticide as defined by this section;  (C) A food, drug, or cosmetic as those terms are defined by section 328-1; or  (D) A substance intended for use as fuel when stored in a portable container and used in the heating, cooking, or refrigeration system of a house.  (3) "Hazardous substance" means:  (A) Any substance or mixture of substances which (i) is toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.  (B) Any substances which the director by rule finds pursuant to section 330C-4(1), meet the requirements of subparagraph (A) of this paragraph.  (C) Any radioactive substances, if, with respect to such substances as used in a particular class of article or as packaged, the director determines by regulation that the substance is sufficiently hazardous to require labeling in accordance with this chapter in order to protect the public health.  (D) The term "hazardous substance" shall not apply to pesticides subject to the Federal Insecticide, Fungicide, and Rodenticide Act, nor to foods, drugs, and cosmetics subject to the Federal Food, Drug, and Cosmetic Act, nor to substances intended for use as fuels when stored in containers and used in the heating, cooking, or refrigeration system of a house, but such term shall apply to any article which is not itself an economic poison within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act but which is a hazardous substance within the meaning of subparagraph (A) of this paragraph by reason of bearing or containing such a pesticide.  (E) The term "hazardous substance" shall not include any source material, special nuclear material, or byproduct material as defined in the Atomic Energy Act of 1954, as amended, and regulations issued pursuant thereto by the Atomic Energy Commission.  (4) "Pesticide" means:  (A) Any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, nematodes, fungi, weeds, and other forms of plant or animal life or viruses, except viruses on or in living persons or other animals, which the board of agriculture or the administrator of the Environmental Protection Agency shall declare to be a pest, and  (B) Any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.  (5) "Package" means the immediate container or wrapping in which any household substance is contained for consumption, use, or storage by individuals in or about the household, and, for purposes of section 330C-5(a)(2), also means any outer container or wrapping used in the retail display of any such substance to consumers. The term does not include:  (A) Any shipping container or wrapping used solely for the transportation of any household substance in bulk or in quantity to manufacturers, packers, or processors, or to wholesale or retail distributors thereof, or  (B) Any shipping container or outer wrapping used by retailers to ship or deliver any household substance to consumers unless it is the only such container or wrapping.  (6) "Special packaging" means packaging that is designed or constructed to be significantly difficult for children under five years of age to open or obtain a toxic or harmful amount of the substance contained therein within a reasonable time and not difficult for normal adults to use properly, but does not mean packaging which all such children cannot open or obtain a toxic or harmful amount within a reasonable time.  (7) "Labeling" means all labels and other written, printed, or graphic matter (A) upon any household substance or its package, or (B) accompanying such substance.  (8) "Federal Act" means the Poison Prevention Packaging Act of 1970 (Public Law 91-601). [L 1974, c 216, pt of 1; gen ch 1993] Note  Reference to the Atomic Energy Commission should be to the Nuclear Regulatory Commission.
  330C-4 Rules; implementation. The director shall carry out and effectuate the purpose of this chapter by rules adopted under chapter 91 including but not limited to the following:  (1) The director may establish in accordance with this chapter, by rule, standards for the special packaging of any household substance if the director finds that:  (A) The degree or nature of the hazard to children in the availability of such substance, by reason of its packaging, is such that special packaging is required to protect children from serious personal injury or serious illness resulting from handling, using, or ingesting such substance; and  (B) The special packaging to be required by such standard is technically feasible, practicable, and appropriate for such substance.  (2) In establishing a standard under this section, the director shall consider:  (A) The reasonableness of such standard;  (B) Available scientific, medical, and engineering data concerning special packaging and concerning childhood accidental ingestions, illness, and injury caused by household substances;  (C) The manufacturing practices of industries affected by this chapter; and  (D) The nature and use of the household substance.  (3) In carrying out this chapter, the director shall publish the director's findings, the director's reasons therefor, and citation of the sections of statutes which authorize the director's action.  (4) Nothing in this chapter shall authorize the director to prescribe specific packaging designs, product content, package quantity, or, with the exception of authority granted in section 330C-5(a)(2), labeling. In the case of a household substance for which special packaging is required pursuant to a rule under this section, the director may in such rule prohibit the packaging of such substance in packages which the director determines are unnecessarily attractive to children.  (5) Compliance with federal regulations prescribing standards issued pursuant to the Federal Act shall be deemed in compliance with this chapter. [L 1974, c 216, pt of 1; gen ch 1985]
 330C-5 Conventional packages, marketing, labeling statements. (a) For the purposes of making any household substance which is subject to a standard established under section 330C-4 readily available to elder or handicapped persons unable to use such substance when packaged in compliance with such standard, the manufacturer or packer, as the case may be, may package any household substance, subject to such a standard, in packaging of a single size which does not comply with such standard if:  (1) The manufacturer or packer also supplies such substance in packages which comply with such standard; and  (2) The packages of such substance which do not meet such standard bear conspicuous labeling stating: "This package for households without young children"; except that the director may by rule prescribe a substitute statement to the same effect for packaging too small to accommodate such labeling.  (b) In the case of a household substance which is subject to such a standard and which is dispensed pursuant to an order of a physician, dentist, or other licensed medical practitioner authorized to prescribe, such substance may be dispensed in noncomplying packages only when directed in such order or when requested by the purchaser.  (c) In the case of a household substance subject to such a standard which is packaged under subsection (a) in a noncomplying package, if the director determines that such substance is not also being supplied by a manufacturer or packer in popular size packages which comply with such standard, the director may, after giving the manufacturer or packer an opportunity to comply with the purposes of this chapter, by order require such substance to be packaged by such manufacturer or packer exclusively in special packaging complying with such standard if the director finds, after opportunity for hearing, that such exclusive use of special packaging is necessary to accomplish the purposes of this chapter. [L 1974, c 216, pt of 1; gen ch 1985; am L 1990, c 67, 8]
  330C-6 Special packaging standards, establishment. (a) All rules prescribing standards for the special packaging of household substances now or hereafter adopted under authority of the Federal Act shall be the regulatory standards for special packaging of household substances in this State.  (b) Hearings authorized or required by this chapter shall be conducted by the director or an officer, agent or employee designated by the director pursuant to chapter 91.  (c) The authority to adopt rules for the efficient enforcement of this chapter is vested in the director. The director may make such rules conform, insofar as practicable, with those promulgated under the Federal Act.  (d) A federal regulation adopted pursuant to section 330C-6(a) shall take effect in this State on the date it becomes effective as a federal regulation. No publication or hearing shall be required.  (e) No standard shall be effective as to household substances subject to this chapter packaged prior to the effective date of such final rule. [L 1974, c 216, pt of 1; gen ch 1985]
  330C-7 Penalties. Any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor. [L 1974, c 216, pt of 1]
 REPEALED. L 1993, c 37, 1. Note  L Sp 1993, c 8, 23 purports to amend 331-1.
 332-1 Definition. The term "mattress" as used in this chapter means any quilted pad, comforter, mattress, mattress-pad, bunk quilt, or cushion, stuffed or filled with wool, hair, or other soft material to be used on a couch or other bed and on which persons sleep or recline; provided that:  (1) The term "mattress" shall not include any items considered "beddings" under the federal Textile Fiber Products Identification Act (15 United States Code 70 et seq.); and  (2) A "cushion" includes only those that are filled with rubber, feathers, or down. [L 1927, c 234, 1; RL 1935, 1190; RL 1945, 2471; RL 1955, 55-1; HRS 332-1; am L 1988, c 20, 2]
 332-2 Materials. No person, by oneself or by the person's agents, servants, or employees, shall employ or use in the making, remaking, or renovating of any mattress, any material of any kind that has been used in or has formed a part of, any mattress used in or about any public or private hospital, or institution for the treatment of persons suffering from disease, or for or about any person having any infectious or contagious disease; any material known as "shoddy", and made in whole or in part from old worn clothing, carpets, or other fabrics, or materials previously used, or any other fabrics, or materials from which shoddy is constructed; or any material, not otherwise prohibited by this chapter, of which prior use has been made, unless all of the materials have been thoroughly sterilized, and disinfected by a reasonable process, approved by the department of health. [L 1927, c 234, 2; RL 1935, 1191; RL 1945, 2472; RL 1955, 55-2; am L Sp 1959 2d, c 1, 19; HRS 332-2; gen ch 1985]
 332-3 Tag, statement, form. No person, by oneself or the person's agents, servants, or employees, shall, directly or indirectly, at wholesale or retail, or otherwise, sell, offer for sale, deliver, or consign, or have in the person's possession with intent to sell, deliver, or consign, any mattress that shall not have plainly and indelibly stamped or printed thereon, or upon a tag of suitable, durable material, not smaller than three inches square, securely sewed to the covering thereof a statement, in the English language, setting forth the kind or kinds of materials used in filling the mattress, and whether the materials are in whole, or in part, new or old, or second-hand, or shoddy, and the name and address of the manufacturer or vendor thereof, or both; also the quantity of the materials used, expressed in terms of avoirdupois weight; also size of same, expressed in linear measure, clearly indicating the length and breadth thereof, except that tags attached to comforters need state only the percentage of new material and shoddy material, and no sizes need be marked on same; provided that this chapter shall not apply to the sale or other disposal by the owner thereof, of any mattress constituting a part of the owner's household furniture.  The statement shall be in the following form: MATERIALS USED IN FILLINGS Percentage of kinds of materials.................... Gross weight of materials, including cover.......... pounds.......... Size.......... Vendor............... Address......................................................... [L 1927, c 234,  3, 11; RL 1935, 1192; RL 1945, 2473; RL 1955, 55-3; HRS 332-3; am L 1969, c 196, 1; gen ch 1985]
 332-4 Statement, contents, use. Whenever the word "felt", as applied to cotton, is used in the statement concerning materials, it shall be indicated in the statement whether the felt is "felted cotton" or "felted linters". This requirement shall not apply to comforters. It shall be unlawful to use in the statement concerning any mattress the word "floss" or words of like import, if there has been used in filling the mattress any materials which are not termed as "kapok". It shall be unlawful to use in the statement concerning any mattress the word "hair" unless the mattress is entirely manufactured of animals' hair. It shall be unlawful to use in the description in the statement any misleading term or designation, or term or designation likely to mislead. [L 1927, c 234,  4 to 7; RL 1935, 1193; RL 1945, 2474; RL 1955, 55-4; HRS 332-4]
 332-5 Tag or stamp. Any mattress made from more than one new material shall have stamped upon the tag attached thereto the percentage of each material so used. This requirement shall not apply to comforters. Any mattress made from material known as "shoddy" shall have stamped or printed upon the tag attached thereto, in type not smaller than twenty-point, the words "shoddy material". [L 1927, c 234,  8 to 10; RL 1935, 1194; RL 1945, 2475; RL 1955, 55-5; HRS 332-5; am L 1988, c 20, 3]
 332-6 Tampering with mark or statement. Any person who removes, defaces, alters, or in any manner attempts the same, or causes to be removed, defaced, or altered, any mark or statement placed upon any mattress under this chapter shall be guilty of the violation of this chapter. [L 1927, c 234, 12; RL 1935, pt of 1195; RL 1945, pt of 2476; RL 1955, 55-6; HRS 332-6]
 332-7 Penalty. Any person violating this chapter shall, for each offense, be fined not less than $20 nor more than $100 or imprisoned not less than three months nor more than six months, or both. [L 1927, c 234, 13; RL 1935, pt of 1195; RL 1945, pt of 2476; RL 1955, 55-7; HRS 332-7] Cross References  Classification of offense and authorized punishment, see  701-107, 706-640, 663.
 332D-1 Definitions. As used in this chapter:  "OctaBDE" means octabrominated diphenyl ether.  "PentaBDE" means pentabrominated diphenyl ether. [L 2004, c 146, pt of 2]
  332D-2 Restriction on manufacture or distribution. On or after January 1, 2006, a person may not manufacture, process, or distribute in commerce a product, or a flame-retarded part of a product, containing more than one-tenth of one per cent, by mass, of pentaBDE, octaBDE, or any other chemical formulation that is part of these classifications. [L 2004, c 146, pt of 2]
  332D-3 Exception. The term "process", as used in section 332D-2, does not include the processing of metallic recyclables containing pentaBDE, octaBDE, or any other chemical formulation that is part of these classifications that is conducted in compliance with all applicable federal, state, and local laws. [L 2004, c 146, pt of 2]
 REPEALED. L 1987, c 341, 3. Note  L 1987, c 339, 4 purports to amend 333-45. Cross References  For present provisions, see chapter 333F.
Note Part heading added by L 1983, c 122, 3.  333E-1 Findings and purpose. The legislature finds that:  (1) The State of Hawaii has a responsibility to provide support and services for individuals with developmental disabilities in order to support them in living self-determined lives according to section 333F-8;  (2) Several departments of the State are responsible for various support and services to individuals with developmental disabilities;  (3) Lack of coordination among the services and planning activities of the various departments of the State results in gaps in the spectrum of needed services, duplication of services, lack of clarity in responsibility for services, and poorly articulated inter-agency programs, thereby reducing the quality of programs for individuals with developmental disabilities;  (4) Because of specific mandates of the departments, it is essential that a body responsible for coordinating services and planning for individuals with developmental disabilities be established outside the departments responsible for support and services;  (5) There exists within the state department of health for administrative purposes only, a state council on developmental disabilities appointed by the governor and mandated by federal legislation, supported in large part by federal moneys and required by federal law to provide advocacy, capacity building, systemic change, planning, and coordinating activities, promoting interagency collaboration, and enhancing coordination to better serve individuals with developmental disabilities and their families;  (6) The purpose of this chapter is to establish the state council on developmental disabilities as the state agency responsible for coordinating services to individuals with developmental disabilities in Hawaii;  (7) Community participation is a major goal of the State, thus state and county agencies should adopt policies and regulations which will support individuals and their families to fully participate in their communities; and  (8) Family support is another major goal of the State in providing families of children with disabilities the support services necessary to support the family; to enable families of children with disabilities to nurture and enjoy their children at home; to enable families of children with disabilities to make informed choices and decisions regarding the nature of support, resources, services, and other assistance made available to the families; and to support family caregivers of adults with disabilities. [L 1975, c 198, 1; am L 1979, c 180, pt of 1; am L 1980, c 239, 1; am L 1987, c 339, 4; am L 2001, c 175, 1]
   333E-11 to 14 REPEALED. L 1987, c 341, 4.
  333E-2 Developmental disabilities, definitions. For the purposes of this chapter, the term "developmental disability" means a severe, chronic disability of a person which:  (1) Is attributable to a mental or physical impairment or combination of mental and physical impairments;  (2) Is manifested before the person attains age twenty-two;  (3) Is likely to continue indefinitely;  (4) Results in substantial functional limitations in three or more of the following areas of major life activity; self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, economic sufficiency; and  (5) Reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, individualized support, or other forms of assistance that are lifelong or extended duration and are individually planned and coordinated. An individual from birth to age nine, who has a substantial developmental delay or specific congenital or acquired condition, may be considered to have a developmental disability without meeting three or more of the criteria described above, if the individual, without services and support, has a high probability of meeting those criteria later in life. [L 1975, c 198, 2; am L 1976, c 201, 1; am L 1979, c 180, pt of 1; am L 2001, c 175, 2]
 333E-3.5 Encouragement of suitable housing. The state council shall encourage the adoption of ordinances in each political subdivision in the State which would permit the maintenance and construction of residences for persons with developmental disabilities, including those developmentally disabled persons defined in this chapter and in section 202 of the Federal Housing Act of 1959, as amended. The ordinances should include provisions for permitting an appropriate number of unrelated persons with developmental disabilities and two supervisory staff to reside in a single-family dwelling provided that in determining the appropriate number, the political subdivisions should consider the cost of maintenance and construction of the residence, in order that financial obligations can be met. [L 1980, c 239, 2]
  333E-3 State council on developmental disabilities. The state council on developmental disabilities (hereinafter referred to as the council) shall be placed in the department of health for administrative purposes only and assigned the following responsibilities:  (1) Planning. The state council shall:  (A) Develop, prepare, adopt, and periodically review and revise, as necessary, the state plan for individuals with developmental disabilities (hereinafter called the state plan) in conformance with federal substantive and procedural requirements therefor. The state plan shall guide the development and delivery of all services to individuals with developmental disabilities. The state council shall transmit the state plan to the governor for approval, and upon approval shall be submitted to the federal government for appropriate approval. The state plan and revisions thereto shall be effective upon the governor's approval thereof. The state plan shall include establishment of goals and priorities of the State in meeting the needs of individuals with developmental disabilities, including the recommendation of priorities for the distribution of public funds for comprehensive services to individuals with developmental disabilities within the State and other matters deemed necessary to achieve productivity, integration, inclusion, self-determination, and independence of individuals with developmental disabilities. The state plan shall guide the coordinated delivery and establishment of comprehensive services, facilities, and programs for individuals with developmental disabilities;  (B) Review and comment upon implementation plans prepared and carried out by the various departments of the State in carrying out the state plan for individuals with developmental disabilities; and  (C) Review and comment upon any other state plans which affect services to individuals with developmental disabilities;  (2) Coordination of departments and private agencies. The council shall:  (A) Identify services duplicated by departments and private agencies and coordinate and assist in the elimination of unnecessary duplication;  (B) Encourage efficient and coordinated use of federal, state, and private resources in the provision of services;  (C) Recommend areas of responsibility for services to both public and private agencies serving individuals with developmental disabilities, reviewing designations as necessary. Identify gaps in services to individuals with developmental disabilities and coordinate responsibilities of various public or private agencies for such missing services; and  (D) Ensure that implementation planning by the various departments is effectively coordinated and that interdepartmental programs receive the full support of all departments involved;  (3) Evaluation. The council shall:  (A) Monitor, evaluate, and comment upon implementation plans of the various public and private agencies for individuals with developmental disabilities;  (B) Monitor all ongoing projects relating to developmental disabilities of the various public and private agencies;  (C) Participate in the planning, design, or redesign, and monitoring of state quality assurance systems that affect individuals with developmental disabilities;  (4) Advocacy. The council shall:  (A) Advocate for the needs of individuals with developmental disabilities before the legislature and the public and to the governor;  (B) Act in an advisory capacity to the governor, the legislature, and all concerned department heads on all issues affecting individuals with developmental disabilities; and  (C) Support and conduct outreach activities to identify individuals with developmental disabilities and their families to obtain services, individualized supports, and other forms of assistance, including access to special adaptation of generic community services or specialized services; and  (5) Report. The council shall:  (A) Prepare and submit reports to the governor, the legislature, and all concerned department heads on the implementation of the state plan;  (B) Prepare and submit to the United States Secretary of Health and Human Services, through the governor, any periodic reports the Secretary may reasonably request; and  (C) Prepare other reports necessary to accomplish its duties under this chapter. [L 1975, c 198, 3; am L 1976, c 201, 2; am L 1979, c 180, pt of 1; am L 1980, c 232, 17; am L 2001, c 175, 3] Cross References  Annual reports, see 93-12.
  333E-4 Membership on the state council. The state council shall consist of voting members as described in federal law, for staggered terms. The members of the council shall be residents of the State. The council shall at all times include in its membership six representatives from the neighbor islands with a minimum of one representative from Hawaii, Kauai, and Maui county and representatives of the following, unless these programs are no longer in existence in the State: state entities that administer funds provided under federal law relating to individuals with disabilities, including the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.), the Older Americans Act of 1965 (42 U.S.C. 3001 et seq.), and Titles V and XIX of the Social Security Act (42 U.S.C. 701 et seq. and 1396 et seq.), university centers for excellence in developmental disabilities education, research, and service, and the state protection and advocacy system, and local and nongovernmental agencies, and private nonprofit groups concerned with services for individuals with developmental disabilities in this State.  (1) Not less than sixty per cent of the membership of the council shall consist of individuals who are:  (A) Individuals with developmental disabilities or their parents; or  (B) Immediate relatives or guardians of such persons, and who are not employees of a state agency which receives funds or provides services under the state council, or managing employees, or persons with an ownership or controlling interest of any other entity which receives funds or provides services under the state council;  (2) Of the members of the council described in paragraph (1):  (A) At least one-third shall be individuals with developmental disabilities; and  (B) At least one-third shall be immediate relatives or guardians of such person, of which at least one shall be an immediate relative or guardian of an institutionalized individual with developmental disabilities; and  (3) The members of the state council shall serve without compensation, but shall be reimbursed for any actual and necessary expenses incurred in connection with the performance of their duties under this chapter. [L 1975, c 198, 4; am L 1979, c 180, pt of 1; am L 1983, c 121, 2; am L 1986, c 45, 1; am L 2001, c 175, 4]
  333E-5 Officers, committees, staff. The state council shall, by majority vote of the voting members, elect its own chairperson from among the appointed members, and shall establish such committees as it deems necessary or desirable. The state council may appoint an executive administrator subject to chapter 76 who may appoint persons to such staff positions subject to chapter 76 as the council may authorize within available funds. The affirmative votes of a majority of the members of the council shall be necessary for the appointment or removal of the executive administrator. [L 1975, c 198, 5; ree L 1979, c 180, pt of 1; gen ch 1993; am L 2000, c 253, 150; am L 2001, c 175, 5]
  333E-6 Confidentiality of records. (a) All certificates, applications, records, and reports made for the purposes of this chapter that are maintained, used, or disclosed by health care providers as defined in chapter 334, health plans as defined in title 45 Code of Federal Regulations section 160.103, and health care clearinghouses as defined in title 45 Code of Federal Regulations section 160.103, and directly or indirectly identifying a person who receives services because of a developmental disability shall be kept confidential and shall not be disclosed by any person except as allowed by title 45 Code of Federal Regulations part 164, subpart E.  (b) Nothing in this section shall preclude the application of more restrictive rules of confidentiality set forth for records covered by title 42 Code of Federal Regulations part 2, relating to the confidentiality of alcohol and drug abuse patient records, or disclosure deemed necessary under the federal Developmental Disabilities Act of 1984, P.L. 98-527, to protect and advocate for the rights of persons with developmental disabilities who reside in facilities for persons with developmental disabilities. [L 1986, c 343, 2; am L 2014, c 214, 3]
 333F-1 Definitions. As used in this chapter, unless the context requires otherwise:  "Active treatment" means provision of services as specified in an individualized service plan. These services may include, but are not limited to, activities, experiences, and therapy which are part of a professionally developed and supervised program of health, social, habilitative, and developmental services.  "Applicant" means every person applying for a license to become a provider of an adult foster home or developmental disabilities domiciliary home.  "Case management services" means services to persons with developmental or intellectual disabilities that assist them in gaining access to needed social, medical, legal, educational, and other services, and includes:  (1) Follow-along services which assure, through a continuing relationship between an agency or provider and a person with a developmental or intellectual disability and the person's parent, if the person is a minor, or guardian, if a guardian has been appointed for the purpose, that the changing needs of the person and the family are recognized and appropriately met.  (2) Coordinating and monitoring services provided to persons with developmental or intellectual disabilities by two or more persons, organizations, or agencies.  (3) Providing information to persons with developmental or intellectual disabilities about availability of services and assisting the persons in obtaining the services.  "Current employee" means every person currently employed by an applicant, who will become an adult foster or developmental disabilities domiciliary home caregiver once the applicant is approved to be a provider by the department.  "Department" means the department of health.  "Developmental disabilities" means a severe, chronic disability of a person which:  (1) Is attributable to a mental or physical impairment or combination of mental and physical impairments;  (2) Is manifested before the person attains age twenty-two;  (3) Is likely to continue indefinitely;  (4) Results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic sufficiency; and  (5) Reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated. An individual from birth to age nine who has a substantial developmental delay or specific congenital or acquired condition may be considered to have a developmental disability without meeting three or more of the criteria described above, if the individual, without services and supports, has a high probability of meeting those criteria later in life.  "Director" means the director of health.  "Existing provider" means every person licensed or certified as an adult foster or developmental disabilities domiciliary home provider before the effective date of section 321-15.2.  "Habilitation" means the process by which the staff of an agency assists an individual to cope more effectively with the demands of his or her own person and environment and to raise the level of his or her physical, mental, and social functioning. Habilitation includes, but is not limited to, programs of formal structured education and treatment.  "Individualized service plan" means the written plan required by section 333F-6 that is developed by the individual, with the input of family, friends, and other persons identified by the individual as being important to the planning process. The plan shall be a written description of what is important to the person, how any issue of health or safety shall be addressed, and what needs to happen to support the person in the person's desired life.  "Individually appropriate" means responsive to the needs of the person as determined through interdisciplinary assessment and provided pursuant to an individualized service plan that is person-centered and community-based.  "Intellectual disability" means significantly subaverage general intellectual functioning resulting in or associated with concurrent moderate, severe, or profound impairments in adaptive behavior and manifested during the developmental period.  "Interdisciplinary team" means a group of persons that is drawn from or represents those professions, disciplines, or service areas that are relevant to identifying an individual's needs and designing a program to meet them, and is responsible for evaluating the individual's needs, developing an individual program plan to meet them, periodically reviewing the individual's response to the plan, and revising the plan accordingly. A complete team includes the individual being served, unless clearly unable to participate; the individual's family, unless their participation has been determined to be inappropriate; those persons who work most directly with the individual in each of the professions, disciplines, or service areas that provide service to the individual, including direct-care or direct-contact staff; and any other persons whose participation is relevant to identifying the needs of the individual and devising ways to meet them.  "Least restrictive" means the least intrusive and least disruptive intervention into the life of a person with developmental or intellectual disability that represents the least departure from normal patterns of living that can be effective in meeting the person's developmental needs.  "Least restrictive environment" means that environment that represents the least departure from normal patterns of living that can be effective in meeting the individual's needs.  "Monitor" means to conduct a systematic, coordinated, objective, qualitative review of services provided by any person, agency, or organization.  "Prospective employee" means every person seeking employment as a caregiver for an applicant.  "Provider" means the person who is issued the license or certificate of registration, as the case may be, by the department to provide care in an adult foster or developmental disabilities domiciliary home.  "Representative" means any individual who can advise and advocate for a person with developmental or intellectual disabilities and who shall serve at the request and pleasure of such person; provided that if the person with developmental or intellectual disabilities is a minor or is legally incapacitated and has not requested a representative, the parent or guardian may request a representative to assist on behalf of the person with developmental or intellectual disabilities.  "Residence" or "residential" means the living space occupied by the person with a developmental or intellectual disability, including single-person homes, natural family homes, care homes, group homes, foster homes, institutional facilities, and all other types of living arrangements.  "Respite care" means a service provided in a least restrictive environment for short term care to meet the needs, ranging from simple to complex, of persons with developmental or intellectual disabilities. The purpose of respite care is to avoid, if possible, the necessity for long term institutional care or to provide relief to families and care providers.  "Services" means appropriate assistance provided to a person with a developmental or intellectual disability in the least restrictive, individually appropriate environment to provide for basic living requirements and continuing development of independence or interdependent living skills of the person. These services include, but are not restricted to: case management; residential, developmental, and vocational support; training; habilitation; active treatment; day treatment; day activity; respite care; domestic assistance; attendant care; rehabilitation; speech, physical, occupational and recreational therapy; recreational opportunities; counseling, including counseling to the person's family, guardian, or other appropriate representative; development of language and communications skills; interpretation; transportation; and equipment. [L 1987, c 341, pt of 2; am L 1990, c 178,  1, 6; am L 1994, c 53, 2; am L 1995, c 189,  3, 22; am L 1998, c 133, 1; am L 2003, c 95, 8(1); am L 2005, c 22, 18; am L 2011, c 220,  12, 13; am L 2015, c 190, 6; am L 2016, c 32, 2] Note  Definition of "mental retardation" changed to "intellectual disability". L 2011, c 220, 12.
  333F-11 Director as guardian. (a) Notwithstanding any law to the contrary, the family court may appoint the director as guardian of any person if the court finds that:  (1) The person is an incapacitated person as defined in section 560:5-102;  (2) The person is developmentally or intellectually disabled;  (3) The person may reasonably be expected to need treatment or care at any residential facility; and  (4) There is no other suitable guardian including the public guardian as designated in chapter 551A who is able or willing to serve as guardian.  (b) The director, if so appointed, shall have all the powers and duties of a guardian duly appointed by the court; provided that the director shall not be liable in damages for any tortious act committed by the person. [L 1987, c 341, pt of 2; am L 2004, c 161, 5; am L 2005, c 22, 19; am L 2011, c 220, 3]
  333F-12 REPEALED. L 1995, c 189, 17; L 1998, c 133, 5.
  333F-13 Payments for care and treatment of persons receiving services; liability. A parent, conservator, or other person liable for the support of any person receiving services under this chapter shall be required to pay for the care and treatment of the person. The parent or conservator of a minor receiving services under this chapter shall be liable for the care and treatment until the person has reached the age of majority. The liability of a conservator of a person under this section shall be limited to the estate of the ward and shall not be recoverable out of the individual assets of the conservator. Every person receiving services under this chapter and any property of the person's estate not exempt from execution shall be liable for the expense of the person's care and treatment. The attorney general, whenever requested by the director, shall take any steps that may be appropriate, by civil action if necessary, to enforce any liability established by this section. The attorney general may designate any appropriate county attorney to act in the attorney general's behalf in any enforcement proceeding.  The department, with the approval of the governor and from the funds appropriated to the department for the care and treatment of persons with developmental or intellectual disabilities, may transfer from time to time to the department of human services any amounts that may be requested by the department of human services to match federal funds available under Title XIX of the Social Security Act to assist any indigent or medically indigent persons to pay for the care and treatment of any person receiving services under this chapter. The department may expend federal funds so received for the purposes of this chapter. [L 1987, c 341, pt of 2; am L 1988, c 141, 26; am L 1995, c 189, 9; am L 2004, c 161, 6; am L 2011, c 220, 13]
   333F-14 to 16 REPEALED. L 1995, c 189,  18 to 20; L 1998, c 133, 5.
 333F-17.5 Disposition of Title XIX funds. All earned Title XIX funds collected for community program services under this chapter shall be deposited to the credit of the state general fund. [L 1990, c 96, 1; am L 1993, c 280, 39]
  333F-17 Authority of director to enter into agreements; make dispositions of state resources. (a) The director may enter into agreements with the federal government, other state departments and agencies, and the counties; enter into assistance agreements with private persons, groups, institutions, or corporations; purchase services required or appropriate under this chapter from any private persons, groups, institutions, or corporations; allocate and expend any resources available for the purposes of this chapter; and do all things necessary to accomplish the purposes and provisions of this chapter.  (b) To the extent the director deems it appropriate, the director may require a recipient of any state funds under this chapter to contribute moneys, facilities, or services for carrying out the program or project.  (c) The director shall establish standards and review procedures to assure that private persons, groups, institutions, or corporations provide the services and facilities necessary to accomplish the purposes for which the funds are disbursed. [L 1987, c 341, pt of 2]
  333F-18 Rules. The director, in consultation with the state council on developmental disabilities, private agencies, users of services under this chapter, and other interested parties, shall adopt rules pursuant to chapter 91 necessary or appropriate to carry out this chapter, which shall include but not be limited to:  (1) Establishment of eligibility requirements for participation in services provided under this chapter;  (2) Establishment of standards of transfer from one facility to another;  (3) Provision for the involvement of the person and, where appropriate, the parents, guardian, or other representatives of the person in the determination of eligibility under this chapter, the preparation of the person's individualized service plan, and the selection or rejection of services under this chapter;  (4) Protection and enhancement of the rights of persons receiving or applying for services under this chapter, including the right to privacy and confidentiality;  (5) A fair, timely, and impartial grievance procedure to provide administrative due process and recourse for persons aggrieved by any action or failure to act on the part of the department under this chapter; and  (6) Other provisions required or appropriate to implement the purposes of this chapter. [L 1987, c 341, pt of 2; am L 2001, c 175, 7]
 333F-19 Limitation of liability. The responsibilities of the department to carry out this chapter shall be limited to the resources available to carry out this chapter in a prudent manner. When these resources are exhausted, no action may be brought by, or on behalf of, any person or organization in any court to compel the provision of further services. [L 1987, c 341, pt of 2; am L 1995, c 189, 10]
 333F-2 Developmental disabilities system. (a) The department shall develop, lead, administer, coordinate, monitor, evaluate, and set direction for a comprehensive system of supports and services for persons with developmental or intellectual disabilities within the limits of state or federal resources allocated or available for the purposes of this chapter. The department shall administer or may provide available supports and services based on a client-centered plan, which resulted from client choices and decision-making that allowed and respected client self-determination.  The department's responsibility for persons with developmental or intellectual disabilities shall be under one administrative unit for the purpose of coordination, monitoring, evaluation, and delivery of services. Not later than June 30, 1999, all programs and services falling under this chapter shall be provided in the community, including services presently provided at Waimano training school and hospital. When the private sector does not provide or is not able to provide the services, the department shall provide the services. Clients at Waimano training school and hospital shall be placed into community-based programs provided appropriate support services are available.  The department shall convene a panel not later than August 1, 1995, to create a plan to provide services in the community and to ensure that the transition of Waimano training school and hospital residents to the community will be client-centered, taking into consideration the health, safety, and happiness of the residents and the concerns of their families. The panel shall consist of but not be limited to consumers, families, representatives from the private sector, employees and employee representatives, professionals, representatives of the University of Hawaii affiliate program, and representatives of the state council on developmental disabilities.  (b) The department shall ensure the provision of an array of individually appropriate services and care to persons with developmental or intellectual disabilities through the utilization of existing resources within the community, through coordination with supports and services provided under other federal, state, or county acts, and through specific funding when no other resources are available within the limits of state and federal resources allocated or available for the purpose of this chapter. The department shall not supplant or duplicate services provided under other federal, state, or county acts.  (c) Supports and services the department shall administer include, but shall not be limited to:  (1) Early identification and evaluation of persons with developmental or intellectual disabilities;  (2) Development, planning, and implementation in coordination with other federal, state, and county agencies, of service programs for persons with developmental or intellectual disabilities;  (3) Development and provision of service programs in the public or private sectors through chapter 42F or chapter 103F, for persons with developmental or intellectual disabilities;  (4) Establishment of a continuum of comprehensive services and residential alternatives in the community to allow persons with developmental or intellectual disabilities to live in the least restrictive, individually appropriate environment;  (5) Development and implementation of a program for single-entry access by persons with developmental or intellectual disabilities to services provided under this chapter as well as referral to, and coordination with, services provided in the private sector or under other federal, state, or county acts, and the development of an individualized service plan by an interdisciplinary team;  (6) Collaborative and cooperative services with public health and other groups for programs to prevent developmental or intellectual disabilities;  (7) Informational and educational services to the general public and to lay and professional groups;  (8) Consultative services to the judicial branch of government, educational institutions, and health and welfare agencies whether the agencies are public or private;  (9) Provision of community residential alternatives for persons with developmental or intellectual disabilities, including group homes and homes meeting ICF/ID standards;  (10) Provision of care at the skilled nursing level or in a skilled nursing facility, as individually appropriate;  (11) Provision of other programs, services, or facilities necessary to provide a continuum of care for persons with developmental or intellectual disabilities;  (12) Provision of case management services independent of the direct service provider; and  (13) Development and maintenance of respite services in the community for persons with developmental or intellectual disabilities.  (d) Provisions for supports and services shall be limited to the amount of resources allocated or available for the purposes of this chapter.  (e) The department shall maximize its funds for community services using such funds as state matching funds for Title XIX programs, other governmental finance participation programs, and private finance programs as necessary and when possible. Only those individuals eligible for community services but not eligible for medicaid waiver services or other federally reimbursed programs or for whom such services are not appropriate or not available based on their individual service plan shall receive services and supports with one hundred per cent state funds. [L 1987, c 341, pt of 2; am L 1990, c 178,  2, 6; am L 1991, c 335, 9; am L 1995, c 189,  4, 22; am L 1997, c 190, 6; am L 1998, c 133, 2; am L 2001, c 175, 6; am L 2006, c 303,  1, 4; am L 2007, c 40, 4; am L 2011, c 220,  13, 14.] Cross References  Early intervention services for infants and toddlers, see  321-351 to 357.  ICF/ID, see 46-4.
 333F-20 Standards for services. The department shall require appropriate standards of services to be met by its own services or contractual services including residential, day treatment, and other related programs. These standards, wherever applicable and appropriate, shall conform to or exceed federal standards. [L 1987, c 341, pt of 2; am L 1995, c 189, 11]
 333F-21 Provision of services; family and caregiver support. The director within the limits of state and federal resources allocated or available for the purposes of this chapter shall provide any services that may be necessary to maintain and enhance care giving in community-based homes for persons with developmental disabilities. For the purposes of this section, "family and caregiver support" means a flexible and varied network of support which does not supplant community resources, and which is capable of providing for the individual families caring for persons with developmental disabilities. These services may include:  (1) In-home and out-of-home respite services for families and care providers;  (2) The purchase of adaptive equipment such as bath chairs and special positioning chairs not covered by health insurance or other resources;  (3) Counseling services for families of care providers concerning stresses and feelings about caring for persons with developmental disabilities;  (4) Special supply purchases such as diapers and special clothing required by persons with developmental disabilities;  (5) Homemaker and chore services;  (6) Transportation services not available through existing resources in the community;  (7) Specialized therapy services for persons with developmental disabilities not available through insurance, medicaid, or other resources;  (8) Case management to help families and care providers coordinate and access services available to persons with developmental disabilities; and  (9) Provision, without regard to chapter 42F or chapter 103F, of modifications to dwelling units to enable persons with developmental disabilities with sensory limitation or mobility problems to reside in community homes which require adaptive and safety alterations such as the installation of ramps and porch lifts, bars and hand rails, widening of doorways, removal of other architectural barriers, and the enlargement of bath facilities to allow the movement and ensure the safety of the person with developmental disabilities; provided that:  (A) There shall be an agreement between the care provider and the department to ensure continued care in the home where the modification is provided; and  (B) Modification costs shall be limited to the amount of funds appropriated for the program for any individual client. [L 1990, c 324, 2; am L 1991, c 335, 10; am L 1995, c 189, 12; am L 1997, c 190, 6]
  333F-22 REPEALED. L 2015, c 190, 10.
  333F-23 Intellectual and developmental disabilities medicaid waiver administrative claiming special fund. (a) There is established in the treasury of the State the intellectual and developmental disabilities medicaid waiver administrative claiming special fund, into which shall be deposited:  (1) All revenues from medicaid administrative claiming designated for the department that are allowable for operating the Hawaii home and community-based services waiver for persons with intellectual and developmental disabilities pursuant to section 1915(c) of the Social Security Act;  (2) Appropriations made by the legislature to the fund;  (3) Other grants and gifts made to the fund; and  (4) Any income and capital gains earned by the fund.  (b) Moneys in the intellectual and developmental disabilities medicaid waiver administrative claiming special fund shall be used by the department for the following purposes:  (1) Payment for fiscal management services of the Hawaii home and community-based services waiver for persons with intellectual and developmental disabilities pursuant to section 1915(c) of the Social Security Act;  (2) Training of staff; waiver providers; waiver participants, family members of waiver participants, legal representatives of waiver participants; and community stakeholders;  (3) Quality management activities for operating the Hawaii home and community-based services waiver for persons with intellectual and developmental disabilities pursuant to section 1915(c) of the Social Security Act;  (4) Ongoing operations and maintenance of the information technology system;  (5) Conducting rate methodology studies to define rates for the Hawaii home and community-based services waiver for persons with intellectual and developmental disabilities pursuant to section 1915(c) of the Social Security Act; and  (6) Assessment services for determining each participant's level of support needs.  (c) The department shall submit to the legislature no later than twenty days prior to the convening of each regular session a report that provides an accounting of the receipts of and expenditures from the intellectual and developmental disabilities medicaid waiver administrative claiming special fund. [L 2019, c 165, 2]
  333F-3 Community services for the developmentally disabled. The department shall develop and administer a community service delivery system which may design, implement, administer, coordinate, monitor, and evaluate the programs and services of the department for persons with developmental or intellectual disabilities other than the operations and management of Waimano training school and hospital. [L 1987, c 341, pt of 2; am L 2011, c 220, 13]
  333F-4 REPEALED. L 1995, c 189,  14, 26; L 1998, c 133, 5.
  333F-5 Other systems within the developmental disability system. The department may create other systems as required to implement the services necessary for persons with developmental or intellectual disabilities. [L 1987, c 341, pt of 2; am L 2011, c 220, 13]
 333F-6 Application and assessment for services; individualized service plans. (a) The department shall administer an application and assessment system for persons with developmental or intellectual disabilities, and shall determine eligibility for services or supports within thirty working days of receipt of an application. If the department determines that the person is eligible for services or supports under this chapter within the limits of federal or state resources available for the purposes of this chapter, the department, after due consideration is afforded the preferences of the person with developmental or intellectual disabilities, the person's parents if a minor, or legal guardian, shall refer that person to appropriate programs within ten working days of the determination; an individualized service plan for the person shall be prepared by an interdisciplinary team for the person, and the department may provide case management services to the person.  (b) The procedure for assessment of the person and the elements of the individualized service plan shall be described in rules adopted by the department pursuant to chapter 91. The individualized service plan shall be in writing and shall include, at a minimum, the nature of the needs of the person, treatment and care goals, and specific services to be offered to the person to attain these goals.  (c) The department shall keep waiting lists of all individuals who are eligible for services and supports, but for whom services and supports have not been provided for any reason, and shall report annually to the legislature the numbers of persons waiting for services and supports and the reasons for the lack of services and supports. [L 1987, c 341, pt of 2; am L 1995, c 189, 5; am L 2011, c 220, 13]
  333F-7 Provision of services. The department shall:  (1) Assist the individual to develop, with the help of family and friends if necessary, an individualized service plan;  (2) Identify the amount of dollars available to the individual to effectuate the individualized service plan; and  (3) Allow consumers to direct the expenditure of the identified funds. [L 1987, c 341, pt of 2; am L 1995, c 189, 6; am L 1998, c 133, 3]
 333F-8.5 Advocacy agency for persons with developmental disabilities and mental illness. (a) The purpose of this section is to comply with federal law, which mandates the states to provide advocacy services to persons with developmental disabilities and mental illness in order to receive federal funds.  (b) The governor may designate an entity or agency to carry out the purposes of this section.  (c) The entity or agency designated by the governor shall have access to all records of any person with developmental disabilities or mental illness, to the extent required by federal law.  (d) The entity or agency so designated by the governor shall provide those advocacy services to persons with developmental disabilities or mental illness as required by federal law. All departments and agencies of the State and the judiciary shall cooperate with the entity or agency so designated to carry out the purposes of this section. [L 1992, c 249, 1; am L 1995, c 189, 8] Case Notes  Discussed, where the court found that the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 15001 et seq.) creates a private right of action in federal court. 513 F. Supp. 2d 1185.
  333F-8.7 Confidentiality of records. (a) All certificates, applications, records, and reports made for the purposes of this chapter that are maintained, used, or disclosed by health care providers as defined in chapter 334, health plans as defined in title 45 Code of Federal Regulations section 160.103, and health care clearinghouses as defined in title 45 Code of Federal Regulations section 160.103, and directly or indirectly identifying a person who receives services because of a developmental disability shall be kept confidential and shall not be disclosed by any person except as allowed by title 45 Code of Federal Regulations part 164, subpart E.  (b) Nothing in this section shall preclude the application of more restrictive rules of confidentiality set forth for records covered by title 42 Code of Federal Regulations part 2, relating to the confidentiality of alcohol and drug abuse patient records, or disclosure deemed necessary under the federal Developmental Disabilities Act of 1984, P.L. 98-527, to protect and advocate for the rights of persons with developmental disabilities who reside in facilities for persons with developmental disabilities. [L 2014, c 214, 2]
 333F-8 Rights of persons with developmental or intellectual disabilities. (a) Persons with developmental or intellectual disabilities shall have the following rights:  (1) To receive the least restrictive, individually appropriate services, including a program of activities outside the residence in accordance with the person's individualized service plan;  (2) To reside in the least restrictive, individually appropriate residential alternative located as close as possible to the person's home community within the State;  (3) To the extent it is individually appropriate as decided after due consideration afforded the preferences of the person with developmental or intellectual disabilities, to:  (A) Interact with persons without disabilities in a nontreatment, nonservice-oriented setting;  (B) Live with, or in close proximity to, persons without disabilities; and  (C) Live in a setting which closely approximates those conditions available to persons without disabilities of the same age;  (4) To reasonable access to review medical, service, and treatment files and to be informed of diagnoses;  (5) To develop a plan with the input of family and friends that identifies the supports needed to accomplish the plan rather than purchase a program;  (6) To control, with the help of family and friends as necessary, an identified amount of dollars to accomplish the plan;  (7) To direct the provision of resources, both paid and unpaid, that will assist an individual with a disability to live a life in the community rich in community association and contribution;  (8) To a valued role in the community through employment, participation in community activities, volunteering, including being accountable for spending public dollars in ways that are life enhancing; and  (9) To privacy and confidentiality, to the extent possible, in connection with services provided to the person.  (b) Rights listed in this chapter shall not be construed to replace or limit any other rights, benefits, or privileges, including other statutory and regulatory due process rights and protections, to which a person with a developmental or intellectual disability may be entitled.  (c) The enumeration or granting of these rights does not guarantee the provision of services. [L 1987, c 341, pt of 2; am L 1995, c 189, 7; am L 1998, c 133, 4; am L 2011, c 220, 3]
   333F-9, 10 REPEALED. L 1995, c 189,  15, 16; L 1998, c 133, 5.
  334-1 Definitions. As used in this chapter unless otherwise indicated by the context:  "Administrator" means the person in charge of a public or private hospital.  "Admission procedures" mean the various methods for admission of mentally ill persons or of persons habituated to the excessive use of drugs or alcohol to public and private psychiatric facilities.  "Authorized absence" means absence of a patient from a psychiatric facility for any period of time with permission.  "Behavioral health crisis center" means a facility that is specifically designed and staffed to provide care, diagnosis, or treatment for persons who are experiencing a mental illness or substance use disorder crisis.  "Community mental health center" means one or more facilities which alone or in conjunction with other facilities, public or private, are part of a coordinated program providing a variety of mental health services principally for persons residing in a community or communities in or near which the center is located.  "Conservator" shall have the meaning provided in section 560:5-102.  "Court" means any duly constituted court and includes proceedings, hearings of per diem judges as authorized by law.  "Dangerous to others" means likely to do substantial physical or emotional injury on another, as evidenced by a recent act, attempt or threat.  "Dangerous to property" means inflicting, attempting or threatening imminently to inflict damage to any property in a manner which constitutes a crime, as evidenced by a recent act, attempt or threat.  "Dangerous to self" means the person recently has:  (1) Threatened or attempted suicide or serious bodily harm; or  (2) Behaved in such a manner as to indicate that the person is unable, without supervision and the assistance of others, to satisfy the need for nourishment, essential medical care, including treatment for a mental illness, shelter or self-protection, so that it is probable that death, substantial bodily injury, or serious physical debilitation or disease will result unless adequate treatment is afforded.  "Department" means the department of health.  "Director" means the director of health.  "Discharge" means the formal termination on the records of a psychiatric facility of a patient's period of treatment at the facility.  "Guardian" shall have the meaning provided in section 560:5-102.  "Health care operations" means the services and activities conducted by an institution, facility, or agency licensed, certified, or otherwise authorized or permitted by law to provide medical or health services in the ordinary course of business, including case management and care coordination, quality assessment and improvement activities, medical reviews, and administrative activities.  "Health care provider" means an individual or entity licensed, certified, or otherwise authorized or permitted by law to provide medical or health services in the ordinary course of business or practice of a profession.  "Homeless individual" means an individual who is homeless as defined under section 346-361 and who has a serious and persistent mental illness or is otherwise eligible for treatment.  "Imminently dangerous to self or others" means that, without intervention, the person will likely become dangerous to self or dangerous to others within the next forty-five days.  "Incapacitated person" shall have the meaning provided in section 560:5-102.  "Interested person" means an interested, responsible adult, including but not limited to a public official, the legal guardian, spouse, parent, legal counsel, adult child, or next of kin of a person allegedly mentally ill, mentally deficient or suffering from substance abuse or as otherwise provided in article I of chapter 560.  "Intoxicated person" means a person who is deprived of reasonable self-control because of intake of alcohol or because of any substance which includes in its composition volatile organic solvents.  "Judge" means any judge of the family court or per diem judge appointed by the chief justice as provided in section 604-2.  "Law enforcement officer" has the same meaning as in section 710-1000.  "Licensed physician" means a physician or surgeon licensed by the State to practice medicine, including a physician and surgeon granted a limited and temporary license under section 453-3(1), (2), and (5) or a resident physician and surgeon granted a limited and temporary license under paragraph (4) thereof, or a medical officer of the United States while in this State in the performance of the medical officer's official duties.  "Mental health" means a state of social, psychological, and physical well-being, with capacity to function effectively in a variety of social roles.  "Mentally ill person" means a person having psychiatric disorder or other disease which substantially impairs the person's mental health and necessitates treatment or supervision.  "Patient" means a person under observation, care, or treatment at a psychiatric facility.  "Person suffering from substance abuse" means a person who uses narcotic, stimulant, depressant, or hallucinogenic drugs or alcohol to an extent which interferes with the person's personal, social, family, or economic life.  "Protected person" shall have the meaning provided in section 560:5-102.  "Psychiatric facility" means a public or private hospital or part thereof which provides inpatient or outpatient care, custody, diagnosis, treatment or rehabilitation services for mentally ill persons or for persons habituated to the excessive use of drugs or alcohol or for intoxicated persons.  "Special treatment facility" means a public or private facility which provides a therapeutic residential program for care, diagnosis, treatment or rehabilitation services for emotionally distressed persons, mentally ill persons or persons suffering from substance abuse.  "Therapeutic living program" means a supervised living arrangement that provides mental health or substance abuse services for individuals or families who do not need the structure of a special treatment facility and are transitioning from a more restrictive treatment setting to independent living. The program aids residents in meeting basic needs and provides supportive services through a required service plan.  "Treatment" means the broad range of emergency, out-patient, intermediate, domiciliary, and inpatient services and care, including diagnostic evaluation, medical, psychiatric, psychological, and social service care, vocational rehabilitation, career counseling, and other special services which may be extended to handicapped persons.  "Treatment summary" means a record of information including present history and physical examination, mental status examination, emergency department record, intake evaluation, eligibility determination, current medication list and prescription history, treatment plan, consultant reports, diagnosis and problem lists, recent laboratory and diagnostic testing, clinical or discharge summaries, and discharge instructions, or any combination of such information.  "Unauthorized absence" means absence of a patient from a psychiatric facility for any period of time without permission. [L 1967, c 259, pt of 1; HRS 334-1; am L 1968, c 6, 2; am L 1969, c 153, 1; am L 1973, c 93, pt of 2; am L 1976, c 130, 1(1), (2); am L 1977, c 76, 1; am L 1979, c 228, 2; am L 1984, c 94, 1; am L 1985, c 75, 1; gen ch 1985; am L 1986, c 335, 1 and c 339, 43; am L 1997, c 220, 1; am L 2004, c 161, 7; am L 2008, c 98, 1; am L 2013, c 221,  3, 24 and c 232, 1; am L 2016, c 114,  1, 6 and c 186, 2; am L 2019, c 129, 3; am L 2020, c 28, 2] Revision Note  The definition of "law enforcement officer" in this section reflects the language of the amendment by L 2013, c 232, 1, rather than that of the amendment by L 2013, c 221, 3. To see the definition of "law enforcement officer" by L 2013, c 221, see the 2013 Session Laws of Hawaii. Law Journals and Reviews  For description of procedure under chapter, see Thou Shalt Not Commit, Samuel P. King, 5 HBJ 46. Case Notes  In light of the definition of "dangerous to self" under this section, person's refusal to take medications and person's racist remarks to strangers constituted insufficient evidence to support family court's finding that person was imminently and substantially dangerous to person's self. 102 H. 528 (App.), 78 P.3d 341.
 334-10 State council on mental health. (a) There is established, within the department of health for administrative purposes, a state council on mental health. The council shall consist of twenty-one members appointed by the governor as provided in section 26-34. In making appointments to the council, the governor shall ensure that all service area boards of the State are represented, and that a majority of the members are nonproviders of mental health or other health services, and that a majority of the members are not state employees. The number of parents of children with serious emotional disturbances shall be sufficient to provide adequate representation of such children in the deliberations of the council. The council shall be composed of residents of the State, including individuals representing:  (1) The principal state agencies with respect to mental health, education, vocational rehabilitation, criminal justice, housing, medicaid, and social services;  (2) Public and private entities concerned with the need, planning, operation, funding, and use of mental health services and related support services;  (3) Adults with serious mental illnesses who are receiving, or have received, mental health services;  (4) The families of such adults or families of children with serious emotional disturbances; and  (5) The Hawaii advisory commission on drug abuse and controlled substances who shall be a person knowledgeable about the community and the relationships between mental health, mental illness, and substance abuse.  (b) The council shall elect a chairperson from among its members. All members shall serve without compensation but shall be paid their necessary expenses in attending meetings of the council.  (c) The council shall advise the department on allocation of resources, statewide needs, and programs affecting two or more service areas. The council shall review and comment on the statewide comprehensive integrated service plan and shall serve as an advocate for adults with serious mental illness, children with serious emotional disturbances, other individuals with mental illnesses or emotional problems, and individuals with combined mental illness substance abuse disorders.  (d) If the department's action is not in conformance with the council's advice, the department shall provide a written explanation of its position to the council.  (e) The council shall prepare and submit an annual report to the governor and the legislature on implementation of the statewide comprehensive integrated service plan. The report presented to the legislature shall be submitted at least twenty days prior to the convening of each regular session.  (f) A quorum for purposes of doing business shall consist of a majority of the members serving on the council immediately before a meeting begins.  (g) If a quorum is present when a vote is taken, the affirmative vote of a majority of members present shall constitute a valid act of the council unless this chapter, part I of chapter 92, the articles of incorporation, or the bylaws require a greater number of affirmative votes. [L 1984, c 218, pt of 1; am L 1993, c 210, 2; am L 2004, c 79, 3; am L 2018, c 137, 1]
Cross References Intermediate sanctions for selected offenders and defendants, see  353-10.5, 353-63.5, and 706-605.1.  334-101 Establishment. It is the intent of the legislature to establish a statewide system of residential treatment programs which provide a range of available services which will be alternatives to institutional care and are based on principles of residential, community-based treatment.  It is further the intent of the legislature that community residential mental health programs in the State of Hawaii be developed in accordance with the guidelines and principles set forth in this part. To this end, the department may implement the community residential treatment system described in this part either with available allocations or applying for funds from the legislature. Any private, nonprofit, or public organization, or both, within the State is eligible to submit an application for operation under this part.  It is further the intent of the legislature to provide guidelines for such a system to the applicants, while allowing each applicant the flexibility to design a system specific to the nature of the community and the needs of the clients.  It is further the intent of the legislature that the director, in authorizing programs which serve as alternatives to institutionalization, follow the guidelines and principles developed herein. [L 1980, c 221, pt of 2; am L 1986, c 237, 1]
  334-102 Criteria. The director shall use the following as criteria in determining the eligibility of each applicant:  (1) Facilities:  (A) Settings, whether residential or day, shall be as close to a normal home environment as possible without sacrificing client safety or care;  (B) Residential treatment centers shall be relatively small, preferably fifteen beds or less, but in any case with the appearance of noninstitutional setting; and  (C) The individual elements of the system, where possible, shall be in separate facilities and not part of one large facility attempting to serve an entire range of clients;  (2) Staffing patterns:  (A) Staffing patterns shall reflect, to the maximum extent feasible, at all levels, the cultural, linguistic, ethnic, sexual, and other social characteristics of the community the facility serves;  (B) The programs shall be designed to use appropriate multidisciplinary professional consultation and staff to meet the specific diagnostic and treatment needs of the client; and  (C) Programs shall be encouraged to use paraprofessionals where appropriate;  (3) Programs:  (A) The programs shall have a rehabilitation focus which encourages the client to develop the skills to become self-sufficient and capable of increasing levels of independent functioning where appropriate. They shall include prevocational and vocational programs;  (B) The programs shall encourage the participation of the clients in the daily operation of the setting in development of treatment and rehabilitation planning and evaluation;  (C) Participation in any element of the system shall not preclude the involvement of clients in individual therapy. Individual therapists of clients, where possible, shall be directly involved in the development and implementation of a treatment plan;  (4) Coordination: The programs shall demonstrate specific linkages with one another, and with the general treatment and social service system, as a whole. These connections should not be limited to the mental health system, but shall include, whenever possible, community resources utilized by the general population. To ensure coordination occurs, each program shall include a case management system in which the case manager serves as a coordinator to assure the cooperative operation of the various elements of the system and to act as an active advocate for the clients in the system. The case manager shall assure that each client receives the appropriate type of service. The case manager shall meet regularly with clients, work closely with program staff, and serve as an advocate. The case manager shall work directly with the client and the system to assure continuity of care between the service elements of the system. [L 1980, c 221, pt of 2]
  334-103 Program elements. The following shall be the program elements of the system. These shall be designed to provide, at every level, alternatives to institutional settings. Applicants applying to operate program elements shall show how each of these elements works with the current programs in the community the facility will serve. Applicants may apply for operation under the following program elements:  (1) A short-term crisis residential alternative to hospitalization for individuals experiencing an acute episode or situational crisis. The program shall be available for admissions twenty-four hours a day, seven days a week. The primary focus of this element shall be on reduction of the crisis, stabilization, diagnostic evaluation, and assessment of the person's existing support system, including recommendations for referrals upon discharge. This service in the program shall be designed for persons who would otherwise be referred to an acute inpatient psychiatric unit;  (2) A long-term residential treatment program for clients who would otherwise be living marginally in the community with little or no service support, and who would return many times to the hospital for treatment. It also will serve those who are referred to, and maintained in, state facilities or nursing homes, or private or public facilities or programs under contract with the director pursuant to section 334-2.5, because they require long-term, intensive support. This service shall be designed to provide a rehabilitation program for the so-called "chronic" patient who needs long-term support in order to develop independent living skills. This program goes beyond maintenance to provide an active rehabilitation focus for these individuals;  (3) A transitional residential program designed for persons who are able to take part in programs in the general community, but who, without the support of counseling as well as the therapeutic community, would be at risk of returning to the hospital or becoming homeless by reason of serious and persistent mental health challenges. These programs may employ a variety of staffing patterns and are for persons who are expected to move toward a more independent living setting. The clients shall be expected to play a major role in the functioning of the household and shall be encouraged to accept increasing levels of responsibility, both in the residential community and in the community as a whole. Residents are required to be involved in daytime activities outside of the facility that are relevant to their personal goals and conducive to their achieving more self-sufficiency; or  (4) A semisupervised, independent, but structured living arrangement for persons who do not need the intensive support of the system elements of paragraph (1), (2), or (3), but who, without some support and structure, are at risk of requiring hospitalization or becoming homeless by reason of serious and persistent mental health challenges. The small cooperative housing units shall function as independent households with direct linkages to staff support in case of emergencies, as well as for regular assessment and evaluation meetings. Individuals may use satellite housing as a transition to independent living or may remain in this setting indefinitely in order to avoid the need for more intensive settings. This element is for persons who only need minimum professional or paraprofessional support in order to live in the community. These units should be as normative as the general living arrangements in the communities in which they are developed. [L 1980, c 221, pt of 2; am L 1985, c 219, 1; am L 1986, c 237, 2; am L 1997, c 220, 3; am L 1999, c 119, 7; am L 2016, c 186, 5]
  334-104 Least restrictive level of service. The system shall be developed in such a way that clients may move within the system to the most appropriate, least restrictive level of service. The system shall also allow for direct referral of clients, without requiring that a person pass through the entire system to reach the most appropriate level. [L 1980, c 221, pt of 2]
  334-105 Evaluation. An adequate proportion of funds shall be applied to the development and implementation of an appropriate evaluation mechanism. The department, in conjunction with the programs, shall specify the criteria to be used in the evaluation of each program and in the evaluation of the entire system.  By June 30, 1982, the department shall conduct or contract for the evaluation. Evaluation reports shall be transmitted to the legislature. [L 1980, c 221, pt of 2]
 334-106 License or accreditation required. Facilities operated pursuant to this part shall be licensed under existing licensing categories, including provisional licenses, or accredited pursuant to section 321-193(10). Facilities operated pursuant to section 334-103(1) or (2) to provide services to mentally ill adults shall be licensed, including provisional licenses. Facilities operated to provide services to mentally ill adults pursuant to section 334-103(3) or (4) shall be accredited rather than licensed. The director shall review the appropriateness of these licensing and accreditation categories. If the director determines that new licensing or accreditation categories are necessary, the director shall issue a report and recommendation to the legislature. [L 1980, c 221, pt of 2; gen ch 1985; am L 1986, c 237, 3; am L 2002, c 54, 1]
  334-11 Service area boards. (a) A service area board shall be established within the department of health for administrative purposes to advise each service area administrator. Each board shall consist of nine members appointed by the governor, who shall serve for terms to be determined by the governor. After the initial appointees, the governor shall fill each vacancy on a board by appointing a member from a list of four persons submitted by that board, except that, if the board is unable to achieve a quorum at two consecutive meetings called for the purpose of making such a list, the list may be provided by a group of at least seven service area consumers and nonproviders of mental health services. This group shall consist of all board members willing to participate in making the list and other area consumers and nonproviders of mental health services to be selected by the service area board chairperson and service area administrator. Any meeting called for the purpose of making the list shall be subject to part I of chapter 92. The members of the board shall be service area residents, who are consumers or nonproviders of mental health services and service area providers with a majority being non-state employees and nonproviders of mental health or other health services.  Each board shall elect a chairperson from among its members. All members shall serve without compensation but shall be paid their necessary expenses in attending meetings of the board.  (b) Each service area administrator and board, in consultation with public and private providers, shall participate in the development of comprehensive integrated service area plans and budgets. Each board shall advise the service area administrator about service area needs to prevent and treat mental or emotional disorders, combined mental illness substance abuse disorders, and persons afflicted by these disorders, and provide advice, guidance, and recommendations to both the advisory commission on drug abuse and controlled substances, section 329-2, and the state council on mental health, section 334-10, as they deem appropriate.  (c) If a service area administrator's actions are not in conformance with the board's planning decisions, the service area administrator shall provide a written explanation to the board.  (d) A quorum for purposes of doing business shall consist of a majority of the members serving on a board immediately before a meeting begins.  (e) If a quorum is present when a vote is taken, the affirmative vote of a majority of the members present shall constitute a valid act of a board unless this chapter, part I of chapter 92, or the articles or bylaws of the board require the vote of a greater number of members. [L 1984, c 218, pt of 1; am L 1985, c 6, 1; am L 1987, c 14, 1; am L 1993, c 210, 3; am L 2004, c 79, 4; am L 2018, c 138, 1]
  334-12 Bilingual mental health services. (a) There is established in the mental health division of the department of health, a mental health unit which shall provide bilingual mental health services statewide.  (b) The mental health unit established in this section shall have the following functions and shall provide the following services:  (1) Outreach;  (2) Education;  (3) Case finding;  (4) Screening;  (5) Referral and linkage;  (6) Consultation;  (7) Crisis stabilization;  (8) Community support services;  (9) System advocacy;  (10) Client support and advocacy; and  (11) Monitoring and follow-up. [L 1989, c 78, 3]
  334-121.5 Examination for assisted community treatment indication. A licensed psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization associated with the licensed psychiatric facility where a person is located who was committed to involuntary hospitalization, delivered for emergency examination or emergency hospitalization, or voluntarily admitted to inpatient treatment at a psychiatric facility pursuant to part IV shall, prior to the person's discharge, examine the person to determine whether an assisted community treatment plan is indicated pursuant to this part. If a plan is indicated, the psychiatrist or advanced practice registered nurse shall prepare the certificate specified by section 334-123. The psychiatric facility may notify another mental health program for assistance with the coordination of care in the community for the person. Nothing in this section shall delay the appropriate discharge of a person from the psychiatric facility after the examination for assisted community treatment indication has been completed. [L 2019, c 129, 2]
Note Part heading amended by L 2013, c 221,  2, 24; L 2016, c 114, 6. Annual report to 2018-2024 legislature on department use of assisted community treatment process. L 2017, c 111, 5. Cross References  Intermediate sanctions for selected offenders and defendants, see  353-10.5, 353-63.5, and 706-605.1.   334-121 Criteria for assisted community treatment. A person may be ordered to obtain assisted community treatment if the family court finds, based on the professional opinion of a psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization, that:  (1) The person is mentally ill or suffering from substance abuse;  (2) The person is unlikely to live safely in the community without available supervision, is now in need of treatment in order to prevent a relapse or deterioration that would predictably result in the person becoming imminently dangerous to self or others, and the person's current mental status or the nature of the person's disorder limits or negates the person's ability to make an informed decision to voluntarily seek or comply with recommended treatment;  (3) The person has a:  (A) Mental illness that has caused that person to refuse needed and appropriate mental health services in the community; or  (B) History of lack of adherence to treatment for mental illness or substance abuse that resulted in the person becoming dangerous to self or others and that now would predictably result in the person becoming imminently dangerous to self or others; and  (4) Considering less intrusive alternatives, assisted community treatment is essential to prevent the danger posed by the person, is medically appropriate, and is in the person's medical interests. [L 1984, c 251, pt of 1; am L 1992, c 138, 2; am L 2013, c 221,  7, 24; am L 2016, c 114, 6; am L 2017, c 88, 2; am L 2019, c 129, 4]
  334-122 Definitions. For the purposes of this part:  "Advanced practice registered nurse" means a registered nurse licensed to practice in this State who:  (1) Has met the qualifications set forth in chapter 457 and this part;  (2) Because of advanced education and specialized clinical training, is authorized to assess, screen, diagnose, order, utilize, or perform medical, therapeutic, preventive, or corrective measures;  (3) Holds an accredited national certification in an advanced practice registered nurse psychiatric specialization; and  (4) Holds prescriptive authority pursuant to section 457-8.6.  "Assisted community treatment" includes medication specifically authorized by court order; individual or group therapy; day or partial day programming activities; services and training, including educational and vocational activities; supervision of living arrangements; and any other services prescribed to either alleviate the person's disorder or disability, maintain or maximize semi-independent functioning, or prevent further deterioration that may reasonably be predicted to result in the need for hospitalization or more intensive or restrictive levels of care in the community or incarceration for criminal behavior.  "Designated mental health program" includes a state-operated or private provider who is authorized to provide mental health services, including but not limited to inpatient treatment, outpatient treatment, case management, day treatment, or crisis services.  "Interested party" means a parent, grandparent, spouse, sibling, adult child, reciprocal beneficiary, service provider, case manager, outreach worker, or mental health professional.  "Subject of the order" means a person who has been ordered by the court to obtain assisted community treatment.  "Subject of the petition" means the person who, under a petition filed under section 334-123, is alleged to meet the criteria for assisted community treatment.  "Treating psychiatrist" means the psychiatrist who is responsible for the management and supervision of a person's treatment under order of the court. [L 1984, c 251, pt of 1; am L 2013, c 221,  8, 24; am L 2016, c 114, 6; am L 2017, c 88, 3] Note  Definition of "outpatient treatment" changed to "assisted community treatment". L 2013, c 221, 8.
  334-123.5 Appointment of a guardian ad litem. The family court, upon receipt of a petition filed under this part, shall determine the existence of a guardian and if none, shall appoint a guardian ad litem to represent the best interests of the subject of the petition throughout the pendency of the proceedings. [L 2021, c 58, 2]
  334-123 Initiation of proceeding for assisted community treatment. (a) Any interested party may file a petition with the family court alleging that another person meets the criteria for assisted community treatment. The petition shall state:  (1) Each of the criteria under section 334-121 for assisted community treatment;  (2) Petitioner's good faith belief that the subject of the petition meets each of the criteria under section 334-121;  (3) Facts that support the petitioner's good faith belief that the subject of the petition meets each of the criteria under section 334-121; and  (4) That the subject of the petition is present within the county where the petition is filed.  The hearing on the petition need not be limited to the facts stated in the petition. The petition shall be executed subject to the penalties of perjury but need not be sworn to before a notary public.  (b) The petition may be accompanied by a certificate of a licensed psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization who has examined the subject of the petition within twenty calendar days prior to the filing of the petition. For purposes of the petition, an examination shall be considered valid so long as the licensed psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization has obtained enough information from the subject of the petition to reach a diagnosis of the subject of the petition, and to express a professional opinion concerning the same, even if the subject of the petition is not fully cooperative. If the petitioner believes that further evaluation is necessary before treatment, the petitioner may request further evaluation.  (c) The petition shall include the name, address, and telephone number of at least one of the following persons in the following order of priority: the subject of the petition's spouse or reciprocal beneficiary, legal parents, adult children, and legal guardian, if one has been appointed. If the subject of the petition has no living spouse or reciprocal beneficiary, legal parent, adult children, or legal guardian, or if none can be found, the petition shall include the name, address, and telephone number of at least one of the subject's closest adult relatives, if any can be found. [L 1984, c 251, pt of 1; am L 1986, c 339, 44; am L 2013, c 221,  9, 24; am L 2015, c 231, 1; am L 2016, c 114, 6; am L 2017, c 88, 4; am L 2018, c 144, 9; am L 2019, c 129, 5] Note  Annual report to legislature regarding assisted community treatment, beginning with the 2015 legislature. L 2013, c 221,  21, 24; L 2015, c 231, 7; L 2016, c 114, 6.
  334-124 Hearing date. The family court shall set a hearing date on a petition as soon as possible. [L 1984, c 251, pt of 1; am L 2013, c 221, 10; am L 2015, c 231, 2]
  334-125 Notice. (a) Notice of the hearing shall be:  (1) Served personally on the subject of the petition pursuant to family court rules;  (2) Served personally or by certified or registered mail, return receipt requested, deliverable to the addressee only, to as many as are known to the petitioner of the subject's spouse or reciprocal beneficiary, legal parents, adult children, and legal guardian, if one has been appointed. If the subject of the petition has no living spouse or reciprocal beneficiary, legal parent, adult children, or legal guardian, or if none can be found, notice of the hearing shall be served on at least one of the subject's closest adult relatives, if any can be found;  (3) Served on the guardian ad litem appointed for the subject of the petition or the subject's existing guardian, if the court determines the existence of one;  (4) Served on the attorney for the subject of the petition, if applicable; and  (5) Given to other persons as the court may designate.  (b) The notice shall include the following:  (1) The date, time, place of hearing, a clear statement of the purpose of the proceedings and possible consequences to the subject, and a statement of the legal standard upon which assisted community treatment is being considered;  (2) A copy of the petition;  (3) Notice that the subject of the petition has been assigned a guardian ad litem to represent the best interests of the subject throughout the proceeding, unless the court determined the existence of a guardian for the subject; and  (4) Notice that the subject of the petition is entitled to the assistance of an attorney, and that the subject may contact their own attorney.  (c) Notice of all subsequent hearings shall be served in accordance with subsections (a) and (b), and in accordance with all applicable family court rules relating to service of notice, including that service need not be made on parties in default for failure to appear. [L 1984, c 251, pt of 1; am L 1997, c 383, 48; am L 2013, c 221,  11, 24; am L 2015, c 231, 3; am L 2016, c 114, 6; am L 2018, c 144, 10; am L 2021, c 58, 3] Rules of Court  Service of process, see HFCR rule 4.
  334-126 Hearing on petition. (a) The court shall adjourn or continue a hearing for failure to timely notify a person entitled to be notified unless the court determines that the interests of justice require that the hearing continue without adjournment or continuance.  (b) The time and form of the procedure incident to hearing the issues in the petition shall be provided by family court rule and consistent with this part.  (c) Hearings may be held at any convenient place within the circuit. The subject of the petition, any interested party, or the family court upon its own motion may request a hearing in another court because of inconvenience to the parties, witnesses, or the family court or because of the subject's physical or mental condition.  (d) The hearing shall be closed to the public, unless the subject of the petition requests otherwise. Individuals entitled to notice are entitled to be present in the courtroom for the hearing and to receive a copy of the hearing transcript or recording, unless the court determines that the interests of justice require otherwise.  (e) The subject of the petition shall not be required to be present at the hearing; provided that the subject has been served with the petition and the appointed guardian ad litem, or existing guardian, is present to represent the best interests of the subject through the proceedings.  (f) If the subject of the petition is represented by their own attorney, the attorney shall be allowed adequate time for investigation of the matters at issue and for preparation, and shall be permitted to present the evidence that the attorney believes necessary for a proper disposition of the proceeding.  (g) No subject of the petition shall be ordered to receive assisted community treatment unless at least one psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization testifies in person at the hearing who has personally assessed the subject, within a reasonable time before the filing of the petition up to the time when the psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization provides oral testimony at court. The testimony of the psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization shall state the facts which support the allegation that the subject meets all the criteria for assisted community treatment, provide a written treatment plan, which shall include non-mental health treatment if appropriate, provide the rationale for the recommended treatment, and identify the designated mental health program responsible for the coordination of care.  If the recommended assisted community treatment includes medication, the testimony of the psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization shall describe the types or classes of medication which should be authorized, and describe the physical and mental beneficial and detrimental effects of such medication.  (h) The subject of the petition may secure a psychiatric examination and present the findings as evidence at the hearing. The subject shall be entitled to a psychiatric examination at a community mental health center if the subject so desires, and if an examination has not already been conducted at a community mental health center which will lead to psychiatric testimony at the hearing. [L 1984, c 251, pt of 1; am L 2013, c 221,  12, 24; am L 2015, c 231, 4; am L 2016, c 114, 6; am L 2017, c 88, 5; am L 2018, c 144, 11; am L 2021, c 58, 4]
  334-127 Disposition. (a) If after hearing all relevant evidence, including the results of any diagnostic examination ordered by the family court, the family court finds that the subject of the petition does not meet the criteria for assisted community treatment, the family court shall dismiss the petition. Notice of the dismissal shall be provided to those persons entitled to notice pursuant to section 334-125.  (b) If after hearing all relevant evidence, including the results of any diagnostic examination ordered by the family court, the family court finds that the criteria for assisted community treatment under section 334-121(1) have been met beyond a reasonable doubt and that the criteria under section 334-121(2) to 334-121(4) have been met by clear and convincing evidence, the family court shall order the subject to obtain assisted community treatment for a period of no more than one year. The written treatment plan submitted pursuant to section 334-126(g) shall be attached to the order and made a part of the order.  If the family court finds by clear and convincing evidence that the beneficial mental and physical effects of recommended medication outweigh the detrimental mental and physical effects, if any, the order may authorize types or classes of medication to be included in treatment at the discretion of the treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization.  The court order shall also state who should receive notice of intent to discharge early in the event that the treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization determines, prior to the end of the court ordered period of treatment, that the subject should be discharged early from assisted community treatment.  Notice of the order shall be provided to those persons entitled to notice pursuant to section 334-125.  (c) The family court shall also designate on the order the treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization who is to be responsible for the management and supervision of the subject's treatment, or shall assign an administrator of a designated mental health program to, in turn, designate the treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization during the treatment period without court approval, and may designate either a publicly employed psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization, or a private psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization; provided that the private psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization shall agree to the designation. The order for assisted community treatment shall be subject to the Health Care Privacy Harmonization Act, chapter 323B.  (d) Nothing in this section shall preclude the subject's stipulation to the continuance [of] an existing court order. [L 1984, c 251, pt of 1; am L 2013, c 221,  13, 24; am L 2016, c 114,  3, 6; am L 2017, c 88, 6; am L 2018, c 144, 12; am L 2019, c 129, 6; am L 2021, c 58, 5]
 334-128 Treatment costs and fees. Private treatment pursuant to the court order shall be at the expense of the subject of the petition, except to the extent such charges are covered by other laws or programs. Treatment through a designated mental health program shall be pursuant to its fee schedules; however, the subject of the order shall not be denied treatment by a designated mental health program for failure to pay the fees. [L 1984, c 251, pt of 1; am L 2013, c 221,  14, 24; am L 2016, c 114, 6]
  334-129 Failure to comply with assisted community treatment. (a) A treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization may prescribe or administer to the subject of the order reasonable and appropriate medication or medications, if specifically authorized by the court order, and treatment that is consistent with accepted medical standards and the family court order, including the written treatment plan submitted pursuant to section 334-126(g).  (b) No subject of the order shall be physically forced to take medication under a family court order for assisted community treatment unless the subject is within an emergency department or admitted to a hospital, subsequent to the date of the current assisted community treatment order.  (c) A subject may be transported to a designated mental health program, or a hospital emergency department, for failure to comply with an order for assisted community treatment via the following methods:  (1) By an interested party with the consent of the subject of the order; or  (2) In accordance with section 334-59.  (d) The designated mental health program's treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization or designee of the psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization shall make all reasonable efforts to solicit the subject's compliance with the prescribed treatment. If the subject fails or refuses to comply after the efforts to solicit compliance, the treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization shall assess whether the subject of the order meets criteria for admission to a psychiatric facility under part IV of this chapter, and proceed with the admission pursuant to section 334-59(a)(2) or (3); provided that the refusal of treatment shall not, by itself, constitute a basis for involuntary hospitalization.  (e) Notice of any transport or admission under this section shall be provided pursuant to section 334-59.5. [L 1984, c 251, pt of 1; am L 2013, c 221,  15, 24; am L 2016, c 114,  4, 6; am L 2017, c 88, 7; am L 2018, c 144, 13; am L 2021, c 58, 6]
 334-13 Representative payee program.  (a) There is established a representative payee program within the department of health, to be administered by the director of health, to provide representative payee services to "mentally ill persons", "persons suffering from substance abuse", and persons referred from the department of human services who receive financial assistance and have a primary medical diagnosis of substance abuse.  (b) In developing this program, the department of health shall consider the following:  (1) Services to the neighbor islands;  (2) Training for representative payees;  (3) Representative payees for care home residents;  (4) Representative payees for homeless persons;  (5) The use of case managers as representative payees;  (6) The development of due process procedures to protect the rights of mentally ill persons and persons suffering from substance abuse; and  (7) The development and implementation of an inter-agency working agreement with the department of human services to carry out the purposes of this program. [L 1990, c 169, 2; am L 1995, c 207, 3]
  334-130 Period of assisted community treatment. (a) The assisted community treatment order shall continue to apply to the subject, for the duration specified in the order, regardless of whether the treatment setting changes.  (b) A subject of assisted community treatment is automatically and fully discharged at the end of the family court ordered period of treatment, a period of not more than one year, unless a new family court order has been obtained as provided hereinbelow.  (c) Nothing in this section shall preclude the subject's stipulation to the continuance [of] an existing court order. [L 1984, c 251, pt of 1; am L 2013, c 221,  16, 24; am L 2016, c 114,  5, 6]
  334-131 Notice of intent to discharge. (a) When the treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization contemplates discharge for a subject of the order because of expiration of the court order or because the subject of the order is no longer a proper subject for assisted community treatment, as determined by the criteria in section 334-121, the treating psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization shall provide notice of intent to discharge.  (b) The notice shall be filed with the family court which issued the order for assisted community treatment, and served by personal service or by certified mail on those persons whom the order for assisted community treatment specifies as entitled to receive notice.  (c) The notice of intent to discharge shall be mailed at least ten days prior to the intended date of discharge.  (d) If no objection is filed under section 334-132 prior to the intended date of discharge, the subject of the order is thereupon fully discharged from assisted community treatment. [L 1984, c 251, pt of 1; am L 2013, c 221,  17, 24; am L 2016, c 114, 6; am L 2017, c 88, 8]
  334-132 Objection to discharge. (a) If any person specified as entitled to receive notice files a written objection with the family court on the grounds that the subject of the order is a proper subject for assisted community treatment, the family court shall conduct a hearing to determine if the subject of the order still meets the criteria for assisted community treatment in section 334-121. The hearing shall be conducted as provided under section 334-134.  (b) If the family court finds that the subject of the order continues to meet the criteria for assisted community treatment in section 334-121, the family court shall order the subject to continue the treatment for the unexpired period of its earlier order.  (c) If the family court finds that the subject of the order does not meet the criteria for assisted community treatment in section 334-121, the court shall dismiss the objection and order the early discharge of the subject. [L 1984, c 251, pt of 1; am L 2013, c 221,  18, 24; am L 2016, c 114, 6]
  334-133 Petition for additional period of treatment; hearing. (a) Before the expiration of the period of assisted community treatment ordered by the family court, any interested party may file a petition with the family court for an order of continued assisted community treatment. The petition shall be filed, and unless the court determines the existence of a guardian, a guardian ad litem appointed, and notice provided in the same manner as under sections 334-123 and 334-125.  (b) The family court shall appoint a guardian ad litem, unless there is an existing guardian, hold a hearing on the petition, and make its decision in the same manner as provided under sections 334-123 to 334-127. The family court may order the continued assisted community treatment for no more than one year after the date of the hearing pursuant to this section if the court finds that the criteria for assisted community treatment continue to exist and are likely to continue beyond one hundred eighty days.  (c) Nothing in this section shall preclude the subject's stipulation to the continuance of an existing court order. This section shall be in addition to the provisions on the objection to discharge. [L 1984, c 251, pt of 1; am L 2013, c 221,  19, 24; am L 2016, c 114, 6; am L 2021, c 58, 7]
  334-134 Hearing for discharge. Any person may petition the family court for the discharge of an order of assisted community treatment during the period of assisted community treatment after sixty days from the most recent hearing involving the subject of the order. The petition shall be filed, and unless the court determines the existence of a guardian, guardian ad litem appointed, notice given, hearing held, and order made in the same manner as provided for the original petition alleging that the subject of the order met the criteria for assisted community treatment. [L 1984, c 251, pt of 1; am L 2013, c 221,  20, 24; am L 2016, c 114, 6; am L 2021, c 58, 8]
 334-14 Group homes for substance abusers; source of funds; disposition of receipts. (a) All moneys to make loans for the establishment of housing in which individuals recovering from alcohol or drug abuse may reside in groups of not less than four individuals, shall be allocated by the legislature through appropriations out of the state general fund.  (b) The department shall include in its budgetary request for each upcoming fiscal period, the amounts necessary to effectuate the purposes of this section.  (c) All moneys received from other funding sources, including but not limited to federal sources, or in repayment of loan principal, payment of interest, or fees, under this section shall be deposited to the credit of the state general fund. [L 1990, c 177, 2; am L 1993, c 280, 36]
  334-141 Definitions. As used in this part:  "Family member" means any individual who is a member of the immediate family of the person who is the subject of the petition, including spouse, child, parent, grandparent, or any related individual who resides in the same household as the individual who is the subject of the petition.  "Outpatient treatment" includes any substance abuse treatment provided through individual or group therapy, day or partial day programs, and intensive day treatment and which does not require the individual to reside on a twenty-four-hour basis in the facility for more than three days to benefit from the treatment program.  "Petitioner" means the family member who applies to the court for an order to require an individual to enter into an outpatient treatment program.  "Respondent" means the individual who is eighteen years of age or older who is the subject of the petition for a court order to require the individual to enter into an outpatient treatment program. [L 2004, c 44, pt of 20]
 334-142 Petition. Any family member may petition the family court for an order requiring a respondent to enter into an outpatient treatment program for substance abuse. The petition shall be in writing under penalty of perjury and include facts relating to:  (1) The conduct of the respondent that indicates substance abuse or addiction;  (2) The respondent TMs history of substance abuse, treatment, and relapse;  (3) The effects of the respondent TMs conduct on the family;  (4) The petitioner TMs good faith belief that the respondent poses an imminent danger to self or to others if the respondent does not receive treatment;  (5) The availability of treatment and financial resources to pay for treatment; and  (6) Any other reason for seeking court intervention. [L 2004, c 44, pt of 20]
  334-143 Notice of hearing and service of petition on respondent. The court shall set a time and date for hearing on the petition, within ten days of the filing of the petition. The notice of hearing and petition shall be served on the respondent. [L 2004, c 44, pt of 20]
  334-144 Hearing and court order. (a) The court shall conduct a hearing to consider all facts relating to the petition. The court may postpone the hearing and order the respondent to be assessed for substance abuse or addiction by a certified substance abuse counselor, at the petitioner TMs expense.  (b) The court may grant the petition if it finds clear and convincing evidence that:  (1) The respondent has a history of substance abuse and refuses to enter treatment voluntarily;  (2) The respondent has a family support system that will encourage and participate in the respondent TMs treatment program;  (3) The respondent can benefit from outpatient treatment and is capable of surviving safely in the community with the family support system and if outpatient treatment is received;  (4) The respondent or the petitioner has financial resources to pay for the outpatient treatment program;  (5) The respondent poses an imminent danger to self or to others if treatment is not received; and  (6) The respondent understands the nature of the proceeding and the effect of the court order to enter into outpatient treatment.  (c) The court order shall be limited to ninety days of outpatient treatment. Upon renewal of the petition, the court may extend the petition for an additional ninety days. [L 2004, c 44, pt of 20]
 334-145 Treatment costs, fees, and costs for petition process. The petitioner shall bear all fees and costs related to bringing the petition. The petitioner or respondent shall bear all costs of private treatment. Nothing in this part authorizes publicly funded substance abuse treatment. However, if the respondent is eligible to receive publicly funded treatment and such a program is available for the respondent, the court may order the treatment in such a program. [L 2004, c 44, pt of 20]
 334-146 Discharge. If the respondent successfully completes the outpatient treatment program and is discharged from the program prior to the end of the court-ordered treatment period, the court order shall automatically lapse. [L 2004, c 44, pt of 20]
 334-147 Failure to comply with court order. The court may impose sanctions for violation of the court order. [L 2004, c 44, pt of 20]
 334-148 Application. Notwithstanding any other law to the contrary, this part shall apply to all petitions filed by family members seeking involuntary outpatient commitment of the respondent with substance abuse as the primary diagnosis. [L 2004, c 44, pt of 20]
 334-15 Mental health and substance abuse special fund; established. (a) There is established a special fund to be known as the mental health and substance abuse special fund into which shall be deposited all revenues and other moneys collected from certification programs and treatment services rendered by the mental health and substance abuse programs operated by the State. Notwithstanding any other law to the contrary, the department is authorized to establish separate accounts within the special fund for depositing moneys received from certification programs and from each mental health and substance abuse program. Moneys deposited into the respective accounts of each program shall be used for the payment of the operating expenses of the respective program.  (b) The director shall submit a report to the legislature, not later than twenty days prior to the convening of each regular session, which identifies for each account in the special fund, the account balance and ceiling increase, any transfers and expenditures made, and the purposes of the expenditures. [L 1991, c 243, 1; am L 1995, c 214, 2]
  334-16 Annual report; forensic patient data. The department of health shall submit an annual report to the legislature no later than twenty days prior to the convening of each regular session which, at a minimum, shall summarize yearly data on forensic patients, including:  (1) Gross numbers for admissions to and discharges from the Hawaii state hospital;  (2) The number of admissions to, discharges from, and lengths of stays in the Hawaii state hospital, broken down by the following commitment categories:  (A) Original order under section 704-411(1)(a);  (B) Pending examination under section 704-411(3);   (C) Maximum seventy-two-hour recommitment pending examination under section 704-413(1);   (D) Original order under section 704-404; and  (E) Original order under section 704-406;  (3) Number of persons committed to the Hawaii state hospital by each court and county;  (4) Gross lengths of stay in the Hawaii state hospital for:  (A) Patients discharged during the fiscal year; and  (B) Individuals remaining as inpatients at the end of the fiscal year; and  (5) Number of patients in the Hawaii state hospital on forensic status, broken down by categories of underlying crimes, such as by crimes against the person, sex offenses, and property crimes, and by grade of offense. [L 2008, c 100, 2]
Note Part repealed June 30, 2024. L 2017, c 111, 8. Annual report to 2018-2024 legislature on progress in implementing the administrative process. L 2017, c 111, 5.  Departments of health and public safety to develop procedures to obtain administrative orders to overcome objections of patients subject to jurisdiction of department of public safety (repealed June 30, 2024). L 2017, c 111, 4.   334-161 Criteria for issuance of court or administrative order for treatment over the patient's objection. [See Note at part heading.] (a) A patient who has been committed to a psychiatric facility for involuntary hospitalization or who is in the custody of the director and residing in a psychiatric facility may be ordered to receive treatment over the patient's objection, including the taking or application of medication, if the court, or administrative panel through the administrative authorization process established pursuant to section 334-162, finds that:  (1) The patient suffers from a physical or mental disease, disorder, or defect;  (2) The patient is imminently dangerous to self or others;  (3) The proposed treatment is medically appropriate; and  (4) After considering less intrusive alternatives, treatment is necessary to forestall the danger posed by the patient.  (b) For the purposes of this section, "imminently dangerous to self or others" means that, without intervention, the person will likely become dangerous to self or dangerous to others within the next forty-five days. [L 2017, c 111, pt of 2]
 334-162 Criteria for administrative authorization process. [See Note at part heading.] (a) A patient who is in the custody of the director and in a psychiatric facility may be ordered to receive medical treatment over the patient's objection through an administrative authorization process that includes the following due process safeguards:   (1) The facility shall give notice to the patient of the authorization process and the reasons for initiating the process;  (2) The administrative panel shall consist of three members with relevant clinical training and experience, and who are not involved with the current treatment of the patient;  (3) The patient shall have the right to attend the hearing, receive assistance from an advisor, cross examine witnesses, and present testimony, exhibits, and witnesses; and  (4) The patient shall have the right to appeal the decision of the administrative panel.  (b) The administrative process described by this section is exempt from the contested case requirements of sections 91-8.5 to 91-15.  (c) The department may adopt rules, pursuant to chapter 91, to effectuate this part. [L 2017, c 111, pt of 2]
  334-2.5 Contracts for facilities and services. (a) The director may contract with any person for:  (1) The development or operation of private in-state psychiatric facilities;  (2) The placement of patients in existing private or public psychiatric facilities; and  (3) The provision of:  (A) Secure psychiatric rehabilitation services;  (B) Crisis intervention and stabilization services;  (C) Intensive treatment and wraparound services;  (D) Diversion services;  (E) Special treatment facilities or therapeutic living programs as defined in section 334-1;  (F) Case management services;  (G) Housing services;   (H) Outreach services, with priority for outreach services intended to help homeless individuals with serious and persistent mental health challenges reside in homeless facilities, permanent dwelling units, or other facilities and avoid returning to homelessness; and  (I) Other mental health treatment and rehabilitation services.  (b) The department may operate or contract for a secure psychiatric rehabilitation program for individuals who require intensive therapeutic treatment and rehabilitation in a secure setting. The services authorized by this section shall be for persons:  (1) Involuntarily hospitalized under this chapter for whom the services cannot be reimbursed, covered, or provided by an insurer, plan, or other person;  (2) Committed to the custody of the director under chapter 704; and  (3) Appropriately hospitalized under chapter 704 or 706.  The director shall be responsible for the appropriate placement of all persons placed in facilities or services contracted for or operated by the director under paragraphs (1) through (3).  Any such person placed in a facility or services contracted for or operated by the director who leaves or remains away from the facility or services, without permission, may be apprehended and returned to the facility or services by any employee of the department or by any law enforcement officer without any warrant or further proceeding.  (c) The department shall:  (1) See that patients who receive services under contract or provided directly by the department pursuant to subsection (a) receive the care and treatment for which the department has contracted or for which appropriate services are provided directly by the department;  (2) Make periodic reviews of the records of each person committed to the director TMs custody or hospitalized pursuant to this chapter, chapter 704, or chapter 706;  (3) In suitable cases, discharge or place on authorized absence persons committed to the director TMs custody or hospitalized pursuant to this chapter, chapter 704, or chapter 706; and  (4) Keep a medical record of each person committed to the director TMs custody or hospitalized pursuant to this chapter, chapter 704, or chapter 706. [L 1999, c 119, 2; am L 2013, c 232, 2; am L 2016, c 186, 4]
  334-2.7 Development or expansion of a forensic facility of the department of health. (a) Notwithstanding any other law to the contrary, the governor, with the assistance of the director, may negotiate with any person for the development or expansion of a forensic facility of the department; provided that if an environmental assessment or environmental impact statement is required for a proposed site or for the expansion of the forensic facility under section 343-5, then notwithstanding the time periods specified for public review and comments under section 343-5, the governor shall accept public comments for a period of sixty days following public notification of either an environmental assessment or an environmental impact statement.  (b) Any development or expansion proposal shall address the construction of the forensic facility separate from the operation of the facility and shall consider and include:  (1) The percentages of low, medium, and high risk patients;  (2) The impact of the facility on existing infrastructure and an assessment of improvements and additions that will be necessary;  (3) The impact of the facility on available modes of transportation, including airports, roads, and highways; and  (4) A useful life costs analysis.  (c) For the purposes of this section:  "Forensic facility" means a facility that assesses and treats forensically committed persons.  "Useful life costs" means an economic evaluation that compares alternate building and operating methods and provides information on the design, construction methods, and materials to be used with respect to efficiency in building maintenance and facility operation. [L 2016, c 90, 2]
  334-2 Mental health system. The department of health shall foster and coordinate a comprehensive mental health system utilizing public and private resources to reduce the incidence of mental or emotional disorders and substance abuse, to treat and rehabilitate the victims in the least restrictive and most therapeutic environment possible, and to provide treatment and care for homeless individuals with serious and persistent mental health challenges to enable them to reside in a permanent dwelling unit or homeless facility, as defined in section 346-361. The department shall administer such programs, services, and facilities as may be provided by the State to promote, protect, preserve, care for, and improve the mental health of the people. [L 1967, c 259, pt of 1; HRS 334-2; am L 1984, c 218, 2; am L 2016, c 186, 3]
  334-21 Licensing of psychiatric facilities. No person, association, corporation, or government agency shall establish, maintain, or operate a psychiatric facility to which persons are involuntarily admitted without first obtaining a license therefor from the department of health. The license may be for a definite period and shall be subject to revocation as hereinafter provided. The issuance of a license shall be based upon an application which shall be in such form and shall contain such information as the department may require. The facility must be able to provide adequate care and treatment in conformance with standards established by the department. The department may, at any and all times, examine and ascertain whether a licensed facility is being conducted in compliance with the license and applicable rules and regulations. Subject to chapter 91, the department may, if the interests of the public or of the patients of a facility so demand, for just and reasonable cause then appearing and to be stated in its order, amend or revoke a license by an order to take effect within such time as the department shall determine. This section shall not apply to any facility operated by the United States or any agency thereof. L 1967, c 259, pt of 1; HRS 334-21; am L 1968, c 6, 3; am L 1977, c 76, 2 Cross References  For admission to a psychiatric facility, see part IV.
 334-22 Penalty. Any person who and any association or corporation which establishes, maintains, or operates a psychiatric facility for compensation or hire without holding a valid license issued under this part, and any officer of any association or corporation who participates in the violation, shall be fined not more than $1,000 or, in the case of an individual, imprisoned not more than six months, or both. [L 1967, c 259, pt of 1; HRS 334-22] Cross References  Classification of offense and authorized punishment, see  701-107, 706-640, 663.
 334-23 Money belonging to patients. Whenever small amounts of cash come into the hands of the administrator of a psychiatric facility, the administrator may, without seeking the appointment of a guardian, deposit the money in a bank or other financial institution and from time to time as the administrator may determine apply the same or any part thereof for the benefit of the patient, provided that so long as a guardian is not appointed, the administrator shall not apply any part of the cash for the maintenance of the patient in the facility. [L 1967, c 259, pt of 1; HRS 334-23; gen ch 1985]
 334-24 Admission; discharge; civil liability. No person shall be admitted to, detained at, or discharged from any psychiatric facility except as provided in this chapter and in chapters 571, 704 and 706. [L 1967, c 259, pt of 1; HRS 334-24; am L 1976, c 130, 2]
  334-3.5 Employment program for the chronically mentally ill established. There is established within the mental health division of the department of health a community-based employment program for the chronically mentally ill to (1) create business enterprises for employment of the chronically mentally ill; (2) teach the skills and attitudes which will enable the chronically mentally ill to become employed; and (3) provide support services including housing so that the chronically mentally ill can secure and maintain employment and live within the community. [L 1987, c 340, 2]
  334-3 Functions of department in mental health. (a) The department of health within the limits of available funds within the designated programs, shall promote and provide for the establishment and operation of a community-based mental health system responsive to the needs of persons of all ages, ethnic groups, and geographical areas of the State, reflective of an appropriate distribution of resources and services, and monitored and evaluated in terms of standards, goal attainment, and outcomes. The elements of the system shall be defined by departmental rules recognizing the need for at least the following services:  (1) Informational and educational services to the general public and to lay and professional groups;  (2) Collaborative and cooperative services with public and private agencies and groups for the prevention and treatment of mental or emotional disorders and substance abuse and rehabilitation of patients;  (3) Consultation services to the judiciary, to educational institutions, and to health and welfare agencies;  (4) Case management, outreach, and follow-up services;  (5) Emergency crisis and noncrisis intervention services accessible to all residents;  (6) Community-based, relevant, and responsive outpatient services;  (7) Community residential care comprising a comprehensive range of small, homelike, and appropriately staffed treatment and rehabilitation facilities;  (8) Short-term psychiatric treatment, preferably in facilities where access to other health and medical services are readily available;  (9) Intensive psychiatric treatment for patients in need of long-term, highly structured, or highly specialized care and treatment under section 334-2.5, and provision of appropriate community resources;  (10) Training programs, activities, and staffing standards for the major mental health disciplines and ancillary services; and  (11) Rehabilitative services for hospital and community-based individuals who have experienced short- or long-term mental or emotional disorders and substance abuse.  (b) The department shall revise, refine, and develop the system to ensure optimal responsiveness to the many and varied needs of the people of the State. The development of the system shall be based on an annual statewide comprehensive integrated service plan that is the cumulative result of comprehensive integrated service area planning within each county. The statewide plan shall determine the specific content of the department of health budget for the mental health system.  (c) The department shall specifically:  (1) Perform statewide assessments of the need for prevention, treatment, and rehabilitation services in the areas of mental or emotional disorders and substance abuse;  (2) Adopt rules pursuant to chapter 91 for establishing the number and boundaries of the geographical service areas for the delivery of services in the areas of mental or emotional disorders and substance abuse. The department shall periodically review the effectiveness of the geographical service areas in promoting accessibility and continuity of appropriate care to all residents of that geographical area;  (3) Appoint a service area administrator in each county who shall be responsible for the development, delivery, and coordination of services in that area;  (4) Ensure statewide and community-based planning for the ongoing development and coordination of the service delivery system as guided by needs assessment data and performance related information;  (5) Establish standards and rules for psychiatric facilities and their licensing, where applicable;  (6) Establish standards and rules for services in the areas of mental health and substance abuse treatment, including assurances of the provision of minimum levels of accessible service to persons of all ages, ethnic groups, and geographical areas in the State;  (7) Ensure community involvement in determining the service delivery arrangements appropriate to each community of the State;  (8) Cooperate with public and private health, education, and human service groups, agencies, and institutions in establishing a coordinated system to meet the needs of persons with mental or emotional disorders and substance abuse difficulties;  (9) Evaluate and monitor all services in the fields of mental health and substance abuse where such services are supported fully or in part by state resources;  (10) Promote and conduct research, demonstration projects, and studies concerned with the nature, prevention, intervention, and consequences of mental or emotional disorders and substance abuse;  (11) Keep records, statistical data, and other information as may be necessary in carrying out the functions of the mental health system and this chapter;  (12) Advocate patients' rights in all psychiatric facilities in the State and investigate any grievances submitted to the department by any patient in a psychiatric facility, except as provided in section 334E-2(d). The department shall establish rules and procedures for the purpose of this paragraph within one year after January 1, 1985, and post the rules in a conspicuous manner and accessible place;  (13) Promote and conduct a systematic program of accountability for all services provided, funds expended, and activities carried out under its direction or support in accordance with sound business, management, and scientific principles;  (14) Coordinate mental health resources in each county of the State by the development and presentation of a comprehensive integrated service area plan developed by the service area administrator in conjunction with the service area board. The service area administrator and the service area board, in collaboration with private and public agencies serving their population, shall submit recommendations for the statewide comprehensive integrated service plan, including needs assessment, program planning, resource development, priorities for funding, monitoring, and accountability activities;  (15) Oversee and coordinate service area programs and provide necessary administrative and technical assistance to assist service area programs in meeting their program objectives; and  (16) Provide staffing to the state council and service area boards to assist in the performance of their functions. [L 1967, c 259, pt of 1; HRS 334-3; am L 1982, c 200, 2; am L 1984, c 218, 3; am L 1985, c 6, 2; am L 1999, c 119, 3; am L 2004, c 79, 2]
   334-31 to 38 REPEALED. L 1999, c 119, 8.
  334-4 Personnel for mental health program. The director shall appoint professional and nonprofessional staff as the director deems necessary to carry out the state mental health program and for which appropriations are available. Positions for psychiatrists are exempted from chapter 76. The director may employ psychiatrists as needed by the department on a contractual basis, subject to the approval of the governor. The director may appoint an administrator, three associate administrators, a director of psychosocial rehabilitation, a chief of the department of nursing, a risk manager, a patients TM rights advisor, and a facilities plant engineer for the state hospital or a secure psychiatric rehabilitation facility established pursuant to this chapter and these positions shall be exempt from chapter 76. [L 1967, c 259, pt of 1; HRS 334-4; gen ch 1985; am L 1996, c 125, 2; am L 1998, c 97, 1; am L 1999, c 119, 4; am L 2000, c 253, 150]
  334-5 Confidentiality of records. All certificates, applications, records, and reports made for the purposes of this chapter that are maintained, used, or disclosed by health care providers as defined in this chapter, health plans as defined in title 45 Code of Federal Regulations section 160.103, and health care clearinghouses as defined in title 45 Code of Federal Regulations section 160.103, and directly or indirectly identifying a person subject hereto shall be kept confidential and shall not be disclosed by any person except as allowed by title 45 Code of Federal Regulations part 164, subpart E. Nothing in this section shall preclude the:  (1) Application of more restrictive rules of confidentiality set forth for records covered by title 42 Code of Federal Regulations part 2, relating to the confidentiality of alcohol and drug abuse patient records;  (2) Disclosure deemed necessary under the federal Protection and Advocacy for Mentally Ill Individuals Act of 1986, P.L. 99-319, to protect and advocate for the rights of persons with mental illness who reside in facilities providing treatment or care; or  (3) Disclosures made by a court or the Hawaii criminal justice data center of orders of involuntary civil commitment issued pursuant to section 334-60.5 for the purpose of firearms permitting or registration pursuant to chapter 134. [L 1967, c 259, pt of 1; HRS 334-5; am L 1973, c 122, 1; gen ch 1985; am L 1987, c 148, 1; am L 1999, c 87, 3; am L Sp 2000 2d, c 1, 1; am L 2001, c 244,  3, 6; am L 2003, c 204, 8; am L 2004, c 22, 1; am L 2008, c 98, 2; am L 2014, c 87, 3 and c 214, 4]
Law Journals and Reviews Risky Business: Assessing Dangerousness in Hawai  i. 24 UH L. Rev. 63.   334-51 to 58 OLD REPEALED. L 1976, c 130, pt of 4.
 334-59.5 Notice of admissions, examinations, and hospitalizations. Notice of an individual's emergency admission, examination, and hospitalization under this chapter may be given to at least one of the following persons in the following order of priority: the individual's spouse or reciprocal beneficiary, legal parents, adult children, legal guardian, if one has been appointed, or if none can be found, the closest adult relative, as long as the individual:  (1) Has capacity to make health care decisions and agrees;  (2) Is given the opportunity to object and does not object, or the health care provider can reasonably infer from the circumstances based on the exercise of professional judgment that the individual does not object; or  (3) Is incapacitated or an emergency circumstance exists and the health care provider determines based on the exercise of professional judgment that doing so is in the best interest of the individual. [L 2018, c 144, 2]
 334-59 Emergency examination and hospitalization. (a) Initiation of proceedings. An emergency admission may be initiated as follows:  (1) If a law enforcement officer has reason to believe that a person is imminently dangerous to self or others, the officer shall call for assistance from the mental health emergency workers designated by the director. Upon determination by the mental health emergency workers that the person is imminently dangerous to self or others, the person shall be transported by ambulance or other suitable means, to a licensed psychiatric facility for further evaluation and possible emergency hospitalization. A law enforcement officer may also take into custody and transport to any facility designated by the director any person threatening or attempting suicide. The officer shall make application for the examination, observation, and diagnosis of the person in custody. The application shall state or shall be accompanied by a statement of the circumstances under which the person was taken into custody and the reasons therefor which shall be transmitted with the person to a physician, advanced practice registered nurse, or psychologist at the facility.  (2) Upon written or oral application of any licensed physician, advanced practice registered nurse, psychologist, attorney, member of the clergy, health or social service professional, or any state or county employee in the course of employment, a judge may issue an ex parte order orally, but shall reduce the order to writing by the close of the next court day following the application, stating that there is probable cause to believe the person is mentally ill or suffering from substance abuse, is imminently dangerous to self or others and in need of care or treatment, or both, giving the findings upon which the conclusion is based. The order shall direct that a law enforcement officer or other suitable individual take the person into custody and deliver the person to a designated mental health program, if subject to an assisted community treatment order issued pursuant to part VIII of this chapter, or to the nearest facility designated by the director for emergency examination and treatment, or both. The ex parte order shall be made a part of the patient's clinical record. If the application is oral, the person making the application shall reduce the application to writing and shall submit the same by noon of the next court day to the judge who issued the oral ex parte order. The written application shall be executed subject to the penalties of perjury but need not be sworn to before a notary public.  (3) Any licensed physician, advanced practice registered nurse, physician assistant, or psychologist who has examined a person and has reason to believe the person is:  (A) Mentally ill or suffering from substance abuse;  (B) Imminently dangerous to self or others; and  (C) In need of care or treatment;  may direct transportation, by ambulance or other suitable means, to a licensed psychiatric facility for further evaluation and possible emergency hospitalization. A licensed physician, an advanced practice registered nurse, or physician assistant may administer treatment as is medically necessary, for the person's safe transportation. A licensed psychologist may administer treatment as is psychologically necessary.  (b) Emergency examination. A patient who is delivered for emergency examination and treatment to a psychiatric facility or a behavioral health crisis center shall be provided an examination, which shall include a screening to determine whether the criteria for involuntary hospitalization listed in section 334-60.2 persists, by a licensed physician, medical resident under the supervision of a licensed physician, or advanced practice registered nurse without unnecessary delay, and shall be provided such treatment as is indicated by good medical practice. If, after the examination, screening, and treatment, the licensed physician, medical resident under the supervision of a licensed physician, or advanced practice registered nurse determines that the involuntary hospitalization criteria persist, then a psychiatrist or advanced practice registered nurse who has prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization shall further examine the patient to diagnose the presence or absence of a mental illness or substance use disorder, further assess the risk that the patient may be dangerous to self or others, and assess whether or not the patient needs to be hospitalized. If it is determined that hospitalization is not needed, an examination pursuant to section 334-121.5 shall be completed.  (c) Release from emergency examination. If, after examination, the licensed physician, psychiatrist, or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization determines that the involuntary hospitalization criteria set forth in section 334-60.2 are not met or do not persist and the examination pursuant to section 334-121.5, where required, has been completed, the patient shall be discharged expediently, unless the patient is under criminal charges, in which case the patient shall be returned to the custody of a law enforcement officer.  (d) Emergency hospitalization. If the psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization who performs the emergency examination has reason to believe that the patient is:  (1) Mentally ill or suffering from substance abuse;  (2) Imminently dangerous to self or others; and  (3) In need of care or treatment, or both; the psychiatrist or advanced practice registered nurse with prescriptive authority and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization shall direct that the patient be hospitalized on an emergency basis or cause the patient to be transferred to another psychiatric facility for emergency hospitalization, or both. The patient shall have the right immediately upon admission to telephone the patient's guardian or a family member including a reciprocal beneficiary, or an adult friend and an attorney. If the patient declines to exercise that right, the staff of the facility shall inform the adult patient of the right to waive notification to the family, including a reciprocal beneficiary, and shall make reasonable efforts to ensure that the patient's guardian or family, including a reciprocal beneficiary, is notified of the emergency admission but the patient's family, including a reciprocal beneficiary, need not be notified if the patient is an adult and requests that there be no notification. The patient shall be allowed to confer with an attorney in private.  (e) Release from emergency hospitalization. If at any time during the period of emergency hospitalization the treating physician determines that the patient no longer meets the criteria for emergency hospitalization and the examination pursuant to section 334-121.5 has been completed, the physician shall expediently discharge the patient. If the patient is under criminal charges, the patient shall be returned to the custody of a law enforcement officer. In any event, the patient shall be released within forty-eight hours of the patient's admission to a psychiatric facility, unless the patient voluntarily agrees to further hospitalization, or a proceeding for court-ordered evaluation or hospitalization, or both, is initiated as provided in section 334-60.3. If that time expires on a Saturday, Sunday, or holiday, the time for initiation is extended to the close of the next court day. Upon initiation of the proceedings, the facility shall be authorized to detain the patient until further order of the court. [L 1976, c 130, pt of 4; am L 1977, c 76, pt of 3; am L 1984, c 188, 1; am L 1985, c 68, 6; am L 1986, c 335,  2, 3; am L 1992, c 138, 1; gen ch 1993; am L 1994, c 58, 1; am L 1997, c 383, 45; am L 2009, c 151, 15; am L 2013, c 221,  4, 24 and c 232, 3; am L 2015, c 27, 2; am L 2016, c 55, 51, c 114,  2, 6, and c 183, 3; am L 2020, c 28, 3] Case Notes  Several provisions of section held to violate Fourteenth Amendment due process rights. 438 F. Supp. 1106.
 334-6 Fees; payment of expenses for treatment services. (a) Pursuant to chapter 91, the director shall establish reasonable charges for treatment services and may make collections on such charges. In making the collections on such charges the director shall take into consideration the financial circumstances of the patient and the patient TMs family including a reciprocal beneficiary, and no collections shall be made where in the judgment of the director, such collections would tend to make the patient or the patient TMs family including a reciprocal beneficiary, a public charge or deprive the patient and the patient TMs family including a reciprocal beneficiary, of necessary support.  (b) Every person hospitalized at a psychiatric facility or receiving treatment services through a community mental health center under the jurisdiction of the State or a county, or at a psychiatric facility or through a community mental health center which derives more than fifty per cent of its revenues from the general fund of the State, or pursuant to contract with the director under section 334-2.5, shall be liable for the expenses attending their reception, maintenance, and treatment and any property not exempt from execution belonging to the person shall be subject to sequestration for the payment of the expenses. Every parent or legal guardian of a patient who is a minor and every spouse or reciprocal beneficiary of a patient shall be liable for the expenses attending the reception, maintenance, and treatment of that minor child or spouse or reciprocal beneficiary who is hospitalized at a psychiatric facility or receiving treatment through a community mental health center under the jurisdiction of the State or a county, or at a psychiatric facility or through a community mental health center which derives more than fifty per cent of its revenues from the general fund of the State, or pursuant to contract with the director under section 334-2.5. [L 1967, c 259, pt of 1; HRS 334-6; am L 1971, c 153, 1; am L 1972, c 80, 1; am L 1991, c 243, 2; gen ch 1992; am L 1997, c 383, 44; am L 1999, c 119, 5]
  334-60.1 Voluntary admission for nonemergency treatment or supervision. (a) Acceptance for voluntary inpatient treatment at a psychiatric facility shall be in accordance with usual standards for hospital admissions.  (b) A facility may admit for evaluation, diagnosis, or treatment any individual under fifteen years of age for whom application is made by the individual TMs parent or guardian. If application for admission is countersigned by a minor aged fifteen through seventeen years before a family court officer, no hearing shall be necessary. If the minor elects not to sign, involuntary hospitalization proceedings shall be initiated.  (c) A facility shall discharge a voluntary patient who has sufficiently improved so that hospitalization is no longer desirable. A voluntary patient or the patient TMs guardian, representative, or attorney may request discharge in writing at any time following admission to the facility. If discharge would be dangerous to the patient or others, proceedings for involuntary hospitalization must be initiated as soon as possible but within twenty-four hours of the receipt by the administrator of the written request for discharge. If that time expires on a Saturday, Sunday, or holiday, the time for initiation is extended to the close of the next court day. Upon the initiation of the proceedings, the facility is authorized to detain the patient until further order of the court. If the patient was admitted on the patient TMs own application and the request for discharge is made by a person other than the patient, the discharge may be conditioned upon the agreement of the patient.  (d) Notice of right to release. At the time of the patient TMs admission and each six months thereafter, a voluntary patient and the patient TMs guardian or representatives shall be notified in writing of the patient TMs right and how to apply for a discharge. [L 1984, c 188, pt of 3; gen ch 1985]
  334-60.2 Involuntary hospitalization criteria. A person may be committed to a psychiatric facility for involuntary hospitalization, if the court finds:  (1) That the person is mentally ill or suffering from substance abuse;  (2) That the person is imminently dangerous to self or others; and  (3) That the person is in need of care or treatment, or both, and there is no suitable alternative available through existing facilities and programs which would be less restrictive than hospitalization. [L 1984, c 188, pt of 3; am L 1985, c 75, 2; am L 1986, c 335, 4; am L 2013, c 221,  5, 24; am L 2016, c 114, 6] Cross References  Intermediate sanctions for selected offenders and defendants, see  353-10.5, 353-63.5, and 706-605.1. Law Journals and Reviews  Risky Business: Assessing Dangerousness in Hawai  i. 24 UH L. Rev. 63. Case Notes  In light of the definition of "dangerous to self" under 334-1, person's refusal to take medications and person's racist remarks to strangers constituted insufficient evidence to support family court's finding that person was imminently and substantially dangerous to person's self. 102 H. 528 (App.), 78 P.3d 341.
 334-60.3 Initiation of proceeding for involuntary hospitalization. (a) Any person may file a petition alleging that a person located in the county meets the criteria for commitment to a psychiatric facility. The petition shall be executed subject to the penalties of perjury but need not be sworn to before a notary public. The attorney general, the attorney general's deputy, special deputy, or appointee designated to present the case shall assist the petitioner to state the substance of the petition in plain and simple language. The petition may be accompanied by a certificate of the licensed physician, advanced practice registered nurse, or psychologist who has examined the person within two days before submission of the petition, unless the person whose commitment is sought has refused to submit to medical or psychological examination, in which case the fact of refusal shall be alleged in the petition. The certificate shall set forth the signs and symptoms relied upon by the physician, advanced practice registered nurse, or psychologist to determine the person is in need of care or treatment, or both, and whether the person is capable of realizing and making a rational decision with respect to the person's need for treatment. If the petitioner believes that further evaluation is necessary before commitment, the petitioner may request such further evaluation.  (b) In the event the subject of the petition has been given an examination, evaluation, or treatment in a psychiatric facility within five days before submission of the petition, and hospitalization is recommended by the staff of the facility, the petition may be accompanied by the administrator's certificate in lieu of a physician's or psychologist's certificate.  (c) The petition shall include the name, address, and telephone number of at least one of the following persons in the following order of priority: the subject of the petition's spouse or reciprocal beneficiary, legal parents, adult children, and legal guardian, if one has been appointed. If the subject of the petition has no living spouse or reciprocal beneficiary, legal parent, adult children, or legal guardian, or if none can be found, notice shall be served on at least one of the subject's closest adult relatives, if any can be found. [L 1984, c 188, pt of 3; gen ch 1985; am L 1994, c 58, 2; am L 2015, c 27, 3; am L 2018, c 144, 3]
 334-60.4 Notice; waiver of notice; hearing on petition; waiver of hearing on petition for involuntary hospitalization. (a) The court shall set a hearing on the petition and notice of the time and place of the hearing shall be served in accordance with, and to those persons specified in, a current order of commitment. If there is no current order of commitment, notice of the hearing shall be served personally on the subject of the petition and served personally or by certified or registered mail, return receipt requested, deliverable to the addressee only, on the subject's spouse or reciprocal beneficiary, legal parents, adult children, and legal guardian, if one has been appointed. If the subject of the petition has no living spouse or reciprocal beneficiary, legal parent, adult children, or legal guardian, or if none can be found, notice of the hearing shall be served on at least one of the subject's closest adult relatives, if any can be found. Notice of the hearing shall also be served on the public defender, attorney for the subject of the petition, or other court-appointed attorney as the case may be. If the subject of the petition is a minor, notice of the hearing shall also be served upon the person who has had the principal care and custody of the minor during the sixty days preceding the date of the petition if that person can be found within the State. Notice shall also be given to other persons as the court may designate.  (b) The notice shall include the following:  (1) The date, time, place of hearing, a clear statement of the purpose of the proceedings and of possible consequences to the subject; and a statement of the legal standard upon which commitment is authorized;  (2) A copy of the petition;  (3) A written notice, in plain and simple language, that the subject may waive the hearing by voluntarily agreeing to hospitalization, or with the approval of the court, to some other form of treatment;  (4) A filled-out form indicating such waiver;  (5) A written notice, in plain and simple language, that the subject or the subject's guardian or representative may apply at any time for a hearing on the issue of the subject's need for hospitalization, if the subject has previously waived such a hearing;  (6) Notice that the subject is entitled to the assistance of an attorney and that the public defender has been notified of these proceedings;  (7) Notice that if the subject does not want to be represented by the public defender, the subject may contact the subject's own attorney; and  (8) If applicable, notice that the petitioner intends to adduce evidence to show that the subject of the petition is an incapacitated or protected person, or both, under article V of chapter 560, and whether appointment of a guardian is sought at the hearing. If appointment of a guardian is to be recommended, and a nominee is known at the time the petition is filed, the identity of the nominee shall be disclosed.  (c) If the subject executes and files a waiver of the hearing, upon acceptance by the court following a court determination that the person understands the person's rights and is competent to waive them, the court shall order the subject to be committed to a facility that has agreed to admit the subject as an involuntary patient or, if the subject is at such a facility, that the subject be retained there.  (d) Notice of adjournments, continuances, other delays, dates of rescheduled hearings, and waivers of the hearing under subsection (c) shall also be served on the persons specified in subsection (a). [L 1984, c 188, pt of 3; gen ch 1985; am L 1997, c 383, 46; am L 2004, c 161, 36; am L 2018, c 144, 4]
 334-60.5 Hearing on petition. (a) The court shall adjourn or continue a hearing for failure to timely notify the subject of the petition's spouse or reciprocal beneficiary, legal parents, adult children, guardian, or relative, or other person determined by the court to be entitled to notice, or for failure by the subject to contact an attorney as provided in section 334-60.4(b)(7) unless the court determines that the interests of justice require that the hearing continue without adjournment or continuance.  (b) The time and form of the procedure incident to hearing the issues in the petition shall be provided by court rule. Unless the hearing is waived, the judge shall hear the petition as soon as possible and no later than ten days after the date the petition is filed unless a reasonable delay is sought for good cause shown by the subject of the petition, the subject's attorney, or those persons entitled to receive notice of the hearing under section 334-60.4.  (c) The subject of the petition shall be present at all hearings unless the subject waives the right to be present, is unable to attend, or creates conditions that make it impossible to conduct the hearing in a reasonable manner as determined by the judge. A waiver is valid only upon acceptance by the court following a judicial determination that the subject understands the subject's rights and is competent to waive them, or is unable to participate. If the subject is unable to participate, the judge shall appoint a guardian ad litem or a temporary guardian as provided in article V of chapter 560, to represent the subject throughout the proceedings.  (d) Hearings may be held at any convenient place within the circuit. The subject of the petition, any interested party, or the court on its own motion may request a hearing in another circuit because of convenience to the parties, witnesses, or the court or because of the individual's mental or physical condition.  (e) The attorney general, the attorney general's deputy, special deputy, or appointee shall present the case for hearings convened under this chapter, except that the attorney general, the attorney general's deputy, special deputy, or appointee need not participate in or be present at a hearing whenever a petitioner or some other appropriate person has retained private counsel who will be present in court and will present to the court the case for involuntary hospitalization.  (f) Counsel for the subject of the petition shall be allowed adequate time for investigation of the matters at issue and for preparation, and shall be permitted to present the evidence that the counsel believes necessary to a proper disposition of the proceedings, including evidence as to alternatives to inpatient hospitalization.  (g) No individual may be found to require treatment in a psychiatric facility unless at least one physician, advanced practice registered nurse, or psychologist who has personally examined the individual testifies in person at the hearing. This testimony may be waived by the subject of the petition. If the subject of the petition has refused to be examined by a licensed physician, advanced practice registered nurse, or psychologist, the subject may be examined by a court-appointed licensed physician, advanced practice registered nurse, or psychologist. If the subject refuses and there is sufficient evidence to believe that the allegations of the petition are true, the court may make a temporary order committing the subject to a psychiatric facility for a period of no more than five days for the purpose of a diagnostic examination and evaluation. The subject's refusal shall be treated as a denial that the subject is mentally ill or suffering from substance abuse. Nothing in this section shall limit the individual's privilege against self-incrimination.  (h) The subject of the petition in a hearing under this section has the right to secure an independent medical or psychological evaluation and present evidence thereon.  (i) If after hearing all relevant evidence, including the result of any diagnostic examination ordered by the court, the court finds that an individual is not a person requiring medical, psychiatric, psychological, or other rehabilitative treatment or supervision, the court shall order that the individual be discharged if the individual has been hospitalized prior to the hearing.  (j) If the court finds that the criteria for involuntary hospitalization under section 334-60.2(1) has been met beyond a reasonable doubt and that the criteria under sections 334-60.2(2) and 334-60.2(3) have been met by clear and convincing evidence, the court may issue an order to any law enforcement officer to deliver the subject to a facility that has agreed to admit the subject as an involuntary patient, or if the subject is already a patient in a psychiatric facility, authorize the facility to retain the patient for treatment for a period of ninety days unless sooner discharged. The court may also authorize the involuntary administration of medication, where the subject has an existing order for assisted community treatment, issued pursuant to part VIII of this chapter, relating to assisted community treatment, and in accordance with the treatment prescribed by that prior order. Notice of the subject's commitment and the facility name and location where the subject will be committed shall be provided to those persons entitled to notice pursuant to section 334-60.4. An order of commitment shall specify which of those persons served with notice pursuant to section 334-60.4, together with such other persons as the court may designate, shall be entitled to receive any subsequent notice of intent to discharge, transfer, or recommit. The court shall forward to the Hawaii criminal justice data center all orders of involuntary civil commitment or information from all orders of involuntary civil commitment, as requested by the Hawaii criminal justice data center, which in turn shall forward the information to the Federal Bureau of Investigation, or its successor agency, for inclusion in the National Instant Criminal Background Check System database. The orders or information shall also be maintained by the Hawaii criminal justice data center for disclosure to and use by law enforcement officials for the purpose of firearms permitting or registration pursuant to chapter 134. This subsection shall apply to all involuntary civil commitments without regard to the date of the involuntary civil commitment.  (k) The court may find that the subject of the petition is an incapacitated or protected person, or both, under article V of chapter 560, and may appoint a guardian or conservator, or both, for the subject under the terms and conditions as the court shall determine.  (l) Persons entitled to notice are also entitled to be present in the courtroom for the hearing and to receive a copy of the hearing transcript or recording, unless the court determines that the interests of justice require otherwise. [L 1984, c 188, pt of 3; am L 1985, c 220, 1; gen ch 1985; am L 1994, c 58, 3; am L 1997, c 383, 47; am L 2004, c 161, 8; am L 2013, c 221,  6, 24 and c 232, 4; am L 2014, c 87, 4; am L 2015, c 27, 4; am L 2016, c 114, 6; am L 2018, c 144, 5] Rules of Court  Applicability of Hawaii Rules of Civil Procedure, see HRCP rule 81(b).
 334-60.6 Period of detention. The psychiatric facility may detain a subject for a period of time ordered by the court not to exceed ninety days from date of admission unless sooner discharged by the facility pursuant to section 334-76 or section 334-74. At the end of the ninety-day period the subject shall be discharged automatically except as provided in sections 704-406, 704-411, and 706-607, unless before expiration of the period and by a proceeding initiated pursuant to section 334-60.3 the facility obtains a court order for the subject's recommitment. Recommitment for a period not to exceed ninety days may not be ordered unless the court determines that the criteria for involuntary hospitalization set forth in section 334-60.2 continue to exist. If at the end of a recommitment period the court finds that the criteria for involuntary hospitalization set forth in section 334-60.2 continue to exist and are likely to continue beyond ninety days, the court may order recommitment for a period not to exceed one hundred eighty days.  Nothing in this section shall preclude a facility from accepting for voluntary inpatient treatment, in accordance with the procedures in section 334-60.1, a patient, for whom the facility contemplates discharge pursuant to section 334-60.7 and who voluntarily agrees to further hospitalization after the period of commitment has expired, or where the patient is no longer a proper subject for commitment. [L 1984, c 188, pt of 3; gen ch 1985; am L 1988, c 44, 1]
  334-60.7 Notice of intent to discharge. (a) When the administrator or attending physician of a psychiatric facility contemplates discharge of an involuntary patient because of expiration of the court order for commitment or because the patient is no longer a proper subject for commitment, as determined by the criteria for involuntary hospitalization in section 334-60.2, the administrator or attending physician shall provide notice of intent to discharge, or if the patient voluntarily agrees to further hospitalization, the administrator shall provide notice of the patient's admission to voluntary inpatient treatment. The following requirements and procedures shall apply:  (1) The notice and a certificate of service shall be filed with the family court and served on those persons whom the order of commitment specifies as entitled to receive notice, by mail at the person's last known address. Notice shall also be sent to the prosecuting attorney of the county from which the person was originally committed, by facsimile or electronically, for the sole purpose of victim notification;  (2) Any person specified as entitled to receive notice may waive this right in writing with the psychiatric facility;  (3) If no objection is filed within five calendar days of mailing the notice, the administrator or attending physician of the psychiatric facility shall discharge the patient or accept the patient for voluntary inpatient treatment;  (4) If any person specified as entitled to receive notice files a written objection, with a certificate of service, to the discharge or to the patient's admission to voluntary inpatient treatment on the grounds that the patient is a proper subject for commitment, the family court shall conduct a hearing as soon as possible, prior to the termination of the current commitment order, to determine if the patient still meets the criteria for involuntary hospitalization in section 334-60.2. The person filing the objection shall also notify the psychiatric facility by telephone on the date the objection is filed;  (5) If the family court finds that the patient does not meet the criteria for involuntary hospitalization in section 334-60.2, the court shall issue an order of discharge from the commitment; and  (6) If the family court finds that the patient does meet the criteria for involuntary hospitalization in section 334-60.2, the court shall issue an order denying discharge from the commitment.  (b) For civil commitments that do not result directly from legal proceedings under chapters 704 and 706, when the administrator or attending physician of a psychiatric facility contemplates discharge of an involuntary patient, the administrator or attending physician may assess whether an assisted community treatment plan is indicated pursuant to section 334-123 and, if so indicated, may communicate with an aftercare provider as part of discharge planning, as appropriate. [L 1984, c 188, pt of 3; am L 1988, c 44, 2; am L 2014, c 156, 1; am L 2018, c 144, 6]
 334-60 REPEALED. L 1984, c 188, 2.
 334-61 Presumption; civil rights. No presumption of insanity or legal incompetency shall exist with respect to any patient by reason of the patient TMs admission to a psychiatric facility under this chapter. The fact of the admission shall not in itself modify or vary any civil right of any such person, including but not limited to civil service statutes or rights relating to the granting, forfeiture, or denial of a license, permit, privilege, or benefit pursuant to any law, or the right to dispose of property, execute instruments, make purchases, enter into contractual relationships, and to vote. If the administrator of a psychiatric facility or the deputy is of the opinion that a patient should not exercise any civil right, application for a show cause order shall be made to the court under the above proceedings after notice pursuant to section 334-60.4. [L 1976, c 130, pt of 4; am L 1977, c 76, pt of 3; am L 1985, c 68, 7]
  334-62 Service of process and papers upon patients. (a) Service of process and papers upon a patient in a psychiatric facility or a patient on authorized or unauthorized absence from a psychiatric facility shall be made in the following manner:  (1) Service of process and papers relating to the involuntary hospitalization of the patient shall be made directly and personally upon the patient and shall also be made personally or by certified mail upon the patient TMs guardians and the public defender, the patient TMs attorney or court-appointed attorney; otherwise, service upon the patient shall be incomplete. A copy of the legal process or paper served on a patient under this paragraph shall be given to the administrator of the psychiatric facility or the administrator TMs deputy and shall be filed with the records of the patient.  (2) Service of process and papers not relating to the involuntary hospitalization of the patient shall be made directly and personally upon the patient, the patient TMs guardians, and the administrator of the psychiatric facility or the administrator TMs deputy; otherwise, service upon the patient shall be incomplete and shall not give the issuing court or agency jurisdiction over the person of the patient. A legal process or paper served under this paragraph shall be filed with the records of the patient, and the administrator of the psychiatric facility or the administrator TMs deputy shall immediately inform the court or other agency out of which the process or paper issued, in writing, of the date of service and of the mental and physical condition of the patient.  (b) Neither the administrator nor anyone connected with a psychiatric facility shall accept service of process or papers on behalf of a patient. [L 1976, c 130, pt of 4; am L 1977, c 76, pt of 3; gen ch 1985]
 334-7 Donations or grants to department. The department of health is authorized to accept donations or grants from individuals and other agencies, public and private, to further the purposes of the mental health program. The donations or grants shall in fact be used for the mental health program and for the intended purpose, if specified. [L 1967, c 259, pt of 1; HRS 334-7]
  334-71 Transfer of patients between facilities. A patient at a psychiatric facility, including those held on court order, may be transferred to another psychiatric facility when the administrator of the sending facility determines that it would be in the best interest of the patient that the patient be transferred and the administrator of the receiving facility agrees to accept the patient; provided that prior notice of such transfer be given to the subject of such transfer and to those persons specified in a current order of commitment. If there is no current order of commitment, notice shall be given to those persons enumerated in section 334-60.4. [L 1967, c 259, pt of 1; HRS 334-71; am L 1976, c 130, 5; am L 1977, c 76, 4; am L 1985, c 68, 8]
 334-72 Transfer of veterans. (a) Upon receipt of a certificate of the Department of Veterans Affairs or other agency of the United States that facilities are available for the care and treatment of a person previously admitted to a psychiatric facility and that the person is eligible for such care and treatment, the administrator of the psychiatric facility or the administrator TMs deputy may transfer the person to the Department of Veterans Affairs or other agency of the United States for care and treatment, except a person admitted or committed on court order as provided in chapters 571, 704 and 706 or transferred under section 334-74. The administrator of the sending facility or the administrator TMs deputy shall send prior notice of such transfer as provided in section 334-71. A person transferred under this section shall be deemed to be admitted for hospitalization to any facility of the Department of Veterans Affairs or other agency of the United States pursuant to the provisions of part IV. The person, when admitted to a facility operated by or contracting with the Department of Veterans Affairs or other agency of the United States, within or without this State, shall be subject to the rules and regulations of the Department of Veterans Affairs or other agency of the United States. The chief officer of the Department of Veterans Affairs or of the institution operated by any other agency of the United States to which the person is so admitted shall with respect to such person be vested with the same powers as administrators of licensed psychiatric facilities within this State with regard to detention, transfer, authorized absence or discharge. Jurisdiction is retained in this State and specifically in the family court of the circuit in which the sending facility was located to inquire at any time into the mental and physical condition of the person so admitted and to determine the necessity for the person TMs continued hospitalization, and all transfers under this section are so conditioned.  (b) The judgment or order of hospitalization by a court of competent jurisdiction of another state, the District of Columbia, Guam, or Puerto Rico, hospitalizing a person with the Department of Veterans Affairs or other agency of the United States for care and treatment shall have the same force and effect with respect to the hospitalized person while in this State with the Department of Veterans Affairs or other agency of the United States as in the state or district in which the judgment or order was made, and the court making the judgment or order shall be deemed to have retained jurisdiction of the person so hospitalized for the purpose of inquiring into the mental and physical condition of the person and of determining the necessity for the person TMs continued hospitalization. Consent is hereby given to the application of the law of the state or district with respect to the authority of the chief officer of the Department of Veterans Affairs or of the institution operated by any other agency of the United States in which the person is hospitalized to detain, transfer, place on authorized absence, or discharge the hospitalized person.  (c) Nothing in this section shall be construed as conferring upon the department of health or any other agency or officer of this State any power of licensing, supervision, inspection, or control over hospitals or other institutions operated by the Department of Veterans Affairs or other agency of the United States, or over any officers or employees thereof. [L 1967, c 259, pt of 1; HRS 334-72; am L 1976, c 130, 6; gen ch 1985; am L 2017, c 12, 1]
 334-73 REPEALED. L 1976, c 130, 7.
  334-74 Transfer of residents of correctional facilities. If any resident of a state correctional facility is in need of acute psychiatric treatment for mental illness, the director of public safety or the officer in charge of the correctional facility may file with the director an application for the transfer of the resident to a facility operated by the department of health or at which the director of health contracts for services, together with the certificate of a psychiatrist or psychologist employed by the department showing the need for such treatment, and, upon approval of the application by the director, the official having custody of the resident shall transfer the resident to the facility operated by the department or at which the director contracts for care and treatment. The official effecting the transfer of the resident shall keep the director informed of the maximum period of commitment of the resident to the director of public safety, and, if the continued care of the resident beyond the expiration of the period is deemed necessary, the director shall institute the procedures required to detain the resident as a patient notwithstanding the resident's release from the state correctional facility; provided that a judicial hearing pursuant to sections 334-60.2 to 334-60.7 be held by the same circuit court that sentenced the resident. In the event that discharge from the facility operated by the department or at which the director contracts for services occurs before the expiration of the maximum period of commitment or confinement, the resident shall be returned to the appropriate state correctional facility.  As used in this section, "resident" means any person serving a sentence in a state correctional facility or any child or minor detained in a state correctional facility. [L 1967, c 259, pt of 1; HRS 334-74; am L 1976, c 130, 8; am L 1977, c 76, 5; am L 1985, c 68, 9; am L 1987, c 338, 10; am L 1988, c 14, 1; am L 1989, c 211, 8; am L 1994, c 153, 3; am L 1999, c 119, 6] Cross References  Intermediate sanctions for selected offenders and defendants, see  353-10.5, 353-63.5, and 706-605.1.
 334-75 Authorized absence. The administrator of a psychiatric facility or the administrator TMs deputy may grant authorized absence from the facility to any patient upon such terms and conditions as the administrator or the administrator TMs deputy may deem advisable, and, as to a patient admitted or committed on court order, with the prior approval of the court for periods in excess of thirty days, and without the approval of the court for periods up to thirty days, or, as to a patient transferred under section 334-74, with the prior approval of the official effecting the transfer; provided that if a patient has been admitted or committed on court order after having been charged with a felony or misdemeanor pursuant to chapter 707, an absence can be authorized only with the prior approval of the court, except where the absence is supervised by the presence of someone from the facility. [L 1967, c 259, pt of 1; HRS 334-75; am L 1972, c 141, 1; am L 1982, c 42, 1; gen ch 1985] Case Notes  Court approval is necessary to authorize leaves from psychiatric facility even if patient has been acquitted of the chapter 707 charges. 69 H. 370, 742 P.2d 373.
  334-76 OLD REPEALED. L 1976, c 130, 9.   334-76 Discharge from custody. (a) Subject to any special requirements of law as provided in sections 704-406, 704-411, and 706-607 or elsewhere, with respect to patients committed on court order from a criminal proceeding, the administrator of a psychiatric facility, pursuant to section 334-60.7, shall:  (1) Send a notice of intent to discharge or notice of the patient TMs admission to voluntary inpatient treatment to those persons specified in the order of commitment as entitled to receive notice of intent to discharge, by mail at their last known address; and  (2) Send a notice of intent to discharge or notice of the patient's admission to voluntary inpatient treatment to the prosecuting attorney of the county from which the person was originally committed, by facsimile or electronically.  (b) The administrator or the deputy or the physician assuming medical responsibility for the patient shall discharge an involuntary patient when the patient is no longer a proper subject for commitment, as determined by the criteria for involuntary hospitalization in section 334-60.2.  (c) Nothing in this section shall preclude a facility from accepting for voluntary inpatient treatment, in accordance with the procedures in section 334-60.1, a patient for whom the facility contemplates discharge pursuant to section 334-60.7 and who voluntarily agrees to further hospitalization after the period of commitment has expired or where the patient is no longer a proper subject for commitment. [L 1977, c 76, 6; am L 1985, c 68, 10 and c 220, 2; am L 1988, c 44, 3; am L 2014, c 156, 2]
 334-8 Agreements. In carrying out the director TMs duties under this chapter:  (1) The director of health may enter into agreements with the United States and with other state departments, agencies, and political subdivisions and enter into assistance agreements for services with a profit organization incorporated under the laws of the State or a nonprofit organization determined to be exempt from the federal income tax by the Internal Revenue Service and allocate and expend any funds appropriated for the purposes of such agreements and do all things necessary to accomplish the purposes and provisions thereof.  (2) The director shall establish standards and review procedures to assure that recipients of state funding provide the services and facilities necessary to accomplish the purposes for which the funds are provided. [L 1967, c 259, pt of 1; HRS 334-8; am L 1984, c 78, 1 and c 218, 4; gen ch 1985]
  334-81 Request for hearing. At any time after the admission of a patient to a psychiatric facility under part IV of this chapter or after the transfer of a patient to another psychiatric facility under section 334-71, the patient or, on the patient's behalf, any member of the patient's family, relative, friend, or responsible person, may obtain a judicial determination of the regularity of the patient's admission or of the need for the patient's continued hospitalization by filing a written request therefor in the family court of the circuit in which the psychiatric facility is located. The form of the request shall be prescribed and supplied free of charge by the court, and the proceedings in connection therewith shall be styled "In the Interest of (the named patient)". The administrator of the psychiatric facility shall assist the patient in obtaining legal counsel if the patient objects to the patient's admission or continued hospitalization. L 1967, c 259, pt of 1; HRS 334-81; am L 1977, c 76, 7; gen ch 1985 Law Journals and Reviews  For description of procedure under chapter, see Thou Shalt Not Commit, Samuel P. King. 5 HBJ 46. 
 334-82 Order to show cause; guardian ad litem. Immediately upon receipt of a request, the court shall issue an order to show cause directed to the administrator of the facility and commanding the administrator to show cause at a date and time certain no later than five days thereafter why the patient should not be discharged immediately. A copy of the request shall be attached to the order to show cause. The form of the order to show cause shall be prescribed and supplied free of charge by the court. The order to show cause shall issue without cost and may be served as any other civil process or by any responsible person appointed by the court for that purpose. At any stage of the proceedings, the court may appoint a guardian ad litem for the patient. The guardian ad litem may be a member of the bar of the court or any other responsible person. Service on the administrator may be effected by leaving certified copies of the order to show cause and request at the facility with any person exercising authority. Notice of the order to show cause and the hearing date, and any adjournments, continuances, other delays, and dates of rescheduled hearings shall be provided to those persons entitled to notice pursuant to section 334-60.4. [L 1967, c 259, pt of 1; HRS 334-82; gen ch 1985; am L 2018, c 144, 7] Rules of Court  Service, see HRCP rule 4.  Guardian ad litem, see HRCP rule 17(c).
 334-83 Hearing. The court may take testimony and may examine the patient and after a full and complete hearing shall render a decision in writing, setting forth its findings of fact and conclusions of law. The court may award a fee to the guardian ad litem to be paid out of any property of the patient or funds of the court available therefor. [L 1967, c 259, pt of 3; HRS 334-83; am L 1973, c 93, pt of 2]
 334-84 Order. If it is determined that the admission of the patient is regular and that the patient needs continued hospitalization, the court shall issue an order authorizing the detention of the patient at the facility. If it is determined that the admission of the patient is not regular or that the patient does not need continued hospitalization, the court shall issue an order requiring the immediate discharge of the patient from the facility. Notice of the detention or discharge shall be provided to those persons entitled to notice pursuant to section 334-60.4. [L 1967, c 259, pt of 1; HRS 334-84; am L 2018, c 144, 8] Cross References  Report of adjudication to county clerks, see 806-76.
 334-85 Further hearings. A judicial determination under this part regarding the detention of a patient at the same psychiatric facility may not be demanded as of right more often than once in a period of six months. [L 1967, c 259, pt of 1; HRS 334-85]
 334-86 Status of patient pending hearing. Unless otherwise ordered by the court, the authority of the psychiatric facility to detain a patient shall not be diminished by the institution of proceedings under this part until a final order requiring the discharge of the patient. [L 1967, c 259, pt of 1; HRS 334-86]
 334-9 Rules. The director of health shall adopt rules in accordance with chapter 91 to carry out this chapter. [L 1967, c 259, pt of 1; HRS 334-9; am L 1984, c 218, 5]
  334B-1 Purpose. The legislature finds and declares that the purposes of this chapter are to:  (1) Promote the delivery of quality health care in a cost-effective manner;  (2) Foster greater coordination between health care providers, third-party payors, and others who conduct utilization review and managed care activities;  (3) Protect patients, employers, and health care providers by ensuring that review agents are qualified to perform utilization review and managed care activities and to make informed decisions on the appropriateness of care;  (4) Protect patients' health care interests through public access to the criteria and standards used in utilization review and managed care activities;  (5) Ensure the confidentiality of patients' medical or psychological records in the utilization review and managed care activities in accordance with applicable state and local laws; and  (6) Provide for nondiscriminatory utilization review of treatments for all mental health, alcohol, or drug abuse problems. [L 1991, c 95, pt of 1]
  334B-2  Definitions. As used in this chapter:  "Director" means the director of health.  "Health care provider" means any person, corporation, facility, or institution licensed by this State to provide health care services, including but not limited to a physician, hospital or other health care facility, nurse, psychologist, or substance abuse counselor, and officer, employee, or agent of such provider acting in the course and scope of employment or agency related to health care services.  "Health care services" means diagnosis, treatment, medical or psychological evaluation or advice, or other acts as permissible under the health care licensing statutes of this State.  "Physician" means a person licensed to practice medicine under chapter 453.  "Psychologist" means a person licensed to practice psychology under chapter 465.  "Review agent" means a hospital or nonhospital-affiliated person or entity performing utilization review or managed care that is either affiliated with, under contract with, or acting on behalf of:  (1) A business entity in this State; or  (2) A third party that provides or administers hospital, medical, psychological, or other health care benefits to citizens of this State, including a health insurer, nonprofit health service plan, health insurance service organization, health maintenance organization, or preferred provider organization authorized to offer health insurance policies or contracts in this State.  "Utilization review" or "managed care" means a system for reviewing the appropriate and efficient allocation of mental health, alcohol, or drug abuse treatment services given or proposed to be given to a patient or group of patients for the purpose of recommending or determining whether such services should be reimbursed, covered, or provided by an insurer, plan or other entity or person.  "Utilization review plan" means a description of the criteria and standards governing utilization review or managed care activities performed by a review agent. [L 1991, c 95, pt of 1]
  334B-3 Standards for review agents. (a) A review agent who approves or denies payment, or who recommends approval or denial of payment for mental health, alcohol, or drug abuse treatment services, or whose review results in approval or denial of payment for these services on a case by case basis, shall conduct utilization review or managed care in this State subject to administrative rules developed by the director.  (b) The director shall establish a complaint resolution panel which shall review any complaints about review agents to determine the facts and establish whether the standards are being followed. If the panel finds consistent violation of the standards, a fiscal penalty may be imposed on the review agent.  (c) The director shall adopt rules pursuant to chapter 91 necessary for the purposes of this chapter. No later than one year after January 1, 1992, the director shall adopt rules establishing:  (1) A requirement that the review agent provide patients and providers with its utilization review or managed care plan including the specific review criteria and standards, procedures and methods to be used in evaluating proposed or delivered mental health, alcohol, or drug abuse treatment services;  (2) A requirement that no determination adverse to a patient or to any affected health care provider shall be made on any question relating to the necessity or justification for any form of mental health, alcohol, or drug abuse treatment services without prior evaluation and concurrence in the adverse determination by another professional with comparable qualifications in a timely manner;  (3) A requirement that a denial of third-party reimbursement or a denial of prior authorization for that service shall include the written evaluation, findings, and concurrence of a professional with comparable qualifications in the relevant specialty or sub-specialty to make a final determination that care rendered or to be rendered was, is, or may be inappropriate;  (4) Provisions by which patients, mental health, alcohol, or drug abuse treatment providers may seek prompt reconsideration by or appeal to the complaint resolution panel of adverse decisions by the review agent;  (5) A requirement that a review agent obtain permission from both the patient and the attending professional prior to attending a treatment session;  (6) A requirement that a representative of the review agent is reasonably accessible to patients, the patient's family, and providers at least five days a week during normal business hours and that payment may not be denied solely because the review agent is not available;  (7) Policies and procedures to ensure that all applicable state and federal laws protecting the confidentiality of individual medical records are followed;  (8) Policies and procedures to ensure that the amount or type of information requested by any system of managed care or utilization review be minimal, be pertinent to the needs of providing appropriate utilization review or managed care services, and shall not violate patient rights and confidentiality;  (9) A requirement that the referring professional be informed prior to the decision for a denial of treatment benefits; provided that, once the adverse determination has been made, this decision shall be communicated in a timely [manner] to all affected parties;  (10) A prohibition of a contract provision between or among any combination of the review agent, the provider, a business entity, or third-party payor that may constitute a conflict of interest;  (11) A requirement that an orderly process be established for the timely and impartial internal resolution of problems prior to the use of the complaint process; and  (12) The process by which complaints shall be handled by the complaint resolution panel.  (d) Nothing in this process shall be deemed to deprive a patient or mental health, alcohol, or drug abuse treatment provider of any other cause of action available under state law. [L 1991, c 95, pt of 1] Revision Note  "January 1, 1992" substituted for "the effective date of this chapter".
  334B-4 Waiver. This chapter shall not apply to a review agent that operates under contract with the federal government for utilization review activities relating to recipients and health care providers under Title XVIII of the Social Security Act, Title XIX of the Social Security Act, and the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS). [L 1991, c 95, pt of 1]
  334B-5 Confidentiality. A review agent may not disclose or publish individual medical or psychological records or any other confidential medical or psychological information obtained in the performance of utilization review or managed care activities. [L 1991, c 95, pt of 1]
  334B-6 Penalty for violation.  Any person or agency who violates any provision of this chapter or any rule adopted pursuant to this chapter or who submits any false information shall be guilty of a misdemeanor and upon conviction shall be subject to a penalty of not more than $1,000. [L 1991, c 95, pt of 1]
  334B-7 Appeal by aggrieved party.  Any person aggrieved by a final decision of the complaint resolution panel in a contested case under this chapter may appeal to the director. [L 1991, c 95, pt of 1]
  334B-8 Annual report. The director shall submit an annual report to the governor and the legislature at least twenty days prior to the convening of each regular session concerning the conduct of review agents that have been reported to the complaint resolution panel. The report shall include an analysis of complaints filed against agents by patients or their representatives, or providers. [L 1991, c 95, pt of 1]
  334D-1 Findings and purpose. The purpose of this chapter is to establish a diversion program for nurses with chemical dependency problems and to place the program under the oversight of the board of nursing. The intent of the diversion program established by this chapter is to develop a voluntary alternative to traditional disciplinary actions that provides adequate protections for the public health, safety, and welfare. [L 1993, c 106, pt of 1; am L 2010, c 54, 2]
  334D-2 Definitions. As used in this chapter, unless the context requires otherwise:  "Board" means the board of nursing.  "Chemically dependent" means a condition wherein a nurse's cognitive, interpersonal, or psychomotor skills are affected by the habitual or intemperate use of alcohol or drugs, or both.  "Diversion program" means a program administered by professionals to assist chemically dependent nurses in obtaining evaluation, counseling, monitoring, and ongoing support for rehabilitative purposes.  "Nurse" means a person who has been or is currently licensed under chapter 457.  "Peer assistance program" means a program administered by professionals for the purpose of assisting nurses who are chemically dependent in obtaining evaluation, counseling, monitoring of progress, and ongoing support for rehabilitative purposes.  "Professional association" means a national or statewide association or committee of professionals, or a nonprofit organization operated in support of a professional association that is recognized by the board and designated to administer and monitor the diversion program. [L 1993, c 106, pt of 1]
  334D-3 Diversion program. (a) There is established a diversion program for chemically dependent nurses which shall be administered and monitored by a professional association or other entity approved by the board. The function of the diversion program shall be to assess and, where appropriate, rehabilitate chemically dependent nurses whose competencies may be impaired and to provide treatment so that nurses are able to return to or continue the practice of nursing in a manner that is beneficial to the public.   (b) The board shall adopt rules in accordance with chapter 91 setting forth the requirements for program approval and maintenance.  (c) Participation in the diversion program shall be voluntary.  (d) If a nurse is subject to penalties, including revocation, suspension, or limitation of license and fines, and desires to effect a compromise settlement, the regulated industries complaint office and the nurse may enter into a settlement agreement subject to approval and order of the board and acceptance by the diversion program.  (e) The names of nurses who fail to comply with the terms and conditions of the diversion program shall be reported to:  (1) The executive officer of the board; and   (2) The regulated industries complaints office, within three business days after the failure to comply becomes known to the individuals monitoring the nurse and the individual designated by the monitoring entity to report the failure to comply.  (f) Nurses who participate in the diversion program pursuant to this chapter shall provide evidence verified by licensed professional health care providers of successful completion of all terms and conditions of the program and of sufficient rehabilitation to safely practice nursing, as provided by rules adopted by the board pursuant to chapter 91.  (g) A nurse who fully complies with this chapter and the rules adopted by the board pursuant to this chapter, and who completes all the requirements of a diversion program approved by the board, shall not be subject to further disciplinary action by the board for the cause described in section 457-12(a)(4).  (h) A nurse admitted to the diversion program who fails to comply with the requirements of this chapter, the rules adopted by the board pursuant to this chapter, or the requirements of the diversion program may be subject to disciplinary action in accordance with section 457-12 and chapter 436B. [L 1993, c 106, pt of 1; am L 2010, c 54, 3]
  334D-4 Civil immunity of third persons. (a) A person, entity, professional association, peer assistance program, diversion program, or employer who, in good faith, reports information or takes action in connection with a diversion program or peer assistance program, shall be immune from civil liability for reporting the information or taking the action.  (b) A person, entity, or organization that employs a chemically dependent nurse in connection with the nurse's rehabilitation shall be entitled to civil immunity under this section while the nurse is participating in the peer assistance program or diversion program unless the person, entity, or organization:  (1) Knows or should have known that the nurse is or was incapable of performing the job functions involved; or  (2) Fails to take reasonable precautions to monitor the nurse's job performance.  (c) Any professional association, person, entity, or employer acting under this chapter shall be presumed to have acted in good faith in actions relating to the peer assistance program or diversion program. A person alleging a lack of good faith shall have the burden of proof on this issue.  (d) The immunity provided by this section shall be in addition to other immunities provided by law and shall be liberally construed to accomplish the purpose of this chapter. [L 1993, c 106, pt of 1]
  334D-5 Records. All records of a nurse participating in a diversion program that are not required by law to be reported to the board or the regulated industries complaints office and do not involve disciplinary action by those entities shall be privileged and shall not be subject to discovery or subpoena by any person or entity other than a law enforcement agency investigating the conduct of the nurse, the board, or the regulated industries complaints office.  For purposes of this section:  "Law enforcement agency" means any county police department, the department of public safety, and any federal, state, or county public body that employs law enforcement officers.  "Law enforcement officer" means any public servant, whether employed by the United States, State, or county, vested by law with a duty to maintain public order or, to make arrests for offenses or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses. [L 1993, c 106, pt of 1; am L 2010, c 54, 4]
  334E-1 Informed consent. (a) Before any nonemergency treatment for mental illness can commence, informed consent, as required by section 671-3 and as defined by the Hawaii medical board pursuant to the authority vested in it by that section, shall be obtained from the patient, or the patient's guardian, if the patient is not competent to give informed consent.  (b) A signed consent form reflecting the proceeding shall be obtained and maintained as part of the patient's record. [L 1980, c 272, pt of 1; am L 2008, c 9, 3] Case Notes  Where defendant doctor never properly established at trial the "therapeutic privilege exception" to the requirement that informed consent be obtained before starting patient on antipsychotic medication, trial court erred in refusing to instruct jury concerning the tort of negligent failure to provide informed consent. 98 H. 470, 50 P.3d 946.
 334E-2 Rights of in-patients. (a) [Repeal and reenactment on June 30, 2024. L 2017, c 111, 8.] Any patient in a psychiatric facility shall be afforded rights, and any psychiatric facility shall provide the rights to all patients; provided that when a patient is not able to exercise the patient's rights, the patient's legal guardian or legal representative shall have the authority to exercise the same on behalf of the patient. The rights shall include but not be limited to the following:  (1) Access to written rules and regulations with which the patient is expected to comply;  (2) Access to the facility's grievance procedure or to the department of health as provided in section 334-3;  (3) Freedom from reprisal;  (4) Privacy, respect, and personal dignity;  (5) A humane environment;  (6) Freedom from discriminatory treatment based on race, color, creed, national origin, age, and sex;  (7) A written treatment plan based on the individual patient;  (8) Participation in the planning of the patient's treatment plan;  (9) Refusal of treatment except in emergency situations or when a court order or an administrative order pursuant to chapter 334, part X, has been issued;  (10) Refusal to participate in experimentation;  (11) The choice of physician if the physician chosen agrees;  (12) A qualified, competent staff;  (13) A medical examination before initiation of non-emergency treatment;  (14) Confidentiality of the patient's records;  (15) Access to the patient's records;  (16) Knowledge of rights withheld or removed by a court or by law;  (17) Physical exercise and recreation;  (18) Adequate diet;  (19) Knowledge of the names and titles of staff members with whom the patient has frequent contact;  (20) The right to work at the facility and fair compensation for work done; provided that work is available and is part of the patient's treatment plan;  (21) Visitation rights, unless the patient poses a danger to self or others; provided that where visitation is prohibited, the legal guardian or legal representative shall be allowed to visit the patient upon request;  (22) Uncensored communication;  (23) Notice of and reasons for an impending transfer;  (24) Freedom from seclusion or restraint, except:  (A) When necessary to prevent injury to self or others;  (B) When part of the treatment plan; or  (C) When necessary to preserve the rights of other patients or staff;  (25) Disclosure to a court, at an involuntary civil commitment hearing, of all treatment procedures which have been administered prior to the hearing; and  (26) Receipt by the patient and the patient's guardian or legal guardian, if the patient has one, of this enunciation of rights at the time of admission.  (b) All the rights of in-patients are to be qualified by reasonableness in view of the circumstances.  (c) The department of health shall investigate any complaints brought to them concerning this section, except as provided in subsection (d). The department shall report in writing its findings and recommendation to the originator of the complaint, no later than thirty days from the date the complaint is submitted.  (d) The office of the ombudsman shall be responsible for all investigations of complaints against any public psychiatric facility, as provided under chapter 96. [L 1980, c 272, pt of 1; am L 1982, c 200, 1; gen ch 1985; am L 2017, c 111, 3]
  334E-3 Investigation procedures. (a) In an investigation pursuant to section 334E-2(c), the department of health may:  (1) Make inquiries and obtain information as deemed necessary;  (2) Enter without notice to inspect the premises of a psychiatric facility; provided that such entry shall be authorized by the department in writing and that such authorization shall be furnished upon entry to the person in charge of the facility; and  (3) Hold private hearings.  (b) The department of health shall maintain secrecy in respect to all matters including the identities of the complainants or witnesses, except so far as disclosures may be necessary to enable it to carry out duties and to support recommendations. [L 1987, c 158, 1]
  334E-4 Powers. Subject to the privileges which witnesses have in the courts of this State, the department of health in an investigation pursuant to section 334E-2(c) may:  (1) Compel at a specified time and place, by a subpoena, the appearance and sworn testimony of any person who the department of health reasonably believes may be able to give information relating to a matter under investigation; and  (2) Compel any person to produce documents, papers, or objects which the department of health reasonably believes may relate to a matter under investigation. The department of health may bring suit in an appropriate state court to enforce these powers. [L 1987, c 158, 2]
  334E-5 Penalty for obstruction. A person who wilfully hinders the lawful actions of the department of health pursuant to an investigation carried out under section 334E-2(c), or wilfully refuses to comply with its lawful demands, may be fined up to $1,000. [L 1987, c 158, 3]
 335-1 Enactment of compact. The Interstate Compact on Mental Health is hereby enacted into law and entered into by the State of Hawaii with all other states legally joining therein in the form as follows:  The contracting states solemnly agree that: Article I  The party states find that the proper and expeditious treatment of the mentally ill and mentally deficient can be facilitated by cooperative action, to the benefit of the patients, their families, and society as a whole. Further, the party states find that the necessity of and desirability for furnishing such care and treatment bears no primary relation to the residence or citizenship of the patient but that, on the contrary, the controlling factors of community safety and humanitarianism require that facilities and services be made available for all in need of them. Consequently, it is the purpose of this compact and of the party states to provide the necessary legal basis for the institutionalization or other appropriate care and treatment of the mentally ill and mentally deficient under a system that recognizes the paramount importance of patient welfare and to establish the responsibilities of the party states in terms of such welfare. Article II  As used in this compact:  (a) "Sending state" shall mean a party state from which a patient is transported pursuant to the provisions of the compact or from which it is contemplated that a patient may be so sent.  (b) "Receiving state" shall mean a party state to which a patient is transported pursuant to the provisions of the compact or to which it is contemplated that a patient may be so sent.  (c) "Institution" shall mean any hospital or other facility maintained by a party state or political subdivision thereof for the care and treatment of mental illness or mental deficiency.  (d) "Patient" shall mean any person subject to or eligible as determined by the laws of the sending state, for institutionalization or other care, treatment, or supervision pursuant to the provisions of this compact.  (e) "After-care" shall mean care, treatment and services provided a patient, as defined herein, on convalescent status or conditional release.  (f) "Mental illness" shall mean mental disease to such extent that a person so afflicted requires care and treatment for the person's own welfare, or the welfare of others, or of the community.  (g) "Mental deficiency" shall mean mental deficiency as defined by appropriate clinical authorities to such extent that a person so afflicted is incapable of managing oneself and the person's affairs, but shall not include mental illness as defined herein.  (h) "State" shall mean any state, territory or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. Article III  (a) Whenever a person physically present in any party state shall be in need of institutionalization by reason of mental illness or mental deficiency, the person shall be eligible for care and treatment in an institution in that state irrespective of the person's residence, settlement or citizenship qualifications.  (b) The provisions of paragraph (a) of this article to the contrary notwithstanding, any patient may be transferred to an institution in another state whenever there are factors based upon clinical determinations indicating that the care and treatment of said patient would be facilitated or improved thereby. Any such institutionalization may be for the entire period of care and treatment or for any portion or portions thereof. The factors referred to in this paragraph shall include the patient's full record with due regard for the location of the patient's family, character of the illness and probable duration thereof, and such other factors as shall be considered appropriate.  (c) No state shall be obliged to receive any patient pursuant to the provisions of paragraph (b) of this article unless the sending state has given advance notice of its intention to send the patient; furnished all available medical and other pertinent records concerning the patient; given the qualified medical or other appropriate clinical authorities of the receiving state an opportunity to examine the patient if said authorities so wish; and unless the receiving state shall agree to accept the patient.  (d) In the event that the laws of the receiving state establish a system of priorities for the admission of patients, an interstate patient under this compact shall receive the same priority as a local patient and shall be taken in the same order and at the same time that the local patient would be taken if the interstate patient were a local patient.  (e) Pursuant to this compact, the determination as to the suitable place of institutionalization for a patient may be reviewed at any time and such further transfer of the patient may be made as seems likely to be in the best interest of the patient. Article IV  (a) Whenever, pursuant to the laws of the state in which a patient is physically present, it shall be determined that the patient should receive after-care or supervision, such care or supervision may be provided in a receiving state. If the medical or other appropriate clinical authorities having responsibility for the care and treatment of the patient in the sending state shall have reason to believe that after-care in another state would be in the best interest of the patient and would not jeopardize the public safety, they shall request the appropriate authorities in the receiving state to investigate the desirability of affording the patient such after-care in said receiving state, and such investigation shall be made with all reasonable speed. The request for investigation shall be accompanied by complete information concerning the patient's intended place of residence and the identity of the person in whose charge it is proposed to place the patient, the complete medical history of the patient, and such other documents as may be pertinent.  (b) If the medical or other appropriate clinical authorities having responsibility for the care and treatment of the patient in the sending state and the appropriate authorities in the receiving state find that the best interest of the patient would be served thereby, and if the public safety would not be jeopardized thereby, the patient may receive after-care or supervision in the receiving state.  (c) In supervising, treating, or caring for a patient on after-care pursuant to the terms of this article, a receiving state shall employ the same standards of visitation, examination, care, and treatment that it employs for similar local patients. Article V  Whenever a dangerous or potentially dangerous patient escapes from an institution in any party state, that state shall promptly notify all appropriate authorities within and without the jurisdiction of the escape in a manner reasonably calculated to facilitate the speedy apprehension of the escapee. Immediately upon the apprehension and identification of any such dangerous or potentially dangerous patient, the patient shall be detained in the state where found pending disposition in accordance with law. Article VI  The duly accredited officers of any state party to this compact, upon the establishment of their authority and the identity of the patient, shall be permitted to transport any patient being moved pursuant to this compact through any and all states party to this compact, without interference. Article VII  (a) No person shall be deemed a patient of more than one institution at any given time. Completion of transfer of any patient to an institution in a receiving state shall have the effect of making the person a patient of the institution in the receiving state.  (b) The sending state shall pay all costs of and incidental to the transportation of any patient pursuant to this compact, but any two or more party states may, by making a specific agreement for that purpose, arrange for a different allocation of costs as among themselves.  (c) No provision of this compact shall be construed to alter or affect any internal relationships among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor.  (d) Nothing in this compact shall be construed to prevent any party state or subdivision thereof from asserting any right against any person, agency or other entity in regard to costs for which such party state or subdivision thereof may be responsible pursuant to any provision of this compact.  (e) Nothing in this compact shall be construed to invalidate any reciprocal agreement between a party state and a non-party state relating to institutionalization, care or treatment of the mentally ill or mentally deficient, or any statutory authority pursuant to which such agreements may be made. Article VIII  (a) Nothing in this compact shall be construed to abridge, diminish, or in any way impair the rights, duties, and responsibilities of any patient's guardian on the guardian's own behalf or in respect of any patient for whom the guardian may serve, except that where the transfer of any patient to another jurisdiction makes advisable the appointment of a supplemental or substitute guardian, any court of competent jurisdiction in the receiving state may make such supplemental or substitute appointment and the court which appointed the previous guardian shall upon being duly advised of the new appointment, and upon the satisfactory completion of such accounting and other acts as such court may by law require, relieve the previous guardian of power and responsibility to whatever extent shall be appropriate in the circumstances; provided, however, that in the case of any patient having settlement in the sending state, the court of competent jurisdiction in the sending state shall have the sole discretion to relieve a guardian appointed by it or continue the guardian's power and responsibility, whichever it shall deem advisable. The court in the receiving state may, in its discretion, confirm or reappoint the person or persons previously serving as guardian in the sending state in lieu of making a supplemental or substitute appointment.  (b) The term "guardian" as used in paragraph (a) of this article shall include any guardian, trustee, legal committee, conservator, or other person or agency however denominated who is charged by law with power to act for or responsibility for the person or property of a patient. Article IX  (a) No provision of this compact except Article V shall apply to any person institutionalized while under sentence in a penal or correctional institution or while subject to trial on a criminal charge, or whose institutionalization is due to the commission of an offense for which, in the absence of mental illness or mental deficiency, said person would be subject to incarceration in a penal or correctional institution.  (b) To every extent possible, it shall be the policy of states party to this compact that no patient shall be placed or detained in any prison, jail or lockup, but such patient shall, with all expedition, be taken to a suitable institutional facility for mental illness or mental deficiency. Article X  (a) Each party state shall appoint a "compact administrator" who, on behalf of the administrator's state, shall act as general coordinator of activities under the compact in the administrator's state and who shall receive copies of all reports, correspondence, and other documents relating to any patient processed under the compact by the administrator's state either in the capacity of sending or receiving state. The compact administrator or the administrator's duly designated representative shall be the official with whom other party states shall deal in any matter relating to the compact or any patient processed thereunder.  (b) The compact administrators of the respective party states shall have power to promulgate reasonable rules and regulations to carry out more effectively the terms and provisions of this compact. Article XI  The duly constituted administrative authorities of any two or more party states may enter into supplementary agreements for the provision of any service or facility or for the maintenance of any institution on a joint or cooperative basis whenever the states concerned shall find that such agreements will improve services, facilities, or institutional care and treatment in the fields of mental illness or mental deficiency. No such supplementary agreement shall be construed so as to relieve any party state of any obligation which it otherwise would have under other provisions of this compact. Article XII  This compact shall enter into full force and effect as to any state when enacted by it into law and such state shall thereafter be a party thereto with any and all states legally joining therein. Article XIII  (a) A state party to this compact may withdraw therefrom by enacting a statute repealing the same. Such withdrawal shall take effect one year after notice thereof has been communicated officially and in writing to the governors and compact administrators of all other party states. However, the withdrawal of any state shall not change the status of any patient who has been sent to said state or sent out of said state pursuant to the provisions of the compact.  (b) Withdrawal from any agreement permitted by Article VII(b) as to costs or from any supplementary agreement made pursuant to Article XI shall be in accordance with the terms of such agreement. Article XIV  This compact shall be liberally construed so as 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 any party 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 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. [L 1967, c 114, 1; HRS 335-1; gen ch 1993]
 335-2 Compact administrator. Pursuant to the compact, the director of health shall be the compact administrator and the officer who, acting jointly with like officers of other party states, may promulgate rules and regulations to carry out more effectively the terms of the compact. The compact administrator shall cooperate with all departments, agencies, and officers of and in the government of this State and its subdivisions in facilitating the present administration of the compact or of any supplementary agreement or agreements entered into by this State thereunder. [L 1967, c 114, 2; HRS 335-2] Cross References  Rulemaking, see chapter 91.
 335-3 Supplementary agreements. The compact administrator may enter into supplementary agreements with appropriate officials of other states pursuant to article VII and XI of the compact. If the supplementary agreements require or contemplate the use of any institution or facility of this State or require or contemplate the provision of any service by this State, no such agreement shall have force or effect until approved by the head of the department or agency under whose jurisdiction the institution or facility is operated or whose department or agency will be charged with the rendering of the service. [L 1967, c 114, 3; HRS 335-3]
 335-4 Payment of state obligations. The compact administrator, subject to the approval of the comptroller, 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. [L 1967, c 114, 4; HRS 335-4]
 335-5 Consultation with transferee's family. The compact administrator shall consult with the immediate family of any proposed transferee. [L 1967, c 114, 5; HRS 335-5]
  336-1 Cooperation, U.S. immigration. The director of health shall cooperate with the government of the United States in arranging for the deportation of all alien public charges admitted to or hospitalized at the state hospital. [L 1927, c 235, 1; RL 1935, 1010; am L 1939, c 203, 3; RL 1945, 3821; RL 1955, 84-1; am L Sp 1959 2d, c 1, 19; HRS 336-1]
  336-11 Payment of transportation costs; agreements for continued care; funds. The director of health may in the director's discretion authorize the payment of the cost of transportation of aliens and other nonresident persons who have become public charges by reason of their hospitalization for Hansen's disease, tuberculosis, or other chronic diseases requiring prolonged hospitalization, from the State to the place where the persons have their legal residence. For the purpose of facilitating the return of such persons to the place of their residence or to facilitate the return to the State of any person similarly situated, the department of health may enter into agreements with any state of the United States or any foreign country. The department may also enter into any agreement to provide for the continued care of the aliens or nonresidents of the State, at the expense of the state or foreign country or to provide for reciprocal treatment of residents of the State by such state or foreign country.  The department may receive funds by way of grant, gift, or otherwise from any state, the United States, or any foreign country or any person for the purpose of paying all or a part of the cost of such transportation or care. [L 1957, c 90, 1; am L Sp 1959 2d, c 1, 19; Supp, 50A-1; HRS 336-11; am L 1969, c 152, 1; am L 1981, c 185, 1; am L 1983, c 124, 16; gen ch 1985]
 336-12 Alien or nonresident defined. A person shall not be deemed to be an alien or a nonresident of the State within the meaning of this part if the person meets the following requirements:  (1) Is a citizen of the United States or is a resident alien as defined by the United States bureau of immigration, and  (2) Has lived continuously in the State for a period of one year, and has not acquired a residence in another state by living continuously therein for at least one year subsequent to the person's residence in the State, provided that for a person who is not a resident of the State by birth, then the one year of continuous residence in the State shall have been immediately prior to the person's admittance to a hospital of the State for treatment. Any time spent in the state or other government hospitals for the isolation and treatment of Hansen's disease, tuberculosis, or other chronic diseases shall not be counted in determining the matter of residence in this or another state. In determining the residence of a minor patient of hospitals of the State, due consideration shall be given to the residence of the parents of the patients, and if either one or both parents of the minor patient is a resident of the State, the minor patient shall also be deemed a resident of the State. [L 1957, c 90, 2; Supp, 50A-2; HRS 336-12; am L 1969, c 152, 1; am L 1981, c 185, 1; am L 1983, c 124, 16; gen ch 1985]
 336-13 Expenses to be paid by State. All expenses incurred in returning such aliens or nonresident persons to the place where they have legal residence, shall be paid by the State out of any appropriations made to the hospital in which any such person is a patient, or out of any moneys received by the department of health for this part. [L 1957, c 90, 3; am L Sp 1959 2d, c 1, 19; Supp, 50A-3; HRS 336-13]
 336-14 When this part not applicable. Where support or bond has already been pledged or is available, this part shall not be applicable. [L 1957, c 90, 4; Supp, 50A-4; HRS 336-14]
 336-15 Rules and regulations. The department of health is authorized to adopt all necessary rules and regulations to carry out the purposes of this part. [L 1957, c 90, 5; am L Sp 1959 2d, c 1, 19; Supp, 50A-5; HRS 336-15] Cross References  Rulemaking, see chapter 91.
 336-2 Nonresident public charges. The director of health shall also return all nonresident public charges admitted to or hospitalized at the hospital to the states in which they may have a legal residence. For the purpose of facilitating the return of such persons, the director may enter into reciprocal agreements with the proper boards, commissions, or officers of other states for the mutual exchange of such public charges whose legal residence is in another state, and the director may file written permission for the return of any residents of the State now confined in a public institution in another state, corresponding to any institution coming within the definition of state hospitals for the insane, or in which they were under detention, not having been lawfully discharged therefrom. [L 1927, c 235, 2; RL 1935, 1011; am L 1939, c 203, 3; RL 1945, 3822; RL 1955, 84-2; am L Sp 1959 2d, c 1, 19; HRS 336-2; gen ch 1985]
 336-3 Resident defined. A person shall be deemed to be a resident of the State within the meaning of this part who has lived continuously in the State for a period of one year and who has not acquired a residence in another state by living continuously therein for at least one year subsequent to the person's residence in the State; provided that the time spent in a public institution or on parole therefrom shall not be counted in determining the matter of residence in this or another state. In determining the residence of a minor patient at the hospital, due consideration shall be given to the residence of the parents of the patient, and if either one or both parents of the minor patient are residents of the State the patient shall also be deemed a resident of the State. [L 1927, c 235, 3; RL 1935, 1012; RL 1945, 3823; RL 1955, 84-3; HRS 336-3; gen ch 1985]
 336-4 Expenses. All expenses incurred in returning such persons to another state shall be paid by the State, but the expense of returning residents of the State shall be borne by the state making the return.  The cost and expense incurred in effecting the transportation of such persons shall be paid from the funds appropriated for that purpose, or if no funds are available, then from the money appropriated for the care of the insane, or incompetent and delinquent, as may be necessary, upon vouchers approved by the director of health. [L 1927, c 235,  4, 5; RL 1935, 1013; am L 1939, c 203, 3; RL 1945, 3824; RL 1955, 84-4; am L Sp 1959 2d, c 1, 19; HRS 336-4]
 336-5 Release of aliens for return to native land. The official or board in charge of any institution of the State in which any alien may be maintained or confined, may, notwithstanding any law to the contrary, release any alien from the institution for the purpose of returning or being returned to the alien's native land, such release to be conditioned upon the person so released remaining away from the State. [L 1933, JR 3; RL 1935, 1014; RL 1945, 3825; RL 1955, 84-5; am L Sp 1959 2d, c 1, 19; HRS 336-5; gen ch 1985]
 337-1 Definitions. Whenever used in this chapter:  "Flight" and "fled" mean any voluntary or involuntary departure from the jurisdiction of the court where the proceedings hereinafter mentioned may have been instituted and are still pending, with the effect of avoiding, impeding, or delaying, the action of the court in which the proceedings may have been instituted or be pending, or any such departure from the state where the person demanded then was, if the person then was under detention by law as a person of unsound mind and subject to detention.  "State" includes states, territories, districts, and insular and other possessions of the United States.  As applied to a request to return any person within the purview of this chapter to or from the District of Columbia, the words "executive authority", "governor", and "chief magistrate", respectively, include a justice of the supreme court of the District of Columbia and other authority. [L 1927, c 214, 2; RL 1935, 1020; RL 1945, 3831; RL 1955, 85-1; HRS 337-1; gen ch 1985] Cross References  Interstate compact on mental health, see chapter 335.
 337-2 Persons subject to the chapter. A person alleged to be of unsound mind found in the State, who has fled from another state, in which at the time of the person's flight:  (1) The person was under detention by law in a hospital, asylum, or other institution for the insane as a person of unsound mind; or  (2) The person had been theretofore determined by legal proceedings to be of unsound mind, the finding being unreversed and in full force and effect, and the control of one's person having been acquired by a court of competent jurisdiction of the state from which the person fled; or  (3) The person was subject to detention in such state, being then the person's legal domicile, personal service of process having been made, based on legal proceedings there pending to have the person declared of unsound mind, shall, on demand of the executive authority of the state from which the person fled, be delivered up to be removed thereto. [L 1927, c 214, 3; RL 1935, 1021; RL 1945, 3832; RL 1955, 85-2; HRS 337-2; gen ch 1985]
 337-3 Procedure. Whenever the executive authority of any state demands of the executive authority of the State any fugitive within the purview of section 337-2 and produces a copy of the commitment, decree, or other judicial process and proceedings, certified as authentic by the governor or chief magistrate of the state whence the person so charged has fled, with an affidavit made before a proper officer showing the person to be such a fugitive, it shall be the duty of the executive authority of the State to cause the fugitive to be apprehended and secured, if found in the State and to cause immediate notice of the apprehension to be given to the executive authority making the demand, or to the agent of the authority appointed to receive the fugitive, and to cause the fugitive to be delivered to the agent when the agent shall appear. If no such agent appears within thirty days from the time of the apprehension, the fugitive may be discharged. All costs and expenses incurred in the apprehending, securing, maintaining, and transmitting the fugitive to the state making the demand shall be paid by such state. Any agent so appointed who receives the fugitive into the agent's custody shall be empowered to transmit the fugitive to the state from which the fugitive has fled. The executive authority of the State is vested with the power, on the application of any person interested, to demand the return to the State of any fugitive within the purview of this chapter. [L 1927, c 214, 4; RL 1935, 1022; RL 1945, 3833; RL 1955, 85-3; HRS 337-3; gen ch 1985]
 337-4 Limitation. Any proceedings under this chapter shall be begun within one year after the flight referred to in this chapter. [L 1927, c 214, 5; RL 1935, 1023; RL 1945, 3834; RL 1955, 85-4; HRS 337-4]
  338-1 Definitions of terms. As used in this part unless the context otherwise indicates:  "Dead body" means 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 recently occurred.  "Fetal death" is death prior to the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy, that did not, after complete separation from the mother, breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or movement of voluntary muscle.  "Live birth" is the complete expulsion or extraction from its mother of a product of conception that did, after complete expulsion or extraction from the mother, breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or movement of voluntary muscle, whether or not the umbilical cord was cut or the placenta attached.  "Person in charge of disposition of the body" means any person who places, or causes to be placed, a stillborn child, or dead body, or ashes, after cremation, in a grave, vault, urn, or other receptacle, or otherwise disposes thereof.  "Physician" means a person licensed to practice medicine or osteopathic medicine under part I of chapter 453 or a practitioner of medicine, osteopathic medicine, or surgery excepted from licensure by section 453-2(b)(3).  "Public health statistics" includes the registration, preparation, transcription, collection, compilation, and preservation of data pertaining to births, adoptions, legitimations, deaths, fetal deaths, morbidity, marital status, and data incidental thereto. [L 1949, c 327, 2; am L 1951, c 92, 1; RL 1955, 57-1; HRS 338-1; am L 1973, c 17, 5; am L 1975, c 66, 2(1); am L 1982, c 112, 2; gen ch 1985; am L 1987, c 100, 1; am L 1993, c 131, 1; am L 2009, c 11, 44]
  338-10 Late determination of the cause of death. If the cause of death cannot be determined within three days, the certification of its cause may be filed after the prescribed period, but the attending physician, advanced practice registered nurse, or coroner's physician shall notify in writing the local agent of the department of health of the district in which the death occurred of the reason for late filing, in order that a permit for the disposition of the body may be issued.  As used in this section, "late" means more than three days after the date of death. [L 1949, c 327, 14; RL 1955, 57-13; am L Sp 1959 2d, c 1, 19; HRS 338-10; am L 1973, c 17, 7; am L 1997, c 305, 1; am L 2016, c 183, 5]
 338-11 Form of certificates. The forms of certificates shall include as a minimum the items required by the respective standard certificates as recommended by the Public Health Service, National Center for Health Statistics, subject to approval of and modification by the department of health. In addition, the forms of death certificates shall require the individual's social security number. The form and use of the certificates shall be subject to sections 338-16 to 338-18. [L 1949, c 327, 15; RL 1955, 57-14; am L Sp 1959 2d, c 1, 19; HRS 338-11; am L 1997, c 293, 17]
 338-12 Evidentiary character of certificates. Certificates filed within thirty days after the time prescribed therefor shall be prima facie evidence of the facts therein stated. Data pertaining to the father of a child is prima facie evidence if:  (1) The alleged father is:  (A) The husband of the mother; or  (B) The acknowledged father of the child; or  (2) The father and child relationship has been established under chapter 584. Data pertaining to the alleged father acknowledging paternity of the child is admissible as evidence of paternity in any family court proceeding, including proceedings under chapter 584. [L 1949, c 327, 16; RL 1955, 57-15; HRS 338-12; am L 1975, c 66, 2(2); am L 1994, c 23, 1]
 338-13 Certified copies. (a) Subject to the requirements of sections 338-16, 338-17, and 338-18, the department of health shall, upon request, furnish to any applicant a certified copy of any certificate, or the contents of any certificate, or any part thereof.  (b) Copies of the contents of any certificate on file in the department, certified by the department shall be considered for all purposes the same as the original, subject to the requirements of sections 338-16, 338-17, and 338-18.  (c) Copies may be made by photography, dry copy reproduction, typing, computer printout or other process approved by the director of health. [L 1949, c 327, 17; RL 1955, 57-16; am L Sp 1959 2d, c 1, 19; HRS 338-13; am L 1978, c 49, 1]
  338-14.3 Verification in lieu of a certified copy. (a) Subject to the requirements of section 338-18, the department of health, upon request, shall furnish to any applicant, in lieu of the issuance of a certified copy, a verification of the existence of a certificate and any other information that the applicant provides to be verified relating to the vital event that pertains to the certificate.  (b) A verification shall be considered for all purposes certification that the vital event did occur and that the facts of the event are as stated by the applicant.  (c) Verification may be made in written, electronic, or other form approved by the director of health.  (d) The fee for a verification in lieu of a certified copy shall be a maximum of one half of the fee established in section 338-14.5 for the first certified copy of a certificate issued.  (e) Fees received for verifications in lieu of certified copies shall be remitted, and one half of the fee shall be deposited to the credit of the vital statistics improvement special fund in section 338-14.6 and the remainder of the fee shall be deposited to the credit of the state general fund. [L 2001, c 246, 1; am L 2010, c 55, 1]
 338-14.5 Copies of certificate; fees. The fees for certified copies of birth, marriage, divorce, or death certificates issued by the department of health shall consist of $10 for the first copy issued and $4 for each copy issued thereafter. These fees shall be collected for each single request for certified copies. All fees received for the issuance of certified copies of birth, marriage, divorce, or death certificates shall be remitted to the director of health. Upon the receipt of remittances under this section, the director of health shall deposit:  (1) $1 for each certified copy to the credit of the spouse and child abuse special fund established under section 346-7.5;  (2) $1 for each certified copy to the credit of the spouse and child abuse special account established under section 601-3.6;  (3) $1 for each certified copy to the credit of the domestic violence and sexual assault special fund established under section 321-1.3;  (4) $1 for each certified copy to the credit of the vital statistics improvement special fund established under section 338-14.6; and  (5) The remainder of the fee for each certified copy to the credit of the state general fund. [L 1994, c 232, 1; am L 1997, c 216,  6, 13; am L 1998, c 311, 7; am L 1999, c 194, 1; am L 2005, c 142, 3; am L 2019, c 84, 3] Note  Distribution of revenues derived from fees; department of health to submit study to legislature and governor no later than November 1, 2016. L 2016, c 43,  10, 11.
  338-14.6 Vital statistics improvement special fund. (a) There is established within the state treasury a special fund to be known as the vital statistics improvement special fund. The fund shall be administered and expended by the department of health.  (b) Moneys in the fund shall be used by the department of health for the modernization and automation of the vital statistics system in this State. Moneys in the fund may be used to assist in offsetting costs for the daily operations of the system of vital statistics.  (c) The fund shall consist of fees remitted pursuant to section 338-14.5. All realizations of the fund shall be subject to the conditions specified in subsection (b). [L 1997, c 216,  2, 13; am L 1999, c 194, 1; am L 2010, c 55, 2]
  338-14 Fees for certified copies and searches; transcripts or other statistical summaries of vital records for National Center for Health Statistics; certified copies for veterans and others; and corrections on vital statistics certificates. (a) The department of health shall establish reasonable fees to be paid for certified copies of certificates; provided that the department shall furnish, free of charge, a certified copy of any of the records, or a certification of birth, to any veteran of the armed forces of the United States, the veteran's wife, any member of the immediate family of a veteran or the next of kin of a deceased veteran, when required for use in connection with a claim based on service in the armed forces of the United States. Subject to sections 338-16, 338-17, and 338-18, the National Center for Health Statistics may obtain transcripts and statistical summaries on computer tapes of certificates or, without payment of fees, certified copies; provided the State is put to no expense in connection therewith.  A reasonable fee shall be charged for any correction in the items on a vital statistics certificate initiated by the registrant or the registrant's parent or representative if the registrant is a minor.  (b) The department may prescribe reasonable fees for searches of files and records not involving the issuance of certified copies.  (c) The department shall keep an account of all fees collected and shall deposit them to the general fund of the State except as provided in sections 321-1.3, 338-14.5, 338-14.6, 346-7.5, and 601-3.6.  (d) Any fee established by the department pursuant to this section shall be adopted in accordance with chapter 91. In establishing a fee, the amount shall be sufficient to cover the expenses involved in searching for, cost of a copy of, or correction of the certificate, file, or record, as the case may be. The department may raise the fees up to ten per cent per year without being subject to the provisions of chapter 91. [L 1949, c 327, 18; am L Sp 1949, c 34, 1; RL 1955, 57-17; am L 1957, c 202, 1 and c 316, 2; am L Sp 1959 2d, c 1, 19; am L 1967, c 30, 1; HRS 338-14; am L 1974, c 32, 1; am L 1979, c 159, 1; gen ch 1985; am L 1997, c 216,  5, 13; am L 1999, c 194, 1; am L 2018, c 174,  1, 3]
  338-15 Late or altered certificates. A person born in the State may file or amend a certificate after the time prescribed, upon submitting proof as required by rules adopted by the department of health. Certificates registered after the time prescribed for filing by the rules of the department of health shall be registered subject to any evidentiary requirements that the department adopts by rule to substantiate the alleged facts of birth. The department may amend a birth certificate to change or establish the identity of a registrant's parent only pursuant to a court order from a court of appropriate jurisdiction or pursuant to a legal establishment of parenthood pursuant to chapter 584. Amendments that change or establish the identity of a registrant's parent that are made in accordance with this section shall not be considered corrections of personal records pursuant to chapter 92F. [L 1949, c 327, 19; RL 1955, 57-18; am L Sp 1959 2d, c 1, 19; HRS 338-15; am L 1972, c 66, 1(1); am L 1997, c 305, 2; am L 2016, c 26, 1] Attorney General Opinions  Section provides for the alteration of only birth certificates. Att. Gen. Op. 84-14.
 338-16 Procedure concerning late and altered birth certificates. (a) Birth certificates registered one year or more after the date of birth, and certificates which have been altered after being filed with the department of health, shall contain the date of the late filing and the date of the alteration and be marked distinctly "late" or "altered".  (b) A summary statement of the evidence submitted in support of the acceptance for late filing or the alteration shall be endorsed on the certificates.  (c) Such evidence shall be kept in a special permanent file.  (d) When an applicant does not submit the minimum documentation required by the rules for late registration or when the state registrar finds reasons to question the validity or adequacy of the certificate or the documentary evidence, the state registrar shall not register the late certificate and shall advise the applicant of the reason for this action.  The department of health may by rule provide for the dismissal of an application which is not actively prosecuted.  (e) As used in this section, "late" means one year or more after the date of birth. [L 1949, c 327, 20; RL 1955, 57-19; am L Sp 1959 2d, c 1, 19; HRS 338-16; am L 1972, c 66, 1(2); am L 1997, c 305, 3]
 338-17.5 Judicial procedure to establish facts of birth. (a) If a delayed certificate of birth is rejected under section 338-16, a petition may be filed with the circuit court for an order establishing a record of the date and place of the birth and the parentage of the person whose birth is to be registered.  (b) The petition shall be accompanied by a statement of the registration official made in accordance with section 338-16(d) and all documentary evidence which was submitted to the registration official in support of such registration.  (c) The court shall fix a time and place for hearing the petition and shall give the registration official who refused to register the petitioner's delayed certificate of birth fifteen days' notice of said hearing. Such official, or the official's authorized representative, may appear and testify in the proceeding.  (d) If the court from the evidence presented finds that the person for whom a delayed certificate of birth is sought was born in this State, it shall make findings as to the place and date of birth, parentage, and such other findings as the case may require and shall issue an order to establish a record of birth.  (e) The clerk of the court shall forward a copy of the order to the state registrar of vital statistics not later than the 10th day of the calendar month following the month in which it was entered. Such order shall be registered by the state registrar of vital statistics in accordance with section 338-13. [L 1972, c 66, pt of 1(3); gen ch 1985; am L 1986, c 339, 45]
  338-17.7 Establishment of new certificates of birth, when. (a) The department of health shall establish, in the following circumstances, a new certificate of birth for a person born in this State who already has a birth certificate filed with the department and who is referred to below as the "birth registrant":  (1) Upon receipt of an affidavit of paternity, a court order establishing paternity, or a certificate of marriage establishing the marriage of the natural parents to each other, together with a request from the birth registrant, or the birth registrant's parent or other person having legal custody of the birth registrant, that a new birth certificate be prepared because previously recorded information has been altered pursuant to law;  (2) Upon receipt of a certified copy of a final order, judgment, or decree of a court of competent jurisdiction that determined the nonexistence of a parent and child relationship between a person identified as a parent on the birth certificate on file and the birth registrant;  (3) Upon receipt of a certified copy of a final adoption decree, or of an abstract of the decree, pursuant to sections 338-20 and 578-14;  (4) Upon receipt of an affidavit from a United States licensed physician attesting that: (A) The physician has a bona fide physician-patient relationship with the birth registrant; (B) The physician has treated and evaluated the birth registrant and has reviewed and evaluated the birth registrant's medical history; (C) The birth registrant has had appropriate clinical treatment for gender transition to the new gender and has completed the transition to the new gender; and (D) The new gender does not align with the sex designation on the birth registrant's birth certificate; or  (5) Upon request of a law enforcement agency certifying that a new birth certificate showing different information would provide for the safety of the birth registrant; provided that the new birth certificate shall contain information requested by the law enforcement agency, shall be assigned a new number and filed accordingly, and shall not substitute for the birth registrant's original birth certificate, which shall remain in place.  (b) When a new certificate of birth is established under this section, it shall be substituted for the original certificate of birth. The new certificate shall not be marked as amended and shall in no way reveal the original language changed by any amendment. Thereafter, the original certificate and the evidence supporting the preparation of the new certificate shall be sealed and filed. The sealed documents shall be opened only by an order of a court of record or, for those documents amended pursuant to subsection (a)(4), by request of the birth registrant.  (c) If a new certificate of birth is established under subsection (a)(4), it shall reflect, or shall be reissued to reflect, any legal name change made before, simultaneously, or after the change in sex designation; provided appropriate documentation of the name change is submitted.  (d) If a new certificate of birth is established under subsection (a)(4), the department shall not require any additional medical information or records other than those required by subsection (a)(4). [L 1973, c 39, 1; am L 1975, c 66, 2(3); am L 1979, c 130, 1 and c 203, 1; am L 1982, c 4, 1; am L 1983, c 65, 1; am L 1984, c 167, 1; am L 1993, c 131, 2; am L 2015, c 226, 1] Rules of Court  Adoption, new birth certificate, see HFCR rule 112.
  338-17.8 Certificates for children born out of State. (a) Upon application of an adult or the legal parents of a minor child, the director of health shall issue a birth certificate for such adult or minor, provided that proof has been submitted to the director of health that the legal parents of such individual while living without the Territory or State of Hawaii had declared the Territory or State of Hawaii as their legal residence for at least one year immediately preceding the birth or adoption of such child.  (b) Proof of legal residency shall be submitted to the director of health in any manner that the director shall deem appropriate. The director of health may also adopt any rules pursuant to chapter 91 that he or she may deem necessary or proper to prevent fraudulent applications for birth certificates and to require any further information or proof of events necessary for completion of a birth certificate.  (c) The fee for each application for registration shall be established by rule adopted pursuant to chapter 91. [L 1982, c 182, 1]
 338-17 Late or altered certificate as evidence. The probative value of a "late" or "altered" certificate shall be determined by the judicial or administrative body or official before whom the certificate is offered as evidence. [L 1949, c 327, 21; RL 1955, 57-20; HRS 338-17; am L 1997, c 305, 4]
 338-18.5 REPEALED. L 2021, c 199, 3.
  338-18 Disclosure of records.  (a) To protect the integrity of vital statistics records, to ensure their proper use, and to ensure the efficient and proper administration of the vital statistics system, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any record, except as authorized by this part or in a manner consistent with rules adopted by the department of health.  (b) The department of health shall not permit inspection of public health statistics records, or issue a certified copy of any record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record. The following persons or agencies shall be considered to have a direct and tangible interest in a public health statistics record:  (1) The registrant;  (2) The spouse of the registrant;  (3) A parent of the registrant;  (4) A descendant of the registrant;  (5) A person having a common ancestor with the registrant;  (6) A legal guardian of the registrant;  (7) A person or agency acting on behalf of the registrant;  (8) A personal representative or trustee of the registrant's estate or trust;  (9) A person whose right to inspect or obtain a certified copy of the record is established by an order of a court of competent jurisdiction;  (10) Adoptive parents who have filed a petition for adoption and who need to determine the death of one or more of the prospective adopted child's natural or legal parents;  (11) A person who needs to determine the marital status of a former spouse to determine the payment of alimony;  (12) A person, agency, or a beneficiary of a will or trust who needs to determine the death of a co-owner of property; and  (13) A person or agency who seeks access to vital statistics records for a public health purpose, as reviewed by the department of health's institutional review committee and approved by the director of health.  (c) The department of health may permit the use of the data contained in public health statistics records for research purposes only, but no identifying use thereof shall be made.  (d) Index data consisting of name and sex of the registrant, type of vital event, and such other data as the director may authorize shall be made available to the public.  (e) The department of health may permit persons working on genealogy projects access to microfilm or other copies of vital records of events that occurred more than one hundred fifteen years before the current year.  (f) The department of health shall not issue a verification in lieu of a certified copy of any record, or any part thereof, unless it is satisfied that the applicant requesting a verification is:  (1) A person who has a direct and tangible interest in the record but requests a verification in lieu of a certified copy;  (2) A government agency that, for a legitimate government purpose, maintains and needs to update official lists of persons in the ordinary course of the agency's activities. Notwithstanding other provisions of this section, upon request from a government agency of the State or its political subdivisions, the department of health may further disclose to that government agency the date of the vital event that has been verified;  (3) A government, private, social, or educational agency or organization that seeks confirmation of a certified copy of any record submitted in support of or information provided about a vital event relating to any record and contained in an official application made in the ordinary course of the agency's or organization's activities by an individual seeking employment with, entrance to, or the services or products of the agency or organization;  (4) A private or government attorney who seeks to confirm information about a vital event relating to any record that was acquired during the course of or for purposes of legal proceedings; or  (5) An individual employed, endorsed, or sponsored by a government, private, social, or educational agency or organization who seeks to confirm information about a vital event relating to preparation of reports or publications by the agency or organization for research or educational purposes.  (g) For the purposes of this section, "research purposes" shall be limited to those purposes that have been reviewed by the department of health's institutional review committee and approved by the department of health's institutional review committee and the director of health. [L 1949, c 327, 22; RL 1955, 57-21; am L Sp 1959 2d, c 1, 19; am L 1967, c 30, 2; HRS 338-18; am L 1977, c 118, 1; am L 1991, c 190, 1; am L 1997, c 305, 5; am L 2001, c 246, 2; am L 2012, c 86, 2; am L 2021, c 199, 2] Cross References  Rulemaking, see chapter 91.
 338-19 Photostatic or typewritten copies of records. The department of health is authorized to prepare typewritten, photostatic, or microphotographic copies of any records and files in its office, which by reason of age, usage, or otherwise are in such condition that they can no longer be conveniently consulted or used without danger of serious injury or destruction thereof, and to certify to the correctness of such copies. The typewritten, photostatic, or microphotographic copies shall be competent evidence in all courts of the State with like force and effect as the original. [L 1949, c 327, 23; RL 1955, 57-22; am L 1957, c 8, 1; am L Sp 1959 2d, c 1, 19; HRS 338-19]
 338-2 Authority and duties of the department of health. The department of health, herein referred to as the department, shall:  (1) Establish a central bureau of public health statistics with suitable offices properly equipped for the safety and preservation of all its official records;  (2) Install a statewide system of public health statistics;  (3) Make and amend, after notice and hearing, necessary regulations, give instructions and prescribe forms for collecting, transcribing, compiling, and preserving public health statistics; and  (4) Enforce this part and the regulations made pursuant thereto. [L 1949, c 327, 3; RL 1955, 57-2; am L Sp 1959 2d, c 1, 19; HRS 338-2]
 338-20.5 Adoption; foreign born persons. (a) The department of health shall establish a Hawaii certificate of birth for a person born in a foreign country and for whom a final decree of adoption has been entered in a court of competent jurisdiction in Hawaii, when it receives the following:  (1) A properly certified copy of the adoption decree, or certified abstract thereof on a form approved by the department; and  (2) A copy of any investigatory report and recommendation which may have been prepared by the [director of human services]; and  (3) A report on a form to be approved by the department of health setting forth the following:  (A) Date of assumption of custody;  (B) Sex;  (C) Color or race;  (D) Approximate age of child;  (E) Name and address of the person or persons adopting said child;  (F) Name given to child by adoptive parent or parents;  (G) True or probable country of birth.  The true or probable country of birth shall be known as the place of birth, and the date of birth shall be determined by approximation. This report shall constitute an original certificate of birth; and  (4) A request that a new certificate of birth be established.  (b) After preparation of the new certificate of birth in the new name of the adopted person, the department of health shall seal and file the certified copy of the adoptive decree, the investigatory report and recommendation of the director of human services if any, the report constituting the original certificate of birth, and the request for a new certificate of birth. The sealed documents may be opened by the department only by an order of a court of record or when requested in accordance with section 578-14.5 or 578-15. The new certificate of birth shall show the true or probable foreign country of birth, and that the certificate is not evidence of United States citizenship for the child for whom it is issued or for the adoptive parents. [L 1979, c 203, 3; am L 1990, c 338, 3]
 338-20 Adoption. (a) In case of the adoption of any person born in the State, the department of health, upon receipt of a properly certified copy of the adoption decree, or certified abstract thereof on a form approved by the department, shall prepare a supplementary certificate in the name of the adopted person, as fixed or changed by the decree, and seal and file the original certificate of birth with the certified copy attached thereto.  (b) The registrar of births shall show on the supplemental birth certificate the names of parents as stated in the adoption decree pursuant to section 578-14.  (c) Any certified copy of final decree of adoption, or abstract thereof, of persons born in the State, rendered by courts of other states and territories subject to the jurisdiction of the United States, or courts of a foreign country, shall be considered properly certified when attested by the clerk of the court in which it was rendered with the seal of the court annexed, if there be a seal, together with a certificate of the presiding judge, chancellor, or magistrate that the attestation is in due form.  (d) If no original certificate of birth shall be on file with the department, the department may require such evidence as it deems necessary to establish the facts of birth before preparing a supplementary certificate in the new name of the adopted person; provided that no such certificate shall be filed unless it shall be satisfactorily established that the adopted person was born in the State.  (e) The sealed documents may be opened by the department only by an order of a court of record or when requested in accordance with section 578-14.5 or 578-15. Upon receipt of a certified copy of a court order setting aside a decree of adoption, the department shall restore the original certificate to its original place in the files. [L 1949, c 327, 24; RL 1955, 57-23; am L Sp 1959 2d, c 1, 19; HRS 338-20; am L 1978, c 50, 1; am L 1979, c 203, 2; am L 1980, c 153, 6 and c 232, 18; am L 1988, c 274, 2; am L 1990, c 338, 2]
 338-21 Children born to parents not married to each other. (a) All children born to parents not married to each other, irrespective of the marriage of either natural parent to another, (1) on the marriage of the natural parents with each other, (2) on the voluntary, written acknowledgments of paternity under oath signed by the natural father and the natural mother, or (3) on establishment of the parent and child relationship under chapter 584, are entitled to the same rights as those born to parents married to each other and shall take the name so stipulated by their parents or, if the parents do not agree on the name, shall take the name specified by a court of competent jurisdiction to be the name that is in the best interests of the child. The original certificate of birth shall contain the name so stipulated. The child or children or the parents thereof may petition the department of health to issue a new original certificate of birth, and not a duplicate of the original certificate that has been amended, altered, or modified, in the new name of the child, and the department shall issue the new original certificate of birth. As used in this section "name" includes the first name, middle name, or last name.  (b) The evidence upon which the new original certificate is made, and the superseded original certificate shall be sealed and filed and may be opened only upon order of a court of record.  (c) If the child's natural parents marry each other and desire to change the child's name, the child's name may be changed and a new original certificate of birth prepared.  (d) Nothing in this section shall be construed to limit the power of the courts to order the department to prepare new certificates of birth under section 584-23. [L 1949, c 327, 25; RL 1955, 57-24; am L Sp 1959 2d, c 1, 19; am L 1967, c 6, 2; HRS 338-21; am L 1975, c 66, 2(4); am L 1980, c 153, 5; am L 1983, c 65, 2; am L 1986, c 287, 1; am L 1987, c 100, 2; am L 1988, c 141, 27; am L 1993, c 131, 3] Attorney General Opinions  Department of health's preparation of a new birth certificate pursuant to paternity orders. Att. Gen. Op. 87-6. Case Notes  Legitimacy or illegitimacy fixed at birth and cannot be changed by subsequent legislation. 3 H. 459; 4 H. 548. Prior to amendment of Act 71, L 1907, children of adulterous intercourse not legitimated by subsequent marriage of parents. 4 H. 292; 17 H. 45, 415, aff'd 210 U.S. 149.  Child begotten and born out of wedlock even though legitimated by statute on marriage of parents, is not "lawfully begotten child" within meaning of will. 14 H. 271.  Legitimation by subsequent marriage. 29 H. 258, aff'd 16 F.2d 273.  Presumption of legitimacy is not conclusive, but rebuttable. 30 H. 574. Evidence to rebut presumption. 49 H. 273, 414 P.2d 925.  Effect of legitimation on necessity of father's consent to adoption of child. 52 H. 395, 477 P.2d 780.
 338-22 Other persons required to make records. Persons in charge of institutions for care or correction or for treatment of disease, injury, or childbirth shall record and report all statistical data required by this part relating to their inmates or patients. [L 1949, c 327, 26; RL 1955, 57-25; HRS 338-22]
 338-23 Permit for removal, burial, or other disposition of body. When a death or fetal death occurs or a dead body is found, the body shall not be disposed of or removed from the registration district until a written permit has been issued by the local agent of the department of health, except that if the dead fetus is less than twenty-four weeks of gestation, no permit shall be required and except that if the death occurred as a result of an accident or other casualty occurrence, the local agent of the department of health may orally authorize the dead bodies to be removed from a registration district and airlifted or otherwise directly transported to the Honolulu registration district for the preparation and filing of death certificates and the issuance of written permits for further disposition. [L 1949, c 327, 27; am L 1951, c 92, 4; RL 1955, 57-26; am L Sp 1959 2d, c 1, 19; HRS 338-23; am L 1981, c 113, 4]
 338-24 Foreign permit for removal, burial, or other disposition of body. When the death or fetal death occurs outside this State and the body is accompanied by a permit for burial, removal, or other disposition issued in accordance with the law and regulations in force where the death or fetal death occurred, the permit shall authorize the transportation of the body into or through this State, but before the burial, cremation, or other disposal of the body within this State, the permit shall be endorsed by the local agent of the department of health who shall keep a record thereof. [L 1949, c 327, 28; am L 1951, c 92, 5; RL 1955, 57-27; am L Sp 1959 2d, c 1, 19; HRS 338-24]
 338-25.5 Disinterment of human bodies. (a) No corpse, nor the remains of any dead human body, exclusive of ashes, shall be exposed, disturbed, or removed from its place of burial, nor shall the receptacle, container, or coffin holding the remains or corpse be opened, removed, or disturbed after due interment, except upon written application made to the director of health for a permit therefor and upon the issuance and according to the terms of a permit granted therefor by the director. After any removal or disturbance the grave shall be filled at once and restored to its former condition. A cemetery authority with a current and active license with the department of commerce and consumer affairs may disinter and reinter a corpse or remains within that same cemetery without filing an application for a permit from the department of health if the cemetery authority has written authorization from the majority of the next-of-kin of the person whose corpse or remains is disinterred, as determined by the priority of succession order required by section 531B-4; provided that this exception shall not apply to disinterment of a corpse or remains for transfer off of the cemetery property to another physical address. The cemetery authority may require a licensed embalmer to be available during the disinterment in the event that human remains may be exposed.  For the purposes of this subsection, "cemetery," "cemetery authority," and "cemetery property" have the same meaning as provided in section 441-1.  (b) Notwithstanding the provisions of subsection (a), the department of land and natural resources pursuant to sections 6E-43 and 6E-43.6 may authorize exposure, removal, disinterment, or any other act without obtaining a permit from the department of health. [L 1921, c 111, 1; RL 1925, 4493; RL 1935, 5800; am L 1937, c 195, 1; RL 1945, 11200; RL 1955, 276-1; am L Sp 1959 2d, c 1, 19; HRS 734-1; ren L 1972, c 9, pt of 1; am L 1990, c 306, 14; am L 2019, c 198, 1]
  338-25.6 Fee. A fee of $5 shall be charged by the director of health for the issuing of such permit, the fee to be paid and accounted for to the treasury of the State, provided that subject to the provisions of section 338-25.5 the director shall issue a permit, free of charge, to any county, state or federal officer, acting in the officer's official capacity, or to representatives of the consular corps, or to any domestic or foreign corporation, association, or organization not operated for profit which engages in public charity. [L 1921, c 111, 2; RL 1925, 4494; RL 1935, 5801; am L 1937, c 195, 2; RL 1945, 11201; RL 1955, 276-2; am L Sp 1959 2d, c 1, 19; HRS 734-2; ren L 1972, c 9, pt of 1; gen ch 1985] Cross References  Modification of fee, see 92-28.
 338-25 Prerequisite for permit. No permit under section 338-23 shall be issued until a certificate of death or fetal death, as far as it can be completed under the circumstances of the case, has been filed and until all the regulations of the department of health in respect to the issuance of such permit have been complied with. [L 1949, c 327, 29; am L 1951, c 92, 5; RL 1955, 57-28; am L Sp 1959 2d, c 1, 19; HRS 338-25]
   338-26, 27 REPEALED. L 1974, c 31,  4, 5.
 338-28 Transmittal of certificates to department. Local agents of the department of health shall transmit all certificates filed with them to the department in accordance with regulations of the department. [L 1949, c 327, 32; RL 1955, 57-31; am L Sp 1959 2d, c 1, 19; HRS 338-28]
 338-29.5 Late registration of death, fetal death, marriage, and divorce. (a) When a death, fetal death, marriage, or divorce occurring in this State has not been registered, a certificate may be filed in accordance with rules adopted by the department of health. The certificate shall be registered subject to any evidentiary requirements that the department adopts by rule to substantiate the alleged facts of death, fetal death, marriage, or divorce.  (b) Certificates of death, fetal death, marriage, or divorce registered one year or more after the date of occurrence shall be marked "late" and shall show on the face the date of the late registration.  (c) As used in this section, "late" means one year or more after the date of the death, fetal death, marriage, or divorce. [L 1972, c 66, pt of 1(3); am L 1997, c 305, 6]
 338-29 REPEALED. L 2002, c 51, 1.
 338-3 Registration districts. The department of health shall divide the State from time to time into public health statistics registration districts, which shall conform to political subdivisions, or combinations thereof, or such other subdivision as the department may deem advisable. [L 1949, c 327, 5; RL 1955, 57-4; am L Sp 1959 2d, c 1, 19; HRS 338-3]
 338-30 Penalties. (a) Except where a different penalty is provided in this part, any person who violates this part, or neglects or refuses to perform any of the duties imposed upon the person by this part, shall be fined not more than $100.  (b) Any person who wilfully makes or alters any certificate or certified copy thereof provided for in this part except in accordance with this part, shall be fined not more than $1,000, or imprisoned not more than six months, or both.  (c) Any person, who knowingly transports, or accepts for transportation, interment, or other disposition, a dead body without an accompanying permit issued in accordance with this part, shall be fined not more than $500.  (d) Any person who presents false information in order to obtain access to or a certified copy of a vital record for which the person is not eligible is guilty of a misdemeanor and shall be fined not more than $1,000. [L 1949, c 327, 33; RL 1955, 57-33; HRS 338-30; am L 1977, c 118, 2; gen ch 1985] Cross References  Classification of offense and authorized punishment, see  701-107, 706-640, 663.
 338-4.5 REPEALED. L 2016, c 85, 3.
 338-4 Deaths reported to county clerks. The department of health shall within six weeks after the end of each month deliver, or forward by mail, to the county clerk of each county a list of the names of all citizens of voting age or over whose deaths have been recorded in the department during each month. The list shall set forth such portion of the information contained in the death record of each citizen whose death is so reported as will be of assistance to the county clerk in identification. [L 1949, c 327, 7; RL 1955, 57-6; am L 1959, c 138, 1; am L Sp 1959 2d, c 1, 19; HRS 338-4; am L 1981, c 113, 1]
  338-41 Issuance; procedure. (a) The department of health may make regulations respecting the form of Hawaiian birth certificates and certified copies of such certificates and other matters relating to Hawaii birth certificates as appear necessary and the regulations, when approved and made in accordance with chapter 91, shall have the force of law. The department shall furnish the form of the certificates and copies made therefrom.  (b) Any certificate of Hawaiian birth issued heretofore under or by virtue of any law of the Territory of Hawaii or the State, shall be prima facie evidence of the facts therein stated. [L 1911, c 96, 1; am L 1923, c 246, 1; RL 1925, 196; am L 1927, c 202, 1; RL 1935, 7610; RL 1945, 12910; am L 1951, c 132, 1; RL 1955, 57-40; am L Sp 1959 2d, c 1, 9; am L 1965, c 96, 39; HRS 338-41; am L 1970, c 11, 1; am L 1972, c 66, 1(4)] Case Notes  Prima facie evidence overcome by competent evidence of nonidentification. 4 U.S.D.C. Haw. 258.  Certificate not controlling upon U.S. immigration officials re admission of Chinese. 217 F. 48; 35 Op. U.S. Att. Gen. 69.
 338-42 REPEALED. L 1997, c 216,  9, 13; L 1999, c 194, 1.
  338-43 OLD REPEALED. L 1972, c 66, 1(6).   338-43 Perjury. Any applicant or any person who gives or offers any false testimony, oral or written, under oath, in support or respect of any application for a certificate under section 338-41, shall be deemed guilty of perjury and shall be punishable accordingly. [L 1911, c 96, 2; RL 1925, 197; RL 1935, 7611; RL 1945, 12911; RL 1955, 57-44; HRS 338-44; ren L 1972, c 66, 1(6)] Cross References  Perjury and related offenses under the Penal Code, see  710-1060 to 710-1069.5.
  338-44 Renumbered as 338-43.
 338-5 Compulsory registration of births. Within the time prescribed by the department of health, a certificate of every birth shall be substantially completed and filed with the local agent of the department in the district in which the birth occurred, by the administrator or designated representative of the birthing facility, or physician, or midwife, or other legally authorized person in attendance at the birth; or if not so attended, by one of the parents.  The birth facility shall make available to the department appropriate medical records for the purpose of monitoring compliance with the provisions of this chapter. [L 1949, c 327, 9; RL 1955, 57-8; am L Sp 1959 2d, c 1, 19; HRS 338-5; am L 1988, c 149, 1] Case Notes  Compulsory reporting not objectionable. 466 F. Supp. 714.
  338-51 Administration of oaths. Regular employees in the research and statistics office of the department of health may be appointed by the director of health to administer the oaths required by this chapter to be taken when registering vital events on a delayed basis and when correcting items on vital records registered under this chapter. [L 1975, c 62, 1]
  338-55 Disposition of body; armed forces service members. The person designated by the decedent as authorized to direct disposition on a United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, may arrange for the final disposition of the decedent's body, including cremation, if the decedent:  (1) Died while serving in any branch of the United States armed forces, United States reserve forces, or National Guard; and  (2) Executed the United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form. [L 2011, c 71, 1]
 338-6 Local agent to prepare birth certificate. (a) If neither parent of the newborn child whose birth is unattended as provided in section 338-5 is able to prepare a birth certificate, the local agent of the department of health shall secure the necessary information from any person having knowledge of the birth and prepare and file the certificate.  (b) The department shall prescribe the time within which a supplementary report furnishing information omitted on the original certificate may be returned for the purpose of completing the certificate. Certificates of birth completed by a supplementary report shall not be considered as "delayed" or "altered". [L 1949, c 327, 10; RL 1955, 57-9; am L Sp 1959 2d, c 1, 19; HRS 338-6]
 338-7 Registration of foundlings; foundling report. (a) Whoever assumes the custody of a living child of unknown parentage shall immediately report, on a form to be approved by the department of health, to the local agent of the department the following:  (1) Date and place of finding or assumption of custody;  (2) Sex;  (3) Color or race;  (4) Approximate age of child;  (5) Name and address of the person or institution with whom the child has been placed for care;  (6) Name given to the child by the finder or custodian.  (b) The place where the child was found or custody assumed shall be known as the place of birth, and the date of birth shall be determined by approximation.  (c) The foundling report shall constitute the certificate of birth.  (d) If a foundling child is identified and a regular certificate of birth is found or obtained, the report shall be sealed and filed and may be opened only upon order of a court of competent jurisdiction. [L 1949, c 327, 11; RL 1955, 57-10; am L Sp 1959 2d, c 1, 19; HRS 338-7]
 338-8 Compulsory registration of deaths and fetal deaths. A certificate of every death or fetal death shall be filed with the department of health in Honolulu or with the local agent of the department of health in the district in which the death or fetal death occurred or a dead body was found within three days after the death or fetal death occurred or the dead body was found. In every instance, a certificate shall be filed prior to interment or other disposition of the body. [L 1949, c 327, 12; am L 1951, c 92, 2; RL 1955, 57-11; am L Sp 1959 2d, c 1, 19; HRS 338-8; am L 1981, c 113, 2]
 338-9 Filing and preparation of death and fetal death certificates. (a) The person in charge of the disposition of the body shall file with the department of health in Honolulu or with the local agent of the department of health in the district in which the death or fetal death occurred, or a dead body was found, a certificate of death or fetal death within three days after the occurrence, except that reports of intentional terminations of pregnancy performed in accordance with section 453-16 may be deferred for up to one month.  (b) In preparing a certificate of death or fetal death the person in charge of the disposition of the body shall:  (1) Obtain and enter on the certificate the personal data and other information pertaining to the deceased person required by the department from the person best qualified to supply them;  (2) Present the certificate of death to the physician or advanced practice registered nurse last in attendance upon the deceased, or to the coroner's physician, who shall thereupon certify the cause of death to the physician's or advanced practice registered nurse's best knowledge and belief, or present the certificate of fetal death to the physician, advanced practice registered nurse, midwife, or other person in attendance at the fetal death, who shall certify the fetal death and such medical data pertaining thereto as can be furnished; provided that fetal deaths of less than twenty-four weeks or intentional terminations of pregnancy performed in accordance with section 453-16 may be certified by a nurse or other employee based upon the physician's records; and  (3) Notify immediately the appropriate local agent, if the death occurred without medical attendance, or if the physician or advanced practice registered nurse last in attendance fails to sign the death certificate. In such event the local agent shall inform the local health officer, and refer the case to the local health officer for immediate investigation and certification of the cause of death prior to issuing a permit for burial, or other disposition of the body. When the local health officer is not a physician or when there is no such officer, the local agent may complete the certificate on the basis of information received from relatives of the deceased or others having knowledge of the facts.  If the circumstances of the case suggest that the death or fetal death was caused by other than natural causes, the local agent shall refer the case to the coroner for investigation and certification.  (c) A death certificate may be filed by the next of kin and accepted by the local agent without meeting the requirements set forth above when there has been a judicial finding and declaration by a court of record that a person is dead; provided that the certificate is in a form approved by the department and has been certified by the clerk of court. [L 1949, c 327, 13; am L 1951, c 92, 3; RL 1955, 57-12; am L Sp 1959 2d, c 1, 19; am L 1965, c 113, 1; HRS 338-9; am L 1973, c 17, 6; am L 1975, c 74, 1; am L 1978, c 86, 1; am L 1981, c 113, 3; am L 2016, c 183, 4]
Revision Note Sections 339-1 to 11 designated as part I.   339-1 Definitions. As used in this chapter:  "Beverage" means beer or other malt beverages, mineral waters, fruit juices, ades, and other similar noncarbonated drinks, soda water, and flavored carbonated drinks, in liquid form and intended for human consumption.  "Beverage container" means the individual, separate, sealed glass, metal or plastic bottle or can, containing a beverage.  "Department" means the department of health.  "Director" means the director of the department of health.  "Litter" means rubbish, refuse, waste material, garbage, trash, offal, or any debris of whatever kind or description, whether or not it is of value, and includes improperly discarded paper, metal, plastic, glass, or solid waste.  "Litter bag" means a bag, sack, or other container which is large enough to serve as a receptacle for litter.  "Littering" means placing, throwing, or dropping litter on public or private property or in any public or private waters, except:  (1) In a place which is designated by the department or the county for the disposal of garbage and refuse;  (2) Into a litter receptacle; or  (3) Into a litter bag, provided that the bag is disposed of properly into a litter receptacle or in a place designated by the department or the county for disposal of garbage and refuse.  "Litter receptacle" means any container approved by the director and made available for the depositing of wastes.  "Public place" means any area that is used or held out for use by the public whether owned or operated by public or private interests.  "Recycle" means to extract from the waste collection items for which a market exists and delivering such items to a point where they are converted to a material for later manufacture or reprocessing.  "Watercraft" means any boat, ship, vessel, or other floating craft which is berthed in or sails upon the territorial waters of Hawaii.  "Waters of the State" means any stream, river, ocean, canal, harbor, bay, or the like located within the territorial limits of the State. [L Sp 1977 1st, c 2, pt of 2; am L 1979, c 60, 2; am L 1991, c 157, 9] Note  The source note to this section is supplemented by "L Sp 2008, c 13, 3(e); am L 2009, c 183, 16."
 339-10 Injunction to restrain violation. In addition to the remedies provided in this chapter, the director may apply to the circuit environmental court for a temporary or permanent injunction restraining any person from violating any provision of this chapter. [L Sp 1977 1st, c 2, pt of 2; am L 2014, c 218, 8.]
  339-11 Transfer of authority and responsibility. The governor may, at the governor's discretion, transfer the authority and responsibility for implementing the provisions of this chapter to any appropriate state agency or office. [L Sp 1977 1st, c 2, pt of 2; gen ch 1985]
  339-12 Intentional release of balloons; prohibition. [Section effective January 1, 2023.] (a) No person or entity shall intentionally release, organize the release of, or otherwise cause the release of a balloon inflated with a gas that is lighter than air, except for:  (1) A balloon released for scientific or meteorological purposes, on behalf of a governmental agency or pursuant to a governmental contract;  (2) A hot air balloon that is recovered after launching; or  (3) A balloon that is released and remains indoors.  (b) Any person or entity who violates this section shall be subject to a civil penalty of no more than $500 for each offense. For the purposes of this section, the release of multiple balloons at one time shall be considered a single offense. [L 2021, c 141, 2]
  339-2 Powers of the director. (a) The director shall have the power to administer and enforce the provisions of this chapter and to propose and to adopt pursuant to chapter 91 rules necessary to carry out the provisions, purposes, and intent of this chapter, and may delegate responsibilities with the exception of rulemaking to the agency the director deems appropriate.  (b) The director may request all state and local governmental agencies having law enforcement powers to provide services and personnel reasonably necessary to assist in the enforcement of this chapter. Any such agency and personnel thereof so assisting the director shall be empowered to enforce this chapter and all such rules.  (c) The director may employ a person without regard to chapter 76 to serve at the director's pleasure as the director finds necessary for the implementation of this chapter.  (d) The provisions of this chapter shall not in any way preempt or diminish the present powers and duties of state and county agencies in regard to the prevention and control of litter. [L Sp 1977 1st, c 2, pt of 2; gen ch 1985; am L 2000, c 253, 150]
Cross References Integrated solid waste management, see chapter 342G.  Solid waste pollution, see chapter 342H.  339-21 Definitions. As used in this part, unless the context otherwise requires:  "Degradable" means all of the following:  (1) Capable of achieving degradation by biological processes, photodegradation, chemodegradation, or degradation by other natural degrading processes;  (2) Degradation at a rate that is equal to, or greater than, the degradation by a process specified in paragraph (1) of other commercially available plastic devices; and  (3) Degradation which will not produce or result in a residue or byproduct which, during or after such process of degrading, would be a hazardous or extremely hazardous waste as specified in the Resource Conservation and Recovery Act.   "Director" means the director of health or the director's duly appointed agent. [L 1989, c 312, pt of 2]
 339-22 Prohibited acts. (a) No person shall sell or offer for sale to any consumer within the State beverage containers, motor oil, or other consumer goods connected to each other with plastic connecting devices that are not degradable. This section shall not apply to the following plastic connecting devices:  (1) Plastic connecting devices that contain an enclosed hole or circle less than 1 and 1/4 inches in diameter; and  (2) Plastic connecting devices comprised of one or more rings that are broken when the beverage container or other consumer good is removed from the ring or rings.  (b) Notwithstanding section 339-24 to the contrary, any person who violates this section shall be fined $250 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken to impose or collect the penalty provided for in this section shall be considered a civil action. [L 1989, c 312, pt of 2; am L 1992, c 284, 1]
  339-23 Rules. The director shall establish by rules adopted under chapter 91 the criteria for eliminating the use of nondegradable plastic connecting devices to protect the air, land, and waters of the State against environmental contamination and degradation. [L 1989, c 312, pt of 2]
  339-24 Penalties. Any person who knowingly violates this part shall be fined not more than $500 for each separate offense. Each day of violation shall constitute a separate offense. Any action taken to impose or collect the penalty provided for in this section shall be considered a civil action. [L 1989, c 312, pt of 2]
  339-3 Duties of the director. (a) The director shall:  (1) Be responsible for the study of available research in the field of litter control, prevention, removal, disposal, and recycling; the study of methods for the implementation of such research; and development of public educational programs;  (2) Serve as a coordinator between the State, state agencies, and various organizations seeking to aid in the anti-litter effort;  (3) Cooperate with local governments to accomplish the coordination of anti-litter efforts; and  (4) Encourage voluntary local anti-litter campaigns.  (b) The director may:  (1) Apply for funds or other resources available from private or public sources;  (2) Conduct educational programs intended to instill the anti-litter ethic;  (3) Design a state anti-litter symbol;  (4) Post anti-litter signs in public places where required; and  (5) Design and make available a litter bag bearing the state anti-litter symbol and a statement of the penalties prescribed herein for littering. [L Sp 1977 1st, c 2, pt of 2; am L 1998, c 277, 2]
 339-4 Prohibition. (a) No person shall discard or otherwise dispose of litter in a public place, or on private property, or in the waters of the State except:  (1) In a place which is designated by the department or the county for the disposal of garbage and refuse.  (2) Into a litter receptacle.  (3) Into a litter bag, provided that the bag is disposed of properly into a litter receptacle or in a place which is designated by the department or the county for the disposal of garbage and refuse. It shall be an affirmative defense that the defendant had consent of the owner in control of the property.  (b) In the case of litter discarded or deposited from a vehicle on any highway, the driver of the vehicle may be cited for any litter discarded or deposited from such vehicle.  (c) No person in any way shall damage any litter receptacle so as to interfere with its proper function or to detrimentally affect its proper appearance.  (d) No person shall remove from its place, any litter receptacle which the person does not own, or for which the person does not have responsibility.  (e) No person shall transport litter from private households or commercial activities and discard them in litter receptacles located in public places. [L Sp 1977 1st, c 2, pt of 2; am L 1979, c 60, 3; am L 1985, c 97, 2; gen ch 1985] Cross References  Littering from vehicles, see 291C-132.
  339-5 Responsibilities of owners and lessees of real property. It shall be the responsibility of any owner or lessee of real property in state land use urban districts zoned for urban use by the county to maintain sidewalks, alleys, curbs, roadway shoulder areas, fence lines, and hedges immediately adjoining such real property in a litter-free condition except that in no way will the statute be used to release the state and county agencies from continuing their present level of public property maintenance. [L Sp 1977 1st, c 2, pt of 2]
  339-6 Litter containers. Litter receptacles shall be suitably located along the public highways of the State, public places, beaches and bathing areas. The number of such receptacles and the duty to provide receptacles and to dispose of litter from the receptacles shall be established by the rules adopted pursuant to section 339-2(a). [L Sp 1977 1st, c 2, pt of 2]
 339-7 Beverage container requirements. (a) No person in this State shall manufacture or import for sale in this State or offer for sale at wholesale in this State after July 1, 1979, or sell for retail in this State after October 1, 1979, any beverage in metal containers so designed and constructed that a part of the container is permanently detached in opening the container. However, nothing in this subsection shall prohibit the sale or offer for sale of a container the only detachable part of which is a piece of pressure sensitive tape.  (b) Failure to comply with the provisions of this section shall constitute a violation and shall carry a fine of $250. Each day of such failure shall constitute a separate violation. [L Sp 1977 1st, c 2, pt of 2; am L 1978, c 154, 1; am L 1979, c 70, 1; am L 1981, c 40, 1] Cross References  Plastic container requirements, see 342H-42.
  339-8 Penalties. (a) Except as otherwise provided by this chapter, any person violating any provision of this chapter or any rule adopted under this chapter shall be guilty of a violation, and shall be fined not less than $100, and not more than $500 for each offense, and ordered to pick up and remove litter from a public place under the supervision of the director as follows:  (1) For the first offense, the violator shall spend four hours of either picking up litter or performing community service; and  (2) For any subsequent offense, the violator shall spend eight hours of either picking up litter or performing community service.  (b) If the environmental court judges the violator to be incapable of litter removal and pick up, the environmental court may provide some other community work as it deems appropriate. All persons who are caught littering shall be required to remove the litter that they caused or shall be liable for the costs of removing that litter. [L Sp 1977 1st, c 2, pt of 2; am L 1979, c 60, 4; am L 1985, c 139, 1; am L 1991, c 157, 10; am L 1992, c 116, 2; am L 2006, c 158, 3; am L 2014, c 218, 8.]
  339-9 Enforcement powers. All law enforcement officers and personnel authorized to carry out the provisions of this chapter may issue citations for violations of this chapter or any of the rules adopted hereunder. [L Sp 1977 1st, c 2, pt of 2]
Note Section 339D-1 designated as part I by L 2009, c 183, 3.   339D-1 Definitions. As used in this chapter:  "Brand" means a symbol, word, or mark that identifies a covered electronic device or a covered television, rather than any of its components.  "Covered electronic device" [See note below.]:  (1) Means a computer, computer printer, computer monitor, or portable computer with a screen size greater than four inches measured diagonally; and  (2) Shall not include:  (A) A covered electronic device that is a part of a motor vehicle or any component part of a motor vehicle assembled by or for a motor vehicle manufacturer or franchised dealer, including replacement parts for use in a motor vehicle;  (B) A covered electronic device that is functionally or physically required as a part of a larger piece of equipment designed and intended for use in an industrial, commercial, or medical setting, including diagnostic, monitoring, or control equipment;  (C) A covered electronic device that is contained within a clothes washer, clothes dryer, refrigerator, refrigerator and freezer, microwave oven, conventional oven or range, dishwasher, room air conditioner, dehumidifier, or air purifier; or  (D) A telephone of any type.  "Covered entity" means any household, government entity, business, or nonprofit organization exempt from taxation under section 501(c)(3) of the United States Internal Revenue Code, regardless of size or place of operation within the State.  "Covered television":  (1) Means any device that is capable of receiving broadcast, cable, or satellite signals and displaying television or video programming, including without limitation any direct view or projection television with a viewable screen of nine inches or larger with display technology based on cathode ray tube, plasma, liquid crystal, digital light processing, liquid crystal on silicon, silicon crystal reflective display, light emitting diode, or similar technology marketed and intended for use by a household;  (2) Shall not include:  (A) A computer, computer printer, computer monitor, or portable computer;  (B) A television that is a part of a motor vehicle or any component part of a motor vehicle assembled by or for a vehicle manufacturer or franchised dealer, including replacement parts for use in a motor vehicle;  (C) A television that is functionally or physically required as a part of a larger piece of equipment designed and intended for use in an industrial, commercial, or medical setting, including diagnostic, monitoring, or control equipment;  (D) A telephone of any type, including a mobile telephone; or  (E) A global positioning system.  "Department" means the department of health.  "Electronic device manufacturer":  (1) Means any existing person:  (A) Who manufactures or manufactured covered electronic devices under a brand that it owns or owned or is or was licensed to use, other than a license to manufacture covered electronic devices for delivery exclusively to or at the order of the licensor;  (B) Who sells or sold covered electronic devices manufactured by others under a brand that the seller owns or owned or is or was licensed to use, other than a license to manufacture covered electronic devices for delivery exclusively to or at the order of the licensor;  (C) Who manufactures or manufactured covered electronic devices without affixing a brand;  (D) Who manufactures or manufactured covered electronic devices to which it affixes or affixed a brand that it neither owns or owned nor is or was licensed to use; or  (E) For whose account covered electronic devices manufactured outside the United States are or were imported into the United States; provided that if at the time those covered electronic devices are or were imported into the United States and another person has registered as the manufacturer of the brand of the covered electronic devices, this paragraph shall not apply;  (2) Shall not include persons who manufacture no more than one hundred computers per year.  "Household" means any occupant of a single detached dwelling unit or of a single unit of a multiple dwelling unit who has used a covered electronic device or covered television at a dwelling unit primarily for personal or home business use.  "Market share":  (1) Means the calculation of a television manufacturer's prior year's sales of televisions divided by all manufacturers' prior year's sales for all televisions, as determined by the department;  (2) May be expressed as a percentage, a fraction, or a decimal fraction.  "New covered electronic device" means a covered electronic device that is manufactured after the effective date of this chapter.  "Person" means any individual, business, partnership, limited liability company, corporation, not-for-profit organization, association, government entity, public benefit corporation, or public authority.  "Program year" means a full calendar year beginning on or after January 1, 2010, and each calendar year thereafter beginning on January 1.  "Recover" means to reuse or recycle.  "Recycling" means processing (including disassembling, dismantling, or shredding) covered electronic devices or covered televisions or their components to recover a useable product; provided that "recycling" does not include any process defined as incineration under applicable laws and rules.  "Retailer" means any person who offers covered electronic devices or covered televisions for sale, other than for resale by the purchaser, through any means, including sales outlets, catalogs, or the Internet.  "Sell" or "sale" means any transfer for consideration of title, including transactions conducted through sales outlets, catalogs, or the Internet, but excluding leases.  "Television manufacturer" means a person who:  (1) Manufactures for sale in the State a covered television under a brand that it licenses or owns;  (2) Manufactures for sale in the State covered televisions without affixing a brand;  (3) Resells into the State a covered television manufactured by others under a brand that the seller owns or is licensed to use;  (4) Imports into the United States or exports from the United States a covered television for sale in the State;  (5) Sells at retail a covered television acquired from an importer described in paragraph (4), and elects to register as the manufacturer for those products;  (6) Manufactures covered televisions and supplies them to any person or persons within a distribution network that includes wholesalers or retailers in this State; or  (7) Assumes the responsibilities and obligations of a television manufacturer under this chapter.  In the event the television manufacturer is one who manufactures, sells, or resells covered televisions under a brand for which it has obtained the license, then the licensor or brand owner of the brand shall not be included in the definition of television manufacturer under paragraph (1) or (3). [L Sp 2008, c 13, pt of 2; am L 2009, c 183, 8] Note  The source note to this section is supplemented by "L Sp 2008, c 13, 3(e); am L 2009, c 183, 16".  Electric device recycling task force; report to 2013 legislature; dissolved June 30, 2013. L 2012, c 78.
  339D-10 Electronic device recycling fund. (a) There is established in the state treasury the electronic device recycling fund into which shall be deposited all fees, payments, and penalties collected by the department pursuant to this chapter.  (b) The electronic device recycling fund shall be administered by the department of health. Moneys in the fund shall be expended by the director for the purpose of implementing and enforcing this chapter. Moneys may also be expended by the director to support county electronics collections. [L Sp 2008, c 13, pt of 2; am L 2017, c 130, 1] Note  The 2017 amendment applies to county electronics collections occurring on or after January 1, 2016. L 2017, c 130, 3.
  339D-11 Financial and proprietary information; report.  (a) Notwithstanding any law to the contrary, financial or proprietary information, including trade secrets, commercial information, and business plans, submitted to the department under this chapter is confidential and is exempt from public disclosure to the extent permitted by chapter 92F.  (b) The department shall compile the information submitted by covered television manufacturers and issue a report to the legislature no later than April 1, 2012, and annually each year thereafter. [L Sp 2008, c 13, pt of 2; am L 2009, c 183, 14]
  339D-12 Federal preemption. (a) Part II of this chapter shall be deemed repealed if a federal law or a combination of federal laws takes effect that establishes a national program for the collection and recycling of covered electronic devices that substantially meets the intent of part II of this chapter, including the creation of a financing mechanism for collection, transportation, and recycling of all covered electronic devices from covered entities in the United States.  (b) [Part IV] of this chapter shall be deemed repealed if a federal law or a combination of federal laws takes effect that establishes a national program for the recycling of covered televisions that substantially meets the intent of [part IV] of this chapter. [L Sp 2008, c 13, pt of 2; am L 2009, c 183, 15]
Note Sections 339D-2 through 339D-6 designated as part II by L 2009, c 183, 4.   339D-2 Scope of products. The collection, transportation, and recycling provisions of this part shall apply only to covered electronic devices used and discarded in this State by a covered entity. [L Sp 2008, c 13, pt of 2; am L 2009, c 183, 9]
Revision Note This part, designated as part III by L 2009, c 183, 6, is redesignated as part IV pursuant to 23G-15.  339D-21 Applicability. The recycling provisions of this part shall apply only to covered televisions used and discarded in this State by a covered entity. [L 2009, c 183, pt of 6]
  339D-22 Television manufacturers. (a) No television manufacturer shall sell or offer for sale any new covered television in this State unless:  (1) The covered television is labeled with a brand, whether licensed or owned, and the label is permanently affixed; and   (2) The brand is included in a registration that is filed with the department and that is effective pursuant to subsection (b).  (b) By January 1, 2010, before selling or offering for sale any covered television in the State, each television manufacturer shall register with the department and pay to the department a registration fee of $2,500. Thereafter, if a television manufacturer has not previously registered, the television manufacturer shall register with the department prior to any offer for sale for delivery in this State of the television manufacturer's new covered televisions.  (c) Each television manufacturer who is registered shall submit an annual renewal of its registration and payment of a registration fee of $2,500 to the department by January 1 of each program year.  (d) The registration and each renewal shall include a list of all of the television manufacturer's brands of covered televisions and shall be effective on the second day of the succeeding month after receipt by the department of the registration or renewal.  (e) A television manufacturer shall provide the department with contact information for the television manufacturer's designated agent or employee whom the department may contact for information on the television manufacturer's compliance with the requirements of this section. [L 2009, c 183, pt of 6]
  339D-23 Television manufacturer responsibility. (a) Beginning January 1, 2011, a television manufacturer shall recycle or arrange for the recycling of any covered television sold in the State.  (b) By June 1, 2010, and annually thereafter, each television manufacturer shall submit a plan to the department to establish, conduct, and manage a program for the recycling of covered televisions sold in the State, which shall be subject to the following conditions:  (1) The plan shall not permit the charging of a fee at the point of recycling if the covered television is brought by the covered television owner to a central location for recycling; provided that the plan may include a reasonable transportation fee if the television manufacturer or television manufacturer's agent removes the covered electronic device from the owner's premises at the owner's request and if the removal is not in conjunction with delivery of a new television to the owner; and  (2) Each television manufacturer may develop its own recycling program or may collaborate with other television manufacturers, so long as the program is implemented and fully operational no later than January 1, 2011.  (c) The department shall review each television manufacturer's plan and, within sixty days of receipt of the plan, determine whether the plan complies with this part. If the plan is approved, the department shall notify the television manufacturer or group of television manufacturers. If the plan is rejected, the department shall notify the television manufacturer or group of television manufacturers and provide the reasons for the plan's rejection. Within thirty days after receipt of the department's rejection, the television manufacturer or group of television manufacturers may revise and resubmit the plan to the department for approval.  (d) No later than January 31, 2012, and each year thereafter, each television manufacturer shall report to the department the total weight of covered televisions that the television manufacturer collected in the State and recycled during the previous year. [L 2009, c 183, pt of 6]
  339D-24 Retailer responsibility. (a) Beginning January 1, 2011, no retailer shall sell or offer to sell any covered television in this State unless a visible, permanent label clearly identifying the manufacturer of that device is affixed to the equipment and the television manufacturer has registered with the State.  (b) Beginning January 1, 2011, retailers shall make available to their customers information on collection services for discarded televisions in the State and shall include the department's website address and toll-free telephone number. Remote retailers may include this information in a visible location on their website to fulfill this requirement.  (c) Retailers shall not be liable in any way for electronic data or other information that a consumer may have stored on a covered television that is recovered or recycled. [L 2009, c 183, pt of 6]
  339D-25 Television recovery system. (a) The department shall use state-specific television sales data or national television sales data available from commercially available analytical sources to determine each television manufacturer's recycling responsibilities for covered televisions based upon the television manufacturer's market share. If the department uses national sales data, the department shall extrapolate data for the State from national data on the basis of the State's share of the national population. The department shall seek to establish the most accurate determination of each television manufacturer's market share and may rely on supplemental sources of information to achieve this goal.  (b) No later than March 15, 2012, and annually thereafter, the department shall notify each television manufacturer of its recycling obligation. Each television manufacturer's obligation shall be based on that television manufacturer's market share from the previous year multiplied by the total pounds of covered televisions recycled by all television manufacturers during the previous program year.  (c) The department shall develop a consumer education program about the covered television recycling program.  (d) Beginning January 1, 2011, the department shall display on its website a toll-free number and current information on covered television recycling locations. [L 2009, c 183, pt of 6]
  339D-26 Environmental management. (a) All covered televisions recovered pursuant to this part shall be recycled in a manner that complies with all applicable federal, state, and county laws and requirements.  (b) The department shall adopt by reference the Institute of Scrap Recycling Industries, Inc.'s Electronics Recycling Operating Practices as requirements. [L 2009, c 183, pt of 6]
  339D-27 State procurement. All state and county agencies that purchase or lease any covered television shall require each prospective offeror to certify compliance with this part. Failure to provide certification shall disqualify the prospective offeror. [L 2009, c 183, pt of 6]
  339D-3 Sales prohibition. (a) Beginning January 1, 2010, no electronic device manufacturer or retailer shall sell or offer for sale any new covered electronic device for delivery in this State unless:  (1) The covered electronic device is labeled with a brand, and the label is permanently affixed and readily visible; and  (2) The brand is included in a registration that is filed with the department and that is effective pursuant to section 339D-4(b)(3).  (b) Beginning April 1, 2009, the department shall maintain a list of each registered electronic device manufacturer and the brands reported in each electronic device manufacturer's registration and a list of brands for which no electronic device manufacturer has registered. The lists shall be posted on the department website and shall be updated by the first day of each month. Each retailer who sells or offers for sale any new covered electronic device for delivery in this State shall review these lists prior to selling the covered electronic device. A retailer is considered to have complied with subsection (a) if, on the date a new covered electronic device was ordered by the retailer, the brand was included on the department's list of brands reported in an electronic device manufacturer's registration. [L Sp 2008, c 13, pt of 2; am L 2009, c 183, 10]
  339D-4 Electronic device manufacturer responsibility. (a) Beginning October 1, 2009, each electronic device manufacturer shall label all new covered electronic devices to be offered for sale for delivery in this State with a brand, which label shall be permanently affixed and readily visible.  (b) (1) By January 1, 2009, each electronic device manufacturer of new covered electronic devices offered for sale for delivery in this State shall register with the department and pay to the department a registration fee of $5,000. Thereafter, if an electronic device manufacturer has not previously registered, the electronic device manufacturer shall register with the department prior to any offer for sale for delivery in this State of the electronic device manufacturer's new covered electronic devices.  (2) Each electronic device manufacturer who is registered shall submit an annual renewal of its registration with the payment of a registration fee of $5,000, by January 1 of each program year.  (3) The registration and each renewal shall include a list of all of the electronic device manufacturer's brands of covered electronic devices and shall be effective on the second day of the succeeding month after receipt by the department of the registration or renewal.  (c) By June 1, 2009, and annually thereafter, each electronic device manufacturer shall submit a plan to the department to establish, conduct, and manage a program for the collection, transportation, and recycling of its covered electronic devices sold in the State, which shall be subject to the following conditions:  (1) The plan shall not permit the charging of a fee at the point of recycling if the covered electronic device is brought by the covered electronic device owner to a central location for recycling; provided that the plan may include a reasonable transportation fee if the electronic device manufacturer or electronic device manufacturer's agent removes the covered electronic device from the owner's premises at the owner's request and if the removal is not in conjunction with delivery of a new electronic device to the owner;   (2) Any plan that exclusively provides a mail-back option for the collection, transportation, and recycling of an electronic device manufacturer's covered electronic devices sold in the State, shall not be approved by the department;  (3) An electronic device manufacturer of exclusively mobile covered electronic devices whose products are voluntarily accepted at no charge by at least fifty retail locations in the State may submit a recycling plan to the department that documents these locations to satisfy the requirements of this subsection; and  (4) Each electronic device manufacturer may develop its own recycling program or may collaborate with other electronic device manufacturers, so long as the program is implemented and fully operational no later than January 1, 2010.  (d) By March 31, 2011, and annually thereafter, each electronic device manufacturer shall submit to the department the total weight of all covered electronic devices recycled in the previous year, which may include both an electronic device manufacturer's own covered electronic devices and those of other manufacturers.  (e) By July 1, 2011, and annually thereafter, the department shall publish a ranking of all electronic device manufacturers selling covered electronic devices in the State, based upon the annual total weight of covered electronic devices recycled by each electronic device manufacturer in the previous year.  (f) The State may adopt regulations allowing a procurement preference based upon an electronic device manufacturer's ranking.  (g) The department shall review each electronic device manufacturer's plan and, within sixty days of receipt of the plan, shall determine whether the plan complies with this part. If the plan is approved, the department shall notify the electronic device manufacturer or group of electronic device manufacturers. If the plan is rejected, the department shall notify the electronic device manufacturer or group of electronic device manufacturers and provide the reasons for the plan's rejection. Within thirty days after receipt of the department's rejection, the electronic device manufacturer or group of electronic device manufacturers may revise and resubmit the plan to the department for approval.  (h) The obligations under this part for an electronic device manufacturer who manufactures or manufactured covered electronic devices, or who sells or sold covered electronic devices manufactured by others, under a brand that was previously used by a different person in the manufacture of covered electronic devices, shall extend to all covered electronic devices bearing that brand.  (i) Nothing in this part is intended to exempt any person from liability that the person would otherwise have under applicable law. [L Sp 2008, c 13, pt of 2; am L 2009, c 183, 11; am L 2015, c 189, 1]
  339D-5 Retailer responsibility. Beginning January 1, 2010, retailers shall make available to their customers information on collection services in the State, including the department's website and toll-free telephone number. Remote retailers may include this information in a visible location on their website to fulfill this requirement. [L Sp 2008, c 13, pt of 2]
  339D-6 Department responsibility. Beginning January 1, 2010, the department shall maintain and update a website and a toll-free number with current information on where covered entities can return covered electronic devices for recycling. [L Sp 2008, c 13, pt of 2] Revision Note  Subsection (a) designation omitted.
  339D-7.5 Manufacturer and agent responsibilities; regulatory compliance. Each electronic device manufacturer and television manufacturer shall be responsible for ensuring that the manufacturer and its agents follow all federal, state, and local regulations when collecting, transporting, and recycling covered electronic devices or covered televisions, and adopt environmentally sound recycling practices for the covered electronic devices or covered televisions. [L 2009, c 183, 7]
Revision Note This part, designated as part IV by L 2009, c 183, 5, is redesignated as part III pursuant to 23G-15. 339D-7 Regulatory authority. The department may adopt rules, pursuant to chapter 91, necessary to implement this chapter. [L Sp 2008, c 13, pt of 2]
  339D-8 Enforcement. (a) The department may conduct audits and inspections to determine compliance under this chapter. Except as provided in subsection (c), the department and the attorney general shall be empowered to enforce this chapter and take necessary action against any electronic device or television manufacturer or retailer for failure to comply with this chapter or rules adopted thereunder.  (b) The attorney general may file suit in the name of the State to enjoin an activity related to the sale of covered electronic devices or covered televisions in violation of this chapter.  (c) The department shall issue a warning notice to a person for the person's first violation of this chapter. The person shall comply with this chapter within sixty days of the date the warning notice was issued or be subject to the penalties provided by law or rule, including, but not limited to, penalties set forth in subsections (d) through (g). A retailer that receives a warning notice from the department for a violation of section 339D-3(a) or 339D-24(a) shall submit proof to the department, within sixty days from the date the warning notice was issued, that its inventory of covered electronic devices or covered televisions offered for sale is in compliance with this chapter.   (d) Any retailer who sells or offers for sale an unlabeled electronic device or unlabeled covered television in violation of section 339D-3 or 339D-24, respectively, or any electronic device or television manufacturer that fails to comply with any provision of section 339D-4 or 339D-23, respectively, may be assessed a penalty of up to $10,000 for the first violation and up to $25,000 for the second and each subsequent violation, in addition to any additional penalties required or imposed pursuant to this chapter.  (e) Except as provided in subsection (d), any person who violates any requirement of this chapter may be assessed a penalty of up to $1,000 for the first violation and up to $2,000 for the second and each subsequent violation, in addition to any additional penalties required or imposed pursuant to this chapter.  (f) The department shall determine additional penalties based on adverse impact to the environment, unfair competitive advantage, and other considerations that the department deems appropriate.  (g) If a covered television manufacturer fails to recycle its market share allocation, the department shall impose a penalty of 50 cents per pound for each pound not recycled. [L Sp 2008, c 13, pt of 2; am L 2009, c 183, 12]
  339D-9 Administrative penalties; fees. (a) In addition to any other administrative or judicial remedy provided by this chapter or by rules adopted under this chapter for a violation thereof, the department is authorized to impose by order administrative penalties and is further authorized to set, charge, and collect administrative fines and to recover administrative fees and costs, including attorney's fees and costs, or to bring legal action to recover administrative fines and fees and costs, including attorney's fees and costs.  (b) Notwithstanding subsection (a), the department shall not have the authority to assess any fees, including an advanced recycling fee, registration fee, or other fee, on consumers, television manufacturers, or retailers for recovery of covered televisions except those noted in sections 339D-4 and 339D-22. [L Sp 2008, c 13, pt of 2; am L 2009, c 183, 13; am L 2011, c 43, 8]
  339K-1 Enactment of compact. The Northwest Interstate Compact on Low-Level Radioactive Waste Management is hereby enacted into law and entered into by the State of Hawaii 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 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 low-level radioactive waste management. ARTICLE II. DEFINITIONS  As used in this compact:  (a) "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.  (b) "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 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;  (c) "Generator" means any person, partnership, association, corporation, or any other entity whatsoever, which, as a part of its activities, produces low-level radioactive waste;  (d) "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:  (a) 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;  (b) Periodic unannounced inspection of the premises of such generators and the waste management activities thereon;  (c) 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;  (d) Assurance that inspection of the carriers which transport such waste are conducted by proper authorities, and appropriate enforcement action taken for violations;  (e) 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  (a) 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.  (b) After July 1, 1983, 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.  (c) Until such time as paragraph (b) 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:  (1) The generator's name and address;  (2) A description of the contents of the low-level waste container;  (3) 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;  (4) 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.  (d) 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 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 through 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.  (e) 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.  (f) 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 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 officials shall inform the committee of existing regulations concerning low-level waste management in their states, and shall afford all other officials a reasonable opportunity to review and comment upon any proposed modification 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 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  (a) 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 enactment into law by two states. Any party state may withdraw from this compact by enacting a statute repealing its approval.  (b) After the compact has initially taken effect pursuant to paragraph (a) 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.  (c) This compact shall take effect upon consent by congress. As provided in Public Law 96-573, congress may withdraw its consent to the compact after every five 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. [L 1982, c 234, pt of 1]
  339K-2 Compact administrator. The compact administrator, acting jointly with like officers of other party states, may promulgate rules and regulations to carry out more effectively the terms of the compact. The compact administrator shall cooperate with all departments, agencies, and officers of and in the government of this State and its subdivisions in facilitating the present administration of the compact or of any supplementary agreement or agreements entered into by this State thereunder. The compact administrator shall adopt the practices and may impose the fees authorized under article III of the compact, except that state and county law enforcement agencies and the public utilities commission shall retain their enforcement and inspection authority relating to carriers. [L 1982, c 234, pt of 1]
  339K-3 Supplementary agreements. The compact administrator may enter into supplementary agreements with appropriate officials of other states pursuant to the compact. In the event that the supplementary agreement requires or contemplates the use of any institution or facility of the State or requires or contemplates the provision of any service by the State, the supplementary agreement shall have no force or effect until approved by the head of the department or agency under whose jurisdiction the institution or facility is operated or whose department or agency will be charged with the rendering of such service. [L 1982, c 234, pt of 1]
  339K-4 Payment of state obligations. The compact administrator, subject to the approval of the comptroller, may make or arrange for any payment necessary to discharge any financial obligation imposed upon this State by the compact or by any supplementary agreement entered into thereunder. [L 1982, c 234, pt of 1]
 REPEALED. L 1972, c 100, 2.
 340A-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Agency" means any department, office or board or commission of the state or county government which is a part of the executive branch of that government.  "Agricultural solid waste" means the solid waste that results from the rearing of animals and the harvesting of crops.  "Collector" means any person or governmental agency which has been licensed to remove refuse in accordance with applicable ordinances and regulations.  "County" shall include each county of the State, including the city and county of Honolulu.  "Director" means the director of the department of health.  "Generator" means any person or governmental agency which generates solid waste.  "Incinerator" means an engineered combustion device specifically designed for volume reduction by controlled burning of combustible solid waste.  "Landfill" means a land area used for the disposal of solid waste.  "Operator" means any person or governmental agency which accepts solid waste for processing, disposing, or transferring at an incinerator, landfill site, resource recovery facility or transfer station.  "Owner" means any person or governmental agency which shall have title to solid waste.  "Resource recovery facility" means a facility in which solid waste is reprocessed into new products in such manner that original products lose their identity.  "Solid waste" means garbage, refuse and other discarded solid materials, including solid waste materials resulting from industrial and commercial operations, and from community activities. Solid waste does not include solid or dissolved material in domestic sewage or other substances in water sources, such as silt, dissolved or suspended solids in industrial waste effluents, dissolved materials in irrigation return flows or other water pollutants. This definition is also intended to include liquid waste materials such as waste oil, paints, and solvents.  "Source separated waste" means recyclable waste materials which are set aside at their point of generation for segregated collection and transport to specialized waste processing sites or final manufacturing markets.  "Transfer station" means a supplemental transportation facility used as an adjunct to solid waste route collection vehicles, which facility may be fixed or mobile and may include recompaction of solid waste. [L 1976, c 184, pt of 2; am L 1979, c 151, 2] Revision Note  Numeric designations deleted and definitions rearranged.
 340A-2 Ownership of solid waste. Unless otherwise provided by county ordinance or federal regulation, the owner of solid waste shall be:  (1) The generator of the solid waste until the solid waste is collected;  (2) The collector until the solid waste is deposited with an operator;  (3) In the absence of a collector, the generator of the solid waste until the solid waste is deposited with an operator; or  (4) The operator upon acceptance of the solid waste. [L 1976, c 184, pt of 2; am L 1982, c 19, 1]
 340A-3 Disposal of solid waste. (a) The county agency responsible for the collection and disposal of solid waste may require that all solid waste transported by the county agency, collectors, businesses or individuals be disposed of at facilities or in areas designated by the county agency if it is found to be in the best public interest; provided that agricultural solid waste and source separated waste transported for recycling purposes shall not be subject to the provisions of this section; and provided further that if regional transfer stations are designated, transportation to the stations shall be considered so as to minimize the operating costs of the collector.  The best public interest shall be found if disposal at the designated facilities or areas will:  (1) Result in reusable materials being recovered from solid waste; or  (2) Achieve the solid waste volumes necessary to meet a resource recovery facility's minimum operating requirements; or  (3) Lessen the demand for landfill sites; or  (4) Conserve natural resources.  (b) For a county that has a resource recovery facility in use or when the design for such a facility has begun, the director shall not grant a permit for other solid waste disposal activities including landfills, for a term extending beyond the planned operational date for the resource recovery facility unless the other disposal activity is to be used for one or more of the following:  (1) Disposal of ash or residue from a resource recovery facility;  (2) Disposal of solid waste which, because of its chemical or physical characteristics, is not suitable for processing at a resource recovery facility;  (3) Provide an emergency backup or overflow capacity for a resource recovery facility;  (4) Provide for solid waste disposal for those areas not served by a resource recovery facility as designated by the county agency responsible for the collection and disposal of solid waste. [L 1979, c 151, 3] Revision Note  Subsection (a) designation added.
  340B-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Association of boards of certification for operating personnel in water and wastewater utilities" means that organization which serves as an information center for certification activities, recommends minimum standards and guidelines for the classification of potable water supply and wastewater systems and facilities and for certification of operators, facilitates reciprocity between state programs, and assists authorities in establishing new certification programs and upgrading existing programs.  "Board" means the board of certification established by section 340B-4.  "Director" means the director of health.  "Operator" means any individual who operates a wastewater treatment plant, or a major segment of a wastewater treatment plant.  "Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, municipality, or any other legal entity.  "Supervisor" means, where shift operation is not required, any individual who has direct responsibility for the operation of a wastewater treatment plant or who supervises operators of such a plant. Where shift operation is required, "supervisor" means any individual who has direct responsibility for active daily on-site technical and administrative supervision, and active daily on-site charge of an operating shift, or a major segment of a wastewater treatment plant.  "Wastewater treatment plant" means the various facilities used in the treatment of wastewater, including a wastewater reclamation plant, but excluding a private sewage treatment plant with actual flows greater than 2.0 million gallons per day, with a valid discharge permit issued pursuant to chapter 342, and without a record of adjudged violations of any permit conditions at any time for the life of the permit. [L 1978, c 169, pt of 2] Note  Chapter 342 referred to in text is repealed. Revision Note  Numeric designations deleted and definitions rearranged.
  340B-10 Criminal penalties. Any individual who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter, or by any rule or regulation adopted under this chapter shall be guilty of a petty misdemeanor. [L 1978, c 169, pt of 2]
  340B-11 Powers and duties of the board. To carry out the provisions and purposes of this chapter, the board shall:  (1) Perform any and all acts and adopt, amend, or repeal such rules as it finds necessary or appropriate;  (2) Enter into agreements, contracts, or cooperative arrangements, under such terms and conditions as deemed appropriate with other state, federal, or interstate agencies, municipalities, educational institutions, or other organizations or individuals;  (3) Receive financial and technical assistance from the federal government and other public or private agencies;  (4) Participate in related programs of the federal government, other states, interstate agencies, or other public or private agencies or organizations;  (5) Furnish upon request to federal, state, or interstate agencies, municipalities, educational institutions and other organizations and individuals, reports, information, and materials relating to the certification program authorized by this chapter;  (6) Revoke, suspend, or refuse to renew any certificate of any individual following a hearing before the board of the individual or the individual's designated representative, when it is determined that the individual has practiced fraud or deception; that reasonable care, judgment, or the application of the individual's knowledge or ability was not used in the performance of the individual's duties; or that the individual is incompetent or unable to properly perform the individual's duties; provided that the board gives the person concerned notice and hearing in conformity with chapter 91;  (7) Delegate those duties and responsibilities the board may deem appropriate for the purpose of administering requirements of this chapter;  (8) Establish and collect such fees for application, conduct examinations, issue or renew certificates as are necessary for the support of this chapter, and deposit all fees collected into the wastewater treatment certification board special fund; and  (9) Oversee the development and implementation of a continuous training program if that is necessary to carry out this chapter. [L 1978, c 169, pt of 2; gen ch 1985; am L 1999, c 238, 2]
  340B-12 Annual report. Within twelve months from June 2, 1978, and annually thereafter, the board shall submit to the governor, through the director, a report summarizing the actions taken under this chapter, and the effectiveness of such actions and such information and recommendations, including legislative recommendations, as deemed appropriate. [L 1978, c 169, pt of 2] Revision Note  "June 2, 1978" substituted for "the effective date of this chapter".
  340B-13 Reciprocity. (a) On or after June 2, 1978, certification of operators by any state which, as determined by the board, accepts certifications made or certification requirements deemed satisfactory pursuant to this chapter, shall be accorded reciprocal treatment and shall be recognized as valid and sufficient within the purview of this chapter, if in the judgment of the board the certification requirements of such state are substantially equivalent to the requirements of this chapter or any rules or regulations adopted hereunder and providing further that reciprocal privileges are granted to certified operators of this State.  (b) In making determinations pursuant to subsection (a) of this section, the board may consider any generally applicable criteria and guidelines developed by the association of boards of certification for operating personnel in water and wastewater utilities. [L 1978, c 169, pt of 2] Revision Note  "June 2, 1978" substituted for "the effective date of this chapter".
  340B-2 Classification. The board shall classify all wastewater treatment plants. Cesspool and septic tank facilities connected to an individual household shall be exempt from classification. Industrial facilities for treatment of process water from oil refineries and sugar mills shall be exempt from classification provided such waste streams contain no domestic component and further provided that they do not discharge to a municipal collection, treatment, or disposal system. Application for exemption from classification of other industrial wastewater treatment facilities may be made to the director. In classifying or exempting from classification wastewater treatment, the board shall consider the applicable provisions in chapter 38 of the department of health regulations regarding wastewater treatment facilities and any rules and regulations of the department of health pertaining to the control of underground injection of wastewater. The classification shall take due regard to size and type, character of wastewater to be treated, other physical conditions affecting such wastewater treatment plants, and the skill, knowledge and experience required of an operator. [L 1978, c 169, pt of 2]
  340B-21 REPEALED. L 1999, c 193, 11.
  340B-3.5 Wastewater treatment certification board special fund. (a) There is established in the state treasury a special fund to be known as the wastewater treatment certification board special fund. The following moneys collected by the board shall be deposited into the special fund:  (1) Registration fees for examinations;  (2) Renewal fees;  (3) Reciprocity fees; and  (4) Temporary certificates fees. All interest earned or accrued on moneys deposited into the special fund shall become a part of the special fund.  (b) All moneys paid into the special fund shall be expended by the board to finance its operations. [L 1999, c 238, 1]
 340B-3 Certification. (a) Upon board approval the director shall issue certificates entitling qualified individuals to operate wastewater treatment plants. Each certificate shall indicate the class of wastewater treatment plant for which the individual is qualified.  (b) The director shall issue a certificate to each applicant who, on June 2, 1978, holds a valid certificate issued to the applicant pursuant to the voluntary program, conducted by the Hawaii water pollution control association for certification of operators of wastewater treatment plants in this State; provided that such applicant files an application with the director.  (c) The director may issue a certificate, without requiring a qualifying examination therefor, to an applicant who is an operator satisfactorily operating a wastewater treatment plant on June 2, 1978; provided that such certificate shall be valid only for the operation of that wastewater treatment plant or a similar wastewater treatment plant. [L 1978, c 169, pt of 2; am L 1979, c 72, 1; gen ch 1985] Revision Note  "June 2, 1978" substituted for "the effective date of this chapter".
  340B-4 Board of certification. (a) A state board of certification of nine members shall be appointed by the governor to carry out this chapter. The board shall be placed, for administrative purposes, in the department of health. The board shall consist of the following:  (1) Four individuals who shall be employed in a wastewater treatment plant either as a certified operator or certified supervisor of a wastewater treatment plant. Three of the individuals must be employed in the outer island counties; one individual from the county of Hawaii, one from the county of Kauai, and one from the county of Maui.  (2) One individual who is an active member of the Hawaii water pollution control association.  (3) One individual who is a professional engineer in private practice, preferably specializing in sanitary engineering.  (4) One individual who is a member of the engineering (environmental or sanitary) faculty of a university or college in the State.  (5) One individual from the state agency responsible for the State's water quality program.  (6) One individual from the private sector interested in the field of water pollution control.  (b) The foregoing members shall serve for four-year terms except that of the initial appointments, one shall be for one year, two shall be for two years, two shall be for three years, and four shall be for four years.  (c) The members of the board shall meet for an organizational meeting at the call of the director, within forty-five days of their appointment and thereafter at least twice a year at such time and place as may be provided by rules and regulations adopted by them. The members of the board shall annually elect one of the board members to serve as chairperson. Additional meetings may be called by the chairperson as deemed necessary. Notice of such meeting shall be given all members in writing at least ten days prior to the date of the meeting.  (d) The governor shall fill any vacancy in the board and may remove any member for cause.  (e) Board members shall be reimbursed for expenses incurred in the performance of their duties. [L 1978, c 169, pt of 2]
  340B-5 Association of certification authorities. The board may, when taking action pursuant to sections 340B-2, 340B-3, and 340B-7 of this chapter, consider generally applicable criteria and guidelines developed by the association of boards of certification for operating personnel in water and wastewater utilities. [L 1978, c 169, pt of 2]
  340B-6 Certification requirement. All classified wastewater treatment plants whether publicly or privately owned, used or intended for use by the public or private persons, shall at all times be under the direct supervision of an individual whose competency is certified to by the director in a classification corresponding to the classification of the wastewater treatment plant to be supervised. [L 1978, c 169, pt of 2]
  340B-7 Regulations. The board shall adopt such rules and regulations as may be necessary for the administration of this chapter, and which shall include at least the following provisions:  (1) The basis for classification of wastewater treatment plants as required by section 340B-2;  (2) Criteria for the qualification of applicants for operator certification corresponding to each of the classifications referred to in paragraph (1) of this section;  (3) Procedures for examination of candidates and renewal of certificates; and  (4) Procedures for the revocation of certificates. [L 1978, c 169, pt of 2]
  340B-8 Prohibited acts. It shall be unlawful:  (1) For any wastewater treatment plant to be operated unless the operator is duly certified under this chapter;  (2) For any individual to perform the duties of an operator without being duly certified under this chapter. [L 1978, c 169, pt of 2]
  340B-9 Injunctions and civil penalty. Any person who violates any provision of this chapter, or any rules, regulations, criterion, procedure, or certificate issued hereunder may, in a legal action commenced by the board:  (1) Be enjoined from continuing such violation; and  (2) Be subject to a civil penalty of not less than $100 a day and not greater than $200 a day for each day of continuing violation. [L 1978, c 169, pt of 2]
Note Part heading added by L 1987, c 297, 2(1).  340E-1 Definitions. As used in this chapter:  "Administrator" means the administrator of the United States Environmental Protection Agency.  "Contaminant" means any physical, chemical, biological, or radiological substance or matter in water.  "Department" means the department of health.  "Director" means the director of health or the director's authorized agent.  "Federal Act" means the Safe Drinking Water Act, Public Law 93-523, as amended by the Safe Drinking Water Act Amendments of 1986, Public Law 99-339, and the Safe Drinking Water Act Amendments of 1996, Public Law 104-182. This Act is also known as Title XIV of the Public Health Service Act (42 U.S.C.  300f et seq.).  "Federal agency" means any department, agency, or instrumentality of the United States.  "Injection" means the subsurface emplacement of any material, liquid, semi-solid, or solid, or any admixture thereof, which may add a contaminant to underground waters.  "National primary drinking water regulations" means primary drinking water regulations promulgated by the administrator pursuant to the Federal Act.  "Person" means an individual, corporation, company, association, partnership, county, city and county, state, or federal agency.  "Primary drinking water regulation" means a regulation or rule which:  (1) Applies to public water systems;  (2) Specifies contaminants which, in the judgment of the director, may have any adverse effect on the health of persons;  (3) Specifies for each contaminant either:  (A) A maximum contaminant level if, in the judgment of the director, it is economically and technologically feasible to ascertain the level of such contaminant in public water systems; or  (B) If, in the judgment of the director, it is not economically or technologically feasible to ascertain the contaminant level[,] each treatment technique known to the director which leads to a reduction in the level of such contaminant sufficient to satisfy the requirements of section 340E-2; and  (4) Contains criteria and procedures to assure a supply of drinking water which dependably complies with such maximum contaminant levels, including accepted methods for quality control and testing procedures to insure compliance with such levels and proper operation and maintenance of the system, and requirements as to:  (A) The minimum quality of water which may be taken into the system; and  (B) Siting for new facilities for public water systems.  Quality control and testing procedures published in the Federal Register as guidance by the administrator may be adopted by the director by rule as an alternative for public water systems to the quality control and testing procedures listed in the corresponding and previously promulgated federal primary drinking water regulation.  "Public water system" means a system which provides water for human consumption through pipes or other constructed conveyances if the system has at least fifteen service connections or regularly serves at least twenty-five individuals. Such term includes:  (1) Any collection, treatment, storage, and distribution facilities controlled by the system and used primarily in connection with the system; and  (2) Any collection or pretreatment storage facilities not under the control of, but which are used primarily in connection with the system.  "Secondary drinking water regulation" means a regulation or rule which applies to public water systems and which specifies the maximum contaminant levels which, in the judgment of the director, are requisite to protect the public welfare.  "Supplier of water" means any person who owns or operates a public water system. [L 1976, c 84, pt of 1; gen ch 1985; am L 1987, c 165, pt of 1; am L 1997, c 218,  4, 10]
  340E-2.5 Capacity development. The director may adopt rules to ensure that public water systems demonstrate technical, managerial, and financial capacity with respect to each state primary drinking water regulation in effect, or likely to be in effect, when the systems supply drinking water or commence operations.  [L 1997, c 218, pt of 3]
  340E-2 Drinking water standards. (a) The director shall promulgate and enforce State Primary Drinking Water Regulations and may promulgate and enforce State Secondary Drinking Water Regulations. State Primary Drinking Water Regulations shall protect health to the extent feasible, using technology, treatment techniques, and other means which are generally available, taking cost into consideration. Maximum contaminant levels covered by revised National Primary Drinking Water Regulations shall be set at a level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety. Treatment techniques covered by revised National Primary Drinking Water Regulations shall require treatment necessary to prevent known or anticipated adverse effects on the health of persons. The State Primary Drinking Water Regulations shall be not less stringent than the National Primary Drinking Water Regulations in effect at that time.  (b) Subject to section 340E-3, State Primary and Secondary Drinking Water Regulations shall apply to each public water system in the State; however, such regulations shall not apply to a public water system which:  (1) Consists only of distribution and storage facilities (and which does not have any collection and treatment facilities);  (2) Obtains all of its water from, but is not owned or operated by, a public water system to which such regulations apply;  (3) Does not sell water to any person; and  (4) Is not a carrier which conveys passengers in interstate commerce.  (c) The director shall adopt and implement procedures for the enforcement of State Primary Drinking Water Regulations, including monitoring, inspection, and recordkeeping procedures, that comply with regulations established by the administrator pursuant to the Federal Act.  (d) The director may promulgate and enforce regulations relating to cross-connection and backflow prevention control.  (e) The director shall promulgate regulations establishing an underground injection control program. Such program shall prohibit any underground injection which is not authorized by a permit issued by the director; provided that the director shall not issue permits for the construction of sewage wastewater injection wells unless alternative wastewater disposal options are not available, feasible, or practical; provided further that the director may authorize underground injection by regulation. Underground injection authorized by regulation shall not endanger drinking water sources. Any underground injection control program shall:  (1) Set standards and prohibitions controlling any underground injection if such injection may result in the presence of any contaminant in underground water which supplies or may be expected to supply any public water system, and if the presence of such contaminant may result in such system's not complying with any national primary drinking water regulation or may otherwise adversely affect the health of persons;  (2) Require, in the case of a program which authorizes underground injection by permit, that the applicant for the permit satisfy the director that the underground injection will meet the requirements of paragraph (1); and  (3) Include inspection, monitoring, recordkeeping, and reporting requirements.  For purposes of this subsection:  "Injection well" means a bored, drilled, or driven shaft, or a dug hole, whose depth is greater than its widest surface dimension and into which subsurface disposal of fluid or fluids occurs or is meant to occur by means of injection.  "Sewage wastewater" means any liquid wastewater that includes sewage from humans or household operations, regardless of whether the wastewater has been treated or whether the wastewater pollutes or tends to pollute state waters. [L 1976, c 84, pt of 1; am L 1977, c 66, 1; am L 2018, c 131, 2]
  340E-21 Definitions. As used in this part, unless the context requires otherwise:  "EPA risk assessment guidelines" means guidelines developed by the United States Environmental Protection Agency for the assessment of health risks from environmental pollutants and includes, but is not limited to, Guidelines for Estimating Exposures, Guidelines for Mutagenicity Risk Assessment, Guidelines for the Health Assessment of Suspect Developmental Toxicants, and Guidelines for the Health Risk Assessment of Chemical Mixtures.  "Federal drinking water guidelines" means a proposed maximum contamination level, health advisory, or other guidance developed by the United States Environmental Protection Agency to assist a state agency in responding to a contaminant in drinking water for which no maximum contamination level (MCL) is established.  "Interim action level" means a level established by the director of health for a contaminant in a public drinking water supply for which a maximum contamination level is not established by the EPA.  "Reliable analytical data" means information approved by the director as indicating the presence of a contaminant in a water sample at or above the limit of detection and developed according to generally recognized standards of good field practices and good laboratory practices for sampling and analysis of contaminants in water. [L 1987, c 297, pt of 2(2)]
  340E-22 Establishment of interim action levels. (a) The director, upon identifying a contaminant in a public water system that may present an unacceptable health risk to the public, shall establish as soon as practicable, interim action levels for those contaminants for which maximum contamination levels have not been established by the United States Environmental Protection Agency. The director may utilize federal drinking water guidelines as interim action levels when appropriate.  (b) The director shall establish an interim action level at a level below which risks have been determined by the director to be acceptable. EPA risk assessment guidelines may be utilized to determine health risks from a chemical contaminant. When establishing an interim action level the director shall also consider water treatment or alternate remedial actions.  (c) The director shall distribute to appropriate government and private institutions for review and comment a draft risk assessment document describing the technical and scientific methods and parameters utilized to determine an interim action level. The director shall consider all comments received relating to the risk assessment and revise an interim action level if necessary. The draft risk assessment and all comments received by the director shall be made available to the public for review.  (d) The director, upon designating an interim action level for a contaminant, shall take such actions necessary to protect the health of the public including, but not limited to:  (1) Issuing guidance as may be necessary to protect the health of persons (including travelers) who are or may be users of a contaminated water supply system.  (2) Notifying the public through the media of the establishment of an interim action level. [L 1987, c 297, pt of 2(2)]
  340E-23 Rules. The director, by rules adopted under chapter 91, may establish state standards which shall supersede interim action levels. As soon as practicable and within two years of the establishment of an interim action level, and every two years thereafter until a federal or state standard is established to supersede an interim action level, the director of health shall review all available scientific information to determine whether there is sufficient basis to establish a state standard to supersede an interim action level. Prior to adopting rules to establish state standards, the director shall conduct at least one public hearing to provide information to the public on the nature of the chemical contaminant under review and to afford the public an opportunity to present information and concerns to the department relating to the chemical contaminant under review. [L 1987, c 297, pt of 2(2)]
  340E-24 Notification of contamination of underground sources of drinking water and other sources of public drinking water. (a) Suppliers of water shall notify the department by written communication of any previously undetected chemical contamination of any underground sources of drinking water or other sources of public drinking water supply within seven days of detecting the presence of a contaminant. The written communication shall contain information known to the supplier on the level of detection, location (including depth of the source), date, well construction, and analytical method used, including information on the precision, accuracy, and limit of detection of the method and any quality assurance and control procedures.  (b) The director shall notify the public through the media, and the affected water supplier by written communication, of the presence of any previously undetected chemical contaminant in underground sources of drinking water or in any public water supply within fourteen days of the development of reliable analytical data by the department of health laboratory or receipt of reliable analytical data indicating to the director that the contaminant has been detected by another laboratory. [L 1987, c 297, pt of 2(2)]
  340E-25 Preemption. No provision of this part shall in any way modify or preempt the public notification requirements as identified by state or federal regulation pertaining to violation of the safe drinking water regulations. [L 1987, c 297, 3]
  340E-3 Variances and exemptions. The director may issue variances or exemptions from the regulations issued pursuant to section 340E-2 under conditions and in a manner consistent with the public interest; however, such variances or exemptions are not permitted under conditions less stringent than the conditions under which variances and exemptions may be granted under the Federal Act. [L 1976, c 84, pt of 1]
  340E-31 Definitions. As used in this part, unless the context otherwise requires:  "American Recovery and Reinvestment Act of 2009" means the federal law, Public Law 111-5, making appropriations for various purposes, including job preservation and creation, infrastructure investment, energy efficiency and science, assistance to the unemployed, and state and local fiscal stabilization purposes.  "Drinking water fund" means the drinking water treatment revolving loan fund established by section 340E-35. [L 1997, c 218, pt of 2; am L 2009, c 98, 4]
  340E-32 Declaration of policy. The State's policy is to protect and improve drinking water quality by financing eligible projects consistent with applicable federal and state laws. [L 1997, c 218, pt of 2]
  340E-33.5 Use of American Recovery and Reinvestment Act of 2009 and other federal moneys. (a) The director may provide financial assistance to public water systems for the construction of necessary drinking water infrastructure projects, through the drinking water fund, using moneys from the American Recovery and Reinvestment Act of 2009 and other applicable federal acts.   (b) The director may establish a separate account within the drinking water fund and assign to that account federal moneys appropriated under federal laws that authorize principal forgiveness, zero and negative interest loans, and grants, including the American Recovery and Reinvestment Act of 2009 and other applicable federal acts. The director may use those moneys and in so doing may include additional requirements and subsidization not applicable to the remainder of the drinking water fund, including forgiveness of principal, zero and negative interest loans, and grants to public water systems that meet eligibility requirements for the drinking water fund.   (c) The director shall certify that a project is entitled to priority over other eligible projects on the basis of drinking water quality and financial needs, as well as a preference to those projects that can be started and completed expeditiously as stipulated under the American Recovery and Reinvestment Act of 2009 and other applicable federal acts.  (d) Among eligible projects, the director may also give priority to projects that incorporate renewable energy, energy efficiency, and conservation measures in drinking water infrastructure, to the extent allowed by federal law.  (e) Each project receiving financial assistance shall conform with the conditions for drinking water project financial assistance under section 340E-37(a). [L 2009, c 98, 2]
  340E-33 Powers and duties. (a) The director may approve grants, loans, and other financial assistance consistent with this part and the Federal Act to eligible public water systems in the State.  (b) The director may enter into any necessary or required agreement and give or make any necessary or required assurance, designation, or certification with or to any person in order to receive payments or to make or provide any financial assistance in conformance with the Federal Act.  (c) The director may enter into grant agreements with the administrator of the United States Environmental Protection Agency and accept drinking water fund capitalization and other grants. Federal capitalization grants shall be used only for the drinking water fund and other uses allowed by the Federal Act (e.g., section 1452(a)(2), (a)(3), (d), (g)(2), and (k) of the Federal Act).  (d) The director may adopt rules pursuant to chapter 91 for the purposes of this part, including rules setting fees for loans and other financial assistance issued through the drinking water fund and penalties for default of loans or other financial assistance.  (e) The director shall establish fiscal controls and accounting procedures at least sufficient to assure proper accounting for appropriate accounting periods of payments, disbursements, revenues, and fees received and made for fund balances at the beginning and end of the accounting period. Federal funds in the drinking water fund shall be kept in a separate account or series of accounts from the account or accounts for state funds in the drinking water fund.  (f) The director may perform any act considered reasonably necessary, advisable, or expedient for the administration of this part or the advancement of the purposes of this part.  (g) The director may create one or more separate accounts or subaccounts within the drinking water fund and may specify any conditions applicable to the transfer of moneys and securities among such accounts and subaccounts.  (h) The director may create one or more separate accounts or subaccounts outside the drinking water fund to handle funds for programs and administrative expenses consistent with the Federal Act, and the director may specify any conditions applicable to the transfer of moneys and securities among such accounts and subaccounts and to the drinking water fund.  (i) Moneys in accounts outside the drinking water fund may be placed in interest bearing investments or otherwise invested at the discretion of the director until such time as the moneys may be needed. All interest accruing from the investment of these moneys shall be credited to accounts established under this part as the director considers appropriate.  (j) Not less than twenty days prior to the convening of each regular session of the legislature, the director shall submit to the legislature a financial report addressing the operations of the drinking water fund during the last completed fiscal year, including information on each grant, loan, or other financial assistance made during that year. The report shall include:  (1) The name of the recipient;  (2) The effective date of the financial assistance;  (3) The amount provided; and  (4) The intended or actual use of the funds. [L 1997, c 218, pt of 2]
  340E-34 Grants. (a) The director may make grants to public water systems from state funds as authorized and appropriated by the legislature for the construction of necessary water treatment works or other related drinking water projects. Grants shall not be made from the drinking water fund.  (b) The director shall coordinate the granting of state funds with available federal funds for the same purpose. Grants involving federal funds shall be consistent with federal law.  (c) The director may allocate grants to drinking water projects on the basis of existing health concerns. No grant shall be made for any project unless:  (1) The project conforms with the state grant plan to provide safe drinking water;  (2) The project is certified by the director as being entitled to priority over other eligible projects on the basis of financial as well as drinking water quality needs; and  (3) In the case of water treatment works, the applicant for the grant commits to maintain the water treatment plant efficiently and properly after its construction. [L 1997, c 218, pt of 2]
  340E-35 Drinking water treatment revolving loan fund; establishment, purpose. There is established in the state treasury a fund to be known as the drinking water treatment revolving loan fund to be administered by the director. The fund shall be administered, operated, and maintained to remain available in perpetuity to provide loans and other financial assistance to eligible public water systems for projects or activities eligible under this part and the Federal Act. [L 1997, c 218, pt of 2]
  340E-36 Drinking water fund; uses and limitations; types of assistance. (a) Moneys in the drinking water fund may be used only as allowed and limited by sections 1452(a)(2) and (3), 1452(d), and 1452(k)(1) and (2) of the Federal Act and this part. Such uses include loans and other financial assistance for facilitating compliance with applicable national primary drinking water regulations or otherwise significantly furthering the health protection objectives of the Federal Act.  (b) Moneys in the drinking water fund may be used only:  (1) To provide, make, and condition loans;  (2) To buy or refinance debt obligations of a municipality, as defined by the Federal Act, at or below market interest rates if the debt obligation is incurred after July 1, 1993;  (3) To guarantee or purchase or provide insurance for a public water system obligation if such action would improve credit market access or reduce interest rates applicable to the obligation;  (4) 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 fund;  (5) To earn interest on the amounts deposited into the drinking water fund; and  (6) To provide interest rate subsidies by depositing revolving fund moneys into interest bearing accounts in participating financial institutions that issue loans for the implementation of eligible projects under section 340E-35.  (c) Five per cent of the moneys in the drinking water fund shall be set aside for use in the geographic areas of the State serviced by water catchment systems for the purposes identified in subsection (b); provided, if no such area qualifies for use of the moneys in the drinking water fund, the moneys shall no longer be set aside and revert back as unrestricted moneys to the fund. [L 1997, c 218, pt of 2; am L 2002, c 132, 2]
  340E-37 Drinking water fund; conditions. (a) No loan or other financial assistance shall be made from the drinking water fund for any project unless:  (1) The project conforms with the state intended use plan to provide safe drinking water which meets section 1452 of the Federal Act;  (2) The project is certified by the director as being entitled to priority over other eligible projects on the basis of financial as well as drinking water quality needs; and  (3) In the case of water treatment works, the applicant for the loan or other financial assistance commits to maintain the water treatment works efficiently and properly after its construction.  (b) Except for subsidies to disadvantaged communities made consistently with section 1452(d) of the Federal Act, all loans from the drinking water fund shall:  (1) Be made at or below market interest rates, including interest free loans;  (2) Require payments of principal and interest with repayment commencing not later than one year after completion of the project for which the loan is made, and be fully amortized not later than twenty years after project completion, except that for disadvantaged communities an extended repayment term may be provided as allowed by the Federal Act;  (3) Require the recipient of the loan to 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 loans. For a county, the dedicated source may be a pledge of the county's full faith and credit (a general obligation payable from its general fund), of special assessments, of revenues from an undertaking, system or improvements, including user charges, or of any other source of revenue; and  (4) Be repaid, both principal and any interest, to the credit of the drinking water fund. [L 1997, c 218, pt of 2]
  340E-38 Drinking water fund; deposits. The following may be deposited into the drinking water fund:  (1) Federal capitalization grant funds and other federal grants, loans, or appropriations;  (2) Appropriations by the legislature to the drinking water fund;  (3) Payments of principal and interest, matching funds, and other amounts made by public water systems under loans or other agreements entered into with the director under this part;  (4) Fees for loans and other items;  (5) Moneys paid to the drinking water fund as a result of court-ordered awards of judgments;  (6) Moneys paid to the drinking water fund in court-approved or out-of-court settlements;  (7) All interest attributable to investment of moneys deposited in the drinking water fund; and  (8) All moneys allotted or directed to the drinking water fund from other sources. [L 1997, c 218, pt of 2]
  340E-39 Drinking water fund; fees. (a) If established, fees shall cover the costs of current activities, including the issuance of loans and other financial assistance, monitoring of loans and other financial assistance repayments and conditions, technical review of the planning and design documents, monitoring of construction activities, conducting operation and maintenance inspections of drinking water facilities, and activities of the drinking water fund under the Federal Act and shall be used exclusively to support the activities of the drinking water fund.  (b) All moneys collected as fees shall be deposited into an administrative expense account or accounts as needed to comply with the Federal Act and shall be used exclusively to support the activities of the drinking water fund. [L 1997, c 218, pt of 2]
  340E-4.5 Tampering with public water systems, penalties. (a) Any person who tampers with a public water system, attempts to tamper with a public water system, or threatens to tamper with a public water system shall be imprisoned for not more than five years and fined an amount not exceeding $500,000. If the person is an individual, the fine shall not exceed $250,000.  (b) Any person who tampers, attempts to tamper, or threatens to tamper with a public water system shall be civilly penalized not more than $50,000.  (c) For the purposes of this section, the term "tamper" shall mean:  (1) To introduce a contaminant into a public water system with the intention of harming persons; or  (2) To otherwise interfere with the operation of a public water system with the intention of harming persons. [L 1987, c 165, pt of 1]
  340E-4.6 Inspection of premises. The director, in accordance with rules adopted pursuant to chapter 91, may enter and inspect any facility of a supplier of water to determine whether such supplier is acting in compliance with this part. [L 1987, c 165, pt of 1] Revision Note  "Part" substituted for "chapter".
  340E-4.7 Notification to users of potential lead contamination. Before June 19, 1988, every public water system shall identify and provide notice to persons that may be affected by lead contamination of their drinking water where such contamination results from either the lead content in the construction materials of the public water distribution system or corrosivity of the water supply sufficient to cause leaching of lead, or both. The notice shall provide a clear and readily understandable explanation of the following:  (1) The potential sources of lead in the drinking water;  (2) The potential adverse health effects;  (3) The reasonably available methods of mitigating known or potential lead content in drinking water;  (4) Any steps the system is taking to mitigate lead content in drinking water; and  (5) The necessity for seeking alternative water supplies, if any.  The failure to comply with the notification required in this section shall subject the supplier of water to the same penalties under section 340E-6. [L 1987, c 165, pt of 1]
  340E-4.8 Water catchment systems. (a) The department shall establish a program to conduct annual testing of water from water catchment systems for lead and copper. Any resident residing in a legal dwelling which relies on a water catchment system for the resident's water needs shall be eligible to participate in the program, subject to the department's procedures and guidelines and the availability of program funds. Residents shall utilize a certified private analytical laboratory specified by the department or the department may conduct the tests. Participating residents shall pay $25 for the tests and the department shall cover the remainder of the testing cost. One set of tests a year for each legal dwelling may be requested under this program.  (b) The department shall establish procedures and guidelines for the testing which shall:  (1) Identify sampling and analytical protocols;  (2) Specify report and notice requirements; and  (3) Determine participation eligibility procedures and requirements.  (c) The department shall establish a nonregulatory program that provides technical assistance to any resident residing in a legal dwelling which relies on a water catchment system for the resident's water needs for the purpose of improving water quality in that system. To the extent practicable, the department shall assist the resident by recommending practical and affordable methods to improve water quality, based on the specific design and conditions of the water catchment system. [L 1997, c 218, pt of 3]
 340E-4 Imminent hazards. The director, upon learning that a contaminant is present in or is likely to enter a public water system or an underground source of drinking water and may present an imminent and substantial danger to the public, may take such actions necessary to protect the health of the public. The actions which the director may take include but are not limited to:  (1) Issuing such orders as may be necessary to protect the health of persons who are or may be users of such system (including travelers), including requiring the provision of alternative water supplies by persons who caused or contributed to the endangerment; and  (2) Commencing a civil action for appropriate relief, including a restraining order or permanent or temporary injunction. [L 1976, c 84, pt of 1; am L 1984, c 268, 1; am L 1987, c 165, pt of 1]
  340E-40 Drinking water fund; interest and investment on accounts. Moneys in the drinking water fund shall be placed in interest bearing investments or otherwise invested at the discretion of the director until such time as the moneys may be needed. All interest accruing from the investment of these moneys shall be credited to the drinking water fund. [L 1997, c 218, pt of 2]
  340E-41 Compliance. The failure or inability of any public water system to receive funds under this part or any other loan or grant program, or any delay in obtaining the funds, shall not alter the obligation of the public water system to comply in a timely manner with all applicable requirements of this chapter or rules adopted under this chapter. [L 1997, c 218, pt of 2]
  340E-5 Plan for emergency provision of water. The director shall promulgate a plan for the provision of safe drinking water under emergency circumstances. When the director determines that emergency circumstances exist in the State with respect to a need for safe drinking water, the director may take such actions as necessary to provide water where it otherwise would not be available. [L 1976, c 84, pt of 1; gen ch 1985]
  340E-6 Notification of users and department. (a) Whenever a public water system:  (1) Fails to comply with an applicable maximum contaminant level, treatment technique, or testing procedure requirement of a state primary drinking water regulation;  (2) Fails to perform monitoring required by regulations adopted by the director;  (3) Is subject to a variance granted for an inability to meet a maximum contaminant level requirement;  (4) Is subject to an exemption; or  (5) Fails to comply with the requirements of any schedule prescribed by such a variance or exemption; the public water system shall promptly notify the department, and in the case of a violation under [paragraph (1)], the local communications media, of the conditions and the extent to which they may impose adverse effects on public health and the corrective action being taken when appropriate.  (b) Notice of any violation determined by the director as posing a serious adverse health effect as a result of short term exposure shall be given as soon as practicable, but not later than twenty-four hours after the violation.  (c) The director shall prescribe by rules the form, content, and manner for giving notice. The rules may contain such additional public notification requirements as the director determines are necessary to best effectuate the purpose of this chapter, including consumer confidence reports, and may also contain alternative notice requirements as allowed by the Federal Act. [L 1976, c 84, pt of 1; am L 1977, c 66, 2; am L 1984, c 268, 2; am L 1987, c 165, pt of 1; am L 1997, c 218, 5]
 340E-7 Prohibited acts. (a) No supplier of water shall violate any rule adopted pursuant to section 340E-2.  (b) No supplier of water shall violate any condition or provision of a variance, exemption, permit, or other written authorization issued under this part.  (c) No supplier of water shall violate any requirement of an emergency plan promulgated pursuant to section 340E-5.  (d) No supplier of water shall violate any rule adopted under section 340E-6 or disseminate any false or misleading information with respect to notices required pursuant to section 340E-6 or with respect to remedial actions undertaken to achieve compliance with state primary drinking water regulations.  (e) No person shall violate any order issued by the director pursuant to this part.  (f) No person shall cause a public water system to violate the state primary drinking water regulations.  (g) No person shall violate underground injection control rules adopted pursuant to this part.  (h) No person shall fail or refuse to comply with the director's authority to inspect the premises of a supplier of water pursuant to section 340E-4.6.  (i) No person shall install or repair any public water system or any plumbing in a residential or nonresidential facility providing water for human consumption which is connected to a public water system with any pipe, solder, flux, plumbing fittings, or fixtures that are not lead free. "Lead free" with respect to solders and flux means containing not more than 0.2 per cent lead, with respect to pipes and pipe fittings means containing not more than 8.0 per cent lead and with respect to plumbing fittings and fixtures means those in compliance with National Sanitation Foundation Standard 61, section 9. This subsection shall not apply to leaded joints necessary for the repair of cast iron pipes.  (j) No person shall violate rules on public water system capacity adopted pursuant to this part. [L 1976, c 84, pt of 1; am L 1981, c 12, 1; am L 1987, c 165, pt of 1; am L 1997, c 218, 6; am L 2001, c 81, 1] Revision Note  In subsections (b), (e), and (g), "part" substituted for "chapter".
  340E-8 Penalties and remedies. (a) Any person who violates section 340E-7 shall be administratively or civilly penalized not more than $25,000 per day for each violation.  (b) Any person who wilfully violates section 340E-7(g) shall be criminally fined not more than $25,000 per day for each violation and may be imprisoned for not more than three years.  (c) Any person may be enjoined from any violation of section 340E-7.  (d) The director may enforce this part in either administrative or judicial proceedings:  (1) Administrative. If the director determines that any person has violated or is violating any provision of this part, any rule adopted thereunder, or any variance, exemption, permit, or other written authorization issued pursuant thereto, the director may have that person served with a notice of violation and an order. The notice shall specify the alleged violation. The order may require that the alleged violator do any or all of the following: cease the violation, pay an administrative penalty as specified in this section, or appear before the director at a time and place specified in the order and answer the charges complained of. The order shall become final twenty days after service unless within those twenty days the alleged violator requests in writing a hearing before the director. Upon the request, the director shall specify a time and place for the alleged violator to appear. When the director issues an order for immediate action to protect the public health from an imminent and substantial danger, the department shall provide an opportunity for a hearing within twenty-four hours after service of the order. After a hearing pursuant to this subsection, the director may affirm, modify, or rescind the director's order as the director deems appropriate. The director may institute a civil action in any environmental court of appropriate jurisdiction for the enforcement of any order issued pursuant to this subsection. In any judicial proceeding to collect the administrative penalty imposed, the director need only show that:  (A) Notice was given;  (B) A hearing was held or the time granted for a hearing expired without a request for a hearing;  (C) The penalty was imposed; and  (D) The penalty remains unpaid.  (2) Judicial. The director may institute a civil action in any environmental court of appropriate jurisdiction for injunctive and other relief to prevent violation of this part or any order or regulation issued pursuant to this part, impose and collect civil penalties, collect administrative penalties, or obtain other relief in addition to any other remedy provided for under this section.  (e) Any person who violates section 340E-6 shall be administratively or civilly penalized not more than $25,000 per day for each violation.  (f) Any person who fails to comply with any action taken by the director pursuant to section 340E-4 shall be civilly penalized not more than $25,000 for each day of failure to comply. [L 1976, c 84, pt of 1; am L 1981, c 12, 2; gen ch 1985; am L 1987, c 165, pt of 1; am L 1995, c 180, 1; am L 2000, c 84, 1]
  340E-9 Administration. The director may:  (1) Perform any and all acts necessary to carry out the purposes and requirements of this chapter;  (2) Administer and enforce the provisions of this chapter and all rules, regulations, and orders promulgated;  (3) Enter into agreements, contracts, or cooperative arrangements with any person;  (4) Receive financial and technical assistance from the federal government and other public or private agencies;  (5) Participate in related programs of any public or private agencies or organizations;  (6) Establish adequate fiscal controls and accounting procedures to assure proper disbursement of an accounting for funds appropriated or received for the purpose of carrying out this chapter;  (7) Delegate those responsibilities and duties as appropriate for the purpose of administering the requirements of this chapter;  (8) Establish and collect fees for conducting plan reviews, inspections and laboratory analyses as necessary; and  (9) Prescribe such regulations as necessary to carry out the director's function under this chapter. [L 1976, c 84, pt of 1; gen ch 1985]
  340F-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Association of boards of certification for operating personnel in water and wastewater utilities" means that organization which serves as an information center for certification activities, recommends minimum standards and guidelines for the classification of potable water supply and wastewater systems and facilities and for certification of operators, facilitates reciprocity between state programs, and assists authorities in establishing new certification programs and upgrading existing programs.  "Board" means the board of certification established by section 340F-4.  "Director" means the director of health.  "Operator" means any individual who operates a public water system or a major segment of a public water system such as a water treatment plant or distribution system.  "Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, municipality, or any other private, county, state, or federal legal entity.  "Public water system" has the same meaning as in section 340E-1.  "Supervisor" means, where shift operation is not required, any individual who has direct responsibility for the operation of a public water system or who supervises operators of such a system. Where shift operation is required, "supervisor" means any individual who has direct responsibility for active daily onsite technical and administrative supervision, and active daily onsite charge of an operating shift, or a major segment of a public water system. [L 1991, c 273, pt of 1; am L 2000, c 196, 2]
  340F-10 Criminal penalties. Any individual who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter, shall be guilty of a misdemeanor. [L 1991, c 273, pt of 1]
  340F-11 Powers and duties of the board. To carry out the provisions and purposes of this chapter, the board shall:  (1) Perform any and all acts and adopt, amend, or repeal such rules and regulations as it finds necessary or appropriate;  (2) Enter into agreements, contracts, or cooperative arrangements, under such terms and conditions as deemed appropriate with other state, federal, or interstate agencies, municipalities, educational institutions, or other organizations or individuals;  (3) Receive financial and technical assistance from the federal government and other public or private agencies;  (4) Participate in related programs of the federal government, other states, interstate agencies, or other public or private agencies or organizations;  (5) Furnish upon request to federal, state or interstate agencies, municipalities, educational institutions and other organizations and individuals, reports, information and materials relating to the certification program authorized by this chapter;  (6) Revoke, suspend, or refuse to renew any certificate of any individual following a hearing before the board of the individual or the individual's designated representative, when it is determined that the individual has practiced fraud or deception; that reasonable care, judgment, or the application of the individual's knowledge or ability was not used in the performance of the individual's duties; or that the individual is incompetent or unable to properly perform the individual's duties; provided that the board gives the person concerned notice and hearing in conformity with chapter 91;  (7) Delegate those duties and responsibilities the board may deem appropriate for the purpose of administering requirements of this chapter;  (8) Establish and collect such fees for application, conduct examinations, issue or renew certificates as are necessary for the support of this chapter, and deposit all fees collected into the State's general fund; and  (9) Oversee the development and implementation of a continuous training program if that is necessary to carry out this chapter. [L 1991, c 273, pt of 1]
  340F-12 Reciprocity. (a) On or after June 17, 1991, certification of operators by any state which, as determined by the board, accepts certifications made or certification requirements deemed satisfactory pursuant to this chapter, shall be accorded reciprocal treatment and shall be recognized as valid and sufficient within the purview of this chapter, if in the judgment of the board the certification requirements of such state are substantially equivalent to the requirements of this chapter or any rules or regulations adopted hereunder and providing further that reciprocal privileges are granted to certified operators of this State.  (b) In making determinations pursuant to subsection (a) of this section, the board may consider any generally applicable criteria and guidelines developed by the association of boards of certification for operating personnel in water and wastewater utilities. [L 1991, c 273, pt of 1] Revision Note  "June 17, 1991" substituted for "the effective date of this chapter".
  340F-2 Classification. The board shall classify all public water systems, water treatment plants, and distribution systems, and shall define the terms "water treatment plant" and "distribution system". The classifications shall take due regard to size, complexity, and type of the water treatment facility or distribution system, character of water to be treated or distributed, and other physical conditions affecting such water treatment plants and distribution systems, and the skill, knowledge, and experience required of an operator. [L 1991, c 273, pt of 1; am L 2000, c 196, 3]
  340F-3 Certification. (a) Upon board approval the director shall issue certificates entitling qualified individuals to operate water treatment plants or distribution systems, or both. Each certificate shall indicate the class of water treatment plant or distribution system for which the individual is qualified.  (b) The director shall issue a certificate to each applicant who on June 30, 1991, has completed at least one year of satisfactory performance in the operation of a water treatment plant. This certificate shall be valid until January 1, 1994, or until a certification program has been established by the director. [L 1991, c 273, pt of 1; am L 2000, c 196, 4]
  340F-4 Board of certification. (a) A state board of certification of five members shall be appointed by the governor to carry out this chapter. The board shall be placed, for administrative purposes, in the department of health. The board shall consist of the following:  (1) Four individuals who shall be duly qualified in the fields of sanitary engineering or public water system operation; and  (2) One individual from the state agency responsible for the State's safe drinking water program.  (b) The foregoing members shall serve for four-year terms except that of the initial appointments, one shall be for one year, one shall be for two years, one shall be for three years, and two shall be for four years.  (c) The members of the board shall meet for an organizational meeting at the call of the director, within forty-five days of their appointment and thereafter at least twice a year at such time and place as may be provided by rules and regulations adopted by them. The members of the board shall annually elect one of the board members to serve as chairperson. Additional meetings may be called by the chairperson as deemed necessary. Notice of such meeting shall be given all members in writing at least ten days prior to the date of the meeting.  (d) The governor shall fill any vacancy in the board and may remove any member for cause.  (e) Board members shall be reimbursed for expenses incurred in the performance of their duties. [L 1991, c 273, pt of 1; am L 2000, c 196, 5]
  340F-5 Association of certification authorities. The board may, when taking action pursuant to sections 340F-2, 340F-3, and 340F-7, consider generally applicable criteria and guidelines developed by the association of boards of certification for operating personnel in water and wastewater utilities. [L 1991, c 273, pt of 1]
  340F-6 Certification requirement. All classified water treatment plants whether publicly or privately owned, used, or intended for use by the public or private persons, shall at all times be under the direct supervision of an individual whose competency is certified to by the director in a classification corresponding to the classification of the water treatment plant to be supervised. All classified distribution systems, whether publicly or privately owned, used, or intended for use by the public or private persons, shall at all times be under the supervision of an individual whose competency is certified to by the director in a classification corresponding to the classification of the distribution system to be supervised. [L 1991, c 273, pt of 1; am L 2000, c 196, 6]
  340F-7 Rules. The board shall adopt rules as may be necessary for the administration of this chapter, which shall include at least the following provisions:  (1) The basis for classification of water treatment plants and distribution systems as required by section 340F-2;  (2) Criteria for the qualification of applicants for operator certification corresponding to each of the classifications referred to in paragraph (1);  (3) Procedures for examination of candidates and renewal of certificates; and  (4) Procedures for the revocation of certificates. [L 1991, c 273, pt of 1; am L 2000, c 196, 7]
  340F-8 Prohibited acts. It shall be unlawful:  (1) For any public water system, or major segment of a public water system such as a water treatment plant or distribution system, to be operated unless the operator is duly certified under this chapter; and  (2) For any individual to perform the duties of an operator without being duly certified under this chapter. [L 1991, c 273, pt of 1; am L 2000, c 196, 8]
  340F-9 Injunctions and civil penalty. Any person who violates any provision of this chapter, or any rules, regulations, criterion, procedure, or certificate issued hereunder may, in a legal action commenced by the board;  (1) Be enjoined from continuing such violation; and  (2) Be subject to a civil penalty of not more than $25,000 a day for each day of continuing violation. [L 1991, c 273, pt of 1]
  341-1 Findings and purpose. The legislature finds that the quality of the environment is as important to the welfare of the people of Hawaii as is the economy of the State. The legislature further finds that the determination of an optimum balance between economic development and environmental quality deserves the most thoughtful consideration, and that the maintenance of the optimum quality of the environment deserves the most intensive care.  The purpose of this chapter is to stimulate, expand and coordinate efforts to determine and maintain the optimum quality of the environment of the State. [L 1970, c 132, pt of 1]
  341-2 Definitions. As used in this chapter, unless the context otherwise requires:  "Council" means the environmental advisory council established in this chapter.  "Director" means the director of the office of planning and sustainable development.  "Office" means the office of planning and sustainable development. [L 1970, c 132, pt of 1; am L 2006, c 75, 12; am L 2021, c 152, 10 and c 153, 9] Revision Note  In definition of "center", "environmental center" substituted for "ecology or environmental center".
   341-3, 4 REPEALED. L 2021, c 152,  18, 19.
  341-5.5 Environmental advisory council; established. (a) There is created an environmental advisory council not to exceed fifteen members. Members of the environmental advisory council shall be appointed by the governor as provided in section 26-34. The environmental advisory council shall be established within the office of planning and sustainable development for administrative purposes. The term of each member shall be four years. Vacancies shall be filled for the remainder of any unexpired term in the same manner as original appointments. The environmental advisory council chairperson shall be elected by the council from among the appointed members of the council.  (b) Members shall be appointed to ensure a broad and balanced representation of educational, business, and environmentally pertinent disciplines and professions, such as the natural and social sciences, the humanities, architecture, engineering, environmental consulting, public health, and planning; educational and research institutions with environmental competence; agriculture, real estate, visitor industry, construction, and media; and voluntary community and environmental groups. The members of the environmental advisory council shall serve without compensation but shall be reimbursed for actual and necessary expenses, including travel expenses, incurred in the discharge of their duties. [L 2021, c 152, 2; am L 2021, c 153, 9]
  341-5 REPEALED. L 2006, c 75, 17. Cross References  For present provision, see 304A-1551.
  341-6 Functions of the environmental advisory council. The environmental advisory council shall serve as a liaison between the office of planning and sustainable development and the general public by soliciting information, opinions, complaints, recommendations, and advice concerning ecology and environmental quality through public hearings or any other means and by publicizing such matters as requested by the director pursuant to section 341-4(b)(3). The environmental advisory council may make recommendations concerning ecology and environmental quality to the office of planning and sustainable development and shall meet at the call of the council chairperson or the director of the office of planning and sustainable development upon notifying the council chairperson. The environmental advisory council shall monitor the progress of state, county, and federal agencies in achieving the State's environmental goals and policies and shall submit its report and recommendations for improvements concerning ecology and environmental quality to the office of planning and sustainable development, which shall include the report and recommendations in its annual report to the legislature. All state and county agencies shall cooperate with the council by responding to its requests for information. [L 1970, c 132, pt of 1; am L 1974, c 248, 1; am L 1983, c 140, 2; am L 2021, c 152, 11 and c 153, 9] Revision Note  Section "341-4(b)(3)" substituted for "341-4(b)(4)". Law Journals and Reviews  Determining the Expiration Date of an Environmental Impact Statement: When to Supplement a Stale EIS in Hawai`i. 35 UH L. Rev. 249 (2013).
 REPEALED. L 1989, c 212, 8. Note  L 1989, c 77, 4 and c 281, 2 and L 1990, c 316, 3 purport to amend 342-11 and L 1989, c 161, 2 purports to amend 342-34.
  342B-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Administrator" means the administrator of the United States Environmental Protection Agency.  "Air pollutant" has the same meaning as in the Clean Air Act, 42 United States Code section 7602 (g), and any substance designated as such by rules adopted under chapter 91.  "Air pollution" means the presence in the outdoor air of substances in quantities and for durations which may endanger human health or welfare, plant or animal life, or property or which may unreasonably interfere with the comfortable enjoyment of life and property throughout the State and in such areas of the State as are affected thereby, but excludes all aspects of employer-employee relationships as to health and safety hazards.  "Ambient air" means the general outdoor atmosphere.  "Clean Air Act" means the federal Clean Air Act of 1963 as amended (42 United States Code section 7401 et seq.).  "Compliance plan" means a plan which includes a description of how a source proposes to comply with all applicable requirements pursuant to this chapter and includes a schedule of compliance and a schedule under which the permittee will submit progress reports to the department no less frequently than every six months.  "Council" means the compliance advisory council.  "Covered source" means:  (1) Any major source;  (2) Any source subject to a standard of performance for new stationary sources as established by the director pursuant to this chapter;  (3) Any source subject to an emissions standard for hazardous air pollutants as established by the director pursuant to this chapter;  (4) Any source subject to the rules for the prevention of significant deterioration of air quality as established by the director pursuant to this chapter; and  (5) Any source in a source category designated by the director.  "Department" means the department of health.  "Director" means the director of health.  "Draft proposed permit" means the version of a permit for which the department offers public notice and an opportunity for public comment and hearing.  "Emission" means the act of releasing or discharging air pollutants into the ambient air from any source.  "EPA" means the United States Environmental Protection Agency.  "Fugitive dust" means uncontrolled emission of solid airborne particulate matter from any source other than combustion.  "Fugitive emissions" means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.  "Hazardous air pollutant" means those hazardous air pollutants listed in section 112 (b) of the Clean Air Act, as amended, 42 United States Code section 7412 (b), and any other hazardous air pollutant designated by rules.  "Major source" means any stationary source, or any group of stationary sources that are located on one or more contiguous properties, and are under common control, belonging to a single major industrial grouping and that emits or has the potential to emit, considering controls:  (1) Any hazardous air pollutant, except radionuclides, in the aggregate of ten tons per year or more, twenty-five tons per year or more of any combination, or such lesser quantity as the director may establish by rule;  (2) One hundred tons per year or more of any regulated air pollutant, including fugitive emissions of any such regulated air pollutant as the director may establish by rule; and  (3) For radionuclides, "major source" shall have the meaning specified by the director by rule.  "Owner or operator" means any person who owns, leases, operates, controls, or supervises a stationary source.  "Party" means each person named as party or properly entitled to be a party in any court or agency proceeding.  "Permit" means written authorization from the director to construct, modify, relocate, or operate any regulated air pollutant source. A permit authorizes the permittee to cause or allow the emission of a regulated air pollutant in a specified manner or amount, or to do any act, not forbidden by this chapter or by rules adopted pursuant to this chapter, but requiring review by the department.  "Permit program" means the program established pursuant to part III of this chapter.  "Person" means any individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state, county, commission, political subdivision of the State, or, to the extent they are subject to this chapter, the United States or any interstate body.  "Proposed permit" means the version of a permit that the department forwards to the administrator for review.  "Regulated air pollutant" means:  (1) Nitrogen oxides or any volatile organic compound;  (2) Any air pollutant for which a national or state ambient air quality standard has been adopted; and  (3) Any air pollutant that is established by rule pursuant to this chapter pertaining to standards of performance for new stationary sources and emissions standards for hazardous air pollutants.  "SBAP" means the small business assistance program established by section 342B-61.  "Small business ombudsman" means the small business ombudsman for air pollution control established pursuant to section 342B-63.  "Small business stationary source" means a stationary source that:  (1) Is owned or operated by a person that employs one hundred or fewer individuals;  (2) Is independently owned and operated and not dominant in its field or as otherwise defined by the federal Small Business Act (42 United States Code section 631 et seq.);  (3) Is not a major stationary source;  (4) Does not emit fifty tons or more per year of any regulated air pollutant; and  (5) Emits less than seventy-five tons per year of all regulated air pollutants.  "Source" means any property, real or personal, which emits or may emit any air pollutant.  "Stationary source" means any piece of equipment or any activity at a building, structure, facility, or installation that emits or may emit any air pollutant.  "Variance" means special written authorization from the director to cause or emit any regulated air pollutant in a manner or in an amount in excess of applicable standards, or to do an act that deviates from the requirements of rules or standards adopted pursuant to this chapter. [L 1992, c 240, pt of 1; am L 1993, c 208,  2, 11] Note  The amendment made by L 2014, c 218, 8 is not included in this section. Case Notes  "Fugitive dust" definition cited, where court determined that fugitive dust was a pollutant. 307 F. Supp. 2d 1170.
  342B-11 Prohibition. No person, including any public body, shall engage in any activity which causes air pollution or causes or allows the emission of any regulated air pollutant without first securing approval in writing from the director. [L 1992, c 240, pt of 1]
  342B-12 Specific powers of the director. The director may:  (1) Establish ambient air quality standards for the State as a whole or for any part thereof;  (2) Establish and administer any permit program;  (3) Establish by rule the control of open burning, fugitive dust, and visible emissions;  (4) Establish by rule the control of vehicular smoke emission and require the installation, use, and proper operation and maintenance of air pollution control equipment for motor vehicles;  (5) Establish and administer a program of inspection and testing of all modes of transportation except aircraft, to enforce compliance with applicable emission limitations when necessary and practicable, and to control or limit the operation of motor vehicular and other modes of transportation when the director finds pursuant to standards established by rules such modes of transportation are producing or pose an immediate danger of producing unacceptable levels of air pollution or when such control is necessary to meet applicable ambient air quality standards;  (6) Establish by rule other specific areas for control of air pollution, thereby allowing for varying conditions;  (7) Establish standards of performance or rules for existing, new, or modified stationary sources or adopt standards of performance for existing, new, or modified stationary sources as promulgated by the administrator;  (8) Establish maximum achievable control technology standards or rules for the control of hazardous air pollutants from existing, new, or modified sources or adopt maximum achievable control technology as promulgated by the administrator;  (9) Establish rules for the prevention of significant deterioration of air quality or adopt prevention of significant deterioration regulations as promulgated by the administrator; and  (10) Establish rules allowing for environmental permit shields. [L 1992, c 240, pt of 1; am L 1994, c 268, 1]
  342B-13 Public participation. (a) Except as provided in subsections (b) and (c), where public participation is deemed appropriate by the director or is required, the director shall provide for notice and opportunity for public comment as follows:  (1) The director shall make available for public inspection in at least one location in the county affected by the proposed action, or in which the source is or would be located:  (A) Information on the subject matter;  (B) All information submitted by the applicant, except for that deemed confidential;  (C) The department's analysis and proposed action; and  (D) Other information and documents deemed appropriate by the department;  (2) The director shall notify the public of the availability of information listed in paragraph (1). Public notification shall be given once in the county affected by the proposed action, or in which the source is or would be located. The director shall also post this notice on the department's web site in an easily-located manner;  (3) Public notice shall be mailed to any person, group, or agency upon request;  (4) The director shall provide a period of not less than thirty days following the date of the public notice during which time interested persons may submit written comments on the subject matter, application, department's analysis and proposed actions, and other appropriate considerations. The period for comment may be extended at the discretion of the director; and  (5) The director, at the director's sole discretion, may hold a public hearing if the public hearing would aid in the director's decision. Any person may request a public hearing. The request shall be in writing and shall be filed within the thirty-day comment period prescribed in paragraph (4) and shall indicate the interest of the party filing the request and the reasons why a hearing is warranted. The director shall give the public notice for a hearing in accordance with paragraph (2) at least thirty days in advance of the hearing date and shall conduct the hearing in the county which would be affected by the proposed action, or in which the source is or would be located.  (b) All rules shall be adopted, amended, and repealed pursuant to chapter 91. The director shall provide written notice to any person, who submitted comments during the comment period or presented testimony during the public hearing, of the final action taken by the department with respect to the rules.  (c) The director shall hold a public hearing when revising the state implementation plan required by the Clean Air Act, and the amendments thereto, and the regulations promulgated thereunder. [L 1992, c 240, pt of 1; am L 1993, c 208, 4; am L 1998, c 2, 87; am L 2000, c 150, 2]
  342B-14 Variances. (a) Every application for a variance shall be made on forms furnished by the department and shall be accompanied by a complete and detailed description of present conditions, how present conditions do not conform to applicable standards, and such other information as the department may by rule prescribe.  (b) Each application for a variance shall be reviewed in light of the descriptions, statements, plans, histories, and other supporting information submitted with the application, such additional information as may be submitted upon the request of the department, and the effect or probable effect upon the air quality standards established pursuant to this chapter.  (c) Whenever an application for a variance is approved, the department shall issue a variance authorizing the emission or discharge of an air pollutant in excess of applicable standards. No variance shall be granted by the department unless the application and the supporting information clearly show that:  (1) The continuation of the function or operation involved in the discharge of air pollution occurring or proposed to occur by the granting of the variance is in the public interest as determined in section 342B-27;  (2) The emission or discharge occurring or proposed to occur does not substantially endanger human health or safety; and  (3) Compliance with the applicable standards or rules from which a variance is sought would produce serious hardship without equal or greater benefits to the public.  (d) Any variance or renewal thereof shall be granted within the requirements of this section and for time periods and under conditions consistent with the reasons therefor, and within the following limitations:  (1) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, control, or abatement of the air pollution involved, it shall be only until the necessary means for prevention, control, or abatement becomes practicable and subject to the taking of any substitute or alternate measures that the department may prescribe. No renewal of a variance granted under this subsection shall be allowed without a thorough review of known and available means of preventing, controlling, or abating the air pollution involved;  (2) The director may issue a variance for a period not exceeding five years; and  (3) Every variance granted under this section shall include conditions requiring the grantee to perform air or discharge sampling and report the results of such sampling to the department.  (e) Any variance granted pursuant to this section may be renewed from time to time on terms and conditions and for periods not exceeding five years which would be appropriate on initial granting of a variance; provided that the applicant for renewal has met all of the conditions specified in the immediately preceding variance; and provided further that the renewal, and the variance issued in pursuance thereof, shall provide for emission or discharge not greater than that attained pursuant to the terms of the immediately preceding variance at its expiration. No renewal shall be granted except on application therefor. Any such application shall be made at least one hundred eighty days prior to the expiration of the variance. The director shall act on an application for renewal within one hundred eighty days of the receipt of such application.  (f) The director may afford a hearing in accordance with chapter 91 in relation to an application for the issuance, renewal, or modification of a variance.  (g) No variance shall be construed to prevent or limit the application of any emergency provisions and procedures provided by law.  (h) Any application for a variance shall be subject to the public participation requirements of section 342B-13. The contents of the public notice on the variance application for a variance shall include at least:  (1) The name and address of the applicant;  (2) A brief description of the applicant's activities or operations which result in the emission, or other activity described in the variance application;  (3) A short description of the location of each emission or discharge indicating whether such emission or discharge is new or existing;  (4) A brief description of the public participation procedures, including the comment period and other means by which interested persons may comment on the variance application and the department's proposed action; and  (5) The address and phone number of the state agency at which interested persons may obtain further information and may inspect a copy of the variance application and supporting and related documents. [L 1992, c 240, pt of 1]
  342B-15 Complaints; hearings; appointment of masters. The director may:  (1) Receive or initiate complaints on air pollution, hold hearings in connection with air pollution, and institute legal proceedings in the name of the State for the prevention, control, or abatement of air pollution; and  (2) Appoint a master or masters to conduct investigations and hearings. [L 1992, c 240, pt of 1]
  342B-16 Research, educational, and training programs. The director may:  (1) Conduct and supervise research programs for the purpose of determining the causes, effects, hazards, or means to monitor or abate sources of air pollution;  (2) With the approval of the governor, cooperate with, and receive money from, the federal government, or any political subdivision of the State or from private sources for the study and control of air pollution; and  (3) Conduct and supervise statewide educational and training programs on air pollution prevention, control, and abatement, including the preparation and distribution of information relating to air pollution. [L 1992, c 240, pt of 1]
  342B-17 Air quality modelers. The department may establish permanent exempt positions known as air quality modelers for the purpose of assessing the impact of air releases. The positions shall be appointed by the director without regard to chapter 76. The funds for these positions shall come from the clean air special fund established in section 342B-32. [L 1997, c 146, 3; am L 2000, c 253, 150]
 [ 342B-18] Annual reports to neighboring communities. (a) Every owner or operator of a major source within Campbell Industrial Park or Kahe Valley or every owner or operator of a geothermal facility that emits criteria air pollutants in excess of one hundred tons per year shall submit an annual report to the department within sixty days of the beginning of each year, which shall describe the following:  (1) The type and quantity of criteria pollutants emitted by the facility during the previous year;  (2) A description of controls, operating procedures, or other measures being used by the owner or operator to control emissions of these criteria pollutants.  (b) The department shall review and evaluate the information submitted under subsection (a) and produce a report. The department shall include the following information in the reports:  (1) A summary of the ambient air quality data collected for each criteria pollutant monitored;  (2) A comparison of the monitoring data collected against state and federal ambient air quality standards;  (3) Impacts of the monitored criteria pollutants' adverse effects on human health and the environment; and  (4) A report on air quality trends over a five-year period.  (c) The department shall distribute the reports described in this section on a monthly basis to adjacent neighborhood boards or community associations, or both. [L 1997, c 146, 7] Revision Note  Subsection (b) redesignated pursuant to 23G-15(1).
  342B-19 Unpermitted releases; timely notice. The department shall review the reports submitted by every owner or operator of a geothermal facility, or major source within Campbell Industrial Park or Kahe Valley, of their unpermitted releases to determine whether the release may have an adverse impact on human health. The department shall notify the neighborhood boards or community associations, or both, of the adjacent communities of unpermitted releases which may have an adverse impact on human health as soon as circumstances warrant. [L 1997, c 146, 8]
  342B-2 Administration. The department shall administer this chapter through the director. The director may delegate to any person the power and authority vested in the director by this chapter as the director deems reasonable and proper for the effective administration of this chapter, except the power to make rules. [L 1992, c 240, pt of 1]
  342B-21 Specific functions, duties, and powers of the director. The director shall have the functions, duties, and power to:  (1) Issue permits for a fixed term not to exceed five years;  (2) Ensure compliance by all sources required to have a permit with each applicable standard, regulation, or requirement provided by federal or state statutes or rules;  (3) Ensure that, upon issuance or renewal, permits incorporate emission limitations and other requirements in an applicable state implementation plan;  (4) Terminate, modify, or revoke and reissue permits for cause;  (5) Enforce permits, permit fee requirements, and the requirement to obtain a permit including the recovery of civil penalties;  (6) Ensure that permits in effect during the establishment and implementation of this new permit program will continue in effect until the permittee has applied for and obtained a permit under the new program; and  (7) Issue permits with environmental permit shields pursuant to such rules as the director may adopt. [L 1992, c 240, pt of 1; am L 1994, c 268, 2]
  342B-22 Permit and permit renewal; requirements. (a)  The owner or operator of a covered source shall obtain a permit from the department. The director may exempt any nonmajor category of covered sources from the permit obligation for a period of five years after the effective date of the rules establishing the permit program.  (b) Within twelve months after the effective date of the rules establishing the permit program, the owner or operator of a covered source shall submit to the department an application for a permit and a compliance plan.  (c) No person shall begin construction, modification, or relocation of any covered source without first obtaining a permit from the director.  (d) The director may require any person who owns, operates, or desires to construct, modify, or relocate a source other than a covered source to obtain a permit prior to the construction, modification, relocation, operation, or continued operation.  (e) Permits being renewed shall be subject to the same procedural requirements that apply to initial permit issuance, including the procedure of federal oversight and public participation.  (f) Permit expiration terminates the source's right to operate unless a timely and complete renewal application is submitted to the department and provided the owner or operator acts consistently with the permit previously granted, the application on which it was granted, and all plans, specifications, and other information submitted as a part thereof. [L 1992, c 240, pt of 1]
  342B-23 Application for permit. (a) An application for a permit required pursuant to this chapter shall be in the form prescribed by the director and for existing sources shall also be accompanied by a compliance plan.  (b) The department may require that permit applications be accompanied by other plans, specifications, meteorological monitoring data, ambient air quality monitoring data, and best available control technology analysis, and any other information necessary to identify the source, the air emissions, and the air quality impacts and to determine whether the proposed installation, modification, or operation will be in accord with applicable rules and standards. [L 1992, c 240, pt of 1]
 342B-24 Action on a permit application. (a) Within sixty days of receipt of an application the department shall give the applicant written notice that the application is complete, or give the applicant written notice of incompleteness outlining additional information requirements.  (b) The department shall take final action on each permit application within eighteen months after the application is determined or deemed to be complete, except that in each of the first three years of the permit program the department need only act on one third of the permit applications submitted during the first year of the permit program. The department may prioritize final action on applications for construction or modification.  (c) Each application for a covered source shall be subject to federal oversight.  (d) For each application for a covered source permit the director shall provide public notice, including the method by which a public hearing can be requested, and an opportunity for public comments in accordance with section 342B-13. [L 1992, c 240, pt of 1; am L 1993, c 208, 5]
  342B-25 Approval of permit. (a) The director shall issue a permit for any term not exceeding five years if it is determined that the source will comply with all requirements of this chapter and the rules and standards adopted pursuant to this chapter.  (b) The permit may be subject to such reasonable conditions as the director may prescribe, including emission limitations or other conditions to assure compliance with all hazardous air pollutant maximum achievable control technology standards or rules adopted pursuant to this chapter.  (c) The director, on application, shall renew a permit for a term not exceeding five years, if it is determined that the source complies with all requirements of this chapter and the rules and standards adopted pursuant to this chapter.  (d) The director shall not deny an application for the issuance or renewal of a permit without affording the applicant an opportunity for a hearing in accordance with chapter 91.  (e) The director shall not issue a permit for a covered source if the administrator timely objects to its issuance. [L 1992, c 240, pt of 1]
 342B-26 General and temporary permits; single permit. (a) The director, after providing public notice, including the method by which a public hearing can be requested, and an opportunity for public comment pursuant to section 342B-13, may issue a general permit covering numerous similar sources. The owner of any source covered by a general permit must apply to the department for use of the general permit.  (b) The director may issue a single permit authorizing emissions from similar operations by the same source owner or operator at multiple temporary locations. No permit shall be issued unless it is assured that the source at all authorized locations will be or is in compliance with all requirements pursuant to this chapter and the rules and standards adopted pursuant to this chapter. [L 1992, c 240, pt of 1; am L 1993, c 208, 6]
  342B-27 Other permit action. (a) The director, on the director's own motion or the application of any person, may terminate, modify, suspend, or revoke and reissue any permit if, after affording the permittee an opportunity for a hearing in accordance with chapter 91, the director determines that:  (1) The permit contains a material mistake made in establishing the emissions limitations or other requirements of the permit;  (2) Permit action is required to assure compliance with the applicable requirements of the Clean Air Act, this chapter, and the applicable standards and rules adopted pursuant to this chapter;  (3) Permit action is required to address additional applicable requirements of the Clean Air Act, this chapter, and the applicable standards and rules adopted pursuant to this chapter;  (4) There is a violation of any condition of the permit;  (5) The permit was obtained by misrepresentation or failure to disclose fully all relevant facts;  (6) There is a change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge;   (7) More frequent monitoring or reporting by the permittee is required;  (8) It is necessary to incorporate into the permit the requirements from pre-construction review permits or exemptions authorized under an approved new source review program in the applicable implementation plan; or  (9) Such is in the public interest. In determining the public interest, the director shall consider the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the action be implemented, the alternatives to the proposed action, the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented, and any other factors which the director may by rule prescribe; provided that any determination of public interest shall promote the optimum balance between economic development and environmental quality.  (b) The director may revise a permit administratively if the revision:  (1) Corrects typographical errors;  (2) Identifies a change in the name, address, or phone number of any person identified in the permit, or provides a similar minor administrative change at the source;  (3) Allows for a change in ownership or operational control of a source where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees has been submitted to the department; or  (4) Makes any other change that the department determines to be similar to those in paragraphs (1) to (3). [L 1992, c 240, pt of 1]
  342B-28 Recordkeeping and monitoring requirements. The director may require an owner or operator of any source on a continuous, periodic, or one-time basis to:  (1) Establish, maintain, and submit records;  (2) Draft reports;  (3) Install, use, and maintain monitoring equipment, and use audit procedures or methods;  (4) Sample emissions in accordance with such procedures or methods, at such locations, at such intervals, during periods, and in the manner prescribed by the director;  (5) Keep records on the source and the control equipment parameters, production variables, or other indirect data when direct monitoring is impractical;  (6) Sample and analyze the composition of the fuel, waste, or other products being burned or incinerated;  (7) Submit compliance certifications; and  (8) Provide other information as the department may require. [L 1992, c 240, pt of 1]
  342B-29 Fees. (a) The director shall establish fees for permits issued pursuant to this chapter to be paid by the applicant prior to the issuance of the permit and thereafter on a schedule established by the department.  (b) Fees for covered sources shall adequately cover the direct and indirect costs required to develop, support, and administer the permit program, including the reasonable costs of:  (1) Reviewing and acting upon any application for or renewal of a permit;  (2) Implementing and enforcing the terms and conditions of any permit, including legal support;  (3) Monitoring emissions and ambient air quality, including resources to audit and inspect source-operated monitoring programs at least once a year;  (4) Preparing generally applicable rules or guidance;  (5) Performing or reviewing modeling, analyses, and demonstrations;  (6) Preparing inventories and tracking emissions;   (7) Providing support to the small business assistance program; and  (8) Administering the fund.  (c) Fees for covered sources shall be based on the number of tons of regulated air pollutant, excluding carbon monoxide, allowed or emitted by the permitted source and shall not be less than $25 per ton per year.  (d) Unless changed by rules, fees for covered sources shall be changed in December of each year only by the percentage, if any, by which the consumer price index for that calendar year exceeds the consumer price index for the prior calendar year. The consumer price index for any calendar year is the average of the consumer price index for all urban consumers published by the United States Department of Labor, as of the close of the twelve-month period ending on August 31 of each calendar year.  (e) Nothing in the cost-per-ton fee provisions of subsections (c) and (d) shall restrict the director from assessing more or less than the amount determined under subsections (c) and (d) from any one covered source or any class or category of covered sources, as designated by the director; provided the department collects a total amount of fees sufficient to cover the costs of the permit program. [L 1992, c 240, pt of 1; am L 2009, c 42, 2]
  342B-3 General functions, duties, and powers of the director. (a) In addition to any other power or duty prescribed by law and in this chapter, the director shall prevent, control, and abate air pollution and the emission of air pollutants in the State.  (b) In the discharge of the duty described in subsection (a) the director may adopt, amend, and repeal state rules controlling and prohibiting air pollution and the release of air pollutants or as otherwise necessary for the purposes of this chapter.  (c) In addition to other specific powers provided in this chapter, the director may appoint, without regard to chapter 76, hearings officers to conduct contested case hearings and public participation activities, including public hearings and public informational meetings. [L 1992, c 240, pt of 1; am L 2000, c 253, 150]
  342B-30 Judicial review. The applicant and any person who participated in the public comment process may obtain judicial review in [environmental court] of the final action on a permit issuance or renewal. This is in addition to judicial review otherwise available. [L 1992, c 240, pt of 1; am L 2014, c 218, 8]
  342B-31 Government records; confidential information. (a) The department shall make all government records maintained pursuant to this chapter open to public inspection in accordance with chapter 92F unless access is restricted or closed by law.  (b) Except as provided in subsection (c), the following permit program documents are deemed to be government records:  (1) Permit applications and all supporting information;  (2) Compliance plans (including schedules of compliance);  (3) Emissions or compliance monitoring reports;  (4) Certifications;  (5) Permits; and  (6) Any other information submitted to the department pursuant to the permit program.  (c) Upon a showing satisfactory to the director by any person that records, reports, or information, or particular part thereof (other than emission data), to which the director has access pursuant to this chapter, contain information of a confidential nature concerning secret processes or methods of manufacture, these records, reports, or information shall be kept confidential except that such record, report, or information may be disclosed to other officers or employees of the department and EPA concerned with carrying out this chapter or when relevant in any proceeding pursuant to this chapter. The contents of the permit itself shall not be entitled to confidentiality protection.  (d) No records, reports, or information for which confidentiality is claimed by the person from whom they are obtained shall be disclosed until such person has received reasonable notice under the procedures set forth in 40 Code of Federal Regulations Part 2, section 2.201 et seq. and has had the opportunity to demonstrate why these should not be disclosed, including a reasonable opportunity to obtain judicial relief. In any such proceedings, confidentiality shall be accorded to any documents which satisfy the criteria set forth in 40 Code of Federal Regulations Part 2 or any rules adopted by the department pursuant to chapter 91.  (e) Any officer, employee, or agent of the department acquiring confidential information from any inspection authorized by section 342B-41 who divulges the information except as authorized in this chapter or except as ordered by a court or at an administrative hearing regarding an alleged violation of this chapter or of any rule or standard adopted pursuant to this chapter shall be fined not more than $1,000.  (f) The provisions of sections 92F-16 and 92F-17 shall apply to any officer, employee, or agent of the department acquiring any confidential information as defined in this section. [L 1992, c 240, pt of 1] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342B-32 Clean air special fund. (a) There is created in the state treasury a special fund to be designated as the clean air special fund. The proceeds in the fund shall be used solely to pay for all reasonable direct and indirect costs required to develop, support, and administer the permit program requirements of this chapter including reasonable costs of:  (1) Reviewing and acting upon any application for or renewal of a permit;  (2) Implementing and enforcing the terms and conditions of any permit, including legal support as defined by rules;  (3) Monitoring emissions and ambient air quality including resources to audit and inspect source-operated monitoring requirements at least once a year;  (4) Preparing generally applicable rules or guidelines;  (5) Performing or reviewing modeling, analyses, and demonstrations;  (6) Preparing emissions inventories and tracking systems;  (7) Providing support to the small business assistance program; and  (8) Administering the fund.  (b) All moneys collected as fees pursuant to section 342B-29 shall be deposited into the clean air special fund. All interest earned or accrued on moneys deposited in the fund shall become a part of the fund. [L 1992, c 240, pt of 1]
 342B-33 Minimum permit conditions. At a minimum, each permit shall require the permittee to:  (1) Submit to the director, no less than every six months, the results of any required monitoring and, no less than annually, a compliance certification; and  (2) Disclose the annual emissions of hazardous air pollutants. [L 1992, c 240, pt of 1; am L 1994, c 268, 3]
  342B-34 Exceptions. This part does not apply to open burning and fugitive dust which shall be regulated by rules adopted by the department. [L 1992, c 240, pt of 1]
  342B-35 Crematoriums. Crematoriums of human remains operating within the State shall be subject to the permit requirements of this chapter; provided that the owners or operators of any crematoriums constructed before March 20, 1972, and operating within the State without a permit shall submit permit applications to the department no later than December 31, 2013. [L 2012, c 278, 2]
  342B-36 Use of coal for electricity generation. The department may issue or renew a permit to an owner or operator of a covered source that will burn or consume coal to generate electricity; provided that as a condition of the permit, all coal burning shall cease on December 31, 2022. Beginning after December 31, 2022, the department shall not issue or renew any permit to an owner or operator of a covered source which will burn or consume coal to generate electricity. [L 2020, c 23, 3] Cross References  Coal power purchase agreements; prohibited, see 269-48.
  342B-4 Other powers of department and director not affected. The powers, duties, and functions vested in the department and director under this chapter shall not be construed to affect in any manner the powers, duties, and functions vested in the department and director under any other law. Rules shall be adopted pursuant to chapter 91. [L 1992, c 240, pt of 1]
  342B-41 Inspection of premises. The director, in accordance with the law, may enter and inspect any building or place to investigate an actual or suspected source of air pollution, to ascertain compliance or noncompliance with this chapter or any rule or standard adopted by the department pursuant to this chapter, or any permit or other approval granted by the department pursuant to this chapter, and to make reasonable tests in connection therewith. No confidential information secured pursuant to this section by any official or employee of the department within the scope and course of the official's or employee's employment in the prevention, control, or abatement of air pollution shall be disclosed by the official or employee except as it relates directly to air pollution and then only in connection with the official's or employee's official duties and within the scope and course of the official's or employee's employment. [L 1992, c 240, pt of 1]
 342B-42 Enforcement. (a) If the director determines that any person has violated or is violating this chapter, any rule adopted pursuant to this chapter, or any permit issued or variance granted pursuant to this chapter, the director shall serve written notice by certified mail or personal service upon the alleged violator or violators specifying the alleged violation and may include with the notice:  (1) An order specifying a reasonable time during which that person shall be required to take such measures as may be necessary to correct the violation and to give periodic progress reports;  (2) An order imposing penalties provided in section 342B-48; and  (3) An order that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice or to be set later and answer the charges complained of.  (b) If the director determines that any person is continuing to violate this chapter, any rule adopted, permit issued, or variance granted pursuant to this chapter after having been served notice of violation, the director shall serve written notice by certified mail or personal delivery upon the alleged violator or violators specifying the alleged violation. With the notice the director:  (1) Shall order the alleged violator or violators to submit a written schedule within thirty days specifying the measures to be taken and the time within which the measures shall be taken to bring that person into compliance with this chapter, any rule adopted, permit issued, or variance granted pursuant to this chapter. The director shall accept or modify the submitted schedule within thirty days of receipt of the schedule. Any schedule not acted upon after thirty days of receipt by the director shall be deemed accepted by the director;  (2) Shall order the alleged violator or violators to cease and desist from the activities that violate this chapter, any rule adopted, permit issued, or variance granted pursuant to this chapter, if that person does not submit a written schedule to the director within thirty days. This order shall remain in effect until the director accepts the written schedule;  (3) May impose penalties as provided in section 342B-48; and  (4) May order the alleged violator or violators to appear before the director for a hearing at a time and place specified in the notice or to be set later and answer the charges complained of.  (c) If the director determines that any person has violated an accepted schedule or an order issued pursuant to this section, the director shall impose penalties by sending a notice in writing, either by certified mail or by personal service, to that person, describing such nonadherence or violation with reasonable particularity.  (d) Any order issued pursuant to this chapter shall become final, unless not later than twenty days after the notice of violation and order is served, the person or persons named therein request in writing a hearing before the director. Any penalty imposed pursuant to this chapter shall become due and payable twenty days after the notice of penalty is served, unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on any penalty imposed pursuant to this chapter, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Upon request for a hearing, the director shall require that the alleged violator or violators appear before the director for a hearing at the time and place specified in the notice and answer the charges complained of.  (e) Any hearing conducted pursuant to this section shall be conducted as a contested case under chapter 91. If, after a hearing held pursuant to this section, the director finds that a violation or violations have occurred, the director shall affirm or modify any penalties imposed or shall modify or affirm the order previously issued or issue an appropriate order or orders for the prevention, abatement, or control of the violation or emission of air pollutants involved, or for the taking of such other corrective action as may be appropriate. If, after a hearing on an order or penalty contained in a notice, the director finds that no violation has occurred or is occurring, the director shall rescind the order or penalty. Any order issued after a hearing may prescribe timetables for necessary action in preventing, abating, or controlling the violation.  (f) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the director may institute a civil action in the name of the State to collect the administrative penalty which shall be a government realization. In any proceeding to collect the administrative penalty imposed, the director need only show that:  (1) Notice was given;  (2) A hearing was held or the time granted for requesting a hearing has run without such a request;  (3) The administrative penalty was imposed; and  (4) The penalty remains unpaid.  (g) In connection with any hearing held pursuant to this section, the director shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties. [L 1992, c 240, pt of 1; am L 1993, c 208, 7; am L 1995, c 180, 2]
 342B-43 Emergency powers; procedures. (a) Notwithstanding any other law to the contrary, if the governor or the director determines that an imminent peril to the public health and safety is or will be caused by the release of any air pollutant or combination of air pollutants that requires immediate action, the governor or the director, without a public hearing, may order any person causing or contributing to the release of the air pollutant to immediately reduce or stop the release, and may take any and all other actions as may be necessary. The order shall fix a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director.  (b) 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 a declaration, if such power is conferred by statute or constitutional provision, or inheres in the office. [L 1992, c 240, pt of 1; am L 1993, c 261,  2, 4; am L 1995, c 201, 1] Cross References  Environmental response law, see chapter 128D.  Hawaii emergency planning and community right-to-know act, see chapter 128E.
 342B-44 Injunctive and other relief. The director may institute a civil action in any environmental court of competent jurisdiction for injunctive and other relief to prevent any violation of this chapter, any rule adopted, condition of a permit, or variance issued pursuant to this chapter, without the necessity of prior revocation of the permit or variance, to impose and collect civil penalties, to collect administrative penalties, or obtain other relief. The environmental court shall have the power to grant relief in accordance with the Hawaii rules of civil procedure. [L 1992, c 240, pt of 1; am L 1995, c 180, 3; am L 2014, c 218, 8] Rules of Court  Injunctions, see HRCP rule 65.
 342B-45 Citation. (a) Any person who violates the vehicular smoke emission rules and open burning control rules adopted by the department pursuant to this chapter may be issued a summons or citation for such violation. Violations of vehicular smoke emission rules and open burning control rules shall constitute a violation as defined in section 701-107 and shall be enforced by police officers. The summons or citation shall be printed in the form hereinafter described, warning the person to appear and answer the charge against the person at a certain place and at a time within seven days of the issuance of the summons or citation.  (b) The summons or citation shall be designed to provide for all necessary information. The form and content of such summons or citation shall be adopted or prescribed by the district environmental courts.  (c) The original of a summons or citation shall be given to the purported violator and the other copy or copies distributed in the manner prescribed by the district environmental courts; provided that the district environmental courts may prescribe alternative methods of distribution of the original and any other copies.  (d) Summonses and citations shall be consecutively numbered and the carbon copy or copies of each shall bear the same number.  (e) If any person fails to comply with a summons or citation, the person who issued the summons or citation shall cause a complaint to be entered against the person and secure the issuance of a warrant for the person's arrest. Failure to comply with a summons or citation is a misdemeanor. [L 1992, c 240, pt of 1; am L 1997, c 27, 1; am L 2014, c 218, 8]
 [ 342B-46] Appeal. If any party is aggrieved by a decision of the director, the party may appeal in the manner provided in chapter 91 to the circuit environmental court of the circuit in which the party resides or has the party's principal place of business or in which the action in question occurred; provided that the operation of a cease and desist order will not be stayed on appeal unless specifically ordered by an environmental court of competent jurisdiction. [L 1992, c 240, pt of 1; am L 2014, c 218, 8]
 342B-47 Civil penalties. (a) Any person who violates the vehicular smoke emission rules adopted by the department pursuant to this chapter shall be fined not less than $25 nor more than $2,500 for each separate offense. Each day of each violation constitutes a separate offense.  (b) Any person who violates the open burning control rules adopted by the department pursuant to this chapter shall be fined not more than $10,000 for each separate offense. Each day of each violation constitutes a separate offense.  (c) Any person who violates this chapter, any rule adopted pursuant to this chapter, other than vehicular smoke emission control and open burning control rules, any condition of a permit issued or variance granted pursuant to this chapter, or any fee or filing requirement, shall be fined not more than $25,000 for each separate offense. Each day of each violation constitutes a separate offense.  (d) Any person who denies, obstructs, or hampers the entrance, inspection, or monitoring by any duly authorized officer or employee of the department of any building, place, or vehicle that the officer or employee is authorized to enter and inspect shall be fined not more than $25,000 for each separate offense. Each day of each violation constitutes a separate offense.  (e) State of mind shall not be an element of proof for civil violations. [L 1992, c 240, pt of 1; am L 1993, c 208, 8]
 342B-48 Administrative penalties. (a) In addition to any other administrative or judicial remedy provided by this chapter, or by rules adopted pursuant to this chapter, the director is authorized to impose by order the penalties specified in section 342B-47.  (b) Factors to be considered in imposing an administrative penalty include:  (1) The nature and history of the violation and of any prior violations;  (2) The economic benefit to the violator, or anticipated by the violator, resulting from the violation;  (3) The opportunity, difficulty, and history of corrective action;  (4) Good faith efforts to comply; and  (5) Such other matters as justice may require.  (c) It is presumed that the violator's economic and financial conditions allow payment of the penalty, and the burden of proof to the contrary is on the violator.  (d) In any judicial proceeding to recover the administrative penalty imposed, the director need only show that:  (1) Notice was given;  (2) A hearing was held or the time granted for requesting a hearing has run without such a request;  (3) The administrative penalty was imposed; and  (4) The penalty remains unpaid. [L 1992, c 240, pt of 1; am L 1994, c 268, 4]
 342B-49 Criminal penalties. (a) Any person who knowingly violates any applicable standards or limitations, any condition in a permit issued pursuant to this chapter, any order, any rule, or any fee or filing requirement, shall be punished by a fine of not more than $25,000 for each day of each violation or by imprisonment not to exceed five years, or both.  (b) Any person who knowingly makes any false statement, representation, or certification in any form, in any notice or report required by a permit, or who knowingly renders inaccurate any monitoring device or method required by the department to be maintained by the person pursuant to this chapter, or who fails to report as required by this chapter, shall be punished by a fine of not more than $25,000 for each day of each violation or by imprisonment for not more than two years, or both.  (c) Any person who negligently releases into the ambient air any hazardous air pollutant or extremely hazardous substance and who at the time negligently places another person in imminent danger of death or serious bodily injury shall be punished by a fine of not more than $25,000 for each day of each violation, or imprisonment for not more than one year, or both. If a conviction of any person under this subsection is for a violation committed after a first conviction of the person under this subsection, the maximum punishment shall be doubled with respect to both the fine and imprisonment.  (d) Any person who knowingly releases into the ambient air any hazardous air pollutant or extremely hazardous substance and who knows at the time that another person is thereby placed in imminent danger of death or serious bodily injury shall be punished by a fine of not more than $25,000 for each day of each violation, or imprisonment for not more than fifteen years, or both. Any organization which violates this subsection shall be subject to a fine of not more than $1,000,000. If a conviction of any person under this subsection is for a violation committed after a first conviction of the person under this subsection, the maximum punishment shall be doubled with respect to both the fine and imprisonment. [L 1992, c 240, pt of 1; am L 1993, c 208, 9]
  342B-5.5 Exemptions. The hydrogen sulfide standard adopted pursuant to this chapter shall not apply to waste ponds, waste piles, crops, feed, animals, or manure incident to agricultural operations necessary for the raising of animals or the growing or processing of crops. [L 1993, c 208, 1]
  342B-5 Effect of laws, ordinances, and rules. (a) All laws, ordinances, and rules inconsistent with this chapter shall be void and of no effect.  (b) Any county may adopt ordinances and rules governing any matter relating to air pollutant and air pollution control which is not governed by a rule of the department adopted pursuant to this chapter; provided that any county ordinance or rule relating to air pollution control shall be void and of no effect as to any matter regulated by a rule of the department upon the adoption thereof. [L 1992, c 240, pt of 1]
  342B-50 Disposition of collected fines and penalties. Fines and penalties collected under sections 342B-47, 342B-48, and 342B-49 shall be deposited into the environmental response revolving fund established by section 128D-2. [L 1992, c 240, pt of 1]
  342B-51 Enforcement by state and county authorities. All state and county health authorities and police officers shall enforce this chapter and the rules, orders, and permits of the department. [L 1992, c 240, pt of 1]
  342B-52 Nonliability of department personnel. Notwithstanding any other law to the contrary, no member, officer, or employee of the department shall be criminally liable or responsible under this chapter for any acts done by the member, officer, or employee in the performance of the member's, officer's, or employee's duties; provided that this section shall not apply to violations of section 342B-31. [L 1992, c 240, pt of 1]
  342B-53 Other action not barred. No existing civil or criminal remedy for any wrongful action which is a violation of any statute or any rule of the department or the ordinance of any county shall be excluded or impaired by this chapter. [L 1992, c 240, pt of 1]
  342B-54 Priority in courts. All actions brought pursuant to this chapter or pursuant to the rules adopted under this chapter or pursuant to the conditions of a permit issued under this chapter shall in the discretion of the court receive priority in the courts of the State. [L 1992, c 240, pt of 1] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342B-55 Consent orders; settlement agreements. Notwithstanding section 342B-13, at least thirty days before a consent order or settlement agreement of any kind under this chapter to which the director or the State is a party is final or filed with [an] environmental court, the director shall provide public notice and an opportunity for the public to comment. The director shall promptly consider any written comments and may withdraw or withhold consent to the proposed order or agreement if the comments disclose facts or considerations which indicate that the consent is inappropriate, improper, inadequate, or inconsistent with the requirements of this chapter. Nothing in this section shall apply to civil or criminal penalties under this chapter. [L 1992, c 240, pt of 1; am L 1993, c 208, 10; am L 2014, c 218, 8]
 342B-56 Citizen suits. (a) After June 30, 1995, any person may commence a civil action on that person's own behalf against:  (1) Any person (including the State and the director) who is alleged to be in violation of this chapter, including any emission standard or limitation or any order issued by the director;  (2) The director where there is alleged a failure to perform any act or duty under this chapter which is not discretionary; or  (3) Any person who proposes to construct or constructs any new or modified major emitting facility without a required permit or who is alleged to be in violation of any condition of such permit. This subsection shall not apply before April 1, 1996 to violations of permits related to agricultural burning; provided further that the governor may extend this deadline for an additional three months.  (b) The circuit environmental court shall have jurisdiction to:  (1) Enforce such an emission standard or limitation, or an order;  (2) Order the director to perform such act or duty; and  (3) Apply any appropriate civil penalties.  (c) No action may be commenced:  (1) Under subsection (a)(1):  (A) Prior to sixty days after the plaintiff has given notice of the violation to (i) the director, (ii) the department, and (iii) any alleged violator of the standard, limitation, or order; or  (B) If the director or the department has commenced and is diligently prosecuting a civil action to require compliance with the standard, limitation, or order, but in any such action any person may intervene as a matter of right; or  (2) Under subsection (a)(2) prior to sixty days after the plaintiff has given notice of such action to the director. Notice under this subsection shall be given in such [manner] as the director shall prescribe by rule.  (d) Any action respecting a violation by a stationary source of an emission standard or limitation or an order respecting such standard or limitations may be brought only in the judicial circuit in which such source is located.  (e) In any action under this section, the director, if not a party, may intervene as a matter of right at any time in the proceeding.  (f) The environmental court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the environmental court determines such award is appropriate. The environmental court, if a temporary restraining order or preliminary injunction is sought, may require the filing of a bond or equivalent security in accordance with the Hawaii rules of civil procedure.  (g) Nothing in this section shall restrict any right which any person may have under any constitutional provision, statute, or common law to seek enforcement of any emission standard or limitation or to seek any other relief.  (h) Penalties received under subsection (b) shall be deposited into the clean air special fund established by section 342B-32. These amounts shall remain available to finance air compliance and enforcement activities. The environmental court shall have discretion to order that such civil penalties, in lieu of being deposited in the fund, be used in beneficial mitigation, education, or protection projects which enhance public health or the environment. L 1992, c 240, pt of 1; am L 1995, c 180, 4; am L 1996, c 13, 6; am L 2014, c 218, 8 Rules of Court  Injunctions, see HRCP rule 65. Law Journals and Reviews  Ala Loop and the Private Right of Action Under Hawai`i Constitution Article XI, Section 9: Charting a Path Toward a Cohesive Enforcement Scheme. 33 UH L. Rev. 367 (2010).
  342B-6 Short title. This chapter may be cited as the "Hawaii Air Pollution Control Act". [L 1992, c 240, pt of 1]
  342B-61 Small business assistance program. (a) The director shall establish within the department a small business assistance program to provide technical support and environmental compliance information to those small business stationary sources subject to the provisions of this chapter. The small business assistance program shall:  (1) Develop, collect, and coordinate information concerning compliance methods and technologies for small business stationary sources;  (2) Assist small business stationary sources with air pollution prevention and accidental release detection and prevention, including providing information concerning alternative technologies, process changes, products, and methods of operation that help reduce air pollution;  (3) Assist small business stationary sources in determining applicable requirements and in obtaining permits pursuant to this chapter in a timely and efficient manner;  (4) Assure that small business stationary sources receive in a timely manner notice of their rights and of any applicable rules or standards proposed or adopted pursuant to this chapter;  (5) Inform small business stationary sources of their obligations pursuant to this chapter;  (6) Develop procedures for referring small business stationary sources to qualified consultants in evaluating the operations of such sources and in determining compliance with this chapter; and  (7) Develop procedures to consider requests from small business stationary sources for modification of:  (A) Any work practice or technological compliance methods; or  (B) The milestones for implementing such work practice or compliance method;  based on the technological and financial capability of any such small business stationary source. No modification may be granted unless it is in compliance with the applicable requirements of this chapter and the Clean Air Act.  (b) The director, upon petition by a small business stationary source, after notice and opportunity for public comment, may include as a small business stationary source for purposes of this chapter any stationary source which does not meet the criteria for items (3), (4), or (5) of the definition of "small business stationary source" provided the stationary source does not emit more than one hundred tons per year of all regulated air pollutants.  (c) The director, in consultation with the administrator and the administrator of the federal Small Business Administration and after providing notice and opportunity for public comment, may exclude from the definition of "small business stationary source" any category or subcategory of sources that the administrator or the director determines to have sufficient technical and financial capabilities to meet the requirements of this chapter without the application of this part. [L 1992, c 240, pt of 1]
  342B-62 Compliance advisory council; establishment; appointment, number, and term of members; duties. (a) There is established within the department, for administrative purposes, an advisory council to be known as the compliance advisory council which shall:  (1) Render advisory opinions concerning the effectiveness of the small business assistance program, difficulties encountered, and the degree and severity of enforcement;  (2) Make periodic reports to the administrator concerning the compliance of the small business assistance program with the requirements of the federal Paperwork Reduction Act (44 United States Code subsection 3501 et seq.), the Regulatory Flexibility Act (5 United States Code subsection 601 et seq.), and the Equal Access to Justice Act (Public Law 96-354);  (3) Review information for small business stationary sources to assure such information is understandable by the layperson;  (4) Have the small business assistance program serve as the secretariat for the development and dissemination of such reports and advisory opinions; and  (5) Perform other duties as required by the director.  (b) The council shall be composed of seven voting members. The members shall be appointed in the manner provided in section 26-34, except as provided otherwise in this section.  (c) The members of the council shall be selected as follows:  (1) Two persons who are not owners, or representative of owners, of small business stationary sources selected by the governor to represent the general public;  (2) Two persons who are owners or represent owners of small business stationary sources, with one member selected by the majority leadership of the house of representatives, and one member selected by the minority leadership of the house of representatives;  (3) Two persons who are owners or represent owners of small business stationary sources, with one member selected by the majority leadership of the senate and one member selected by the minority leadership of the senate; and  (4) One member selected by the director to represent the department.  (d) The members shall serve for two-year terms. The council shall elect its officers, and four members shall constitute a quorum. The members shall serve without compensation but shall be reimbursed for expenses, including travel expenses, necessary for the performance of their duties. [L 1992, c 240, pt of 1]
 [ 342B-63] Small business ombudsman for air pollution control; qualifications; duties. (a) There is created an office of the small business ombudsman for air pollution control in the department which shall be headed by a single executive to be known as the small business ombudsman for air pollution control who shall be appointed by the director for a term of four years. The position of small business ombudsman shall be exempt from the civil service laws pursuant to section [76-16(b)(17)]. The director may remove or suspend for cause the small business ombudsman after due notice and public hearing.  (b) The person appointed as the small business ombudsman shall be experienced in dealing with both private enterprise and government entities; arbitration and negotiation; interpretation of laws and rules; investigation; recordkeeping; report writing; public speaking; and management. All employees of the office shall be hired by the small business ombudsman and shall serve at the small business ombudsman's pleasure. In determining the salary of each employee, the small business ombudsman shall consult with the [department of human resources development] and shall follow as closely as possible the recommendations of the department of human resources development. The small business ombudsman and the small business ombudsman's full-time staff shall be entitled to participate in all state employee benefit plans.  (c) The small business ombudsman shall:  (1) Assist small businesses which may be affected by air pollution control rules by providing services as necessary such as:  (A) Assistance in the dissemination of information to small businesses and interested parties;  (B) Referral of small businesses to specialists for financial, technological, and operational information and assistance to reduce air pollution and prevent accidental releases;  (C) Encouragement of small businesses to participate in the development of air pollution control rules;  (D) Assistance in investigations and resolutions of complaints and disputes between small businesses and the department of health concerning air pollution control; and  (E) Presentations to trade associations and small businesses to inform them of the air pollution control rules and compliance requirements; and  (2) Assist in the development and continued operation of the small business assistance program by participating in meetings and conferences and preparing and providing information as necessary such as:  (A) Evaluation of the air pollution control rules and their effect on the economy and small businesses;  (B) Assistance in preparation of guideline documents;  (C) Evaluation of the small business assistance program and the assistance provided to small businesses;  (D) Reports, recommendations, and testimony to various governmental agencies and the legislature if so requested; and  (E) Comments and recommendations to EPA and the department of health on proposed air pollution control rules that impact small businesses.  (d) The small business ombudsman shall submit to the director an annual report discussing the small business ombudsman's activities under this chapter. [L 1992, c 240, pt of 1]
 342B-7 Annual reports. The department shall compile an annual report summarizing:  (1) Air quality data from all air quality monitoring stations;  (2) Annual criteria pollutant emissions;  (3) Annual air toxic emissions; and  (4) All completed or issued enforcement actions. [L 1992, c 240, pt of 1; am L 1993, c 208, 3]
  342B-71 Statewide greenhouse gas emissions limit, adoption. A statewide greenhouse gas emissions limit to be achieved by 2020 is hereby established that is equal to or below the level of the statewide greenhouse gas emissions in 1990, as determined by section 3 of Act 234, Session Laws of Hawaii 2007; provided that for the purposes of this Act greenhouse gas emissions from airplanes shall not be included. [L 2007, c 234, pt of 8]
  342B-72 Greenhouse gas emissions limits; rules. (a) Before December 31, 2011, the director shall adopt rules pursuant to chapter 91:  (1) Establishing greenhouse gas emission limits applicable to sources or categories of sources, to be achieved by January 1, 2020, and establishing emission reduction measures to achieve the maximum practically and technically feasible and cost-effective reductions in greenhouse gas emissions in furtherance of achieving the statewide greenhouse gas emissions limit; and  (2) Requiring the reporting and verification of statewide greenhouse gas emissions and to monitor and enforce compliance with this part, to become operative beginning on January 1, 2012.  (b) The director, to the extent feasible to achieve the statewide greenhouse gas emissions limit, shall adopt rules pursuant to chapter 91 and this section based upon the recommendations and findings of the work plan created pursuant to section 6 of Act 234, Session Laws of Hawaii 2007.  (c) Any rule adopted by the director pursuant to this section shall ensure all of the following:  (1) The greenhouse gas emission reductions achieved are real, permanent, quantifiable, verifiable, and enforceable by the director; and  (2) If applicable, the greenhouse gas emission reduction occurs over the same time period and is equivalent in amount to any direct emission reduction required pursuant to this part.  (d) The director shall periodically review and update state emission reporting requirements and endeavor to make the requirements consistent with the requirements of international, federal, and other states' greenhouse gas emission reporting programs, as necessary.  (e) After January 1, 2012, the director may revise rules adopted pursuant to this section and adopt additional rules to further this part. [L 2007, c 234, pt of 8] Law Journals and Reviews  What Can the Abolition of Slavery Teach Us About Climate Change? Local Action in the Liquefied Natural Gas Controversy. 35 UH L. Rev. 687 (2013).  Lorenzo's Answer. 41 UH L. Rev. 248 (2019).
  342B-73 Schedule of fees; establishment. The director may adopt rules pursuant to chapter 91 that specify a schedule of fees to be paid by the sources of greenhouse gas emissions regulated pursuant to this part. The revenues collected pursuant to this section shall be deposited into the clean air special fund established under section 342B-32 to be used for the purposes thereof. [L 2007, c 234, pt of 8]
 342C-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Chlorofluorocarbon" or "CFC" means any member of the family of substances containing carbon, fluorine, and chlorine, including, without limitation, those compounds known as CFC-11, CFC-12, CFC-13, CFC-14, CFC-113, CFC-114, CFC-115, CFC-116, CFC-500, CFC-502, and CFC-503, and any combination or mixture containing any of these chlorofluorocarbon compounds.  "Department" means the department of health.  "Director" means the director of health.  "Halon" means any fully halogenated carbon compound containing bromine, chlorine, or fluorine, including, without limitation, those compounds known as Halon-1301, Halon-1211, and Halon-2402.  "Mobile air conditioner" means an air conditioner designed for installation in a motor vehicle.  "Ozone-depleting compound" means any chlorofluorocarbon or halon, including those compounds known as methyl chloroform and carbon tetrachloride, or any other compound designated by the United States Environmental Protection Agency as being an ozone-depleting compound pursuant to Title 40, Part 82, Code of Federal Regulations, or any other compound designated by the department as being an ozone-depleting compound.  "Person" includes any individual, firm, association, partnership, or corporation, whether domestic or foreign, whether acting as a principal, agent, employee, or otherwise, and includes any governmental entity or charitable organization.  "Portable" means capable of being carried in hand by one individual. [L 1990, c 316, pt of 2; am L 1992, c 264, 2]
 342C-2 Prohibited acts. (a) Effective January 1, 1991, no person in this State shall sell or offer for sale any CFC refrigerant suitable for use in air conditioners or mobile air conditioners in containers that are smaller than fifteen pounds net.  (b) No person in this State shall wilfully cause or allow CFCs to be released into the air from any source or process regulated by this chapter, other than through common use of a product, or in the course of attempting to recover, recycle, or safely dispose of CFCs while exercising due care to prevent unnecessary releases of CFCs into the air to the extent practicable and in compliance with applicable rules.  (c) Effective July 1, 1993, no person in this State shall:  (1) Purchase, distribute, manufacture, import, sell, or offer for sale, any portable fire extinguisher that contains a halon or other ozone-depleting compound; or  (2) Repair, service, or perform maintenance on any portable fire extinguishing system or unit without using a reclamation system to recapture, recycle, or properly dispose of unspent halons or other ozone-depleting compounds. Exempted from this prohibition is the sale of portable halon fire extinguishers for use in aircraft, which may be sold to purchasing agents of airline companies, or to private individuals upon presentation of a pilots license. [L 1990, c 316, pt of 2; am L 1992, c 264, 3]
  342C-3 Refrigerators and freezers. Nothing in this chapter shall apply to refrigerators or freezers. [L 1990, c 316, pt of 2]
  342C-4 Rules. The department shall adopt rules necessary for the purposes of this chapter. [L 1990, c 316, pt of 2]
 342C-5 Penalties. (a) Any person who violates the provisions of this chapter pertaining to ozone layer protection or any rule adopted by the department pursuant to this chapter shall be fined not more than $1,000 for each separate offense.  (b) Each unit of CFC refrigerant sold or offered for sale, and each wilful release of CFCs into the air, shall constitute a separate offense.  (c) Each portable fire extinguisher, containing a halon or other ozone-depleting compound, that is purchased, distributed, manufactured, imported, sold, or offered for sale, shall constitute a separate offense.  (d) Each portable fire extinguishing system or unit that is repaired, serviced, or upon which maintenance is performed, without using a reclamation system to recapture, recycle, or properly dispose of unspent halons or other ozone-depleting compounds, shall constitute a separate offense.  (e) Any action taken to impose or collect the penalty provided for in this section shall be considered a civil action. [L 1990, c 316, pt of 2; am L 1992, c 264, 4]
  342D-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Available recycled water service" means the existence of an operable recycled water distribution main within one hundred feet of the property line.  "Coastal waters" means all waters surrounding the islands of the State from the coast of any island to a point three miles seaward from the coast, and, in the case of streams, rivers, and drainage ditches, to a point three miles seaward from their point of discharge into the sea and includes those brackish waters, fresh waters, and salt waters that are subject to the ebb and flow of the tide.  "Complaint" means any written charge filed with or by the department that a person is violating any provision of this chapter or any rule or order adopted pursuant to this chapter.  "Department" means the department of health.  "Director" means the director of health.  "Domestic sewage" is waste and wastewater from humans or household operations that:  (1) Is discharged to or otherwise enters a treatment works; or  (2) Is of a type that is usually discharged to or otherwise enters a treatment works or an individual wastewater system. Individual wastewater systems include cesspools, septic tanks, and household aerobic units. As used here "waste" means any liquid, gaseous, and solid substance, whether treated or not, and whether or not it pollutes or tends to pollute state waters, and "waste" excludes industrial and agricultural substances that are not combined with substances from humans or household operations. As used here "wastewater" means any liquid "waste", as used above, whether treated or not.  "Drainage ditch" means that facility used to carry storm runoff only.  "Effluent" means any substance discharged into state waters, publicly owned treatment works, or sewerage systems, including, but not limited to, sewage, waste, garbage, feculent matter, offal, filth, refuse, any animal, mineral, or vegetable matter or substance, and any liquid, gaseous, or solid substances.  "Effluent sources" include, but are not limited to, sewage outfalls, refuse systems and plants, water systems and plants, industrial plants, and contributors to publicly owned treatment works or sewerage systems.  "Gray water" means any untreated wastewater that has not come into contact with toilet waste. Gray water includes used water from bathtubs, showers, and bathroom wash basins and water from clothes washers and laundry tubs; provided that the water is not contaminated with any household hazardous waste as defined in section 342G-1, hazardous waste as defined in section 342J-2, or any contaminant the department deems inappropriate. Gray water excludes wastewater from food preparation sinks or dishwashers.  "Industrial user" means a source of water pollutants into a publicly owned treatment works from any nondomestic source regulated under section 307(b), (c), or (d) of the Federal Water Pollution Control Act.  "Management practices" include treatment, processing, storage, transport, use, and disposal.  "New source" means any source of water pollution the construction of which is commenced after the adoption of rules prescribing a standard of performance which will be applicable to such source.  "Party" means each person or agency named as party or properly entitled to be a party in any court or agency proceeding.  "Permit" means written authorization from the director to discharge waste or to construct, modify, or operate any water pollution source. A permit authorizes the grantee to cause or discharge waste or water pollution in a manner or amount, or to do an act, not forbidden by this chapter or by rules adopted under this chapter, but requiring review by the department.  "Person" means any individual, partnership, firm, association, public or private corporation, federal agency, the State or any of its political subdivisions, trust, estate, or any other legal entity.  "Pollution" means water pollution.  "Recycled water" and "reclaimed water" mean treated wastewater that by design is intended or used for a beneficial purpose.  "Sewage sludge" means any solid, semi-solid, or liquid residue removed during the treatment of municipal wastewater or domestic sewage. Sewage sludge includes, but is not limited to, solids removed during primary, secondary, or advanced wastewater treatment, scum, septage, portable toilet pumping, Type III Marine Sanitation device pumpings (33 Code of Federal Regulations Part 159), and sewage sludge products. Sewage sludge does not include grit, screenings, or ash generated during the incineration of sewage sludge.  "Sewerage system" means pipelines or conduits, pumping stations, and force mains, and all other structures, devices, appurtenances, and facilities used for collecting or conducting wastes to an ultimate point for treatment or disposal.  "Standard of performance" means a standard for the control of the discharge of water pollutants which reflects the greatest degree of effluent reduction which the director determines to be achievable through application of the best demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of water pollutants.  "State waters" means all waters, fresh, brackish, or salt, around and within the State, including, but not limited to, coastal waters, streams, rivers, drainage ditches, ponds, reservoirs, canals, ground waters, and lakes; provided that drainage ditches, ponds, and reservoirs required as a part of a water pollution control system are excluded.  "Treatment works" means any plant or other facility used for the purpose of controlling water pollution.  "Variance" means special written authorization from the director to cause or discharge waste or water pollution in a manner or in an amount in excess of applicable standards, or to do an act that deviates from the requirements of rules adopted under this chapter.  "Waste" means sewage, industrial and agricultural matter, and all other liquid, gaseous, or solid substance, including radioactive substance, whether treated or not, which may pollute or tend to pollute the waters of this State.  "Wastewater" means any liquid waste, whether treated or not, and whether animal, mineral, or vegetable including agricultural, industrial, and thermal wastes.  "Water pollutant" means dredged spoil, solid refuse, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, soil, sediment, cellar dirt and industrial, municipal, and agricultural waste.  "Water pollution" means:  (1) Such contamination or other alteration of the physical, chemical, or biological properties of any state waters, including change in temperature, taste, color, turbidity, or odor of the waters, or  (2) Such discharge of any liquid, gaseous, solid, radioactive, or other substances into any state waters, as will or is likely to create a nuisance or render such waters unreasonably harmful, detrimental, or injurious to public health, safety, or welfare, including harm, detriment, or injury to public water supplies, fish and aquatic life and wildlife, recreational purposes and agricultural and industrial research and scientific uses of such waters or as will or is likely to violate any water quality standards, effluent standards, treatment and pretreatment standards, or standards of performance for new sources adopted by the department. [L 1989, c 212, pt of 2; am L 1990, c 298, 2; am L 1995, c 180, 5; am L 1999, c 193, 2 and c 288, 2; am L 2001, c 269, 2; am L 2013, c 233, 2] Note  The amendment made by L 2014, c 218, 8 is not included in this section. Revision Note  Subparagraphs (1) and (2) in definition of domestic sewage redesignated pursuant to 23G-15(1).
 342D-10 Emergency powers; procedures. (a) Notwithstanding any other law to the contrary, if the governor or the director determines that an imminent peril to the public health and safety is or will be caused by the discharge of waste, any combination of discharges of waste, or any management practice that requires immediate action, the governor or the director, without a public hearing, may order any person causing or contributing to the discharge of waste to immediately reduce or stop the discharge, or to reduce, stop, or change the management practice, and may take any and all other actions as may be necessary. The order shall fix a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director. Management practices covered in this subsection are those for domestic sewage, sewage sludge, and recycled water, whether or not the practices cause water pollution.  (b) 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. [L 1989, c 212, pt of 2; am L 1995, c 180, 10 and c 201, 2; am L 1999, c 193, 6] Cross References  Environmental response law, see chapter 128D.
 342D-101 Definitions. As used in this part:  "Commercial passenger vessel" means a vessel that carries passengers for hire. The term does not include a vessel:  (1) Authorized to carry fewer than fifty passengers;  (2) That does not provide overnight accommodations for at least fifty passengers for hire, determined with reference to the number of lower berths and based on an average of two persons per cabin; or  (3) Operated by the United States or a foreign government.  "Discharge" means any release, however caused, from a commercial passenger vessel, and includes any escape, disposal, spilling, leaking, pumping, emitting, or emptying.  "Hazardous substance" has the same meaning as defined in section 342D-38.  "Hazardous waste" has the same meaning as defined in section 342J-2.  "Large commercial passenger vessel" means a commercial passenger vessel that provides overnight accommodations for two hundred fifty or more passengers for hire, determined with reference to the number of lower berths and based on an average of two persons per cabin.  "Marine waters of the State" means those waters between the shoreline of the State and any point three nautical miles from the shoreline of the State.  "Offloading" means the removal of a hazardous substance, hazardous waste, or nonhazardous solid waste from a commercial passenger vessel onto or into a controlled storage, processing, or disposal facility or treatment works.  "Other wastewater" means sewage that is stored in or transferred to a ballast tank or other holding area on the vessel that may not be customarily used for storing sewage.  "Passengers for hire" means vessel passengers for whom consideration is contributed as a condition of carriage on the vessel, whether directly or indirectly flowing to the owner, charterer, operator, agent, or any other person having an interest in the vessel.  "Sewage" means human body wastes and the wastes from toilets and other receptacles intended to receive or retain human body waste.  "Small commercial passenger vessel" means a commercial passenger vessel that provides overnight accommodations for two hundred forty-nine or fewer passengers for hire, determined with reference to the number of lower berths and based on an average of two persons per cabin.  "Treated sewage" means sewage that meets all applicable effluent limitation standards and processing requirements of the Federal Water Pollution Control Act, as amended, and regulations adopted under the same.  "Untreated sewage" means sewage that is not treated sewage.  "Vessel" means any form or manner of watercraft, other than a seaplane on the water, whether or not capable of self-propulsion.  "Voyage" means a vessel trip to or from one or more ports of call in the State with the majority of the passengers for hire completing the entire vessel trip. A vessel trip involving stops at more than one port of call is considered a single voyage so long as the majority of passengers for hire complete the entire trip.  "Wastewater" shall have the same meaning as "other wastewater". [L 2005, c 217, pt of 1]
  342D-102 Prohibited discharges; limitations on discharges. (a) Except as provided in subsection (g), a person may not discharge untreated sewage from a commercial passenger vessel into the marine waters of the State.  (b) Except as provided in subsection (g) or section 342D-111, a person shall not discharge wastewater from a commercial passenger vessel into the marine waters of the State that has suspended solids greater than one hundred milligrams per liter or a fecal coliform count greater than forty colonies per one hundred milliliters except that the department, by rule, may adopt a protocol for retesting for fecal coliform, if this discharge limit for fecal coliform is exceeded, under which a discharger will be considered to be in compliance with the fecal coliform limit if the geometric mean of fecal coliform count in the samples considered under the protocol does not exceed forty colonies per one hundred milliliters. Upon submission by the owner or operator of a large commercial passenger vessel of a plan for interim protective measures, the department shall extend the time for compliance of that vessel with this subsection for a period of time that ends not later than December 31, 2006. Upon submission by the owner or operator of a small commercial passenger vessel of a plan for interim protective measures, the department shall extend the time for compliance of that vessel with this subsection.  (c) The department, by rule, may establish numeric or narrative standards for other parameters for wastewater discharged from commercial passenger vessels that are more stringent than the effluent limitation standards and processing requirements of the Federal Water Pollution Control Act, as amended, and regulations adopted under the same. In adopting rules under this subsection, the department shall consider the best available scientific information on the environmental effects of the regulated discharges, the materials and substances handled on the vessels, vessel movement effects, and the availability of new technologies for wastewater.  (d) Except as provided in subsections (f) and (g) or section 342D-111, a person shall not discharge wastewater from a large commercial passenger vessel into the marine waters of the State unless:  (1) The vessel is underway and proceeding at a speed of not less than six knots;  (2) The vessel is at least one nautical mile from the nearest shore, except in areas designated by the department;  (3) The discharge complies with all applicable vessel effluent standards established under federal and state law; provided that the standards established under federal law may be adopted by rule by the department; and  (4) The vessel is not in an area where the discharge of wastewater is prohibited.  (e) Except as provided in subsection (g) or section 342D-111, a person may not discharge sewage from a small commercial passenger vessel unless the sewage has been processed through a properly operated and properly maintained marine sanitation device.  (f) Subsection (d)(1) and (2) do not apply to a discharge permitted under federal law.  (g) Subsections (a) to (e) do not apply to discharges made for the purpose of securing the safety of the commercial passenger vessel or saving life at sea if all reasonable precautions have been taken for the purpose of preventing or minimizing the discharge. [L 2005, c 217, pt of 1]
  342D-103 Prohibited air emissions. (a) No person shall operate an incinerator of a large commercial passenger vessel in any Hawaiian port for the combustion of any waste materials.  (b) Except as provided under section 342D-106, large commercial passenger vessels shall limit visible emissions, excluding condensed water vapor, to no more than twenty per cent opacity for periods of time exceeding six minutes in any sixty-minute period except for the following:  (1) When the ship is maneuvering to or from the dock or anchor;  (2) In the event of a navigational or safety concern on the ship; or  (3) In the event of an equipment failure; provided that the cruise line shall upon request, provide information to the department that describes the subject equipment, malfunction, corrective actions taken, and the start and end times of the malfunctioning period. [L 2005, c 217, pt of 1]
  342D-104 Information-gathering requirements. (a) Except as provided under section 342D-111, the owner or operator of a commercial passenger vessel shall maintain records and, upon request of the department, provide to the department a report, with copies of the records related to the period of operation in the marine waters of the State, detailing the dates, times, and locations, and the volumes or flow-rates of any discharge of sewage or other wastewater into the marine waters of the State, or the opacity of air emissions.  (b) Except as provided under section 342D-111, while a commercial passenger vessel is present in the marine waters of the State, the owner or operator of the vessel shall collect routine samples of the vessel's treated sewage and other wastewater that are being discharged into the marine waters of the State with a sampling technique approved by the department before the sample is collected. The number of routine samples for each vessel to be collected under this subsection shall be the greater of two per calendar year or the number of samples required to be collected under federal laws and regulations for sewage or other wastewater discharges.  (c) Except as provided under section 342D-111, while a commercial passenger vessel is present in the marine waters of the State, the department through an independent contractor may collect additional samples of the vessel's treated sewage that are being discharged into the marine waters of the State, or monitor the opacity of air emissions.  (d) Except as provided under section 342D-111, the owner or operator of a vessel required to collect samples under subsection (b) shall, as required by the department, have the samples tested. Tests required may include tests for fecal coliform, ammonia, residual chlorine, pH (degree of acidity or alkalinity), chemical oxygen demand, biochemical oxygen demand, total suspended solids, and any other parameters as required by the department. An analytical testing method approved by the department before the testing is conducted shall be used. A laboratory used for testing under this subsection shall agree not to disclose the testing results to any person other than to the department, the United States Coast Guard, or the owner or operator of the vessel.  (e) The owner or operator of a commercial passenger vessel shall pay for all routine sampling under subsection (b), additional sampling under subsection (c), and for the testing of routine samples.  (f) If the owner or operator of a commercial passenger vessel, when complying with another state or federal law that requires substantially equivalent information gathering, has gathered the type of information required under subsection (a), (b), or (d), the owner or operator shall be considered to be in compliance with that subsection so long as the information is also provided to the department. The department shall establish, by rule, requirements for determining substantially equivalent information gathering. [L 2005, c 217, pt of 1]
  342D-105 Recordkeeping requirements. An owner or operator subject to section 342D-104 shall record the information required to be gathered under that section and shall maintain the records for three years after the date the information was gathered. [L 2005, c 217, pt of 1]
  342D-106 Reporting requirements. (a) An owner or operator of a commercial passenger vessel who becomes aware of a discharge in violation of section 342D-102 shall immediately report that discharge to the department. The report shall not be deemed to be privileged information.  (b) Before operating a commercial passenger vessel in the marine waters of the State, the owner or operator of the vessel shall provide to the department a plan that describes the vessel's policies and procedures for:  (1) Offloading in the State or disposing into the marine waters of the State of nonhazardous solid waste other than sewage; and  (2) Offloading of hazardous waste or a hazardous substance from the vessel while the vessel is operating in the marine waters of the State to the extent that the offloading is not covered by subsection (d).  (c) Within twenty-one days after the testing required under section 342D-104(d), the owner or operator of a commercial passenger vessel shall submit a written report to the department that contains the measurements required under section 342D-104(d) and describes the sampling technique and analytical testing methods used. The information in the report required under this subsection may be provided by referring to, and including copies of, other reports that are required by substantially equivalent state or federal reporting requirements. The department shall establish, by rule, requirements for determining substantially equivalent information gathering.  (d) If the owner or operator of a commercial passenger vessel operating in the marine waters of the State is required by the laws of the United States to file a report or provide notice of a discharge or offloading of a hazardous waste or hazardous substance that was generated, discharged, or offloaded while the vessel was operating in the marine waters of the State, the owner or operator shall submit to the department a copy of the report or notice within twenty-one days after having provided the report or notice to an agency of the United States.  (e) If the owner or operator of a commercial passenger vessel operating in the marine waters of the State is required by the administrator of the Environmental Protection Agency or the secretary of the federal department in which the United States Coast Guard is operating to collect samples and test sewage or opacity of air emissions and keep records of the sampling and testing, then the owner or operator, within twenty-one days after the sewage or opacity of air emissions is tested, shall submit to the department a copy of the records.  (f) Upon request of the department, the information required under this section shall be submitted electronically.  (g) This section does not relieve the owner or operator of a commercial passenger vessel from other applicable reporting requirements of state or federal law.  (h) The requirements of this section are subject to alternative terms and conditions established under section 342D-111. [L 2005, c 217, pt of 1]
  342D-107 Memorandum of understanding; recognition program. (a) Nothing contained in this part shall prevent the State from:  (1) Entering into voluntary agreements with any owners or operators of commercial passenger vessels, or their representatives, for the purpose of controlling pollution outside the marine waters of the State; or  (2) Adopting pollution controls more stringent than those contained in this part.  (b) The department may engage in efforts to encourage and recognize superior environmental protection efforts made by the owners or operators of commercial passenger vessels that exceed the requirements established by law. [L 2005, c 217, pt of 1]
  342D-108 Exemption for vessels in innocent passage. This part does not apply to a commercial passenger vessel that operates in the marine waters of the State solely in innocent passage. For purposes of this section, a vessel is engaged in innocent passage if its operation in marine waters of the State, regardless of whether the vessel is a United States or foreign-flag vessel, would constitute innocent passage under the United Nations Convention on the Law of the Sea 1982, December 10, 1982, United Nations Publication No. E.83.V.5, 21 I.L.M. 1261 (1982), were the vessel a foreign-flag vessel. [L 2005, c 217, pt of 1]
  342D-109 Activities of the department. The department may engage in the following activities relating to commercial passenger vessels operating in the marine waters of the State:  (1) Direct in-water monitoring of discharges or releases of sewage and direct monitoring of the opacity of air emissions from those vessels;  (2) Monitoring and studying of direct or indirect environmental effects of those vessels; and  (3) Researching ways to reduce effects of those vessels on marine waters and other coastal resources. [L 2005, c 217, pt of 1]
 342D-11 Injunctive and other relief. The director may institute a civil action in any environmental court of competent jurisdiction for injunctive and other relief to prevent any violation of this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter, without the necessity of a prior revocation of the permit or variance, to impose and collect civil penalties, to collect administrative penalties, or to obtain other relief. The environmental court shall have power to grant relief in accordance with the Hawaii rules of civil procedure. [L 1989, c 212, pt of 2; am L 1995, c 180, 11; am L 2014, c 218, 8] Rules of Court  Injunctions, see HRCP rule 65.
  342D-110 Fine schedules for illegal discharges. (a) Any person who fails to comply with any requirement of this part shall be subject to the fines established by the department pursuant to subsection (b).  (b) The department shall by rule under chapter 91, establish fines for the failure to comply with any requirement of this part. [L 2005, c 217, pt of 1]
  342D-111 Alternative terms and conditions of vessel discharges. (a) The department may establish alternative terms and conditions of vessel discharges applicable to an owner or operator of a vessel who cannot practicably comply with the standard terms and conditions of vessel discharges under sections 342D-102, 342D-103, 342D-104, and 342D-106 or who wishes to use or test alternative environmental protection equipment or procedures. Except as specified in alternative terms and conditions set by the department under this subsection, the alternative terms and conditions of vessel discharges must require compliance with the standard terms and conditions of vessel discharges under sections 342D-102, 342D-103, 342D-104, and 342D-106. The department, on a case-by-case basis, may set alternative terms and conditions of vessel discharges if:  (1) The vessel owner or operator demonstrates to the department's reasonable satisfaction that equivalent environmental protection can be attained through other terms or conditions appropriate for the specific configuration or operation of the vessel;  (2) The vessel owner or operator agrees to make necessary changes to the vessel to allow it to comply with the standard terms and conditions of vessel discharges under sections 342D-102, 342D-103, 342D-104, and 342D-106 but demonstrates to the department's reasonable satisfaction that additional time is needed to make the necessary changes; or  (3) An experimental technology or method for pollution control of a discharge is being used or is proposed as one of the alternative terms and conditions of vessel discharges, and the department determines that the experimental technology or method has a reasonable likelihood of success in providing increased protection for the environment.  (b) Alternative terms and conditions of vessel discharges approved by the department under subsection (a), if determined appropriate by the department, may include a waiver by the department of portions of the requirements of sections 342D-102, 342D-103, and 342D-104 for the time period that the department determines to be appropriate. [L 2005, c 217, pt of 1]
  342D-12 Appeal. If any party is aggrieved by the decision of the director, the party may appeal in the manner provided in chapter 91 to the circuit environmental court of the circuit in which the party resides or has the party's principal place of business or in which the action in question occurred; provided that the operation of a cease and desist order will not be stayed on appeal unless specifically ordered by [an] environmental court of competent jurisdiction. [L 1989, c 212, pt of 2; am L 2014, c 218, 8]
  342D-13 Fees. The director may establish reasonable fees for the issuance of permits and variances to cover the cost of issuance thereof and for the implementation and enforcement of the terms and conditions of permits and variances (not including court costs or other costs associated with any formal enforcement action). The fees shall be deposited to the credit of the general fund. [L 1989, c 212, pt of 2] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342D-14 Public records; confidential information; penalties. Reports submitted to the department on discharges of waste shall be made available for inspection by the public during established office hours unless such reports contain information of a confidential nature concerning secret processes or methods of manufacture. Any officer, employee, or agent of the department acquiring confidential information from the inspection authorized by section 342D-8 who divulges information except as authorized in this chapter or except as ordered by a court or at an administrative hearing regarding an alleged violation of this chapter or of any rule or standard adopted pursuant to this chapter shall be fined not more than $1,000. [L 1989, c 212, pt of 2] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342D-15 Nonliability of department personnel. Notwithstanding any other law to the contrary, no member, officer, or employee of the department shall be criminally liable or responsible under this chapter for any acts done by the member, officer, or employee in the performance of the member's, officer's, or employee's duties; provided that this section shall not apply to violations of section 342D-14. [L 1989, c 212, pt of 2]
  342D-16 Remedies preserved. No existing civil or criminal remedy for any wrongful action that is a violation of any statute or any rule of the department or the ordinance of any county shall be excluded or impaired by this chapter. No existing civil or criminal remedy shall exclude or impair the remedies provided in this chapter. [L 1989, c 212, pt of 2; am L 1999, c 193, 7]
  342D-17 Enforcement by state and county authorities. All state and county health authorities and police officers shall enforce this chapter and the rules and orders of the department. [L 1989, c 212, pt of 2] Law Journals and Reviews  Ala Loop and the Private Right of Action Under Hawai`i Constitution Article XI, Section 9: Charting a Path Toward a Cohesive Enforcement Scheme. 33 UH L. Rev. 367 (2010).
  342D-18 Other powers of department not affected. The powers, duties, and functions vested in the department under this chapter shall not be construed to affect in any manner the powers, duties, and functions vested in the department under any other law. [L 1989, c 212, pt of 2]
  342D-19 Effect of laws, ordinances, and rules. (a) All laws, ordinances, and rules inconsistent with this chapter shall be void and of no effect.  (b) Any county may adopt ordinances and rules governing any matter relating to water pollution control which is not governed by a rule of the department adopted pursuant to this chapter; provided that any county ordinance or rule relating to water pollution control shall be void and of no effect as to any matter regulated by a rule of the department upon the adoption thereof except as provided in subsection (c).  (c) Any county desiring to administer its own laws, ordinances, and rules on the design, construction, and operation of sewerage and treatment facilities may submit to the director a full and complete description of the program it proposes to establish and administer under county law. In addition, the county shall submit a statement from its corporation counsel or county attorney that the laws of the county provide adequate authority and the standards are equal to or more stringent than the standards of the department to carry out the described program. The director shall approve each such submitted program unless the director determines that either adequate authority does not exist or the proposed standards are less stringent than those of the department. [L 1989, c 212, pt of 2]
  342D-2 Administration. The department shall administer this chapter through the director. The director may delegate to any person such power and authority vested in the director by this chapter as the director deems reasonable and proper for the effective administration of this chapter, except the power to make rules. [L 1989, c 212, pt of 2]
  342D-20 Priority in courts. All actions brought pursuant to this chapter or pursuant to the rules adopted under this chapter shall in the discretion of the court receive priority in the courts of the State. [L 1989, c 212, pt of 2] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342D-21 Sale and distribution of sunscreen containing oxybenzone or octinoxate, or both; prohibition. (a) Beginning January 1, 2021, it shall be unlawful to sell, offer for sale, or distribute for sale in the State any sunscreen that contains oxybenzone or octinoxate, or both, without a prescription issued by a licensed healthcare provider.  (b) No county shall enact any ordinance or regulatory restriction to prohibit the sale, use, labeling, packaging, handling, distribution, or advertisement of sunscreens containing oxybenzone or octinoxate, or both, prior to January 1, 2021.  (c) For purposes of this section:  "Licensed healthcare provider" means a physician or osteopathic physician licensed pursuant to chapter 453, or an advanced practice registered nurse licensed pursuant to chapter 457.  "Octinoxate" refers to the chemical (RS)-2-Ethylhexyl (2E)-3-(4-methoxyphenyl)prop-2-enoate under the International Union of Pure and Applied Chemistry chemical nomenclature registry; that has a chemical abstract service registry number 5466-77-3; the synonyms of which include but are not limited to ethylhexyl methoxycinnamate, octyl methoxycinnamate, Eusolex 2292, Neo Heliopan AV, NSC 26466, Parsol MOX, Parsol MCX, and Uvinul MC80; and is intended to be used as protection against ultraviolet light radiation with a spectrum wavelength from 370 nanometers to 220 nanometers in a sunscreen.  "Oxybenzone" refers to the chemical (2-Hydroxy-4-methoxyphenyl)-phenylmethanone under the International Union of Pure and Applied Chemistry chemical nomenclature registry; that has a chemical abstract service registry number 131-57-7; the synonyms of which include but are not limited to benzophenone-3, Escalol 567, Eusolex 4360, KAHSCREEN BZ-3, Uvasorb MET/C, Syntase 62, UV 9, Uvinul 9, Uvinul M-40, Uvistat 24, USAF Cy-9, Uniphenone-3U, 4-methoxy-2-hydroxybenzophenone and Milestab 9; and is intended to be used as protection against ultraviolet light radiation with a spectrum wavelength from 370 nanometers to 220 nanometers in a sunscreen.  "Prescription" means an order for medication, that is dispensed to or for an ultimate user. "Prescription" shall not include an order for medication that is dispensed for immediate administration to the ultimate user, such as a chart order to dispense a drug to a bed patient for immediate administration in a hospital. "Prescription" includes an order for a sunscreen.  "Sunscreen" means a product marketed or intended for topical use to prevent sunburn. Sunscreen does not include products marketed or intended for use as a cosmetic, as defined in section 328-1, for the face. [L 2018, c 104, 2]
  342D-3 Board membership. Notwithstanding any law to the contrary, no individual, board, or body of this State which grants permits required under this chapter shall be or include, as a member, any person who receives or has during the previous two years received, a significant portion of the person's income directly or indirectly from permit holders or applicants for a permit; provided that for the purposes of this section, no agency, board, or body of the State shall be considered a permit holder or applicant for a permit. [L 1989, c 212, pt of 2]
  342D-30 Civil penalties. (a) Any person who violates this chapter, any rule, or any term or condition of a permit or variance issued pursuant to this chapter shall be fined not more than $25,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken in environmental court to impose or collect the penalty provided for in this section shall be considered a civil action. In determining the amount of a civil penalty the environmental court shall consider the seriousness of the violation or violations, the economic benefit, if any, resulting from the violation, any history of these violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and any other matters that justice may require. It shall be presumed that the violator's economic and financial conditions allow payment of the penalty, and the burden of proof of the contrary is on the violator.  (b) Any person who denies, obstructs, or hampers the entrance or inspection by any duly authorized officer or employee of the department of any building, place, or vehicle that the officer or employee is authorized to enter and inspect shall be fined not more than $10,000 for each day of denial, obstruction, or hampering. Any action taken in environmental court to impose or collect the penalty provided for in this subsection shall be considered a civil action. [L 1989, c 212, pt of 2; am L 1991, c 157, 12; am L 1995, c 180, 12; am L 1997, c 147, 2; am L 1999, c 193, 8; am L 2014, c 218, 8]
 342D-31 Administrative penalties. (a) In addition to any other administrative or judicial remedy provided by this chapter, or by rules adopted under this chapter, the director is authorized to impose by order the penalties specified in section 342D-30.  (b) Factors to be considered in imposing an administrative penalty include:  (1) The nature, circumstances, extent, gravity, and history of the violation and of any prior violations;  (2) The economic benefit to the violator, or anticipated by the violator, resulting from the violation;  (3) The opportunity, difficulty, and history of corrective action;  (4) Good faith efforts to comply;  (5) Degree of culpability; and  (6) Such other matters as justice may require.  (c) It is presumed that the violator's economic and financial conditions allow payment of the penalty, and the burden of proof to the contrary is on the violator. [L 1989, c 212, pt of 2; am L 1994, c 269, 2; am L 1995, c 180, 13; am L 1999, c 193, 9]
  342D-32 Negligent violations. Any person who:  (1) Negligently violates this chapter or any rule adopted by the department pursuant to this chapter, or any condition in a permit issued under this chapter or any requirement imposed in a pretreatment program under this chapter; or  (2) Negligently introduces into a sewerage system or into a publicly owned treatment works any water pollutant or hazardous substance which such person knew or reasonably should have known could cause personal injury or property damage or, other than in compliance with all applicable federal, state, or local requirements or permits, which causes such treatment works to violate any effluent limitation or condition in any permit issued to the treatment works under this chapter; shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this section, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment of not more than two years, or by both. [L 1989, c 212, pt of 2; am L 1994, c 5, 2]
  342D-33 Knowing violations. Any person who:  (1) Knowingly violates this chapter or any rule adopted by the department pursuant to this chapter, or any condition in a permit issued under this chapter or any requirement imposed in a pretreatment program; or  (2) Knowingly introduces into a sewerage system or into a publicly owned treatment works any water pollutant or hazardous substance which such person knew or reasonably should have known could cause personal injury or property damage or, other than in compliance with all applicable federal, state, or local requirements or permits, which causes such treatment works to violate any effluent limitation or condition in a permit issued to the treatment works under this chapter; shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than three years, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this section, punishment shall be by a fine of not more than $100,000 per day of violation, or by imprisonment of not more than six years, or by both. [L 1989, c 212, pt of 2]
  342D-34 Knowing endangerment. (a) Any person who knowingly violates this chapter or any rule adopted by the department pursuant to this chapter, or any condition in a permit issued under this chapter, and who knows at that time that the violation places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than $250,000 or imprisonment of not more than fifteen years, or both.  (b) A person which is an organization, upon conviction of violating this section, shall be subject to a fine of not more than $1,000,000. If a conviction of a person is for a violation committed after a first conviction of such person under this section, the maximum punishment shall be doubled with respect to both fine and imprisonment.  (c) For the purpose of this section, in determining whether a defendant who is an individual knew that the individual's conduct placed another person in imminent danger of death or serious bodily injury:  (1) The person is responsible only for actual awareness or actual belief that the person possessed; and  (2) Knowledge possessed by a person other than the defendant but not by the defendant may not be attributed to the defendant; except that in proving the defendant's possession of actual knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself or herself from relevant information.  (d) It is an affirmative defense to prosecution that the conduct charged was consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of:  (1) An occupation, a business, or a profession; or  (2) Medical treatment or medical or scientific experimentation conducted by professionally approved methods and such other person had been made aware of the risks involved prior to giving consent; and such defense may be established under this section by a preponderance of the evidence.  (e) The term "organization" means a legal entity, other than a government, established or organized for any purpose, and such term includes a corporation, company, association, firm, partnership, joint stock company, foundation, institution, trust, society, union, or any other association of persons.  (f) The term "serious bodily injury" means bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. [L 1989, c 212, pt of 2]
  342D-35 False statements. Any person who knowingly makes any false material statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained under this chapter or who knowingly falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained under this chapter, shall upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this section, punishment shall be by a fine of not more than $20,000 per day of violation, or by imprisonment of not more than four years, or by both. [L 1989, c 212, pt of 2]
  342D-36 Treatment of single operational upset. For the purpose of this part, a single operational upset which leads to simultaneous violations of more than one water pollutant parameter shall be treated as a single violation. [L 1989, c 212, pt of 2]
  342D-37 Responsible corporate officer as "person". For the purpose of this chapter, the term "person" means, in addition to the definition contained in section 342D-1, any responsible corporate officer. [L 1989, c 212, pt of 2]
  342D-38 Hazardous substance defined. For the purpose of this part, the term "hazardous substance" means:  (1) Any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act, as amended (FWPCA);  (2) Any element, compound, mixture, solution, or substance designated pursuant to section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980;  (3) Any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress);  (4) Any toxic pollutant listed under section 307(a) of the FWPCA; and  (5) Any imminently hazardous chemical substance or mixture with respect to which the administrator has taken action pursuant to section 7 of the Toxic Substances Control Act. [L 1989, c 212, pt of 2] Cross References  Environmental response law, see chapter 128D.  Hawaii emergency planning and community right-to-know act, see chapter 128E.
  342D-39 Disposition of collected fines and penalties. Fines and penalties collected under this part shall be deposited into the environmental response revolving fund established by section 128D-2. [L 1991, c 157, 2]
  342D-4 Duties; rules. In addition to any other power or duty prescribed by law and in this chapter, the director shall prevent, control, and abate water pollution in the State and may control all management practices for domestic sewage, sewage sludge, and recycled water, whether or not the practices cause water pollution. In the discharge of this duty, the director may adopt rules pursuant to chapter 91 necessary for the purposes of this chapter. Any person heard at the public hearing shall be given written notice of the action taken by the department with respect to the rules. [L 1989, c 212, pt of 2; am L 1995, c 180, 6; am L 1999, c 193, 3]
  342D-5 Rules; specific. The director may establish by rule, water quality standards, effluent standards, treatment and pretreatment standards, and standards of performance for specific areas and types of discharges in the control of water pollution, thereby allowing for varying local conditions. [L 1989, c 212, pt of 2]
  342D-50.5 Treated or raw sewage; prohibition. (a) Notwithstanding any other law to the contrary, no person, including any public body, shall discharge any treated or raw sewage into state waters after December 31, 2026; provided that this section shall not apply to a sewage treatment plant that:  (1) Utilizes sewage to produce clean energy pursuant to section 196-10.5; and  (2) Is in compliance with this chapter, rules adopted pursuant to this chapter, or a permit or variance issued by the director.  (b) Nothing in this section shall be construed to:  (1) Prohibit the use of reclaimed or recycled water for a beneficial purpose as provided by law; or  (2) Allow the discharge of treated or raw sewage into state waters in violation of any federal statute, rule, or regulation. [L 2016, c 248, 1]
  342D-50 Prohibition. (a) No person, including any public body, shall discharge any water pollutant into state waters, or cause or allow any water pollutant to enter state waters except in compliance with this chapter, rules adopted pursuant to this chapter, or a permit or variance issued by the director.  (b) No person, including any public body, shall knowingly establish, extend, or alter any system of drainage, sewage, or water supply, or undertake any project in sewage outfall areas where there may be a possibility of alteration of currents depended upon for dilution without first securing approval in writing from the director.  (c) No person, including any industrial user, shall discharge any water pollutant or effluent into a publicly owned treatment works or sewerage system in violation of:  (1) A pretreatment standard established by the department or the publicly owned treatment works; or  (2) A pretreatment condition in a permit issued by the department or a publicly owned treatment works.  (d) No person, including any public body, shall violate any rule adopted pursuant to this chapter or any permit or variance issued or modified pursuant to this chapter. [L 1989, c 212, pt of 2; am L 1995, c 180, 14]
 342D-51 Affirmative duty to report discharges. Any person who has caused an unlawful discharge under section 342D-50(a) has an affirmative duty to report the incident to the director within twenty-four hours of the discharge, unless a valid permit issued under section 342D-6 specifies another reporting period for the specific discharge. [L 1989, c 212, pt of 2; am L 1991, c 157, 13]
  342D-52 Testing of water and aquatic and other life. The director may test any water and aquatic and other life that has been subjected to an oil spill or any other form of water pollution and assess the environmental effects of the pollution, including its effects on:  (1) The quality of the receiving water; and  (2) Aquatic and other life. If the department determines that the effects are such that it would be hazardous to consume the aquatic or other life, the department shall immediately notify the public of that hazard through the news media and by posting warning signs in the areas where the water and shoreline contain aquatic or other life that would be hazardous to consume. [L 1989, c 212, pt of 2]
  342D-53 Certifying agency. The director may act as a certifying agency, as defined in 40 Code of Federal Regulations 121.1(e) (1985). [L 1989, c 212, pt of 2]
 342D-54 Wastewater treatment works; financial assistance; grants. (a) The director may make grants to any county or state agency for the construction of necessary wastewater treatment works and for other projects intended for recycled water or waste management by other than conventional means to prevent or to control the discharge of untreated or inadequately treated sewage or other waste into any state waters.  (b)  No grant shall be made for any project unless:  (1) The project conforms with the state water pollution control plan;  (2) The project is certified by the director as being entitled to priority over other eligible projects on the basis of financial as well as water pollution control needs;  (3) In the case of wastewater treatment works, the application for the grant contains the following:  (A) Reasonable assurances that the applicant will provide for the proper and efficient operation and maintenance of the wastewater treatment works after its construction; and  (B) Reasonable assurances by the applicant that an impact fee structure will be instituted to ensure that new developments pay their appropriate share of the costs of the wastewater treatment works, as determined by the counties;  (4) The county or state agency receiving these state funds requires the installation of the low flow water fixtures and devices for faucets, hose bibbs, showerheads, urinals, and toilets in all new construction projects, and the fixtures and devices shall be approved by the International Association of Plumbing and Mechanical Officials and shall comply with applicable American National Standards Institute standards and other standards as may be required by the respective county for all new residential and public buildings; and  (5) The department, where appropriate, determines that the county receiving these funds has taken specific steps to reduce polluted runoff into state waters through educational and regulatory programs.  (c) If federal grant funds are available, the applicant shall be required to pay sixty per cent of the nonfederal share of the estimated reasonable cost of the approved wastewater treatment works as defined by Title 33 United States Code section 1251 et seq. If federal grant funds are not available, the director may make grants up to one hundred per cent of the estimated cost of the project.  (d) Nothing in this section shall restrict the director's authority to make grants to wastewater treatment works or projects granted waivers under Title 33 United States Code section 1311(h).  (e) No moneys used or available for financing under part V shall be used for grants under this section.  (f) No later than twenty days prior to the convening of each regular session of the legislature, the director shall submit to the legislature a financial report addressing the status of each grant made during the last completed fiscal year. [L 1989, c 212, pt of 2; am L 1991, c 262, 1; am L 1996, c 81, 1; am L 1997, c 221, 2; am L 2001, c 269, 3]
  342D-55 Recordkeeping and monitoring requirements. (a) The director may require the owner or operator of any effluent source, works, system, or plant; any discharger of effluent; the applicant for written authorization under this chapter for such sources or facilities; or any person engaged in management practices to:  (1) Establish and maintain records;  (2) Make reports and plans that shall cover existing situations and proposed additions, modifications, and alterations;  (3) Install, use, and maintain monitoring equipment or methods;  (4) Sample effluent, state waters, sewage sludge, and recycled water; and  (5) Provide such other information as the department may require.  (b) The director may require that information and items required under subsection (a) be complete and detailed, in a prescribed form, made or prepared by a competent person acceptable to the director, and at the expense of the owner, operator, or applicant.  (c) Management practices covered in this section are those for domestic sewage, sewage sludge, and recycled water, whether or not such practices cause water pollution. [L 1989, c 212, pt of 2; am L 1995, c 180, 15; am L 1999, c 193, 10; am L 2001, c 269, 4]
  342D-56 Complaints; hearings; appointment of masters. The director may:  (1) Receive or initiate complaints of water pollution, hold hearings in connection with water pollution, and institute legal proceedings in the name of the State for the prevention, control, or abatement of water pollution; and  (2) Appoint a master or masters to conduct investigations and hearings. [L 1989, c 212, pt of 2]
  342D-57 Public participation activities; appointment of hearings officers. The director may appoint, without regard to chapter 76, hearings officers to conduct public participation activities, including public hearings and public informational meetings. [L 1989, c 212, pt of 2; am L 2000, c 253, 150]
  342D-58 Consultation and advice. The director may consult with and advise:  (1) Any person engaged or intending to be engaged in any business or undertaking whose waste, sewage, or drainage is polluting or may tend to pollute state waters; and  (2) Persons intending to alter or to extend any system of drainage, sewage, or water supply. [L 1989, c 212, pt of 2]
  342D-59 Research, educational, and training programs. The director may:  (1) Conduct and supervise research programs for the purpose of determining the causes, effects, and hazards of water pollution, the quality of the receiving water and the means to monitor the quality of water, or to effect the proper disposal of sewage, drainage, and waste;  (2) With the approval of the governor, cooperate with, and receive money from the federal government, or any political subdivision of the State or from private sources for the study and control of water pollution; and  (3) Conduct and supervise state educational and training programs on water pollution prevention, control, and abatement, including the preparation and distribution of information relating to water pollution. [L 1989, c 212, pt of 2]
  342D-6.5 Hawaiian loko i`a. (a) The department shall process applications for permits and water quality certifications for the reconstruction, restoration, repair, or reuse of any loko i`a, or Hawaiian fishpond as defined in section 183B-1, before all other permits and certifications. The director shall render a decision on the completeness of any application for that permit or water quality certification within thirty days of receipt. Applications for loko i`a reconstruction, restoration, or repair that are incomplete shall be denied without prejudice. The director shall render a decision on any complete application for a permit or water quality certification for any loko i`a within one hundred fifty days.  (b) The department shall waive the requirement to obtain water quality certification under this chapter for any person that has received notice of authorization to proceed from the department of land and natural resources office of conservation and coastal lands under the statewide programmatic general permit for the restoration, repair, maintenance, and operation of loko i`a.  (c) For purposes of this section:  "Water quality certification" means state certification pursuant to section 401 of the federal Clean Water Act. [L 1995, c 177, 3; am L 2015, c 230, 2]
  342D-6 Permits; procedures for. (a) An application for any permit required under this chapter shall be in a form prescribed by the director.  (b) The department may require that applications for permits shall be accompanied by plans, specifications, and any other information that it deems necessary to determine whether the proposed installation, alteration, or use will be in accord with applicable rules and standards.  (c) The director shall issue a permit for any term, not exceeding five years, if the director determines that it will be in the public interest; provided that the permit may be subject to any reasonable conditions that the director may prescribe. The director may include conditions in permits or may issue separate permits for management practices for domestic sewage, sewage sludge, and recycled water, regardless of whether the practices cause water pollution. The director, on application, shall renew a permit from time to time, for a term not exceeding five years, if the director determines that it will be in the public interest. The director shall not grant or deny an application for the issuance or renewal of a permit without affording the applicant and any person who commented on the proposed permit during the public comment period an opportunity for a hearing in accordance with chapter 91. A request for a hearing and any judicial review of the hearing shall not stay the effect of the issuance or renewal of a permit unless specifically ordered by the director or an environmental court.  (d) The director, on the director's own motion or the application of any person, may modify, suspend, revoke, or revoke and reissue any water pollution permit if, after affording the permittee an opportunity for a hearing in accordance with chapter 91, the director determines that:  (1) There is a violation of any condition of the permit;  (2) The permit was obtained by misrepresentation or there was failure to disclose fully all relevant facts;  (3) There is a change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge; or  (4) It is in the public interest.  The public interest excludes any reason less stringent than the causes for permit modification, revocation, and termination, or revocation and reissuance identified in title 40 Code of Federal Regulations section 122.62 or 122.64.  (e) The director, on the director's own motion or the application of any person, may modify, suspend, revoke, or revoke and reissue any sludge permit after affording the permittee an opportunity for a hearing in accordance with chapter 91, and consistent with title 40 Code of Federal Regulations section 501.15(c)(2) and (3) and (d)(2).  (f) The director shall ensure that the public receives notice of each application for a permit to control water pollution. The director may hold a public hearing before ruling on an application for a permit to control water pollution if the director determines the public hearing to be in the public interest. In determining whether a public hearing would be in the public interest, the director shall be guided by title 40 Code of Federal Regulations section 124.12(a).  (g) In determining the public interest regarding permit issuance or renewal, the director shall consider the environmental impact of the proposed action, any adverse environmental effects that cannot be avoided should the action be implemented, the alternatives to the proposed action, the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented, and any other factors that the director, by rule, may prescribe; provided that any determination of public interest shall promote the optimum balance between economic development and environmental quality.  (h) No applicant for a modification or renewal of a permit shall be held in violation of this chapter during the pendency of the applicant's application so long as the applicant acts consistently with the permit previously granted, the application and all plans, specifications, and other information submitted as part thereof.  (i) The department shall not require a water quality certification pursuant to section 401 of the federal Clean Water Act under this chapter for any applicant of the small-scale beach restoration program that has received notice of authorization to proceed from the department of land and natural resources' office of conservation and coastal lands. [L 1989, c 212, pt of 2; am L 1995, c 180, 7; am L 1997, c 267, 1; am L 1999, c 193, 4; am L 2014, c 218, 8; am L 2021, c 162, 2]
  342D-60 Annual reports. The director may publish annual reports on the quality of the state waters, which annual report shall include, but not be limited to:  (1) A description of sampling programs and quality control methods procedures;  (2) Statistical analysis and interpretation of the data on an annual basis by specific points (monitoring stations);  (3) Discussion of the results of these analyses to the extent that the implications can be understood by the general public;  (4) Recommendations for the modification of the water quality monitoring program to enhance its effectiveness for maintaining high standards of water quality in the State; and  (5) A note of any significant changes in the quality of state waters. [L 1989, c 212, pt of 2]
  342D-61 Household aerobic unit approval. (a) The installation or use of household aerobic units that discharge directly to groundwater are prohibited in the State unless approved by the director.  (b) The director shall approve household aerobic units based on the National Sanitation Foundation/American National Standards Institute Standard 245 for class I aerobic units.  (c) The director may adopt rules, pursuant to chapter 91, necessary for the purposes of this section. [L 2017, c 89, 1]
 342D-7 Variances. (a) Every application for a variance shall be made on forms furnished by the department and shall be accompanied by a complete and detailed description of present conditions, how present conditions do not conform to standards, and such other information as the department may by rule prescribe.  (b) Each application for a variance shall be reviewed in light of the descriptions, statements, plans, histories, and other supporting information submitted with the application, such additional information as may be submitted upon the request of the department, and the effect or probable effect upon the water quality standards established pursuant to this chapter.  (c) Whenever an application is approved, the department shall issue a variance authorizing the discharge of water pollutant in excess of applicable standards. No variance shall be granted by the department unless the application and the supporting information clearly show that:  (1) The continuation of the function or operation involved in the discharge of waste occurring or proposed to occur by the granting of the variance is in the public interest as defined in section 342D-6;  (2) The discharge occurring or proposed to occur does not substantially endanger human health or safety; and  (3) Compliance with the rules or standards from which variance is sought would produce serious hardship without equal or greater benefits to the public.  (d) Any variance or renewal thereof shall be granted within the requirements of this section and for time periods and under conditions consistent with the reasons therefor, and within the following limitations:  (1) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, control, or abatement of the water pollution involved, it shall be only until the necessary means for prevention, control, or abatement become practicable and subject to the taking of any substitute or alternate measures that the department may prescribe. No renewal of a variance granted under this subsection shall be allowed without a thorough review of known and available means of preventing, controlling, or abating the water pollution involved.  (2) The director may issue a variance for a period not exceeding five years.  (3) Every variance granted under this section shall include conditions requiring the grantee to perform discharge or effluent sampling and report the results of such sampling to the department.  (e) Any variance granted pursuant to this section may be renewed from time to time on terms and conditions and for periods not exceeding five years which would be appropriate on initial granting of a variance; provided that the applicant for renewal has met all of the conditions specified in the immediately preceding variance; and provided further that the renewal, and the variance issued in pursuance thereof, shall provide for discharge not greater than that attained pursuant to the terms of the immediately preceding variance at its expiration. No renewal shall be granted except on application therefor. Any such application shall be made at least one hundred eighty days prior to the expiration of the variance. The director shall act on an application for renewal within one hundred eighty days of the receipt of such application.  (f) The director may afford a hearing in accordance with chapter 91 in relation to an application for the issuance, renewal, or modification of a variance.  (g) No variance granted pursuant to this chapter shall be construed to prevent or limit the application of any emergency provisions and procedures provided by law.  (h) Notwithstanding any provision in this section, no variance shall be granted or renewed pursuant to this chapter with respect to any discharge of water pollutants or wastes that is in violation of the requirements of the Federal Water Pollution Control Act and the amendments thereto.  (i) Any application for a variance, submitted pursuant to this chapter, shall be subject to the public participation requirements listed below:  (1) Public notices of every completed application for a variance shall be circulated in a manner designed to inform interested and potentially interested persons of the proposed discharge or other proposed activity. Procedures for the circulation of public notices shall include at least the following:  (A) Notice shall be given within the geographical areas of the proposed discharge or other proposed activity;  (B) Notice shall be mailed to any person or group upon request; and  (C) The director shall add the name of any person or group upon request to a mailing list to receive copies of notices for all variance applications within the State or within a certain geographical area;  (2) The director shall provide a period of not less than thirty days following the date of the public notice during which time interested persons may submit their written reviews with respect to the variance application and the tentative determinations of the department, if any. The period for comment may be extended at the discretion of the director;  (3) The contents of public notice of applications for variances shall include at least the following:  (A) Name, address, and phone number of agency issuing the public notice;  (B) Name and address of each applicant;  (C) Brief description of each applicant's activities or operations which result in the discharge or other activity described in the variance application (e.g., rock crushing plant, municipal waste treatment plant, raw sugar factory, or pineapple cannery);  (D) A short description of the location of each discharge indicating whether the discharge is new or existing;  (E) A brief description of the procedures for the formulation of final determinations, including the thirty-day comment period required by paragraph (2) and any other means by which interested persons may influence or comment upon those determinations; and  (F) Address and phone number of state agency premises at which interested persons may obtain further information and inspect a copy of the variance applications and supporting and related documents; and  (4) The director may hold a public hearing if, after reviewing the comments submitted under paragraph (2), the director determines that a public hearing is warranted. Any hearing brought pursuant to this subsection shall be held in the geographical area of the proposed discharge or other proposed activity, or other appropriate area, at the discretion of the director. [L 1989, c 212, pt of 2; am L 1998, c 2, 88]
  342D-70 Use of gray water for irrigation purposes. (a) The department may authorize any county to implement a gray water recycling program within its jurisdiction. The gray water recycling program shall be limited to the use of gray water for the purpose of irrigating lawns and gardens. All use of gray water shall conform to the state plumbing code, chapter 3-183, Hawaii administrative rules.  (b) The county seeking authorization shall submit to the department for its approval prior to implementation a detailed gray water recycling plan, including rules and procedures for the proposed program. The plan shall address the appropriateness of the program for the geographic area, the environmental impact of the program on the geographic area, the cost of the program, and any other factors deemed relevant by the department. The department may revoke the authorization at any time.  The department and the counties are encouraged to promote widespread use of gray water consistent with subsection (a) in the interests of water conservation. Any guidelines for the use of gray water for irrigation purposes shall be liberally construed so as to allow widespread use of gray water.  (c) For the purposes of this section, "gray water" shall have the same meaning as in section 342D-1. [L 1993, c 66, 2; am L 2013, c 233, 3]
  342D-71 Recycled water use. All state and county facilities using potable water irrigation systems may connect to available recycled water service. [L 2001, c 269, 1]
  342D-72 Cesspools; mandatory upgrade, conversion, or connection. (a) Prior to January 1, 2050, every cesspool in the State, excluding cesspools granted exemptions by the director of health pursuant to subsection (b), shall be:  (1) Upgraded or converted to a septic system or aerobic treatment unit system; or  (2) Connected to a sewerage system.  (b) The director of health may grant exemptions from the requirements of subsection (a) to property owners of cesspools that apply for an exemption and present documentation showing a legitimate reason that makes it infeasible to upgrade, convert, or connect the cesspools. For the purposes of this subsection, a legitimate reason shall include but not be limited to:  (1) Small lot size;  (2) Steep topography;  (3) Poor soils; or  (4) Accessibility issues.  (c) As used in this section:  "Aerobic treatment unit system" means an individual wastewater system that consists of an aerobic treatment unit tank, aeration device, piping, and a discharge method that is in accordance with rules adopted by the department relating to household aerobic units.  "Cesspool" means an individual wastewater system consisting of an excavation in the ground whose depth is greater than its widest surface dimension, which receives untreated wastewater, and retains or is designed to retain the organic matter and solids discharged into it, but permits the liquid to seep through its bottom or sides to gain access to the underground geographic formation.  "Septic system" means an individual wastewater system that typically consists of a septic tank, piping, and a drainage field where there is natural biological decontamination as wastewater discharged into the system is filtered through soil. [L 2017, c 125, 1] Note  Cesspool conversion working group; reports to 2021-2023 legislature (dissolved on January 14, 2023). L 2018, c 132, 2; L 2019, c 170, 3.  Comprehensive statewide study of sewage contamination in nearshore marine areas; report to 2022 legislature and cesspool conversion working group. L 2018, c 132, 3; L 2019, c 170, 4.
 342D-8 Inspection of premises. (a) The director, in accordance with law, may enter and inspect any building or place to:  (1) Investigate an actual or suspected source of water pollution;  (2) Investigate actual or suspected management practices for domestic sewage, sewage sludge, and recycled water, whether or not the practices cause water pollution;  (3) Ascertain compliance or noncompliance with this chapter, any rule or standard adopted by the department pursuant to this chapter, or any permit or other approval granted by the department pursuant to this chapter; and  (4) Make reasonable tests in connection therewith.  (b) The director may require any permittee or holder of a variance or person subject to pretreatment requirements to permit the director or the director's authorized representative upon the presentation of the director's or representative's credentials:  (1) To enter upon permittee's or variance holder's premises or premises of a person subject to pretreatment requirements in which an effluent source is located or in which any records are required to be kept under the terms and conditions of the permit or variance or pretreatment requirements;  (2) To inspect any monitoring equipment or method required in the permit or variance or by pretreatment requirements; and  (3) To sample any discharge of water pollutants or effluent.  (c) No confidential information secured pursuant to this section by any official or employee of the department within the scope and course of the official's or employee's employment in the prevention, control, or abatement of water pollution shall be disclosed by the official or employee except as it relates directly to water pollution and then, only in connection with the official's or employee's official duties and within the scope and course of the official's or employee's employment. [L 1989, c 212, pt of 2; am L 1995, c 180, 8; am L 1999, c 193, 5]
Cross References Drinking water financing, see  340E-31 to 41.   342D-80 Definitions. As used in this part, unless the context otherwise requires:  "American Recovery and Reinvestment Act of 2009" means the federal law, Public Law 111-5, making appropriations for various purposes, including job preservation and creation, infrastructure investment, energy efficiency and science, assistance to the unemployed, and state and local fiscal stabilization purposes.  "Corpus allocation" means the amount of moneys in the revolving fund that is allocated by the director to provide earnings to reduce an eligible party's total financing costs for one or more eligible projects.  "Eligible party" means a county, state agency, or private person.  "Revolving fund" means the water pollution control revolving fund established by section 342D-83. [L 1997, c 221, pt of 1; am L 2002, c 132, 3; am L 2009, c 98, 5]
  342D-81 Declaration of policy. The State's policy is to promote water pollution prevention and control, including the use of recycled water, by financing eligible projects of eligible parties consistent with applicable federal and state laws. The State intends the financing to occur through a revolving fund loan program that makes loans to eligible parties at or below market rates and a leveraging program that uses revenue bonds and revolving fund loan programs together in a coordinated manner that does not cause the state debt ceiling to be exceeded. [L 1997, c 221, pt of 1; am L 2001, c 269, 5; am L 2002, c 132, 4]
  342D-82.5  Use of American Recovery and Reinvestment Act of 2009 and other federal moneys. (a) The director may provide financial assistance for publicly owned wastewater treatment works for the construction of necessary wastewater infrastructure projects, through the revolving fund, using moneys from the American Recovery and Reinvestment Act of 2009 and other applicable federal acts.   (b) The director may establish a separate account within the revolving fund and assign to that account federal moneys appropriated under federal laws that authorize principal forgiveness, zero and negative interest loans, and grants, including the American Recovery and Reinvestment Act of 2009 and other applicable federal acts. The director may use those moneys and in so doing may include additional requirements and subsidization not applicable to the remainder of the revolving fund, including forgiveness of principal, zero and negative interest loans, and grants to publicly-owned wastewater treatment works that meet eligibility requirements for the revolving fund.   (c) The director shall certify that a project receiving financial assistance is entitled to priority over other eligible projects on the basis of water pollution and financial needs, as well as a preference to those projects that can be started and completed expeditiously as stipulated under the American Recovery and Reinvestment Act of 2009 and other applicable federal acts.  (d) Among eligible projects, the director may also give priority to projects that incorporate renewable energy, energy efficiency, and conservation measures in wastewater infrastructure, to the extent allowed by federal law.  (e) Each project receiving financial assistance shall be in conformance with the conditions for water pollution control financing under section 342D-87(a)(1), (2), (4), and (5), and (b). [L 2009, c 98, 3]
  342D-82 Powers and duties. (a) In addition to any other power or duty prescribed by law, the director shall:  (1) Establish fiscal controls and accounting procedures at least sufficient to assure proper accounting for appropriate accounting periods of payments, disbursements, revenues, and fees received and made for fund balances at the beginning and end of the accounting period;  (2) Comply with sections 39-61 and 39-62 and ensure that any revenue bonds issued are excluded from the state constitutional debt ceiling. The revolving fund is a "special fund" within the meaning of article VII, section 13, of the state constitution and part III of chapter 39. The revolving fund is not a "special fund" within the meaning of sections 36-27 and 36-30; and  (3) No later than twenty days prior to the convening of each regular session of the legislature, submit to the legislature a financial report addressing the operations of the revolving fund during the last completed fiscal year.  (b) The director may:  (1) Provide financial assistance consistent with this part to any eligible party for the prevention, control, and abatement of water pollution in the State;  (2) Enter into any necessary or required agreement and give or make any necessary or required assurance, designation, or certification with or to any person in order to receive payments or to make or provide any financial assistance in conformance with Title 33 United States Code sections 1329, 1330, and 1383 to 1387;  (3) Enter into grant agreements with the administrator of the United States Environmental Protection Agency and accept capitalization grants;  (4) Adopt rules pursuant to chapter 91 for the purposes of this part, including rules setting fees for loans issued through the revolving fund and penalties for default of loan repayments;  (5) Pledge funds, loans, and accounts or subaccounts in the revolving fund to the payment or security of revenue bonds or loans issued under this part and make such corpus allocations as the director deems appropriate. The pledge shall constitute a lien and security interest on such funds and loans to the extent and with the priority as set forth in the document establishing the pledge, without physical delivery, recording, or other further act;  (6) Perform any act considered reasonably necessary, advisable, or expedient for the administration of this part or the advancement of the purposes of this part; and  (7) Direct the creation of one or more separate accounts or subaccounts within the revolving fund and specify any conditions applicable to the transfer of moneys and securities among the accounts and subaccounts. [L 1997, c 221, pt of 1; am L 2002, c 132, 5]
  342D-83 Revolving fund; establishment, purposes, coordination. (a) There is established in the state treasury a fund to be known as the water pollution control revolving fund to be administered by the director. The revolving fund shall be administered, operated, and maintained to remain available in perpetuity for its stated purpose.  (b) The purpose of the revolving fund is to provide financial assistance to eligible parties for projects or activities to:  (1) Enable counties and state agencies to plan, design, and construct publicly owned wastewater treatment works in accordance with title 33 United States Code sections 1381 to 1387;  (2) Enable eligible parties to implement management programs established under title 33 United States Code section 1329;   (3) Enable eligible parties to implement conservation and management plans established under title 33 United States Code section 1330;  (4) Enable eligible parties to construct, repair, or replace a privately owned decentralized wastewater treatment system and individual wastewater system that treats municipal wastewater or domestic sewage under title 33 United States Code section 1383;  (5) Enable eligible nonprofit entities to provide assistance to small and medium sized publicly owned treatment works for training activities, planning, design, and associated preconstruction activities under title 33 United States Code section 1383;  (6) Enable eligible parties to manage, reduce, treat, or recapture stormwater or subsurface drainage water under title 33 United States Code section 1383;  (7) Enable eligible parties to develop and implement watershed projects meeting the criteria under title 33 United States Code section 1274;  (8) Enable counties and state agencies to reduce the demand for publicly owned treatment works capacity through water conservation, efficiency, or reuse under title 33 United States Code section 1383;  (9) Enable counties and state agencies to reduce the energy consumption needs for publicly owned treatment works under title 33 United States Code section 1383;  (10) Enable eligible parties to reuse or recycle wastewater, stormwater, or subsurface drainage water under title 33 United States Code section 1383; and  (11) Enable eligible parties to increase the security of publicly owned treatment works under title 33 United States Code section 1383. [L 1997, c 221, pt of 1; am L 2002, c 132, 6; am L 2016, c 240, 2]
  342D-84 Revolving fund; uses. (a) Moneys in the revolving fund, if consistent with the purpose of the revolving fund stated in section 342D-83(b), may be used to:  (1) Provide, make, and condition loans;  (2) Guarantee eligible party loans and bonds and to purchase or provide bond insurance or other credit enhancement or liquidity support for eligible party debt service payments when such action would improve credit market access or reduce interest rates;  (3) Buy or refinance debt obligations of eligible parties at or below market rates, when the debt obligations were incurred after March 7, 1985;  (4) Support and pay the reasonable costs of administering the revolving fund, including operation and maintenance of the revolving fund, subject to the limits in Title 33 United States Code section 1383(d)(7) and Title 40 Code of Federal Regulations section 35.3120(g), and to provide a source of revenue or security for such support and payment;  (5) Pay the principal, interest, and redemption premium, if any, on revenue bonds issued by the director, if the proceeds of revenue bonds will be deposited in the revolving fund;  (6) Provide interest rate subsidies from earnings on corpus allocation to subsidize loans to eligible parties made from the proceeds of the revenue bonds of the department; and  (7) Provide interest rate subsidies to eligible parties by depositing revolving fund moneys into interest bearing accounts in participating financial institutions that issue loans for the implementation of eligible projects under section 342D-83(b).  (b) The entire water pollution control loan program, and not only those accounts or subaccounts funded by revenue bond proceeds, shall be subject to section 39-61 for the purposes of accomplishing leveraging and exclusion of the revenue bonds from the state constitutional debt ceiling. [L 1997, c 221, pt of 1; am L 2002, c 132, 7]
  342D-85 Revolving fund; deposits. The following may be deposited into the revolving fund:  (1) Federal capitalization grant funds and other federal grants, loans, or appropriations;  (2) Appropriations by the legislature to the revolving fund;  (3) Payments of principal and interest and other amounts made by eligible parties pursuant to loans or other agreements entered into with the director pursuant to this part; provided that if the loans were financed by proceeds of revenue bonds of the director, the deposit of the payments into the revolving fund shall be subject to the rights of the holders of the bonds to receive the moneys;  (4) Fees for loans and other items under section 342D-86;  (5) Proceeds of revenue bonds issued by the director for the purpose of providing financial assistance to eligible parties;  (6) Moneys paid to the revolving fund as a result of court ordered awards of judgments;  (7) Moneys paid to the revolving fund in court-approved or out-of-court settlements;  (8) All interest attributable to investment of moneys deposited in the revolving fund; and  (9) All moneys allotted or directed to the revolving fund from other sources. [L 1997, c 221, pt of 1; am L 2002, c 132, 8] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342D-86 Revolving fund; fees, interest, and investment on accounts. (a) The director may establish fees for loans, loan and bond guarantees, debt purchase and refinancing, interest rate subsidies, and other credit enhancement or liquidity support issued or provided through the revolving fund.  (b) The director shall adopt rules pursuant to chapter 91 for the purposes of this part, including fees for loans and other financial assistance, and penalties for default of loan and other financial assistance repayments.  (c) If established, fees shall cover the costs of current activities, including the issuance of loans and other financial assistance, monitoring of loans and other financial assistance repayments and conditions, technical review of the planning and design documents, monitoring of construction activities, conducting operation and maintenance inspections of wastewater facilities, and other activities of the revolving fund pursuant to Title 33 United States Code sections 1381 to 1387.  (d) All moneys collected as fees shall be deposited into an administrative expense account or accounts as needed to comply with Title 33 United States Code section 1383(d)(7) and shall be used exclusively to support the activities of the revolving fund.  (e) Moneys in the revolving fund shall be placed in interest bearing investments or otherwise invested at the discretion of the director until such time as the moneys may be needed. All interest accruing from the investment of these moneys shall be credited to the revolving fund; provided that moneys which are pledged as security for payment of revenue bonds may be invested as provided in section 342D-91. [L 1997, c 221, pt of 1]
  342D-87 Revolving fund; conditions. (a) The following conditions shall apply to each project receiving water pollution control financing under this part:  (1) The project shall conform with the state water quality management plan developed under title 33 United States Code section 1285(j), 1288, 1313(e), 1329, or 1330;  (2) The project shall be certified by the director as entitled to priority over other eligible projects on the basis of financial and water pollution control needs;  (3) In the case of wastewater treatment works construction projects, the application or agreement for the loan shall contain:  (A) Reasonable assurances that the applicant will provide for the proper and efficient operation and maintenance of the treatment works after its construction;  (B) Reasonable assurances by the applicant that an impact fee structure will be instituted to ensure that new developments pay their appropriate share of the costs of the wastewater treatment works, as determined by the counties; and  (C) Any other provisions required by federal or state law or deemed necessary or convenient by the director;  (4) The county or state agency receiving these funds for a construction project shall require the installation of the low flow water fixtures and devices for faucets, hose bibbs, showerheads, urinals, and toilets in all new construction projects; provided that the fixtures and devices shall be approved by the International Association of Plumbing and Mechanical Officials and shall comply with applicable American National Standards Institute standards and any other standards as may be required by the respective county for all new residential and public buildings; and  (5) The county receiving these funds shall take specific steps to reduce polluted runoff into state waters through educational and regulatory programs.  (b) The use of federal funds and state matching funds in the revolving fund shall be in conformance with title 33 United States Code sections 1381 to 1387.  (c) The director may make and condition loans from the revolving fund which shall:  (1) Be made at or below market interest rates; and  (2) Require periodic payments of principal and interest with repayment commencing not later than one year after completion of the project for which the loan is made; provided that all loans shall be fully amortized upon the expiration of the term of the loan.  (d) No loan of funds from the revolving fund shall be made unless the loan recipient pledges a dedicated source of revenue for the repayment of the loans. This pledge may be a county's full faith and credit (a general obligation payable from its general fund), special assessments, revenues from an undertaking, system, or improvements, including user charges, or any other source of revenue.  (e) Notwithstanding section 414D-85 to the contrary, the director may hold individual members of the nonprofit organization that received the loan jointly and severally liable for the nonpayment or default of the loan. [L 1997, c 221, pt of 1; am L 2016, c 240, 3]
  342D-88 Revenue bonds; authorization. (a) The director of health, with the approval of the governor and the [director of finance], may issue revenue bonds at such times and in such amount or amounts, not to exceed $250,000,000 in aggregate principal, as may be necessary to carry out the purposes of this part.  (b) All such bonds shall be issued pursuant to part III of chapter 39, except as provided in this part.  (c) The resolution or certificate providing for the issuance of the bonds may provide that all or part of the proceeds of the bonds shall be deposited in the revolving fund, where the proceeds shall be held and invested in a separate account or accounts until used in accordance with section 342D-84. [L 1997, c 221, pt of 1]
  342D-89 Revenue bonds; payment and security. (a) The revenue bonds shall be payable from and secured by the revenues derived from the benefits of the water pollution control loan program for which the revenue bonds are issued, including:  (1) Any repayment of eligible loans or other agreements entered into for the water pollution control loan programs;  (2) Revenues derived from insurance proceeds; and  (3) Reserve accounts and earnings thereon.  (b) The director may pledge any and all revenues derived from the water pollution control loan program to the punctual payment of the principal, interest, and redemption premiums, if any, on the revenue bonds.  (c) The revenue bonds may be additionally secured by the pledge or assignment of the loans and other agreements or any note, other undertaking, or obligation held by the director or the department to secure the loans.  (d) The director may issue such types of bonds as the director may determine, including bonds on which the principal and interest are payable exclusively from the income and revenues of the water pollution control loan program. [L 1997, c 221, pt of 1]
 342D-9 Enforcement. (a) If the director determines that any person has violated or is violating this chapter, any rule adopted pursuant to this chapter, or any permit or variance issued pursuant to this chapter, the director:  (1) Shall cause written notice to be served upon the alleged violator or violators. The notice shall specify the alleged violation and may contain an order specifying a reasonable time during which that person shall be required to take any measures that may be necessary to correct the violation and to give periodic progress reports; provided that if all attempts of service of process upon the alleged violator or violators are unsuccessful by personal delivery and by certified, registered, or express mail, notice may be given via a posting on a searchable government website and a sign conspicuously posted on the property, if appropriate;  (2) May require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of; and  (3) May impose penalties as provided in section 342D-31 by sending written notice, either by certified mail or by personal service, to the alleged violator or violators describing the violation.  (b) If the director determines that any person is continuing to violate this chapter, any rule adopted pursuant to this chapter, or any permit or variance issued pursuant to this chapter after having been served notice of violation, the director:  (1) Shall cause written notice to be served upon the alleged violator or violators. The notice shall specify the alleged violation and shall contain an order requiring that person to submit a written schedule within thirty days specifying the measures to be taken and the time within which such measures shall be taken to bring that person into compliance with this chapter, any rule adopted pursuant to this chapter, or any permit or variance issued pursuant to this chapter;  (2) Shall accept or modify the submitted schedule within thirty days of receipt of the schedule. Any schedule not acted upon after thirty days of receipt by the director shall be deemed accepted by the director;  (3) Shall issue to the alleged violator or violators a cease and desist order against the activities that violate this chapter, any rule adopted pursuant to this chapter, or any permit or variance issued pursuant to this chapter if that person does not submit a written schedule to the director within thirty days. This order shall remain in effect until the director accepts the written schedule; and  (4) May impose penalties as provided in section 342D-31 by sending a notice in writing, either by certified mail or by personal service, to the alleged violator or violators describing the violation.  (c) If the director determines that any person has violated an accepted schedule or an order issued under this section, the director shall impose penalties by sending a notice in writing, either by certified mail or by personal service, to that person, describing such nonadherence or violation with reasonable particularity.  (d) Any order issued under this chapter shall become final, unless not later than twenty days after the notice of order is served, the person or persons named therein request in writing a hearing before the director. Any penalty imposed under this chapter shall become due and payable twenty days after the notice of penalty is served unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on any penalty imposed under this chapter, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Upon request for a hearing, the director shall require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of.  (e) Any hearing conducted under this section shall be conducted as a contested case under chapter 91. If after a hearing held pursuant to this section, the director finds that a violation or violations have occurred, the director shall affirm or modify any penalties imposed or shall modify or affirm the order previously issued or issue an appropriate order or orders for the prevention, abatement, or control of the violation or discharges involved, or for the taking of such other corrective action as may be appropriate. If, after a hearing on an order or penalty contained in a notice, the director finds that no violation has occurred or is occurring, the director shall rescind the order or penalty. Any order issued after hearing may prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the violation or discharges.  (f) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the director may institute a civil action in the name of the State to collect the administrative penalty which shall be a government realization.  In any proceeding to collect the administrative penalty imposed, the director need only show that:  (1) Notice was given;  (2) A hearing was held or the time granted for requesting a hearing expired without a request for a hearing;  (3) The administrative penalty was imposed; and  (4) The penalty remains unpaid.  (g) In connection with any hearing held pursuant to this section, the director shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties. [L 1989, c 212, pt of 2; am L 1990, c 298, 3; am L 1995, c 180, 9; am L 2016, c 45, 1] Law Journals and Reviews  Ala Loop and the Private Right of Action Under Hawai`i Constitution Article XI, Section 9: Charting a Path Toward a Cohesive Enforcement Scheme. 33 UH L. Rev. 367 (2010). Case Notes  Department notice sent under subsection (a)(1) by regular mail was not considered commencement of an action for penalties. 891 F. Supp. 1389.  Hawaii laws relevant to citizens' enforcement action (brought under section of Clean Water Act), which required it to provide only violators with notice and an opportunity to be heard on pre-final decisions, failed to establish public's right to early information and intervention; Hawaii law was not sufficiently "comparable" to Clean Water Act to allow preemption of plaintiff's lawsuit. 904 F. Supp. 1098.
  342D-90 Revenue bonds; amount issued. The director may include the costs of undertaking, administering, operating, and maintaining the water pollution control loan programs for which the bonds are issued in determining the principal amount of bonds to be issued. In determining the cost of undertaking, administering, operating, and maintaining the loan programs, the director may include the cost of studies and surveys; insurance premiums; underwriting fees; financial consultants, legal, accounting, and other services incurred; reserve account, trustee, custodian, and rating agency fees; and interest on the bonds for a period not to exceed one year beyond the estimated completion of the loan projects for which the bonds are issued. [L 1997, c 221, pt of 1]
  342D-91 Revenue bonds; investment of proceeds, and redemption. Subject to any agreement with the holders of its revenue bonds, the director may:  (1) Invest moneys not required for immediate use, including proceeds from the sale of any revenue bonds, funds held in reserve or sinking funds or any funds not required for immediate disbursement, in property or securities in which savings banks may legally invest funds subject to their control. No provisions with respect to the investment of moneys or the acquisition, operation, or disposition of property by other public bodies shall be applicable to the director or department unless the legislature shall specifically so state; and  (2) Purchase revolving fund revenue bonds out of any fund or money available therefor, and hold, cancel, or resell the revenue bonds. [L 1997, c 221, pt of 1]
  342D-92 Trustee; designation; duties. The director may designate a trustee for each issue of revenue bonds secured under the same indenture; provided that the trustee may be approved by the director of finance. The trustee may have any duties and functions authorized by part III of chapter 39, as deemed necessary, advisable, or expedient by the director for the purposes of this part. [L 1997, c 221, pt of 1]
  342D-93 Trust indenture. (a) Any trust indenture entered into by the director may contain covenants and provisions as authorized by part III of chapter 39, and approved by the director of finance, as deemed necessary, advisable, or expedient by the director for the purposes of this part.  (b) A trust indenture may also contain provisions deemed necessary, advisable, or expedient by the director to obtain or permit, by grant, interest subsidy, or otherwise, the participation of the federal government in the water pollution control loan program or in the financing of the costs of administering, operating, or maintaining the water pollution control loan program to which such trust indenture relates. [L 1997, c 221, pt of 1]
  342E-1 Definitions. As used in this chapter, unless the context clearly requires otherwise:  "Department" means the department of health.  "Director" means the director of health.  "Nonpoint source pollution" means water pollution that does not originate from a point source.  "Person" means any individual, partnership, firm, association, public or private corporation, federal agency, the State or a county, trust, estate, or any other legal entity.  "Point source pollution" means pollution from 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 agricultural stormwater discharges and return flows from irrigated agriculture.  "Pollution" means water pollution.  "Program" means the nonpoint source pollution management and control program established within the department pursuant to this chapter.  "State waters" means all waters, fresh, brackish, or salt, around and within the State including, but not limited to, coastal waters, wetlands, streams, rivers, drainage ditches, ponds, reservoirs, canals, groundwaters, and lakes; provided that drainage ditches, canals, ponds, wetlands, and reservoirs required as a part of a water pollution control system or an irrigation system are excluded. [L 1993, c 345, pt of 2]
  342E-2 Nonpoint source pollution management and control program; rules. (a) There is established within the department a nonpoint source pollution management and control program to administer, enforce, and carry out all laws, rules, and programs relating to nonpoint source pollution in the State. The program may request the assistance of the clean water branch staff of the department, whenever necessary, in administering this chapter and, upon request, shall assist in the implementation and enforcement of chapter 342D.  (b) The nonpoint source pollution management and control program shall administer this chapter through the director. The director may delegate to any person the power and authority vested in the director by this chapter as the director deems reasonable and proper for the effective administration of this chapter, except the power to make rules. [L 1993, c 345, pt of 2]
  342E-3 Powers and duties of the director. (a) In addition to any other power or duty prescribed by law, the director shall:  (1) Reduce, control, and mitigate nonpoint source pollution in the State;  (2) Adopt rules under chapter 91 necessary for the purposes of this chapter, which may include water quality standards for specific areas, types of nonpoint source pollution discharges, or management measures in the control of water pollution, allowing for varying local conditions;  (3) Develop plans, recommendations, and policies, and provide other support to further the State TMs capacity to carry out the requirements of any federal law, rule, or regulation pertinent to the management or mitigation of nonpoint source pollution;  (4) Work cooperatively with other state, county, and federal agencies, to facilitate the monitoring of and update the list of waters in the State that cannot reasonably be expected to attain or maintain state water quality standards and goals established under the federal Water Quality Act of 1987 (P.L. 100-4) without additional action to control nonpoint source pollution;  (5) Identify those categories of nonpoint sources that add significant pollution to the state waters identified under paragraph (4);  (6) Facilitate implementation of the best management practices, programs, and measures to control each category of nonpoint source pollution identified under paragraph (5), and encourage nonpoint source pollution mitigation practices including, but not limited to, the use of non-hazardous substances in the household and agroforestry management;  (7) Identify public and private sources of expertise, technical assistance, financial assistance, educational assistance, training, and technology transfer;  (8) Convene statewide and regional public forums involving the general public, the regulatory community, and businesses and industries that may contribute to categories of nonpoint source pollution for the purpose of establishing plans, and developing management strategies and other mitigation measures to control and manage nonpoint source pollution;  (9) Provide funding for projects to demonstrate the best available technology and best management practices for preventing and mitigating nonpoint source pollution;  (10) Provide funding for public initiative projects to encourage education and prevention measures relating to nonpoint source pollution;  (11) Propose legislation, alternate funding mechanisms, and new programs to improve the State TMs capacity to mitigate nonpoint source pollution; and  (12) Review environmental assessments and environmental impact statements as defined under section 343-2 for the purposes of commenting on the effects that a proposed action would have on the level of nonpoint source pollution generated in an area.  (b) In the course of enforcing any rule adopted pursuant to this chapter, the director may:  (1) Enter and inspect any area to investigate an actual or suspected source of nonpoint pollution, to ascertain compliance or noncompliance with any rule or standard adopted by the department pursuant to this chapter;  (2) Inspect any records kept in accordance with the terms and conditions of rules adopted under this chapter; and  (3) Test any waters and aquatic and other life forms that may have been subjected to any form of nonpoint source pollution and assess the environmental effects of the pollution, including the pollution TMs effects on the quality of the receiving waters and aquatic and other life forms; provided that if the department determines that the effects of the pollution would make it hazardous to consume the water and aquatic or other life forms, the department shall immediately notify the public of the hazard through the news media and by posting warning signs in those areas where the waters and shoreline contain water and aquatic or other life forms that would be hazardous if consumed. [L 1993, c 345, pt of 2]
 [ 342E-4] Civil penalties. (a) Any person who violates any rule adopted under this chapter shall be fined not more than $10,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken to impose or collect the penalty provided for in this section shall be considered a civil action.  (b) Any person who denies, obstructs, or hampers the entrance to and inspection by any duly authorized officer or employee of the department of any building, place, or vehicle shall be fined not more than $5,000 for each day of such a denial, obstruction, or hampering. Any action taken to impose or collect the penalty provided for in this section shall be considered a civil action.  (c) Any fine or penalty collected shall be placed in the environmental response revolving fund pursuant to section 128D-2. [L 1993, c 345, pt of 2]
  342F-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Complaint" means any written charge filed with or by the department that a person is violating any provision of this chapter or any rule or order adopted pursuant to this chapter.  "dBA" means the A-weighted sound level or unit of measurement describing the total sound level of all noises as measured with a sound level meter using the "A" weighting network.  "dBC" means the C-weighted sound level or unit of measurement describing the total sound level of all noises as measured with a sound level meter using the "C" weighting network.  "Decibel" means the unit for measuring the volume of sound, equal to twenty times the logarithm to the base ten of the ratio of the pressure of the sound measured to the reference pressure, which is twenty micropascals (0.0002 dynes per square centimeter).  "Department" means the department of health.  "Director" means the director of health.  "Excessive noise" means the presence of sound as measured by standard testing devices as established by the noise rules adopted by the department of a volume or in quantities and for durations which endangers human health, welfare or safety, animal life, or property or which unreasonably interferes with the comfortable enjoyment of life and property in the State or in such areas of the State as are affected thereby.  "Off-hour roadwork" means any roadway construction between the hours of 6 p.m. and 7 a.m., which would require a variance from the committee on noise rules in the department of health.  "Party" means each person or agency named as party or properly entitled to be a party in any court or agency proceeding.  "Permit" means written authorization from the director to construct, modify, or operate any excessive noise source. A permit authorizes the grantee to cause or emit excessive noise in a manner or amount, or to do any act, not forbidden by this chapter or by rules adopted under this chapter, but requiring review by the department.  "Person" means any individual, partnership, firm, association, public or private corporation, federal agency, the State or any of its political subdivisions, trust, estate, or any other legal entity.  "Pollution" means excessive noise.  "Variance" means special written authorization from the director to cause or emit excessive noise in a manner or in an amount in excess of applicable standards, or to do an act that deviates from the requirements of rules adopted under this chapter.  "Vehicle" means any device in, upon, or by which any person or property is or may be transported or drawn, including boats and ships. [L 1989, c 212, pt of 3; am L Sp 2009, c 25, 4] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342F-10 Citation. Any person who commits a violation of the noise control rules adopted by the department pursuant to this chapter may be issued a summons or citation for such violation by any person authorized to enforce such rules, hereinafter referred to as enforcement officer. The summons or citation shall be printed in the form hereinafter described, warning such person to appear and answer to the charge against the person at a certain place and at a time within seven days after the issuance of such summons or citation.  The summons or citation shall be designed to provide for all necessary information. The form and content of such summons or citation shall be adopted or prescribed by the district environmental courts.  The original of a summons or citation shall be given to the purported violator and the other copy or copies distributed in the manner prescribed by the district environmental courts; provided that the district environmental courts may prescribe alternative methods of distribution of the original and any other copies.  Summonses and citations shall be consecutively numbered and the carbon copy or copies of each shall bear the same number.  In the event any person fails to comply with a summons or citation issued to such person, the enforcement officer shall cause a complaint to be entered against such person and secure the issuance of a warrant for the person TMs arrest. Failure to comply with a summons or citation is a misdemeanor. [L 1989, c 212, pt of 3; am L 2014, c 218, 8]
  342F-11.5 Disposition of collected fines and penalties. Fines and penalties collected under sections 342F-9 and 342F-11 shall be deposited into the environmental response revolving fund established by section 128D-2. [L 1991, c 157, 3]
 342F-11 Administrative penalties. (a) In addition to any other administrative or judicial remedy provided by this chapter or by rules adopted under this chapter, the director is authorized to impose by order the penalties specified in section 342F-9(b) and (c).  (b) Factors to be considered in imposing an administrative penalty include:  (1) The nature and history of the violation and of any prior violations;  (2) The economic benefit, if any, resulting from the violation;  (3) The opportunity, difficulty, and history of corrective action;  (4) Good faith efforts to comply; and  (5) Any other matters that justice may require.  (c) It is presumed that the violator TMs economic and financial conditions allow payment of the penalty, and the burden of proof to the contrary shall be on the violator. [L 1989, c 212, pt of 3; am L 1995, c 180, 18]
 342F-12 Injunctive and other relief. The director may institute a civil action in any environmental court of competent jurisdiction for injunctive and other relief to prevent any violation of this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter, without the necessity of a prior revocation of the permit or variance, to impose and collect civil penalties, to collect administrative penalties, or to obtain other relief. The environmental court shall have power to grant relief in accordance with the Hawaii rules of civil procedure. [L 1989, c 212, pt of 3; am L 1995, c 180, 19; am L 2014, c 218, 8] Rules of Court  Injunctions, see HRCP rule 65.
  342F-13 Appeal. If any party is aggrieved by the decision of the director, the party may appeal in the manner provided in chapter 91 to the circuit environmental court of the circuit in which the party resides or has the party TMs principal place of business or in which the action in question occurred; provided that the operation of a cease and desist order will not be stayed on appeal unless specifically ordered by [an] environmental court of competent jurisdiction. [L 1989, c 212, pt of 3; am L 2014, c 218, 8]
  342F-14.5 Fees for notification. The director may establish reasonable fees for notifications and to cover the cost of implementation, recordkeeping, and any necessary inspections to ascertain compliance with the provisions of the state community noise rules. [L 1999, c 57, pt of 1]
 342F-14 Fees. The director may establish reasonable fees for the issuance of permits and variances to cover the cost of issuance thereof and for the implementation and enforcement of the terms and conditions of permits and variances (not including court costs or other costs associated with any formal enforcement action). All fees collected pursuant to this section shall be deposited into the noise, radiation, and indoor air quality special fund established pursuant to section 342P-7. [L 1989, c 212, pt of 3; am L 1994, c 169,  5, 9; am L 1996, c 164, 1; am L 1998, c 311,  16, 19] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342F-15 Public records; confidential information; penalties. Reports submitted to the department on the emission of excessive noise shall be made available for inspection by the public during established office hours unless such reports contain information of a confidential nature concerning secret processes or methods of manufacture. Any officer, employee, or agent of the department acquiring confidential information from the inspection authorized by section 342F-6 who divulges information except as authorized in this chapter or except as ordered by a court or at an administrative hearing regarding an alleged violation of this chapter or of any rule or standard adopted pursuant to this chapter shall be fined not more than $1,000. [L 1989, c 212, pt of 3] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342F-16 Nonliability of department personnel. Notwithstanding any other law to the contrary, no member, officer, or employee of the department shall be criminally liable or responsible under this chapter for any acts done by the member, officer, or employee in the performance of the member TMs, officer TMs, or employee TMs duties; provided that this section shall not apply to violations of section 342F-15. [L 1989, c 212, pt of 3]
  342F-17 Other action not barred. No existing civil or criminal remedy for any wrongful action which is a violation of any statute or any rule of the department or the ordinance of any county shall be excluded or impaired by this chapter. [L 1989, c 212, pt of 3]
  342F-18 Enforcement by state and county authorities. All state and county health authorities and police officers shall enforce this chapter and the rules and orders of the department. [L 1989, c 212, pt of 3]
  342F-19 Other powers of department not affected. The powers, duties, and functions vested in the department under this chapter shall not be construed to affect in any manner the powers, duties, and functions vested in the department under any other law. [L 1989, c 212, pt of 3]
  342F-2 Administration. The department shall administer this chapter through the director. The director may delegate to any person such power and authority vested in the director by this chapter as the director deems reasonable and proper for the effective administration of this chapter, except the power to make rules. [L 1989, c 212, pt of 3]
  342F-20 Effect of laws, ordinances, and rules. Any county may adopt ordinances and rules governing any matter relating to excessive noise control as provided in section 46-17, and any conflict between state and county law shall be resolved as provided in section 46-17. [L 1989, c 212, pt of 3; am L 1999, c 265, 3]
  342F-21 Priority in courts. All actions brought pursuant to this chapter or pursuant to the rules adopted under this chapter shall in the discretion of the court receive priority in the courts of the State. [L 1989, c 212, pt of 3] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342F-3 Duties, rules, powers, appointment of hearings officers. (a) In addition to any other power or duty prescribed by law and in this chapter, the director shall prevent, control, and abate noise pollution in the State. In the discharge of this duty, the director may make, amend, and repeal state rules controlling and prohibiting noise pollution. All rules shall be adopted pursuant to chapter 91. Any person heard at the public hearing shall be given written notice of the action taken by the department with respect to the rules.  (b) In addition to other specific powers provided in this chapter, the director may appoint without regard to chapter 76, hearings officers to conduct public participation activities including public hearings and public informational meetings. [L 1989, c 212, pt of 3; am L 2000, c 253, 150]
  342F-30.5  Noise control. By June 30, 1996, the department shall adopt a state community noise code pursuant to chapter 91, which recognizes differences in noise level standards in urban and non-urban areas of the State and noise level standards of each county. In the event of any conflict between this section and section 46-17, section 46-17 shall govern. [L 1995, c 200, 2]
  342F-30.8 Leaf blowers; restrictions. (a) In any urban land use district, as designated pursuant to section 205-2, it shall be unlawful for any person to operate a leaf blower within a residential zone or within one hundred feet of a residential zone in the State, except between the hours of 8:00 a.m. and 6:00 p.m. on any day except Sunday or a state or federal holiday, and between the hours of 9:00 a.m. and 6:00 p.m. on Sunday or any state or federal holiday.  (b) Violators shall be fined $50 for the first violation, $100 for the second violation, $200 for the third violation, and $500 for each subsequent violation.  (c) Government entities, and agents acting on behalf of government entities, shall not be subject to this section.  (d) Any county may adopt a rule or ordinance that places stricter limitations on the use of leaf blowers than are in this section. In case of a conflict between the requirements or limitations of this section and any county rule or ordinance regarding the use of leaf blowers, the more restrictive requirements shall apply.  (e) For the purposes of this section:  "Leaf blower" means any machine used to blow leaves, dirt, or other debris off sidewalks, driveways, lawns, and other surfaces.  "State holiday" means any day established as a state holiday in section 8-1. [L 2010, c 206, 1]
  342F-30 Prohibition. No person, including any public body, shall engage in activity which produces excessive noise without first securing approval in writing from the director; provided that this section shall not apply to any school activity which is approved by school authorities. For purposes of this section, "school activity" means a public or private school function for students up through the twelfth grade which is approved by the school principal or an authorized representative. These activities shall be limited to the hours of 7:00 a.m. to 10:00 p.m. [L 1989, c 212, pt of 3] Cross References  Noise and climate control at school facilities, see 302A-1501.
 342F-31.5 Noise measurement; rules. (a) The department shall adopt rules in accordance with chapter 91 that shall use both the dBC and the dBA sound level measurement systems for community noise control. The department and the county liquor commissions may enforce nighttime noise levels in any urban land use district measured from over fifty to sixty decibels, measured using the dBC weighting system, in certain areas they deem appropriate and not adversely affecting public health and safety.  (b) In any urban land use district, a sound level of more than sixty decibels for bass sound (using the dBC weighting system), measured at a complainant's site, shall be deemed to exceed the maximum permissible sound at nighttime; provided that, where the complainant's site is within or in close proximity to an area zoned mixed-use or residential, the maximum permissible sound at nighttime shall be fifty decibels dBC.  (c) For purposes of this section:  "Nighttime" means the time between the hours of 10:00 p.m. and 7:00 a.m.; and  "Urban land use district" means property designated as such pursuant to section 205-2. [L Sp 2009, c 25, 3]
  342F-31 Rules; specific. The director may establish by rule:  (1) The control of vehicular noise; and  (2) Other specific areas for control of excessive noise, thereby allowing for varying conditions. [L 1989, c 212, pt of 3] Case Notes  Neither this chapter nor rules promulgated under 342-42 for "vehicular noise" extend to sounds reproduced by an automobile's stereo and regulated under Revised Ordinances of Honolulu 41-31.1. 81 H. 156 (App.), 914 P.2d 549.
  342F-32 Complaints; hearings; appointment of masters. The director may:  (1) Receive or initiate complaints of excessive noise, hold hearings in connection with excessive noise, and institute legal proceedings in the name of the State for the prevention, control, or abatement of excessive noise; and  (2) Appoint a master or masters to conduct investigations and hearings. [L 1989, c 212, pt of 3]
  342F-33 Research, educational, and training programs. The director may:  (1) Conduct and supervise research programs for the purpose of determining the causes, effects, and hazards of excessive noise and the means whereby noise may be monitored, controlled, or abated;  (2) With the approval of the governor, cooperate with, and receive money from, the federal government, or any political subdivision of the State or from private sources for the study and control of excessive noise; and  (3) Conduct or commission and supervise state educational and training programs on noise prevention, control, and abatement, including the preparation and distribution of information relating to excessive noise and its effect on people. [L 1989, c 212, pt of 3]
  342F-4.5 Projects exempt from noise permit requirements. (a) Except as provided in subsection (b), any construction project:  (1) For a dwelling; or  (2) With a total cost of less than $250,000 based on the value of the project listed on the building permit, shall be exempt from the noise permit requirements of section 342F-4; provided that written notification of the intent to construct shall be submitted to the department by the person responsible for the construction project. The notification shall include information concerning the person responsible for the construction project, type of construction, location, and estimated duration of the construction project. The notification also shall include an acknowledgment that the construction project shall be subject to operational times and a maximum noise level of seventy-eight decibels when measured at any point at or beyond the property line of the construction premises.  (b) The exemption in subsection (a) shall not apply to any construction project which:  (1) Emits noise in excess of the maximum permissible sound levels established under the state community noise code adopted by the department which occur:  (A) Before 7:00 a.m. and after 6:00 p.m. on Monday to Friday;  (B) Before 9:00 a.m. and after 6:00 p.m. on Saturday; and  (C) On Sunday and holidays; or  (2) Uses hoe-rams or pile drivers; provided that subsection (a) shall not apply to a construction project that emits noise exceeding seventy-eight decibels, regardless of the time of occurrence of the noise.  (c) Violation of this section shall be subject to a fine not exceeding $100 per violation; provided that each day of a violation shall constitute a separate offense; and provided further that a violation exceeding five days shall be subject to the penalties under section 342F-9(b).  (d) As used in this section:  "Construction" means any or all activities including those activities necessary or incidental to the erection, demolition, renovation, or alteration of buildings.  "Dwelling" means a room or rooms connected together constituting an independent housekeeping unit for an individual or a family, and containing facilities for bathing, cooking, or both.  "Notification" means a formal notice to the department of the intent to construct a project exempt from noise permit requirements under subsection (a). [L 1999, c 57, pt of 1]
  342F-4 Permits; procedures for. (a) An application for any permit required under this chapter shall be in a form prescribed by the director.  (b) The department may require that applications for such permits shall be accompanied by plans, specifications, and such other information as it deems necessary in order for it to determine whether the proposed installation, alteration, or use will be in accord with applicable rules and standards.  (c) The director shall issue a permit for any term, not exceeding five years, if the director determines that such will be in the public interest; provided that the permit may be subject to such reasonable conditions as the director may prescribe. The director, on application, shall renew a permit from time to time for a term not exceeding five years if the director determines that such is in the public interest. The director shall not deny an application for the issuance or renewal of a permit without affording the applicant an opportunity for a hearing in accordance with chapter 91.  The director, on the director's own motion or the application of any person, may modify, suspend, or revoke any permit if, after affording the permittee an opportunity for a hearing in accordance with chapter 91, the director determines that:  (1) There is a violation of any condition of the permit;  (2) The permit was obtained by misrepresentation, or failure to disclose fully all relevant facts;  (3) There is a change in any condition that requires either a temporary or permanent reduction or elimination of the permitted emission; or  (4) Such is in the public interest.  In determining the public interest, the director shall consider the environmental impact of the proposed action, any adverse environmental effects which cannot be avioded should the action be implemented, the alternatives to the proposed action, the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented, and any other factors which the director may by rule prescribe; provided that any determination of public interest shall promote the optimum balance between economic development and environmental quality.  (d) Except for applications for which the director deems a public informational meeting, hearing, or notice is appropriate, the director shall act on an application for the issuance of a permit or an application by a permit holder for the modification or renewal thereof within thirty days of the receipt of a properly completed application.  For applications for which the director deems a public informational meeting, hearing, or notice is appropriate, the director shall act on the application within ninety days of the receipt of a properly completed application.  If the director determines that extraordinary circumstances exist on an application, the director shall extend the ninety-day period up to an additional ninety days.  (e) No applicant for a modification or renewal of a permit shall be held in violation of this chapter during the pendency of the applicant's application provided that the applicant acts consistently with the permit previously granted, the application and all plans, specifications, and other information submitted as a part thereof. [L 1989, c 212, pt of 3; am L 1990, c 298, 4; am L 1999, c 58, 2]
 342F-5 Variances. (a) Every application for a variance shall be made on forms furnished by the department and shall be accompanied by a complete and detailed description of present conditions, how present conditions do not conform to standards, and such other information as the department may by rule prescribe.  (b) Each application for a variance shall be reviewed in light of the descriptions, statements, plans, histories, and other supporting information submitted with the application, such additional information as may be submitted upon the request of the department, and the effect or probable effect upon the noise level standards established pursuant to this chapter.  (c) Whenever an application is approved, the department shall issue a variance authorizing the emission of noise in excess of applicable standards. No variance shall be granted by the department unless the application and the supporting information clearly show that:  (1) The continuation of the function or operation involved in the emission occurring or proposed to occur by the granting of the variance is in the public interest as defined in section 342F-4;  (2) The emission occurring or proposed to occur does not substantially endanger human health or safety; and  (3) Compliance with the rules or standards from which variance is sought would produce serious hardship without equal or greater benefits to the public.  (d) Any variance or renewal thereof shall be granted within the requirements of this section and for time periods and under conditions consistent with the reasons therefor, and within the following limitations:  (1) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, control, or abatement of the excessive noise involved, it shall be only until the necessary means for prevention, control, or abatement become practicable and subject to the taking of any substitute or alternate measures that the department may prescribe. No renewal of a variance granted under this subsection shall be allowed without a thorough review of known and available means of preventing, controlling, or abating the excessive noise involved.  (2) The director may issue a variance for a period not exceeding five years.  (3) Every variance granted under this section shall include conditions requiring the grantee to perform noise sampling and report the results of such sampling to the department.  (e) Any variance granted pursuant to this section may be renewed from time to time on terms and conditions and for periods not exceeding five years which would be appropriate on initial granting of a variance; provided that the applicant for renewal has met all of the conditions specified in the immediately preceding variance; and provided further that the renewal, and the variance issued in pursuance thereof, shall provide for emission not greater than that attained pursuant to the terms of the immediately preceding variance at its expiration. No renewal shall be granted except on application therefor. Any such application shall be made at least one hundred eighty days prior to the expiration of the variance. The director shall act on an application for renewal within one hundred eighty days of the receipt of such application.  (f) The director may afford a hearing in accordance with chapter 91 in relation to an application for the issuance, renewal, or modification of a variance.  (g) No variance granted pursuant to this chapter shall be construed to prevent or limit the application of any emergency provisions and procedures provided by law.  (h) Any application for a variance, submitted pursuant to this chapter, shall be subject to the public participation requirements listed below.  (1) Public notices of every completed application for a variance, except an application for off-hour road work, shall be given in a manner designed to inform interested and potentially interested persons of the proposed emission. Procedures for giving public notice shall include at least the following:  (A) Notice shall be given within the geographical areas of the proposed emission;  (B) Notice shall be mailed to any person or group upon request; and  (C) The director shall add the name of any person or group upon request to a mailing list to receive copies of notices for all variance applications within the State or within a certain geographical area;  (2) The director shall provide a period of not less than thirty days following the date of the public notice during which time interested persons may submit their written reviews with respect to the variance application and the tentative determinations of the department, if any. The period for comment may be extended at the discretion of the director;  (3) The contents of public notice of applications for variances shall include at least the following:  (A) Name, address, and phone number of agency issuing the public notice;  (B) Name and address of each applicant;  (C) Brief description of each applicant's activities or operations which result in the emission described in the variance application (e.g., rock crushing plant, municipal waste treatment plant, raw sugar factory, or pineapple cannery);  (D) A short description of the location of each emission indicating whether the emission is new or existing;  (E) A brief description of the procedures for the formulation of final determinations, including the thirty-day comment period required by paragraph (2), and any other means by which interested persons may influence or comment upon those determinations; and  (F) Address and phone number of state agency premises at which interested persons may obtain further information and inspect a copy of the variance applications and supporting and related documents; and  (4) The director may hold a public hearing if, after reviewing the comments submitted under paragraph (2), the director determines that a public hearing is warranted. Any hearing brought pursuant to this subsection shall be held in the geographical area of the proposed emission or other appropriate area, at the discretion of the director. [L 1989, c 212, pt of 3; am L 1998, c 2, 89]
  342F-6 Inspection of premises. The director, in accordance with law, may enter and inspect any building or place to investigate an actual or suspected source of excessive noise, to ascertain compliance or noncompliance with this chapter, any rule or standard adopted by the department pursuant to this chapter, or any permit or other approval issued by the department pursuant to this chapter, and to make reasonable tests in connection therewith. No confidential information secured pursuant to this section by any official or employee of the department within the scope and course of the official TMs or employee TMs employment in the prevention, control, or abatement of excessive noise shall be disclosed by the official or employee except as it relates directly to excessive noise and then, only in connection with the official TMs or employee TMs official duties and within the scope and course of the official TMs or employee TMs employment. [L 1989, c 212, pt of 3]
 342F-7 Enforcement. (a) If the director determines that any person has violated or is violating this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter, the director:  (1) Shall cause written notice to be served upon the alleged violator or violators. The notice shall specify the alleged violation and may contain an order specifying a reasonable time during which that person shall be required to take any measures that may be necessary to correct the violation and to give periodic progress reports;  (2) May require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of; and  (3) May impose penalties as provided in section 342F-11 by sending a notice in writing, either by certified mail or by personal service, to the alleged violator or violators describing the violation.  (b) If the director determines that any person is continuing to violate this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter after having been served notice of violation, the director:  (1) Shall cause written notice to be served upon the alleged violator or violators. The notice shall specify the alleged violation and shall contain an order requiring that person to submit a written schedule within thirty days specifying the measures to be taken and the time within which the measures shall be taken to bring that person into compliance with this chapter, any rule adopted pursuant to this chapter, or the conditions of a permit or variance issued pursuant to this chapter;  (2) Shall accept or modify the submitted schedule within thirty days of receipt of the schedule. Any schedule not acted upon after thirty days of receipt by the director shall be deemed accepted by the director;  (3) Shall issue to the alleged violator or violators a cease and desist order against the activities that violate this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter if that person does not submit a written schedule to the director within thirty days. This order shall remain in effect until the director accepts the written schedule; and  (4) May impose penalties as provided in section 342F-11 by sending a notice in writing, either by certified mail or by personal service, to the alleged violator or violators describing the violation.  (c) If the director determines that any person has violated the provisions of an accepted schedule or has violated an order issued under this section the director shall impose penalties by sending a notice in writing, either by certified mail or by personal service, to that person, describing such nonadherence or violation with reasonable particularity.  (d) Any order issued under this chapter shall become final, unless no later than twenty days after the notice of order is served, the person or persons named therein request in writing a hearing before the director. Any penalty imposed under this chapter shall become due and payable twenty days after the notice of penalty is served unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on any penalty imposed under this chapter, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Upon request for a hearing, the director shall require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of.  (e) Any hearing conducted under this section shall be conducted as a contested case under chapter 91. If after a hearing held pursuant to this section, the director finds that a violation or violations have occurred, the director shall affirm or modify any penalties imposed or shall modify or affirm the order previously issued or issue an appropriate order or orders for the prevention, abatement, or control of the violation or discharges involved, or for the taking of such other corrective action as may be appropriate. If, after a hearing on an order or penalty contained in a notice, the director finds that no violation has occurred or is occurring, the director shall rescind the order or penalty. Any order issued after hearing may prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the violation or discharges.  (f) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the director may institute a civil action in the name of the State to collect the administrative penalty which shall be a government realization.  In any proceeding to collect the administrative penalty imposed, the director need only show that:  (1) Notice was given;  (2) A hearing was held or the time granted for requesting a hearing expired without a request for a hearing;  (3) The administrative penalty was imposed; and  (4) The penalty remains unpaid.  (g) In connection with any hearing held pursuant to this section, the director shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties. [L 1989, c 212, pt of 3; am L 1990, c 298, 5; am L 1995, c 180, 16]
  342F-8 Emergency powers; procedures. (a) Notwithstanding any other law to the contrary, if the director determines that an imminent peril to the public health and safety is or will be caused by excessive noise, which requires immediate action, the director, with the approval of the governor and without public hearing, may order any person causing or contributing to the excessive noise to immediately reduce or stop such emission, or the director may take any and all other actions as may be necessary. Such order shall fix a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director.  (b) 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. [L 1989, c 212, pt of 3]
 342F-9 Penalties. (a) Violation of the vehicular noise control rules adopted by the department pursuant to this chapter shall constitute a violation as defined in section 701-107 and shall be enforceable by police officers. The fine for this violation shall be not less than $25 nor more than $2,500 for each separate offense. Each day of violation shall constitute a separate offense.  (b) Any person who violates this chapter, any rule adopted pursuant to this chapter, other than vehicular noise control rules, or any permit or variance issued pursuant to this chapter shall be fined not more than $10,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken in environmental court to impose or collect the penalty provided for in this subsection, other than the penalty imposed for violations of vehicular noise control rules, shall be considered a civil action.  (c) Any person who denies, obstructs, or hampers the entrance or inspection by any duly authorized officer or employee of the department of any building, place, or vehicle that the officer or employee is authorized to enter and inspect shall be fined not more than $500. Any action taken in environmental court to impose or collect the penalty provided for in this subsection shall be considered a civil action. [L 1989, c 212, pt of 3; am L 1991, c 157, 14; am L 1995, c 180, 17; am L 2014, c 218, 8]
  342G-1 Definitions. As used in this chapter, unless the context requires otherwise:  "Agricultural solid waste" means the solid waste that results from the rearing of animals and the harvesting of crops and that is normally placed in landfills.  "Backyard composting" means the small-scale composting of organic materials, primarily yard wastes, at the site where these materials are generated.  "Bimetallic can" means any food or beverage container that is composed of steel with a tin coating.  "Bioconversion" means the processing of the organic fraction of the waste stream through biological or chemical means to perform composting or generate products including, but not limited to, fertilizers, feeds, methane, alcohols, tars, and other products. This term includes, but is not limited to, biogassification, acid hydrolysis, pyrolysis, and fermentation. This term does not include any form of incineration or methane gas extraction from a municipal waste landfill.  "Compost" means a relatively stable, decomposed, organic, humus-like material, generated by a composting facility, that is suitable for landscaping or soil amendment purposes.  "Composting" means a process in which organic solid wastes, such as biosolids (sewage sludge), green or yard waste materials, manures, and non-treated wood chips and shavings, are biologically decomposed and stabilized under controlled conditions to produce a stable humus-like mulch or soil amendment. This term includes the processing of organic and non-treated wood waste materials for the generation of wood chips or other materials that can be used as soil amendment, planting mixes, mulches for horticultural and agricultural applications, landfill cover, and land reclamation. The process of composting under methods approved by the department is a recycling activity. Land application of uncomposted organic solid waste shall not be considered an approved solid waste management activity.  "Coordinator" means the state solid waste management coordinator established within the office of solid waste management in the department of health.  "Corrugated paper" means a paper product fabricated from two layers of kraft linerboard sandwiched around a corrugating medium.  "County coordinator" means the person within each county government whose primary responsibility is the planning and implementation of the county's integrated solid waste management plans and objectives.  "Department" means the department of health.  "Deposit beverage" means beer, ale, or other drink produced by fermenting malt, mixed spirits, mixed wine, tea and coffee drinks regardless of dairy-derived product content, soda, or noncarbonated water, and all nonalcoholic drinks in liquid form and intended for internal human consumption that is contained in a deposit beverage container.  The term "deposit beverage" excludes the following:  (1) A liquid that is:  (A) A syrup;  (B) In a concentrated form; or  (C) Typically added as a minor flavoring ingredient in food or drink, such as extracts, cooking additives, sauces, or condiments;  (2) A liquid that is ingested in very small quantities and which is consumed for medicinal purposes only;  (3) A single serving of one ounce or less of a dietary supplement as defined in the Dietary Supplement Health and Education Act of 1994 (P.L. 103-417);  (4) A liquid that the department finds to be the sole item of a meal or diet;  (5) Products frozen at the time of sale to the consumer, or, in the case of institutional users such as hospitals and nursing homes, at the time of sale to the users;  (6) Products designed to be consumed in a frozen state;  (7) Instant drink powders;  (8) Seafood, meat, or vegetable broths, or soups, but not juices; and  (9) Milk and all other dairy-derived products, except tea and coffee drinks with trace amounts of these products.  "Director" means the director of health.  "Disposal" means the management of solid waste through incineration or landfilling at permitted solid waste facilities.  "Disposal fee" means a fee that may be charged on items that will eventually end up as solid waste with the intent of factoring into the price or use or disposal of the same the eventual cost of managing the goods as wastes.  "Enterprise zone" means an area selected by a county and approved by the governor to be eligible for the enterprise zone program established under chapter 209E.  "Environmental management special fund" means the fund created by section 342G-63.  "Feasibility assessment" means a study that analyzes a specific municipal solid waste collection, storage, processing, or disposal system to assess the likelihood that the system can be successfully implemented, including, but not limited to, an analysis of the prospective market, the projected costs and revenues of the system, the waste stream that the system will rely upon, and various options available to implement the system.  "Ferrous metal" means any iron or steel scrap that has an iron content sufficient for magnetic separation.  "Food waste" means all animal and vegetable solid wastes generated by food facilities and residences that result from the storage, preparation, cooking, or handling of food.  "Green waste" means leaves, garden residues, shrubbery and tree trimmings, grass clippings, and similar material.  "HDPE" means high density polyethylene plastic and containers manufactured from this material.  "Household hazardous waste" means those wastes resulting from products purchased by the general public for household use which, because of their quantity, concentration, or physical, chemical, or infectious characteristics, may pose a substantial known or potential hazard to human health or the environment when improperly treated, disposed of, or otherwise managed.  "Incineration" means volume reduction by controlled burning of combustible solid waste.  "Integrated solid waste management" means the use of a variety of waste management practices and processing methods to safely and effectively manage solid waste with the least adverse impact on human health and the environment.  "Landfill" means a land site on which engineering principles are utilized to bury deposits of solid waste without creating a nuisance or hazard to public health or safety.  "Landfilling" means the permitted disposal of solid waste on land in a series of compacted layers and covering the solid waste with soil or other materials.  "Manure" means excrement generated by animals, such as cows, horses, and chickens, held in captivity or used for agricultural production.  "Mixed paper" means discarded paper products that are composed of two or more types of paper, including newspaper, corrugated paper, office paper, computer paper, white paper, and coated paper stock.  "Office" means the office of solid waste management in the department of health.  "Permitted disposal capacity" means the quantity of solid waste, measured either in terms of weight or volume, or both, that can be processed or disposed of at an existing municipal waste disposal facility. This term includes only the weight or volume, or both, of the capacity for which the department has issued a permit. This term does not apply to any facility that the department determines, or has previously determined, has failed or continues to fail to comply with: (1) this chapter, (2) any rules adopted pursuant to this chapter, or (3) any permit conditions.  "PET" means polyethylene terephthalate plastic and containers manufactured from this material.  "Petroleum" means any petroleum, including crude oil or any fraction thereof, that is liquid at standard temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute).  "Petroleum-contaminated soil" means soil that has been contaminated by a release of petroleum to a degree that exceeds levels determined to be acceptable by the director.  "Postconsumer material" means a material that has fulfilled the intent of its original manufacture.  "Processing" means any technology used for the purpose of reducing the volume or weight, or both, of solid wastes, or any technology used to convert part or all of solid wastes for reuse.  "Processing facilities" include, but are not limited to, transfer facilities, recycling facilities, and bioconversion facilities.  "Program" means the particular combination of waste management methods selected by each county and designed to achieve the objectives of the state and county integrated solid waste management plans.  "Recovered material" means material that has been diverted from disposal for the purpose of recycling or bioconversion. This term does not include those materials that are generated and normally reused on-site for manufacturing purposes.  "Recycled content" means the percentage of a good or product composed of postconsumer materials.  "Recycled oil" means any oil produced from used oil that achieves required standards of purity for use as a lubricant or fuel.  "Recycled paper product" means a paper product containing postconsumer material that conforms to the United States Environmental Protection Agency's guidelines for recycled paper.  "Recycling" means the collection, separation, recovery, and sale or reuse of secondary resources that would otherwise be disposed of as municipal solid waste, and is an integral part of a manufacturing process aimed at producing a marketable product made of postconsumer material.  "Secondary resources" means postconsumer material collected and processed for feedstock in a manufacturing process.  "Sewage sludge" means residual solids and semisolids resulting from the treatment of wastewater. This term does not include wastewater effluent discharged from wastewater treatment processes.  "Solid waste disposal facility" means any facility which receives solid waste for ultimate disposal through landfilling or incineration. This term does not include facilities utilized for transfer, storage, processing, or remanufacturing for recycling or reuse, or bioconversion.  "Solid waste management" means the entire process, or any part thereof, of storage, collection, transportation, transfer, processing, and disposal of solid wastes by any person engaging in these processes.  "Solid waste or municipal solid waste" means: garbage, refuse, and other residential or commercial discarded materials, including solid, liquid, semisolid, or contained gaseous materials resulting from industrial, commercial, mining, and agricultural operations; sludge from waste treatment plants and water supply treatment plants; and residues from air pollution control facilities and community activities. This term does not include solid or dissolved materials in domestic sewage or other substances in water sources, such as silt, dissolved or suspended solids in industrial wastewater effluents, dissolved materials in irrigation return flows, or other common water pollutants.  "Solid waste reduction facility" or "waste reduction facility" means all contiguous land, including buffer zones, structures, appurtenances, and improvements on the land used for solid waste handling. This term includes a facility used as a transfer station, landfill, incinerator, composting plant, bioconversion site, or recycling site utilized for the reduction, consolidation, conversion, processing, or disposal of solid waste.  "Solid waste stream" means the total flow of solid waste from all waste generators or any segment thereof, that must be processed or disposed of.  "Source reduction" means the design, manufacture, and use of materials to:  (1) Minimize the quantity or toxicity, or both, of the waste produced; and  (2) Reduce the creation of waste either by redesigning products or by otherwise changing societal patterns of consumption, use, or waste generation.  "Special waste" means any solid waste which, because of its source or physical, chemical, or biological characteristics, requires special consideration for its proper processing or disposal, or both. This term includes, but is not limited to, asbestos, used oil, petroleum-contaminated soil, lead acid batteries, municipal waste combustion ash, sewage sludge that is not hazardous waste, agricultural and farm-generated wastes that are normally placed in landfills, medical wastes, tires, white goods, and derelict vehicles.  "State plan" means the integrated solid waste management plan developed by the department of health.  "Waste diversion" means to divert waste from the solid waste stream going into waste disposal facilities through recycling or bioconversion programs.  "Waste evaluation" means a review of an establishment's disposal practices to assess how those practices can be improved to reduce waste or recover postconsumer materials.  "Waste reduction" means the reduction of solid waste by weight or volume, or both, through a variety of methods prior to disposal. This term includes source reduction, recycling, and bioconversion. This term does not include incineration and landfilling.  "White goods" means discarded, enamel-coated major appliances, such as washing machines, clothes dryers, hot water heaters, stoves, and refrigerators.  "Wood waste" means solid waste consisting of wood pieces or particles that are generated from: the manufacturing or production of wood products; the harvesting, processing, or storage of raw wood materials; and construction and demolition activities. [L 1991, c 324, pt of 2; am L 1993, c 190, 3, c 281,  1, 3, and c 312, 4; am L 2002, c 176, 4; am L 2013, c 230, 2]
  342G-101.5 Commercial passenger vessels; exemption. (a) Notwithstanding any other provision of this part, this part shall not apply to a deposit beverage container that is sold or delivered to an entity operating a commercial passenger vessel when the deposit beverage container is intended for use and consumption on the commercial passenger vessel. The entity operating the commercial passenger vessel shall be exempt from this part only if it has a deposit beverage container recycling plan prescribed or approved by the department.  (b) Recycling plans shall be submitted to the department and shall include the name and address of the recycling facility that is accepting the empty deposit beverage containers.  (c) Deposit beverage containers covered under this exemption shall not be redeemed for the refund value or handling fee. [L 2005, c 206, 1]
Note L 2004, c 241, 13 provides:  "SECTION 13. Unless modified hereafter pursuant to chapter 91, Hawaii Revised Statutes, the following definition shall supersede the current definition of "recycling drop-off facility" as it appears in title 11, chapter 58.1, Hawaii Administrative Rules:  "Recycling drop-off facility" means a structure or site designated for collection and small scale (low technology) segregation of recyclable materials. The staffed or unstaffed site will receive and temporarily store "dropped-off" recyclable materials."  Sixty-eight-fluid-ounce deposit beverage containers. L 2007, c 285,  11 and 12 provide:  "SECTION 11. The department of health shall phase-in all requirements affecting the redemption of sixty-eight-fluid-ounce containers, beginning December 1, 2007, as follows; provided that the phase-in shall be completed by March 1, 2008:  (1) From December 1, 2007, distributors of deposit beverage containers may begin marking sixty-eight-fluid-ounce deposit beverage containers as required under section [342G-112(a)], Hawaii Revised Statutes;  (2) From December 1, 2007, until March 1, 2008, a sixty-eight-fluid-ounce deposit beverage container may be redeemed under the deposit beverage container program, without regard to whether the container bears the refund value of the container and the word "Hawaii" or the letters "HI", required by section 342G-112(a), Hawaii Revised Statutes;  (3) Beginning March 1, 2008, every deposit beverage container holding up to sixty-eight fluid ounces and sold in the State shall be marked as required under section 342G-112(a), Hawaii Revised Statutes; and  (4) Beginning March 1, 2008, only deposit beverage containers meeting the requirements of section 342G-112(a), Hawaii Revised Statutes, shall be eligible for redemption.  SECTION 12. (a) The legislature finds that the public interest in protecting the environment takes precedence over the delay in implementation of redemption of sixty-eight-fluid-ounce beverage containers under this Act. The legislature finds that the redemption rate is below the balance of the deposit beverage container deposit special fund.  (b) The department of health shall reimburse a redemption center, from the deposit beverage container deposit special fund, the refund values paid to a redeemer, as defined in section 342G-101, Hawaii Revised Statutes, for sixty-eight-fluid-ounce containers redeemed between December 1, 2007, and March 1, 2008, pursuant to section 11 of this Act; provided that a redemption center shall provide collection reports under section 342G-119, Hawaii Revised Statutes, for the sixty-eight-fluid-ounce beverage containers." 342G-101 Definitions. As used in this part, unless the context requires otherwise:  "Auditor" means the office of the auditor.  "Commercial passenger vessel" means any domestic or foreign-flagged marine vessel or air carrier used primarily for transporting persons to, from, or within the State. The term does not include:  (1) Marine vessels authorized to carry fewer than fifty passengers; or  (2) Marine vessels for hire that do not provide overnight accommodations for at least fifty passengers, determined with reference to the number of lower berths and based on an average of two persons per cabin.  "Consumer" means a person who buys a beverage in a deposit beverage container for use or consumption and pays the deposit.  "Dealer" means a person who engages in the sale of beverages in deposit beverage containers to a consumer for off-premises consumption in the State.  "Department" means the department of health.  "Deposit beverage" means beer, ale, or other drink produced by fermenting malt, mixed spirits, mixed wine, tea and coffee drinks regardless of dairy-derived product content, soda, or noncarbonated water, and all nonalcoholic drinks in liquid form and intended for internal human consumption that is contained in a deposit beverage container.  The term "deposit beverage" excludes the following:  (1) A liquid that is:  (A) A syrup;  (B) In a concentrated form; or  (C) Typically added as a minor flavoring ingredient in food or drink, such as extracts, cooking additives, sauces, or condiments;  (2) A liquid that is a drug, medical food, or infant formula as defined by the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.);  (3) A single serving of one ounce or less of a dietary supplement as defined in the Dietary Supplement Health and Education Act of 1994 (P.L. 103-417);  (4) A liquid that the department finds to be the sole item of a meal or diet;  (5) Products frozen at the time of sale to the consumer, or, in the case of institutional users such as hospitals and nursing homes, at the time of sale to the users;  (6) Products designed to be consumed in a frozen state;  (7) Instant drink powders;  (8) Seafood, meat, or vegetable broths, or soups, but not juices; and  (9) Milk and all other dairy-derived products, except tea and coffee drinks with trace amounts of these products.  "Deposit beverage container" means the individual, separate, sealed glass, polyethylene terephthalate, high density polyethylene, or metal container less than or equal to sixty-eight fluid ounces, used for containing, at the time of sale to the consumer, a deposit beverage intended for use or consumption in this State.  "Deposit beverage distributor" means a person who is a manufacturer of beverages in deposit beverage containers in this State, or who imports and engages in the sale of filled deposit beverage containers to a dealer or consumer. The term includes federal agencies and military distributors, but does not include airlines and shipping companies that merely transport deposit beverage containers.  "Import" means to buy, bring, or accept delivery of deposit beverage containers from an address, supplier, or any entity outside of the State.  "Importer" means any person who buys, brings, or accepts delivery of deposit beverage containers from outside the State for sale or use within the State.  "On-premises consumption" means the consuming of deposit beverages by a patron immediately and within the area under control of the establishment, including bars, restaurants, passenger ships, and airplanes.  "Patron" means a person who buys a beverage in a deposit beverage container for use or consumption and does not pay the deposit.  "Person" means individual, partnership, firm, association, public or private corporation, federal agency, the State or any of its political subdivisions, trust, estate, or any other legal entity.  "Recycling facility" means all contiguous land and structures and other appurtenances, and improvements on the land used for the collection, separation, recovery, and sale [or] reuse of secondary resources that would otherwise be disposed of as municipal solid waste, and is an integral part of a manufacturing process aimed at producing a marketable product made of postconsumer material.  "Redeemer" means a person, other than a dealer or distributor, who demands the refund value in exchange for the empty deposit beverage container.  "Redemption center" means an operation which accepts from consumers and provides the refund value for empty deposit beverage containers intended to be recycled and ensures that the empty deposit beverage containers are properly recycled.  "Redemption rate" means the percentage of deposit beverage containers redeemed over a reporting period. The percentage is calculated by dividing the number of deposit beverage containers redeemed by the number of deposit beverage containers sold and then multiplying that number by one hundred.  "Refillable beverage container" means any deposit beverage container which ordinarily would be returned to the manufacturer to be refilled and resold.  "Reverse vending machine" means a mechanical device, which accepts one or more types of empty deposit beverage containers and issues a redeemable credit slip with a value not less than the container's refund value. The refund value payments shall be aggregated and then paid if more than one container is redeemed in a single transaction. [L 2002, c 176, pt of 2; am L 2004, c 241, 2; am L 2005, c 206, 2; am L 2007, c 285, 2; am L 2013, c 230, 3]
  342G-102.5 REPEALED. L 2006, c 231, 2.
 342G-102 Deposit beverage container fee. (a) Beginning on October 1, 2002, every deposit beverage distributor shall pay to the department a deposit beverage container fee on each polyethylene terephthalate, high density polyethylene, or metal deposit beverage container manufactured in or imported into the State. The fee shall be imposed only once on the same deposit beverage container. The fee shall be 0.5 cents per deposit beverage container.  (b) Beginning on October 1, 2004, every deposit beverage distributor shall pay to the department a deposit beverage container fee on each deposit beverage container manufactured in or imported into the State. The deposit beverage container fee shall not apply to deposit beverage containers exported for sale outside of the State. The fee shall be imposed only once on the same deposit beverage container. The fee shall be 1 cent per deposit beverage container.  (c) No county shall impose or collect any assessment or fee on deposit beverage containers for the same or similar purpose that is the subject of this chapter.  (d) Beginning January 1, 2005, and every August 1 thereafter, the department shall notify deposit beverage distributors in writing of the amount of the deposit beverage container fee. The effective date of changes to the fee amount shall be September 1. The fee shall be based on the redemption rate calculated annually based on the redemption rate information submitted to the department for the previous period of July 1 through June 30. The fee amount shall be as follows:  (1) If the redemption rate is seventy per cent or less: 1 cent per container; and  (2) If the redemption rate is greater than seventy per cent: 1.5 cents per container.  (e) The director may temporarily suspend an automatic increase of the deposit beverage container fee if, after consultation with the auditor, it is determined that the deposit beverage container deposit special fund contains sufficient funds for the purposes of section 342G-104(b). [L 2002, c 176, pt of 2; am L 2004, c 241, 3; am L 2007, c 285, 3]
 342G-103 Deposit beverage distributors; registration, recordkeeping requirements. (a) By September 1, 2002, all deposit beverage distributors operating within the State shall register with the department, using forms prescribed by the department, and shall notify the department of any change in address or other information previously submitted. After September 1, 2002, any person who desires to conduct business in the State as a deposit beverage distributor shall register with the department no later than one month prior to the commencement of the business.  (b) All deposit beverage distributors shall maintain records reflecting the manufacture of their beverages in deposit beverage containers as well as the importation and exportation of deposit beverage containers. The records shall be made available, upon request, for inspection by the department; provided that any proprietary information obtained by the department shall be kept confidential and shall not be disclosed to any other person, except:  (1) As may be reasonably required in an administrative or judicial proceeding to enforce any provision of this chapter or any rule adopted pursuant to this chapter; or  (2) Under an order issued by a court or administrative agency hearings officer. [L 2002, c 176, pt of 2] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342G-104 Deposit into deposit beverage container deposit special fund; use of funds. (a) There is established in the state treasury the deposit beverage container deposit special fund, into which shall be deposited:  (1) All revenues generated from the deposit beverage container fee as described under sections 342G-102 and 342G-105;  (2) All revenues generated from the deposit beverage container deposit as described under sections 342G-105 and 342G-110; and  (3) All accrued interest from the fund.  (b) Moneys in the deposit beverage container deposit special fund shall be used to reimburse refund values and pay handling fees to redemption centers. The department may also use the money to:  (1) Fund administrative, audit, and compliance activities associated with collection and payment of the deposits and handling fees of the deposit beverage container program;  (2) Conduct recycling education and demonstration projects;  (3) Promote recyclable market development activities;  (4) Support the handling and transportation of the deposit beverage containers to end-markets;  (5) Hire personnel to oversee the implementation of the deposit beverage container program, including permitting and enforcement activities; and  (6) Fund associated office expenses.  (c) Any funds that accumulate in the deposit beverage container deposit special fund shall be retained in the fund unless determined by the legislature to be in excess. [L 2002, c 176, pt of 2; am L 2004, c 241, 4; am L 2005, c 228,  3, 6(1); am L 2006, c 231, 2; am L 2009, c 79, 3]
 342G-105 Deposit beverage container inventory report and payment. (a) Payment of the deposit beverage container fee and deposits as described in section 342G-110 shall be made monthly based on inventory reports of the deposit beverage distributors. All deposit beverage distributors shall submit to the department documentation in sufficient detail that identifies the net number of deposit beverage containers sold, donated, or transferred, by container size and type.  (b) The amount due from deposit beverage distributors shall be the net number of deposit beverage containers sold, donated, or transferred multiplied by the sum of the prevailing deposit beverage container fee and the refund value of 5 cents. Payment shall be made by check or money order payable to the "Department of Health, State of Hawaii". All inventory reports and payments shall be made no later than the fifteenth day of the month following the end of the payment period of the previous month. [L 2002, c 176, pt of 2; am L 2007, c 285, 4]
  342G-106 Contract for administrative services. The department may contract the services of a third party to administer the deposit beverage container program under this part. [L 2002, c 176, pt of 2]
 342G-107 Management and financial audit. The auditor shall conduct a management and financial audit of the program for fiscal years 2004-2005 and 2005-2006, and for each fiscal year thereafter ending in an even-numbered year. The auditor shall submit the audit report, including the amount of unredeemed refund value and recommendations, to the legislature and the department no later than twenty days prior to the convening of [the] next regular session. The costs incurred by the auditor for the audit shall be reimbursed by the deposit beverage container program special fund. The auditor may contract the audit services of a third party to conduct the audit. [L 2002, c 176, pt of 2]
 342G-108 Reserved.
  342G-109 Rules; commencement. The department may adopt rules pursuant to chapter 91 as may be necessary for the purposes of this part. Full implementation of the deposit beverage container deposit program shall commence no later than January 1, 2005. [L 2002, c 176, pt of 2]
  342G-11 Administration. The department shall be responsible for the administration of this chapter. The director may delegate to any person within the department the power and authority vested in this chapter as the director deems reasonable and proper for the effective administration of this chapter; provided that the director shall not delegate the power to adopt rules. [L 1991, c 324, pt of 2]
 342G-110 Payment and application of deposits. (a) By January 1, 2005, every deposit beverage container sold in this State shall have a refund value of 5 cents. Each container shall have the refund value clearly indicated on it as provided in section 342G-112.  (b) The refund value is the amount of the deposit required. Once a refund value has been applied to a deposit beverage container, the deposit on that container may not be changed and shall be paid to the State.  (c) The deposit on each filled deposit beverage container shall be paid by the deposit beverage distributor, who manufactures or imports beverages in deposit beverage containers. Payment and reporting of the deposits shall be in accordance with section 342G-105. The deposits shall be deposited into the deposit beverage container deposit special fund as described in section 342G-104.  (d) Deposit beverage distributors who are required under subsection (c) to pay a deposit shall also pay a deposit beverage container fee and register with the State. [L 2002, c 176, pt of 2]
 342G-111 Sales of beverages in deposit beverage containers; distributor report; fee and deposit payment. (a) By January 1, 2005, every deposit beverage distributor who pays a deposit to the department shall charge the dealer or consumer a deposit equal to the refund value for each deposit beverage container sold in Hawaii. The deposit charge may appear as a separate line item on the invoice.  (b) Each dealer shall charge the consumer the deposit beverage container deposit at the point of sale of the beverage, excluding sales for on-premises consumption. The deposit charge may appear as a separate line item on the invoice.  (c) Each deposit beverage distributor shall generate and submit to the department a monthly report on the net number of deposit beverage containers sold, donated, or transferred by container size and type. All information contained in the reports, including confidential commercial and financial information, shall be treated as confidential and protected to the extent allowed by state law.  (d) Payment of the deposit beverage container fee and deposits as described in section 342G-110 shall be made monthly based on reports of the deposit beverage distributors under subsection (c).  (e) Beginning January 1, 2005, a deposit beverage distributor who annually imports or manufactures one hundred thousand or fewer deposit beverage containers may submit reports and payments required under subsections (c) and (d) on a semi-annual basis; provided that the semi-annual report and payment period shall end on June 30 and December 31 of each year.  (f) The amount due from a deposit beverage distributor shall be the net number of deposit beverage containers sold multiplied by the sum of the prevailing deposit beverage container fee and the deposit value of 5 cents. Payment shall be made by check or money order payable to the "Department of Health, State of Hawaii". All reports and payments shall be made no later than the fifteenth day of the month following the end of the previous payment period.  (g) The department may allow dealers to charge customers the refund value beginning November 1, 2004; provided that the deposit beverage containers are clearly marked with the refund value and the deposit beverage distributor has paid the refund value on each container to the department. The dealer shall inform customers that the deposits paid prior to January 1, 2005, shall not be redeemable until January 1, 2005. [L 2002, c 176, pt of 2; am L 2004, c 241, 5; am L 2007, c 285, 5]
  342G-112 Deposit beverage container requirements. (a) Except as provided in subsection (b), every deposit beverage container sold in the State shall clearly indicate the refund value of the container and the word "Hawaii" or the letters "HI". The names or letters representing the names of other states with comparable deposit legislation may also be included in the indication of refund value. The refund value on every deposit beverage container shall be clearly, prominently, and indelibly marked by painting, printing, scratch embossing, raised letter embossing, or securely affixed stickers and shall be affixed on the top or side of the container in letters at least one-eighth inch in size.  (b) Subsection (a) shall not apply to any type of refillable glass deposit beverage container that has a brand name permanently marked on it and that has the equivalent of a refund value of at least 5 cents, which is paid upon receipt of the container by a dealer or deposit beverage distributor.  (c) Containers that do not meet the definition of a deposit beverage container, as specified in section 342G-101, shall not indicate "Hawaii" or "HI" on the container. [L 2002, c 176, pt of 2; am L 2004, c 241, 6; am L 2007, c 285, 6]
 342G-113 Redemption of empty deposit beverage containers. (a) Except as provided in subsection (b), a dealer shall:  (1) Operate a redemption center by July 1, 2005, and shall accept all types of empty deposit beverage containers with a Hawaii refund value;  (2) Pay to the redeemer the full refund value for all deposit beverage containers that bear a valid Hawaii refund value; and  (3) Ensure each deposit beverage container collected is recycled, and forward documentation necessary to support claims for payment as stated in section 342G-119 or rules adopted under this part.  (b) Subsection (a) shall not apply to any dealer:  (1) Who is located in a high density population area as defined by the director in rules, and within two miles of a certified redemption center that is operated independently of a dealer;  (2) Who is located in a rural area as defined by rule;  (3) Who subcontracts with a certified redemption center to be operated on the dealer's premises;  (4) Whose sales of deposit beverage containers are only via vending machines;  (5) Whose place of business is less than five thousand square feet of interior space;  (6) Who can demonstrate physical or financial hardship, or both, based on specific criteria established by rule; or  (7) Who meets other criteria established by the director. Notwithstanding paragraphs (1) and (2), the director may allow the placement of redemption centers at greater than prescribed distances to accommodate geographical features while ensuring adequate consumer convenience.  (c) Regardless of the square footage of a dealer's place of business, dealers who are not redemption centers shall post a clear and conspicuous sign at the primary public entrance of the dealer's place of business that specifies the name, address, and hours of operation of the closest redemption center locations.  (d) If there is no redemption center within the two-mile radius of a dealer due to the criteria described in subsection (b), then the respective county and the State shall determine the need for a redemption center in that area. If a redemption center is deemed necessary, then the State, with assistance from the county, shall establish the redemption center with funding from the deposit beverage container deposit special fund.  (e) Businesses that sell deposit beverages for on-premises consumption, such as hotels, bars, and restaurants, shall collect used deposit beverage containers from the patron and either use a certified redemption center for the collection of containers or become a certified redemption center. [L 2002, c 176, pt of 2; am L 2004, c 241, 7; am L 2005, c 206, 3]
 342G-114.5 REPEALED. L 2006, c 231, 2.
  342G-114 Redemption centers. (a) Prior to operation, redemption centers shall be certified by the department.  (b) Applications for certification as a redemption center shall be filed with the department on forms prescribed by the department.  (c) The department, at any time, may review the certification of a redemption center. After written notice to the person responsible for the establishment and operation of the redemption center and to the dealers served by the redemption center, the department, after it has afforded the redemption center operator a hearing in accordance with chapter 91, may withdraw the certification of the center if it finds that there has not been compliance with applicable laws, rules, permit conditions, or certification requirements.  (d) Redemption centers shall:  (1) Accept all types of empty deposit beverage containers for which a deposit has been paid;  (2) Verify that all containers to be redeemed bear a valid Hawaii refund value;  (3) Pay to the redeemer the full refund value in either cash or a redeemable voucher for all deposit beverage containers, except as provided in section 342G-116;  (4) Ensure each deposit beverage container collected is recycled through a contractual agreement with an out-of-state recycler or an in-state recycling facility permitted by the department; provided that this paragraph shall not apply if the redemption center is operated by a recycler permitted by the department;  (5) Remain open at least thirty hours per week in high density population areas, of which at least five hours shall be on Saturday or Sunday; and  (6) Forward the documentation necessary to support claims for payment as stated in section 342G-119.  (e) Redemption centers' redemption areas shall be maintained in full compliance with applicable laws and with the orders and rules of the department, including permitting requirements, if deemed necessary, under chapter 342H.  (f) The department shall develop procedures to facilitate the exchange of information between deposit beverage container manufacturers, distributors, and retailers and certified redemption centers, including but not limited to universal product code information for reverse vending machine purposes. The procedures developed by the department shall allow for a reasonable time period between the introduction of a new deposit beverage product and the deadline for submitting universal product code information to certified redemption centers operating reverse vending machines. [L 2002, c 176, pt of 2; am L 2004, c 241, 8; am L 2005, c 227, 2; am L 2007, c 285, 7]
  342G-115 Reverse vending machine requirements. Reverse vending machines may be used by redemption centers to satisfy the requirements of section 342G-113. Reverse vending machines shall accept any type of empty deposit beverage container and pay out the full refund value in either cash or a redeemable voucher for those containers that bear a valid Hawaii refund value. If the reverse vending machine is unable to read the barcode then the reverse vending machine shall reject the container. The reverse vending machine shall be routinely serviced to ensure proper operation and continuous acceptance of empty deposit beverage containers and payment of the refund value. [L 2002, c 176, pt of 2; am L 2004, c 241, 9; am L 2005, c 206, 4; ree L 2007, c 285, 8]
  342G-116 Refusal of refund value payment for a deposit beverage container. Redemption centers shall refuse to pay the refund value on any broken, corroded, or dismembered deposit beverage container, or any deposit beverage container that:  (1) Contains a free-flowing liquid;  (2) Does not properly indicate a refund value;  (3) Contains a significant amount of foreign material; or  (4) Exhibits characteristics of having been previously processed and baled. [L 2002, c 176, pt of 2; am L 2005, c 206, 5; am L 2007, c 285, 9]
  342G-117 Handling fees and refund values for certified redemption centers. (a) The department shall pay to each certified redemption center a handling fee of not less than the prevailing deposit beverage container fee for each deposit beverage container redeemed by a consumer that is:  (1) Transported out-of-state;  (2) Received by an approved in-state company for an approved end use for recycling; or  (3) Received by a department-permitted recycling facility; provided that the deposit beverage container is physically received by the redemption center.  (b) The department shall evaluate the handling fee at least once per year. If the department changes the amount of the handling fee, the department shall publish notice of the change within thirty days of its determination.  (c) The handling fee shall be paid in addition to the refund value of each empty deposit beverage container. Payments for handling fees shall be based on redemption center reports submitted to the department; provided that there is no discrepancy in the reports. The department may choose to pay the handling fee and refund value on the basis of the total weight of the containers received by material type and the average weight of each container type; provided that the deposit beverage container is physically received by the redemption center.  (d) A handling fee and refund value may only be paid once for each container redeemed by a consumer and claimed by a redemption center in accordance with section 342G-119. [L 2002, c 176, pt of 2; am L 2004, c 241, 10; am L 2007, c 285, 10]
 342G-118 Reserved.
  342G-119 Redemption center reporting. The department shall pay certified redemption centers handling fees and refund values as described in section 342G-117, based on collection reports submitted by the redemption centers. All redemption centers shall submit to the department the following information on forms prescribed by the department, which information shall include at a minimum:  (1) The number or weight of deposit beverage containers of each material type accepted at the redemption center for the reporting period;  (2) The amount of refunds paid out by material type;  (3) The number or weight of deposit beverage containers of each material type transported out-of-state or to a permitted recycling facility; and  (4) Copies of out-of-state transport and weight receipts or acceptance receipts from permitted recycling facilities. If the redemption center and the recycling facility are the same entity, copies of out-of-state transport and weight receipts, or documentation of end use accepted by the department, shall also be included. The requests for payment shall be no less than two times per month. [L 2002, c 176, pt of 2; am L 2004, c 241, 11; am L 2005, c 227, 3]
  342G-12.5  Recycling coordinator. There is established a position of assistant to the coordinator of the office of solid waste management to be known as the recycling coordinator. The position may be appointed by the director in accordance with chapter 76. [L 1995, c 229, 2; am L 2000, c 253, 150; am L 2005, c 226, 8; am L 2006, c 300, 9]
  342G-12 Office of solid waste management, establishment. There is established within the department the office of solid waste management. The head of the office shall be known as the state solid waste management coordinator. The coordinator shall be appointed by the director without regard to chapter 76 and shall be compensated at a salary level set by the director. The coordinator shall be included in any benefit program generally applicable to the officers and employees of the State. The coordinator shall hire staff, as may be necessary, with regard to chapter 76. [L 1991, c 324, pt of 2; am L 2000, c 253, 150]
 342G-120 Recycling facility reporting. Recycling facilities, in addition to any requirements under chapter 342H, shall prepare or maintain the documents involving empty beverage containers, as required by the department. [L 2002, c 176, pt of 2]
  342G-121 Audit authority. The records of the deposit beverage distributor, dealer, redemption center, and recycling facility shall be made available, upon request, for inspection by the department, a duly authorized agent of the department, or the auditor. Any proprietary information obtained by them shall be kept confidential and shall not be disclosed to any other person, except:  (1) As may be reasonably required in an administrative or judicial proceeding to enforce any provision of this chapter or any rule adopted pursuant to this chapter; or  (2) Under an order issued by a court or administrative agency hearings officer. [L 2002, c 176, pt of 2] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342G-122 Advisory committee. The department shall convene an advisory committee to assist it in developing any rules needed to implement this chapter. The department shall select members of the committee so as to obtain input on the state level as well as assess the impact on each individual county, consumers, recyclers, and the beverage industry. Members of the committee shall be appointed by the director and shall serve at the director's pleasure. A simple majority of the committee members shall constitute a quorum for the purposes of recommending rules and providing input to the director. [L 2002, c 176, pt of 2]
 342G-123 REPEALED. L 2006, c 231, 2.
 342G-13 Powers and duties of the department. In the execution of the responsibilities provided under this chapter, the department shall:  (1) Establish and administer goals and guidelines as provided for in this chapter;  (2) Adopt rules pursuant to chapter 91 and administer the rules as provided for in this chapter;  (3) Fulfill the office of solid waste management TMs responsibilities pursuant to this chapter until the establishment of the office;  (4) Serve as the state solid waste management agency for compliance with the federal Resource Conservation and Recovery Act of 1976 (42 United States Code section 6901 et seq.) and any other federal law regarding solid waste; and  (5) Perform other duties as specified in this chapter. [L 1991, c 324, pt of 2; am L 1995, c 229, 3]
  342G-14 Powers and duties of the office of solid waste management. The office shall:  (1) Promote the development of coordinated statewide solid waste management;  (2) Identify and monitor environmental and public health issues relating to solid waste management;  (3) Promote source reduction, recycling, and bioconversion, including home composting, through the provision of a comprehensive, innovative, and effective statewide public education and awareness program concerning the value of source reduction and recycling, and the way the public can participate in these areas;  (4) Comply with the federal Resource Conservation and Recovery Act of 1976 (42 United States Code section 6901 et seq.) and any other federal law heretofore or hereafter enacted affecting solid waste;  (5) Seek compliance with sections 226-18, 226-52, and 226-103;  (6) Assess the feasibility of employing disposal fees, including fees at the point of introduction or sale of any product that would require eventual disposition as solid waste, as possible funding sources for waste management activities;  (7) Coordinate with the department of land and natural resources to incorporate solid waste management and processing concerns in the department of land and natural resources TM land use planning and development efforts;  (8) Coordinate the bioconversion efforts of appropriate agency and county activities, including the provision of technical assistance and the evaluation of bioconversion programs;  (9) Provide waste evaluation services and assistance in developing paper recycling and other materials programs to both the public and private sector, where feasible;  (10) Promote the use of enterprise zones in each county to support source reduction, recycling, and bioconversion-type businesses;  (11) Create and maintain a database to assess the composition of the State TMs waste stream. If feasible, this database shall contain the information necessary to generate the office TMs annual report;  (12) Identify and apply for appropriate federal funds to support the programs and activities authorized by this chapter; and  (13) Cooperate with appropriate federal, state, and county agencies in carrying out the office TMs responsibilities under this chapter. [L 1991, c 324, pt of 2]
 342G-15 Annual report. (a) The coordinator shall prepare and submit an annual report to each county, the director, the governor, and the legislature, twenty days prior to the convening of each regular session of the legislature, describing the activities of the office. The annual report shall provide the information required in this chapter, including, but not limited to:  (1) A summary of the results achieved in meeting the state waste reduction goals, including the amounts of waste disposed of, diverted, and generated in the State, and the progress toward managing waste in consideration of the state solid waste management priorities;  (2) Results achieved in county integrated solid waste management planning and the state plan, with timetables for completion and implementation;  (3) Results achieved in implementing procurement programs, including the amount of recycled goods and materials purchased by the State and counties;  (4) Total paper consumption by state and county agencies and results achieved with the office paper reduction goal;  (5) Results achieved by government agencies in establishing office paper and other materials recovery programs;  (6) Results achieved by state and county agencies in removing barriers to the development of recycling markets and in developing markets and supporting businesses that use recovered materials;  (7) A summary of results achieved by state and county agencies in the provision and execution of the statewide public awareness and education program;  (8) A summary of results achieved by agencies to improve energy efficiency and to reduce reliance on imported fuels in compliance with sections 226-18 and 226-52;  (9) A summary and schedule of the key solid waste management goals and objectives planned for the following year at state and county levels; and  (10) Revenues into and expenditures from the environmental management special fund during the previous fiscal year and projections for revenues and expenditures in the coming fiscal year.  (b) Upon request from the office, the counties shall provide information, to the best of their abilities, to fulfill the requirements outlined in this section. [L 1991, c 324, pt of 2; am L 1993, c 312, 5]
  342G-2 Solid waste management priorities. (a) This chapter shall be known and may be cited as the "Hawaii Integrated Solid Waste Management Act".  (b) In implementing this chapter, the department and each county shall consider the following solid waste management practices and processing methods in their order of priority:  (1) Source reduction;  (2) Recycling and bioconversion, including composting; and  (3) Landfilling and incineration. The respective roles of landfilling and incineration shall be left to each county's discretion.  (c) In implementing this chapter, the department and each county shall consider the minimization of litter and illegal dumping as a design factor in the development of integrated solid waste management programs. [L 1991, c 324, pt of 2]
  342G-21 Establishment of county integrated solid waste management plans. By January 1, 1993, each county shall submit to the office an integrated solid waste management plan that has been formally adopted by the county and that is consistent with the requirements of this chapter. [L 1991, c 324, pt of 2]
  342G-22 Development of county integrated solid waste management plans. (a) Prior to preparing a plan, each county shall form an advisory committee appointed by the mayor. The county advisory committee may be composed of representatives from citizen organizations, industry, the private solid waste industry operating within the county, the private recycling or scrap material processing industry operating within the county, the county coordinator, and any other persons deemed appropriate by the mayor. The county advisory committee shall review the plan during its preparation, make suggestions, and propose any changes it believes are appropriate.  (b) Prior to formal adoption by the county, the county shall submit the proposed plan to the office for review and comment. The office shall provide its comments to the county within ninety days of receiving the proposed plan. Following the office TMs review, the county shall make the proposed plan available for public review and comment for a period of not less than sixty days. The county shall hold at least one public hearing on the proposed plan during this period.  (c) Following formal adoption of the plan by the county, the county shall submit the adopted plan to the office for review. The adopted plan shall be accompanied by a document that contains for each comment received from the State or the public, a response detailing how the comment has been addressed in the plan or, if it has not been addressed, the reason for not doing so. [L 1991, c 324, pt of 2]
  342G-23 State review of county integrated solid waste management plans. (a) Prior to submitting to the office a plan that has been formally adopted by a county, the county and the office may negotiate plan components the county finds infeasible. The public shall be notified of all plan components that are determined to be infeasible.  (b) The office shall review the county-adopted plan and approve, conditionally approve, approve specific elements or components, or disapprove the plan. The office shall have sixty days to render a decision, unless the office gives written notice to the county that additional time is necessary to complete the review.  (c) The office shall approve any county plan or revised plan that demonstrates to its satisfaction that:  (1) The plan is reasonably complete and accurate, and consistent with this chapter and rules adopted under this chapter;  (2) The plan provides for the maximum feasible development and implementation of source reduction, recycling, and bioconversion programs, and demonstrates a feasible schedule, funding source, and amount for doing so;  (3) The plan provides for the disposal of solid waste that is not reduced, recycled, or altered through bioconversion, in a manner that is consistent with the requirements of this chapter; and  (4) The plan accomplishes all of the above in a manner consistent with chapter 226.  (d) To expedite and facilitate the plan development, review, and adoption process, the office, at the request of a county, may participate directly in the county adoption process by attending public hearings and county council sessions.  (e) The department shall notify the public of the approval, conditional approval, approval of specific elements or components, or disapproval of the plan. The director may hold a public hearing on the plan if the director determines that a public hearing is in the public interest. [L 1991, c 324, pt of 2]
  342G-24 Submission schedule for revised integrated solid waste management plans. (a) Each state-approved county plan shall be revised and submitted to the office on the following schedule:  (1) The first revised plan shall be submitted to the office not later than four years after July 1, 1991; and  (2) Subsequent revised plans shall be submitted to the office once every ten years; provided that an interim status report on the implementation of a revised plan shall be submitted five years after every submission of a revised plan to the office. All revised plans shall be consistent with the requirements of this chapter.  (b) Not less than one hundred and twenty days prior to the submission of a revised plan to the office, the county shall submit a copy of the proposed revision to its county advisory committee for review and comment. All revisions determined by the county advisory committee or the office to be substantial revisions shall be subject to:  (1) At least one county public hearing prior to final submission of the revised plan to the office for review;  (2) Reconsideration and approval by the county advisory committee; and  (3) Review by the office, where the office shall approve, conditionally approve, approve specific elements or components, or disapprove the plan. In general, any significant changes in policy, program implementation, the identification of facilities necessary to accomplish plan goals, or funding mechanisms, shall be considered substantial revisions. Deadlines for the submittal of substantial revisions shall be pursuant to the schedule outlined in this section.  (c) If neither the county advisory committee nor the office deems any changes to be substantial, then those changes shall be incorporated immediately into the plan. If any member of the public contests a determination of "lack of substantial revision", that person may appeal the determination to the director. The decision of the director shall be final.  (d) The office may require a county to modify and submit to the office an entire plan or specific elements of a plan at a date earlier than the schedule outlined in this section if:  (1) The county, in total, within the county and through access to capacity within another county, has fewer than five years of available permitted disposal capacity, and in the judgment of the office is not making sufficient progress toward developing or gaining access to new capacity; or   (2) The county fails to demonstrate a commitment to meeting the State's waste reduction goals. [L 1991, c 324, pt of 2; am L 2010, c 12, 2]
  342G-25 Contents of county integrated solid waste management plans. (a) Each county plan and subsequent revision shall include:  (1) A program element; and  (2) A facility capacity and siting element. A county may include additional elements at its discretion.  (b) The program element shall include at a minimum:  (1) A waste stream assessment component;  (2) A source reduction component;  (3) A recycling and bioconversion component;  (4) An energy-balance component;  (5) A special waste component;  (6) A household hazardous waste component;  (7) A public education and information component;  (8) A landfill and incineration component;   (9) A marketing and procurement of materials component;  (10) A program implementation component; and  (11) A program funding component.  (c) The facility capacity and siting element shall include at a minimum:  (1) An existing capacity and future needs component;  (2) A facility implementation component; and  (3) An enterprise zone component. [L 1991, c 324, pt of 2]
 342G-26 Contents of the program element. (a) The waste stream assessment component shall describe and explain the origin, composition, and weight or volume, or both, of solid waste generated within the county during the year in which the plan is being developed, or during the subsequent years when a revised plan is being developed.  The component shall include data that are reasonably representative of, and that reflect information that considers, seasonal and year-round patterns in waste generation. The data developed in this component of the initial county plan shall serve as the baseline for future measurement of the percentage of waste reduced through source reduction, recycling, and bioconversion programs. For each revised plan, the component shall provide a quantitative estimate of the amount of each type of solid waste that was reduced through recycling and bioconversion during the previous planning period. The revised plan shall also include an estimate of reduction that has resulted from source reduction efforts, to the extent that the reduction can be quantified.  (b) The source reduction component shall identify and evaluate specific measures for achieving source reduction, including, but not limited to:  (1) Increased efficiency in the use of all materials;  (2) Replacement of disposable materials and products with reusable materials and products; and  (3) Reduced packaging.  (c) The recycling and bioconversion component shall identify and assess:  (1) The level of waste reduction the county is achieving through existing recycling and bioconversion efforts;  (2) The type and amount of solid waste that it is technically and economically feasible to recycle or alter through bioconversion; and  (3) Methods to increase and improve the recycling and bioconversion efforts, including opportunities for backyard composting.  For recycling, the counties shall assess the type and amount of solid waste that it is technically feasible to recycle, giving consideration at a minimum to clear glass, colored glass, aluminum, steel and bimetallic cans, high-grade office paper, newsprint, mixed paper, corrugated paper, HDPE, PET, and green waste.  For bioconversion, the counties shall assess the type and amount of solid waste that it is technically feasible to alter through bioconversion, giving consideration at a minimum to green waste, wood waste, animal manure, sewage sludge, and food wastes.  (d) The energy-balance component shall describe the programs by which the county will investigate or incorporate ways of increasing the energy efficiency of the solid waste management process, including the assessment of energy and fuel-production options such as composting, anaerobic digestion, acid hydrolysis, production of liquid fuels, incineration, or a combination thereof. The energy component shall identify and assess:  (1) The amount of energy input, including, but not limited to, electrical power, gasoline, diesel fuel, coal, natural gas, propane, kerosene, and heating oil, required by the plan for the accomplishment of collection, recycling, composting, bioconversion, waste handling, disposal, and landfilling;  (2) The amount of energy produced from the waste, including electricity, natural gas, hydrogen, and liquid fuels such as ethanol or methanol;  (3) The net energy use or energy production attributable to the solid waste program. Where feasible, this assessment shall include energy used in the original manufacture of these goods. National averages of energy consumed may be incorporated in these estimates; and  (4) Methods by which net energy use may be decreased or net energy or fuels production may be increased.  (e) The special waste component shall describe the existing waste handling and disposal practices for special wastes, including, but not limited to, asbestos, used oil, petroleum-contaminated soil, lead acid batteries, municipal waste combustion ash, sewage sludge that is not hazardous waste, agricultural and farm-generated wastes, medical wastes, tires, white goods, and derelict vehicles. The component shall identify current and proposed programs to ensure the proper handling, reuse, and long-term disposal of special wastes.  (f) The household hazardous waste component shall:  (1) Assess the quantity and type of hazardous wastes generated by residences in the county;  (2) Describe current collection, recycling, and exchange programs, as well as current methods of disposing of household hazardous waste; and  (3) Develop programs for the collection of household hazardous wastes that protect the public and the environment from these substances. The household hazardous wastes collected by the counties shall be disposed of by a state program. A county may petition the director to be exempt from this paragraph if the county demonstrates to the director's satisfaction the adequacy of its current methods of household hazardous waste collection, recycling, exchange, and disposal to protect public health and the environment.  (g) The public education and information component shall describe the programs that the county will use, in coordination with the efforts of the office, to:  (1) Provide comprehensive and sustained public notice of the options for alternate source reduction, recycling, and bioconversion, and for the proper handling of household hazardous and special wastes; and  (2) Distribute information and educational materials regarding general solid waste issues through the media, schools, and community organizations.  (h) The landfill and incineration component shall:  (1) Assess the county's current landfill capacity and ways to extend that capacity;  (2) Assess the availability of land for future landfills;  (3) Estimate the amount of waste currently going into incineration facilities and the remaining available capacity;  (4) Estimate the amount of ash generated at incineration facilities; and  (5) Describe provisions for ash disposal.  (i) The marketing and procurement of materials component shall describe:  (1) Existing county, state, or other markets for materials diverted from the solid waste stream;  (2) Methods to increase access to markets, including the promotion of local uses for materials derived from solid waste; and  (3) Methods to promote the procurement of recycled materials by county agencies.  (j) The program implementation component shall define:  (1) Specific tasks and responsibilities;  (2) Schedules for implementation;  (3) Identification of proposed ordinances, contracts, and other guidelines; and  (4) Methods for evaluating the effectiveness of the county plan.  (k) The program funding component shall:  (1) Provide for each of the components, where applicable, the estimated cost to the county of program implementation; and  (2) Demonstrate the county's economic self-sufficiency in managing solid waste pursuant to the implementation of the approved plan. This includes the identification of county funding sources that will be used to implement the plan, and other viable sources of funding that have been identified or are anticipated. [L 1991, c 324, pt of 2; am L 1993, c 190, 4]
  342G-27 Contents of the facility capacity and siting element. (a) The existing capacity and future needs component shall identify existing and future facilities needed by the county for solid waste management.  (b) The facility implementation component shall describe the specific tasks that are necessary to provide for the development or expansion of source reduction, recycling, bioconversion, and disposal facility capacity. The planning, design, funding, staffing, siting, construction, and operation of each proposed solid waste facility shall be addressed.  (c) The enterprise zone component shall describe the county TMs current and planned actions to establish enterprise zones. [L 1991, c 324, pt of 2]
  342G-28 Facility permitting. Permitting shall be performed pursuant to chapter 342H. [L 1991, c 324, pt of 2]
  342G-29 Revisions to the state integrated solid waste management plan. (a) The office shall be responsible for preparing revisions to the state integrated solid waste management plan. The first revision shall be completed within six months of the date that all four initial county plans have been approved by the office. The office shall complete each additional state revised plan within six months of the date that all four county revised plans have been approved by the office.  (b) For each state revised plan, the office shall convene a state integrated solid waste management task force. The office shall involve the task force in the review of the county plans and the development of the state revised plan.  (c) For each state revised plan, the office shall:  (1) Revise and update the material contained in the previous plan or revised plan; and  (2) With comment from the task force, address other issues of statewide concern regarding integrated solid waste management. [L 1991, c 324, pt of 2]
  342G-3 Goals. (a) It is the goal of the State to reduce the solid waste stream prior to disposal by:  (1) Twenty-five per cent by January 1, 1995; and  (2) Fifty per cent by January 1, 2000; through source reduction, recycling, and bioconversion. Where feasible, the office shall establish other state goals for specific commodities, recognizing market considerations.  (b) It is the goal of the State to reduce by not less than twenty-five per cent the amount of office paper generated by all state and county agencies by January 1, 1995, through source reduction. The base year for calculating progress toward this goal shall be total office paper consumption by state and county agencies in 1990.  (c) Nothing in this chapter shall be construed to restrict a county from setting waste reduction goals higher than those of the State. [L 1991, c 324, pt of 2]
 342G-30 Records. Each operator of a municipal solid waste landfill or incineration facility shall keep records of all deliveries of solid waste to the facility, including, but not limited to, the source of the waste, the kind of waste received, and the weight or volume, or both, of the waste. The records shall be made available to the department and the respective county for inspection, upon request. At the request of a county, the department may exempt a specific facility from this requirement, or may modify this requirement for a specific facility, if the department determines that the cost of compliance is likely to exceed the value of accurate and thorough data. If the department grants an exemption to a facility under this section, the public shall be notified through a statewide public notice. [L 1991, c 324, pt of 2; am L 1998, c 2, 90]
  342G-31 Guidelines. The process of county and state integrated solid waste management planning shall be expedited to the greatest degree possible. The department, within six months of July 1, 1991, shall issue guidelines for the development of county plans. The draft guidelines shall be circulated to the counties for review and comment not less than forty-five days before their issuance. [L 1991, c 324, pt of 2] Revision Note  "July 1, 1991" substituted for "the effective date of this chapter".
  342G-41 Goals for recycled product procurement. It shall be the policy of all state and county public agencies to give preference to the purchase of products made from recycled materials, that are themselves recyclable, and that are designed for durability. [L 1991, c 324, pt of 2]
 342G-42 Office responsibilities for recycled products procurement. The office, in coordination with the state procurement office, shall ensure that all state and county purchasing agencies are provided with the information and technical assistance necessary to promote the procurement of goods with recycled-content. [L 1991, c 324, pt of 2; am L 1994, c 186, 5]
  342G-43 Reporting. (a) Each state agency that conducts its own procurement activities shall annually submit information and data to the office regarding:  (1) The agency TMs progress in developing procurement programs;  (2) The total amount of paper purchased during the year; and   (3) The amount of recycled goods purchased during the year compared to nonrecycled counterparts. If an agency is unable to supply this information, the agency shall describe what steps it is taking to obtain this information in the future.  (b) At the request of the office, each county shall provide a similar report. [L 1991, c 324, pt of 2]
  342G-44 Double-sided copying. Double-sided copying shall be standard operating practice for all state and county agencies, offices, and facilities, as available and appropriate. To increase double-sided copying, each agency in coordination with the department of accounting and general services, each appropriate county entity, and the office, shall establish a schedule for the replacement of single-sided copying machines with double-sided copying machines for all high volume and other targeted machines that may be identified through the conduct of waste evaluations. [L 1991, c 324, pt of 2]
  342G-45 Establishment of an office paper and other materials recovery program. By January 1, 1992, the department shall initiate an office paper and other materials recovery program for all appropriate offices within the department. By June 30, 1993, all state and county agencies shall establish an office paper and other materials recovery program. [L 1991, c 324, pt of 2]
  342G-46 Coordination of bioconversion programs. Bioconversion programs shall include:  (1) A variety of program sizes ranging from backyard composting by residents and commercial establishments to full-scale municipal programs; and  (2) A range of technical approaches that adequately demonstrate the types of techniques most appropriate for Hawaii TMs environment and waste stream. This may include evaluating the feasibility of using compost or other bioconversion products for landfill cover. [L 1991, c 324, pt of 2]
  342G-47 State agency responsibilities in the promotion of bioconversion. The general responsibilities of state agencies under this chapter include the following:  (1) Departments that procure compost or that can substitute compost for other purchased products shall utilize locally produced compost whenever possible;  (2) The college of tropical agriculture and human resources of the University of Hawaii, in consultation with the department of agriculture and the office, shall evaluate composting and bioconversion methods to determine the methods appropriate to Hawaii TMs environment and needs. The college shall provide educational outreach to homeowners and farmers on appropriate composting and bioconversion methods;  (3) The department of business, economic development, and tourism shall assist, to the extent possible, in the assessment of bioconversion program alternatives;  (4) The department of health shall evaluate the public health consequences of using compost for specific applications and bioconversion for the processing of municipal solid waste;  (5) The department of land and natural resources shall consider the use of locally produced compost on state lands whenever possible; and  (6) The department of transportation shall use compost in place of, or to supplement, other commercial fertilizers in the department TMs highway landscape maintenance program. [L 1991, c 324, pt of 2]
  342G-48 Recycling market development. Databases on solid waste management alternatives and businesses involved in recycling and bioconversion shall be developed and maintained as follows:  (1) Within one year of its establishment, the office shall develop a database on the full range of solid waste management alternatives. This database shall include, but not be limited to, information on technology description, effectiveness, level of use elsewhere, available vendors, and cost. This database shall be offered for the use of the public and private sectors; and  (2) By January 1, 1993, the department of business, economic development, and tourism shall develop a database that identifies businesses involved in recycling and bioconversion. This database shall identify businesses that collect, transport, process, market, reuse, or purchase these goods. [L 1991, c 324, pt of 2]
  342G-49 REPEALED. L Sp 1995, c 2, 5.
  342G-61 Solid waste collection surcharge. Each county may assess residential real property owners in their respective county an annual solid waste collection surcharge based on the partial costs of solid waste collection. Notice of this surcharge shall be included with the notice of assessment required by county ordinance. [L 1993, c 312, pt of 2; am L 2016, c 52, 3]
 342G-62 Solid waste disposal surcharge. (a) There is established a solid waste management surcharge. The solid waste management surcharge shall be 35 cents per ton of solid waste disposed of within the State at permitted or unpermitted solid waste disposal facilities. The surcharge shall be paid by the person or entity doing the disposal. The owner or operator of the facility shall transfer all moneys collected from the surcharge to the department through a quarterly reporting and payment schedule. Estimates of quarterly solid waste disposal shall be submitted prior to the first day of each quarter and the transfer of moneys collected shall occur within thirty days of the end of each quarter.  (b) The surcharge collected pursuant to this section shall be deposited into the environmental management special fund. All interest earned or accrued on moneys deposited in the fund shall become a part of the fund. [L 1993, c 312, pt of 2; am L 1997, c 268, 1]
 342G-63 Establishment of the environmental management special fund. (a) There is created in the state treasury an environmental management special fund. The fund may receive legislative appropriations, grants and gifts.  (b) All moneys collected pursuant to section 342G-62 shall be deposited into the environmental management special fund. All interest earned or accrued on moneys deposited into the fund shall become a part of the fund.  (c) The department shall expend moneys contained in the environmental management special fund to:  (1) Partially fund the operating costs of the program including its regulatory functions and the development of waste reduction and diversion activities as mandated by chapter 342G;  (2) Fund statewide education, demonstration, and market development programs, through direct contract or direct transfer of funds to the counties and the department of business, economic development, and tourism, or under a grant program that may be developed under rules pursuant to chapter 91; and  (3) Provide for annual training for municipal solid waste operators in compliance with 40 Code of Federal Regulations Part 258 and chapter 11-58, Hawaii Administrative Rules. [L 1993, c 312, pt of 2; am L 1996, c 83, 3] Note  Chapter 11-58, Hawaii Administrative Rules, referred to in text is repealed. For present provisions, see chapter 11-58.1, Hawaii Administrative Rules.
  342G-64 Administration of the environmental management special fund. (a) The department may adopt rules to administer the environmental management special fund. During the interim period until such rules are established, the department may distribute funding to the counties or the department of business, economic development, and tourism in the form of a contractual agreement pursuant to section 103-22.  (b) The office shall not award any grant or contract under this section to any county that has failed to comply with the conditions set forth in this part and any rules adopted pursuant thereto.  (c) Unexpended or unencumbered grant funds shall revert to the environmental management special fund at the end of the fiscal year following the year in which the funds were granted. [L 1993, c 312, pt of 2] Note  Section 103-22 referred to in text is repealed. For similar provision, see chapter 103D.
Revision Note Part heading added by revisor.  342G-71 Penalties. Any person who violates any provision of this chapter or any rule adopted pursuant to this chapter shall be fined not more than $10,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken to impose or collect the penalty provided for in this section shall be made through administrative, civil, or criminal actions. [L 1993, c 312, pt of 3; am L 2002, c 176, 7]
  342G-72 Enforcement. (a) If the director determines that any person has violated or is violating any provision of this chapter, any rule adopted pursuant to this chapter, or any term or condition of a certification or permit issued pursuant to this chapter, the director may do any one or more of the following:  (1) Issue a field citation assessing an administrative penalty and ordering corrective action immediately or within a specified time;  (2) Issue an order assessing an administrative penalty for any past or current violation;  (3) Require compliance immediately or within a specified time; and  (4) Commence a civil action in circuit environmental court in which the violation occurred or where the person resides or maintains the person's principal place of business for appropriate relief, including a temporary, preliminary, or permanent injunction, the imposition and collection of civil penalties, or other relief.  (b) Any order issued pursuant to this section may include a suspension, modification, or revocation of a certification or permit issued under this chapter, and shall state with reasonable specificity the nature of the violation.  (c) Any order issued under this chapter shall become final, unless not later than twenty days after the notice of order is served, the person or persons named therein request in writing a hearing before the director. Any penalty imposed under this chapter shall become due and payable twenty days after the notice of penalty is served unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on any penalty imposed under this chapter, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Upon request for a hearing, the director shall require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of.  (d) Any hearing conducted under this section shall be conducted as a contested case under chapter 91. If after a hearing held pursuant to this section, the director finds that a violation or violations have occurred, the director shall:  (1) Affirm or modify any penalties imposed or shall modify or affirm the order previously issued; or  (2) Issue an appropriate order or orders for the prevention, abatement, or control of the violation involved, or for the taking of such other corrective action as may be appropriate. If, after a hearing on an order or penalty contained in a notice, the director finds that no violation has occurred or is occurring, the director shall rescind the order or penalty. Any order issued after hearing may prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the violation.  (e) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the director may institute a civil action in the name of the State to collect the administrative penalty which shall be a government realization. In any proceeding to collect the administrative penalty imposed, the director need only show that:  (1) Notice was given;  (2) A hearing was held or the time granted for requesting a hearing expired without a request for a hearing;  (3) The administrative penalty was imposed; and  (4) The penalty remains unpaid.  (f) In connection with any hearing held pursuant to this section, the director shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties. [L 1993, c 312, pt of 3; am L 2002, c 176, 8; am L 2014, c 218, 8]
  342G-81 Definitions. As used in this part, unless the context requires otherwise:  "Deposit glass beverage container" means:  (1) The individual, separate, sealed, glass container used for containing, at the time of import, sixty-eight fluid ounces or less of a beverage; or  (2) The empty, individual, separate glass container that will be filled with sixty-eight fluid ounces or less of a beverage and sealed in this State, so that these glass beverage containers will be subject to part VIII.  "Glass container importer" means any person who is engaged in the manufacture of glass containers within the State or who imports glass containers from outside the State for sale or use within the State. The term includes federal agencies and military distributors, but does not include airlines and shipping companies that merely transport glass containers.  "Glass incentive" means an incentive paid to licensed recyclers for recycling glass containers. Such incentives may be structured to include the costs of collection and processing, and a "buy back" incentive to increase participation by the public and private haulers.  "Glassphalt" means an asphaltic concrete mixture utilizing crushed glass, under controlled gradation conditions, as a substitute for a percentage of the aggregate in the mix.  "Glass recovery program" means a program for glass recovery and reuse for purposes including but not limited to:  (1) Glass container reuse or recycling whereby containers are refilled, processed for shipment out of the State, or crushed into aggregate substitute; and  (2) Use in roadway materials or concrete as provided in this part.  "Import" means to buy, bring, or accept delivery of glass containers from an address, supplier, or any entity outside of the State of Hawaii. [L 1994, c 201, pt of 2; am L 2000, c 128, 2; am L 2002, c 176, 5; am L 2008, c 16, 14]
  342G-82 Advance disposal fee. (a) Every glass container importer shall pay to the department an advance disposal fee. The fee shall be imposed only once on the same glass container and shall not be assessed on drinking glasses, cups, bowls, plates, ashtrays, and similar tempered glass containers. For the period beginning September 1, 1994, the fee shall be one and one-half cents per glass container. Beginning October 1, 2004, the glass advance disposal fee shall only apply to glass containers that are not glass deposit beverage containers.  (b) The legislature shall have exclusive authority over all matters subject to this chapter.  (c) No county shall impose or collect any assessment or fee on glass containers for the same or similar purpose that is the subject of this chapter. [L 1994, c 201, pt of 2; am L 2002, c 176, 9]
  342G-83 Glass container importers; registration, recordkeeping requirements. (a) By September 1, 1994, all glass container importers operating within the State shall register with the department, using forms prescribed by the department, and shall notify the department of any change in address. After September 1, 1994, any person who desires to conduct business in this State as a glass container importer shall register with the department no later than one month prior to the commencement of the business.  (b) All glass container importers shall maintain records reflecting the manufacture of their glass containers as well as the importation and exportation of products packaged in glass. The records shall identify the type (glass deposit beverage container or non-deposit beverage glass container) and quantity of each type of glass container. The records shall be made available, upon request, for inspection by the department; provided that any proprietary information obtained by the department shall be kept confidential, and shall not be disclosed to any other person except:  (1) As may be reasonably required in an administrative or judicial proceeding to enforce any provision of this chapter or any rule adopted pursuant to this chapter; or  (2) Under an order issued by a court or administrative agency hearing officer. [L 1994, c 201, pt of 2; am L 2000, c 128, 3; am L 2002, c 176, 10] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342G-84 Deposit into environmental management special fund; distribution to counties. (a) Revenues generated from the advance disposal fee shall be deposited into a special account in the environmental management fund. Moneys from the special account shall be used to fund county glass recovery programs established in accordance with the requirements under section 342G-86; provided that no moneys shall be made available to a county unless the county has first submitted its formally adopted integrated solid waste management plan to the department for review. In the event of any surplus in the special account, the department shall recommend a reduction in the fee as deemed necessary.  (b) The department shall distribute the moneys contained in the special account to the counties in proportion to the amount of glass imported into each county based on the county's de facto population. The distribution shall be in the form of direct contracts with the department as permitted under chapters 103 and 103D or transfer of funds from the department.  (c) No more than ten per cent, in the aggregate, of the revenue collected in any one year may be used by the department for administrative and educational purposes and to promote glass recovery, recycling, and reuse in Hawaii through research and demonstration projects.  (d) All moneys distributed to the counties under subsection (b), and not used by the counties as specified in section 342G-86, shall be returned to the State for deposit into the environmental management special fund at the end of each annual contract period. [L 1994, c 201, pt of 2; am L 1998, c 253, 1; am L 2002, c 176, 11]
  342G-85 Container inventory report and payment.  (a) Payment of the advance glass disposal fee shall be made quarterly based on inventory reports of the glass container importers, except for those importers subject to subsection (c) or (d). All glass container importers shall submit to the department documentation in sufficient detail that identifies the number of glass deposit beverage and glass non-deposit beverage containers manufactured or imported to the State and sold or distributed, by manufacturer or distributor, during the calendar year.  (b) Until September 30, 2004, the amount due from glass container importers less glass containers exported for the calendar year shall be the sum equal to the number of glass containers provided in subsection (a) multiplied by the advance disposal fee specified in section 342G-82. Beginning October 1, 2004, the amount due from glass container importers shall be the sum equal to the number of non-deposit beverage glass containers provided in subsection (a), less non-deposit beverage glass containers exported, and multiplied by the advance disposal fee. Payment shall be made by check or money order payable to the "Department of Health, State of Hawaii". All subsequent inventory reports and payments shall be made not later than the fifteenth day of the month following the end of the previous calendar quarter, except for those importers subject to subsection (d).  (c) Until September 30, 2004, a glass container importer who imports fewer than five thousand glass containers within a one-year period shall be exempt from payment of the fee. Any empty, imported glass container designed to hold not more than two and one-half fluid ounces of a product meant for human consumption shall be exempt from the fee. Beginning October 1, 2004, a glass container importer who imports or manufactures in the State fewer [than] five thousand non-deposit beverage glass containers within a one-year period shall be exempt from payment of the fee.  (d) Until September 30, 2004, a glass container importer who imports five thousand or more glass containers, but less than or equal to one hundred thousand glass containers, shall be permitted to provide a report and payment of the fee annually, rather than quarterly. Beginning October 1, 2004, a glass container importer who imports or manufactures in the State five thousand or more non-deposit beverage glass containers, but less than or equal to one hundred thousand non-deposit beverage glass containers, shall be permitted to provide a report and payment of the fee annually, rather than quarterly. [L 1994, c 201, pt of 2; am L 1998, c 253, 2; am L 1999, c 108, 1; am L 2002, c 176, 12]
  342G-86 County glass recovery programs; requirements. (a) All county glass recovery programs shall include:  (1) Some form of glass incentive or "buy back" program providing a means of encouraging participation by the public or private collectors; and  (2) The paving of the equivalent of one mile of two lane asphalt roadway as part of a research and demonstration program utilizing glassphalt or glass within any other portion of the pavement section; or any other demonstration project as approved by the department.  (b) In addition, county programs may include but shall not be limited to:  (1) Funding of the collection and processing of glass containers either through existing county agencies or through external contracts for services;  (2) Subsidizing the transportation [of] processed material to off-island markets;  (3) The development of collection facilities or the provision of containers for glass recycling, or the incremental portions of multi-material programs;  (4) Additional research and development programs, including grants to private sector entrepreneurs, especially those activities developing higher value uses for the material; and  (5) Public education and awareness programs focusing on glass recovery, or the incremental portions of multi-material programs. [L 1994, c 201, pt of 2; am L 2002, c 176, 13]
  342G-87 Contract for administrative services. The department may contract the services of a third party to administer the advance disposal fee program under this part. [L 1994, c 201, pt of 2]
   342G-88, 89 REPEALED. L 2002, c 176,  14, 15.
  342H-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Complaint" means any written charge filed with or by the department that a person is violating any provision of this chapter or any rule or order adopted pursuant to this chapter.  "Department" means the department of health.  "Director" means the director of health.  "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste onto any land or water so that such solid waste, or any constituent thereof, may enter the environment, be emitted into the air, or discharged into any water, including ground waters.  "Incineration" means the treatment of solid waste by burning in a furnace designed for the purpose wherein solid waste is essentially reduced to ash, carbon dioxide, and water vapor.  "Inert fill material" means earth, soil, rocks, rock-like material such as cured asphalt, brick, and clean concrete less than eight inches in diameter, except as specified by a licensed soils engineer with no exposed steel reinforcing rod. The fill material shall not contain vegetation or organic material, or other solid waste.  "Open dump" means a disposal site that is operating in nonconformance with applicable standards, relevant permit conditions, rules, or this chapter.  "Party" means each person or agency named as party or properly entitled to be a party in any court or agency proceeding.  "Permit" means written authorization from the director to construct, modify, and operate any solid waste management system or any component of any solid waste management system. A permit authorizes the grantee to construct, modify, and operate any solid waste management system in a manner or amount, not forbidden by this chapter, or by rules adopted pursuant to this chapter but requiring review by the department.  "Person" means any individual, partnership, firm, association, public or private corporation, federal agency, the State or any of its political subdivisions, trust, estate, or any other legal entity.  "Petroleum" means any petroleum, including crude oil or any fraction thereof, that is liquid at standard temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute).  "Petroleum-contaminated soil" means soil that has been contaminated by a release of petroleum to a degree that exceeds levels determined to be acceptable by the director.  "Pollution" means solid waste pollution.  "Recycling" means the collection, separation, recovery, and sale or reuse of secondary resources that would otherwise be disposed of as municipal solid waste, and is an integral part of a manufacturing process aimed at producing a marketable product made of postconsumer material.  "Sanitary landfill" means a land site on which engineering principles are utilized to bury deposits of solid waste without creating a nuisance or hazard to public health or safety.  "Secondary resources" means postconsumer material collected and processed for feedstock in a manufacturing process.  "Solid waste" means garbage, refuse, and other discarded materials, including solid, liquid, semisolid, or contained gaseous materials resulting from industrial, commercial, mining, and agricultural operations, sludge from waste treatment plants and water supply treatment plants, and residues from air pollution control facilities and community activities, but does not include solid or dissolved materials in domestic sewage or other substances in water sources such as silt, dissolved or suspended solids in industrial waste water effluents, dissolved materials in irrigation return flows, or other common water pollutants, or source, special nuclear, or by-product material as defined by the federal Atomic Energy Act of 1954, as amended (68 Stat. 923).  "Solid waste management system" means a system for the storage, processing, treatment, transfer, or disposal of solid waste.  "Variance" means special written authorization from the director to do an act that deviates from applicable standards or from the requirements of rules adopted under this chapter.  "Waste" means sewage, industrial and agricultural matter, and all other liquid, gaseous, or solid substance, including radioactive substance, whether treated or not, which may pollute or tend to pollute the atmosphere, lands or waters of this State. [L 1989, c 212, pt of 4; am L 1990, c 34, 21 and c 298, 6; am L 1992, c 245, 2; am L 1993, c 190, 5 and c 281, 2; am L 1994, c 210, 3; am L 1997, c 268, 2; am L 1998, c 226, 1] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342H-10.5 Disposition of collected fines and penalties. Except as otherwise provided in this section, fines and penalties collected under sections 342H-9 and 342H-10 shall be deposited into the environmental response revolving fund established by section 128D-2. Where a county individually, or the State and a county jointly, initiates and conducts an investigation resulting in the imposition and collection of a fine or penalty, pursuant to section 342H-30(c), the fine or penalty shall be distributed as follows:  (1) One half to the department of the county whose officers or employees initiated and conducted the investigation; and  (2) One half to the environmental response revolving fund established in section 128D-2. [L 1991, c 157, 4; am L 1994, c 210, 4]
 342H-10 Administrative penalties. (a) In addition to any other administrative or judicial remedy provided by this chapter or by rules adopted under this chapter, the director is authorized to impose by order the penalties specified in section 342H-9(a) and (b).  (b) Factors to be considered in imposing an administrative penalty include:  (1) The nature and history of the violation and of any prior violations;  (2) The economic benefit, if any, resulting from the violation;  (3) The opportunity, difficulty, and history of corrective action;  (4) Good faith efforts to comply; and  (5) Any other matters that justice may require.  (c) It is presumed that the violator TMs economic and financial conditions allow payment of the penalty, and the burden of proof to the contrary shall be on the violator. [L 1989, c 212, pt of 4; am L 1995, c 180, 22]
 342H-11 Injunctive and other relief. The director may institute a civil action in any environmental court of competent jurisdiction for injunctive and other relief to prevent any violation of this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter, without the necessity of a prior revocation of the permit or variance, to impose and collect civil penalties, to collect administrative penalties, or to obtain other relief. The environmental court shall have power to grant relief in accordance with the Hawaii rules of civil procedure. [L 1989, c 212, pt of 4; am L 1995, c 180, 23; am L: 2014, c 218, 8] Rules of Court  Injunctions, see HRCP rule 65.
  342H-12 Appeal. If any party is aggrieved by the decision of the director, the party may appeal in the manner provided in chapter 91 to the circuit environmental court of the circuit in which the party resides or has the party TMs principal place of business or in which the action in question occurred; provided that the operation of a cease and desist order will not be stayed on appeal unless specifically ordered by [an] environmental court of competent jurisdiction. [L 1989, c 212, pt of 4; am L 2014, c 218, 8]
  342H-13 Fees. The director may establish reasonable fees for the issuance of permits and variances to cover the cost of issuance thereof and for the implementation and enforcement of the terms and conditions of permits and variances (not including court costs or other costs associated with any formal enforcement action). The fees shall be deposited to the credit of the general fund. [L 1989, c 212, pt of 4] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342H-14 Public records; confidential information; penalties. Solid waste management permit applications and reports on the disposal or management of solid waste submitted to the department shall be made available for inspection by the public during established office hours unless such reports contain information of a confidential nature concerning secret processes or methods of manufacture. Any officer, employee, or agent of the department acquiring confidential information from the inspection authorized by section 342H-6 who divulges information except as authorized in this chapter or except as ordered by a court or at an administrative hearing regarding an alleged violation of this chapter or of any rule or standard adopted pursuant to this chapter shall be fined not more than $1,000. [L 1989, c 212, pt of 4] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342H-15 Nonliability of department personnel. Notwithstanding any other law to the contrary, no member, officer, or employee of the department shall be criminally liable or responsible under this chapter for any acts done by the member, officer, or employee in the performance of the member TMs, officer TMs, or employee TMs duties; provided that this section shall not apply to violations of section 342H-14. [L 1989, c 212, pt of 4]
  342H-16 Other action not barred. No existing civil or criminal remedy for any wrongful action which is a violation of any statute or any rule of the department or the ordinance of any county shall be excluded or impaired by this chapter. [L 1989, c 212, pt of 4]
  342H-17 Enforcement by state and county authorities. All state and county health authorities and police officers shall enforce this chapter and the rules, orders, and permits of the department. [L 1989, c 212, pt of 4]
  342H-18 Other powers of department not affected. The powers, duties, and functions vested in the department under this chapter shall not be construed to affect in any manner the powers, duties, and functions vested in the department under any other law. [L 1989, c 212, pt of 4]
 342H-19 Effect of laws, ordinances, and rules. (a) All laws, ordinances, and rules inconsistent with this chapter shall be void and of no effect.  (b) Except as provided in section 342H-30(c), any county may adopt ordinances and rules governing any matter relating to solid waste management that is not governed by a rule of the department adopted pursuant to this chapter; provided that any county ordinance or rule relating to solid waste management shall be void and of no effect as to any matter regulated by a rule of the department upon its adoption. [L 1989, c 212, pt of 4; am L 1994, c 210, 5]
  342H-2.5 Department of health; delegation of enforcement powers. The department, pursuant to rules adopted in accordance with chapter 91, may delegate to agencies of the various counties the powers or authority vested in the department to investigate alleged violations of section 342H-30(c). [L 1994, c 210, 2]
  342H-2 Administration. The department shall administer this chapter through the director. The director may delegate to any person such power and authority vested in the director by this chapter as the director deems reasonable and proper for the effective administration of this chapter, except the power to make rules. [L 1989, c 212, pt of 4] Cross References  Regulation of nondegradable solid waste, see  339-21 to 24.
  342H-20 Priority in courts. All actions brought pursuant to this chapter or pursuant to the rules adopted under this chapter or pursuant to the conditions of a permit issued under this chapter shall in the discretion of the court receive priority in the courts of the State. [L 1989, c 212, pt of 4] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342H-21 Unauthorized removal of recyclable materials. No person, other than an authorized agent of the State or a county, commercial waste generator, or private recycling system, shall knowingly remove any paper, glass, cardboard, plastic, used motor oil, ferrous metal, aluminum, or other recyclable materials that have been segregated from solid waste and placed at designated collection sites for the purposes of collection and recycling. [L 1992, c 81, 1]
  342H-3 Duties; rules; appointment of hearings officers. (a) In addition to any other power or duty prescribed by law and in this chapter, the director shall prevent, control, and abate solid waste pollution in the State. In the discharge of this duty, the director may make, amend, and repeal state rules controlling and prohibiting solid waste. All rules shall be adopted pursuant to chapter 91. Any person heard at the public hearing shall be given written notice of the action taken by the department with respect to the rules.  (b) In addition to other specific powers provided in this chapter, the director may appoint without regard to chapter 76, hearings officers to conduct public participation activities including public hearings and public informational meetings. [L 1989, c 212, pt of 4; am L 2000, c 253, 150]
  342H-30 Prohibition; civil. (a) No person, including any public body, shall engage in the operation of an open dump.  (b) No person, including any public body, shall operate a solid waste management system without first securing approval in writing from the director.  (c) No person, including any public body, shall discard, dispose of, deposit, discharge, or dump solid waste, or by contract or otherwise arrange directly or indirectly for the disposal of solid waste in an amount equal to or greater than one cubic yard in volume anywhere other than a permitted solid waste management system without the prior written approval of the director. Each day of violation shall constitute a separate offense. This prohibition shall not be deemed to supersede any other disposal prohibitions established under federal, state, or county law, regulation, rule, or ordinance. [L 1989, c 212, pt of 4; am L 1994, c 210, 6; am L 1997, c 268, 3; am L 1998, c 226, 2; am L 2004, c 143, 2 and c 145, 2; am L 2005, c 105, 2]
 342H-31 Rules; specific. The director may establish by rule the criteria for siting design, construction, financial responsibility, manifest, and operation of solid waste management systems. [L 1989, c 212, pt of 4; am L 1998, c 226, 3]
 342H-32 Plans and reports. The director may require complete and detailed plans or reports on existing solid waste management systems and of any proposed addition to, modification of, or alteration of any such systems that contain the information requested by the director in the form prescribed by the director. The plans or reports shall be made by a competent person acceptable to the director and at the expense of such applicant or owner. [L 1989, c 212, pt of 4; am L 1998, c 226, 4]
  342H-33 Appointment of masters. The director may appoint a master or masters to conduct investigations and hearings. [L 1989, c 212, pt of 4]
  342H-34 Consultation and advice. The director may consult with and advise any person engaged or intending to be engaged in the management of solid waste. [L 1989, c 212, pt of 4]
  342H-35 Research, educational, and training programs. The director may:  (1) Conduct and supervise research programs for the purpose of determining the sources of solid waste, effects, and hazards of pollution associated with solid waste management systems;  (2) With the approval of the governor, cooperate with, and receive money from the federal government or any political subdivision of the State, or from private sources for the study and control of solid waste pollution; and  (3) Conduct and supervise state educational and training programs on solid waste management systems, including the preparation and distribution of information relating to solid waste pollution. [L 1989, c 212, pt of 4; am L 1998, c 226, 5]
  342H-36.5 Leaf blower debris. (a) It shall be unlawful for any person to use or operate a leaf blower in such a manner as to blow, dispel, or make airborne dust, leaves, grass cuttings, paper, trash, or any other type of unattached debris or material, beyond the boundaries of the parcel of property being cleaned, unless the consent of the adjoining owner or person in possession of the adjoining property is obtained.  (b) It shall be unlawful for any person to use or operate a leaf blower in such a way as to blow leaves, dirt, and other debris onto the public rights-of-way or onto private property not owned, leased, or controlled by the leaf blower operator or the employer or contractor of the leaf blower operator and to allow the debris to remain there in excess of thirty minutes.  (c) For purposes of this section:  "Leaf blower" shall have the same meaning as defined in section 342F-30.8.  "Parcel" means a legal lot of record. Contiguous parcels owned by the same individual or entity shall be considered one parcel for purposes of this section. [L 2010, c 206, 2]
 342H-36 Recycling for agricultural purposes; encouraged. The director shall encourage the recycling of solid wastes, including animal wastes and selected non-hazardous industrial wastes, and the composting of animal manures and by-products for agricultural and horticultural purposes. The use of treated sludge effluent for fertilizer and other agricultural purposes shall also be encouraged. Composting of agricultural secondary organic resources under approved methods shall also be encouraged. [L 1989, c 212, pt of 4; am L 1993, c 281, 4]
  342H-37 Felony disposal of solid waste. (a) A person commits the offense of felony disposal of solid waste if the person:  (1) Knowingly discards, disposes of, deposits, discharges, or dumps solid waste, or by contract or otherwise arranges directly or indirectly for the disposal of solid waste in an amount equal to or greater than ten cubic yards in volume anywhere other than a permitted solid waste management system without the written approval of the director;  (2) After having been sentenced under this section or section 342H-39 on two separate and prior occasions, knowingly discards, disposes of, deposits, discharges, or dumps solid waste, or by contract or otherwise arranges directly or indirectly for the disposal of solid waste in an amount equal to or greater than one cubic yard in volume anywhere other than a permitted solid waste management system without the written approval of the director; or  (3) Knowingly discards, disposes of, deposits, discharges, or dumps solid waste, or by contract or otherwise arranges directly or indirectly for the disposal of solid waste anywhere other than a permitted solid waste management system without the written approval of the director for which the expense of recovering, removing, restoring, and lawfully disposing of the solid waste exceeds $1,500.  (b) This section shall not supersede any other disposal prohibitions established under federal, state, or county law, ordinance, regulation, or rule.  (c) Felony disposal of solid waste is a class C felony for which a maximum fine of $50,000 for each separate offense may be imposed. [L 2004, c 143, pt of 1; am L 2005, c 105, 3]
  342H-38 Felony disposal of solid waste; deferred prosecution agreement. First time offenses for persons cited with felony disposal of solid waste may enter into a deferred prosecution agreement. Persons failing to meet all of the terms of a deferred prosecution agreement shall be subject to prosecution under this section.  For the purposes of this section, a deferred prosecution agreement shall mean an agreement offered by the prosecutor, in the prosecutor's discretion, to the person cited that would defer prosecution during the statute of limitations period, subject to renewed prosecution if the defendant violates the conditions of the agreement. The agreement, if one is offered, shall contain provisions reasonably calculated to deter future violations. No person shall be offered a deferred prosecution agreement under this section more than once. If all terms of the agreement are met, all records of the person's arrest, indictment, or plea shall be cleared. Entering into a deferred prosecution agreement shall not be considered an admission of guilt. [L 2004, c 143, pt of 1]
  342H-39 Petty misdemeanor disposal of solid waste. (a) A person commits the offense of petty misdemeanor disposal of solid waste if the person knowingly discards, disposes of, deposits, discharges, or dumps solid waste, or by contract or otherwise arranges directly or indirectly for the disposal of solid waste in an amount equal to or greater than one cubic yard in volume and less than ten cubic yards in volume, anywhere other than a permitted solid waste management system without the written approval of the director.  (b) Petty misdemeanor disposal of solid waste is punishable by:  (1) A fine of not more than $25,000 for each separate offense;  (2) Not more than thirty days imprisonment for each offense; or  (3) Revocation or suspension by court order of any contractor's license or any applicable certificate of authorization from the public utilities commission. Each day of violation shall constitute a separate offense.  (c) Each fine collected for a violation of this section shall be distributed to the authorized agency that enforced the prohibition under which the fine was imposed.  (d) This section shall not apply to solid waste consisting solely of green waste. For the purposes of this section, "green waste" means solid waste that consists solely of leaves, grass clippings, garden and yard wastes, tree trunks, holiday trees, tree trimmings, and prunings, or any combination thereof. [L 2005, c 105, 1] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342H-4.5 REPEALED. L 2007, c 25, 1.
 342H-4 Permits; procedures for. (a) An application for any permit required under this chapter shall be in a form prescribed by the director.  (b) The department may require that applications for permits be accompanied by plans, specifications, and any other information it deems necessary in order for it to determine whether the proposed installation, alteration, disposal, or use will be in accord with applicable rules and standards.  (c) The director shall issue a permit for any term, not exceeding five years, if the director determines that such will be in the public interest; provided that the permit may be subject to such reasonable conditions as the director may prescribe. The director, on application, shall renew a permit from time to time for a term not exceeding five years if the director determines that such is in the public interest. The director shall not deny an application for the issuance or renewal of a permit without affording the applicant an opportunity for a hearing in accordance with chapter 91.  The director, on the director TMs own motion or the application of any person, may modify, suspend, or revoke any permit if, after affording the permittee an opportunity for a hearing in accordance with chapter 91, the director determines that:  (1) There is a violation of any condition of the permit;  (2) The permit was obtained by misrepresentation, or failure to disclose fully all relevant facts;  (3) There is a change in any condition that requires either a temporary or permanent reduction or elimination of the permitted disposal; or  (4) Such is in the public interest.  In determining the public interest, the director shall consider the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the action be implemented, the alternatives to the proposed action, the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented, and any other factors which the director may by rule prescribe; provided that any determination of public interest shall promote the optimum balance between economic development and environmental quality.  (d) The failure of the director to act on an application for the issuance of a permit or an application by a permit holder for the modification or renewal thereof within one hundred eighty days of the receipt of such application, except for all federally delegated permit programs and federally approved programs, shall be deemed a grant of such application provided that the applicant acts consistently with the application and all plans, specifications, and other information submitted as a part thereof.  (e) No applicant for a modification or renewal of a permit shall be held in violation of this chapter during the pendency of the applicant TMs application provided that the applicant acts consistently with the permit previously granted, the application and all plans, specifications, and other information submitted as a part thereof. [L 1989, c 212, pt of 4; am L 1990, c 298, 7; am L 1992, c 245, 3; am L 1993, c 190, 6]
  342H-41 Definitions. As used in this part, unless the context otherwise requires:  "Label" means a molded imprint or raised symbol on or near the bottom of a plastic product.  "Plastic" means any material made of polymeric organic compounds and additives that can be shaped by flow.  "Plastic bottle" means a plastic container intended for single use that has a neck that is smaller than the body of the container, accepts a screw-type, snap cap, or other closure and has a capacity of sixteen fluid ounces or more, but less than five gallons.  "Rigid plastic container" means any formed or molded container, other than a bottle, intended for single use, composed predominantly of plastic resin, and having a relatively inflexible finite shape or form with a capacity of eight ounces or more, but less than five gallons. [L 1990, c 318, pt of 1] Revision Note  "Part" substituted for "chapter". Cross References  Plastic connecting devices prohibition, see 339-22.
  342H-42 Prohibition. On or after January 1, 1992, no person shall manufacture, distribute, sell, or expose for sale in this State any plastic bottle or rigid plastic container unless the product has a label indicating the plastic resin used to produce the plastic bottle or rigid plastic container. The label shall consist of a number placed within a triangle of arrows and letters placed below the triangle. The triangle shall be equilateral, formed by three arrows curved at their midpoints and depicting a clockwise path around the code number. The numbers and letters used shall be as follows:  (1) For polyethylene terephthalate, the letters PETE  and the number 1;  (2) For high density polyethylene, the letters HDPE  and the number 2;  (3) For vinyl, the letter V  and the number 3;  (4) For low density polyethylene, the letters LDPE  and the number 4;  (5) For polypropylene, the letters PP  and the number 5;  (6) For polystyrene, the letters PS  and the number 6; and  (7) For any other, the letters OTHER  and the number 7. [L 1990, c 318, pt of 1]
 342H-5 Variances. (a) Every application for a variance shall be made on forms furnished by the department and shall be accompanied by a complete and detailed description of present conditions, how present conditions do not conform to applicable standards, and such other information as the department may by rule prescribe.  (b) Each application for a variance shall be reviewed in light of the descriptions, statements, plans, histories, and other supporting information submitted with the application, such additional information as may be submitted upon the request of the department, and the effect or probable effect upon the standards established pursuant to this chapter.  (c) Whenever an application for a variance is approved, the department shall issue a variance authorizing the disposal of solid waste in nonconformance with applicable standards or rules. No variance shall be granted by the department unless the application and the supporting information clearly show that:  (1) The continuation of the function or operation involved in the disposal occurring or proposed to occur by the granting of the variance is in the public interest as defined in section 342H-4;  (2) The disposal occurring or proposed to occur does not substantially endanger human health or safety; and  (3) Compliance with the applicable standards or rules from which variance is sought would produce serious hardship without equal or greater benefits to the public.  (d) Any variance or renewal thereof shall be granted within the requirements of this section and for time periods and under conditions consistent with the reasons therefor, and within the following limitations:  (1) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, control, or abatement of the solid waste pollution involved, it shall be only until the necessary means for prevention, control, or abatement become practicable and subject to the taking of any substitute or alternate measures that the department may prescribe. No renewal of a variance granted under this subsection shall be allowed without a thorough review of known and available means of preventing, controlling, or abating the solid waste pollution involved;  (2) The director may issue a variance for a period not exceeding five years; and  (3) Every variance granted under this section may be subject to such conditions as the director may prescribe.  (e) Any variance granted pursuant to this section may be renewed from time to time on terms and conditions and for periods not exceeding five years which would be appropriate on initial granting of a variance; provided that the applicant for renewal has met all of the conditions specified in the immediately preceding variance; and provided further that the renewal, and the variance issued in pursuance thereof, shall provide for a variance not greater than that attained pursuant to the terms of the immediately preceding variance at its expiration. No renewal shall be granted except on application therefor. Any such application shall be made at least one hundred eighty days prior to the expiration of the variance. The director shall act on an application for renewal within one hundred eighty days of the receipt of such application.  (f) The director may afford a hearing in accordance with chapter 91 in relation to an application for the issuance, renewal, or modification of a variance.  (g) No variance granted pursuant to this chapter shall be construed to prevent or limit the application of any emergency provisions and procedures provided by law.  (h) Any application for a variance submitted pursuant to this chapter, shall be subject to the following public participation requirements:  (1) Public notices of every completed application for a variance shall be given in a manner designed to inform interested and potentially interested persons of the proposed disposal or other proposed activity. Procedures for giving public notice shall include at least the following:  (A) Notice shall be given within the geographical areas of the proposed disposal or other proposed activity;  (B) Notice shall be mailed to any person or group upon request; and  (C) The director shall add the name of any person or group upon request to a mailing list to receive copies of notices for all variance applications within the State or within a certain geographical area;  (2) The director shall provide a period of not less than thirty days following the date of the public notice during which time interested persons may submit their written reviews with respect to the variance application and the tentative determinations of the department, if any. The period for comment may be extended at the discretion of the director;  (3) The contents of public notice of applications for variances shall include at least the following:  (A) Name, address, and phone number of agency issuing the public notice;  (B) Name and address of each applicant;  (C) Brief description of each applicant's activities or operations which result in the disposal or other activity described in the variance application;  (D) A short description of the location of each disposal or activity indicating whether the disposal or activity is new or existing;  (E) A brief description of the procedures for the formulation of final determinations, including the thirty-day comment period required by paragraph (2) and any other means by which interested persons may influence or comment upon those determinations; and  (F) Address and phone number of state agency premises at which interested persons may obtain further information and inspect a copy of the variance applications and supporting and related documents; and  (4) The director may hold a public hearing if, after reviewing the comments submitted under paragraph (2), the director determines that a public hearing is warranted. Any hearing brought pursuant to this subsection shall be held in the geographical area of the proposed disposal or other proposed activity, or other appropriate area, at the discretion of the director.  (i) Variances shall not be granted to owners or operators of municipal solid waste landfill units except where specifically provided for in the rules adopted pursuant to this part. [L 1989, c 212, pt of 4; am L 1992, c 245, 4; am L 1998, c 2, 91]
  342H-51 Definitions. Unless otherwise explicitly stated, the definitions provided in section 342H-1 shall control the meaning of the terms used in this part. As used in this part, unless the context otherwise requires:  "Commercial solid waste" means all types of solid waste generated by stores, offices, restaurants, warehouses, and other nonmanufacturing activities, excluding residential and industrial wastes.  "Existing municipal solid waste landfill unit" means any municipal solid waste landfill unit that is receiving solid waste on October 9, 1993.  "Facility" means all contiguous land and structures, other appurtenances, and improvements on the land used for the disposal of solid waste.  "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).  "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 electric power generation, water treatment, and the manufacture of the following products: fertilizers and agricultural chemicals; food and related products and byproducts; inorganic chemicals; iron and steel; leather and leather products; nonferrous metals; organic chemicals; plastics and resins; pulp and paper products; rubber and miscellaneous plastic products; stone, glass, clay and concrete products; textiles; and transportation equipment. This term does not include mining waste or oil and gas waste.  "Lateral expansion" means a horizontal expansion of the waste boundaries of an existing municipal solid waste landfill unit.  "Municipal solid waste landfill unit" means a discrete area of land or an excavation that receives household waste and is not a land application unit, surface impoundment, injection well, or waste pile. A municipal solid waste landfill unit also may receive other types of waste regulated under Subtitle D of RCRA, such as commercial solid waste, nonhazardous sludge, small quantity generator waste and industrial solid waste. Such a landfill may be publicly or privately owned. A municipal solid waste landfill unit may be a new municipal solid waste landfill unit, an existing municipal solid waste landfill unit, or a lateral expansion.  "New municipal solid waste landfill unit" means any municipal solid waste landfill unit that has not received waste prior to October 9, 1993.  "Operator" means the person responsible for the overall operation of a facility or part of a facility.  "Owner" means the person who owns a facility or part of a facility.  "RCRA" means the federal Resource Conservation and Recovery Act, as amended, 42 United States Code,  6901 to 6991i. [L 1992, c 245, pt of 1]
  342H-52 Prohibitions; buffer zones.  (a) No person, including the State or any county, shall construct, operate, modify, expand, or close a municipal solid waste landfill unit, or any component of a municipal solid waste landfill unit, without first obtaining a permit from the director. All permits for municipal solid waste landfill units shall be subject to any terms and conditions that the director determines are necessary to protect human health or the environment.  (b) No person, including the State or any county, shall construct, modify, or expand a waste or disposal facility including a municipal solid waste landfill unit, any component of a municipal solid waste landfill unit, a construction and demolition landfill unit, or any component of a construction and demolition landfill unit without first establishing a buffer zone of no less than one-half mile around the waste or disposal facility. This subsection shall not apply to the continued operation of an existing waste or disposal facility that is properly permitted; provided that continued operation does not require physical expansion, vertical or horizontal, of the facility requiring additional permitting review and a permit modification.  For the purposes of this subsection:  "Buffer zone" means the distance between the edge of waste or waste activity and the nearest residential, school, or hospital property line.  "Waste or disposal facility" excludes individual, state certified, non-industrial redemption centers. [L 1992, c 245, pt of 1; am L 2020, c 73, 2]
  342H-53  Applicability and requirements. (a) The provisions of this part do not apply to municipal solid waste landfill units that do not receive wastes after October 9, 1991.  (b) Municipal solid waste landfill units that receive waste after October 9, 1991, but stop receiving waste before October 9, 1993, are exempt from the requirements of this part except the final cover requirement prescribed by rules adopted pursuant to this part. The final cover shall be installed within six months of the last receipt of wastes. Owners and operators of municipal solid waste landfill units subject to this subsection that fail to complete cover installation within six months from the date of the last receipt of wastes shall be subject to all the requirements of this part, and rules adopted pursuant to this part, subject to such exemptions as may be provided by those rules.  (c) The provisions of this part apply to owners and operators of new municipal solid waste landfill units, existing municipal solid waste landfill units, and lateral expansions, except as otherwise provided in this part or otherwise exempted by rules adopted pursuant to this part.  (d) Following closure of a municipal solid waste landfill unit, or a component of a municipal solid waste landfill unit, the owner or operator of the unit shall conduct post-closure care for a period of thirty years. The director may increase the length of the post-closure care period if the director determines that the lengthened period is necessary to protect human health and the environment. The director may decrease the length of the post-closure care period if the owner or operator of the closed municipal solid waste landfill unit demonstrates to the satisfaction of the director that the reduced period is sufficient to protect human health and the environment.  (e) Owners and operators of municipal solid waste landfill units that receive waste on or after October 9, 1993, shall comply with the financial assurance criteria that the director shall establish by rules adopted pursuant to this part. Such rules shall be effective no later than April 9, 1994.  (f) Municipal solid waste landfill units containing sewage sludge shall comply with the provisions of this part and the rules adopted pursuant to this part.  (g) In addition to compliance with the provisions of this part and rules adopted pursuant to this part, owners and operators of a municipal solid waste landfill unit shall comply with any other applicable state and federal law. [L 1992, c 245, pt of 1]
  342H-54 Public participation. The director may adopt rules providing for public participation in the process of reviewing applications for permits, permit renewals, permit modifications, selection of corrective action remedies, and related matters. Such rules may require applicants and permittees to be responsible for the publication of notices, making documents and relevant information available to the public for public review and comment and conducting public hearings. The rules may also include public participation provisions similar to any promulgated by the United States Environmental Protection Agency for municipal solid waste landfill permit programs. Public notices shall be given of the director TMs final determination on permit applications, renewals, modifications, and selection of corrective action remedies. A public hearing may be held before the director rules on a permit application, renewal, modification, or selection of corrective action remedies if the director determines that a public hearing would be in the public interest. [L 1992, c 245, pt of 1]
  342H-55  Rules; specific.  The director may establish by rule the criteria, standards, and requirements relating to the location, design, construction, operation, maintenance, expansion, closure, and post-closure care of municipal solid waste landfill units. In addition, the director may establish by rule assessment monitoring, ground-water monitoring, ground-water protection, landfill gas monitoring, landfill gas collection, detection monitoring, corrective measure, remedial action, preventive action, response action, manifest, recordkeeping, notification, public meeting, deed notation, and financial assurance requirements, standards, or criteria for municipal solid waste landfill units. [L 1992, c 245, pt of 1]
  342H-56 Other powers. In addition to any other power or duty prescribed by law or this part, the director may establish by rule a municipal solid waste landfill program that meets or exceeds the standards, criteria, and requirements set forth in the federal municipal solid waste landfill regulations, 40 C.F.R. Part 258. [L 1992, c 245, pt of 1]
  342H-57  Intervention. Any person shall have the right to intervene in any civil action to enforce the provisions of this part if the person has an interest that is, or may be, adversely affected. [L 1992, c 245, pt of 1]
  342H-6 Inspection of premises. The director, in accordance with law, may enter and inspect any facility, building, or place to investigate an actual or suspected source of solid waste pollution, to ascertain compliance or noncompliance with this chapter or any rule or standard adopted by the department pursuant to this chapter, any permit or variance issued by the department pursuant to this chapter, and to make reasonable tests in connection therewith. No confidential information secured pursuant to this section by any official or employee of the department within the scope and course of the official TMs or employee TMs employment in the prevention, control, or abatement of solid waste pollution shall be disclosed by the official or employee except as it relates directly to solid waste pollution and then, only in connection with the official TMs or employee TMs official duties and within the scope and course of the official TMs or employee TMs employment. [L 1989, c 212, pt of 4]
 342H-7 Enforcement. (a) If the director determines that any person has violated or is violating any provision of this chapter, any rule adopted pursuant to this chapter, or any term or condition of a permit issued pursuant to this chapter, the director may do any one or more of the following:  (1) [Paragraph effective until December 31, 2016. For paragraph effective January 1, 2017, see below.] Issue an order assessing an administrative penalty for any past or current violation;  (1) [Paragraph effective January 1, 2017. For paragraph effective until December 31, 2016, see above.] Issue an order assessing an administrative penalty for any past or current violation; provided that if all attempts of service of process upon the person who has been or is in violation are unsuccessful by personal delivery and by certified, registered, or express mail, notice may be given via a posting on a searchable government website and a sign conspicuously posted on the property, if appropriate;  (2) Require compliance immediately or within a specified time; and  (3) Commence a civil action in the circuit environmental court in the circuit in which the violation occurred or the person resides or maintains the person's principal place of business for appropriate relief, including a temporary, preliminary, or permanent injunction, the imposition and collection of civil penalties, or other relief.  (b) Any order issued pursuant to this section may include a suspension, modification, or revocation of a permit issued under this chapter, and shall state with reasonable specificity the nature of the violation. Any administrative penalties assessed in the order shall be in accordance with section 342H-10.  (c) Any order issued under this chapter shall become final, unless not later than twenty days after the notice of order is served, the person or persons named therein request in writing a hearing before the director. Any penalty imposed under this chapter shall become due and payable twenty days after the notice of penalty is served unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on any penalty imposed under this chapter, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Upon request for a hearing, the director shall require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of.  (d) Any hearing conducted under this section shall be conducted as a contested case under chapter 91. If after a hearing held pursuant to this section, the director finds that a violation or violations have occurred, the director shall affirm or modify any penalties imposed or shall modify or affirm the order previously issued or issue an appropriate order or orders for the prevention, abatement, or control of the violation or disposals involved, or for the taking of such other corrective action as may be appropriate. If, after a hearing on an order or penalty contained in a notice, the director finds that no violation has occurred or is occurring, the director shall rescind the order or penalty. Any order issued after hearing may prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the violation or disposals.  (e) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the director may institute a civil action in the name of the State to collect the administrative penalty which shall be a government realization.  In any proceeding to collect the administrative penalty imposed, the director need only show that:  (1) Notice was given;  (2) A hearing was held or the time granted for requesting a hearing expired without a request for a hearing;  (3) The administrative penalty was imposed; and  (4) The penalty remains unpaid.  (f) In connection with any hearing held pursuant to this section, the director shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties. [L 1989, c 212, pt of 4; am L 1990, c 298, 8; am L 1992, c 245, 5; am L 1995, c 180, 20; am L 2014, c 218, 8; am L 2016, c 45, 2]
 342H-8 Emergency powers; procedures. (a) Notwithstanding any other law to the contrary, if the governor or the director determines that an imminent peril to the public health and safety is or will be caused by the disposal of solid waste or any combination of discharges of other waste that requires immediate action, the governor or the director, without a public hearing, may order any person causing or contributing to the disposal of solid waste or discharge of other waste to immediately reduce or stop the disposal or discharge, and may take any and all other actions as may be necessary. The order shall fix a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director.  (b) 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. [L 1989, c 212, pt of 4; am L 1995, c 201, 3] Cross References  Environmental response law, see chapter 128D.
 342H-9 Penalties. (a) Any person who violates this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter shall be fined not more than $10,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken in environmental court to impose or collect the penalty provided for in this subsection shall be considered a civil action.  (b) Any person who denies, obstructs, or hampers the entrance or inspection by any duly authorized officer or employee of the department of any building, place, or vehicle which the officer or employee is authorized to enter and inspect shall be fined not more than $500. Any action taken in environmental court to impose or collect the penalty provided for in this subsection shall be considered a civil action. [L 1989, c 212, pt of 4; am L 1991, c 157, 15; am L 1995, c 180, 21; am L 2014, c 218, 8]
  342I-1.5  Disposal of electrolyte; prohibited. No person shall dispose of electrolyte from any used lead acid battery onto the ground or into sewers, drainage systems, surface or ground waters, or ocean waters. [L 1991, c 201, pt of 1]
Note Part heading added by revisor.  In this part, part  substituted for chapter . 342I-1 Lead acid batteries; disposal prohibited. (a) No person may:  (1) Place a used lead acid battery in mixed municipal solid waste; or  (2) Discard or otherwise dispose of a lead acid battery, except by delivery to:  (A) A lead acid battery retailer or wholesaler;  (B) A collection or recycling facility permitted under chapter 342H; or  (C) A secondary lead smelter permitted by the United States Environmental Protection Agency.  (b) No lead acid battery retailer or wholesaler, or authorized collection or recycling facility, shall accept for disposal any lead acid batteries that have had their electrolyte removed, unless cracks in the battery shell due to aging or accident are in evidence to indicate passive leaking of the electrolyte. [L 1989, c 281, pt of 1; am L 1991, c 201, 2]
  342I-2.5 Recycling. Any person accepting lead acid batteries for disposal shall:  (1) Transport the lead acid batteries, with the liquid electrolyte intact, to a transfer facility; provided that the facility is in compliance with the accumulation provisions of section 342I-4;  (2) Transport the lead acid batteries, with the liquid electrolyte intact, to a secondary lead smelter permitted by the United States Environmental Protection Agency; or  (3) Have the liquid electrolyte neutralized at a facility that is permitted pursuant to chapter 342H; provided that once the liquid electrolyte is neutralized in accordance with the permit issued pursuant to chapter 342H, the batteries may be transported to any secondary lead smelter. [L 1991, c 201, pt of 1]
 342I-2 Lead acid batteries; collection for recycling. A person selling lead acid batteries at retail or offering lead acid batteries for retail sale in the State shall:  (1) Accept, at the point of transfer, in a quantity at least equal to the number of new batteries purchased, used lead acid batteries from customers, if offered by customers; and  (2) Post written notice that shall be at least five inches by seven inches in size and shall contain the universal recycling symbol and the following language:  (A) "It is illegal to discard a motor vehicle battery or other lead acid battery";  (B) "Recycle your used batteries";  (C) "State law requires us to accept used motor vehicle batteries or other lead acid batteries for recycling, in exchange for new batteries purchased"; and  (D) "The price of a new battery includes disposal of your old battery".  (3) Any advertising pertaining to the price of lead acid batteries shall include the statement "The price includes disposal of your old battery".  (4) For businesses utilizing advertising prepared out of the State a sign no smaller than three square feet, placed at the point of sale stating: "The price of the battery includes disposal of your old battery" may be substituted. [L 1989, c 281, pt of 1; am L 1993, c 244, 2]
  342I-21 Definitions. As used in this part unless the context otherwise requires:  "Authorized tire collection facility" means any facility permitted by the department under chapter 342H as a tire collection facility which may collect and temporarily hold tires before transporting them to an authorized tire recycler.  "Authorized tire recycler" means any processor, shredder, or manufacturer permitted by the department under chapter 342H as a tire recycling facility.  "County" means any county of the State.  "Facility" means all contiguous land, including buffer zones and structures or other appurtenances and improvements on the land, used for the handling of used tires.  "Import" means to buy, bring, or accept delivery of tires, from an address, supplier, or any entity outside of the State, into the State and includes the tires on motor vehicles brought into the State.  "Importer" means any person or entity who imports tires, including the tires on motor vehicles imported into the State.  "Motor vehicle tire" means any tire that is used or designed for use on a motorized vehicle including but not limited to an automobile, bus, motorcycle, truck or heavy equipment.  "Tire retailer" means any person who sells or offers to sell tires to the public.  "Tire wholesaler" means any person who sells or offers to sell tires to tire retailers or other volume buyers of tires. [L 1993, c 209, pt of 2; am L 2000, c 173, 2]
  342I-22 Motor vehicle tires; disposal in landfill or municipal solid waste incinerator prohibited. (a) No person shall place a whole motor vehicle tire in mixed municipal solid waste, or shall discard or otherwise dispose of a motor vehicle tire except by delivery to any motor vehicle tire retailer, tire wholesaler, or to an authorized tire collection or authorized tire recycler.  (b) No motor vehicle tire retailer shall dispose of a motor vehicle tire except by delivery to the agent of a motor vehicle tire wholesaler or to a motor vehicle tire manufacturer, or to an authorized motor vehicle tire recycler.  (c) Each tire improperly disposed of shall constitute a separate offense.  (d) For each violation of this section a violator shall be subject to the penalties and remedies provided under sections 342H-9 Penalties; 342H-10 Administrative penalties; and 342H-11 Injunctive relief.  (e) Variances to these provisions may be granted by the director based on written requests submitted by a permitted disposal facility. [L 1993, c 209, pt of 2]
  342I-23 Motor vehicle tires; collection for recycling. (a) Each tire retailer shall:  (1) Accept, at the point of transfer, in a quantity at least equal to the number of new motor vehicle tires purchased by a customer, motor vehicle tires offered by the customer.  (2) Post written notice which shall be at least five inches by seven inches in size and easily visible to customers and shall contain the universal recycling symbol and the following language:  (A) "It is illegal to discard a motor vehicle tire";  (B) "Recycle your used tires";  (C) "State law requires us to accept used motor vehicle tires for recycling or disposal, in exchange for new tires purchased"; and  (D) "The final price of a new tire includes disposal of your old tire. The disposal fee is not subject to reduction or refund."  (b) The department of health shall produce, print, and distribute the notices required by subsection (a)(2) to each retailer; provided that a retailer instead may use any sign or notice that meets the requirements of that subsection.  (c) Any advertising pertaining to the price of motor vehicle tires shall disclose whether a separate disposal fee may be added to the final price of the tire and the actual cost of the disposal fee.  (d) For businesses utilizing advertising prepared out of the State a sign no smaller than three square feet, placed at the point of sale stating: "The price of tires includes disposal of your old tires" may be substituted.  (e) Motor vehicle rental companies shall be permitted to provide a report and payment of the surcharge annually, with the year ending December 31, rather than quarterly. [L 1993, c 209, pt of 2; am L 2002, c 191, 2]
  342I-24 Inspection of motor vehicle tire retailers. In performing its duties under this part, the department may inspect any place, building, or premise governed by this part. Authorized employees of the agency may issue warnings and citations to persons who fail to comply with the requirements of this part. [L 1993, c 209, pt of 2]
  342I-25 Motor vehicle tire wholesalers. Any person selling new motor vehicle tires at wholesale shall accept at the point of transfer, in a quantity at least equal to the number of new tires purchased by a customer, used motor vehicle tires offered by the customer. A motor vehicle tire wholesaler accepting used tires in transfer from a motor vehicle tire retailer shall be allowed a period not to exceed ninety days to remove used tires from the retail point of collection. Accumulation of those tires at the retail point of collection shall not exceed two hundred fifty tires, unless the retail point of collection is an authorized tire collection facility, and the tires shall be stored in a manner consistent with fire prevention and vector control. [L 1993, c 209, pt of 2; am L 2002, c 191, 3]
  342I-26 Registration and recordkeeping requirements. (a) All facilities that accept used tires, including but not limited to tire retailers, wholesalers, transporters, collectors, and recyclers, shall maintain, for a minimum of three years, records that provide, at least, the following information:  (1) The name, phone number, and address of the person, company, business, source, or entity from whom the used tires were received, if receiving used tires from entities other than the general public, such as tire retailers, wholesalers, transporters, collectors, and recyclers;  (2) The date of receipt of the used tires;  (3) The quantity of used tires received; and  (4) The record of shipment indicating the:  (A) Ultimate destination of the used tires;  (B) Identification of the transporter;  (C) Date of shipment; and  (D) Quantity of tires shipped. Permitted municipal solid waste disposal facilities, including incineration facilities that receive used tires incidental to the disposal of municipal solid waste, shall be exempt from the recordkeeping requirements of this section.  (b) A summary of the information maintained under subsection (a) shall be submitted to the department by July 31 of each year, listing the total quantity of used tires collected and the ultimate disposition of the used tires.  (c) By September 1, 2000, all importers operating within the State shall register with the department, using forms prescribed by the department, and shall notify the department of any change in address. After September 1, 2000, any person who desires to conduct business in this State as an importer shall register with the department no later than one month prior to the commencement of the business.  (d) All importers shall maintain records reflecting the importation of tires. The records shall be made available, upon request, for inspection by the department. [L 2000, c 173, pt of 1]
  342I-27 REPEALED. L 2002, c 191, 8.
  342I-28 Tire inventory records and payment. (a) Payment of the motor vehicle tire surcharge shall be made quarterly based on inventory records of the importers except for those importers subject to subsection (c) or (d). The dates September 30, December 31, March 31, and June 30 represent the end of each quarter period. All importers shall submit to the department documentation in sufficient detail that identifies the number of tires imported into the State during the previous quarter.  (b) The amount due from the importers for the quarter shall be equal to the number of tires provided in subsection (a) multiplied by the motor vehicle tire surcharge of $1. Payment shall be made by check or money order payable to the Department of Health, State of Hawaii and shall be deposited into the environmental management special fund as provided in section 342I-29. All subsequent inventory reports and payments shall be made no later than the last day of the month following the end of the previous calendar quarter, except for those importers subject to subsection (c) or (d).  (c) An importer who imports fewer than fifty tires within a one-year period shall be exempt from payment of the surcharge.  (d) An importer who imports fifty or more tires, but fewer than or equal to two hundred tires, or a motor vehicle rental company shall be permitted to provide a report and payment of the surcharge annually, with year ending December 31. [L 2000, c 173, pt of 1; am L 2002, c 191, 5]
  342I-29 Deposit into environmental management special fund. The surcharge collected pursuant to this part shall be deposited into a special account in the environmental management special fund established by section 342G-63. All interest earned or accrued on moneys deposited in the fund pursuant to this section shall become part of the account. Moneys from this special account may be used by the department to:  (1) Support permitting, monitoring, and enforcement activities, including personnel costs regarding used tire management, collection, recycling, and disposal facilities;  (2) Promote improved market development and reuse opportunities for recovered motor vehicle tires;  (3) Promote tire recovery, recycling, and reuse in the State through education, research, and demonstration projects;  (4) Implement the surcharge program under this part;  (5) Support programs to prevent illegal dumping; and  (6) Clean up improper tire disposal sites including conducting related environmental assessments and remediation. [L 2000, c 173, pt of 1]
 342I-3 Inspection of lead acid battery facilities. The department of health shall produce, print, and distribute the notices required by section 342I-2 to all places where lead acid batteries are offered for sale at retail. In performing its duties under this part, the department may inspect any place, building, or premise governed by this part. Authorized employees of the agency may issue warnings and citations to persons who fail to comply with the requirement of this part. [L 1989, c 281, pt of 1; am L 1991, c 201, 3]
  342I-30 Recovery of costs. (a) Any costs incurred and payable from the fund as a result of tire cleanups and associated environmental assessments and remediation shall be recovered by the attorney general, upon the request of the department, from the liable person or persons. The amount of any cost that may be recovered pursuant to this section for a tire cleanup and associated assessment and remedial action paid from the fund shall include the amount paid from the fund and legal interest.  (b) Moneys recovered by the attorney general pursuant to this section shall be deposited to the special account of the environmental management special fund.  (c) Any action for recovery of response costs shall commence within two years after the date of completion of all response actions. [L 2000, c 173, pt of 1]
  342I-31 Contract for administrative services. The department may contract the services of a third party to administer the motor vehicle tire program under this part. [L 2000, c 173, pt of 1]
  342I-32 Entry and inspection of facilities. The department or other authorized party may enter and inspect any building or place, according to law at a reasonable time, for the purpose of:  (1) Investigating an actual or suspected violation of this part;  (2) Conducting reasonable tests;  (3) Taking samples; and  (4) Reviewing and copying records. [L 2000, c 173, pt of 1]
  342I-33 Enforcement. The department of health shall enforce this part. Authorized employees of the department may issue warnings, citations, or administrative orders, or commence civil action in circuit environmental court against persons who fail to comply with the requirements of this part. [L 2000, c 173, pt of 1; am L 2014, c 218, 8]
  342I-34 Penalties. (a) For each violation of this part, a violator shall be subject to a penalty of not more than $10,000 for each separate offense. However, the failure to post the notice required under section 342I-23, following a warning issued by an authorized employee of the department, shall be subject to a fine up to $1,000 for each separate offense. Each day of each violation shall constitute a separate offense. The fines imposed pursuant to this section shall be cumulative.  (b) Remedies shall be by citations, by civil action, or as provided under sections 342H-10 and 342H-11. [L 2000, c 173, pt of 1]
  342I-35 Disposition of collected fines and penalties. Fines and penalties collected under this part shall be deposited into the environmental response revolving fund established by section 128D-2. [L 2000, c 173, pt of 1]
 342I-4 Lead acid battery wholesalers. Any person selling new lead acid batteries at wholesale shall accept, at the point of transfer, in a quantity at least equal to the number of new batteries purchased, used lead acid batteries from customers, if offered by customers. Except as otherwise provided at the discretion of the director, a person accepting batteries in transfer from an automotive battery retailer shall be allowed a period not to exceed ninety days to remove batteries from the retail point of collection. [L 1989, c 281, pt of 1; am L 1991, c 201, 4]
  342I-5 Enforcement. The department of health shall enforce this part. [L 1989, c 281, pt of 1]
  342I-6 Recordkeeping. All facilities accepting five or more lead acid batteries per day from an individual shall maintain records for three years that provide, at a minimum, the following information:  (1) The name, phone number, and address of the person from whom the batteries were received;  (2) The date of receipt of the lead acid batteries; and  (3) The record of shipment indicating the ultimate destination of the lead acid batteries and the date of shipment. [L 1991, c 201, pt of 1]
  342I-7 Entry and inspection of records. The director of health may enter and inspect any building or place for the purpose of:  (1) Investigating an actual or suspected violation of this part;  (2) Conducting reasonable tests;  (3) Taking samples; and  (4) Reviewing and copying records. [L 1991, c 201, pt of 1]
  342I-8 Penalties. (a) Any person who violates this part shall be fined not more than $10,000 for each separate offense; provided that the failure to post the notice required under section 342I-2, following a warning issued by the director of health, shall be subject to a fine of $2,000 for each separate offense. Each battery improperly disposed of or accepted shall constitute a separate offense. The fines imposed pursuant to this subsection shall be cumulative. Remedies shall be by citation, administrative action, or civil action.  (b) Any person who knowingly or wilfully violates this part shall be guilty of a misdemeanor.  (c) The director may institute a civil action in any environmental court of competent jurisdiction for injunctive and other relief to:  (1) Prevent any violation of this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter, without the necessity of a prior revocation of the permit or variance;  (2) Impose and collect civil penalties;  (3) Collect administrative penalties; or  (4) Obtain other relief. The environmental court may grant relief in accordance with the Hawaii rules of civil procedure. [L 1991, c 201, pt of 1; am L 2002, c 191, 1; am L 2014, c 218, 8]
  342I-9  Disposition of collected fines and penalties. Fines and penalties collected under this part shall be deposited into the environmental response revolving fund, established by section 128D-2. [L 1991, c 201, pt of 1]
  342J-1 Legislative policy; program priorities. The legislature finds that hazardous waste must be managed in a manner that protects the health, safety, and welfare of the citizens of the State and protects and conserves the State TMs natural resources and environment. Accordingly, the hazardous waste management program of this State shall be a preventive as well as a regulatory program that gives priority to:  (1) The provision of technical assistance to generators to ensure the safe and proper handling of hazardous waste;  (2) The establishment of a public education program to promote awareness of what constitutes hazardous waste and the dangers of improper disposal of hazardous waste;  (3) The promotion of hazardous waste minimization, reduction, recycling, exchange, and treatment as the preferred methods of managing hazardous waste, with disposal to be used only as a last resort when all other hazardous waste management methods are ineffective or unavailable; and  (4) The coordination of hazardous waste management efforts among the counties of this State, taking into consideration the unique differences and needs of each county. [L 1989, c 212, pt of 5]
  342J-10.5 Disposition of collected fines and penalties. Fines and penalties collected under sections 342J-9 and 342J-10 shall be deposited into the environmental response revolving fund established by section 128D-2. [L 1991, c 157, 5]
 [ 342J-10.6] Guarantors. (a) In a case where the owner or operator is in bankruptcy, reorganization, or arrangement pursuant to the Federal Bankruptcy Code or where (with reasonable diligence) jurisdiction in any environmental court cannot be obtained over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this chapter or rules adopted pursuant to this chapter may be asserted directly against the guarantor providing evidence of financial responsibility. In the case of any action pursuant to this section, the guarantor shall be entitled to invoke all rights and defenses which would have been available to the owner or operator by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator.  (b) The total liability of any guarantor shall be limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner or operator under this chapter or rules adopted pursuant to this chapter. Nothing in this section shall be construed to limit any other statutory, contractual or common law liability of a guarantor to its owner or operator including, but not limited to, the liability of the guarantor for bad faith either in negotiations or in failing to negotiate the settlement of any claim. Nothing in this section shall be construed to diminish the liability of any person under chapter 128D or other applicable law.  (c) For the purpose of this section, the term "guarantor" means any person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under this chapter or rules adopted pursuant to this chapter. [L 1991, c 259, pt of 1; am L 2014, c 218, 8]
 342J-10.7 REPEALED. L 1991, c 259, 19.
 342J-10 Administrative penalties. (a) In addition to any other administrative or judicial remedy provided by this chapter or by rules adopted under this chapter, the director is authorized to impose by order the penalties specified in section 342J-9(a) and (b).  (b) Factors to be considered in imposing an administrative penalty include:  (1) The nature and history of the violation and of any prior violations;  (2) The economic benefit, if any, resulting from the violation;  (3) The opportunity, difficulty, and history of corrective action;  (4) Good faith efforts to comply; and  (5) Any other matters that justice may require.  (c) It is presumed that the violator TMs economic and financial conditions allow payment of the penalty, and the burden of proof to the contrary shall be on the violator. [L 1989, c 212, pt of 5; am L 1995, c 180, 27]
 342J-11 Injunctive and other relief. The director may institute a civil action in any environmental court of competent jurisdiction for injunctive and other relief to:  (1) Address any release of hazardous waste or any hazardous waste constituent pursuant to section 342J-36;  (2) Prevent any violation of this chapter, any rule adopted pursuant to this chapter, or any term or condition of a permit adopted pursuant to this chapter, without the necessity of a prior revocation of the permit; and  (3) Impose and collect civil penalties, to collect administrative penalties, and obtain other relief. The environmental court shall have power to grant relief in accordance with the Hawaii rules of civil procedure. [L 1989, c 212, pt of 5; am L 1991, c 259, 11; am L 1995, c 180, 28; am L 2014, c 218, 8] Rules of Court  Injunctions, see HRCP rule 65.
  342J-12 Appeal. If any party is aggrieved by the decision of the director, the party may appeal in the manner provided in chapter 91 to the circuit environmental court of the circuit in which the party resides or has the party TMs principal place of business or in which the action in question occurred; provided that the operation of a cease and desist order will not be stayed on appeal unless specifically ordered by [an] environmental court of competent jurisdiction. [L 1989, c 212, pt of 5; am L 2014, c 218, 8]
 342J-13 Fees. The director may establish reasonable fees for the issuance of permits to cover the cost of issuance thereof and for the implementation and enforcement of the terms and conditions of permits (not including court costs or other costs associated with any formal enforcement action). The fees shall be deposited to the credit of the general fund. [L 1989, c 212, pt of 5; am L 1990, c 298, 12] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342J-14.5  Copy fee waiver. The fee chargeable under section 92-21 may be reduced or waived if the department determines that a waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefitting the general public. [L 1991, c 259, pt of 1]
 342J-14 Public records; confidential information; penalties. (a) For purposes of this chapter, chapter 92F applies to the determination of the types of information that should be made available to members of the public provided that any information that would be required to be disclosed under RCRA and the federal Freedom of Information Act, 5 United States Code 552, if these Acts were applicable, shall be open to the public notwithstanding any provisions to the contrary in chapter 92F. The legislature declares that disclosure of such information which RCRA and the federal Freedom of Information Act require to be disclosed for purposes of this chapter does not constitute an unwarranted invasion of privacy.  (b) Information concerning secret processes or methods of manufacture maintained by an agency pursuant to this chapter shall not be disclosed to the public unless disclosure of such information would be required under applicable provisions of RCRA, 42 United States Code,  6901 to 6991i and the federal Freedom of Information Act, 5 United States Code 552.  (c) For purposes of this chapter, the department may adopt rules pertaining to both substantive and procedural aspects of information practices which are consistent with RCRA and the federal Freedom of Information Act. These rules shall govern information practices concerning all records maintained by any agency pursuant to this chapter or RCRA and shall supersede any inconsistent rules promulgated pursuant to chapter 92F. [L 1989, c 212, pt of 5; am L 1991, c 259, 12]
  342J-15 Nonliability of department personnel. Notwithstanding any other law to the contrary, no member, officer, or employee of the department shall be criminally liable or responsible under this chapter for any acts done by the member, officer, or employee in the performance of the member TMs, officer TMs, or employee TMs duties; provided that this section shall not apply to violations of section 342J-14. [L 1989, c 212, pt of 5]
 342J-16 Intervention. Any individual shall have the right to intervene in any civil action to enforce the provisions of this chapter provided the individual has an interest which is, or may be, adversely affected. [L 1989, c 212, pt of 5; am L 1991, c 259, 13]
  342J-17 Other action not barred. No existing civil or criminal remedy for any wrongful action which is a violation of any statute or any rule of the department or the ordinance of any county shall be excluded or impaired by this chapter. [L 1989, c 212, pt of 5]
  342J-18 Enforcement by state and county authorities. All state and county health authorities and police officers shall enforce this chapter and the rules and orders of the department. [L 1989, c 212, pt of 5]
  342J-19 Other powers of department not affected. The powers, duties, and functions vested in the department under this chapter shall not be construed to affect in any manner the powers, duties, and functions vested in the department under any other law. [L 1989, c 212, pt of 5]
  342J-2 Definitions. As used in this chapter, unless the context otherwise requires:  "Any state" means any of the several states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.  "Complaint" means any written charge filed with or by the department that a person is violating any provision of this chapter or any rule or order adopted pursuant to this chapter.  "Department" means the department of health.  "Director" means the director of health or the director's authorized agent.  "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous or solid waste into or on any land or water so that hazardous or solid waste or any constituent thereof may enter the environment, be emitted into the air, or discharged into any waters, including ground waters.  "Financial responsibility" means a trust fund, surety bond, insurance, corporate guarantee, or letter of credit provided by owners or operators of hazardous waste treatment, storage, and disposal facilities to assure proper closure, post closure, corrective action, and compensation for injuries to people or damage to property.  "Generator" means any person, by site, whose act or process produces hazardous waste or whose act first causes a hazardous waste to become subject to regulation under this chapter.  "Hazardous waste" means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may:  (1) Cause or significantly contribute to an increase in mortality or an increase in a serious irreversible or incapacitating reversible illness; or  (2) Pose a substantial existing or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.   "Hazardous waste broker" means any person who:  (1) Acts as an intermediary between:  (A) A generator and a transporter; or  (B) A generator and a person who treats, stores, or disposes of hazardous waste; or  (C) A generator and another broker; and  (2) Performs one or more of the following:  (A) Mixes hazardous wastes of different United States Department of Transportation shipping descriptions by placing them into a single container or tank as defined in 40 Code of Federal Regulations Part 260 (provided that a broker who mixes hazardous waste must comply with all statutory and regulatory provisions applicable to generators);  (B) Packages or repackages hazardous waste;  (C) Labels, marks, or manifests hazardous waste;  (D) Performs waste characterization of hazardous waste; or  (E) Arranges the storage, treatment, transportation, disposal, or recycling of hazardous waste for a fee based upon the completion of the transaction.  "Hazardous waste management" means the systematic control over the generation, collection, source separation, storage, transportation, processing, treatment, recovery, and disposal of hazardous waste.  "Hazardous waste management facility" or "facility" means all contiguous land and structures, other appurtenances, and improvements on the land used for treating, storing, or disposing of hazardous waste. A facility may consist of several treatment, storage, or disposal operational units (for example, one or more landfills, surface impoundments, or combinations of them).  "Household waste" means any material (including garbage, trash and sanitary wastes in septic tanks) derived from households (including single and multiple residences, hotels, motels, bunk houses, ranger stations, crew quarters, campgrounds, picnic grounds and day user recreation areas).  "Manifest" means the form used for identifying the quantity, composition, origin, routing, and destination of hazardous waste during its transportation from the point of generation to the point of treatment, storage, or disposal.  "Operator" means the person responsible for the overall operation of a facility.  "Owner" means the person who owns the facility or part of the facility.  "Party" means each person or agency named as party or properly entitled to be a party in any court or agency proceeding.  "Permit" means written authorization from the director for the owner or operator of a proposed or existing hazardous waste management facility to engage in the treatment, storage, or disposal of hazardous waste. A permit authorizes the owner or operator to treat, store, or dispose of hazardous waste in a manner or amount, or to do any act, not forbidden by this chapter or by rules adopted under this chapter, but requiring review by the department.  "Person" means any individual, partnership, firm, joint stock company, association, public or private corporation, federal agency, the State or any of its political subdivisions, any state and any of its political subdivisions, trust, estate, interstate body, or any other legal entity.  "Pollution" means hazardous waste pollution.  "RCRA" means the Resource Conservation and Recovery Act, as amended, 42 United States Code  6901 to 6991i.  "Solid waste" means garbage, refuse, and other discarded materials, including solid, liquid, semisolid, or contained gaseous materials resulting from industrial, commercial, mining, and agricultural operations, sludge from waste treatment plants and water supply treatment plants, and residues from air pollution control facilities and community activities, but does not include solid or dissolved material in domestic sewage, irrigation return flows, or industrial discharges which are subject to permit under chapter 342D.  "Storage" means the containment of hazardous waste, temporarily or for a period of years, in a manner which does not constitute disposal.  "Transporter" means a person engaged in the off-site transportation of hazardous waste by air, rail, highway, water, or pipeline.  "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 neutralize the waste or render it nonhazardous, less hazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume. This term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous. [L 1989, c 212, pt of 5; am L 1990, c 298, 9; am L 1991, c 259,  3, 4; am L 1994, c 267, 3; am L 1995, c 180, 24] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342J-20 Effect of laws, ordinances, and rules. (a) All laws, ordinances, and rules inconsistent with this chapter shall be void and of no effect.  (b) Any county may adopt ordinances and rules governing any matter relating to hazardous waste management which is not governed by a rule of the department adopted pursuant to this chapter; provided that any county ordinance or rule relating to hazardous waste management shall be void and of no effect as to any matter regulated by a rule of the department upon the adoption thereof. [L 1989, c 212, pt of 5]
  342J-21 Priority in courts. All actions brought pursuant to this chapter or pursuant to the rules adopted under this chapter shall in the discretion of the court receive priority in the courts of the State. [L 1989, c 212, pt of 5] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342J-3 Administration. The department shall administer this chapter through the director. The director may delegate to any person such power and authority vested in the director by this chapter as the director deems reasonable and proper for the effective administration of this chapter, except the power to make rules. [L 1989, c 212, pt of 5]
  342J-30 Prohibition. (a) No person, including any federal agency, the State, or any of its political subdivisions, shall own, operate, or construct a hazardous waste management facility without first securing a permit issued by the director. In addition, no person shall treat, store or dispose of hazardous waste at an unpermitted hazardous waste management facility, unless otherwise permitted by law.  (b) Any person who:  (1) Owns or operates a facility required to have a permit under this section which was in existence on November 19, 1980, or was in existence on the effective date of statutory or regulatory changes under RCRA that were made prior to the effective date of the first rules adopted under this chapter, and that rendered the facility subject to the requirement to have an RCRA permit, or is in existence on the effective date of statutory or regulatory changes under this chapter that are made after the effective date of the first rules adopted under this chapter and that render the facility subject to the requirement to have a permit under this section;  (2) Has complied with the requirements of section 3010(a) of RCRA, 42 United States Code 6930(a), or section 342J-6.5; and  (3) Has made an application for a permit under section 3005 of RCRA, 42 United States Code 6925, or section 342J-5; shall be treated as having been issued a permit until final administrative disposition of an application has been made unless the director proves that final administrative disposition of the application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process that application. The facilities shall be deemed to have interim status. This subsection shall not apply to any facility which has been previously denied a permit under section 3005 of RCRA, 42 United States Code 6925 or section 342J-5 or if authority to operate the facility under section 3005 of RCRA, 42 United States Code 6925 or this section has been previously terminated.  (c) The director shall have the authority to publish schedules for the submission of permit applications and other information reasonably required and or requested in order to process that application. Failure to comply with such schedules shall be a basis for automatic termination of interim status. [L 1989, c 212, pt of 5; am L 1991, c 259, 14; am L 1992, c 154, 1; am L 1993, c 267, 2]
  342J-31 Duties; rules. In addition to any other power or duty prescribed by law and in this chapter, the director shall prevent, control, and abate hazardous waste pollution in this State. In the discharge of this duty the director may:  (1) Adopt rules pursuant to chapter 91 necessary for the purposes of this chapter. Any person heard at the public hearing shall be given written notice of the action taken by the department with respect to the rules;  (2) Administer and enforce this chapter, rules implementing this chapter, and orders and permits issued pursuant to this chapter;  (3) Establish by rule a list of hazardous wastes and a set of characteristics for identifying hazardous wastes;  (4) Prohibit land disposal of specified hazardous wastes;  (5) Inventory sites and locations in the State where hazardous wastes have been stored or disposed of at any time; and  (6) Promote industrial practices that minimize, recycle, reduce, avoid, or eliminate generation of hazardous waste. [L 1989, c 212, pt of 5]
  342J-32 Standards for generators. The director may establish by rule standards applicable to generators of hazardous waste identified under this chapter including, but not limited to, requirements regarding:  (1) Obtaining an identification number;  (2) Requiring a solid waste generator to determine whether the waste that that person has generated is hazardous waste;  (3) Using appropriate containers for hazardous waste;  (4) Packaging, labeling, marking, and placarding practices;  (5) Transporting and international shipping of hazardous waste;  (6) Developing a manifest system to track movements of hazardous wastes to designated facilities; and  (7) Submitting reports and recordkeeping practices. [L 1989, c 212, pt of 5]
  342J-33 Standards for transporters. The director may establish by rule standards applicable to transporters of hazardous waste identified or listed under this chapter including, but not limited to, requirements regarding:  (1) Obtaining an identification number;  (2) Labeling practices;  (3) Transporting hazardous waste;  (4) Requiring action, including cleanup, if hazardous waste is discharged in transit;  (5) Using the manifest properly; and  (6) Submitting reports and recordkeeping practices. [L 1989, c 212, pt of 5] Cross References  Transportation of hazardous materials, see  286-221 to 227.
 342J-34.5 Standards for persons who deal with fuel. The director may establish, by rule, standards applicable to persons who generate, transport, treat, store, dispose of, process, re-refine, burn (including burning for purposes of energy recovery), recycle, distribute, market, or otherwise handle any:  (1) Fuel from any hazardous waste; or  (2) Fuel from any hazardous waste and any other material; or  (3) Fuel which otherwise contains any hazardous waste. [L 1991, c 259, pt of 1; am L 1996, c 82, 4]
  342J-34.6 Brokers; notification; and identification numbers. (a) Not later than forty-five days after July 1, 1994, any person who acts as a hazardous waste broker, with respect to any substance listed as hazardous waste or identified by its characteristics as hazardous waste under 40 Code of Federal Regulations Part 261, shall apply to the department for an identification number and shall file with the department a notification stating the location and general description of the hazardous waste handling activity of the broker.  (b) Not later than forty-five days after the adoption of any rule pursuant to this chapter that lists or identifies by characteristics any substance as hazardous waste, any person who acts as a hazardous waste broker with respect to such substance shall apply to the department for an identification number and shall file with the department a notification stating the location and general description of the hazardous waste handling activity of the broker. This subsection shall not apply to activities or hazardous waste as to which notification has been made in compliance with subsection (a).  (c) Each hazardous waste broker shall be issued only one identification number.  (d) Any person required by this section to provide notification to the department shall advise the department of the following information, including any which may have changed during the prior year:  (1) Location of each business;  (2) Name of business;  (3) Mailing address of each business;  (4) Name of person who operates the facility at which hazardous waste is handled;  (5) Name of owner of the facility at which hazardous waste is handled;  (6) Name of owner of land at which hazardous waste is handled; and  (7) A copy of a notice sent by the broker to the facility owner, or owner's agent, of the facility or land used by the broker as the broker's principal place of business. The notice shall be mailed by certified mail to the owner, or owner's agent, and shall describe the broker's hazardous waste handling activities.  (e) This section shall not apply to owners or operators of hazardous waste treatment, storage, or disposal facilities. [L 1994, c 267, 2; am L 2001, c 8, 1]
  342J-34 Standards for treatment, storage, or disposal facilities. The director may establish by rules standards applicable to owners and operators of facilities for treatment, storage, or disposal of hazardous waste, identified or listed under this chapter, including but not limited to, requirements regarding:  (1) Obtaining an identification number;  (2) Inspection, monitoring, submitting reports, and recordkeeping practices;  (3) Using the manifest properly;  (4) Designing, constructing, and locating of hazardous waste management facilities;  (5) Developing contingency plans to minimize unanticipated damage from treatment, storage, or disposal of hazardous waste;  (6) Maintaining and operating hazardous waste management facilities;  (7) Determining qualifications as to ownership, continuity of operation, training for personnel, closure and post-closure requirements, and financial responsibility (including financial responsibility for corrective action); and  (8) Issuing permits for hazardous waste management facilities. [L 1989, c 212, pt of 5]
  342J-35 Other rules. The director may adopt other rules which are necessary to obtain and maintain authorization under the federal program. [L 1989, c 212, pt of 5]
 342J-36 Hazardous waste releases. (a) Whenever the director determines that there has been a release of hazardous waste or of a hazardous waste constituent into the environment from a facility handling hazardous wastes, the director may:  (1) Require the facility or site to undertake corrective action or such other response action as the director deems necessary to protect human health or the environment; and  (2) Require that corrective action be taken beyond the facility boundary where necessary to protect human health or the environment unless the owner or operator of the facility concerned demonstrates to the satisfaction of the director that, despite the owner or operator TMs best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action.  (b) Whenever the director determines that there is or has been a release of hazardous waste or of a hazardous waste constituent into the environment from a hazardous waste management facility or site, the director may issue an order requiring corrective action to protect human health or the environment, or the director may commence a civil action for appropriate relief, including a temporary, preliminary, or permanent injunction, the imposition and collection of civil penalties, or other relief. For purposes of enforcement, failure to comply with an order issued pursuant to this chapter shall constitute a violation of a requirement of this chapter.  (c) Any person to whom the order is issued may be required to submit to the director within thirty days a proposal for carrying out the required monitoring, testing, analysis, and reporting.  (d) If the director determines that the owner or operator is not able to conduct corrective action in a satisfactory manner, the director may dictate the conduct of such activity, the cost of which shall remain the responsibility of the owner or operator.  (e) Each permit issued by the director under this chapter shall require corrective action for all releases of hazardous waste or any hazardous waste constituent into the environment from the facility seeking the permit. Permits may contain schedules of compliance for such corrective action (where such corrective action cannot be completed prior to issuance of the permit), and shall contain assurances of financial responsibility for completing such corrective action.  (f) If the action that results in a release otherwise constitutes a violation of this chapter, nothing in this section shall be construed to preclude the director from taking appropriate action under other provisions of this chapter.  (g) Public notice shall be given for proposed decisions on a final remedy. [L 1989, c 212, pt of 5; am L 1990, c 298, 13; am L 1991, c 259, 15; am L 1995, c 180, 29] Cross References  Environmental response law, see chapter 128D.  Hawaii emergency planning and community right-to-know act, see chapter 128E.
  342J-37 Complaints; hearings; appointment of masters. The director may:  (1) Receive or initiate complaints, hold hearings, and institute legal proceedings in the name of the State for prevention, control, or abatement of hazardous waste pollution; and  (2) Appoint a master or masters to conduct investigations and hearings. [L 1989, c 212, pt of 5]
  342J-38 Public participation activities; appointment of hearings officers. The director may appoint, without regard to chapter 76, hearings officers to conduct public participation activities, including public hearings and public informational meetings. [L 1989, c 212, pt of 5; am L 2000, c 253, 150]
  342J-39 Research programs. The director may initiate, conduct, and support research, demonstration projects, and investigation, as the department TMs resources may allow, and coordinate state agency research programs pertaining to hazardous waste management. [L 1989, c 212, pt of 5]
 342J-4 Powers; rulemaking; appointment of hearings officers. (a) The director may make, amend, and repeal state rules which govern the management of hazardous waste and which control and prohibit hazardous waste pollution. All rules shall be adopted pursuant to chapter 91. Any person heard at the public hearing shall be given written notice of the action taken by the department with respect to the rules.  (b) In addition to other specific powers provided in this chapter, the director may appoint without regard to chapter 76, hearings officers to conduct public participation activities including public hearings and public informational meetings. [L 1989, c 212, pt of 5; am L 1991, c 259, 5; am L 2000, c 253, 150]
  342J-40 Receipt of funds for study and control of hazardous waste. The director may cooperate with and receive money, with the approval of the governor, from the federal government, any political subdivision of the State, or from private sources for the study and control of hazardous waste. [L 1989, c 212, pt of 5]
  342J-41 Technical assistance to generators. (a) The department shall establish a technical assistance program for generators of hazardous waste in the State. The program shall be designed to assist generators in obtaining information concerning hazardous waste management:  (1) To identify and apply methods of reducing the generation of hazardous wastes;  (2) To facilitate improved management of hazardous waste and compliance with the department TMs requirements; and  (3) For other similar purposes. The program shall emphasize assistance to the smaller businesses and small quantity generators that have limited technical and financial resources for obtaining information, assessing hazardous waste management methods, and developing and applying hazardous waste reduction techniques. Information and techniques developed under this program shall be made available to all generators in the State.  (b) The assistance program shall include at least the following elements:  (1) Outreach programs, including on-site consultation at locations where hazardous waste is generated, seminars, workshops, training programs, and other similar activities designed to assist generators in evaluating their hazardous waste generation and management practices, identifying opportunities for waste reduction and improved management, and identifying subjects that require additional information and research;  (2) A program to assemble, catalog, and disseminate information about hazardous waste reduction and management methods, available commercial waste management facilities and consultant services, and regulatory programs;  (3) Evaluation and interpretation of information needed by generators to improve their management of hazardous waste; and  (4) Informational and technical research to identify alternative technical solutions that can be applied by specific generators to reduce the generation of hazardous waste.  (c) The program shall be coordinated with other public and private programs that provide management and technical assistance to smaller businesses and small quantity generators, including any program operated by a public or private educational institution. [L 1989, c 212, pt of 5]
  342J-42 Public education program. The department shall develop and implement a public education program, the objectives of which shall be to:  (1) Develop increased public awareness of and interest in environmentally sound hazardous waste management methods;  (2) Encourage better informed decisions on hazardous waste management issues by businesses, industries, local governments, and the public; and  (3) Disseminate practical information concerning methods in which households, other institutions, and organizations can improve the management of hazardous waste. [L 1989, c 212, pt of 5]
  342J-5 Permits; procedures for. (a) An application for any permit required under this chapter shall be in a form prescribed by the director.  (b) The director may require that applications for such permits shall be accompanied by plans, specifications, and information as the director deems necessary for the director to determine whether the proposed or existing hazardous waste management facility will be in compliance with applicable rules and standards.  (c) The director shall issue a permit for any term, not exceeding five years, if the director determines that the applicant and facility have complied with the provisions of this chapter. Each permit shall be reviewed five years after the date of issuance and shall be modified as necessary to assure that the facility and permittee continue to comply with applicable provisions of this chapter. Nothing in this subsection shall preclude the director from reviewing and modifying a permit at any time during its term. Each permit issued under this section shall contain such terms and conditions as the director determines are necessary to protect human health or the environment.  The director may modify, suspend, or revoke any permit if, after affording the permittee an opportunity for a hearing in accordance with chapter 91, the director determines that:  (1) There is a violation of any term or condition of the permit;  (2) The permit was obtained by misrepresentation or failure to disclose fully all relevant facts;  (3) There is a change in any circumstance that necessitates a modification, suspension, or revocation of the permit; or  (4) Such is in the public interest.  Public notice shall be given of proposed decisions respecting permit issuance, reissuance, denial, revocation, suspension, substantial modification to a permit requested by a permittee, and modifications to a permit initiated by the director. The director may hold a public hearing before issuing a final decision respecting a permit issuance, reissuance, denial, revocation, suspension, request by a permittee to substantially modify a permit, and any modification to a permit initiated by the director if the director determines that such a public hearing is in the public interest. The permit notice and public hearing requirements in this section shall not apply to used oil permits as provided for in section 342J-54.  (d) No applicant for a modification or reissuance of a permit shall be held in violation of this chapter during the pendency of the applicant's application so long as the applicant acts consistently and the facility is in compliance with the permit previously granted. [L 1989, c 212, pt of 5; am L 1991, c 259, 6; am L 2000, c 3, 1]
  342J-51 Definitions. Except as expressly defined in this part, terms that are defined in section 342J-2 have the same meanings when used in this part.  "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any used oil or used oil fuel into or on any land or water so that the used oil, used oil fuel, or any constituent thereof may enter the environment, be emitted into the air, or discharged into any waters, including ground waters.  "Facility" means all contiguous land and structures, other appurtenances, and improvements on the land used for the handling of used oil or used oil fuel.  "Generator" means any person, by site, whose act or process produces used oil or used oil fuel or whose act first causes used oil or used oil fuel to become subject to regulation.  "Operator" means the person responsible for the overall operation of a facility as defined in this section.  "Owner" means the person who owns a facility or part of a facility as defined in this section.  "Permit" means written authorization from the director for a person to engage in the handling of used oil or used oil fuel.  "Pollution" means pollution by mismanagement or mishandling of used oil or used oil fuel.  "Specification fuel" means recycled oil which meets specific standards that are set by the director. These standards, at a minimum, shall comply with those set by the federal Environmental Protection Agency for specification fuel.  "Storage" means the containment of used oil or used oil fuel, temporarily or for a period of time, in a manner which does not constitute disposal.  "Transporter" means any person who transports used oil or used oil fuel, any person who collects used oil or used oil fuel from more than one generator and transports the collected used oil or used oil fuel, and owners and operators of used oil or used oil fuel transfer facilities.  "Treatment" means any method, technique, or process designed to change the physical, chemical, or biological character or composition of any used oil or used oil fuel.  "Used oil" means any oil (regardless of whether it is a hazardous waste) that has been refined from crude oil, or any synthetic oil, that has been used and as a result of such use is contaminated by physical or chemical impurities. [L 1996, c 82, pt of 1]
  342J-52 Standards for persons who deal with used oil or used oil fuel. (a) The director may establish, by rule, standards applicable to persons who generate, transport, treat, store, dispose, process, re-refine, burn (including burning for purposes of energy recovery), recycle, distribute, market, or otherwise handle used oil or used oil fuel, regardless of whether the used oil or used oil fuel is a hazardous waste.  (b) No new oil, used oil, or recycled oil shall be discharged or caused or allowed to enter into the sewers, drainage systems, surface or ground waters, watercourse, marine waters, or onto the ground. The prohibition shall not apply to inadvertent, normal discharges from vehicles and equipment, or maintenance and repair activities associated with vehicles; provided that appropriate measures are taken to minimize releases. Appropriate measures include, but are not limited to, use of drip pans, institution of structural catchment systems, use of absorbent materials, and other similar measures. [L 1996, c 82, pt of 1]
  342J-53 Permit required. No person shall transport, market, or recycle used oil or used oil fuel without first obtaining a permit from the department. The director may require any person who generates and burns the person TMs own used oil as specification fuel to notify the department of the person TMs activity. [L 1996, c 82, pt of 1]
  342J-54 Permits; procedures for. (a) An application for any permit required under this part shall be in a form prescribed by the director.  (b) The department may require that applications for the permits shall be accompanied by plans, specifications, and the other information that it deems necessary in order for it to determine whether the proposed installation, alteration, or use will be in accord with applicable rules and standards.  (c) The director shall issue a permit for any term, not exceeding five years, if the director determines that it will be in the public interest; provided that the permit may be subject to reasonable conditions that the director may prescribe. The director, on application, shall renew a permit from time to time for a term not exceeding five years if the director determines that it is in the public interest. The director shall not deny an application for the issuance or renewal of a permit without affording the applicant an opportunity for a hearing in accordance with chapter 91.  The director may require a public notice or hearing, or both, for permit issuances, reissuances, denial, revocation, suspension, or substantial modifications to a permit requested by a permittee, or modifications to a permit initiated by the director if the director determines that notice or hearing, or both, are in the public interest.  The director, on the director TMs own motion or the application of any person, may modify, suspend, or revoke any permit if, after affording the permittee an opportunity for a hearing in accordance with chapter 91, the director determines that:  (1) There is a violation of any condition of the permit;  (2) The permit was obtained by misrepresentation, or failure to disclose fully all relevant facts;  (3) There is a change in any condition that requires either a temporary or permanent reduction or elimination of the permitted emission; or  (4) The modification, suspension, or revocation is in the public interest.  In determining the public interest, the director shall consider the environmental impact of the proposed action, any adverse environmental effects of the proposed action, any adverse environmental effects which cannot be avoided if the action is implemented, the alternatives to the proposed action, the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented, and any other factors which the director may by rule prescribe; provided that any determination of public interest shall promote the optimum balance between economic development and environmental quality.  (d) The failure of the director to act on an application for the issuance of a permit or an application by a permit holder for the modification or renewal thereof within one hundred eighty days of the receipt of the application, shall be deemed a grant of the application; provided that the applicant acts consistently with the application and all plans, specifications, and other information submitted as a part thereof.  (e) No applicant for a modification or renewal of a permit shall be held in violation of this part during the pendency of the applicant TMs application; provided that the applicant acts consistently with the permit previously granted, the application and all plans, specifications, and other information submitted as a part thereof. [L 1996, c 82, pt of 1; am L 2000, c 3, 2]
  342J-55 Furnishing of information and entry and inspection of premises. (a) For purposes of enforcing this part, the rules adopted pursuant to this part, and other applicable provisions of this chapter, any person who generates, transports, treats, stores, disposes of, processes, re-refines, burns (including burning for purposes of energy recovery), recycles, distributes, markets, or otherwise handles or has handled used oil or used oil fuel, upon the request of any duly authorized representative of the director, shall furnish information relating to the used oil or used oil fuel and permit the representative at all reasonable times to have access to, and to copy all records relating to the used oil or used oil fuel.  (b) For purposes of enforcing this part, the rules adopted pursuant to this part, and other applicable provisions of this chapter, the authorized representative may:  (1) Enter, at reasonable times, any establishment or other place where used oil or used oil fuel is or has been generated, transported from, treated, stored, disposed of, processed, re-refined, burned (including burning for purposes of energy recovery), recycled, distributed, marketed, or otherwise handled;  (2) Inspect and obtain samples of any used oil or used oil fuel and samples of any containers or labeling for used oil or used oil fuel; and  (3) Obtain any other information, including financial information, for purposes of determining compliance with this part, the rules adopted pursuant to this part, and other applicable provisions of this chapter. Each inspection shall be commenced and completed with reasonable promptness. [L 1996, c 82, pt of 1]
  342J-56 Emergency powers; procedures. (a) Notwithstanding any other law to the contrary, if the governor or the director determines that the past or present handling of any used oil or used oil fuel may present an imminent and substantial endangerment to health or the environment, the governor or the director, without a public hearing, may secure or order relief that may be necessary to abate the danger or threat. The order shall fix a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director. The governor or the director may also institute a civil action in any environmental court of competent jurisdiction to secure any relief that may be necessary to abate the danger or threat.  (b) 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 the declaration, if the power is conferred by statute or constitutional provision, or inheres in the office. [L 1996, c 82, pt of 1; am L 2014, c 218, 8]
  342J-6.5 Notification. (a) Not later than forty-five days after June 18, 1993, any person generating or transporting, or owning or operating a facility for treatment, storage, or disposal of, any substance listed as hazardous waste or identified by its characteristics as hazardous waste under 40 Code of Federal Regulations Part 261, shall file with the department a notification stating the location and general description of the activity and the type and amount of hazardous waste handled or generated by the person.  (b) Not later than forty-five days after the adoption pursuant to this chapter of any rule that lists or identifies by characteristics any substance as hazardous waste, any person generating or transporting the substance, or owning or operating a facility for treatment, storage, or disposal of the substance, shall file with the department a notification stating the location and general description of the activity and the type and amount of hazardous waste handled or generated by the person.  This subsection shall not apply to activities or hazardous waste as to which notification has been made in compliance with subsection (a).  (c) Any person required by this section to provide notification to the department shall also advise the department, by January 31 of each year following initial notification, of the following changes:  (1) Location of business;  (2) Name of business;  (3) Mailing address;  (4) Name of person who owns the facility at which hazardous waste is handled or generated;  (5) Change of status from small quantity to large quantity generator; and  (6) Change of status from large quantity to small quantity generator.  (d) This section shall not apply to:  (1) Generators of less than one hundred kilograms of hazardous waste per month; or  (2) Any other person exempted from the notification requirements of this section pursuant to rules adopted by the department. [L 1993, c 267, 1] Revision Note  "June 18, 1993" substituted for "the effective date of this section".
 342J-6 Furnishing of information and entry and inspection of premises. (a) For purposes of enforcing the provisions of this chapter, any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous waste shall, upon request of any duly authorized representative of the director, furnish information relating to such wastes and permit such representative at all reasonable times to have access to, and to copy all records relating to such wastes.  (b) For purposes of enforcing the provisions of this chapter the authorized representative may:  (1) Enter at reasonable times any establishment or other place where hazardous wastes are or have been generated, stored, treated, disposed of, or transported from;  (2) Inspect and obtain samples of any such wastes and samples of any containers or labeling for such wastes; and  (3) Obtain any other information for purposes of determining compliance with the provisions of this chapter, including financial information. Each such inspection shall be commenced and completed with reasonable promptness. [L 1989, c 212, pt of 5; am L 1991, c 259, 7]
 342J-7 Enforcement. (a) If the director determines that any person has violated or is violating any provisions of this chapter, any rule adopted pursuant to this chapter, or any term or condition of a permit issued pursuant to this chapter or section 3005 of RCRA, 42 United States Code section 6925, the director may do one or more of the following:  (1) Issue an order assessing an administrative penalty for any past or current violation;  (2) Require compliance immediately or within a specified time; or  (3) Commence a civil action in the circuit environmental court in the circuit in which the violation occurred or the person resides or maintains the person TMs principal place of business for appropriate relief, including a temporary, preliminary, or permanent injunction, the imposition and collection of civil penalties, or other relief.  (b) Any order issued pursuant to this section may include a suspension, modification, or revocation of any permit issued under section 3005 of RCRA, 42 United States Code section 6925, by the administrator of the United States Environmental Protection Agency, or issued under section 342J-5 or 342J-54 by the director, and shall state with reasonable specificity the nature of the violation. Any administrative penalties assessed in the order shall be in accordance with section 342J-10.  (c) Any order issued under this chapter shall become final, unless not later than twenty days after the notice of order is served, the person or persons named therein request in writing a hearing before the director. Any penalty imposed under this chapter shall become due and payable twenty days after the notice of penalty is served unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on any penalty imposed under this chapter, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Upon request for a hearing, the director shall require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of.  (d) Any hearing conducted under this section shall be conducted as a contested case under chapter 91. If after a hearing held pursuant to this section, the director finds that a violation or violations have occurred, the director shall affirm or modify any penalties imposed or shall modify or affirm the order previously issued or issue an appropriate order or orders for the prevention, abatement, or control of the violation or disposals involved, or for the taking of such other corrective action as may be appropriate. If, after a hearing on an order or penalty contained in a notice, the director finds that no violation has occurred or is occurring, the director shall rescind the order or penalty. Any order issued after hearing may prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the violation or disposals.  (e) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the director may institute a civil action in the name of the State to collect the administrative penalty which shall be a government realization.   In any proceeding to collect the administrative penalty imposed, the director need only show that:  (1) Notice was given;  (2) A hearing was held or the time granted for requesting a hearing expired without a request for a hearing;  (3) The administrative penalty was imposed; and  (4) The penalty remains unpaid.  (f) In connection with any hearing held pursuant to this section, the director shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties. [L 1989, c 212, pt of 5; am L 1990, c 298, 10; am L 1991, c 259, 8; am L 1995, c 180, 25; am L 1996, c 82, 2l am L 2014, c 218, 8]
 342J-8 Emergency powers; procedures. (a) Notwithstanding any other law to the contrary, if the governor or the director determines that the past or present handling, storage, treatment, transportation, or disposal of any hazardous waste or hazardous waste constituent may present an imminent and substantial endangerment to health or the environment, the governor or the director, without a public hearing, may secure or order such relief as may be necessary to abate the danger or threat. The order shall fix a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director. The governor or the director may also institute a civil action in any environmental court of competent jurisdiction to secure such relief as may be necessary to abate the danger or threat.  (b) 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. [L 1989, c 212, pt of 5; am L 1991, c 259, 9; am L 1995, c 201, 4; am L 2014, c 218, 8] Cross References  Environmental response law, see chapter 128D.
 342J-9 Penalties. (a) Any person who violates this chapter, any rule adopted pursuant to this chapter, or any term or condition of a permit or variance issued pursuant to this chapter shall be fined not more than $25,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken in environmental court to impose or collect the penalty provided for in this subsection shall be considered a civil action.  (b) Any person who denies, obstructs, or hampers the entrance or inspection by any duly authorized representative of the director, or fails to provide information requested by the representative under section 342J-6 or 342J-55 shall be fined not more than $10,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken in environmental court to impose or collect the penalty provided for in this subsection shall be considered a civil action.  (c) Any person who knowingly:  (1) Transports any hazardous waste to a storage, treatment, or disposal facility that does not have a permit pursuant to section 342J-5 to treat, store, or dispose of that particular hazardous waste;  (2) Treats, stores, or disposes of hazardous waste without first having a permit pursuant to section 342J-5, or who violates any term or condition of a permit or variance issued pursuant to this chapter;  (3) Transports, treats, stores, disposes of, recycles, causes to be transported, or otherwise handles any used oil or used oil fuel in violation of any rules adopted pursuant to this chapter relating to used oil or used oil fuel;  (4) Makes a false statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained, or used, for purposes of compliance with this chapter, including compliance with any rules adopted pursuant to this chapter relating to used oil or used oil fuel; or  (5) Abandons or causes to be abandoned any hazardous waste, used oil, or used oil fuel; shall be subject to criminal penalties. Violations of paragraphs (3) and (4) are misdemeanor offenses. In addition to any other sentence, a person who violates paragraph (3) or (4) may be ordered to pay a fine not to exceed $25,000 for each day of each violation.  Violations of paragraphs (1), (2), and (5) are class C felonies. In addition to any other sentence, a person who violates paragraph (1), (2), or (5) may be ordered to pay a fine not to exceed $25,000 for each day of each violation.  For purposes of this subsection, abandon  means the act of deserting or leaving behind a hazardous waste, used oil, or used oil fuel. [L 1989, c 212, pt of 5; am L 1990, c 298, 11; am L 1991, c 157, 16 and c 259, 10; am L 1995, c 180, 26; am L 1996, c 82, 3; am L 1997, c 147, 3; am L 2001, c 21, 1; am L 2014, c 218, 8]
  342L-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Complaint" means any written charge filed with or by the department that a person is violating or has violated any provision of this chapter or any rule adopted pursuant to this chapter, or a permit, variance, or order issued pursuant to this chapter.  "Department" means the department of health.  "Director" means the director of health.  "Existing underground storage tank" or "existing tank" or "existing underground storage tank system" or "existing tank system" means an underground storage tank or tank system for which installation commenced not later than December 22, 1988. Installation is considered to have commenced if:  (1) The owner or operator has obtained all federal, state, and county approvals or permits necessary to begin physical construction of the site or installation of the underground storage tank or tank system; and  (2) Either a continuous on-site physical construction or installation program has begun or the owner or operator has entered into contractual obligations (which cannot be canceled or modified without substantial loss) for physical construction at the site or installation of the underground storage tank or tank system to be completed within a reasonable time.  "Operator" means any person in control of, or having responsibility for, the daily operation of the underground storage tank.  "Owner" means:  (1) In the case of a particular underground storage tank or tank system in use or brought into use on or after November 8, 1984, any person who owns an underground storage tank or tank system; and  (2) In the case of a particular underground storage tank or tank system in use before November 8, 1984, but no longer in use after that date, any person who owned such a tank or tank system immediately before the discontinuation of its use.  "Party" means each person or agency named as a party or properly entitled to be a party in any court or agency proceeding.  "Permit" means written authorization from the director to install or operate an underground storage tank or tank system. A permit authorizes the owner or operator to install and operate an underground storage tank or tank system in a manner, or to do any act, not forbidden by this chapter or by rules adopted under this chapter, but requiring review by the department.  "Person" means an individual, trust, estate, firm, joint stock company, corporation (including a government corporation), partnership, association, commission, consortium, joint venture, commercial entity, the State or a county, the United States government, federal agency, interstate body, or any other legal entity.  "Petroleum" means petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute).  "Provider of financial assurance" means a person that provides evidence of financial responsibility for one or more underground storage tanks or tank systems.  "Regulated substance" means an element, compound, mixture, solution, or substance that, when released into the environment, may present substantial danger to human health, welfare, or the environment. The term includes:  (1) Any substance defined in section 101(14) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (but not including any substance regulated as a hazardous waste under Subtitle C of the federal Resource Conservation and Recovery Act);  (2) Petroleum; and  (3) Any other substance as designated by the department.  "Release" includes, but is not limited to, any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank or tank system.  "Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.  "Soil remediation site" means designated state-owned land set aside for the purpose of remediating contaminated soils.  "Underground storage tank" or "tank" means any one or combination of tanks (including pipes connected thereto) used to contain an accumulation of regulated substances, and the volume of which (including the volume of the underground pipes connected thereto) is ten per cent or more beneath the surface of the ground. This term does not include any:  (1) Farm or residential tank of one thousand one hundred gallons or less capacity used for storing motor fuel for noncommercial purposes;  (2) Tank used for storing heating oil for consumptive use on the premises where stored;  (3) Septic tank;  (4) Pipeline facility (including gathering lines) regulated under:  (A) The federal Natural Gas Pipeline Safety Act of 1968, Public Law 90-481, as amended; or  (B) The federal Hazardous Liquid Pipeline Safety Act of 1979, Public Law 96-129, as amended;  (5) Surface impoundment, pit, pond, or lagoon;  (6) Storm water or wastewater collection system;  (7) Flow-through process tank;  (8) Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations; and  (9) Storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor.  "Underground storage tank system" or "tank system" means an underground storage tank, connected underground piping, underground ancillary equipment, and containment system, if any.  "Variance" means special written authorization from the director to own, install, or operate an underground storage tank or tank system in a manner deviating, or to do an act that deviates, from the requirements of rules adopted under this chapter. [L 1989, c 212, pt of 6; am L 1992, c 259, 3; am L 2016, c 179, 3] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342L-10 Penalties. (a) Any person who violates this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter shall be fined not more than $25,000 for each individual tank for each day of each violation. Each day of each violation shall constitute a separate offense. In addition, any person who fails to comply with an order issued under this chapter within the time specified in the order shall be fined not more than $25,000 for each day of noncompliance with the order. Any action taken in environmental court to impose or collect the penalty provided for in this subsection shall be considered a civil action.  (b) Any person who:  (1) Denies, obstructs, or hampers the entrance, inspection, or conduct of release response activities by any duly authorized representative of the department at any building, place, site, facility, vehicle, or structure that the representative is authorized to enter, inspect, or at which the representative is authorized to conduct release response activities; or  (2) Fails to provide information requested by the representative as required under section 342L-7; shall be fined not more than $500 per day of denial, obstruction, hindrance, or failure. Any action taken in environmental court to impose or collect the penalty provided for in this subsection shall be considered a civil action. [L 1989, c 212, pt of 6; am L 1991, c 157, 17; am L 1992, c 259, 12; am L 1995, c 180, 31; am L 2014, c 218, 8]
  342L-11.5 REPEALED. L 1992, c 259, 34.
 342L-11 Administrative penalties. (a) In addition to any other administrative or judicial remedy provided by this chapter or by rules adopted under this chapter, the director may impose by order the penalties specified in section 342L-10.  (b) Factors to be considered in imposing an administrative penalty include:  (1) The nature and history of the violation and of any prior violations;  (2) The economic benefit, if any, resulting from the violation;  (3) The opportunity, difficulty, and history of corrective action;  (4) Good faith efforts to comply; and  (5) Any other matters that justice may require.  (c) It shall be presumed that the violator TMs economic and financial conditions allow payment of the penalty, and the burden of proof to the contrary shall be on the violator. [L 1989, c 212, pt of 6; am L 1992, c 259, 13; am L 1995, c 180, 32]
  342L-12.5 Intervention. Any person may intervene in any civil action to enforce this chapter if the person has an interest that is, or may be, adversely affected. [L 1992, c 259, pt of 1]
 342L-12 Injunctive and other relief. The director may institute a civil action in any environmental court of competent jurisdiction for injunctive and other relief to prevent or stop any violation of this chapter, any rule adopted pursuant to this chapter, or any permit or variance issued pursuant to this chapter, without the necessity of a prior revocation of the permit or variance, to impose and collect civil penalties, to collect administrative penalties, or to obtain other relief. The environmental court may grant relief in accordance with the Hawaii rules of civil procedure. [L 1989, c 212, pt of 6; am L 1992, c 259, 14; am L 1995, c 180, 33; am L 2014, c 218, 8] Rules of Court  Injunctions, see HRCP rule 65.
 342L-13 Appeal. If any party is aggrieved by an order of the director, the party may appeal in the manner provided in chapter 91 to the circuit environmental court of the circuit in which the party resides or has the party TMs principal place of business or in which the action in question occurred; provided that the operation of an order shall not be stayed on appeal unless specifically ordered by [an] environmental court of competent jurisdiction. [L 1989, c 212, pt of 6; am L 1992, c 259, 15; am L 2014, c 218, 8]
 342L-14 Fees. Notwithstanding section 342L-36.5 to the contrary, the director may establish reasonable fees for the registration of underground storage tanks or tank systems, for the issuance, renewal, and modification of permits and variances to cover the cost of issuance thereof and for the implementation and enforcement of the terms and conditions of permits and variances including inspections and necessary site visits (not including court costs or other costs associated with any formal enforcement action), and for the review, evaluation, and approval of plans regarding release response activities. The fees shall be deposited to the credit of the general fund. [L 1989, c 212, pt of 6; am L 1992, c 259, 16] Note  The amendment made by L 2014, c 218, 8 is not included in this section.  Section 342L-36.5 referred to in text is repealed.
 342L-15 Public records; confidential information. Reports and records submitted to the department by any person on the ownership, installation, or operation of underground storage tanks or tank systems shall be made available for inspection by the public during established office hours except as provided in this section. Upon a showing satisfactory to the department that public disclosure of records, reports, or information, or a particular part thereof, to which the department's representative has access to under this section would divulge information entitled to protection under chapter 92F, the department shall consider the information or a particular portion thereof to be confidential. No confidential information secured pursuant to this section by any official or employee of the department within the scope of and [course] of the official's or employee's employment in the prevention, control, or abatement of releases from underground storage tanks or tank systems, shall be disclosed by the official or employee with the following exception: the document or information may be disclosed to officers, employees, or authorized representatives of the State or of the United States, including county government entities, who have been charged with carrying out this chapter or Subtitle I of the federal Resource Conservation and Recovery Act, or when relevant in any proceeding under this chapter. [L 1989, c 212, pt of 6; am L 1992, c 259, 17]
 342L-16 Nonliability of department personnel. Notwithstanding any other law to the contrary, no member, officer, or employee of the department shall be criminally liable or responsible under this chapter for any acts done by the member, officer, or employee in the performance of the member TMs, officer TMs, or employee TMs duties; provided that this section shall not apply to violations of section 342L-7(d). [L 1989, c 212, pt of 6; am L 1992, c 259, 18]
  342L-17 Other action not barred. No existing civil or criminal remedy for any wrongful action which is a violation of any statute or any rule of the department or the ordinance of any county shall be excluded or impaired by this chapter. [L 1989, c 212, pt of 6]
  342L-18 Enforcement by state and county authorities. All state and county health authorities and police officers shall enforce this chapter and the rules and orders of the department. [L 1989, c 212, pt of 6]
  342L-19 Other powers of department not affected. The powers, duties, and functions vested in the department under this chapter shall not be construed to affect in any manner the powers, duties, and functions vested in the department under any other law. [L 1989, c 212, pt of 6]
  342L-2 Administration. The department shall administer this chapter through the director. The director may delegate to any person such power and authority vested in the director by this chapter as the director deems reasonable and proper for the effective administration of this chapter, except the power to make rules. [L 1989, c 212, pt of 6]
 342L-20 Effect of laws, ordinances, and rules. (a) All laws, ordinances, and rules inconsistent with this chapter shall be void and of no effect.  (b) Any county may adopt ordinances and rules governing any matter relating to underground storage tanks or tank systems that are governed by a rule of the department adopted pursuant to this chapter; provided that any county ordinance or rule relating to underground storage tanks or tank systems shall be void and of no effect if inconsistent with a rule of the department upon the adoption thereof. [L 1989, c 212, pt of 6; am L 1992, c 259, 19]
  342L-21 Priority in courts. All actions brought pursuant to this chapter or pursuant to the rules adopted under this chapter shall in the discretion of the court receive priority in the courts of the State. [L 1989, c 212, pt of 6] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342L-22 REPEALED. L 1992, c 259, 35.
  342L-23 Directory of underground storage tank service providers. (a) The director shall develop and maintain a directory of service providers who are identified in [subsection] (c). Information submitted by service providers shall be made readily available to owners and operators of underground storage tanks and tank systems and the public for review and inspection upon request.  (b) The directory shall consist of service providers who are:  (1) Individuals, engaged in types of services in [subsection] (c), having signatory authority and responsibilities; and  (2) Persons, representing firms engaged in types of services in [subsection] (c), who have signatory authority and responsibilities.  (c) Categories of service providers include the following:  (1) Installation of underground storage tanks or tank systems;  (2) Retrofitting underground storage tanks or tank systems for corrosion protection, spill and overfill prevention, and release detection;  (3) Operating and maintaining corrosion protection systems;  (4) Repairing underground storage tanks and tank systems;  (5) Testing and monitoring underground storage tanks and tank systems for releases of petroleum and hazardous substances;  (6) Assessment of an underground storage tank site for the nature and extent of contamination of soil and waters by released substances;  (7) Procurement of product, soil, and water samples;  (8) Preparation and analysis of product, soil, and water samples;  (9) Procurement of field measurements to screen for and characterize contaminants;  (10) Abatement and remediation of contaminants at the site to levels protective of human health and the environment;  (11) Cleaning of underground storage tanks or tank systems;  (12) Excavating and removing underground storage tanks or tank systems, and contaminated soils and debris;  (13) Transporting underground storage tanks or tank systems, contaminated soils and debris; and  (14) Treatment, storage, and disposal of uncleaned underground storage tanks or tank systems, contaminated soils and debris.  (d) Effective June 18, 1992, service providers wishing to be listed in the directory may submit to the director, at a minimum, the following types of information:  (1) Full name of the individual or person in a firm with signatory authority and responsibilities;  (2) Current job title and description of responsibilities;  (3) Name of the firm or company currently employing the person, if applicable;  (4) Identification of the specific category or categories of services provided in [subsection] (c) to be provided;  (5) List the number, types, and qualifications of personnel reporting to the person with signatory authority and responsibility, if any;  (6) For the individual or person with signatory authority and responsibility, formal education, including specific copies of diplomas from high schools, vocational schools, colleges, and universities;  (7) For the individual or person with signatory authority and responsibility, registrations and certifications, including copies of registered professional engineering license, plumbers license, tank or tank system installer certification by manufacturer, tank or tank system testing certifications, commercial haulers license, etc. (including registrations and certifications from other states);  (8) For the individual or person with signatory authority and responsibility, formal training, including description of courses and seminars and certificates of completion thereof;  (9) For the individual or person with signatory authority and responsibility, related work experience, including type of work, and identification and telephone numbers of any references;  (10) For the individual or person with signatory authority and responsibility, memberships and affiliation with professional and work organizations; and  (11) For the individual or person with signatory authority and responsibility, statement attesting to coverage of financial liability relating to the applicable categories of work in [subsection] (c). [L 1992, c 259, pt of 1] Revision Note  "June 18, 1992" substituted for "on the date of approval of this Act".
 342L-3 Powers; rulemaking; appointment of hearings officers. (a) The director may adopt, amend, and repeal state rules controlling and regulating underground storage tanks and tank systems. All rules shall be adopted pursuant to chapter 91.  (b) In addition to other specific powers provided in this chapter, the director may appoint without regard to chapter 76, hearings officers to conduct public participation activities including public hearings and public informational meetings. [L 1989, c 212, pt of 6; am L 1992, c 259, 4; am L 2000, c 253, 150]
  342L-30 Notification requirements. (a) Except as provided in subsection (c), the owner of an existing underground storage tank or existing tank system shall notify the department by December 31, 1989, of the existence of the tank or tank system and specify the age, size, type, location, and uses of the tank or tank system. Notice shall be made on an approved form of notice provided by the department.  (b) The owner of an existing underground storage tank or existing tank system taken out of operation between January 1, 1974, and May 19, 1986, shall notify the department by December 31, 1989, of the existence of the tank or tank system, unless the tank or tank system was removed from the ground prior to May 8, 1986. Notices shall include, to the extent known to the owner, at least the following specifications:  (1) The date the tank or tank system was taken out of operation;  (2) The age of the tank or tank system on the date taken out of operation;  (3) The size, type, and location of the tank or tank system; and  (4) The type and quantity of substances left stored in the tank or tank system on the date taken out of operation.  (c) Any owner who brings into use an underground storage tank or tank system after May 19, 1986, shall notify the department within thirty days after the installation of the tank or tank system, specifying the age, size, type, location, and uses of the tank or tank system.  (d) Subsections (a) to (c) shall not apply to tanks or tank systems for which notice was given pursuant to section 103(c) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Public Law 96-516, as amended.  (e) Any person who acquired ownership of an underground storage tank or tank system after December 31, 1989, shall notify the department within thirty days of June 18, 1992, whether or not the person still owns the underground storage tank or tank system. Any person who acquires ownership of an underground storage tank or tank system after June 18, 1992, shall notify the department within thirty days of acquiring ownership. If there is a change of operator of an underground storage tank or tank system, the owner shall notify the department within thirty days of the change of operator. Notification of any of the above changes in the owner or operator of an underground storage tank or tank system shall be made on a form provided by the department.  (f) The owner of an underground storage tank or tank system taken out of operation on or before January 1, 1974, shall not be required to notify the department.  (g) Any person who sells a tank or tank system intended to be used as an underground storage tank or tank system shall notify the purchaser of the tank or tank system of the owner TMs notification requirements established under this section.  (h) Beginning on June 7, 1989, and for eighteen months thereafter, any person who deposits regulated substances into an underground storage tank or tank system shall notify the owner of the tank or tank system of the owner TMs notification requirements established under this section.  (i) Any failure to comply with the requirements of this section, including any submission of false information, shall be subject to the penalties set forth in sections 342L-10 and 342L-11 for each day of each violation. [L 1989, c 212, pt of 6; am L 1992, c 259, 20] Revision Note  "June 18, 1992," substituted for "the effective date of this Act".
 342L-31 Permit requirements and transfer of permit. (a) No person shall install or operate an underground storage tank or tank system brought into use after the effective date of the tank or tank system standards established in section 342L-32 unless a permit is obtained from the department and upon payment of a fee.  (b) No permit to own or operate an underground storage tank or tank system shall be transferred to any person without prior written approval of the director.  (c) The department shall prepare a form for an application to request the director TMs approval to transfer a permit of ownership or operation of an underground storage tank or tank system. A person wishing to accept the obligations of a transferred permit to own or operate an underground storage tank or tank system from the previous owner or operator shall complete an application form and submit the form to the director. The director shall review the application and issue an approval of the transfer if the applicant proves to the satisfaction of the director that the applicant is able to comply with the conditions of the permit. [L 1989, c 212, pt of 6; am L 1992, c 259, 21]
  342L-32.5 Delivery, deposit, and acceptance prohibition. No person shall deliver to, deposit into, or accept a regulated substance into an underground storage tank regulated under this chapter at a facility that has been identified by the department to be ineligible for such delivery, deposit, or acceptance. The delivery prohibition may go into effect at a facility before a hearing is conducted by the director. [L 2009, c 7, 2]
 342L-32 Standards for tanks and tank systems. (a) The department shall adopt standards under chapter 91 which shall apply to underground storage tanks and tank systems.  (b) Underground storage tank and tank system standards shall include, but are not limited to the following specifications:  (1) The tank and tank system shall be designed, constructed, installed, upgraded, maintained, repaired, and operated to prevent releases of the stored regulated substances for the operational life of the tank or tank system;  (2) The material used in the construction or lining of the tank or tank system is compatible with the substance to be stored; and  (3) Existing underground storage tanks or existing tank systems shall be replaced or upgraded not later than December 22, 1998, to prevent releases for their operating life. [L 1989, c 212, pt of 6; am L 1992, c 259, 22]
 342L-33 Release detection. The department, pursuant to chapter 91, shall adopt standards of performance for maintaining a release detection system, including, but not limited to, inventory control, tightness testing, and any other methods designed to identify releases from the underground storage tank or tank system in a manner consistent with the protection of human health and the environment. [L 1989, c 212, pt of 6; am L 1992, c 259, 23]
 342L-34 Reporting of releases. The department, pursuant to chapter 91, shall adopt requirements for reporting suspected or confirmed releases and action taken in response to a suspected or confirmed release from an underground storage tank or tank system. [L 1989, c 212, pt of 6; am L 1992, c 259, 24]
 342L-35 Response to suspected or confirmed releases. The department, pursuant to chapter 91, shall adopt requirements for investigating a suspected release and taking action in response to a confirmed release from an underground storage tank or tank system, which shall include at least the following:  (1) Requirement that when a release is found, the substances in the tank or tank system be emptied if emptying the substances does not present a greater danger to human health or the environment;  (2) Requirement for proper closure of the tank or tank system, following the requirements established under section 342L-37, or repair and testing of the tank or tank system before placing it back into operation;  (3) Requirement that the owner and operator of the underground storage tank or tank system that had a release restore the environment to a condition and quality acceptable to the department; and  (4) Requirement to notify those members of the public directly affected by the release and the proposed response to the release. [L 1989, c 212, pt of 6; am L 1992, c 259, 25]
  342L-36.5 REPEALED. L 1992, c 259, 33.
 342L-36 Financial responsibility. (a) The department, pursuant to chapter 91, shall adopt requirements for maintaining evidence of financial responsibility for taking response action and compensating third parties for bodily injury and property damage caused by any accidental releases arising from operating an underground storage tank or tank system. Evidence of financial responsibility may be established by any one, or any combination of the following: insurance, guarantee, surety bond, letter of credit, qualification as a self-insurer, or any other method satisfactory to the department. In prescribing requirements under this subsection, the department may specify policy or other contractual terms, conditions, or defenses that are necessary or acceptable to establish evidence of financial responsibility.  (b) If the owner or operator is in bankruptcy, reorganization, or arrangement pursuant to the Federal Bankruptcy Code, or if jurisdiction in any state or federal court cannot be obtained over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this subsection may be asserted directly against the provider of financial assurance. In the case of action pursuant to this subsection, the provider of financial assurance may invoke all rights and defenses that would have been available to the owner or operator if any action had been brought against the owner or operator by the claimant and which would have been available to the provider of financial assurance if an action had been brought against the provider of financial assurance by the owner or operator.  (c) The total liability of a provider of financial assurance shall be limited to the aggregate amount that the provider of financial assurance has provided as evidence of financial responsibility to the owner or operator under this subsection. This subsection does not limit any other state or federal statutory, contractual, or common law liability of a provider of financial assurance to the owner or operator, including, but not limited to, the liability of the provider of financial assurance for bad faith in negotiating or in failing to negotiate the settlement of any claim. This subsection does not diminish the liability of any person under section 107 or 111 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 or other applicable law.  (d) The department may establish the amount of required coverage for particular classes or categories of underground storage tanks or tank systems containing petroleum, which shall not be less than $1,000,000 for each occurrence with an appropriate aggregate requirement.  (e) The department may establish amounts lower than the amounts required by subsection (d) for underground storage tanks or tank systems containing petroleum, which are at facilities not engaged in petroleum production, refining, or marketing, and which are not used to handle substantial quantities of petroleum.  (f) The department may consider the following factors in establishing the amount of coverage:  (1) The size, type, location, storage, and handling capacity of underground storage tanks or tank systems in the class or category and the volume of petroleum handled by the tanks or tank systems;  (2) The likelihood of release from underground storage tanks or tank systems in the class or category;  (3) The economic impact of the limits on the owners and operators of each such class or category, particularly relating to the small business segment of the petroleum marketing industry;  (4) The availability of methods of financial responsibility in amounts greater than the amount established by this section; and  (5) Such other factors as the department deems pertinent.  (g) The department may suspend enforcement of the financial responsibility requirements for a particular class or category of underground storage tanks or tank systems if the department determines that methods of financial responsibility satisfying the requirements of this section are not generally available for underground storage tanks or tank systems in that class or category, and:  (1) Steps are being taken to form a risk retention group for the class of tanks or tank systems; or  (2) The State is taking steps to establish a fund to be implemented by the department or local agencies and departments for response action and compensation for the class of tanks or tank systems.  The initial suspension by the department pursuant to this subsection may be for a period not to exceed one hundred eighty days. A determination to continue suspension may be made with respect to the same class or category at the end of the period, but only if substantial progress has been made in establishing a risk retention group, or the owners or operators in the class or category demonstrate, and the department finds, that the formation of such a group is not possible and that the State is unable or unwilling to establish such a fund described in paragraph (2). [L 1989, c 212, pt of 6; am L 1992, c 259, 26] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342L-37 Underground storage tank and tank system change in service and closure requirements. Nothing in this chapter shall be construed to relieve the owners and operators of underground storage tanks and tank systems that have been removed from the ground of any responsibility to comply with the release response provisions in this chapter and any other requirements applicable to these owners and operators prior to the removal of the underground storage tanks or tank systems. The department, pursuant to chapter 91, shall adopt requirements for the change in service and temporary or permanent closure of underground storage tanks and tank systems, including requirements to prevent future releases of regulated substances into the environment. [L 1989, c 212, pt of 6; am L 1992, c 259, 28]
  342L-4.5 Permits near shoreline prohibited; exception. (a) The department shall not issue a permit for a new underground fuel storage tank within one hundred yards of the shoreline; provided that a permit may be issued by the department for purposes of repairing or replacing an existing underground fuel storage tank.  (b) Except as otherwise provided in subsection (c), the holder of a permit for an existing underground fuel storage tank within one hundred yards of the shoreline may renew the permit.  (c) Beginning January 1, 2045, no person shall operate an underground fuel storage tank within one hundred yards of the shoreline, and no permit for an underground fuel storage tank within one hundred yards of the shoreline shall be renewed. [L 2016, c 179, 2]
 342L-4 Permits; procedures for. (a) An application for any permit required under this chapter shall be in a form prescribed by the department.  (b) The department may require that applications for such permits shall be accompanied by plans, specifications, and such other information as it deems necessary in order for it to determine whether the proposed installation, alteration, or use will be in accord with applicable rules and standards.  (c) The director shall issue a permit for any term, not exceeding five years, if the director determines this to be protective of human health and the environment; provided that the permit may be subject to conditions as the director may prescribe. The director, on application, shall renew a permit from time to time for a term not to exceed five years if the director determines this to be protective of human health and the environment. The director shall not deny an application for the issuance or renewal of a permit without affording the applicant an opportunity for a hearing in accordance with chapter 91.  The director, on the director TMs own motion or the application of any person, may modify, suspend, or revoke any permit if, after affording the permittee an opportunity for a hearing in accordance with chapter 91, the director determines that:  (1) There is a violation of any condition of the permit;  (2) The permit was obtained by misrepresentation, or failure to disclose fully all relevant facts; or  (3) There is a release or threatened release of regulated substances that the department deems to pose an imminent and substantial risk to human health or the environment.  (d) No applicant for a modification or renewal of a permit shall be held in violation of the requirement to obtain a permit during the pendency of the applicant TMs application so long as the applicant acts in compliance with the permit previously granted. [L 1989, c 212, pt of 6; am L 1992, c 259, 5]
 342L-5 Variances allowed. Provisions under this chapter deemed more stringent than the federal rules established under Subtitle I of the federal Resource Conservation and Recovery Act, as added by the federal Hazardous and Solid Waste Amendments of 1984, may be varied by the department, when the variance results in an equivalent degree of human health and environmental protection and does not present a greater danger to human health or the environment. [L 1989, c 212, pt of 6; am L 1992, c 259, 6]
Cross References Environmental response law, see chapter 128D.  342L-50 Definitions. For the purpose of this part:  "Exposure assessment" means a determination regarding the extent of exposure of, or potential for exposure of, individuals to petroleum from a release from an underground storage tank or tank system. This assessment shall be based on factors such as the nature and extent of contamination, the existence of or potential for pathways of human exposure (including ground or surface water contamination, air emissions, dermal exposure, soil ingestion, and food chain contamination), the size of the community or communities within the likely pathways of exposure, an analysis of expected human exposure levels with respect to short-term and long-term health effects associated with identified contaminants, and any available recommended exposure or tolerance limits for the contaminants.  "Facility" means, with respect to any owner or operator, a single parcel of property (or any contiguous or adjacent property), including improvements, in or upon which all underground storage tanks or tank systems used for the storage of petroleum that are owned or operated by the owner or operator are located.  "Fund" means the leaking underground storage tank fund.  "Owner" means any person who falls within the definition of owner contained within part I but excluding a person who does not participate in the management of an underground storage tank or tank system and is otherwise not engaged in petroleum production, refining, and marketing but holds indicia of ownership primarily to protect a security interest in the tank or tank system. [L 1989, c 212, pt of 6; am L 1992, c 259, 29]
 342L-51 Leaking underground storage tank fund. (a) The department shall establish a revolving fund within the department which shall consist of moneys appropriated to the fund through federal grants, moneys appropriated to the fund by the legislature, moneys paid to the fund as a result of departmental compliance proceedings, moneys paid to the fund pursuant to court-ordered awards or judgments, moneys paid to the fund in court-approved or out-of-court settlements, and moneys given to the fund from other sources.  (b) Moneys from the fund shall be expended by the department for the sole purpose of responding to petroleum releases from underground storage tanks or tank systems in a manner consistent with this chapter.  (c) Moneys in the fund, which were appropriated to the fund through a federal grant and which have been collected by the department as part of its cost recovery efforts pursuant to section 342L-53, may be paid to the federal government when such repayment is required by a condition in the relevant federal grant. [L 1989, c 212, pt of 6; am L 1992, c 259, 30]
 342L-52 Response to suspected or confirmed releases. (a) In the event of a petroleum release from an underground storage tank or tank system, which occurs prior to the adoption of rules for response to suspected or confirmed releases pursuant to section 342L-35, the department may:  (1) Issue an order requiring the owner or operator of an underground storage tank or tank system to undertake response action as is necessary to protect human health or the environment and fixing a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director; or  (2) Undertake response action by itself or by contract as is necessary to protect human health or the environment.  The department shall use moneys from the fund to pay for costs incurred in undertaking or compelling a response action pursuant to this subsection.  The department shall assign priority in undertaking response actions, pursuant to this subsection, to cases in which the department cannot identify, within the time necessary to protect human health or the environment, a solvent owner or operator of the tank or tank system, or even if able to identify such a person, has cause to believe that the person cannot or will not properly undertake a response action.  (b) In the event of a petroleum release from an underground storage tank or tank system, which occurs after the adoption of rules for response to suspected or confirmed releases pursuant to section 342L-35, the department may take all actions and issue such orders as are described in subsection (a), which are in conformity with the rules; provided that the department may undertake response actions with respect to any release of petroleum into the environment from an underground storage tank or tank system only if the department finds the action to be necessary to protect human health or the environment and one or more of the following conditions exists:  (1) No person can be found, within ninety days or such shorter period as may be necessary to protect human health or the environment who is:  (A) An owner or operator of the tank or tank system;  (B) Subject to the response action rules; and  (C) Capable of carrying out the response action properly;  (2) Prompt action by the department is required to protect human health or the environment;  (3) Anticipated costs of the response action at a facility will exceed the amount of financial responsibility coverage required by the department and, considering the class or category of tank or tank system from which the release occurred, the director determines that expenditures from the fund are necessary in order to assure effective response action; or  (4) The owner or operator of the tank or tank system has failed or refused to comply with a federal order issued pursuant to either section 9003 or 9006 of the federal Resource Conservation and Recovery Act or with an order issued pursuant to this section or section 342L-8 or 342L-9 to comply with the rules on response to suspected or confirmed releases.  The department shall assign priority in undertaking response actions pursuant to this subsection and in issuing orders requiring owners or operators to undertake response actions to those cases involving releases of petroleum from underground storage tanks or tank systems that pose the greatest threat to human health or the environment.  (c) The department is authorized to issue orders to the owner or operator of an underground storage tank or tank system to comply with rules adopted under section 342L-35.  (d) Response actions undertaken by the department may include the temporary or permanent relocation of residents and the provision of alternative household water supplies.  (e) In connection with the performance of any response action, the department may undertake an exposure assessment. A response action to abate immediate hazards or reduce exposure shall not be delayed in order to complete any exposure assessment. The costs of any such assessment may be deemed to have been incurred in undertaking the response action.  (f) Except as provided in this subsection, in order to protect human life, at any facility whose owner or operator has failed to maintain evidence of financial responsibility in amounts at least equal to the amounts established pursuant to section 342L-36, the department shall expend no moneys from the fund to respond to releases at the facility pursuant to subsections (a) and (b). At these facilities the department may use the authority provided in this chapter to order a response action to these releases. The department may use moneys from the fund to take a response action if necessary to protect human health at these facilities and shall seek full recovery of the costs of all such actions. Nothing in this subsection shall prevent the department from taking a response action at a facility where there is no solvent owner or operator or where immediate action is necessary to respond to an imminent and substantial endangerment of human health or the environment. [L 1989, c 212, pt of 6; am L 1992, c 259, 31] Cross References  Environmental response law, see chapter 128D.  Hawaii emergency planning and community right-to-know act, see chapter 128E.
 342L-53 Cost recovery. (a) Whenever costs have been incurred by the department in the undertaking of a response action or enforcement action with respect to the release of petroleum from an underground storage tank or tank system, the owner or operator of the tank or tank system shall be liable to the federal government or the department for these costs. The liability under this subsection shall be construed to be the standard of liability that obtains under section 311 of the Federal Water Pollution Control Act.  (b) In seeking cost recovery, the department may consider the amount of financial responsibility required to be maintained pursuant to section 342L-36 and the factors considered in establishing the amount of financial responsibility pursuant to section 342L-36.  (c) No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any underground storage tank or tank system or from any person who may be liable for a release or threat of release under this section, to any other person, the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such an agreement for any liability under this section. Nothing in this chapter shall bar a cause of action that an owner or operator or any other person subject to liability under this section, or a provider of financial assurance, has or would have, by reason of subrogation or otherwise against any person.  (d) Moneys collected by the department as part of the cost recovery efforts pursuant to this section shall be deposited in the leaking underground storage tank fund established in section 342L-51. [L 1989, c 212, pt of 6; am L 1992, c 259, 32]
 342L-6 Variances; procedures for. (a) Every application for a variance shall be made on forms furnished by the department and shall be accompanied by a complete and detailed description of present conditions, how present conditions do not fully conform to standards, and such other information as the department may by rule prescribe.  (b) Each application for a variance shall be reviewed in light of the descriptions, statements, plans, histories, and other supporting information submitted with the application, such additional information as may be submitted upon the request of the department, and the effect or probable effect upon the standards established pursuant to this chapter.  (c) Whenever an application is approved, the department shall issue a variance authorizing the installation or operation of an underground storage tank or tank system in a manner deviating from full compliance with applicable standards. No variance shall be granted by the department unless the application and the supporting information clearly show that:  (1) The installation or operation of an underground storage tank or tank system occurring or proposed to occur by the granting of the variance does not present a greater danger to human health or the environment than the installation or operation of what would have been allowed by the federal rules established under Subtitle I of the federal Resource Conservation and Recovery Act, as added by the federal Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.  6991-6991i;  (2) The installation or operation of an underground storage tank or tank system occurring or proposed to occur does not imminently and substantially endanger human health or the environment or the public TMs safety; and  (3) Compliance with the rules or standards from which variance is sought would produce serious financial hardship to the owner and operator.  (d) Any variance or renewal thereof shall be granted within the requirements of this section and for time periods and conditions consistent with the reasons thereof, and within the following limitations:  (1) If the variance is granted on the ground that there is no practicable means known or available for the adequate storage of the regulated substance involved, it shall be only until the necessary means for storage becomes practicable and subject to the taking of any substitute or alternate measures that the department may prescribe. No renewal of a variance granted under this subsection shall be allowed without a thorough review of known and available means of storing the regulated substance involved.  (2) The director may issue a variance for a period not exceeding five years.  (3) Every variance granted under this section shall include conditions requiring the owner and operator to monitor for releases and report the results to the department.  (e) Any variance granted pursuant to this section may be renewed from time to time on previous terms and conditions, subject to modifications, and for periods not exceeding five years at a time; provided that the applicant for renewal has met all of the conditions specified in the immediately preceding variance; and provided further that the renewal, and the variance issued in pursuance thereof, shall provide for deviation from full compliance with applicable standards not greater than that attained pursuant to the terms of the immediately preceding variance at its expiration. No renewal shall be granted except on application therefor. Any such application shall be made at least one hundred eighty days prior to the expiration of the variance. The director shall act on an application for renewal within one hundred eighty days of the receipt of such application.  (f) The director may afford a hearing in accordance with chapter 91 in relation to an application for the issuance, renewal, or modification of a variance.  (g) No variance granted pursuant to this chapter shall be construed to prevent or limit the application of any emergency provisions and procedures provided by law, including revocation of the variance.  (h) Any application for a variance, submitted pursuant to this chapter, shall be subject to the public participation requirements listed below.  (1) Public notices of every completed application for a variance shall be given in a manner designed to inform interested and potentially interested persons of the proposed activity. Procedures for giving public notice shall include at least the following:  (A) Notice shall be given within the geographical areas of the proposed activity;  (B) Notice shall be mailed to any person or group upon request; and  (C) The director shall add the name of any person or group upon request to a mailing list to receive copies of notices for all variance applications within the State or within a certain geographical area;  (2) The director shall provide a period of not less than thirty days following the date of the public notice during which time interested persons or groups may submit their written comments with respect to the variance application and the tentative determinations of the department, if any. The period for comment may be extended at the discretion of the director;  (3) The contents of public notice of applications for variances shall include at least the following:  (A) Name, address, and telephone number of the agency issuing the public notice;  (B) Name and address of each applicant and other involved parties including the landowner, facility owner, underground storage tank or tank system owner, facility operator, and underground storage tank or tank system operator;  (C) Brief description of all applicant activities or operations that result in the activity described in the variance application (e.g., rock crushing plant, municipal waste treatment plant, raw sugar factory, or pineapple cannery);  (D) A short description of the location of each underground storage tank or tank system;  (E) A brief description of the procedures for the formulation of final determinations, including the thirty-day comment period required by paragraph (2) and any other means by which interested persons may influence or comment upon those determinations; and  (F) Address and telephone number of the state agency or other location at which interested persons may obtain further information and inspect a copy of the variance applications and supporting and related documents; and  (4) The director may hold a public hearing if, after reviewing the comments submitted under paragraph (2), the director determines that a public hearing is warranted. Any hearing brought pursuant to this subsection shall be held in the geographical area of the proposed activity, or other appropriate area, at the discretion of the director. [L 1989, c 212, pt of 6; am L 1992, c 259,  7, 8; am L 1998, c 2, 92]
Note Transfer of rights, powers, etc. of the task force to study fuel tank leaks to the fuel tank advisory committee. L 2016, c 244, 3.  342L-61 Fuel tank advisory committee; established; composition. (a) There is established in the department of health the fuel tank advisory committee, which shall consist of up to fourteen ex officio members and at least two public members.  (b) The ex officio members of the committee shall be:  (1) The director of health, who shall serve as the committee's chair;  (2) The four members of Hawaii's congressional delegation, or their designees;  (3) The president of the Hawaii senate, or a senator appointed by the president of the senate;  (4) The speaker of the Hawaii house of representatives, or a representative appointed by the speaker of the house;  (5) The chairperson of the board of land and natural resources, or the chairperson's designee;   (6) The chairperson of the board of water supply of a county with a population of five hundred thousand or more, or the chairperson's designee; and  (7) The chairperson of the commission on water resource management, or the chairperson's designee.   (c) The following persons shall be invited to participate on the advisory committee as ex officio members:  (1) The Commanding General of the United States Army, Pacific, or the Commanding General's designee;  (2) The Commander of the Pacific Fleet of the United States Navy, or the Commander's designee;  (3) The Commander of the Pacific Air Forces, or the Commander's designee; and  (4) A representative from the United States Environmental Protection Agency, or the representative's designee.  (d) The governor shall appoint at least two public members from the community at large in accordance with section 26-34; provided that the advice and consent of the senate shall not be necessary.  (e) The public members of the advisory committee shall receive no salary, but shall be entitled to reimbursement for necessary expenses, including travel expenses. [L 2016, c 244, pt of 2]
  342L-62 Duties. (a) The advisory committee shall study issues related to leaks of field-constructed underground fuel storage tanks at the Red Hill Bulk Fuel Storage Facility, Kuahua Peninsula, Pacific Missile Range Facility Barking Sands, Hickam Pol Annex, and Schofield Barracks Military Reservation. The advisory committee shall consider:  (1) The short- and long-term effects of leaks of the fuel tanks, including effects relating to the health of residents, safe drinking water, and the environment;  (2) Response strategies to mitigate the effects of leaks from fuel tanks;  (3) Methods to improve communication between the United States Navy, Air Force, and Army; the State; any local board of water supply; and the public in the event of a leak of any fuel tank;  (4) Groundwater test results in relation to the surrounding areas of fuel tank facilities, with a particular emphasis on the groundwater near the Red Hill Bulk Fuel Storage Facility;  (5) The implications of shutting down any fuel tank facility; and  (6) Updates on progress toward meeting goals of agreement between the State, the affected county, and the federal government.  (b) No later than twenty days before the convening of each regular session, the advisory committee shall submit a report of its findings, including groundwater test results, and recommendations, including any proposed legislation, to the legislature. [L 2016, c 244, pt of 2]
  342L-7.5 Record maintenance. The department, pursuant to chapter 91, shall adopt requirements for the establishment and maintenance of records relating to underground storage tanks and tank systems. [L 1992, c 259, pt of 1]
 342L-7 Authority to obtain information and data, inspect, and require and conduct activities; penalties for disclosure. (a) For the purpose of developing or assisting in the development of any rule, conducting any study, taking any release response action, or enforcing this chapter, any owner or operator of an underground storage tank or tank system, and any person involved in response actions relating to any releases from these tanks or tank systems, upon the request of any duly authorized representative of the department, shall:  (1) Furnish information relating to the tanks or tank systems, including tank equipment and contents and any response actions relating to releases from the tanks or tank systems;  (2) Conduct monitoring or testing; and  (3) Permit the designated representative at all reasonable times to have access to, and to copy all records relating to the tanks or tank systems.  (b) For the purpose of developing or assisting in the development of any rule, conducting any study, investigating an actual or suspected release, monitoring for compliance or noncompliance with this chapter, any rule or standard adopted pursuant to this chapter, or any permit or variance issued pursuant to this chapter, taking release response action, or enforcing this chapter, any duly authorized representative of the department may:  (1) Enter at reasonable times any establishment or place;  (2) Inspect and obtain samples from any person of any regulated substances contained in any underground storage tank or tank system;  (3) Conduct monitoring or testing of the tanks or tank systems, associated equipment, contents, or soils, air, surface water, or groundwater; and  (4) Take release response action. Each inspection shall be commenced and completed with reasonable promptness.  (c) Any records, reports, or information obtained from any persons under this section shall be available to the public except as provided in this subsection. Upon a showing satisfactory to the department that public disclosure of records, reports, or information, or a particular part thereof, to which the department representative has access under this section would divulge information entitled to protection under chapter 92F, the department shall consider the information or a particular portion thereof to be confidential. No such confidential information secured pursuant to this section by any official or employee of the department within the scope and [course] of the official's or employee's employment in the prevention, control, or abatement of releases from underground storage tanks or tank systems shall be disclosed by the official or employee with the following exception: the document or information may be disclosed to officers, employees, or authorized representatives of the State or of the United States, including local government entities, who have been charged with carrying out this chapter or Subtitle I of the federal Resource Conservation and Recovery Act, or when relevant in any proceeding under this chapter.  (d) Any representative of the department, acquiring confidential information pursuant to this section, who intentionally or knowingly divulges or discloses information, upon conviction, shall be fined not more than $5,000 or be imprisoned for a period not to exceed one year, or both, unless the disclosure is authorized in this chapter or ordered by a court or at an administrative hearing regarding an alleged violation of this chapter or of any rule or standard adopted pursuant to this chapter. [L 1989, c 212, pt of 6; am L 1992, c 259, 9] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342L-8 Enforcement. (a) If the director determines that any person has violated or is violating this chapter, any rule adopted pursuant to this chapter, or any term or condition of a permit or variance issued pursuant to this chapter, the director may do one or more of the following:  (1) Issue an order assessing an administrative penalty for any past or current violation;  (2) Issue an order requiring compliance immediately or within a specified time; or  (3) Commence a civil action in the circuit environmental court in the circuit in which the violation occurred or the person resides or maintains the person's principal place of business for appropriate relief, including a temporary, preliminary, or permanent injunction, the imposition and collection of civil penalties, or other relief.  (b) Any order issued pursuant to this section may include a suspension, modification, or revocation of any permit or variance issued under this chapter, and shall state with reasonable specificity the nature of the violation. Any administrative penalties assessed in the order shall be in accordance with section 342L-11.  (c) Any order issued under this chapter shall become final, unless not later than twenty days after the order is served, the person or persons named therein request in writing a hearing before the director. Any penalty imposed under this chapter shall become due and payable twenty days after the order is served unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on any penalty imposed under this chapter, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Upon request for a hearing, the director shall require that the alleged violator or violators appear before the director for a hearing at a time and place specified in the notice and answer the charges complained of.  (d) Any hearing conducted under this section shall be conducted as a contested case under chapter 91. If, after a hearing held pursuant to this section, the director finds that one or more violations have occurred or are occurring, the director shall affirm or modify any penalties imposed or shall modify or affirm the order previously issued or issue an appropriate order or orders for the prevention, abatement, or control of the violation or release involved, or for the taking of such other corrective action as may be appropriate. If, after a hearing on an order, the director finds that no violation has occurred or is occurring, the director shall rescind the order. Any order issued after a hearing may prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the violation or release.  (e) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the director may institute a civil action in the name of the State to collect the administrative penalty.  In any proceeding to collect the administrative penalty imposed, the director need only show that:  (1) Notice was given;  (2) A hearing was held or the time granted for requesting a hearing expired without a request for a hearing;  (3) The administrative penalty was imposed; and  (4) The penalty remains unpaid.  (f) In connection with any hearing held pursuant to this section, the director shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties.  (g) All penalties shall be deposited to the credit of the leaking underground storage tank fund established in section 342L-51. [L 1989, c 212, pt of 6; am L 1990, c 298, 14; am L 1992, c 259, 10; am L 1995, c 180, 30; am L 2014, c 218, 8]
 342L-9 Emergency powers; procedures. (a) Notwithstanding any other law to the contrary, if the governor or the director determines that an imminent peril to human health and safety or the environment is or will be caused by:  (1) A release;  (2) Any action taken in response to a release from an underground storage tank or tank system; or  (3) The installation or operation of an underground storage tank or tank system; that requires immediate action, the governor or the director, without a public hearing, may order any person causing or contributing to the peril to immediately reduce or stop the release or activity, and may take any and all other actions as may be necessary. The order shall fix a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director.  (b) 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. [L 1989, c 212, pt of 6; am L 1992, c 259, 11; am L 1995, c 201, 5] Cross References  Environmental response law, see chapter 128D.
 REPEALED. L 1996, c 82, 5. Cross References  For present provisions, see  342J-51 to 56.
  342P-1 Definitions. As used in this chapter, unless the context otherwise requires:  "Abatement" means any measure or set of measures designed to permanently eliminate asbestos or lead-based paint hazards, including but not limited to removal, enclosure, encapsulation, or disposal.  "Asbestos" means the asbestiform varieties of serpentine (chrysotile), riebeckite (crocidolite), cummingtonite-grunerite (amosite), anthophyllite, actinolite, and tremolite.  "Complaint" means any written charge filed with or by the department that a person is violating any provision of this chapter or any rule or order adopted or issued pursuant to this chapter.  "Department" means the department of health.  "Director" means the director of health or a duly authorized agent, officer, or inspector.  "Emission" means the act of releasing or discharging asbestos into the ambient air from any source.  "Facility" means any institutional, commercial, public, private, or industrial structure, installation or building.  "Party" means each person or agency named as a party or properly entitled to be a party in any court or agency proceeding.  "Person" means any individual, partnership, firm, association, public or private corporation, federal agency, the State or any of its political subdivisions, trust, estate, or any other legal entity.  "Renovation" means altering in any way one or more facilities or structural components of a facility.  "Repair" means the restoration of asbestos-containing material that has been damaged to seal exposed areas where asbestos fibers may be released, including the repair of enclosures around asbestos-containing materials. The term, as it relates to the repair of previously encapsulated asbestos-containing materials, includes filling damaged areas with asbestos substitute and re-encapsulating.  "Variance" means the act of deviating from the requirements of rules adopted under this chapter or a license granted by the director to deviate from these rules. [L 1991, c 219, pt of 1; am L 1998, c 242, 4] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
  342P-2  Administration. The department shall administer this chapter through the director. The director may delegate to any person such power and authority vested in the director by this chapter as the director deems reasonable and proper for the effective administration of this chapter, except the power to make rules. [L 1991, c 219, pt of 1]
  342P-20 Civil penalties. (a) Any person who violates this chapter, any rule adopted by the department under this chapter, or any condition in a permit or variance issued under this chapter, shall be fined not more than $10,000 for each separate offense. Each day of each violation shall constitute a separate offense. Any action taken in environmental court to impose or collect the penalty provided for in this subsection shall be considered a civil action.  (b) Any person who denies, obstructs, or hampers the entrance or inspection by any duly authorized officer or employee of the department of any building or place that the officer or employee is authorized to enter and inspect, shall be fined not more than $5,000. Any action taken in environmental court to impose or collect the penalty provided for in this subsection shall be considered a civil action. [L 1991, c 219, pt of 1; am L 1995, c 180, 39; am L 1998, c 242, 9; am L 2014, c 218, 8]
 342P-21 Administrative penalties. (a) In addition to any other administrative or judicial remedy provided by this chapter or rules adopted under this chapter, the director may impose by order the penalties specified in section 342P-20.  (b) Factors to be considered in imposing an administrative penalty shall include:  (1) The nature and history of the violation and any prior violations;  (2) The economic benefit, if any, resulting from the violation;  (3) The opportunity, difficulty, and history of corrective action;  (4) Good faith efforts to comply; and  (5) Any other matters that justice may require.  (c) It shall be presumed that the violator's economic and financial conditions allow payment of the penalty; the burden of proof to the contrary shall be on the violator.  (d) In any judicial proceeding to collect the administrative penalty imposed, the director need only show that:  (1) Notice was given;  (2) A hearing was held or the time granted for requesting a hearing expired without a request for a hearing;  (3) The administrative penalty was imposed; and  (4) The penalty remains unpaid. [L 1991, c 219, pt of 1; am L 1995, c 180, 40]
 342P-22  Negligent violations. Any person who negligently violates this chapter or any rule adopted by the department pursuant to this chapter, or any condition in a permit or variance issued under this chapter, shall be fined not less than $2,500 nor more than $25,000 per day for each violation or imprisoned for not more than one year, or both. If a conviction of a person is for a violation committed after a first conviction of the person under this section, punishment shall be a fine of not more than $50,000 per day for each violation or imprisonment of not more than two years, or both. [L 1991, c 219, pt of 1; am L 1998, c 242, 10]
 342P-23  Criminal penalties. Any person who knowingly violates this chapter or any condition in a permit or variance issued under this chapter, shall be fined not less than $5,000 nor more than $50,000 per day for each violation or imprisoned for not more than three years, or both. If a conviction of a person is for a violation committed after a first conviction of the person under this section, the person shall be fined not more than $100,000 per day for each violation or imprisoned for not more than six years, or both. [L 1991, c 219, pt of 1; am L 1998, c 242, 11]
 342P-24  Knowing endangerment. (a) Any person who knowingly violates this chapter or any condition in a permit or variance issued under this chapter, and who knows at that time that the violation places another person in imminent danger of death or serious bodily injury, upon conviction, shall be fined not more than $250,000 or imprisoned for not more than fifteen years, or both.  (b) A person that is an organization, upon conviction of violating this section, shall be fined not more than $1,000,000.  (c) For the purpose of this section, in determining whether a defendant who is an individual knew that the individual's conduct placed another person in imminent danger of death or serious bodily injury:  (1) The person shall be responsible only for actual awareness or actual belief that the person possessed; and  (2) Knowledge possessed by a person other than the defendant but not by the defendant, may not be attributed to the defendant, except that in proving the defendant's possession of actual knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself or herself from relevant information.  (d) It shall be an affirmative defense to prosecution that the conduct charged was consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of:  (1) An occupation, a business, or a profession; or  (2) Medical treatment or medical or scientific experimentation conducted by professionally-approved methods and the other person had been made aware of the risks involved prior to giving consent; and such defense may be established under this section by a preponderance of the evidence.  (e) As used in this section:  "Organization" means a legal entity, other than a government, established or organized for any purpose. The term includes a corporation, company, association, firm, partnership, joint stock company, foundation, institution, trust, society, union, or any other association of persons.  "Serious bodily injury" means bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. [L 1991, c 219, pt of 1; am L 1998, c 242, 12]
  342P-25  False statements. (a) Any person who knowingly makes a false material statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter or who knowingly falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained under this chapter, shall be guilty of a misdemeanor.  (b) A person that is an organization, upon conviction of violating this section, shall be fined not more than $20,000. [L 1991, c 219, pt of 1]
 342P-26 Injunctive and other relief. The director may institute a civil action for injunctive and other relief in any environmental court of competent jurisdiction to prevent the violation of this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter, without the necessity of a prior revocation of the permit or variance, to impose and collect civil penalties, to collect administrative penalties, or to obtain other relief. The environmental court may grant relief in accordance with the Hawaii rules of civil procedure. L 1991, c 219, pt of 1; am L 1995, c 180, 41; am L 2014, c 218, 8 Rules of Court  Injunctions, see HRCP rule 65.
  342P-27  Appeal. If any party is aggrieved by the decision of the director, the party may appeal in the manner provided in chapter 91 to the circuit environmental court of the circuit in which the party resides or has the party's principal place of business or in which the action in question occurred; provided that the operation of a cease and desist order shall not be stayed on appeal unless specifically ordered by [an] environmental court of competent jurisdiction. [L 1991, c 219, pt of 1; am L 2014, c 218, 8]
 342P-28 Fees. The director may establish reasonable fees for the issuance of notifications, certificates, licenses, permits, and variances to cover the cost of issuance thereof, and for the implementation and enforcement of the terms and conditions of permits and variances not including court costs or other costs associated with any formal enforcement action. The fees shall be deposited to the credit of the asbestos and lead abatement special fund or noise, radiation, and indoor air quality special fund. [L 1991, c 219, pt of 1; am L 1998, c 242, 13 and c 311, 20; am L 1999, c 18, 7] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342P-29 Public records; confidential information; penalties. Asbestos or lead abatement applications and reports on emissions or lead violations submitted to the department shall be made available for inspection by the public during established office hours unless the reports contain information of a confidential nature concerning secret processes or methods of manufacture. Any officer, employee, or agent of the department, acquiring confidential information from the inspection authorized by section 342P-4, who divulges information except as authorized in this chapter or except as ordered by a court or at an administrative hearing regarding an alleged violation of this chapter or any rule or standard adopted pursuant to this chapter, shall be fined not more than $1,000. [L 1991, c 219, pt of 1; am L 1998, c 242, 14] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342P-3  Duties, rules, powers, appointment of hearings officers. (a) In addition to any other power or duty prescribed by law and in this chapter, the director shall provide for the review of asbestos and lead abatement plans and the inspection of abatement projects within the State.  (b) The director may make, amend, and repeal state rules controlling and prohibiting asbestos pollution and lead-based paint hazards and regulating asbestos and lead abatement. All rules shall be adopted pursuant to chapter 91. Any person heard at a public hearing to adopt these rules shall be given written notice of the action taken by the department with respect to the same.  (c) The director, without regard to chapter 76, may appoint hearings officers to conduct public participation activities, including public hearings and public informational meetings. [L 1991, c 219, pt of 1; am L 1998, c 242, 5; am L 2000, c 253, 150]
  342P-30  Other action not barred. No existing civil or criminal remedy for any wrongful action that is in violation of any statute or any rule of the department or ordinance of any county, shall be excluded or impaired by this chapter. [L 1991, c 219, pt of 1]
 342P-31 Enforcement by state and county authorities. All state and county health authorities and police officers shall enforce this chapter and the rules, orders, permits, and variances of the department. [L 1991, c 219, pt of 1; am L 1998, c 242, 15]
  342P-32  Other powers of department not affected. The powers, duties, and functions vested in the department under this chapter shall not be construed to affect in any manner the powers, duties, and functions vested in the department under any other law. [L 1991, c 219, pt of 1]
 342P-33  Effect of laws, ordinances, and rules. (a) All laws, ordinances, and rules inconsistent with this chapter shall be void and of no effect.  (b) Any county may adopt ordinances and rules governing any matter relating to asbestos or lead abatement that are not governed by a rule of the department adopted pursuant to this chapter; provided that any county ordinance or rule relating to asbestos or lead abatement shall be void and of no effect as to any matter regulated by a rule of the department upon the adoption thereof. [L 1991, c 219, pt of 1; am L 1998, c 242, 16]
  342P-34  Priority in courts. All actions brought pursuant to this chapter, the rules adopted under this chapter, or the conditions of a permit issued under this chapter, at the discretion of the court, shall receive priority in the courts of the State. [L 1991, c 219, pt of 1] Note  The amendment made by L 2014, c 218, 8 is not included in this section.
 342P-4  Inspection of premises. The director, in accordance with any law, may enter and inspect any building or place to investigate an actual or suspected source, use, or presence of asbestos or lead to ascertain compliance or noncompliance with this chapter, any rule or standard adopted by the department pursuant to this chapter, any permit or other approval granted by the department pursuant to this chapter, or any order issued by the department pursuant to this chapter, and to make reasonable tests in connection therewith. Nothing in this section shall be construed to permit a warrantless search of a single family residence, unless the owner or occupier of the dwelling has consented to such a warrantless search.  No confidential information secured pursuant to this section by any official or employee of the department within the scope and course of the official TMs or employee TMs employment in the prevention, control, or abatement of asbestos or lead, shall be disclosed by the official or employee except as it relates directly to asbestos or lead and then only in connection with the official TMs or employee TMs official duties and within the scope and course of the official TMs or employee TMs employment. [L 1991, c 219, pt of 1; am L 1998, c 242, 6]
Note Part heading amended by L 1998, c 242, pt of 3.  342P-40 Prohibition. No person, including any public body, shall engage in any activity that causes a violation of this chapter. [L 1991, c 219, pt of 1; am L 1998, c 242, pt of 3]
  342P-41 Powers and duties; specific. The director may:  (1) Establish emission and lead hazard exposure standards for the State as a whole or for any part thereof, including an indoor nonoccupational exposure standard;  (2) Establish a model accreditation program as recommended by the United States Environmental Protection Agency for training for provider certification and accreditation requirements;  (3) Establish work practice standards and notification requirements for the demolition and renovation of facilities containing asbestos and for lead-based abatement activities in dwellings and child-occupied facilities; and  (4) Establish procedures for issuance of reasonable fees for notifications, certifications, and licenses. [L 1991, c 219, pt of 1; am L 1998, c 242, pt of 3]
 342P-42 Recordkeeping and monitoring requirements. The director may require the owner or operator of any asbestos or lead abatement activity to:  (1) Establish and maintain such records;  (2) Make such reports;  (3) Install, use, and maintain such monitoring equipment or methods;  (4) Monitor hazards;  (5) Sample such emissions; and  (6) Provide such other information; as the department may require. [L 1991, c 219, pt of 1; am L 1998, c 242, pt of 3]
  342P-43 Complaints; hearings; appointment of masters. The director may:  (1) Receive or initiate complaints on asbestos pollution or lead hazard violations, hold hearings in connection with asbestos pollution or lead hazards violations, and institute legal proceedings in the name of the State for the prevention, control, or abatement of asbestos pollution or lead hazards; and  (2) Appoint a master or masters to conduct investigations and hearings. [L 1991, c 219, pt of 1; am L 1998, c 242, pt of 3]
  342P-44 Research, education, and training programs. The director may:  (1) Conduct and supervise research programs for the purpose of determining the causes, effects, hazards, or means to monitor or abate sources of asbestos pollution or lead hazards;  (2) With the approval of the governor, cooperate with, and receive money from, the federal government, or any political subdivision of the State, or private sources, for the study and control of asbestos pollution or lead hazards; and  (3) Conduct and supervise statewide educational and training programs on asbestos pollution or lead hazards prevention, control, and abatement, including the preparation and distribution of information relating to asbestos pollution or lead hazards. [L 1991, c 219, pt of 1; am L 1998, c 242, pt of 3]
  342P-5.5 Variances. (a) Every application for a variance shall be made on a form furnished by the department and shall be accompanied by a complete and detailed description of present conditions, how present conditions do not conform to applicable standards, and any other information that the department may require by rule.  (b) Each application for a variance shall be reviewed by the department. Additional information may be requested by the department for review.  (c) Whenever an application for a variance is approved, the department shall issue a variance authorizing the deviation from established asbestos or lead-based paint hazards standards. No variance shall be granted by the department unless the application and the supporting information clearly show that:  (1) The continuation of the function or operation involved in the deviation from asbestos or lead standards occurring or proposed to occur by the granting of the variance is in the public interest;  (2) The authorized variance occurring or proposed to occur does not substantially endanger human health or safety; and  (3) Compliance with the applicable standards or rules from which a variance is sought would produce serious hardship without equal or greater benefits to the public.  (d) Any variance or renewal of a variance shall be granted within the requirements of this section, and for time periods consistent with the reasons given within the following limitations:  (1) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, control, or abatement of the asbestos or lead involved, it shall be only until the necessary means for prevention, control, or abatement becomes practicable. The variance shall be granted subject to the taking of any substitute or alternate measures that the department may prescribe. No renewal of a variance granted under this subsection shall be allowed without a thorough review of known and available means of preventing, controlling, or abating the asbestos or lead hazards involved;  (2) The director may issue a variance for a period not exceeding six months; and  (3) Every variance granted under this section shall include conditions requiring the grantee to perform air or dust sampling and report the results of the sampling to the department.  (e) Any variance granted pursuant to this section may be renewed for periods not exceeding six months on terms and conditions which would be appropriate on initial granting of a variance; provided that the applicant for renewal has met all of the conditions specified in the immediately preceding variance. No renewal shall be granted without an application. Any renewal application shall be made at least sixty days prior to the expiration of the variance. The director shall act on an application for renewal within sixty days of the receipt of the application.  (f) The director may allow a hearing in accordance with chapter 91 in relation to an application for the issuance, renewal, or modification of a variance.  (g) No variance shall be construed to prevent or limit the application of any emergency provision or procedure provided by law.  (h) Any application for a variance may be subject to public participation. The contents of the public notice for a variance application shall include at least:  (1) The name, address, and phone number of the agency issuing the public notice;  (2) The name and address of the applicant;  (3) A brief description of the applicant TMs activities or operations which result in asbestos or lead hazards, or other activity described in the variance application;  (4) A short description of the location of each asbestos or lead-based paint hazard indicating whether the hazard is new or existing;  (5) A brief description of the public participation procedures, including the comment period, which shall be for a period of not less than thirty days following the date of the public notice, and other means by which interested persons may comment on the variance application and the department TMs proposed action; and  (6) The address and phone number of the state agency at which interested persons may obtain further information and may inspect a copy of the variance application and supporting and related documents. [L 1998, c 242, pt of 1 and c 311, pt of 18]
 342P-5  Enforcement; education. (a) If the director determines that any person has violated or is in violation of this chapter, any rule adopted pursuant to this chapter, any accepted schedule, any order issued under this section, or any condition of a permit or variance issued pursuant to this chapter, the director:  (1) Shall cause written notice to be served upon the alleged violator or violators. The notice shall specify the alleged violation, may contain educational information necessary in performing abatement activities, and may contain an order specifying a reasonable time during which the person shall be required to take any measures that may be necessary to correct the violation, and to give periodic progress reports;  (2) May require the alleged violator or violators to appear before the director for a hearing at a time and place specified in the notice to answer the charges complained of; and  (3) May impose penalties as provided in section 342P-21 by sending a notice in writing, either by certified mail or by personal service, to the alleged violator or violators describing the violation.  (b) If the director determines that any person is continuing to violate this chapter, any rule adopted pursuant to this chapter, any accepted schedule, any order issued under this section, or any condition of a permit or variance issued pursuant to this chapter, after having been served notice of the violation, the director:  (1) Shall cause written notice to be served upon the alleged violator or violators. The notice shall specify the alleged violation and shall contain an order requiring the person to submit a written schedule within thirty days specifying the measures to be taken and the time within which the measures will be taken to bring the person into compliance with this chapter, any rule adopted pursuant to this chapter, or the conditions of any permit issued pursuant to this chapter;  (2) Shall accept or modify the submitted schedule within sixty days of receipt of the schedule. Any schedule not acted upon after thirty days of receipt by the director shall be deemed accepted by the director;  (3) Shall issue to the alleged violator or violators a cease and desist order against the activities that violate this chapter, any rule adopted pursuant to this chapter, or any condition of a permit or variance issued pursuant to this chapter, if that person does not submit a written schedule to the director within thirty days. This order shall remain in effect until the director accepts the written schedule; or  (4) May impose penalties as provided in section 342P-21 by sending a notice in writing, either by certified mail or by personal service, to the alleged violator or violators describing the violation.  (c) If the director determines that the person has violated an accepted schedule, an order issued under this section, any rule adopted pursuant to this chapter, any condition of a permit or variance issued pursuant to this chapter, or has continued to violate this chapter, the director shall impose penalties by sending a notice in writing, either by certified mail or by personal service, to that person, describing the nonadherence or violation with reasonable particularity.  (d) Any order issued under this chapter shall become final, unless, not later than twenty days after the notice of order is served, the person or persons named therein request in writing a hearing before the director. Any penalty imposed under this chapter shall become due and payable twenty days after the notice of penalty is served, unless the person or persons named therein request in writing a hearing before the director. Whenever a hearing is requested on any penalty imposed under this chapter, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. Upon request for a hearing, the director shall require the alleged violator or violators to appear before the director for a hearing at a time and place specified in the notice to answer the charges complained of.  (e) Any hearing conducted under this section shall be conducted as a contested case in accordance with chapter 91. If, after a hearing held pursuant to this section, the director finds that a violation or violations have occurred, the director shall affirm or modify any penalties imposed, modify or affirm the order previously issued, or issue an appropriate order or orders for the prevention, abatement, or control of the violation or discharges involved or the taking of such other corrective action as may be appropriate. If, after a hearing on an order or penalty contained in a notice, the director finds that no violation has occurred or is occurring, the director shall rescind the order or penalty. Any order issued after a hearing may prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the violation or discharges.  (f) If the amount of any administrative penalty is not paid to the department within thirty days after it becomes due and payable, the director may institute a civil action in the name of the State to collect the administrative penalty, which shall be a government realization.  (g) In connection with any hearing held pursuant to this section, the director shall have the power to subpoena the attendance of witnesses and the production of evidence on behalf of all parties. [L 1991, c 219, pt of 1; am L 1995, c 180, 38; am L 1998, c 242, 7]
 342P-6  Emergency powers; procedures. (a) Notwithstanding any other law to the contrary, if the governor or the director determines that an imminent peril to the public health and safety is or will be caused by an emission of asbestos or the presence of lead hazards that requires immediate action, the governor or the director, without a public hearing, may order any person causing or contributing to the emission or lead hazards to immediately reduce or stop the emission or creating the lead hazard, and may take any and all other actions as may be necessary. The order shall fix a place and time, not later than twenty-four hours thereafter, for a hearing to be held before the director.  (b) Nothing in this section shall be construed to limit any power that the governor or any other officer may have to declare an emergency or to act on the basis of such a declaration, if the power is conferred by statute or constitutional provision or inheres in the office. [L 1991, c 219, pt of 1; am L 1995, c 201, 7; am L 1998, c 242, 8]
  342P-7 Noise, radiation, and indoor air quality special fund; established. (a) There is established within the department of health a noise, radiation, and indoor air quality special fund into which shall be deposited all moneys collected from fees for permits, licenses, inspections, certificates, notifications, variances, investigations, and review, pursuant to sections 342F-14, 342P-28, 466J-4, and 466J-5.  (b) Moneys in the fund shall be expended by the department to:  (1) Partially fund the operating costs of the program mandated activities and functions;  (2) Fund statewide education, demonstration, and outreach programs;  (3) Provide training opportunities to ensure the maintenance of professional competence among staff and administrators; and  (4) Plan for future growth and expansion to meet emerging needs. [L 1998, c 311, pt of 18]
  342P-8 Asbestos and lead abatement special fund. (a) There is established within the department of health an asbestos and lead abatement special fund into which shall be deposited all moneys collected from fees for permits, licenses, inspections, certificates, notifications, variances, investigations, and reviews.  (b) Moneys in the asbestos and lead abatement special fund shall be expended by the department to:  (1) Partially fund the operating costs of the asbestos and lead abatement program's mandated activities and functions;  (2) Fund statewide education, demonstration, and outreach programs;  (3) Provide for the accreditation of training programs;  (4) Provide training opportunities to ensure the maintenance of professional competence among staff and administrators; and  (5) Plan for future growth and expansion to meet emerging needs. [L 1998, c 242, pt of 1]
 343-1 Findings and purpose. The legislature finds that the quality of humanity's environment is critical to humanity's well being, that humanity's activities have broad and profound effects upon the interrelations of all components of the environment, and that an environmental review process will integrate the review of environmental concerns with existing planning processes of the State and counties and alert decision makers to significant environmental effects which may result from the implementation of certain actions. The legislature further finds that the process of reviewing environmental effects is desirable because environmental consciousness is enhanced, cooperation and coordination are encouraged, and public participation during the review process benefits all parties involved and society as a whole.  It is the purpose of this chapter to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations. [L 1979, c 197, 1(1); am L 1983, c 140, 4] Case Notes  Cited: 134 H. 86 (App.), 332 P.3d 688 (2014).
  343-2 Definitions. As used in this chapter unless the context otherwise requires:  "Acceptance" means a formal determination that the document required to be filed pursuant to section 343-5 fulfills the definition of an environmental impact statement, adequately describes identifiable environmental impacts, and satisfactorily responds to comments received during the review of the statement.  "Action" means any program or project to be initiated by any agency or applicant.  "Agency" means any department, office, board, or commission of the state or county government which is a part of the executive branch of that government.  "Applicant" means any person who, pursuant to statute, ordinance, or rule, officially requests approval for a proposed action.  "Approval" means a discretionary consent required from an agency prior to actual implementation of an action.  "Council" means the environmental advisory council.  "Director" means the director of the office of planning and sustainable development.  "Discretionary consent" means a consent, sanction, or recommendation from an agency for which judgment and free will may be exercised by the issuing agency, as distinguished from a ministerial consent.  "Environmental assessment" means a written evaluation to determine whether an action may have a significant effect.  "Environmental impact statement" or "statement" means an informational document prepared in compliance with the rules adopted under section 343-6 and which discloses the environmental effects of a proposed action, effects of a proposed action on the economic welfare, social welfare, and cultural practices of the community and State, effects of the economic activities arising out of the proposed action, measures proposed to minimize adverse effects, and alternatives to the action and their environmental effects.  The initial statement filed for public review shall be referred to as the draft statement and shall be distinguished from the final statement which is the document that has incorporated the public's comments and the responses to those comments. The final statement is the document that shall be evaluated for acceptability by the respective accepting authority.  "Finding of no significant impact" means a determination based on an environmental assessment that the subject action will not have a significant effect and, therefore, will not require the preparation of an environmental impact statement.  "Helicopter facility" means any area of land or water which is used, or intended for use for the landing or takeoff of helicopters; and any appurtenant areas which are used, or intended for use for helicopter related activities or rights-of-way.  "Office" means the office of planning and sustainable development.  "Person" includes any individual, partnership, firm, association, trust, estate, private corporation, or other legal entity other than an agency.  "Power-generating facility" means:  (1) A new, fossil-fueled, electricity-generating facility, where the electrical output rating of the new equipment exceeds 5.0 megawatts; or  (2) An expansion in generating capacity of an existing, fossil-fueled, electricity-generating facility, where the incremental electrical output rating of the new equipment exceeds 5.0 megawatts.  "Significant effect" means the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State.  "Wastewater treatment unit" means any plant or facility used in the treatment of wastewater. [L 1974, c 246, pt of 1; am and ren L 1979, c 197, 1(2); am L 1983, c 140, 5; am L 1986, c 186, 1; am L 1987, c 187, 1 and c 325, 2; am L 1996, c 61, 1; am L 2000, c 50, 2; am L 2004, c 55, 2; am L 2005, c 130, 2; am L 2008, c 207, 3; am L 2016, c 27, 4; am L 2021, c 152, 12 and c 153, 9] Attorney General Opinions  "Action" includes a subdivision proposal. Att. Gen. Op. 75-14.  "Action" includes issuance of building permits. Att. Gen. Op. 75-15. Law Journals and Reviews  Determining the Expiration Date of an Environmental Impact Statement: When to Supplement a Stale EIS in Hawai`i. 35 UH L. Rev. 249 (2013). Case Notes  Sufficiency of an environmental impact statement. 59 H. 156, 577 P.2d 1116.  Sufficiency of an environmental impact statement is a question of law. 81 H. 171, 914 P.2d 1364.  The proper inquiry for determining the necessity of an environmental impact statement (EIS) based on the language of 343-5(c) is whether the proposed action will "likely" have a significant effect on the environment; as defined in this section, "significant effect" includes irrevocable commitment of natural resources; where the burning of thousands of gallons of fuel and the withdrawal of millions of gallons of groundwater on a daily basis would "likely" cause such irrevocable commitment, an EIS was required pursuant to both the common meaning of "may" and the statutory definition of "significant effect". 106 H. 270, 103 P.3d 939.  Where record in the case showed no substantive change in the project, nor any evidence that the subdivision application proposed "any use within a shoreline area as defined in 205A-41", as required in 343-5(a)(3), thereby making the subdivision application an "action" under this section that required a supplemental environmental impact statement, once the environmental impact statement had been accepted, no other statement for the proposed project was required under 343-5(g). 120 H. 457 (App.), 209 P.3d 1271.  Cited: 134 H. 86 (App.), 332 P.3d 688 (2014).
 343-3 Public records and notice. (a) All statements, environmental assessments, and other documents prepared under this chapter shall be made available for inspection by the public during established office hours.  (b) The office shall inform the public of notices filed by agencies of the availability of environmental assessments for review and comments, of determinations that statements are required or not required, of the availability of statements for review and comments, and of the acceptance or nonacceptance of statements.  (c) The office shall inform the public of:  (1) A public comment process or public hearing if a federal agency provides for the public comment process or public hearing to process a habitat conservation plan, safe harbor agreement, or incidental take license pursuant to the federal Endangered Species Act;  (2) A proposed habitat conservation plan or proposed safe harbor agreement, and availability for inspection of the proposed agreement, plan, and application to enter into a planning process for the preparation and implementation of the habitat conservation plan for public review and comment;  (3) A proposed incidental take license as part of a habitat conservation plan or safe harbor agreement; and  (4) An application for the registration of land by accretion pursuant to section 501-33 or 669-1(e) for any land accreted along the ocean.  (d) The office shall inform the public by the publication of a periodic bulletin to be available to persons requesting this information. The bulletin shall be available through the office and public libraries. [L 1974, c 246, pt of 1; ren L 1979, c 197, 1(3); am L 1983, c 140, 6; am L 1992, c 241, 1; am L 1997, c 380, 8; am L 1998, c 237, 7; am L 2003, c 73, 3] Case Notes  Where there was no evidence that the city department of planning and permitting filed a notice with the office of environmental quality control pursuant to HAR 11-200-11.1 of its determination that a supplemental environmental impact statement was not required, there was no date from which to measure the thirty day limitation prescribed by 343-7(b) and 343-7(b) was thus inapplicable; in addition, given the plain and unambiguous language of 343-7 and this section, coupled with the related administrative rules, actual knowledge cannot be substituted for the public notice requirement. 123 H. 150, 231 P.3d 423 (2010).
 343-4 REPEALED. L 1983, c 140, 7.
  343-5.5 Exception to applicability of chapter. (a) Notwithstanding any other law to the contrary, for any primary action that requires a permit or approval that is not subject to a discretionary consent and that involves a secondary action that is ancillary and limited to the installation, improvement, renovation, construction, or development of infrastructure within an existing public right-of-way or highway, that secondary action shall be exempt from this chapter; provided that the applicant for the primary action shall submit documentation from the appropriate agency confirming that no further discretionary approvals are required.  (b) As used in this section:  "Discretionary consent" means:  (1) An action as defined in section 343-2; or  (2) An approval from a decision-making authority in an agency, which approval is subject to a public hearing.  "Infrastructure" includes waterlines and water facilities, wastewater lines and wastewater facilities, gas lines and gas facilities, drainage facilities, electrical, communications, telephone, and cable television utilities, and highway, roadway, and driveway improvements.  "Primary action" means an action outside of the highway or public right-of-way that is on private property.  "Secondary action" means an action involving infrastructure within the highway or public right-of-way. [L 2012, c 312, 1]
 343-5 Applicability and requirements. (a) Except as otherwise provided, an environmental assessment shall be required for actions that:  (1) Propose the use of state or county lands or the use of state or county funds, other than funds to be used for feasibility or planning studies for possible future programs or projects that the agency has not approved, adopted, or funded, or funds to be used for the acquisition of unimproved real property; provided that the agency shall consider environmental factors and available alternatives in its feasibility or planning studies; provided further that an environmental assessment for proposed uses under section 205-2(d)(11) or 205-4.5(a)(13) shall only be required pursuant to section 205-5(b);  (2) Propose any use within any land classified as a conservation district by the state land use commission under chapter 205;  (3) Propose any use within a shoreline area as defined in section 205A-41;  (4) Propose any use within any historic site as designated in the National Register or Hawaii Register, as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E;  (5) Propose any use within the Waikiki area of Oahu, the boundaries of which are delineated in the land use ordinance as amended, establishing the "Waikiki Special District";  (6) Propose any amendments to existing county general plans where the amendment would result in designations other than agriculture, conservation, or preservation, except actions proposing any new county general plan or amendments to any existing county general plan initiated by a county;  (7) Propose any reclassification of any land classified as a conservation district by the state land use commission under chapter 205;  (8) Propose the construction of new or the expansion or modification of existing helicopter facilities within the State, that by way of their activities, may affect:  (A) Any land classified as a conservation district by the state land use commission under chapter 205;  (B) A shoreline area as defined in section 205A-41; or  (C) Any historic site as designated in the National Register or Hawaii Register, as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E; or until the statewide historic places inventory is completed, any historic site that is found by a field reconnaissance of the area affected by the helicopter facility and is under consideration for placement on the National Register or the Hawaii Register of Historic Places; and  (9) Propose any:  (A) Wastewater treatment unit, except an individual wastewater system or a wastewater treatment unit serving fewer than fifty single-family dwellings or the equivalent;  (B) Waste-to-energy facility;  (C) Landfill;  (D) Oil refinery; or  (E) Power-generating facility.  (b) Whenever an agency proposes an action in subsection (a), other than feasibility or planning studies for possible future programs or projects that the agency has not approved, adopted, or funded, or other than the use of state or county funds for the acquisition of unimproved real property that is not a specific type of action declared exempt under section 343-6, the agency shall prepare an environmental assessment for the action at the earliest practicable time to determine whether an environmental impact statement shall be required; provided that if the agency determines, through its judgment and experience, that an environmental impact statement is likely to be required, the agency may choose not to prepare an environmental assessment and instead shall prepare an environmental impact statement that begins with the preparation of an environmental impact statement preparation notice as provided by rules.  (c) For environmental assessments for which a finding of no significant impact is anticipated:  (1) A draft environmental assessment shall be made available for public review and comment for a period of thirty days;  (2) The office shall inform the public of the availability of the draft environmental assessment for public review and comment pursuant to section 343-3;  (3) The agency shall respond in writing to comments received during the review and prepare a final environmental assessment to determine whether an environmental impact statement shall be required;  (4) A statement shall be required if the agency finds that the proposed action may have a significant effect on the environment; and  (5) The agency shall file notice of the determination with the office. When a conflict of interest may exist because the proposing agency and the agency making the determination are the same, the office may review the agency's determination, consult the agency, and advise the agency of potential conflicts, to comply with this section. The office shall publish the final determination for the public's information pursuant to section 343-3.  The draft and final statements, if required, shall be prepared by the agency and submitted to the office. The draft statement shall be made available for public review and comment through the office for a period of forty-five days. The office shall inform the public of the availability of the draft statement for public review and comment pursuant to section 343-3. The agency shall respond in writing to comments received during the review and prepare a final statement.  The office, when requested by the agency, may make a recommendation as to the acceptability of the final statement.  (d) The final authority to accept a final statement shall rest with:  (1) The governor, or the governor's authorized representative, whenever an action proposes the use of state lands or the use of state funds, or whenever a state agency proposes an action within the categories in subsection (a); or  (2) The mayor, or the mayor's authorized representative, of the respective county whenever an action proposes only the use of county lands or county funds.  Acceptance of a required final statement shall be a condition precedent to implementation of the proposed action. Upon acceptance or nonacceptance of the final statement, the governor or mayor, or the governor's or mayor's authorized representative, shall file notice of such determination with the office. The office, in turn, shall publish the determination of acceptance or nonacceptance pursuant to section 343-3.  (e) Whenever an applicant proposes an action specified by subsection (a) that requires approval of an agency and that is not a specific type of action declared exempt under section 343-6, the agency initially receiving and agreeing to process the request for approval shall require the applicant to prepare an environmental assessment of the proposed action at the earliest practicable time to determine whether an environmental impact statement shall be required; provided that if the agency determines, through its judgment and experience, that an environmental impact statement is likely to be required, the agency may authorize the applicant to choose not to prepare an environmental assessment and instead prepare an environmental impact statement that begins with the preparation of an environmental impact statement preparation notice as provided by rules. The final approving agency for the request for approval is not required to be the accepting authority.  For environmental assessments for which a finding of no significant impact is anticipated:  (1) A draft environmental assessment shall be made available for public review and comment for a period of thirty days;  (2) The office shall inform the public of the availability of the draft environmental assessment for public review and comment pursuant to section 343-3; and  (3) The applicant shall respond in writing to comments received during the review and the applicant shall prepare a final environmental assessment to determine whether an environmental impact statement shall be required. A statement shall be required if the agency finds that the proposed action may have a significant effect on the environment. The agency shall file notice of the agency's determination with the office, which, in turn, shall publish the agency's determination for the public's information pursuant to section 343-3.  The draft and final statements, if required, shall be prepared by the applicant, who shall file these statements with the office.  The draft statement shall be made available for public review and comment through the office for a period of forty-five days. The office shall inform the public of the availability of the draft statement for public review and comment pursuant to section 343-3.  The applicant shall respond in writing to comments received during the review and prepare a final statement. The office, when requested by the applicant or agency, may make a recommendation as to the acceptability of the final statement.  The authority to accept a final statement shall rest with the agency initially receiving and agreeing to process the request for approval. The final decision-making body or approving agency for the request for approval is not required to be the accepting authority. The planning department for the county in which the proposed action will occur shall be a permissible accepting authority for the final statement.  Acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of the proposed action. Upon acceptance or nonacceptance of the final statement, the agency shall file notice of the determination with the office. The office, in turn, shall publish the determination of acceptance or nonacceptance of the final statement pursuant to section 343-3.  The agency receiving the request, within thirty days of receipt of the final statement, shall notify the applicant and the office of the acceptance or nonacceptance of the final statement. The final statement shall be deemed to be accepted if the agency fails to accept or not accept the final statement within thirty days after receipt of the final statement; provided that the thirty-day period may be extended at the request of the applicant for a period not to exceed fifteen days.  In any acceptance or nonacceptance, the agency shall provide the applicant with the specific findings and reasons for its determination.  (f) Whenever an applicant requests approval for a proposed action and there is a question as to which of two or more state or county agencies with jurisdiction has the responsibility of determining whether an environmental assessment is required, the office, after consultation with and assistance from the affected state or county agencies, shall determine which agency has the responsibility for determining whether an environmental assessment by the applicant is required, except in situations involving secondary actions under section 343-5.5; provided that in no case shall the office be considered the approving agency.  (g) In preparing an environmental assessment, an agency may consider and, where applicable and appropriate, incorporate by reference, in whole or in part, previous determinations of whether a statement is required and previously accepted statements. The council, by rule, shall establish criteria and procedures for the use of previous determinations and statements.  (h) Whenever an action is subject to both the National Environmental Policy Act of 1969 (Public Law 91-190) and the requirements of this chapter, the office and agencies shall cooperate with federal agencies to the fullest extent possible to reduce duplication between federal and state requirements. Such cooperation, to the fullest extent possible, shall include joint environmental impact statements with concurrent public review and processing at both levels of government. Where federal law has environmental impact statement requirements in addition to but not in conflict with this chapter, the office and agencies shall cooperate in fulfilling these requirements so that one document shall comply with all applicable laws.  (i) A statement that is accepted with respect to a particular action shall satisfy the requirements of this chapter, and no other statement for the proposed action shall be required. [L 1974, c 246, pt of 1; am and ren L 1979, c 197, 1(5), (6); am L 1980, c 22, 1; am L 1983, c 140, 8; gen ch 1985; am L 1987, c 187, 2, c 195, 1, c 283, 23, and c 325, 1; am L 1992, c 241, 2; am L 1996, c 61, 2; am L 2004, c 55, 3; am L 2005, c 130, 3; am L 2006, c 250, 4; am L 2008, c 110, 2 and c 207, 5; am L 2009, c 11, 4; am L 2012, c 172, 2 and c 312, 2; am L 2016, c 27, 5; am L 2021, c 152, 13] Attorney General Opinions  Amendments to county development plans; when environmental assessments required. Att. Gen. Op. 85-30.  Applicable to housing developed under chapter 359G. Att. Gen. Op. 86-13. Law Journals and Reviews  The Moon Court's Environmental Review Jurisprudence: Throwing Open the Courthouse Doors to Beneficial Public Participation. 33 UH L. Rev. 581 (2011).  Determining the Expiration Date of an Environmental Impact Statement: When to Supplement a Stale EIS in Hawai`i. 35 UH L. Rev. 249 (2013).  Poisons in Our Communities: Environmental Justice's Role in Regulating Hawai`i's Biotechnology Industry. 40 UH L. Rev. 155 (2018). Case Notes  Law contemplates consideration of secondary and nonphysical aspects of proposal, including socio-economic consequences. 63 H. 453, 629 P.2d 1134.  Requirements not applicable to project pending when law took effect unless agency requested statement. 63 H. 453, 629 P.2d 1134.  Construction and use of home and underground utilities near Paiko Lagoon wildlife sanctuary. 64 H. 27, 636 P.2d 158.  Environmental assessment required before land use commission can reclassify conservation land to other uses. 65 H. 133, 648 P.2d 702.  Participation by plaintiffs at contested case hearing did not excuse preparation of environmental assessment. 86 H. 66, 947 P.2d 378.  For Hawaiian home lands, the department of Hawaiian home lands is the accepting authority for applicant proposals under subsection (c); because the governor is not involved, there is no conflict with Hawaiian homes commission act. 87 H. 91, 952 P.2d 379.  "State lands" in subsection (a)(1) includes Hawaiian home lands. 87 H. 91, 952 P.2d 379.  In order to achieve the salutary objectives of the Hawaii environmental policy act, and because developer's proposed underpasses had been, from the start, an integral part of the project, developer's proposed construction of two underpasses under highway constituted "use of state lands" within the meaning of subsection (a)(1). 91 H. 94, 979 P.2d 1120.  The proper inquiry for determining the necessity of an environmental impact statement (EIS) based on the language of subsection (c) is whether the proposed action will "likely" have a significant effect on the environment; as defined in 343-2, "significant effect" includes irrevocable commitment of natural resources; where the burning of thousands of gallons of fuel and the withdrawal of millions of gallons of groundwater on a daily basis would "likely" cause such irrevocable commitment, an EIS was required pursuant to both the common meaning of "may" and the statutory definition of "significant effect". 106 H. 270, 103 P.3d 939.  Where department of Hawaiian home lands lease was executed in contravention of subsection (c) inasmuch as the condition precedent--acceptance of a required final environmental impact statement--was not satisfied, the lease was void. 106 H. 270, 103 P.3d 939.  Where all three elements under subsection (c) were present: (1) an applicant proposed an action specified by subsection (a), (2) the action required the approval of an agency, and (3) the action was not exempt under 343-6, the land use commission, as the agency that received the request for approval of the boundary amendment petition, was required by statute to prepare an environmental assessment of the proposed action at the earliest practical time. 109 H. 411, 126 P.3d 1098.  Where the record showed that the department of transportation did not consider whether its facilitation of the Hawaii superferry project would probably have minimal or no significant impacts, both primary and secondary, on the environment, its determination that the improvements to Kahului harbor were exempt from the requirements of this chapter was erroneous as a matter of law; the exemption thus being invalid, the environmental assessment of this section was applicable. 115 H. 299, 167 P.3d 292.  Trial court did not err in determining that there was no "use" of state or county land under subsection (a)(1) where developer's detention basins and drainage line was merely connected and routed through the existing street drainage system and developer's sewage lines were connected to the county's existing sewage lines as neither line would require tunneling or construction beneath state or county lands. 119 H. 90, 194 P.3d 531.  While chapter 150A and the board's microorganism import rules may have vested the board with exclusive authority to approve marine biotechnology firm's proposal to import and grow genetically engineered algae at the State's research and technology park, as the demonstration project constituted an action that proposed the use of state land, this section plainly and unambiguously required the preparation of an environmental assessment before the board could approve firm's application. 118 H. 247 (App.), 188 P.3d 761.  Where record in the case showed no substantive change in the project, nor any evidence that the subdivision application proposed "any use within a shoreline area as defined in 205A-41", as required in subsection (a)(3), thereby making the subdivision application an "action" under 343-2 that required a supplemental environmental impact statement, once the environmental impact statement had been accepted, no other statement for the proposed project was required under subsection (g). 120 H. 457 (App.), 209 P.3d 1271.   Where there were genuine issues of material fact regarding whether the church building project site was included in the National and Hawaii (historic) registers, thus triggering the requirement for an environmental assessment under this section, the circuit court erred in granting summary judgment by finding that only the church structure itself, and not the church building project site, was included in the National and Hawaii registers. 128 H. 455 (App.), 290 P.3d 525 (2012).  Cited: 134 H. 86 (App.), 332 P.3d 688 (2014).
  343-6.5 Waiahole water system; exemption. The purchase of the assets of the Waiahole water system shall be specifically exempt from the requirements of chapter 343. [L 1998, c 111, 4]
 343-6 Rules. (a) After consultation with the affected agencies and the environmental advisory council, the office of planning and sustainable development shall adopt, amend, or repeal necessary rules for the purposes of this chapter in accordance with chapter 91 including but not limited to rules that shall:  (1) Prescribe the procedures whereby a group of proposed actions may be treated by a single environmental assessment or statement;  (2) Establish procedures whereby specific types of actions, because they will probably have minimal or no significant effects on the environment, are declared exempt from the preparation of an environmental assessment;  (3) Prescribe procedures for the preparation of an environmental assessment;  (4) Prescribe the contents of an environmental assessment;  (5) Prescribe procedures for informing the public of determinations that a statement is either required or not required, for informing the public of the availability of draft environmental impact statements for review and comments, and for informing the public of the acceptance or nonacceptance of the final environmental statement;  (6) Prescribe the contents of an environmental impact statement;  (7) Prescribe procedures for the submission, distribution, review, acceptance or nonacceptance, and withdrawal of an environmental impact statement; and  (8) Establish criteria to determine whether an environmental impact statement is acceptable or not.  (b) At least one public hearing shall be held in each county prior to the final adoption, amendment, or repeal of any rule. [L 1974, c 246, pt of 1; am and ren L 1979, c 197, 1(7); am L 1983, c 140, 9; am L 1986, c 186, 2; am L 1987, c 187, 3; am L 2008, c 110, 3; am L 2021, c 152, 14 and c 153, 9] Law Journals and Reviews  Determining the Expiration Date of an Environmental Impact Statement: When to Supplement a Stale EIS in Hawai`i. 35 UH L. Rev. 249 (2013). Case Notes  Project requiring completely new drainage system serving over 300 residences was qualitatively incompatible with both letter and intent of administrative rules implementing subsection (a)(7) which intended to exempt only very minor projects from requirements of this chapter. 86 H. 66, 947 P.2d 378.  Where all three elements under 343-5(c) were present: (1) an applicant proposed an action specified by 343-5(a), (2) the action required the approval of an agency, and (3) the action was not exempt under this section, the land use commission, as the agency that received the request for approval of the boundary amendment petition, was required by statute to prepare an environmental assessment of the proposed action at the earliest practical time. 109 H. 411, 126 P.3d 1098.  The environmental council is expressly granted the power to promulgate rules regarding environmental impact statements, and it clearly contemplates the possibility of changes to an original project that may dictate the need for a supplemental environmental impact statement (SEIS); the rules promulgated to address SEISs, including HAR  11-200-26 and 11-200-27, were within the implied powers reasonably necessary to carry out the powers expressly granted; as the SEIS process was consistent with the Hawaii environmental protection act, the council did not exceed its authority in promulgating rules to guide the SEIS process, including HAR  11-200-26 and 11-200-27. 123 H. 150, 231 P.3d 423 (2010).
  343-7 Limitation of actions. (a) Any judicial proceeding, the subject of which is the lack of assessment required under section 343-5, shall be initiated within one hundred twenty days of the agency's decision to carry out or approve the action, or, if a proposed action is undertaken without a formal determination by the agency that a statement is or is not required, a judicial proceeding shall be instituted within one hundred twenty days after the proposed action is started. The office, any agency responsible for approval of the action, or the applicant shall be adjudged an aggrieved party for the purposes of bringing judicial action under this subsection. Others, by environmental court action, may be adjudged aggrieved.  (b) Any judicial proceeding, the subject of which is the determination that a statement is required for a proposed action, shall be initiated within sixty days after the public has been informed of such determination pursuant to section 343-3. Any judicial proceeding, the subject of which is the determination that a statement is not required for a proposed action, shall be initiated within thirty days after the public has been informed of such determination pursuant to section 343-3. The applicant shall be adjudged an aggrieved party for the purposes of bringing judicial action under this subsection. Others, by environmental court action, may be adjudged aggrieved.  (c) Any judicial proceeding, the subject of which is the acceptance or nonacceptance of an environmental impact statement required under section 343-5, shall be initiated within sixty days after the public has been informed pursuant to section 343-3 of the acceptance or nonacceptance of such statement. Affected agencies and persons who provided written comment to an accepted statement during the designated review period shall be adjudged aggrieved parties for the purpose of bringing judicial action under this subsection; provided that for aggrieved parties, the contestable issues shall be limited to issues identified and discussed in the written comment, and for applicants bringing judicial action under this section on the nonacceptance of a statement, the contestable issues shall be limited to those issues identified by the accepting authority as the basis for nonacceptance of the statement. [L 1974, c 246, pt of 1; am and ren L 1979, c 197, 1(8); am L 1983, c 140, 10; am L 1992, c 241, 3; am L 2014, c 218, 8; am L 2021, c 152, 15] Law Journals and Reviews  The Moon Court's Environmental Review Jurisprudence: Throwing Open the Courthouse Doors to Beneficial Public Participation. 33 UH L. Rev. 581 (2011). Case Notes  Plaintiff's claims that Hawai'i environmental policy act was violated were barred; plaintiff did not submit comment and filed suit more than sixty days after office of environmental quality control informed the public that the state final environmental impact statement had been accepted. 307 F. Supp. 2d 1149.  Court has no jurisdiction over actions initiated after time limit. 64 H. 126, 637 P.2d 776.  Date of commission's decision to grant SMA permit triggered time period for appeal, not date when commission made express determination that no environmental assessment was required for project; plaintiff's challenge to lack of environmental assessment thus timely. 86 H. 66, 947 P.2d 378.  Where the federal construct of a procedural right was not germane to case because this section, the statute at issue, establishes who and under what circumstances the lack of an environmental assessment, may be challenged, and federal cases recognizing this standard were inapposite because they rested on non-analogous statutes, petitioner could not be afforded so-called "procedural standing" under subsection (a). 100 H. 242, 59 P.3d 877.  Where Hawaiian homes commission did not accept the proposal for an environmental impact statement, the subject of the judicial proceeding before the trial court was not the "acceptance" of such statement; intervenors were not required to provide written comments pursuant to subsection (c) as subsection (c) did not apply; intervenor's objections, therefore, were subject to judicial review under subsection (b). 106 H. 270, 103 P.3d 939.  Appellants established standing where they showed threatened injuries under the traditional injury-in-fact test and procedural injuries based on a procedural right test; the threatened injury in fact was due to defendant's decision to go forward with harbor improvements and allow the superferry project to operate at Kahului harbor without conducting an environmental assessment; the procedural injury was based on various interests appellants identified that were threatened due to the violation of their procedural rights under this chapter. 115 H. 299, 167 P.3d 292.  Where this section waived the State's sovereign immunity against actions brought to challenge: (1) the lack of an environmental assessment; (2) the determination that an environmental impact statement is or is not required; and (3) the acceptance of an environmental impact statement, sovereign immunity did not prevent the application of the private attorney general doctrine against the State and the circuit court did not err in relying on the doctrine as a basis for its award of attorney's fees against the State and superferry jointly. 120 H. 181, 202 P.3d 1226.  Although the subdivision application was part of the larger action (i.e., the project), the specific "action" for statute of limitations purposes was the date the subdivision application was approved, as opposed to when the project itself was originally approved; thus, where plaintiffs' initial complaint was filed within 120 days of the department of planning and permitting's approval of the subdivision application, plaintiffs' claims were not barred by this section. 123 H. 150, 231 P.3d 423 (2010).  Where there was no evidence that the city department of planning and permitting filed a notice with the office of environmental quality control pursuant to HAR 11-200-11.1 of its determination that a supplemental environmental impact statement was not required, there was no date from which to measure the thirty day limitation prescribed by subsection (b) and subsection (b) was thus inapplicable; in addition, given the plain and unambiguous language of this section and 343-3, coupled with the related administrative rules, actual knowledge cannot be substituted for the public notice requirement. 123 H. 150, 231 P.3d 423 (2010).  Cited: 134 H. 86 (App.), 332 P.3d 688 (2014).
 343-8 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall 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 declared to be severable. [L 1974, c 246, pt of 1; ren L 1979, c 197, 1(9)]
 REPEALED. L 2001, c 247, 2.
  344-1 Purpose. The purpose of this chapter is to establish a state policy which will encourage productive and enjoyable harmony between people and their environment, promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of humanity, and enrich the understanding of the ecological systems and natural resources important to the people of Hawaii. [L 1974, c 247, pt of 1; gen ch 1993]
  344-2 Definitions. As used in this chapter unless the context otherwise requires:  "Agency" means any department, office, board, or commission of the State or county government that is a part of the executive branch of that government.  "Environment" means the complex of physical and biological conditions that influence human well-being, including land, air, water, minerals, flora, fauna, energy, noise, and places of historic or aesthetic significance. [L 1974, c 247, pt of 1] Revision Note  Numeric designations deleted.
  344-3 Environmental policy. It shall be the policy of the State, through its programs, authorities, and resources to:  (1) Conserve the natural resources, so that land, water, mineral, visual, air and other natural resources are protected by controlling pollution, by preserving or augmenting natural resources, and by safeguarding the State TMs unique natural environmental characteristics in a manner which will foster and promote the general welfare, create and maintain conditions under which humanity and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of the people of Hawaii.  (2) Enhance the quality of life by:  (A) Setting population limits so that the interaction between the natural and artificial environments and the population is mutually beneficial;  (B) Creating opportunities for the residents of Hawaii to improve their quality of life through diverse economic activities which are stable and in balance with the physical and social environments;  (C) Establishing communities which provide a sense of identity, wise use of land, efficient transportation, and aesthetic and social satisfaction in harmony with the natural environment which is uniquely Hawaiian; and  (D) Establishing a commitment on the part of each person to protect and enhance Hawaii TMs environment and reduce the drain on nonrenewable resources. [L 1974, c 247, pt of 1; gen ch 1993] Case Notes  Cited: 134 H. 86 (App.), 332 P.3d 688 (2014).
 344-4 Guidelines. In pursuance of the state policy to conserve the natural resources and enhance the quality of life, all agencies, in the development of programs, shall, insofar as practicable, consider the following guidelines:  (1) Population.  (A) Recognize population impact as a major factor in environmental degradation and adopt guidelines to alleviate this impact and minimize future degradation;  (B) Recognize optimum population levels for counties and districts within the State, keeping in mind that these will change with technology and circumstance, and adopt guidelines to limit population to the levels determined.  (2) Land, water, mineral, visual, air, and other natural resources.  (A) Encourage management practices which conserve and fully utilize all natural resources;  (B) Promote irrigation and waste water management practices which conserve and fully utilize vital water resources;  (C) Promote the recycling of waste water;  (D) Encourage management practices which conserve and protect watersheds and water sources, forest, and open space areas;  (E) Establish and maintain natural area preserves, wildlife preserves, forest reserves, marine preserves, and unique ecological preserves;  (F) Maintain an integrated system of state land use planning which coordinates the state and county general plans;  (G) Promote the optimal use of solid wastes through programs of waste prevention, energy resource recovery, and recycling so that all our wastes become utilized.  (3) Flora and fauna.  (A) Protect endangered species of indigenous plants and animals and introduce new plants or animals only upon assurance of negligible ecological hazard;  (B) Foster the planting of native as well as other trees, shrubs, and flowering plants compatible to the enhancement of our environment.  (4) Parks, recreation, and open space.  (A) Establish, preserve and maintain scenic, historic, cultural, park and recreation areas, including the shorelines, for public recreational, educational, and scientific uses;  (B) Protect the shorelines of the State from encroachment of artificial improvements, structures, and activities;  (C) Promote open space in view of its natural beauty not only as a natural resource but as an ennobling, living environment for its people.  (5) Economic development.  (A) Encourage industries in Hawaii which would be in harmony with our environment;  (B) Promote and foster the agricultural industry of the State; and preserve and conserve productive agricultural lands;  (C) Encourage federal activities in Hawaii to protect the environment;  (D) Encourage all industries including the fishing, aquaculture, oceanography, recreation, and forest products industries to protect the environment;  (E) Establish visitor destination areas with planning controls which shall include but not be limited to the number of rooms;  (F) Promote and foster the aquaculture industry of the State; and preserve and conserve productive aquacultural lands.  (6) Transportation.  (A) Encourage transportation systems in harmony with the lifestyle of the people and environment of the State;  (B) Adopt guidelines to alleviate environmental degradation caused by motor vehicles;  (C) Encourage public and private vehicles and transportation systems to conserve energy, reduce pollution emission, including noise, and provide safe and convenient accommodations for their users.  (7) Energy.  (A) Encourage the efficient use of energy resources.  (8) Community life and housing.  (A) Foster lifestyles compatible with the environment; preserve the variety of lifestyles traditional to Hawaii through the design and maintenance of neighborhoods which reflect the culture and mores of the community;  (B) Develop communities which provide a sense of identity and social satisfaction in harmony with the environment and provide internal opportunities for shopping, employment, education, and recreation;  (C) Encourage the reduction of environmental pollution which may degrade a community;  (D) Foster safe, sanitary, and decent homes;  (E) Recognize community appearances as major economic and aesthetic assets of the counties and the State; encourage green belts, plantings, and landscape plans and designs in urban areas; and preserve and promote mountain-to-ocean vistas.  (9) Education and culture.  (A) Foster culture and the arts and promote their linkage to the enhancement of the environment;  (B) Encourage both formal and informal environmental education to all age groups.  (10) Citizen participation.  (A) Encourage all individuals in the State to adopt a moral ethic to respect the natural environment; to reduce waste and excessive consumption; and to fulfill the responsibility as trustees of the environment for the present and succeeding generations; and  (B) Provide for expanding citizen participation in the decision making process so it continually embraces more citizens and more issues. [L 1974, c 247, pt of 1; am L 1976, c 27, 2; am L 1985, c 76, 1; gen ch 1993] Case Notes  No mandate to adopt guidelines prior to making decisions on programs. 63 H. 453, 629 P.2d 1134.