Senate Journal 02/16/2005 2:00 PM

JOURNAL OF THE SENATE

EIGHTIETH SESSION

TWENTY-SEVENTH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Wednesday, February 16, 2005

The Senate convened at 2:00 p.m., pursuant to adjournment, the President presiding.

The prayer was offered by the Chaplain, Father Tom Cool, followed by the Pledge of Allegiance led by Senate page Jessica Callahan.

Roll Call: All members present.

APPROVAL OF THE JOURNAL

MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Secretary of the Senate has had under consideration the Senate Journal of the twenty-sixth day.

All errors, typographical or otherwise, are duly marked in the temporary journal for correction.

And we hereby move the adoption of the report.

Respectfully submitted,

Lee Schoenbeck, Chair

Which motion prevailed and the report was adopted.

HONORED GUESTS

The President introduced Amber Stern of Freeman, South Dakota Girls State Governor, and Jon Brockhoft of Winner, South Dakota Boys State Governor.

COMMUNICATIONS AND PETITIONS

February 15, 2005

Mr. President and Members of the Senate:

I have the honor to inform you that on February 15, 2005, I approved Senate Bills 13 and 105, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration HB 1205 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration HB 1052 and returns the same with the recommendation that said bill be referred to the Committee on Appropriations.

Also MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration SB 87, 88, and 213 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Eric H. Bogue, Chair

Also MR. PRESIDENT:

The Committee on Local Government respectfully reports that it has had under consideration HB 1110 and 1239 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

The Committee on Local Government respectfully reports that it has had under consideration HB 1178 and returns the same with the recommendation that said bill do pass and be placed on the Consent Calendar.

Respectfully submitted,
J.P. Duniphan, Chair

Also MR. PRESIDENT:

The Committee on Taxation respectfully reports that it has had under consideration HB 1100 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on Taxation respectfully reports that it has had under consideration HB 1128 and 1181 and returns the same with the recommendation that said bills do pass and be placed on the Consent Calendar.

Also MR. PRESIDENT:

The Committee on Taxation respectfully reports that it has had under consideration SB 128 and HB 1001 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Dave Knudson, Chair

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 206, which was reconsidered, and returns the same with the recommendation that said bill do NOT pass.

Respectfully submitted,
Gene G. Abdallah, Chair

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 146 and finds the same correctly enrolled.

Respectfully submitted,
Lee Schoenbeck, Chair

REPORT OF CONFERENCE COMMITTEE

MR. PRESIDENT:

The Conference Committee respectfully reports that it has considered SB 70 and the amendments thereto made by the House, and the disagreement of the two houses thereon, and recommends that SB 70 be amended as follows:

On page 50, line 23 of the House Judiciary Committee engrossed bill, delete " If " .

On page 50 , delete line 24 .

On page 51 , delete lines 1 and 2 .

On page 172, line 14, delete " limited " and insert "domestic corporation".

On page 172 , delete line 15 , and insert "was organized or a foreign corporation was authorized to transact business. The".

Respectfully submitted,                        Respectfully submitted,
Sean M. O'Brien                                Eric H. Bogue
House Committee Chair                        Senate Committee Chair

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to transmit herewith HB 1082, 1127, 1214, 1249, 1253, 1259, and 1260 which have passed the House and your favorable consideration is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 146 which has passed the House without change.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

HCR 1011: A CONCURRENT RESOLUTION, In support of free religious expression in public schools.

Was read the second time.

Sen. Abdallah moved that the Senate do concur in HCR 1011 as found on page 442 of the House Journal.

The question being on Sen. Abdallah's motion that the Senate do concur in HCR 1011.

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Earley; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HCR 1011 was concurred in.

Yesterday, Sen. Dan Sutton announced his intention to reconsider the vote by which HB 1089 lost.

Sen. Sutton moved that the Senate do now reconsider the vote by which HB 1089 lost.

The question being on Sen. Sutton's motion to reconsider the vote by which HB 1089 lost.

And the roll being called:

Yeas 31, Nays 4, Excused 0, Absent 0

Yeas:
Abdallah; Adelstein; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Kooistra; Lintz; McCracken; McNenny; Moore; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Apa; Earley; Koskan; Napoli

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HB 1089 was up for reconsideration and final passage.

Sen. Dan Sutton moved that HB 1089 be immediately considered.

Which motion prevailed and HB 1089 was up for immediate consideration.

HB 1089: FOR AN ACT ENTITLED, An Act to provide for licensure and regulation of massage therapists and to provide funding from licensure fees.

Having had its second reading was up for reconsideration and final passage.

The question being "Shall HB 1089 pass as amended?"

And the roll being called:

Yeas 31, Nays 4, Excused 0, Absent 0

Nays:
Apa; Earley; Koskan; Napoli

So the bill having received an affirmative vote of a two-thirds majority of the members- elect, the President declared the bill passed and the title was agreed to.

Sen. Knudson moved that the Committee on Taxation be instructed to deliver SB 128 to the floor of the Senate, pursuant to Joint Rule 7-7.

Which motion was supported and the committee was so instructed.

CONSIDERATION OF REPORTS OF COMMITTEES

Sen. Bogue moved that the reports of the Standing Committees on

Judiciary on SB 67 as found on page 483 of the Senate Journal ; also

Education on SB 102 as found on page 487 of the Senate Journal ; also

Appropriations on SB 158 as found on page 503 of the Senate Journal ; also

Appropriations on SB 175 as found on page 503 of the Senate Journal ; also

Agriculture and Natural Resources on SB 190 as found on page 488 of the Senate Journal ; also

Education on SB 202 as found on page 488 of the Senate Journal ; also

Agriculture and Natural Resources on SB 216 as found on page 489 of the Senate Journal ; also

Appropriations on SB 218 as found on page 504 of the Senate Journal be adopted.

Which motion prevailed and the reports were adopted.

SECOND READING OF CONSENT CALENDAR ITEMS

Sen. Koskan requested that HB 1169 be removed from the Consent Calendar.

HB 1094: FOR AN ACT ENTITLED, An Act to provide for the division of farm mutual insurance companies.

Was read the second time.

The question being "Shall HB 1094 pass?"

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1115: FOR AN ACT ENTITLED, An Act to require that supplemental coverages be made available with automobile liability policies.

Was read the second time.

The question being "Shall HB 1115 pass?"

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1201: FOR AN ACT ENTITLED, An Act to revise the labeling requirements for certain types of motor fuel.

Was read the second time.

The question being "Shall HB 1201 pass as amended?"

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 35: FOR AN ACT ENTITLED, An Act to authorize the Board of Regents to construct a replacement manager's dwelling at the Cottonwood Research Station, to dispose of the existing dwelling on this site, and to make an appropriation therefor.

Was read the second time.

The question being "Shall SB 35 pass as amended?"

And the roll being called:

Yeas 32, Nays 3, Excused 0, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Earley; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Knudson; Kooistra; Koskan; Lintz; McCracken; McNenny; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Kloucek; Koetzle; Moore

So the bill having received an affirmative vote of a two-thirds majority of the members- elect, the President declared the bill passed and the title was agreed to.

Sen. Bogue moved that SB 58, 157, and 181 be deferred to Thursday, February 17, the 28^th legislative day.

Which motion prevailed.

SB 193: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the performance of abortions on unemancipated minors and those found to be incompetent.

Was read the second time.

193jc

Sen. Greenfield moved that SB 193 be further amended as follows:

On page 2, line 11 of the Senate State Affairs Committee engrossed bill, delete " The " and insert " Unless the unemancipated minor or incompetent female gives notice of her intent to seek a judicial waiver, the ".

On page 2 , line 12, after " informed " insert " by the attending physician or the physician's agent ".

On page 3 , line 20, after " subdivision " insert " 34-23A-7(1) or ".

On page 3 , line 24, after " subdivision " insert " 34-23A-7(1) or ".

On page 4 , line 4, after " subdivision " insert " 34-23A-7(1) or ".

Which motion prevailed.

The question being "Shall SB 193 pass as amended?"

And the roll being called:

Yeas 33, Nays 2, Excused 0, Absent 0

Yeas:
Abdallah; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Earley; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Kloucek; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Adelstein; Knudson

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

SB 197: FOR AN ACT ENTITLED, An Act to clarify how certain registered livestock brands held in joint tenancy may be transferred.

Was read the second time.

The question being "Shall SB 197 pass as amended?"

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1082: FOR AN ACT ENTITLED, An Act to appropriate money for postsecondary technical education enhancement.

Was read the first time and referred to the Committee on Education.

HB 1127: FOR AN ACT ENTITLED, An Act to authorize the provision of special education and related services to certain alternative instruction students.

Was read the first time and referred to the Committee on Education.

HB 1214: FOR AN ACT ENTITLED, An Act to make an appropriation to fund sales tax on food refunds.

Was read the first time and referred to the Committee on Taxation.

HB 1249: FOR AN ACT ENTITLED, An Act to prohibit the performance of abortions, except to save the life of the mother, and to provide a penalty therefor and to provide for a delayed effective date.

Was read the first time and referred to the Committee on State Affairs.

HB 1253: FOR AN ACT ENTITLED, An Act to study the establishment of a group health insurance plan for political subdivision employees.

Was read the first time and referred to the Committee on State Affairs.

HB 1259: FOR AN ACT ENTITLED, An Act to reestablish eligibility for certain veterans to qualify for the veterans' bonus program and to declare an emergency.

Was read the first time and referred to the Committee on State Affairs.

HB 1260: FOR AN ACT ENTITLED, An Act to create the South Dakota Electric Transmission Assistance Authority.

Was read the first time and referred to the Committee on State Affairs.

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1090: FOR AN ACT ENTITLED, An Act to allow debt cancellation contract and debt suspension contract fees to be included in consumer installment sales contracts.

Was read the second time.

The question being "Shall HB 1090 pass as amended?"

And the roll being called:

Yeas 32, Nays 2, Excused 1, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Earley; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Kelly; Kloucek; Knudson; Kooistra; Koskan; Lintz; McCracken; McNenny; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Koetzle; Moore

Excused:
Hundstad

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1242: FOR AN ACT ENTITLED, An Act to prohibit the manufacture and distribution of counterfeit driver licenses and nondriver identification cards.

Was read the second time.

The question being "Shall HB 1242 pass?"

And the roll being called:

Yeas 34, Nays 1, Excused 0, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Earley; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Knudson; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Nays:
Kloucek

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1243: FOR AN ACT ENTITLED, An Act to provide for the copying and retention of foreign documentation used to apply for certain state licenses, permits, and identification cards.

Was read the second time.

The question being "Shall HB 1243 pass as amended?"

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duenwald; Duniphan; Earley; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Kooistra; Koskan; Lintz; McCracken; McNenny; Moore; Napoli; Olson (Ed); Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan); Sutton (Duane); Two Bulls

Excused:
Nesselhuf

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

There being no objection, the Senate reverted to Order of Business No. 8.

MOTIONS AND RESOLUTIONS

Sen. Knudson moved that HB 1214 be referred from the Committee on Taxation to the Committee on Appropriations.

Which motion prevailed.

Sen. Kloucek moved that the Committee on Local Government be instructed to deliver SB 205 to the floor of the Senate, pursuant to Joint Rule 7-7.

Which motion lost.

There being no objection, the Senate reverted to Order of Business No. 5.

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1190 and 1209 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 183, which was removed from the table, and returns the same with the recommendation that said bill be amended as follows:

183rb

On the printed bill, delete everything after the enacting clause and insert:

"Section 1. Whenever any lands are, heretofore or hereafter, conveyed by any grant or devise to be held or used for any religious, educational, charitable, benevolent, or public purpose, with a condition annexed in the instrument of conveyance that in event the lands shall, at any time, cease to be held or used for the purpose set forth in such conveyance, title shall revert to the grantor or devisor or the heirs, and it appears in the judgment of the officers, trustees, or governing body of the grantee named in such conveyance that because of changed conditions or circumstances since the execution of such conveyance it is impossible or impractical to continue to hold or use the lands for the purpose mentioned in such conveyance and that the religious, educational, charitable, benevolent, or public object of the grantor or devisor, as set forth in such conveyance, may be prevented or defeated thereby, the grantee may file an action in the circuit court of the county in which the lands are situated, setting forth a correct description of such lands and the terms and conditions under which the lands are to be held or used, together with a comprehensive statement of the changed conditions and circumstances which render it impossible or impractical to continue to hold or use the lands for the purpose stated in the conveyance.

Section 2. In any proceeding provided for in section 1 of this Act, the heirs of the grantor, reversionary interest holder, or devisor, if known, shall be named as defendants and the same proceedings had thereon as is provided by existing law in actions against known defendants. If the names or addresses of the heirs of any such grantor or devisor are unknown, then proceedings shall be had in such action as may be provided by existing law in proceedings against unknown defendants. However, no such action may be brought within a period of seventy-five years from the execution of any such conveyance.

Section 3. If, upon the hearing, it appears to the satisfaction of the court that the allegations in the action are true and that because of changed conditions or circumstances since the execution of such conveyance it is impossible or impractical to continue to hold or use the lands for the purposes limited in such conveyance and that the religious, educational, charitable, benevolent, or public object of the grantor, as set forth in such conveyance, may be defeated thereby, a decree may be entered authorizing the grantor to sell such lands for the highest price obtainable, and directing that the proceeds of the sale of such lands shall be reinvested in other lands suitable for the use or purpose set forth in the original conveyance, subject to any reversionary interest or other interest in the original conveyance.

Section 4. No sale of lands under the decree of the court pursuant to this Act defeats the estate of the grantee named in the original conveyance because of the failure to continue to hold or use the land for the purpose named in such conveyance and is sufficient to convey to the purchaser of such land a good and sufficient title in fee simple, free from all conditions or limitations whatsoever, under which the land shall have been held or used."

And that as so amended said bill do pass.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 204 and returns the same with the recommendation that said bill be amended as follows:

204sa

On the printed bill, delete everything after the enacting clause and insert:

"Section 1. That § 34-12C-3 be amended to read as follows:

34-12C-3. In the absence of a living will, durable power of attorney for health care or the appointment of a guardian of the person, or if neither the attorney in fact nor guardian is available to consent, a health care decision for an incapacitated person may be made by the following members of the incapacitated person's family who are available to consent, in the order stated:

(1) The spouse, if not legally separated;

(2) An adult child;

(3) A parent;

(4) An adult sibling;

(5) A grandparent or an adult grandchild;

(6) An adult aunt or uncle or an adult niece or nephew.

However, any person may, before a judicial adjudication of incompetence or incapacity, disqualify any member of ~~his~~ the person's family from making a health care decision for ~~him~~ the person . The disqualification shall appear in a document signed by the person or may be made by a notation in ~~his~~ the person's medical record, if made at ~~his~~ the person's direction.

Any member of the incapacitated person's family may delegate the authority to make a health care decision to another family member in the same or succeeding class. The delegation shall be signed and may specify conditions on the authority delegated.

Any person authorized to make a health care decision for an incapacitated person shall ~~be guided by~~ strictly implement the express wishes of the incapacitated person, if known ~~, and shall otherwise act~~ . If the express wishes of the incapacitated person are not known, the person authorized to make a health care decision for the incapacitated person shall make the decision in good faith, ~~in the incapacitated person's best interest, and may~~ shall not arbitrarily refuse consent ~~. Whenever making any health care decision for the incapacitated person, the person available to consent~~ , and shall consider the recommendation of the attending physician, the decision the incapacitated person would have made if the incapacitated person then had decisional capacity, ~~if known,~~ the inherent value of human life and its preservation, and the decision that would be in the best interest of the incapacitated person.

Section 2. That § 34-12C-1 be amended to read as follows:

34-12C-1. Terms used in this chapter mean:

(1) "Attending physician," the physician who at the time of reference has primary responsibility for the health care of a person;

(2) "Durable power of attorney for health care," an instrument executed pursuant to § 59- 7-2.1 that authorizes its attorney in fact to make a health care decision or to consent to health care on behalf of its principal;

(3) "Health care," any care, treatment, service, or procedure to maintain, diagnose, or treat a person's physical or mental condition. The term also includes admission to, and personal and custodial care provided by, a licensed health care facility as defined in § 34-12-1.1;

(4) "Health care decision," the determination of the health care to be provided to a person;

(5) "Health care provider," any licensed health care facility and any person, corporation, or organization licensed, certified, or otherwise authorized or permitted by law to administer health care;

(6) "Incapacitated person," any person who is incapable of giving informed consent to health care;

(7) "Informed consent," consent voluntarily, knowingly, and competently given after explanation of the information reasonably necessary to form an intelligent and informed decision to consent to or refuse a proposed medical procedure or treatment. This information includes disclosure of significant risks inherent in or incident to abstention from a proposed medical procedure or treatment, probabilities of success in view of the gravity of the patient's condition, and alternative treatments or procedures, if reasonably appropriate;

(8) "Person available to consent," any person who is authorized to make a health care decision for an incapacitated person and whose existence is known to the health care provider and who, in the good faith judgment of the health care provider, is reasonably available for consultation and is willing and competent to make an informed health care decision.

Section 3. That chapter 34-12C be amended by adding thereto a NEW SECTION to read as follows:

No person authorized to make a health care decision for an incapacitated person may authorize the withholding or withdrawal from the incapacitated person of comfort care and artificial nutrition or hydration. However, artificial nutrition or hydration may be withheld or withdrawn if:

(1) In reasonable medical judgment:

(a) The provision of artificial nutrition or hydration is not medically possible;

(b) The provision of artificial nutrition or hydration would hasten death; or

(c) The medical condition of the incapacitated person is such that provision of artificial nutrition or hydration would not contribute to sustaining life or providing comfort, hygiene, or human dignity or relief of pain;

(2) There is clear and convincing evidence that the incapacitated person, when having decisional capacity, gave informed consent to withdrawing or withholding artificial nutrition or hydration in the applicable circumstances.

Even in the exception listed in subdivision (2) of this section, artificial nutrition or hydration may not be withheld or withdrawn if it is needed for comfort, hygiene, or human dignity or the relief of pain.

Reasonable medical judgment means a medical judgment that would be made applying commonly accepted medical standards to the incapacitated person's case.

Section 4. That chapter 34-12C be amended by adding thereto a NEW SECTION to read as follows:

If a person authorized to make a health care decision for an incapacitated person directs the provision of life-sustaining treatment or artificial nutrition and hydration, any physician or health care provider who has responsibility for the treatment and care of the individual must provide the directed treatment or artificial nutrition and hydration in those circumstances so long as it is technically feasible. A physician or health care provider who objects to providing such treatment may instead transfer the individual to a physician or health care provider willing to honor the declaration, but must continue to provide the treatment or care until the transfer is effectuated.

Section 5. That § 34-12D-3 be amended to read as follows:

34-12D-3. A declaration may, but need not, be in the following form:

LIVING WILL DECLARATION

This is an important legal document. This document directs the medical treatment you are to receive in the event you are unable to participate in your own medical decisions and you are in a terminal condition. This document may state what kind of treatment you want or do not want to receive.

This document can control whether you live or die. Prepare this document carefully. If you use this form, read it completely. You may want to seek professional help to make sure the form does what you intend and is completed without mistakes.

This document will remain valid and in effect until and unless you revoke it. Review this document periodically to make sure it continues to reflect your wishes. You may amend or revoke this document at any time by notifying your physician and other health-care providers. You should give copies of this document to your physician and your family. This form is entirely optional. If you choose to use this form, please note that the form provides signature lines for you, the two witnesses whom you have selected and a notary public.

TO MY FAMILY, PHYSICIANS, AND ALL THOSE CONCERNED WITH MY CARE:

I, ____ willfully and voluntarily make this declaration as a directive to be followed if I am in a terminal condition and become unable to participate in decisions regarding my medical care.

With respect to any life-sustaining treatment, I direct the following:

(Initial only one of the following optional directives if you agree. If you do not agree with any of the following directives, space is provided below for you to write your own directives).

_ NO LIFE-SUSTAINING TREATMENT. I direct that no life-sustaining treatment be provided. If life-sustaining treatment is begun, terminate it.

_ TREATMENT FOR RESTORATION. Provide life-sustaining treatment only if and for so long as you believe treatment offers a reasonable possibility of restoring to me the ability to think and act for myself.

_ TREAT UNLESS PERMANENTLY UNCONSCIOUS. If you believe that I am permanently unconscious and are satisfied that this condition is irreversible, then do not provide me with life-sustaining treatment, and if life-sustaining treatment is being provided to me, terminate it. If and so long as you believe that treatment has a reasonable possibility of restoring consciousness to me, then provide life-sustaining treatment.

_ MAXIMUM TREATMENT. Preserve my life as long as possible ~~, but do not provide treatment that is not in accordance with accepted medical standards as then in effect~~ .

(Artificial nutrition and hydration is food and water provided by means of a nasogastric tube or tubes inserted into the stomach, intestines, or veins. If food and water are withdrawn, withheld, or denied, starvation or dehydration may be the cause of death and not the terminal condition. If you do not wish to receive ~~this form of treatment~~ artificial nutrition and hydration , you must initial the statement below which reads: "I intend to include ~~this treatment,~~ artificial nutrition and hydration among the 'life-sustaining treatment' that may be withheld or withdrawn.")

With respect to artificial nutrition and hydration, I wish to make clear that

(Initial only one)

_ I intend to include ~~this treatment~~ artificial nutrition and hydration among the "life-sustaining treatment" that may be withheld or withdrawn.

_ I do not intend to include ~~this treatment~~ artificial nutrition and hydration among the "life-sustaining treatment" that may be withheld or withdrawn.

(If you do not agree with any of the printed directives and want to write your own, or if you want to write directives in addition to the printed provisions, or if you want to express some of your other thoughts, you can do so here).

___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

Date: __________________    _______________________________________
        (your signature)
____________________________    _______________________________________
(your address)    (type or print your signature)

The declarant voluntarily signed this document in my presence.

Witness _________________________

Address _________________________

Witness _________________________

Address _________________________

On this the ______ day of ________, ______, the declarant, _______________, and witnesses _______________, and ________ personally appeared before the undersigned officer and signed the foregoing instrument in my presence. Dated this ________ day of ________, ______.

______________________________ Notary Public

My commission expires: ____________________.

Section 6. That § 59-7-2.5 be amended to read as follows:

59-7-2.5. The attorney-in-fact or agent , if authorized, may make any health care decisions for the principal which the principal could make individually if he the principal had decisional capacity. ~~However, all such decisions shall be made in accordance with accepted medical practice.~~ Whenever making any health care decision for the principal, the attorney-in-fact or agent shall implement the express wishes of the principal, if known. If the express wishes of the principal are not known, the attorney in fact shall make the decision in good faith, shall not arbitrarily refuse consent, and shall consider the recommendation of the attending physician, the decision that the principal would have made if the principal then had decisional capacity, ~~if known~~ the inherent value of human life and its preservation , and the decision that would be in the best interest of the principal.

Section 7. That § 59-7-2.7 be amended to read as follows:

59-7-2.7. The guardian, attorney-in-fact , or agent may not authorize the withholding or withdrawal from the principal of comfort care and artificial nutrition or hydration. However, artificial nutrition or hydration may be withheld or withdrawn if:

(1) Artificial nutrition or hydration is not needed for comfort care or the relief of pain and the attending physician reasonably believes that the principal's death will occur within approximately one week; or

~~(2) Artificial nutrition or hydration cannot be physically assimilated by the principal; or~~

(3) The burden of providing artificial nutrition or hydration outweighs its benefit, provided that the determination of burden refers to the provision of artificial nutrition or hydration itself and not to the quality of the continued life of the principal; or

(4) There is clear and convincing evidence that artificial nutrition or hydration was refused by the person prior to loss of decisional capacity; or the power of attorney directs that artificial nutrition or hydration not be given or specifically authorizes the attorney-in-fact or agent to make that decision; or prior to the loss of decisional capacity there is clear and convincing evidence that the principal expressed the desire that artificial nutrition or hydration not be given.

(1) In reasonable medical judgment;

(a) The provision of artificial nutrition or hydration is not medically possible;

(b) The provision of artificial nutrition or hydration would hasten death; or

(c) The medical condition of the principal is such that provision of artificial nutrition or hydration would not contribute to sustaining life or providing comfort, hygiene, or human dignity, or relief of pain;

(2) The principal has executed a living will or a durable power of attorney for healthcare, either of which specifically authorizes the withholding or withdrawal of artificial nutrition or hydration, to the extent that the authorization applies;

(3) The principal has executed a written power of attorney pursuant to § 59-7-2.1 specifically authorizing the attorney-in-fact or agent to make that decision; or

(4) There is clear and convincing evidence that the principal, when having decisional capacity, gave informed consent, as defined in subdivision 34-12C-1(7) to withdrawing or withholding artificial nutrition or hydration in the applicable circumstances.

Even in the exceptions listed in subdivisions ~~(1),~~ (2), (3) , and (4) of this section, artificial nutrition or hydration may not be withheld or withdrawn if it is needed for comfort , hygiene, human dignity, or the relief of pain.

Reasonable medical judgment means a medical judgment that would be made applying commonly accepted medical standards to the principal's case.

Section 8. That chapter 59-7 be amended by adding thereto a NEW SECTION to read as follows:

If an individual with decisional capacity, or a durable power of attorney for health care or an attorney-in-fact or an agent, if authorized, directs the provision of life-sustaining treatment or artificial nutrition and hydration, any physician or health care provider who has responsibility for the treatment and care of the individual must provide the directed treatment or artificial nutrition and hydration in those circumstances so long as it is technically feasible. A physician or health care provider who objects to providing such treatment may instead transfer the individual to a physician or health care provider willing to honor the declaration, but must continue to provide the treatment or care until the transfer is effectuated.

Section 9. Nothing in this Act shall render ineffective or change any of the terms of any decision made, oral directive given, or document executed pursuant to chapter 34-12C, 34-12D, or 59-7 prior to the effective date of this Act."

204ra

On the previously adopted amendment (204sa), section 1, paragraph 4, first sentence, delete " strictly ".

Delete section 2.

In section 3, subdivision (1), subsection (c), after "pain;" insert "or".

In section 3, delete subdivision (2) and insert:

"(2) There is clear and convincing evidence that prior to the loss of decisional capacity, the incapacitated person either refused artificial nutrition or hydration or expressed the desire that artificial nutrition or hydration not be given in the applicable circumstances."

In section 7, delete subdivision (4) and insert:

" (4) There is clear and convincing evidence that prior to the loss of decisional capacity, the principal either refused artificial nutrition or hydration or expressed the desire that artificial nutrition or hydration not be given in the applicable circumstances."

204rb

On the previously adopted amendment (204ra), in subdivision (2), delete "clear and convincing" and insert "a preponderance of the".

On the previously adopted amendment (204ra), in subdivision (4) , delete " clear and convincing " and insert " a preponderance of the ".

204rc

On the previously adopted amendment (204sa), in Section 3, delete "or human dignity" in both places.

On the previously adopted amendment (204sa), in Section 7, delete " or human dignity, " and also delete " human dignity, ".

And that as so amended said bill do pass.

Respectfully submitted,
Gene G. Abdallah, Chair

COMMEMORATIONS

SC 12 Introduced by: Senator Nesselhuf and Representatives Schafer and Boomgarden

A LEGISLATIVE COMMEMORATION, Honoring and recognizing Michelle Rydell of Vermillion for her exemplary volunteer service, leading to her receiving the 2005 Prudential Spirit of Community Award.

WHEREAS, the Prudential Spirit of Community Award, presented by Prudential Financial in partnership with the National Association of Secondary School Principals, constitutes the largest youth recognition program based exclusively on volunteerism; and

WHEREAS, Michelle Rydell of Vermillion earned this award by generously volunteering her time and energy to the creation of a "Dream Team" at her school, a club dedicated to providing essential goods to impoverished people in Guatemala, and raising awareness of the poverty that exists in that Central American nation; and

WHEREAS, the success of the State of South Dakota, the strength of its communities, and the overall condition of American society, depend on the dedication of young people like Michelle Rydell who use their talents and abilities to serve others:

NOW, THEREFORE, BE IT COMMEMORATED, by the Eightieth Legislature of the State of South Dakota, that Michelle Rydell of Vermillion be recognized and honored for her outstanding volunteer efforts and community awareness.

SC 13 Introduced by: Senators Hundstad and Sutton (Duane) and Representatives Dennert, Elliott, Frost, and Novstrup

A LEGISLATIVE COMMEMORATION, Honoring Sue Gates as the 2004 ATHENA Award recipient for the City of Aberdeen, South Dakota .

WHEREAS, Sue Gates has worked for over thirty years assisting women, both young and old, to pursue their musical, artistic, educational, religious, and family dreams through compassionate teaching, impressive leadership, and visionary fortitude; and

WHEREAS, Sue Gates has spent a greater part of her life in service to her community both in leadership and volunteer positions and has been recognized on many occasions for her active participation in the cultural community of the City of Aberdeen; and

WHEREAS, Sue Gates has been honored for inspiring women to achieve their full potential and for contributing actively to the betterment of those in her community:

NOW, THEREFORE, BE IT COMMEMORATED, by the Eightieth Legislature of the State of South Dakota, that Sue Gates, a respected resident of the City of Aberdeen, be recognized and congratulated for receiving the 2004 ATHENA Foundation Award.

SIGNING OF BILLS

The President publicly read the title to

SB 146: FOR AN ACT ENTITLED, An Act to limit the time for bringing actions against certain professional corporations and professional practitioners.

HB 1013: FOR AN ACT ENTITLED, An Act to provide for the recodification of certain sections of South Dakota Retirement System law.

HB 1014: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the South Dakota Retirement System special pay plan.

HB 1015: FOR AN ACT ENTITLED, An Act to extend the period of time that members of the South Dakota Retirement System who were mobilized into certain federal military service may acquire credited service at a prior cost.

HB 1016: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the benefits available to certain South Dakota Retirement System members who retired and later reentered active status.

HB 1017: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the types of service necessary for certain South Dakota Retirement System benefits.

And signed the same in the presence of the Senate.

Sen. Bogue moved that the Senate do now adjourn, which motion prevailed and at 3:00 p.m. the Senate adjourned.

Patricia Adam, Secretary