Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                           HB 443.1
                                               HOUSE BILL NO. 443
   INTRODUCED BY K. SEEKINS-CROWE, B. KEENAN, F. NAVE, S. GALLOWAY, C. HINKLE, R. MARSHALL,
                                            M. YAKAWICH, J. ETCHART
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  A BILL FOR AN ACT ENTITLED: “AN ACT PROHIBITING DISCRIMINATION BASED ON THE FREE
  EXERCISE OF RELIGION OR THE FREEDOM OF SPEECH AND EXPRESSION IN THE REAL ESTATE
  INDUSTRY AND OTHER LICENSED PROFESSIONS OR OCCUPATIONS; PROHIBITING THE
  INVESTIGATION OF A COMPLAINT AGAINST A LICENSED PROFESSIONAL FOR UNPROFESSIONAL
  CONDUCT BASED ON THE LICENSED PROFESSIONAL'S FREE EXERCISE OF RELIGION OR FREEDOM
  OF SPEECH AND EXPRESSION; PROVIDING THAT IT IS NOT UNPROFESSIONAL CONDUCT TO
  ENGAGE IN THE FREE EXERCISE OF RELIGION OR THE FREEDOM OF SPEECH AND EXPRESSION;
  PROVIDING THAT IT IS UNPROFESSIONAL CONDUCT TO AID OR ABET ANY PERSON OR
  ORGANIZATION IN TAKING ADVERSE ACTION AGAINST A LICENSED PROFESSIONAL BASED ON THE
  LICENSED PROFESSIONAL'S FREE EXERCISE OF RELIGION OR FREEDOM OF SPEECH AND
  EXPRESSION; AND AMENDING SECTIONS 28-10-103, 37-1-308, 37-1-316, 37-1-402, 37-1-410, AND 37-51-
  321, MCA.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          Section 1. Section 28-10-103, MCA, is amended to read:
          "28-10-103. Actual versus ostensible agency -- limitation. (1) An agency is either actual or
  ostensible. An agency is actual when the agent is really employed by the principal. An agency is ostensible
  when the principal intentionally or by want of ordinary care causes a third person to believe another to be the
  principal's agent when that person is not really employed by the principal.
          (2)      Except as provided in subsection (3), for purposes of a malpractice claim, as defined in 27-6-
  103, liability may not be imposed on a health care provider, as defined in 27-6-103, for an act or omission by a
  person or entity alleged to have been an ostensible agent of the health care provider at the time that the act or
  omission occurred.
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68th Legislature 2023                                                                                             HB 443.1
          (3)      (a) Subsection (2) is not applicable unless the health care provider has instituted a policy or
  practice requiring persons providing independent professional services to have insurance of a type and in the
  amount required by the rules and regulations of the medical staff, by the medical staff bylaws, or by other
  similar health care facility rules or regulations. The insurance provided for in this subsection must be in effect
  for the period of time during which a medical malpractice action must be brought as provided in 27-2-205.
          (b)      Failure of a health care provider providing independent professional services to comply with a
  policy or practice implementing subsection (3)(a) constitutes unprofessional conduct pursuant to 37-1-316(17)
  37-1-316(1)(q) and 37-2-304."
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          Section 2. Section 37-1-308, MCA, is amended to read:
          "37-1-308.    Unprofessional conduct -- complaint -- investigation -- immunity -- exceptions. (1)
  Except as provided in subsections (4) and (5), a person, government, or private entity may submit a written
  complaint to the department charging a licensee or license applicant with a violation of this part and specifying
  the grounds for the complaint.
          (2)      If the department receives a written complaint or otherwise obtains information that a licensee
  or license applicant may have committed a violation of this part, the department may, with the concurrence of a
  member of the screening panel established in 37-1-307, investigate to determine whether there is reasonable
  cause to believe that the licensee or license applicant has committed the violation. However, if the written
  complaint or information that a licensee or license applicant may have violated a requirement of this part is
  based on the free exercise of religion or the freedom of speech and expression as protected under the Montana
  constitution and the United States constitution, then the investigation of the licensee or license applicant must
  cease immediately and the complaint must be dismissed unless the alleged violation results from conduct that
  is not the free exercise of religion or the freedom of speech and expression.
          (3)      A person or private entity, but not a government entity, filing a complaint under this section in
  good faith is immune from suit in a civil action related to the filing or contents of the complaint.
          (4)      A person under legal custody of a county detention center or incarcerated under legal custody
  of the department of corrections may not file a complaint under subsection (1) against a licensed or certified
  provider of health care or rehabilitative services for services that were provided to the person while detained or
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68th Legislature 2023                                                                                                HB 443.1
  confined in a county detention center or incarcerated under legal custody of the department of corrections
  unless the complaint is first reviewed by a correctional health care review team provided for in 37-1-331.
           (5)      A board member may file a complaint with the board on which the member serves or otherwise
  act in concert with a complainant in developing, authoring, or initiating a complaint to be filed with the board if
  the board member determines that there are reasonable grounds to believe that a particular statute, rule, or
  standard has been violated."
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           Section 3. Section 37-1-316, MCA, is amended to read:
           "37-1-316.    Unprofessional conduct. (1) The following is unprofessional conduct for a licensee or
  license applicant governed by this part:
           (1)(a)   conviction, including conviction following a plea of nolo contendere, of a crime relating to or
  committed during the course of the person's practice or involving violence, use or sale of drugs, fraud, deceit, or
  theft, whether or not an appeal is pending;
           (2)(b)   permitting, aiding, abetting, or conspiring with a person to violate or circumvent a law relating to
  licensure or certification;
           (3)(c)   fraud, misrepresentation, deception, or concealment of a material fact in applying for or
  assisting in securing a license or license renewal or in taking an examination required for licensure;
           (4)(d)   signing or issuing, in the licensee's professional capacity, a document or statement that the
  licensee knows or reasonably ought to know contains a false or misleading statement;
           (5)(e)   a misleading, deceptive, false, or fraudulent advertisement or other representation in the
  conduct of the profession or occupation;
           (6)(f)   offering, giving, or promising anything of value or benefit to a federal, state, or local
  government employee or official for the purpose of influencing the employee or official to circumvent a federal,
  state, or local law, rule, or ordinance governing the licensee's profession or occupation;
           (7)(g)   denial, suspension, revocation, probation, fine, or other license restriction or discipline against
  a licensee by a state, province, territory, or Indian tribal government or the federal government if the action is
  not on appeal, under judicial review, or has been satisfied;
           (8)(h)   failure to comply with a term, condition, or limitation of a license by final order of a board;
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68th Legislature 2023                                                                                                  HB 443.1
            (9)(i)     revealing confidential information obtained as the result of a professional relationship without
  the prior consent of the recipient of services, except as authorized or required by law;
            (10)(j) use of alcohol, a habit-forming drug, or a controlled substance as defined in Title 50, chapter 32,
  to the extent that the use impairs the user physically or mentally in the performance of licensed professional
  duties;
            (11)(k) having a physical or mental disability that renders the licensee or license applicant unable to
  practice the profession or occupation with reasonable skill and safety;
            (12)(l) engaging in conduct in the course of one's practice while suffering from a contagious or
  infectious disease involving serious risk to public health or without taking adequate precautions, including but
  not limited to informed consent, protective gear, or cessation of practice;
            (13)(m) misappropriating property or funds from a client or workplace or failing to comply with a board
  rule regarding the accounting and distribution of a client's property or funds;
            (14)(n) interference with an investigation or disciplinary proceeding by willful misrepresentation of
  facts, by the use of threats or harassment against or inducement to a client or witness to prevent them from
  providing evidence in a disciplinary proceeding or other legal action, or by use of threats or harassment against
  or inducement to a person to prevent or attempt to prevent a disciplinary proceeding or other legal action from
  being filed, prosecuted, or completed;
            (15)(o) assisting in the unlicensed practice of a profession or occupation or allowing another person or
  organization to practice or offer to practice by use of the licensee's license;
            (16)(p) failing to report the institution of or final action on a malpractice action, including a final decision
  on appeal, against the licensee or of an action against the licensee by a:
            (a)(i)     peer review committee;
            (b)(ii)    professional association; or
            (c)(iii)   local, state, federal, territorial, provincial, or Indian tribal government;
            (17)(q) failure of a health care provider, as defined in 27-6-103, to comply with a policy or practice
  implementing 28-10-103(3)(a);
            (18)(r) conduct that does not meet the generally accepted standards of practice. A certified copy of a
  malpractice judgment against the licensee or license applicant or of a tort judgment in an action involving an act
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68th Legislature 2023                                                                                             HB 443.1
  or omission occurring during the scope and course of the practice is conclusive evidence of but is not needed to
  prove conduct that does not meet generally accepted standards.
          (19)(s) the sole use of any electronic means, including teleconferencing, to obtain the information
  required for the written certification and accompanying statements used to apply for a registry identification card
  pursuant to Title 16, chapter 12, part 5.
          (2)      Notwithstanding the provisions of this section or any other provision of this title governing
  unprofessional conduct of a licensee or a license applicant under this title, it is not unprofessional conduct for a
  licensee or a license applicant under this title to engage in the free exercise of religion or the freedom of speech
  and expression as protected under the Montana constitution or the United States constitution."
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          Section 4. Section 37-1-402, MCA, is amended to read:
          "37-1-402.    Unprofessional conduct -- complaint -- investigation -- immunity. (1) A person,
  government, or private entity may submit a written complaint to the department charging a licensee or license
  applicant with a violation of this part and specifying the grounds for the complaint.
          (2)      If the department receives a written complaint or otherwise obtains information that a licensee
  or license applicant may have violated a requirement of this part, the department may investigate to determine
  whether there is reasonable cause to believe that the licensee or license applicant has committed the violation.
  However, if the written complaint or information that a licensee or license applicant may have violated a
  requirement of this part is based on the free exercise of religion or the freedom of speech and expression as
  protected under the Montana constitution or the United States constitution, then the investigation of the licensee
  or license applicant must cease immediately and the complaint must be dismissed unless the alleged violation
  results from conduct that is not the free exercise of religion or the freedom of speech and expression.
          (3)      A person or private entity, but not a government entity, filing a complaint under this section in
  good faith is immune from suit in a civil action related to the filing or contents of the complaint."
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          Section 5. Section 37-1-410, MCA, is amended to read:
          "37-1-410.    Unprofessional conduct. (1) The following is unprofessional conduct for a licensee or
  license applicant in a profession or occupation governed by this part:
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68th Legislature 2023                                                                                                 HB 443.1
           (1)(a)   being convicted, including a conviction following a plea of nolo contendere and regardless of a
  pending appeal, of a crime relating to or committed during the course of practicing the person's profession or
  occupation or involving violence, the use or sale of drugs, fraud, deceit, or theft;
           (2)(b)   permitting, aiding, abetting, or conspiring with a person to violate or circumvent a law relating to
  licensure or certification;
           (3)(c)   committing fraud, misrepresentation, deception, or concealment of a material fact in applying
  for or assisting in securing a license or license renewal or in taking an examination required for licensure;
           (4)(d)   signing or issuing, in the licensee's professional capacity, a document or statement that the
  licensee knows or reasonably ought to know contains a false or misleading statement;
           (5)(e)   making a misleading, deceptive, false, or fraudulent advertisement or other representation in
  the conduct of the profession or occupation;
           (6)(f)   offering, giving, or promising anything of value or benefit to a federal, state, or local
  government employee or official for the purpose of influencing the employee or official to circumvent a federal,
  state, or local law, rule, or ordinance governing the licensee's profession or occupation;
           (7)(g)   receiving a denial, suspension, revocation, probation, fine, or other license restriction or
  discipline against a licensee by a state, province, territory, or Indian tribal government or the federal
  government if the action is not on appeal or under judicial review or has been satisfied;
           (8)(h)   failing to comply with a term, condition, or limitation of a license by final order of the
  department;
           (9)(i)   having a physical or mental disability that renders the licensee or license applicant unable to
  practice the profession or occupation with reasonable skill and safety;
           (10)(j) misappropriating property or funds from a client or workplace or failing to comply with the
  department's rule regarding the accounting and distribution of a client's property or funds;
           (11)(k) interfering with an investigation or disciplinary proceeding by willful misrepresentation of facts,
  failure to respond to department inquiries regarding a complaint against the licensee or license applicant, or the
  use of threats or harassment against or inducement to a client or witness to prevent them from providing
  evidence in a disciplinary proceeding or other legal action or use of threats or harassment against or
  inducement to a person to prevent or attempt to prevent a disciplinary proceeding or other legal action from
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68th Legislature 2023                                                                                              HB 443.1
  being filed, prosecuted, or completed;
          (12)(l) assisting in the unlicensed practice of a profession or occupation or allowing another person or
  organization to practice or offer to practice the profession or occupation by use of the licensee's license;
          (13)(m) using alcohol, an illegal drug, or a dangerous drug, as defined in Title 50, chapter 32, to the
  extent that the use impairs the user physically or mentally in the performance of licensed professional duties; or
          (14)(n)   exhibiting conduct that does not meet generally accepted standards of practice. A certified
  copy of a judgment against the licensee or license applicant or of a tort judgment in an action involving an act or
  omission occurring within the scope of practice and the course of the practice is considered conclusive
  evidence of but is not needed to prove conduct that does not