67th Legislature SB 282.1
1 SENATE BILL NO. 282
2 INTRODUCED BY T. MANZELLA
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS RELATED TO THE RIGHT OF
5 PARENTS TO DIRECT, CONTROL, AND REMAIN INFORMED ABOUT A MINOR CHILD'S HEALTH CARE;
6 RESTRICTING THE ABILITY OF A MINOR TO CONSENT TO HEALTH SERVICES; MANDATING THE
7 RELEASE OF RECORDS AND INFORMATION ABOUT A MINOR'S MEDICAL TREATMENT TO THE
8 MINOR'S PARENTS; LIMITING THE ABILITY OF THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN
9 SERVICES AND LOCAL BOARDS OF HEALTH TO REMOVE MINOR CHILDREN FROM THE HOME FOR
10 THE PURPOSE OF QUARANTINE AND ISOLATION; PROVIDING A PROCESS FOR APPEAL OF THE
11 DECISION TO TERMINATE LIFE-SUSTAINING TREATMENT OF A MINOR CHILD; AND AMENDING
12 SECTIONS 41-1-402, 41-1-403, 41-1-404, 41-7-102, 50-1-204, AND 50-2-118, MCA.”
13
14 WHEREAS, parents who have legal custody of any minor child or children have the fundamental right
15 and duty to make decisions concerning their health care without unnecessary interference or restriction; and
16 WHEREAS, the decision of whether or not to continue life-sustaining treatment for a minor child is a
17 desperate and difficult decision for a parent, and the consequences of the decision is an interest far more
18 precious than any property right and equals or exceeds the detriment of criminal sanctions; and
19 WHEREAS, when a decision is made to terminate life-sustaining treatment of a minor child against the
20 wishes of a parent, the parent should have the right to fundamental due process; and
21 WHEREAS, while government has a strong interest in controlling communicable diseases, especially in
22 an epidemic or pandemic, this interest does not eliminate a parent's right and interest in decisionmaking
23 regarding the quarantine and isolation of minor children.
24
25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
26
27 Section 1. Section 41-1-402, MCA, is amended to read:
28 "41-1-402. Validity of consent of minor for health services. (1) Except as provided in subsections
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1 (2) through (5) and unless parental rights have been terminated, a health professional, health care facility, or
2 other person or entity shall obtain written or oral consent from the parent, custodian, or guardian prior to
3 perf orming health services on a minor, including but not limited to:
4 (a) physical examination;
5 (b) surgical procedures;
6 (c) prescription of pharmaceuticals; or
7 (d) mental health evaluation or treatment in a clinical or nonclinical setting.
8 (1)(2) This part does not limit the right of an emancipated minor to consent to the provision of health
9 services or to control access to protected health care information under applicable law.
10 (2) The consent to the provision of health services and to control access to protected health care
11 inf ormation by a health care facility or to the performance of health services by a health professional may be
12 given by a minor who professes or is found to meet any of the following descriptions:
13 (a) a minor who professes to be or to have been married or to have had a child or graduated from
14 high school;
15 (b) a minor who professes to be or is found to be separated from the minor's parent, parents, or legal
16 guardian f or whatever reason and is providing self-support by whatever means;
17 (c) a minor who professes or is found to be pregnant or afflicted with any reportable communicable
18 disease, including a sexually transmitted disease, or drug and substance abuse, including alcohol. This self -
19 consent applies only to the prevention, diagnosis, and treatment of those conditions specified in this subsection.
20 The self -consent in the case of pregnancy, a sexually transmitted disease, or drug and substance abuse also
21 obliges the health professional, if the health professional accepts the responsibility for treatment, to counsel the
22 minor or to refer the minor to another health professional for counseling.
23 (d) a minor who needs emergency care, including transfusions, without which the minor's health will
24 be jeopardized. If emergency care is rendered, the parent, parents, or legal guardian must be informed as soon
25 as practical except under the circumstances mentioned in this subsection (2).
26 (3) Subsection (1) does not apply when it has been determined by a physician that an emergency
27 exists and that it is necessary to perform health services as described in subsection (1) f or the treatment of an
28 injury or drug abuse, to save the minor's life, to prevent serious injury, or when a parent, custodian, or guardian
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1 cannot be contacted after a reasonably diligent effort.
2 (4) Subsection (1) does not apply to abortion, which is governed by Title 50, chapter 20, part 5.
3 (3)(5) A minor who has had a child may give effective consent to health service for the child.
4 (4)(6) A minor may give consent for health care for the minor's spouse if the spouse is unable to give
5 consent by reason of physical or mental incapacity.
6 (7) If parental consent is given through telemedicine, the health professional shall verify the identity of
7 the parent at the site where the consent is given.
8 (8) A person convicted of violating this section is guilty of a misdemeanor punishable by a fine not to
9 exceed $1,000 or imprisonment in the county jail for a term not to exceed 1 year, or both."
10
11 Section 2. Section 41-1-403, MCA, is amended to read:
12 "41-1-403. Release of information by health professional. (1) Except with regard to an
13 emancipated minor, a health professional may shall inform the parent, custodian, or guardian of a minor in the
14 circumstances enumerated in 41-1-402(3) of any treatment given or needed when:
15 (a) in the judgment of the health professional, severe complications are present or anticipated;
16 (b) major surgery or prolonged hospitalization is needed;
17 (c) f ailure to inform the parent, parents, or legal guardian would seriously jeopardize the safety and
18 health of the minor patient, younger siblings, or the public;
19 (d) inf orming them would benefit the minor's physical and mental health and family harmony; or
20 (e) the health professional or health care facility providing treatment desires a third-party commitment
21 to pay for services rendered or to be rendered.
22 (2) Notification or disclosure to the parent, parents, custodian, or legal guardian by the health
23 prof essional may not constitute libel or slander, a violation of the right of privacy, a violation of the rule of
24 privileged communication, or any other legal basis of liability. If the minor is found not to be pregnant or not
25 af f licted with a sexually transmitted disease or not suffering from drug abuse or substance abuse, including
26 alcohol, then information with respect to any appointment, examination, test, or other health procedure may not
27 be given to the parent, parents, or legal guardian, if they have not already been informed as permitted in this
28 part, without the consent of the minor."
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1
2 Section 3. Section 41-1-404, MCA, is amended to read:
3 "41-1-404. Financial responsibility of minor. Consent of the minor shall not may be subject to later
4 disaffirmance or revocation because of minority if obtained in violation of 41-1-402. The spouse, parent,
5 parents, custodian, or legal guardian of a consenting minor shall not be is not liable for payment for such a
6 service unless the spouse, parent, parents, custodian, or legal guardian have expressly agreed to pay for such
7 the care. Minors so consenting for such health services shall thereby assume financial responsibility for the cost
8 of said services, except those who are proven unable to pay and who receive the services in public institutions.
9 If the minor is covered by health insurance, payment may be applied for services rendered."
10
11 Section 4. Section 41-7-102, MCA, is amended to read:
12 "41-7-102. Policy and guiding principles. (1) It is the policy of the state of Montana to support and
13 preserve the family as the single most powerful influence for ensuring the healthy social development and
14 mental and physical well-being of Montana's children.
15 (2) Unless parental rights have been terminated, parents of any minor child or children have the
16 f undamental right and duty to make decisions concerning their health care without unnecessary interference or
17 restriction. This includes the right to access and review all medical records of the minor child unless the parent
18 is the subject of an investigation of a crime committed against the minor child and a law enforcement official
19 requests that the information not be released. This also includes the right to be immediately informed of the
20 location in which the child is receiving medical treatment, and the right to visit the child at the facility.
21 (2)(3) The f ollowing principles must guide the actions of state government, state agencies, and agents
22 of the state that serve children and families:
23 (a) Family support and preservation must be guiding philosophies when the state, state agencies, or
24 agents of the state plan or implement services for children or families. The state shall promote the
25 establishment of a range of services to children and families, including the following components:
26 (i) supporting families toward healthy development by providing a community network that offers a
27 range of family support services, activities, and programs designed to promote family well-being, with services
28 that include prenatal care, parenting education, parent aides, and visiting nurses; early childhood screening and
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1 developmental services; child care; and family recreation;
2 (ii) assisting vulnerable families before crises emerge by providing specialized services to strengthen
3 and preserve families experiencing problems before they become acute and by providing early intervention and
4 f amily support services, such as respite care, health and mental health services, and home-based rehabilitation
5 services linked to services in subsection (2)(a)(i); and
6 (iii) protecting and caring for children in crisis by providing intensive services to protect children who
7 have suf fered or are at risk of suffering serious harm from child abuse and neglect, by providing care for
8 children at risk of out-of-home placement for emotional disturbances or behavior problems, and by providing
9 f amily support services to ensure that reasonable efforts are made to safely maintain children in their own
10 homes or to provide temporary or permanent care for children who are removed from their families. These
11 services include family-based services to avoid removal from the home whenever possible and to provide out-
12 of -home care, reunification services, adoption services, and long-term substitute care.
13 (b) To maximize resources and establish a range of services driven by the needs of families rather
14 than by a predetermined array of categorical services, the state, state agencies, and agents of the state shall
15 work toward a system of comprehensive and coordinated services to children and families through joint agency
16 planning, joint financing, joint service delivery, common intake and assessment, and other arrangements that
17 promote more effective support for families.
18 (c) Needed services to children and families should be provided as close as possible to the home
19 community. The state, state agencies, and agents of the state shall encourage community planning and
20 collaboration. State agencies shall cooperate to support collaborative programs.
21 (d) The state encourages all sectors of society to participate in building the community capacity to
22 meet the needs of children and families.
23 (3)(4) The f amily policy objectives described in this section are intended to guide the state's efforts to
24 provide services to children and families. This section may not be construed to require a service or a particular
25 level of service or to grant a right of action to enforce this section or other law."
26
27 Section 5. Section 50-1-204, MCA, is amended to read:
28 "50-1-204. Quarantine and isolation measures -- limitations on department authority --
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1 penalties. The (1) Except as provided in subsection (2), the department may adopt and enforce quarantine or
2 isolation measures to prevent the spread of communicable disease.
3 (2) (a) The department shall offer a household the option to quarantine together within the home
4 rather than removing a minor child from the home for quarantine.
5 (b) The department shall not adopt or enforce quarantine measures that:
6 (i) remove a minor child from the child's home for the purpose of quarantine unless the parent
7 consents or the household refuses to participate in a household quarantine; or
8 (ii) remove a minor child from the child's home for the purpose of quarantine if the removal decision is
9 based solely on the size of the home or the number of bathrooms in the home.
10 (c) If a parent consents to a child being removed from the home for the purpose of quarantine under
11 subsection (2)(b)(i), the department shall:
12 (i) inf orm the parent of the child's location at all times and provide opportunities for safe visitation and
13 communication; and
14 (ii) avoid interviews with the minor child except to the extent necessary to facilitate the child's care in
15 the f acility.
16 (3) A person who does not comply with quarantine measures shall, on conviction, be fined not less
17 than $10 or more than $100. Receipts from fines, except justice's court fines, must be deposited in the state
18 general f und."
19
20 Section 6. Section 50-2-118, MCA, is amended to read:
21 "50-2-118. Powers and duties of local health officers. In order to carry out the purpose of the
22 public health system, in collaboration with federal, state, and local partners, local health officers or their
23 authorized representatives shall:
24 (1) make inspections for conditions of public health importance and issue written orders for
25 compliance or for correction, destruction, or removal of the condition;
26 (2) take steps to limit contact between people in order to protect the public health from imminent
27 threats, including but not limited to ordering the closure of buildings or facilities where people congregate and
28 canceling events;
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1 (3) report communicable diseases to the department as required by rule;
2 (4) establish and maintain quarantine and isolation measures as adopted by the local board of health,
3 provided that:
4 (a) a household must be offered the option to quarantine together within the home rather than having
5 a minor child removed from the home for quarantine;
6 (b) no quarantine and isolation measures may be adopted that:
7 (i) remove a minor child from the child's home for the purpose of quarantine unless the parent
8 consents or the household refuses to participate in a household quarantine; or
9 (ii) remove a minor child from the child's home for the purpose of quarantine if the removal decision is
10 based solely on the size of the home or the number of bathrooms in the home; and
11 (c) if a parent consents to a child being removed from the home for the purpos e of quarantine under
12 subsection (4)(b)(i), the local health officers shall:
13 (i) inf orm the parent of the child's location at all times and provide opportunities for safe visitation and
14 communication; and
15 (ii) avoid interviews with the minor child except to the extent necessary to facilitate the child's care in
16 the f acility; and
17 (5) pursue action with the appropriate court if this chapter or rules adopted by the local board or
18 department under this chapter are violated."