Bill Summary – FastDemocracy

67th Legislature                                                                                                  HB 687.1
                                                    HOUSE BILL NO. 687
                                             INTRODUCED BY D. TENENBAUM
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   A BILL FOR AN ACT ENTITLED: “AN ACT ESTABLISHING THE MORTALITY REVIEW COMMISSION FOR
   INDIVIDUALS WITH DEVELOPMENTAL DISABILITIES; PROVIDING CONFIDENTIALITY; PROVIDING AN
   APPROPRIATION; AMENDING SECTIONS 44-5-303, 50-16-522, 50-16-525, 50-16-804, 50-16-805, AND 52-
   3-813, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.”
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              NEW SECTION. Section 1.         Mortality review commission for individuals with developmental
   disabilities. (1) There is a mortality review commission for individuals with developmental disabilities attached
   for administrative purposes only to the department of public health and human services to carry out the duties
   described in [section 2].
              (2)   The department director or the director's designee shall appoint the following members to the
   commission:
              (a)   a representative of the department division that administers services for people with
   developmental disabilities;
              (b)   a representative of the adult protective services function provided by the department;
              (c)   a representative of the licensure function provided by the department;
              (d)   a representative of the state protection and advocacy program for individuals with developmental
   disabilities, as authorized by 42 U.S.C. 15043;
              (e)   a physician who has experience with individuals with developmental disabilities;
              (f)   a provider of developmental disabilities services; and
              (g)   a family member of an individual with a developmental disability.
              (3)   The members shall serve without compensation by the commission but may be reimbursed for
   travel expenses as provided in 2-18-501 through 2-18-503. Members who are full-time salaried officers or
   employees of the state or of any political subdivision of the state are entitled to their regular compensation.
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67th Legislature                                                                                                    HB 687.1
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              NEW SECTION. Section 2.        Mortality review commission -- duties -- confidentiality -- report to
   legislature. (1) The mortality review commission established in [section 1] shall review the deaths of individuals
   with developmental disabilities that occurred while under the care of a health care facility, as defined in 50-5-
   101, or while receiving community-based services to:
              (a)   examine relevant records, discuss what occurred, and determine whether the situation was
   handled properly. If a majority of the commission determines that a situation was handled improperly, the
   commission shall provide written recommendations suggesting alternative practices to the division administrator
   of the quality assurance division of the department and any other appropriate person, as determined by the
   commission;
              (b)   identify trends, help direct training and education, and provide information to providers regarding
   the prevention of deaths and best practices; and
              (c)   make recommendations regarding systemic issues, trends, and training needs. The commission
   shall provide the recommendations annually to the children, families, health, and human services interim
   committee and to the legislature, in accordance with 5-11-210.
              (2)   The commission members may determine the frequency with which the commission meets, but
   the commission shall meet at least once a year. The commission may meet in person or by electronic means.
              (3)   On written request from the commission, a person who possesses records relevant to a review
   being conducted under this section shall, as soon as practicable, provide the commission with the records.
              (4)   The meetings and proceedings of the commission are confidential and are exempt from the
   provisions of Title 2, chapter 3.
              (5)   (a) The records of the commission are confidential and exempt from the provisions of Title 2,
   chapter 6. The records are not subject to subpoena, discovery, or introduction into evidence in a civil or criminal
   action unless the records are reviewed by a district court judge in camera and ordered to be provided to the
   person seeking access.
              (b)   The commission shall disclose conclusions and recommendations on request but may not
   disclose records that are otherwise confidential.
              (c)   The commission may not use the records for purposes other than those allowed under subsection
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   (1).
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              Section 3. Section 44-5-303, MCA, is amended to read:
              "44-5-303.    (Temporary) Dissemination of confidential criminal justice information -- procedure
   for dissemination through court. (1) Except as provided in subsections (2) through (4), dissemination of
   confidential criminal justice information is restricted to criminal justice agencies, to those authorized by law to
   receive it, and to those authorized to receive it by a district court upon a written finding that the demands of
   individual privacy do not clearly exceed the merits of public disclosure. Permissible dissemination of confidential
   criminal justice information under this subsection includes receiving investigative information from and sharing
   investigative information with a chief of a governmental fire agency organized under Title 7, chapter 33, or fire
   marshal concerning the criminal investigation of a fire.
              (2)   If the prosecutor determines that dissemination of confidential criminal justice information would
   not jeopardize a pending investigation or other criminal proceeding, the information may be disseminated to a
   victim of the offense by the prosecutor or by the investigating law enforcement agency after consultation with
   the prosecutor.
              (3)   Unless otherwise ordered by a court, a person or criminal justice agency that accepts confidential
   criminal justice information assumes equal responsibility for the security of the information with the originating
   agency. Whenever confidential criminal justice information is disseminated, it must be designated as
   confidential.
              (4)   The county attorney or the county attorney's designee is authorized to receive confidential criminal
   justice information for the purpose of cooperating with the child abuse and neglect review commission
   established in 2-15-2019, the mortality review commissions for individuals with developmental disabilities
   established in [section 1], and local fetal, infant, child, and maternal mortality review teams. The county attorney
   or the county attorney's designee may, in that person's discretion, disclose information determined necessary to
   the goals of the review commission commissions or the review team. The review commission commissions, the
   review team, and the county attorney or the county attorney's designee shall maintain the confidentiality of the
   information.
              (5)   (a) If a prosecutor receives a written request for release of confidential criminal justice information
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67th Legislature                                                                                                      HB 687.1
   relating to a criminal investigation that has been terminated by declination of prosecution or relating to a
   criminal prosecution that has been completed by entry of judgment, dismissal, or acquittal, the prosecutor may
   file a declaratory judgment action with the district court pursuant to the provisions of the Uniform Declaratory
   Judgments Act, Title 27, chapter 8, for release of the information. The prosecutor shall:
              (i)   file the action in the name of the city or county that the prosecutor represents and describe the
   city's or county's interest;
              (ii) list as defendants anyone known to the prosecutor who has requested the confidential criminal
   justice information and anyone affected by release of the information;
              (iii) request that the prosecutor be allowed to deposit the investigative file and any edited version of the
   file with the court pursuant to the provisions of Title 27, chapter 8;
              (iv) request the court to:
              (A)    conduct an in camera review of the confidential criminal justice information to determine whether
   the demands of individual privacy do not clearly exceed the merits of public disclosure; and
              (B)    order the release to the requesting party defendant of whatever portion of the investigative
   information or edited version of the information the court determines appropriate.
              (b)   In making an order authorizing the release of information under subsection (5)(a), the court shall
   make a written finding that the demands of individual privacy do not clearly exceed the merits of public
   disclosure and authorize, upon payment of reasonable reproduction costs, the release of appropriate portions
   of the edited or complete confidential criminal justice information to persons who request the information.
              (c)   In an action filed for the court-ordered release of confidential criminal justice information under
   subsection (5)(a), the parties shall bear their respective costs and attorney fees.
              (6)   The procedures set forth in subsection (5) are not an exclusive remedy. A person or organization
   may file any action for dissemination of information that the person or organization considers appropriate and
   permissible. (Terminates September 30, 2021--sec. 12, Ch. 235, L. 2017.)
              44-5-303. (Effective October 1, 2021) Dissemination of confidential criminal justice information
   -- procedure for dissemination through court. (1) Except as provided in subsections (2) through (4),
   dissemination of confidential criminal justice information is restricted to criminal justice agencies, to those
   authorized by law to receive it, and to those authorized to receive it by a district court upon a written finding that
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   the demands of individual privacy do not clearly exceed the merits of public disclosure. Permissible
   dissemination of confidential criminal justice information under this subsection includes receiving investigative
   information from and sharing investigative information with a chief of a governmental fire agency organized
   under Title 7, chapter 33, or fire marshal concerning the criminal investigation of a fire.
              (2)   If the prosecutor determines that dissemination of confidential criminal justice information would
   not jeopardize a pending investigation or other criminal proceeding, the information may be disseminated to a
   victim of the offense by the prosecutor or by the investigating law enforcement agency after consultation with
   the prosecutor.
              (3)   Unless otherwise ordered by a court, a person or criminal justice agency that accepts confidential
   criminal justice information assumes equal responsibility for the security of the information with the originating
   agency. Whenever confidential criminal justice information is disseminated, it must be designated as
   confidential.
              (4)   The county attorney or the county attorney's designee is authorized to receive confidential criminal
   justice information for the purpose of cooperating with the mortality review commission for individuals with
   developmental disabilities established in [section 1] or local fetal, infant, child, and maternal mortality review
   teams. The county attorney or the county attorney's designee may, in that person's discretion, disclose
   information determined necessary to the goals of the review commission or review team. The review
   commission, review team, and the county attorney or the designee shall maintain the confidentiality of the
   information.
              (5)   (a) If a prosecutor receives a written request for release of confidential criminal justice information
   relating to a criminal investigation that has been terminated by declination of prosecution or relating to a
   criminal prosecution that has been completed by entry of judgment, dismissal, or acquittal, the prosecutor may
   file a declaratory judgment action with the district court pursuant to the provisions of the Uniform Declaratory
   Judgments Act, Title 27, chapter 8, for release of the information. The prosecutor shall:
              (i)   file the action in the name of the city or county that the prosecutor represents and describe the
   city's or county's interest;
              (ii) list as defendants anyone known to the prosecutor who has requested the confidential criminal
   justice information and anyone affected by release of the information;
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67th Legislature                                                                                                       HB 687.1
              (iii) request that the prosecutor be allowed to deposit the investigative file and any edited version of the
   file with the court pursuant to the provisions of Title 27, chapter 8;
              (iv) request the court to:
              (A)   conduct an in camera review of the confidential criminal justice information to determine whether
   the demands of individual privacy do not clearly exceed the merits of public disclosure; and
              (B)   order the release to the requesting party defendant of whatever portion of the investigative
   information or edited version of the information the court determines appropriate.
              (b)   In making an order authorizing the release of information under subsection (5)(a), the court shall
   make a written finding that the demands of individual privacy do not clearly exceed the merits of public
   disclosure and authorize, upon payment of reasonable reproduction costs, the release of appropriate portions
   of the edited or complete confidential criminal justice information to persons who request the information.
              (c)   In an action filed for the court-ordered release of confidential criminal justice information under
   subsection (5)(a), the parties shall bear their respective costs and attorney fees.
              (6)   The procedures set forth in subsection (5) are not an exclusive remedy. A person or organization
   may file any action for dissemination of information that the person or organization considers appropriate and
   permissible."
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              Section 4. Section 50-16-522, MCA, is amended to read:
              "50-16-522. Representative of deceased patient. Except as provided in [41-3-123 and] 50-19-402
   and [section 2], a personal representative of a deceased patient may exercise all of the deceased patient's
   rights under this part. If there is no personal representative or upon discharge of the personal representative, a
   deceased patient's rights under this part may be exercised by the surviving spouse, a parent, an adult child, an
   adult sibling, or any other person who is authorized by law to act for the deceased patient. (Bracketed language
   terminates September 30, 2021--sec. 12, Ch. 235, L. 2017.)"
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              Section 5. Section 50-16-525, MCA, is amended to read:
              "50-16-525. Disclosure by health care provider. (1) Except as authorized in [ 41-3-123,] 50-16-529,
   50-16-530, and 50-19-402, and [section 2] or as otherwise specifically provided by law or the Montana Rules of
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   Civil Procedure, a health care provider, an individual who assists a health care provider in the delivery of health
   care, or an agent or employee of a health care provider may not disclose health care information about a
   patient to any other person without the patient's written authorization. A disclosure made under a patient's
   written authorization must conform to the authorization.
              (2)   A health care provider shall maintain, in conjunction with a patient's recorded health care
   information, a record of each person who has received or examined, in whole or in part, the recorded health
   care information during the preceding 3 years, except for a person who has examined the recorded health care
   information under 50-16-529(1) or (2). The record of disclosure must include the name, address, and
   institutional affiliation, if any, of each person re