BEFORE THE DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES OF THE
STATE OF MONTANA
In the matter of the amendment of ARM 37.93.101 pertaining to child-placing agency definitions
NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT
TO: All Concerned Persons
1. On March 3, 2022, at 9:00 a.m., the Department of Public Health and Human Services will hold a public hearing via remote conferencing to consider the proposed amendment of the above-stated rule. Interested parties may access the remote conferencing platform in the following ways:
(a) Join Zoom Meeting at: https://mt-gov.zoom.us/j/82003773231; meeting ID: 820 0377 3231; or
(b) Dial by telephone +1 646 558 8656; meeting ID: 820 0377 3231. Find your local number: https://mt-gov.zoom.us/u/kn2ZOwSGX.
2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on February 18, 2022, to advise us of the nature of the accommodation that you need. Please contact Valerie St. Clair, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-6863; fax (406) 444-9744; or e-mail firstname.lastname@example.org.
3. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:
37.93.101 CHILD-PLACING AGENCY: DEFINITIONS
(1) (4) "Child-placing agency" (agency) means any corporation, partnership, association, firm, agency, institution, or person, other than an attorney or health care provider acting under 52-8-103(2), MCA, who places or who arranges for the placement of any child with any family, person, or facility not related by blood or marriage, either for foster care or for adoption.
(a) remains the same.
(2) remains the same but is renumbered (5).
(3) remains the same.
(4) remains the same but is renumbered (2).
(5) remains the same but is renumbered (1).
AUTH: 53-4-111, 53-4-403, MCA
IMP: 53-4-113, 53-4-403, MCA
4. STATEMENT OF REASONABLE NECESSITY
The Department of Public Health and Human Services (department) is proposing to amend ARM 37.93.101 pertaining to child-placing agency definitions. The department is proposing to amend the rule to update the definition of one of the terms commonly used within the child-placing agency administrative rules under ARM Title 37, chapter 93. The department also proposes renumbering the definitions to place them in alphabetical order.
The proposed amendment to ARM 37.93.101 amends the definition of "child-placing agency" by adding the words "other than an attorney or health care provider acting under 52-8-103(2), MCA" which provides an exception to the term, and makes the definition consistent with the updated language in 42-7-105 and 52-8-103, MCA from House Bill 502 in the 2021 Legislative Session. Section 42-7-105 provides for penalties for certain adoption placement actions, applicable to any person, except for the department, an attorney, or health care provider acting under 52-8-103(2), MCA or a licensed child-placing agency.
Similarly, under 52-8-103(1), MCA, and subject to an exception in 52-8-103(2), MCA, only an entity with a child-placing agency license may engage in certain adoption and foster care activities. Section 52-8-103(2), MCA, quoted below, permits attorneys and health care providers to assist with certain adoption activities without a child-placing agency license:
(a) An attorney and health care provider may assist a parent in identifying or locating a person interested in adopting the parent's child or in identifying or locating a child to be adopted, provided that the attorney or health care provider shall also provide an expectant parent and prospective adoptive parent with a list of agencies licensed to assist with adoption support services and counseling. No payment, charge, fee, reimbursement of expense, or exchange of value of any kind may be made to the attorney or health care provider assisting the parent. (b) An adoption in which an attorney or health care provider assists as allowed under subsection (2)(a) must comply with the provisions of Title 42 and this chapter.
Consistent with the 2021 changes in the statutes, the purpose of the amendment is to make it clear that attorneys and health care providers acting under 52-8-103(1)(d), MCA may engage in the identified activities without becoming a child-placing agency that is required to be licensed.
There is no anticipated fiscal impact associated with this rulemaking under 2-4-111 or 2-4-302(1)(c), MCA.
5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Valerie St. Clair, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail email@example.com, and must be received no later than 5:00 p.m., March 11, 2022.
6. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.
7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.
8. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was notified by email on January 12, 2022.
9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rule will not significantly and directly impact small businesses.
/s/ Ashley D. Morigeau /s/ Adam Meier
Ashley D. Morigeau Adam Meier, Director
Rule Reviewer Public Health and Human Services
Certified to the Secretary of State February 1, 2022.