MONTANA.  Montana Code Annotated. 

 

* * *

TITLE 33. INSURANCE AND INSURANCE COMPANIES

* * *

CHAPTER 22. DISABILITY INSURANCE

* * *

Part 15. Comprehensive Health Association and Plan

* * *

33-22-1521. Association plan -- minimum benefits. A plan of health coverage must be certified as an association plan if it otherwise meets the requirements of Title 33, chapters 15, 22 (excepting 33-22-701 through 33-22-705), and 30, and other laws of this state, whether or not the policy is issued in this state, and meets or exceeds the following minimum standards:
     (1) (a) The minimum benefits for an insured must, subject to the other provisions of this section, be equal to at least 50% of the covered expenses required by this section in excess of an annual deductible that does not exceed $1,000 per person. The coverage must include a limitation of $5,000 per person on the total annual out-of-pocket expenses for services covered under this section. Coverage must be subject to a maximum lifetime benefit, but the maximums may not be less than $100,000.
     (b) One association plan must be offered with coverage for 80% of the covered expenses provided in this section in excess of an annual deductible that does not exceed $1,000 per person. This association plan must provide a maximum lifetime benefit of at least $500,000.
     (c) Covered expenses for plans under subsection (1)(a) and (1)(b) must be paid as specified in provider contracts or, in the absence of a provider contract, at the prevailing charge in the state where the service is provided.
     (d) The board may authorize other association plans, including managed care plans as defined in 33-36-103.
     (2) Covered expenses for plans offered under subsections (1)(a) and (1)(b) must be for the following medically necessary services and articles when prescribed by a physician or other licensed health care professional and when designated in the contract:
     (a) hospital services;
     (b) professional services for the diagnosis or treatment of injuries, illness, or conditions, other than dental;
     (c) use of radium or other radioactive materials;
     (d) oxygen;
     (e) anesthetics;
     (f) diagnostic x-rays and laboratory tests, except as specifically provided in subsection (3);
     (g) services of a physical therapist;
     (h) transportation provided by licensed ambulance service to the nearest facility qualified to treat the condition;
     (i) oral surgery for the gums and tissues of the mouth when not performed in connection with the extraction or repair of teeth or in connection with TMJ;
     (j) rental or purchase of durable medical equipment, which must be reimbursed after the deductible has been met at the rate of 50%, up to a maximum of $1,000;
     (k) prosthetics, other than dental;
     (l) services of a licensed home health agency, up to a maximum of 180 visits per year;
     (m) drugs requiring a physician's prescription that are approved for use in human beings in the manner prescribed by the United States food and drug administration, covered at 50% of the expense, up to an annual maximum of $2,000;
     (n) medically necessary, nonexperimental transplants of the kidney, pancreas, heart, heart/lung, lungs, liver, cornea, and high-dose chemotherapy bone marrow transplantation, limited to a lifetime maximum of $150,000, with an additional benefit not to exceed $10,000 for expenses associated with the donor;
     (o) pregnancy, including complications of pregnancy;
     (p) newborn infant coverage, as required by 33-22-301;
     (q) sterilization;
     (r) immunizations;
     (s) outpatient rehabilitation therapy;
     (t) foot care for diabetics;
     (u) services of a convalescent home, as an alternative to hospital services, limited to a maximum of 60 days per year;
     (v) travel, other than transportation by a licensed ambulance service, to the nearest facility qualified to treat the patients medical condition when approved in advance by the insurer; and
     (w) coverage for severe mental illness as required in 33-22-706.
     (3) (a) Covered expenses for the services or articles specified in this section do not include:
     (i) home and office calls, except as specifically provided in subsection (2);
     (ii) rental or purchase of durable medical equipment, except as specifically provided in subsection (2);
     (iii) the first $20 of diagnostic x-ray and laboratory charges in each 14-day period;
     (iv) oral surgery, except as specifically provided in subsection (2);
     (v) that part of a charge for services or articles that exceeds the prevailing charge in the state where the service is provided; or
     (vi) care that is primarily for custodial or domiciliary purposes that would not qualify as eligible services under medicare.
     (b) Covered expenses for the services or articles specified in this section do not include charges for:
     (i) care or for any injury or disease arising out of an injury in the course of employment and subject to a workers' compensation or similar law, for which benefits are payable under another policy of disability insurance or medicare;
     (ii) treatment for cosmetic purposes other than surgery for the repair or treatment of an injury or congenital bodily defect to restore normal bodily functions;
     (iii) travel other than transportation provided by a licensed ambulance service to the nearest facility qualified to treat the condition, except as provided by subsection (2);
     (iv) confinement in a private room to the extent that it is in excess of the institution's charge for its most common semiprivate room, unless the private room is prescribed as medically necessary by a physician;
     (v) services or articles the provision of which is not within the scope of authorized practice of the institution or individual rendering the services or articles;
     (vi) room and board for a nonemergency admission on Friday or Saturday;
     (vii) routine well baby care;
     (viii) complications to a newborn, unless no other source of coverage is available;
     (ix) reversal of sterilization;
     (x) abortion, unless the life of the mother would be endangered if the fetus were carried to term;
     (xi) weight modification or modification of the body to improve the mental or emotional well-being of an insured;
     (xii) artificial insemination or treatment for infertility; or
     (xiii) breast augmentation or reduction.

 

* * *

TITLE 37. PROFESSIONS AND OCCUPATIONS

* * *

CHAPTER 20. PHYSICIAN ASSISTANTS-CERTIFIED

* * *

 

37-20-103. Limitations on authority conferred -- exception. Except as provided in 37-10-102, nothing in this chapter may be construed to authorize a physician assistant-certified to perform those functions and duties specifically delegated by law to persons licensed as optometrists, as defined under Title 37, chapter 10. A physician assistant-certified may not perform an abortion.

 

* * *

TITLE 41. MINORS

CHAPTER 1. RIGHTS AND OBLIGATIONS OF MINORS

* * *

 

41-1-405. Emergencies and special situations. (1) A health professional may render or attempt to render emergency service or first aid, medical, surgical, dental, or psychiatric treatment, without compensation, to any injured person or any person regardless of age who is in need of immediate health care when, in good faith, the professional believes that the giving of aid is the only alternative to probable death or serious physical or mental damage.
     (2) A health professional may render nonemergency services to minors for conditions that will endanger the health or life of the minor if services would be delayed by obtaining consent from spouse, parent, parents, or legal guardian.
     (3) Consent may not be required of a minor who does not possess the mental capacity or who has a physical disability that renders the minor incapable of giving consent and who has no known relatives or legal guardians, if a physician determines that the health service should be given.
     (4) Self-consent of minors does not apply to sterilization or abortion, except as provided in Title 50, chapter 20, part 2.

 

* * *

TITLE 50. HEALTH AND SAFETY

* * *

CHAPTER 20. ABORTION

50-20-101. Short title. This chapter shall be known and may be cited as the "Montana Abortion Control Act".

 

50-20-102. Statement of purpose -- findings. (1) The legislature reaffirms the tradition of the state of Montana to protect every human life, whether unborn or aged, healthy or sick. In keeping with this tradition and in the spirit of our constitution, we reaffirm the intent to extend the protection of the laws of Montana in favor of all human life. It is the policy of the state to preserve and protect the lives of all human beings and to provide protection for the viable human life. The protection afforded to a person by Montana's constitutional right of privacy is not absolute, but may be infringed upon by a compelling state interest. The legislature finds that a compelling state interest exists in the protection of viable life.
     (2) The legislature finds, with respect to 50-20-401, that:
     (a) the United States supreme court has determined that states have a legitimate interest in protecting both a woman's health and the potentiality of human life and that each interest grows and reaches a compelling point at various stages of a woman's approach to the full term of a pregnancy;
     (b) the court has also determined that subsequent to viability, the state in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe abortion except when necessary, in appropriate medical judgment, for the preservation of the life or health of the woman;
     (c) the holdings referred to in subsections (2)(a) and (2)(b) apply to unborn persons in order to extend to unborn persons the inalienable right to defend their lives and liberties;
     (d) absent clear proof that an abortion is necessary to save the life of the woman, the abortion of a viable person is an infringement of that person's rights; and
     (e) the state has a duty to protect innocent life and that duty has grown to a compelling point with respect to partial-birth abortion.

 

50-20-103. Legislative intent. It is the intent of the legislature to restrict abortion to the extent permissible under decisions of appropriate courts or paramount legislation.

 

50-20-104. Definitions.    [The provisions of 50-20-104 to 50-20-106 have been held to be unconstitutional and unenforceable.]  As used in this chapter, the following definitions apply:       (1) "Abortion" means the use or prescription of any instrument, medicine, drug, or other substance or device to intentionally terminate the pregnancy of a woman known to be pregnant, with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.
     (2) "Attempted abortion" or "attempted" means an act or an omission of a statutorily required act that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance of an abortion in violation of this chapter.
     (3) "Department" means the department of public health and human services provided for in 2-15-2201.
     (4) "Facility" means a hospital, health care facility, physician's office, or other place in which an abortion is performed.
     (5) "Informed consent" means voluntary consent to an abortion by the woman upon whom the abortion is to be performed only after full disclosure to the woman by:
     (a) the physician who is to perform the abortion of the following information:
     (i) the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate, the risks of infection, hemorrhage, breast cancer, danger to subsequent pregnancies, and infertility;
     (ii) the probable gestational age of the unborn child at the time the abortion is to be performed; and
     (iii) the medical risks of carrying the child to term;
     (b) the physician or an agent of the physician:
     (i) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;
     (ii) that the father is liable to assist in the support of the child, even in instances in which the father has offered to pay for the abortion; and
     (iii) that the woman has the right to review the printed materials described in 50-20-304; and
     (c) the physician or the agent that the printed materials described in 50-20-304 have been provided by the department and that the materials describe the unborn child and list agencies that offer alternatives to abortion.
     (6) "Viability" means the ability of a fetus to live outside the mother's womb, albeit with artificial aid.

 

50-20-105. Duties of department. (1) The department shall make regulations to provide for the humane disposition of dead infants or fetuses.
     (2) The department shall make regulations for a comprehensive system of reporting of maternal deaths and complications within the state resulting directly or indirectly from abortion, subject to the provisions of 50-20-110(5).
     (3) The department shall report to the attorney general any apparent violation of this chapter.

 

 50-20-106. Informed consent. (1) An abortion may not be performed without the informed consent of the woman upon whom the abortion is to be performed. The informed consent must be received at least 24 hours prior to the abortion and certified prior to or at the time of the abortion.
     (2) Informed consent must be certified by a written statement in a form prescribed by the department and signed by the physician and the woman upon whom the abortion is to be performed in which the physician certifies that the physician has made the full disclosure provided in 50-20-104(5) and in which the woman upon whom the abortion is to be performed acknowledges that the disclosures have been made to the woman and that the woman voluntarily consents to the abortion.
     (3) If a woman chooses to review the written materials described in 50-20-304, the materials must be provided to her at least 24 hours before the abortion or be mailed to the woman by certified mail, with delivery restricted to the addressee, at least 72 hours before the abortion.
     (4) The information required in 50-20-104(5)(a) may be provided by telephone without conducting a physical examination or tests of the patient. The information may be based on facts supplied to the physician by the woman and other relevant information that is reasonably available to the physician. The information may not be provided by a tape recording but must be provided during a consultation in which the physician is able to ask questions of the woman and the woman is able to ask questions of the physician. If a physical examination, tests, or the availability of other information subsequently indicates, in the medical judgment of the physician, a revision of information previously provided to the patient, the revised information may be communicated to the patient at any time prior to the performance of the abortion.
     (5) The information required in 50-20-104(5)(b) may be provided by a tape recording if provision is made to record or otherwise register specifically whether the woman does or does not choose to review the printed materials.
     (6) The informed consent or consent provided for in this section is not required if a licensed physician certifies that the abortion is necessary because of a medical emergency as defined in 50-20-303.
     (7) An executive officer, administrative agency, or public employee of the state or of any local governmental body may not issue any order requiring an abortion or coerce any woman to have an abortion. A person may not coerce any woman to have an abortion.
     (8) Violation of subsections (1) through (7) is a misdemeanor.

 

50-20-107. Repealed. Sec. 13, Ch. 469, L. 1995.

 

50-20-108. Protection of premature infants born alive. (1) A person commits an offense, as defined in 45-5-102 through 45-5-104, if he purposely, knowingly, or negligently causes the death of a premature infant born alive, if such infant is viable.
     (2) Whenever a premature infant which is the subject of abortion is born alive and is viable, it becomes a dependent and neglected child subject to the provisions of state law, unless:
     (a) the termination of the pregnancy is necessary to preserve the life of the mother; or
     (b) the mother and her spouse or either of them have agreed in writing in advance of the abortion or within 72 hours thereafter to accept the parental rights and responsibilities of the premature infant if it survives the abortion procedure.
     (3) No person may use any premature infant born alive for any type of scientific research or other kind of experimentation except as necessary to protect or preserve the life and health of such premature infant born alive.
     (4) Violation of subsection (3) of this section is a felony.

 

 50-20-109. Control of practice of abortion. (1) Except as provided in 50-20-401, an abortion may not be performed within the state of Montana:
     (a) except by a licensed physician;
     (b) after viability of the fetus, except as provided in subsection (2).
     (2) An abortion under subsection (1)(b) may be performed only to preserve the life or health of the mother and only if:
     (a) the judgment of the physician who is to perform the abortion is first certified in writing by the physician, setting forth in detail the facts relied upon in making the judgment; and
     (b) two other licensed physicians have first examined the patient and concurred in writing with the judgment. The certification and concurrence in this subsection (2)(b) are not required if a licensed physician certifies that the abortion is necessary to preserve the life of the mother.
     (3) The timing and procedure used in performing an abortion under subsection (1)(b) must be such that the viability of the fetus is not intentionally or negligently endangered, as the term "negligently" is defined in 45-2-101. The fetus may be intentionally endangered or destroyed only if necessary to preserve the life or health of the mother.
     (4) For purposes of this section, "health" means the prevention of a risk of substantial and irreversible impairment of a major bodily function.
     (5) The utilization plan of a physician assistant-certified may not provide for performing abortions.
     (6) Violation of subsections (1) through (3) and (5) is a felony.

 

50-20-110. Reporting of practice of abortion. (1) Every facility in which an abortion is performed within the state shall keep on file upon a form prescribed by the department a statement dated and certified by the physician who performed the abortion setting forth such information with respect to the abortion as the department by regulation shall require, including but not limited to information on prior pregnancies, the medical procedure employed to administer the abortion, the gestational age of the fetus, the vital signs of the fetus after abortion, if any, and if after viability, the medical procedures employed to protect and preserve the life and health of the fetus.
     (2) The physician performing an abortion shall cause such pathology studies to be made in connection therewith as the department shall require by regulation, and the facility shall keep the reports thereof on file.
     (3) In connection with an abortion, the facility shall keep on file the original of each of the documents required by this chapter relating to informed consent, consent to abortion, certification of necessity of abortion to preserve the life or health of the mother, and certification of necessity of abortion to preserve the life of the mother.
     (4) Such facility shall, within 30 days after the abortion, file with the department a report upon a form prescribed by the department and certified by the custodian of the records or physician in charge of such facility setting forth all of the information required in subsections (1), (2), and (3) of this section, except such information as would identify any individual involved with the abortion. The report shall exclude copies of any documents required to be filed by subsection (3) of this section, but shall certify that such documents were duly executed and are on file.
     (5) All reports and documents required by this chapter shall be treated with the confidentiality afforded to medical records, subject to such disclosure as is permitted by law. Statistical data not identifying any individual involved in an abortion shall be made public by the department annually, and the report required by subsection (4) of this section to be filed with the department shall be available for public inspection except insofar as it identifies any individual involved in an abortion. Names and identities of persons submitting to abortion shall remain confidential among medical and medical support personnel directly involved in the abortion and among persons working in the facility where the abortion was performed whose duties include billing the patient or submitting claims to an insurance company, keeping facility records, or processing abortion data required by state law.
     (6) Violation of this section is a misdemeanor and is punishable as provided in 46-18-212.

 

50-20-111. Right to refuse participation in abortion. (1) No private hospital or health care facility shall be required contrary to the religious or moral tenets or the stated religious beliefs or moral convictions of its staff or governing board to admit any person for the purpose of abortion or to permit the use of its facilities for such purpose. Such refusal shall not give rise to liability of such hospital or health care facility or any personnel or agent or governing board thereof to any person for damages allegedly arising from such refusal or be the basis for any discriminatory, disciplinary, or other recriminatory action against such hospital or health care facility or any personnel, agent, or governing board thereof.
     (2) All persons shall have the right to refuse to advise concerning, perform, assist, or participate in abortion because of religious beliefs or moral convictions. If requested by any hospital or health care facility or person desiring an abortion, such refusal shall be in writing signed by the person refusing, but may refer generally to the grounds of "religious beliefs and moral convictions". The refusal of any person to advise concerning, perform, assist, or participate in abortion shall not be a consideration in respect of staff privileges of any hospital or health care facility or a basis for any discriminatory, disciplinary, or other recriminatory action against such person, nor shall such person be liable to any person for damages allegedly arising from refusal.
     (3) It shall be unlawful to interfere or attempt to interfere with the right of refusal authorized by this section. The person injured thereby shall be entitled to injunctive relief, when appropriate, and shall further be entitled to monetary damages for injuries suffered.
     (4) Such refusal by any hospital or health care facility or person shall not be grounds for loss of any privileges or immunities to which the granting of consent may otherwise be a condition precedent or for the loss of any public benefits.
     (5) As used in this section, the term "person" includes one or more individuals, partnerships, associations, and corporations.

 

50-20-112. Penalties. (1) A person convicted of deliberate, mitigated, or negligent homicide under this chapter is subject to the penalties prescribed by 45-5-102 through 45-5-104.
     (2) A person convicted of a felony other than deliberate, mitigated, or negligent homicide under this chapter is subject to a fine not to exceed $1,000, imprisonment in the state prison for a term not to exceed 5 years, or both.
     (3) A person convicted of a misdemeanor under this chapter is subject to a fine not to exceed $500, imprisonment in the county jail for a term not to exceed 6 months, or both.
     (4) (a) A penalty may not be imposed against the woman upon whom the abortion is performed or attempted to be performed.
     (b) A penalty may not be imposed for failure to comply with the provision of 50-20-106 that requires a written certification that the woman has been informed of the opportunity to review the information referred to in 50-20-304 if the department has not made the written materials available at the time that the physician or the physician's agent is required to inform the woman of the right to review the materials.

 

 50-20-201. Short title. This part may be cited as the "Parental Notice of Abortion Act".  [The provisions of 50-20-201 to 50-20-215 have been held to be unconstitutional and unenforceable.]

 

 50-20-202. Legislative purpose and findings. (1) The legislature finds that:
     (a) immature minors often lack the ability to make fully informed choices that take into account both immediate and long-range consequences;
     (b) the medical, emotional, and psychological consequences of abortion are sometimes serious and can be lasting, particularly when the patient is immature;
     (c) the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related;
     (d) parents ordinarily possess information essential to a physician in the exercise of the physician's best medical judgment concerning the minor;
     (e) parents who are aware that their minor daughter has had an abortion may better ensure that the daughter receives adequate medical care after the abortion; and
     (f) parental consultation is usually desirable and in the best interests of the minor.
     (2) The purpose of this part is to further the important and compelling state interests of:
     (a) protecting minors against their own immaturity;
     (b) fostering family unity and preserving the family as a viable social unit;
     (c) protecting the constitutional rights of parents to rear children who are members of their household; and
     (d) reducing teenage pregnancy and unnecessary abortion.

 

50-20-203. Definitions. As used in this part, unless the context requires otherwise, the following definitions apply:
     (1) "Actual notice" means the giving of notice directly in person or by telephone.
     (2) "Coercion" means restraining or dominating the choice of a minor female by force, threat of force, or deprivation of food and shelter.
     (3) "Emancipated minor" means a person under 18 years of age who is or has been married or who has been granted an order of limited emancipation by a court as provided in 41-3-438.
     (4) "Incompetent person" means a person who is an incapacitated person or a protected person who has had a guardian appointed pursuant to Title 72, chapter 5.
     (5) "Medical emergency" means a condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of the woman's pregnancy to avert the woman's death or a condition for which a delay in treatment will create serious risk of substantial and irreversible impairment of a major bodily function.
     (6) "Minor" means a female under 18 years of age who is not an emancipated minor.
     (7) "Physical abuse" means any physical injury intentionally inflicted by a parent or legal guardian on a child.
     (8) "Physician" means a person licensed to practice medicine under Title 37, chapter 3.
     (9) "Sexual abuse" has the meaning given in 41-3-102.

 

50-20-204. Notice of parent required. A physician may not perform an abortion upon a minor or an incompetent person unless the physician has given at least 48 hours' actual notice to one parent or to the legal guardian of the pregnant minor or incompetent person of the physician's intention to perform the abortion. The actual notice may be given by a referring physician. The physician who performs the abortion must receive the written statement of the referring physician certifying that the referring physician has given actual notice. If actual notice is not possible after a reasonable effort, the physician or the physician's agent shall give alternate notice as provided in 50-20-205.

 

50-20-205. Alternate notification. In lieu of the actual notice required by 50-20-204, notice may be made by certified mail addressed to the parent at the usual place of residence of the parent with return receipt requested and delivery restricted to the addressee, which means a postal employee may deliver the mail only to the authorized addressee. Time of delivery is considered to occur at noon on the next day on which regular mail delivery takes place after mailing.

 

50-20-208. Exceptions. Notice is not required under 50-20-204 or 50-20-205 if:
     (1) the attending physician certifies in the patient's medical record that a medical emergency exists and there is insufficient time to provide notice;
     (2) notice is waived, in writing, by the person entitled to notice; or
     (3) notice is waived under 50-20-212.

 

50-20-209. Coercion prohibited. A parent, a guardian, or any other person may not coerce a minor to have an abortion. If a minor is denied financial support by the minor's parents, guardian, or custodian because of the minor's refusal to have an abortion, the minor must be considered an emancipated minor for the purposes of eligibility for public assistance benefits. The public assistance benefits may not be used to obtain an abortion.

 

 50-20-211. Reports. A monthly report indicating the number of notices issued under this part and the number of times in which exceptions were made to the notice requirement under 50-20-208, as well as the type of exceptions, must be filed with the department of public health and human services on forms prescribed by the department. Patient names and other identifying information may not be used on the forms. The department shall prepare and make available to the public on an annual basis a compilation of the data reported.

 

50-20-212. Procedure for judicial waiver of notice. (1) The requirements and procedures under this section are available to minors and incompetent persons whether or not they are residents of this state.
     (2) (a) The minor or incompetent person may petition the youth court for a waiver of the notice requirement and may participate in the proceedings on the person's own behalf. The petition must include a statement that the petitioner is pregnant and is not emancipated. The court may appoint a guardian ad litem for the petitioner. A guardian ad litem is required to maintain the confidentiality of the proceedings. The youth court shall advise the petitioner of the right to court-appointed counsel and shall provide the petitioner with counsel upon request.
     (b) If the petition filed under subsection (2)(a) alleges abuse as a basis for waiver of notice, the youth court shall treat the petition as a report under 41-3-202. The provisions of Title 41, chapter 3, part 2, apply to an investigation conducted pursuant to this subsection.
     (3) Proceedings under this section are confidential and must ensure the anonymity of the petitioner. All proceedings under this section must be sealed. The petitioner may file the petition using a pseudonym or using the petitioner's initials. All documents related to the petition are confidential and are not available to the public. The proceedings on the petition must be given preference over other pending matters to the extent necessary to ensure that the court reaches a prompt decision. The court shall issue written findings of fact and conclusions of law and rule within 48 hours of the time that the petition is filed unless the time is extended at the request of the petitioner. If the court fails to rule within 48 hours and the time is not extended, the petition is granted and the notice requirement is waived.
     (4) If the court finds by clear and convincing evidence that the petitioner is sufficiently mature to decide whether to have an abortion, the court shall issue an order authorizing the minor to consent to the performance or inducement of an abortion without the notification of a parent or guardian.
     (5) The court shall issue an order authorizing the petitioner to consent to an abortion without the notification of a parent or guardian if the court finds, by clear and convincing evidence, that:
     (a) there is evidence of a pattern of physical, sexual, or emotional abuse of the petitioner by one or both parents, a guardian, or a custodian; or
     (b) the notification of a parent or guardian is not in the best interests of the petitioner.
     (6) If the court does not make a finding specified in subsection (4) or (5), the court shall dismiss the petition.
     (7) A court that conducts proceedings under this section shall issue written and specific findings of fact and conclusions of law supporting its decision and shall order that a confidential record of the evidence, findings, and conclusions be maintained.
     (8) The supreme court may adopt rules providing an expedited confidential appeal by a petitioner if the youth court denies a petition. An order authorizing an abortion without notice is not subject to appeal.
     (9) Filing fees may not be required of a pregnant minor who petitions a court for a waiver of parental notification or appeals a denial of a petition.

 

 50-20-215. Criminal and civil penalties. (1) A person convicted of performing an abortion in violation of 50-20-204 or 50-20-205 shall be fined an amount not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.
     (2) Failure to provide the notice required under 50-20-204 or 50-20-205 is prima facie evidence in an appropriate civil action for a violation of a professional obligation. The evidence does not apply to issues other than failure to notify the parents or guardian. A civil action may be based on a claim that the failure to notify was the result of a violation of the appropriate legal standard of care. Failure to provide notice is presumed to be actual malice pursuant to the provisions of 27-1-221. This part does not limit the common-law rights of parents.
     (3) A person who coerces a minor to have an abortion is guilty of a misdemeanor and upon conviction shall be fined an amount not to exceed $1,000 or be imprisoned in the county jail for a term not to exceed 1 year, or both. On a second or subsequent conviction, the person shall be fined an amount not less than $500 and not more than $50,000 and be imprisoned in the state prison for a term not less than 10 days and not more than 5 years, or both.
     (4) A person not authorized to receive notice under 50-20-205 who signs a notice of waiver as provided in 50-20-208(2) is guilty of a misdemeanor.

 

50-20-301. Short title. This part may be cited as the "Woman's Right-to-Know Act".  [The provisions of 50-20-301 to 50-20-304 have been held to be unconstitutional and unenforceable.]

 

50-20-302. Legislative purpose and findings. (1) The legislature finds that:
     (a) it is essential to the psychological and physical well-being of a woman who is considering an abortion that the woman receive complete and accurate information on alternatives;
     (b) the knowledgeable exercise of a woman's decision to have an abortion depends on the extent to which the woman receives sufficient information to make an informed choice between the alternatives of giving birth and having an abortion;
     (c) in most instances, the only contact with a physician that a woman who has an abortion has occurs simultaneously with the abortion procedure, with little opportunity to receive counseling concerning the decision;
     (d) the decision to abort is an important and often stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences;
     (e) the medical, emotional, and psychological consequences of an abortion are serious and can be lasting;
     (f) some abortion facilities or providers offer only limited or impersonal counseling opportunities; and
     (g) some abortion facilities or providers hire untrained and unprofessional counselors whose primary goal is to sell abortion services.
     (2) Based on the findings in subsection (1), it is the purpose of this part to:
     (a) ensure that every woman who is considering an abortion receive complete information on alternatives and that every woman submitting to an abortion do so only after giving informed consent to the abortion procedure;
     (b) protect unborn children from a woman's uninformed decision to have an abortion; and
     (c) reduce the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that the decision was not fully informed.

 

 50-20-303. Definitions. As used in this part, unless the context requires otherwise, the following definitions apply:
     (1) "Medical emergency" means a condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of the woman's pregnancy to avert the woman's death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.
     (2) "Physician" means a person licensed to practice medicine under Title 37, chapter 3.
     (3) "Pregnant" or "pregnancy" means that female reproductive condition of having an unborn child in the woman's body.
     (4) "Unborn child" means the offspring of human beings from conception until birth.

 

50-20-304. Publication of materials. (1) The department shall publish and annually update easily comprehensible printed, unbiased materials that are geographically indexed and designed to inform women of public and private agencies and services available to assist a woman through pregnancy, during childbirth, and while a woman's child is dependent. The materials must:
     (a) include adoption agencies;
     (b) include a comprehensive list of the agencies, a description of the services offered, and the telephone numbers and addresses of the agencies;
     (c) inform a woman about medical assistance benefits for prenatal care, childbirth, neonatal care, and child support obligations of a father of a child.
     (2) The department shall ensure that the materials described in this section are comprehensive and do not directly or indirectly promote, exclude, or discourage the use of any agency or service. The materials must include a toll-free, 24-hour telephone number that may be called to orally obtain a list and description of agencies in the locality of the caller and of the services offered by the agencies.
     (3) The materials must state that:
     (a) it is unlawful for any individual to coerce a woman to undergo or not to undergo an abortion;
     (b) a physician who performs an abortion on a woman without the woman's informed consent may be liable to the woman for damages in a civil action; and
     (c) the law allows adoptive parents to pay the costs of prenatal care, childbirth, and neonatal care.
     (4) The materials must inform the pregnant woman of the probable anatomical and physiological characteristics of the unborn child at 2-week gestational increments from fertilization to full term, including pictures or drawings representing the development of unborn children at 2-week gestational increments. The pictures or drawings must contain the dimensions of the unborn child and must be realistic. The materials must include any relevant information on the possibility of the unborn child's survival at each stage depicted. The materials must be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages. The materials must contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each procedure, the possible detrimental psychological effects of abortion, the possible detrimental psychological effects of adoption, and the medical risks associated with carrying a child to term.
     (5) The materials must be printed in a clearly legible typeface.
     (6) The materials required to be produced under this section must be provided at no cost upon request and must be provided in appropriate quantities to any person, facility, or hospital.

 

 50-20-305. Emergency. When a medical emergency compels the performance of an abortion, the physician shall inform the woman, before the abortion if possible, of the medical indications supporting the physician's judgment that an abortion is necessary to avert the woman's death or that a 24-hour delay will create serious risk of substantial and irreversible impairment of a major bodily function.

 

 50-20-306. Physician reporting requirements -- penalty -- action -- department report. (1) Within 90 days after July 1, 1995, the department shall prepare a reporting form to be used by physicians that contains a reprint of this chapter and on which the physician shall list:
     (a) the number of women to whom the physician provided the information described in 50-20-104(5)(a), including:
     (i) the number of women provided the information by telephone and the number to whom it was provided in person; and
     (ii) the number of women in each group referred to in subsection (1)(a)(i) to whom the physician provided the information in the capacity of a referring physician and the number to whom it was provided in the capacity of a physician who is to perform the abortion;
     (b) the number of women to whom the physician or an agent of the physician provided the information described in 50-20-104(5)(b), including:
     (i) the number of women to whom the physician provided the information by telephone and the number to whom it was provided in person;
     (ii) the number of women in each group referred to in subsection (1)(b)(i) to whom the physician provided the information in the capacity of a referring physician and the number to whom it was provided in the capacity of a physician who is to perform the abortion; and
     (iii) the number of women in each group referred to in subsection (1)(b)(ii) to whom information was provided by the physician and the number to whom it was provided by an agent of the physician;
     (c) the number of women who availed themselves of the opportunity to obtain a copy of the printed information described in 50-20-304 and the number who did not;
     (d) of each of the numbers described in subsections (1)(a) through (1)(c), the number who, to the best of the reporting physician's information and belief, obtained an abortion; and
     (e) the number of abortions that were performed by the physician but in which information otherwise required to be provided at least 24 hours before the abortion was not provided because:
     (i) an immediate abortion was necessary to avert the woman's death; or
     (ii) a delay would create serious risk of substantial and irreversible impairment of a major bodily function.
     (2) The department shall ensure that copies of the reporting forms described in subsection (1) are provided:
     (a) by 120 days after July 1, 1995, to all physicians licensed in this state;
     (b) to each physician licensed to practice after July 1, 1995, at the time of licensure;
     (c) by December 1 of each succeeding year, to all physicians licensed to practice in this state.
     (3) By February 28 of each year, each physician or the physician's agent who provided information to one or more women in accordance with 50-20-106 shall submit a copyeports could reasonably lead to the identification of an individual who was provided information in accordance with 50-20-106. The department shall design the reporting process to ensure that confidentiality regarding the physician or the physician's agent is maintained in the department records.
     (6) The department may, by rule, alter the dates established by subsection (2)(c), (3), or (5) or consolidate the forms or reports described in this section with other forms or reports to achieve administrative convenience, achieve fiscal savings, or reduce the burden of reporting requirements. However, reporting forms must be sent to all licensed physicians at least once a year, and the report described in subsection (5) must be issued at least once a year.

 

50-20-307. Civil remedies. (1) A person who performs an abortion in knowing or reckless violation of this chapter may be liable for actual and punitive damages in an action brought by the woman upon whom an abortion was performed or, if the woman is under 18 years of age or is physically or mentally incapacitated for purposes of being able to decide whether to bring and pursue an action, then, on the woman's behalf, by either:
     (a) the father of the unborn child who was the subject of the abortion; or
     (b) the grandparent of an unborn child who was the subject of the abortion.
     (2) A person who attempts to perform an abortion in knowing or reckless violation of this chapter may be liable for actual and punitive damages in an action brought by the woman upon whom an abortion was attempted.
     (3) If the department fails to issue the public report required in 50-20-306, a group of 10 or more citizens may seek an injunction, in a court of competent jurisdiction, against the director of the department to require that a complete report be issued within a period established by court order. Failure to comply with an injunction subjects the director to sanctions for civil contempt.
     (4) If judgment is rendered in favor of the plaintiff in any action described in this section, the court shall award reasonable attorney fees in favor of the plaintiff against the defendant.
     (5) An abortion or attempted abortion performed in violation of this chapter is the basis for a professional disciplinary action under 37-1-316.

 

50-20-308. Protection of privacy in court proceedings. In a civil or criminal proceeding under this chapter, the court shall determine whether the anonymity of a woman upon whom an abortion has been performed or attempted must be preserved from public disclosure, unless the woman waives anonymity. The court shall make a ruling and, upon determining that the woman's anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and the exclusion of individuals from the proceedings to the extent necessary to safeguard the woman's identity from public disclosure. Each order must be accompanied by specific written findings explaining why the anonymity of the woman should be preserved, why the order is necessary, how the order is tailored to protect the woman's privacy, and why no less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or attempted, a person other than a public official who brings an action under 50-20-307(1) shall do so under a pseudonym.

 

 50-20-401. Offense of partial-birth abortion -- exception -- definitions -- penalties.   [These provisions have been held to be unconstitutional and unenforceable.] (1) Except as provided in this section, a person commits an offense if the person purposely, knowingly, or negligently causes a partial-birth abortion.
     (2) Subsection (1) does not apply to:
     (a) a partial-birth abortion caused to save the life of a woman because the woman's life is endangered by a physical disorder, illness, or injury, including a life-endangering condition caused by or arising from the pregnancy itself, if no other medical procedure would save the life of the woman; or
     (b) the woman upon whom a partial-birth abortion is performed.
     (3) As used in this section, the following definitions apply:
     (a) "Knowingly" has the meaning provided in 45-2-101.
     (b) "Negligently" has the meaning provided in 45-2-101.
     (c) (i) "Partial-birth abortion" means an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery.
     (ii) A procedure that constitutes a partial-birth abortion is one in which the following steps occur:
     (A) the living fetus is removed intact from the uterus until only the head remains in the uterus;
     (B) all or a part of the intracranial contents of the fetus are evacuated;
     (C) the head of the fetus is compressed; and
     (D) following fetal demise, the fetus is removed from the birth canal.
     (d) "Purposely" has the meaning provided in 45-2-101.
     (4) A person committing the offense provided for in subsection (1) is guilty of a felony and shall be punished by:
     (a) a fine of not more than $50,000;
     (b) imprisonment in a correctional facility for a term of not less than 5 years and not more than 10 years; or
     (c) both fine and imprisonment as provided in subsections (4)(a) and (4)(b); and
     (d) permanent revocation of the license of the physician performing the partial-birth abortion. The provisions of 37-1-203 and 37-1-205 do not apply to a physician whose license is revoked pursuant to this section.

 

* * *

 

----------------------------------------------------

AN ACT CREATING THE CRIME OF OBSTRUCTING HEALTH CARE FACILITY ACCESS.  (21 April 2005.)

 

     WHEREAS, the Montana Legislature recognizes that access to health care facilities to obtain medical counseling and treatment is imperative for the citizens of this state; and

     WHEREAS, the exercise of a person's right to protest or counsel against a medical procedure must be balanced against the right of other persons to obtain medical counseling and treatment in an unobstructed manner; and

     WHEREAS, preventing the knowing obstruction of a person's access to medical counseling and treatment at a health care facility is a matter of statewide concern; and

     WHEREAS, the Montana Legislature declares that it is appropriate and necessary to enact legislation prohibiting a person from knowingly obstructing another person's entry into or exit from a health care facility.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

 

     Section 1.  Obstructing health care facility access. (1) A person commits the offense of obstructing health care facility access if the person knowingly obstructs, hinders, or blocks another person's entry into or exit from a health care facility. Commission of the offense includes but is not limited to knowingly approaching within 8 feet of a person who is entering or leaving a health care facility to give the person written or oral information, to display a sign, or to protest, counsel, or educate about a health issue, when the person does not consent to that activity and is within 36 feet of an entrance to or exit from the health care facility.

     (2) A person convicted under this section shall be fined an amount not to exceed $100.

     (3) For purposes of this section, "health care facility" means an office of a medical practitioner, as defined in 37-2-101, or any other facility or entity that is licensed, certified, or otherwise authorized by law to administer medical treatment in this state.

 

     Section 2.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 45, chapter 8, and the provisions of Title 45, chapter 8, apply to [section 1].

 

----------------------------------------------

 

Montana Medicaid Physician-Related Services Manual.

 

* * *

 

Covered Services

 

* * *

 

Coverage of Specific Services

The following are coverage rules for specific services provided by physicians,

mid-level practitioners and podiatrists.

Abortions (ARM 37.86.104)

Abortions are covered when one of the following conditions are met:

• The client’s life would be endangered if the fetus is carried to term.

• The pregnancy is the result of rape or incest.

• The abortion is determined by the attending physician to be medically

necessary, even if the client’s life is not endangered if the fetus is carried

to term.

A completed Medicaid Recipient/Physician Abortion Certification (MA-37)

form must be submitted with every abortion claim or payment will be denied

(see Appendix A: Forms). Complete only one part (I, II, or III) of this form;

the part used must be clearly indicated on the form. This form is the only form

Medicaid accepts for abortion services.

When using mifepristone (Mifeprex or RU 486) to terminate a pregnancy, it

must be administered within 49 days from the beginning of the last menstrual

period by or under the supervision of a physician who:

• Can assess the duration of a pregnancy.

• Can diagnose ectopic pregnancies.

• Can provide surgical intervention in cases of incomplete abortion or

severe bleeding, or can provide such care through other qualified physicians.

• Can assure access to medical facilities equipped to provide blood transfusion

and resuscitation.

• Has read, understood and explained to the client the prescribing information

for mifepristone.

 

* * *

 

--------------------------------------------------------

 

Montana Administrative Rules.

 

* * *

Title 37.  DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES

* * * 

CHAPTER 86.  MEDICAID PRIMARY CARE SERVICES

* * *

37.86.104 PHYSICIAN SERVICES, REQUIREMENTS  [The provisions relating to abortion have been held to be unconstitutional and unenforceable.] (1) These requirements are in addition to those rule provisions generally applicable to medicaid providers.

(2) The department or its designated review organization may conduct utilization and peer review of physician services.

(3) Physician services for conditions or ailments that are generally considered cosmetic in nature are not a benefit of the medicaid program except in such cases where it can be demonstrated that the physical and psycho-social well being of the recipient is severely affected in a detrimental manner by the condition or ailment.   Such services must be prior authorized by the medicaid services bureau, based on recommendations of the designated peer review organization.

(a) A request for prior authorization must include all relevant information to justify the need for the service.   This information includes statements from a physician qualified in the area of concern and a potential provider.

(b) The information must clearly document the necessity for the service and include assurances that the plan will be followed to completion.

(4) Coverage of physician services for sterilization is limited as follows:

(a) The recipient to be sterilized must not be declared mentally incompetent by a federal, state, or local court of law.

(b) The recipient to be sterilized must be 21 years of age or older at the time informed consent to sterilization is obtained from the recipient.

(c) The recipient to be sterilized must not be institutionalized in a corrective, penal, mental, or rehabilitative facility.

(5) Physician services for sterilization must meet the following requirements in order to receive medicaid reimbursement:

(a) The recipient to be sterilized must give informed consent, in accordance with the medicaid approved informed consent to sterilization form, not less than 30 days nor more than 180 days prior to sterilization except in the case of premature delivery or emergency abdominal surgery.   For these exceptions, at least 72 hours must pass between informed consent and the sterilization procedure.   In cases of pre­mature delivery, informed consent must be given at least 30 days before the expected delivery date.

(b) The recipient to be sterilized, the person who obtained the consent, and the interpreter (if required) must sign the informed consent form at least 30 days but not more than 180 days prior to the sterilization.   The physician performing the sterilization must sign and date the informed consent form after the sterilization has been performed.

c) A copy of the informed consent to sterilization form must be attached to the medicaid claim when billing for sterilization procedures.

(6) Coverage of physician services for hysterectomies is limited as follows:

(a) The surgery must not be solely for the purpose of rendering the recipient incapable of reproducing; and

(b) The surgery must be medically necessary to treat injury or pathology.

(7) Physician services for hysterectomies must meet the following requirements in order to receive medicaid reimbursement:

(a) The physician must inform the recipient that the hysterectomy will render her permanently incapable of reproducing;

(b) A completed copy of the approved acknowledgment of receipt of hysterectomy information form must be attached to the medicaid claim when billing for hysterectomy services;

(c) In a case where the recipient is sterile before the hysterectomy or there is a life-threatening emergency that precludes the recipient from giving prior acknowledgment of receipt of hysterectomy information the requirements in (7)(a) and (7)(b) do not apply.   Instead the physician who performed the hysterectomy either:

(i) must certify in writing that the recipient was sterile before the hysterectomy and state the cause of sterility; or

(ii) must certify in writing that the hysterectomy was performed during a life-threatening emergency situation that precluded the recipient from giving prior acknowledgment of receipt of hysterectomy information and gives a description of the nature of the emergency.

(8) Coverage of physician services for abortions is limited as follows:

(a) the life of the mother will be endangered if the fetus is carried to term; or

(b) the pregnancy is the result of an act of rape or incest.

(9) Physician services for abortions in a case of endangerment of the mother's life must meet the following requirements in order to receive medicaid reimbursement:

(a) The physician must find, and certify in writing, that in the physician's professional judgement, the life of the mother will be endangered if the fetus is carried to term.   The certification must contain the name and address of the patient and must be on or attached to the medicaid claim.

(10) Physician services for abortions in cases of pregnancy resulting from an act of rape or incest must meet the following requirements in order to receive medicaid reimbursement:

(a) the recipient certifies in writing that the pregnancy resulted from an act of rape or incest; and

(b) the physician certifies in writing either that:

(i) the recipient has stated to the physician that she reported the rape or incest to a law enforcement or protective services agency having jurisdiction over the matter, or if the recipient is a child enrolled in a school, to a school counselor; or

(ii) in the physician's professional opinion, the recipient was and is unable for physical or psychological reasons to report the act of rape or incest.

(11) Physician services for routine podiatric care and orthotics must be in accord with the definitions of ARM 37.86.501 and meet the requirements of ARM 37.86.505.

* * *