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HOUSE BILL NO. 353
INTRODUCED BY K. KELKER
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING LAWS RELATED TO ALCOHOL AND DRUG ADDICTION; REVISING TERMS USED TO DESCRIBE ALCOHOL AND DRUG ADDICTION; REVISING THE STATE POLICY ON TREATMENT OF ALCOHOLISM AND DRUG DEPENDENCY TO STATE THAT TREATMENT SHOULD BE A PRIORITY; PROVIDING THAT PUBLIC INCAPACITATION IS NOT A CRIME; LIMITING A LOCAL GOVERNMENT FROM SANCTIONING OR PENALIZING BEING FOUND IN AN INCAPACITATED STATE IN PUBLIC; REVISING LAWS RELATED TO INVOLUNTARY COMMITMENT OF AN ALCOHOLIC TO INCLUDE A PERSON WITH A SUBSTANCE USE DISORDER; AND AMENDING SECTIONS 7-32-4302, 16-1-404, 16-1-406, 16-1-411, 37-35-102, 37-38-102, 40-4-212, 47-1-104, 53-1-601, 53-1-602, 53-1-603, 53-24-101, 53-24-102, 53-24-103, 53-24-104, 53-24-106, 53-24-107, 53-24-108, 53-24-204, 53-24-206, 53-24-207, 53-24-209, 53-24-211, 53-24-301, 53-24-302, 53-24-303, AND 53-24-306, MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 7-32-4302, MCA, is amended to read:
"7-32-4302. Control of disturbances of the peace. Within the city or town and within 3 miles of the limits thereof of the city or town, the city or town council has power to prevent and punish intoxication incapacitation (subject to the limits established in 53-24-106), fights, riots, loud noises, disorderly conduct, obscenity, and acts or conduct calculated to disturb the public peace or which that are offensive to public morals."
Section 2. Section 16-1-404, MCA, is amended to read:
"16-1-404. License tax on liquor -- amount -- distribution of proceeds. (1) Except as provided in subsection (4), the department shall collect at the time of sale and delivery of any liquor under any provisions of the laws of the state of Montana a license tax of:
(a) 10% of the retail selling price on all liquor sold and delivered in the state by a company that manufactured, distilled, rectified, bottled, or processed and that sold more than 200,000 proof gallons of liquor nationwide in the calendar year preceding imposition of the tax pursuant to this section;
(b) 8.6% of the retail selling price on all liquor sold and delivered in the state by a company that manufactured, distilled, rectified, bottled, or processed and that sold more than 50,000 proof gallons but not more than 200,000 proof gallons of liquor nationwide in the calendar year preceding imposition of the tax pursuant to this section;
(c) 2% of the retail selling price on all liquor sold and delivered in the state by a company that manufactured, distilled, rectified, bottled, or processed and that sold not more than 50,000 proof gallons of liquor nationwide in the calendar year preceding imposition of the tax pursuant to this section.
(2) The license tax must be charged and collected on all liquor produced in or brought into the state and taxed by the department. The retail selling price must be computed by adding to the cost of the liquor the state markup of 40.5% for all liquor other than sacramental wine, for which the markup must be 20%, and fortified wine containing more than 16% but not more than 24% alcohol by volume, for which the markup must be 51%. The license tax must be figured in the same manner as the state excise tax and is in addition to the state excise tax. The department shall retain in a separate account the amount of the license tax received. The department, in accordance with the provisions of 17-2-124, shall allocate the revenue as follows:
(a) Thirty-four and one-half percent is allocated to the state general fund.
(b) Sixty-five and one-half percent must be deposited in the state special revenue fund to the credit of the department of public health and human services for the treatment, rehabilitation, and prevention of alcoholism and chemical dependency substance use disorder.
(3) The license tax proceeds that are allocated to the department of public health and human services for the treatment, rehabilitation, and prevention of alcoholism and chemical dependency substance use disorder must be credited quarterly to the department of public health and human services. The legislature may appropriate a portion of the license tax proceeds to support alcohol and chemical dependency substance use disorder programs. The remainder must be distributed as provided in 53-24-206.
(4) The following are exempt from the tax and markup imposed by this section:
(a) flavors and other nonbeverage ingredients containing alcohol that are imported or purchased by a brewery under conditions set by the department as provided in 16-3-214; and
(b) necessary distilled spirits imported in bulk for use by a distillery or microdistillery under conditions set by the department as provided in 16-4-311 and 16-4-312."
Section 3. Section 16-1-406, MCA, is amended to read:
"16-1-406. Taxes on beer. (1) (a) A tax is imposed on each barrel of 31 gallons of beer sold in Montana by a wholesaler. A barrel of beer equals 31 gallons. The tax is based upon the total number of barrels of beer produced by a brewer in a year. A brewer who produces less than 10,000 barrels of beer a year is taxed on the following increments of production:
(i) up to 5,000 barrels, $1.30;
(ii) 5,001 barrels to 10,000 barrels, $2.30.
(b) The tax on beer sold for a brewer who produces over 10,000 barrels is $4.30.
(2) The tax imposed pursuant to subsection (1) is due at the end of each month from the wholesaler upon beer sold by the wholesaler during that month. The department shall compute the tax due on beer sold in containers other than barrels or in barrels of more or less capacity than 31 gallons.
(3) Each quarter, in accordance with the provisions of 17-2-124, of the tax collected pursuant to subsection (1), an amount equal to:
(a) 23.26% must be deposited in the state treasury to the credit of the department of public health and human services for the treatment, rehabilitation, and prevention of alcoholism and chemical dependency substance use disorder; and
(b) the balance must be deposited in the state general fund."
Section 4. Section 16-1-411, MCA, is amended to read:
"16-1-411. Tax on wine and hard cider -- penalty and interest. (1) (a) A tax of 27 cents per liter is imposed on sacramental wine and table wine, except hard cider, imported by a table wine distributor or the department and on table wine shipped directly by a winery with a direct shipment endorsement.
(b) A tax of 3.7 cents per liter is imposed on hard cider imported by a table wine distributor or the department.
(2) The tax imposed in subsection (1) must be paid by the winery with a direct shipment endorsement or a table wine distributor by the 15th day of the month following shipment by the winery with the direct shipment endorsement or sale of the sacramental wine, table wine, or hard cider from the table wine distributor's warehouse. Failure to file a tax return or failure to pay the tax required by this section subjects the winery with the direct shipment endorsement or the table wine distributor to the penalties and interest provided for in 15-1-216.
(3) The tax paid by a winery with a direct shipment endorsement or by a table wine distributor in accordance with subsection (2) must, in accordance with the provisions of 17-2-124, be distributed as follows:
(a) 69% to the state general fund; and
(b) 31% to the state special revenue fund to the credit of the department of public health and human services for the treatment, rehabilitation, and prevention of alcoholism and chemical dependency substance use disorder.
(4) The tax computed and paid in accordance with this section is the only tax imposed by the state or any of its subdivisions, including cities and towns.
(5) For purposes of this section, "table wine" has the meaning assigned in 16-1-106, but does not include hard cider."
Section 5. Section 37-35-102, MCA, is amended to read:
"37-35-102. Definitions. As used in this chapter, the following definitions apply:
(1) "Accredited college or university" means a college or university accredited by a regional or national accrediting association for institutions of higher learning.
(2) "Addiction" means the condition or state in which an individual is physiologically or psychologically dependent upon alcohol or other drugs. The term includes chemical dependency substance use disorder as defined in 53-24-103.
(3) "Addiction counselor licensure candidate" means a person who is registered pursuant to 37-35-202(5) to engage in addiction counseling and earn supervised work experience necessary for licensure.
(4) "Board" means the board of behavioral health provided for in 2-15-1744.
(5) "Licensed addiction counselor" means a person who has the knowledge and skill necessary to provide the therapeutic process of addiction and gambling dependence impulse control disorder counseling and who is licensed under the provisions of this chapter."
Section 6. Section 37-38-102, MCA, is amended to read:
"37-38-102. Definitions. As used in this chapter, the following definitions apply:
(1) "Behavioral health" includes a person with a diagnosis of:
(a) a mental disorder, as that term is defined in 53-21-102; or
(b) chemical dependency substance use disorder, as that term is defined in 53-24-103.
(2) "Behavioral health peer support" means the use of a peer support specialist's personal experience with a behavioral health disorder to provide support, mentoring, guidance, and advocacy and to offer hope to individuals with behavioral health disorders.
(3) "Board" means the board of behavioral health established under 2-15-1744.
(4) "Certified behavioral health peer support specialist" means a person who:
(a) has experienced and is in recovery from a behavioral health disorder;
(b) has obtained the education and skills needed to provide therapeutic support to individuals with behavioral health disorders; and
(c) possesses a valid and current certification.
(5) "Mental health professional" means:
(a) a physician licensed under Title 37, chapter 3;
(b) a psychologist licensed under Title 37, chapter 17;
(c) a social worker licensed under Title 37, chapter 22;
(d) a professional counselor licensed under Title 37, chapter 23;
(e) an advanced practice registered nurse, as provided for in 37-8-202, with a clinical specialty in psychiatric mental health nursing;
(f) a marriage and family therapist licensed under Title 37, chapter 37; or
(g) a licensed addiction counselor licensed under Title 37, chapter 35."
Section 7. Section 40-4-212, MCA, is amended to read:
"40-4-212. Best interest of child. (1) The court shall determine the parenting plan in accordance with the best interest of the child. The court shall consider all relevant parenting factors, which may include but are not limited to:
(a) the wishes of the child's parent or parents;
(b) the wishes of the child;
(c) the interaction and interrelationship of the child with the child's parent or parents and siblings and with any other person who significantly affects the child's best interest;
(d) the child's adjustment to home, school, and community;
(e) the mental and physical health of all individuals involved;
(f) physical abuse or threat of physical abuse by one parent against the other parent or the child;
(g) chemical dependency substance use disorder, as defined in 53-24-103, or chemical substance abuse on the part of either parent;
(h) continuity and stability of care;
(i) developmental needs of the child;
(j) whether a parent has knowingly failed to pay birth-related costs that the parent is able to pay, which is considered to be not in the child's best interests;
(k) whether a parent has knowingly failed to financially support a child that the parent is able to support, which is considered to be not in the child's best interests;
(l) whether the child has frequent and continuing contact with both parents, which is considered to be in the child's best interests unless the court determines, after a hearing, that contact with a parent would be detrimental to the child's best interests. In making that determination, the court shall consider evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child, including but not limited to whether a parent or other person residing in that parent's household has been convicted of any of the crimes enumerated in 40-4-219(8)(b).
(m) adverse effects on the child resulting from continuous and vexatious parenting plan amendment actions.
(2) When determining the best interest of the child of a parent in military service, the court shall consider all relevant parenting factors provided in subsection (1) and may not determine the best interest of the child based only upon the parent's military service.
(3) A de facto parenting arrangement, in the absence of a prior parenting decree, does not require the child's parent or parents to prove the factors set forth in 40-4-219.
(4) The following are rebuttable presumptions and apply unless contrary to the best interest of the child:
(a) A parenting plan action brought by a parent within 6 months after a child support action against that parent is vexatious.
(b) A motion to amend a final parenting plan pursuant to 40-4-219 is vexatious if a parent seeks to amend a final parenting plan without making a good faith effort to comply with the provisions of the parenting plan or with dispute resolution provisions of the final parenting plan."
Section 8. Section 47-1-104, MCA, is amended to read:
"47-1-104. Statewide system -- structure and scope of services -- assignment of counsel at public expense. (1) There is a statewide public defender system, which is required to deliver public defender services in all courts in this state. The system is supervised by the director.
(2) The director shall approve a strategic plan for service delivery and divide the state into not more than 11 public defender regions. The director may establish a regional office to provide public defender services in each region, as provided in 47-1-215, establish a contracted services program to provide services in the region, or utilize other service delivery methods as appropriate and consistent with the purposes described in 47-1-102.
(3) When a court orders the assignment of a public defender, the appropriate office shall immediately assign a public defender qualified to provide the required services. The director shall establish protocols to ensure that the offices make appropriate assignments in a timely manner.
(4) A court may order assignment of a public defender under this chapter in the following cases:
(a) in cases in which a person is entitled to assistance of counsel at public expense because of financial inability to retain private counsel, subject to a determination of indigence pursuant to 47-1-111, as follows:
(i) for a person charged with a felony or charged with a misdemeanor for which there is a possibility of incarceration, as provided in 46-8-101;
(ii) for a party in a proceeding to determine parentage under the Uniform Parentage Act, as provided in 40-6-119;
(iii) for a parent, guardian, or other person with physical or legal custody of a child or youth in any removal, placement, or termination proceeding pursuant 41-3-422 and as required under the federal Indian Child Welfare Act, as provided in 41-3-425;
(iv) for an applicant for sentence review pursuant to Title 46, chapter 18, part 9;
(v) for a petitioner in a proceeding for postconviction relief, as provided in 46-21-201;
(vi) for a petitioner in a habeas corpus proceeding pursuant to Title 46, chapter 22;
(vii) for a parent or guardian in a proceeding for the involuntary commitment of a developmentally disabled person to a residential facility, as provided in 53-20-112;
(viii) for a respondent in a proceeding for involuntary commitment for a mental disorder, as provided in 53-21-116;
(ix) for a respondent in a proceeding for the involuntary commitment of a person for alcoholism substance use disorder, as provided in 53-24-302; and
(x) for a witness in a criminal grand jury proceeding, as provided in 46-4-304.
(b) in cases in which a person is entitled by law to the assistance of counsel at public expense regardless of the person's financial ability to retain private counsel, as follows:
(i) as provided for in 41-3-425;
(ii) for a youth in a proceeding under the Montana Youth Court Act alleging a youth is delinquent or in need of intervention, as provided in 41-5-1413, and in a prosecution under the Extended Jurisdiction Prosecution Act, as provided in 41-5-1607;
(iii) for a juvenile entitled to assigned counsel in a proceeding under the Interstate Compact on Juveniles, as provided in 41-6-101;
(iv) for a minor who petitions for a waiver of parental consent requirements under the Parental Consent for Abortion Act of 2013, as provided in 50-20-509;
(v) for a respondent in a proceeding for the involuntary commitment of a developmentally disabled person to a residential facility, as provided in 53-20-112;
(vi) for a minor voluntarily committed to a mental health facility, as provided in 53-21-112;
(vii) for a person who is the subject of a petition for the appointment of a guardian or conservator in a proceeding under the provisions of the Uniform Probate Code in Title 72, chapter 5;
(viii) for a ward when the ward's guardian has filed a petition to require medical treatment for a mental disorder of the ward, as provided in 72-5-322; and
(c) for an eligible appellant in an appeal of a proceeding listed in this subsection (4).
(5) (a) Except as provided in subsection (5)(b), a public defender may not be assigned to act as a court-appointed special advocate or guardian ad litem in a proceeding under the Montana Youth Court Act, Title 41, chapter 5, or in an abuse and neglect proceeding under Title 41, chapter 3.
(b) A private attorney who is contracted with under the provisions of 47-1-121 to provide public defender services under this chapter may be appointed as a court-appointed special advocate or guardian ad litem in a proceeding described in subsection (5)(a) if the appointment is separate from the attorney's service for the statewide public defender system and does not result in a conflict of interest."
Section 9. Section 53-1-601, MCA, is amended to read:
"53-1-601. Purpose of department of public health and human services. The department of public health and human services shall use to maximum efficiency the resources of state government in a coordinated effort to:
(1) develop and maintain comprehensive services and programs in the fields of:
(a) mental health; and
(b) chemical dependency substance use disorder;
(2) provide, according to the requirements of Title 53, chapter 20, inpatient institutional care for persons with developmental disabilities who require institutional care; and
(3) provide nursing home care for honorably discharged veterans as provided by law."
Section 10. Section 53-1-602, MCA, is amended to read:
"53-1-602. Department of public health and human services. (1) The following components are in the department of public health and human services to carry out the purposes of the department:
(a) mental health services, consisting of the following institutional components for care and treatment of the mentally ill pursuant to Title 53, chapter 21:
(i) the Montana state hospital; and
(ii) the Montana mental health nursing care center;
(b) a community services component, consisting of appropriate services for the care and treatment of the mentally ill pursuant to Title 53, chapter 21, part 10;
(c) chemical dependency substance use disorder services, consisting of appropriate detoxification, inpatient, intensive outpatient, outpatient, prevention, education, and other necessary chemical dependency substance use disorder services pursuant to Title 53, chapter 24;
(d) an institutional and residential component of the developmental disabilities system for those persons with developmental disabilities who require institutional or residential care according to Title 53, chapter 20, which component consists of the Montana developmental center; and
(e) the veterans' nursing homes for the nursing home and domiciliary care of honorably discharged veterans as provided by law, consisting of:
(i) the Montana veterans' home;
(ii) the eastern Montana veterans' home at Glendive; and
(iii) the southwestern Montana veterans' home.
(2) A state institution may not be moved, discontinued, or abandoned without the consent of the legislature."
Section 11. Section 53-1-603, MCA, is amended to read:
"53-1-603. Powers and duties of department of public health and human services. The department of public health and human services shall:
(1) adopt rules for the admission, custody, transfer, and release of persons in department programs except as otherwise provided by law. However, rules adopted by the department may not amend or alter the statutory powers and duties of the board of pardons and parole.
(2) subject to the functions of the department of administration, lease or purchase lands for use by institutions and classify those lands to determine those that may be most profitably used for agricultural purposes, taking into consideration the needs of all institutions for the food products that can be grown or produced on the lands and the relative value of agricultural programs in the treatment or rehabilitation of the persons confined in the institutions;
(3) use the staff and services of other state agencies and units of the Montana university system, within their respective statutory functions, to carry out its functions under this title;
(4) propose programs to the legislature to meet the projected long-range needs of institutions, including programs and facilities for the diagnosis, treatment, care, and aftercare of persons placed in institutions; and
(5) encourage the establishment of programs at the local level for the prevention and rehabilitation of disabilities as they relate to mental illness and chemical dependency substance use disorder."
Section 12. Section 53-24-101, MCA, is amended to read:
"53-24-101. Legislative purpose. (1) It is the purpose of this chapter and the policy of this state to recognize:
(a) chemical dependency substance use disorder as a problem affecting the health, safety, morals, economy, and general welfare of this state; to recognize
(b) chemical dependency substance use disorder as a problem subject to treatment; and to recognize
(c) the sufferer of chemical dependency substance use disorder as worthy of treatment and rehabilitation.
(2) It is the intent of this chapter to establish means whereby by which the appropriate resources of this state may be focused fully and effectively upon the problem of chemical dependency substance use disorder and utilized in implementing programs for the control and treatment of this problem."
Section 13. Section 53-24-102, MCA, is amended to read:
"53-24-102. Declaration of policy. It is the policy of the state of Montana to recognize alcoholism substance use disorder as an illness and that alcoholics and intoxicated persons with substance use disorder and incapacitated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages substance use disorder but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society. Treatment should be prioritized for persons with substance use disorder and incapacitated persons."
Section 14. Section 53-24-103, MCA, is amended to read:
"53-24-103. Definitions. For purposes of this chapter, the following definitions apply:
(1) "Alcoholic" means a person who has "Alcoholism" means a chronic illness or disorder of behavior characterized by repeated drinking of alcoholic beverages to the extent that it endangers the health, interpersonal relationships, or economic function of the an individual or the public health, welfare, or safety.
(2) "Approved private treatment facility" means a private agency that has as its function the treatment, rehabilitation, and prevention of chemical dependency substance use disorder, that meets the standards prescribed in 53-24-208(1), and that is approved under 53-24-208.
(3) "Approved public treatment facility" means:
(a) a treatment agency operating under the direction and control of the department as a state agency and approved under 53-24-208; or
(b) a treatment agency operating under the direction and control of a local government and approved under 53-24-208.
(4) "Chemical dependency" means the use of any chemical substance, legal or illegal, that creates behavioral or health problems, or both, resulting in operational impairment. This term includes alcoholism, drug dependency, or both, that endanger the health, interpersonal relationships, or economic functions of an individual or the public health, welfare, or safety.
(5)(4) "Commission on accreditation of rehabilitation facilities" means the organization nationally recognized by that name that surveys rehabilitation facilities upon their requests and grants accreditation status to a rehabilitation facility that it finds meets its standards and requirements.
(6)(5) "Department" means the department of public health and human services provided for in 2-15-2201.
(6) "Drug" has the meaning provided in 46-1-1103.
(7) "Family member" is the spouse, mother, father, child, or member of the household of a chemically dependent person with substance use disorder whose life has been affected by the actions of the chemically dependent person with substance use disorder and who may require treatment.
(8) "Incapacitated by alcohol" means that a person, as a result of the use of alcohol, is unconscious or has judgment otherwise so impaired that the person is incapable of realizing and making a rational decision with respect to a need for treatment.
(8) "Incapacitated" or "incapacitation" means that a person is impaired by reason of alcohol or drug use to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions and is incapable of realizing and making a rational decision with respect to the person's need for treatment.
(9) "Incompetent person" means a person who has been adjudged incompetent by the district court.
(10) "Intoxicated person" means a person whose mental or physical functioning is substantially impaired as a result of the use of alcohol.
(11)(10) "Prevention" has meaning on the following four levels; these are:
(a) education to provide information to the school children and the general public relating to chemical dependency substance use disorder treatment and rehabilitative services and to reduce the consequences of life experiences acquired by contact with a chemically dependent person with substance use disorder;
(b) early detection and recovery from the illness before lasting emotional or physical damage, or both, have occurred;
(c) if lasting emotional or physical damage, or both, have occurred, to arrest the illness before full disability has been reached;
(d) the provision of facility requirements to meet division program standards and improve public accessibility for services.
(12)(11) "Rehabilitation facility" means a facility that is operated for the primary purpose of assisting in the rehabilitation of disabled individuals by providing comprehensive medical evaluations and services, psychological and social services, or vocational evaluation and training or any combination of these services and in which the major portion of the services is furnished within the facility.
(12) "Substance use disorder" means the use of any chemical substance, legal or illegal, that creates behavioral or health problems, or both, resulting in operational impairment. The term includes alcoholism, drug dependency, or both, that endanger the health, interpersonal relationships, or economic functions of an individual or the public health, welfare, or safety.
(13) "Treatment" means the broad range of emergency, outpatient, intermediate, and inpatient services and care, including diagnostic evaluation, medical, psychiatric, psychological, and social service care, vocational rehabilitation, and career counseling, which may be extended to chemically dependent persons with substance use disorder, intoxicated incapacitated persons, and family members."
Section 15. Section 53-24-104, MCA, is amended to read:
"53-24-104. Deposit of funds from federal or private sources with state treasurer. Funds available to the department from federal or private sources for use in chemical dependency substance use disorder prevention, treatment, and control programs shall must be deposited with the state treasurer to the account of the department in the federal special revenue fund or the state special revenue fund."
Section 16. Section 53-24-106, MCA, is amended to read:
"53-24-106. Criminal laws limitation. (1) A county, municipality, or other political subdivision may not adopt or enforce a local law, ordinance, resolution, or rule having the force of law that includes drinking, being a common drunkard, or being found in an intoxicated incapacitated condition as one of the elements of the offense giving rise to a criminal or civil penalty or sanction.
(2) This section does not affect any law, ordinance, resolution, or rule against drunken driving, driving under the influence of alcohol or drugs, or other similar offense involving the operation of a vehicle, an aircraft, a boat, machinery, or other equipment or regarding the sale, purchase, dispensing, possessing, or use of alcoholic beverages or drugs at stated times and places or by a particular class of persons.
(3) This section does not prevent the department from imposing a sanction on or denying eligibility to applicants for or recipients of public assistance who fail or refuse to comply with all eligibility criteria and program requirements."
Section 17. Section 53-24-107, MCA, is amended to read:
"53-24-107. Public intoxication incapacitation not criminal offense. (1) A person who appears to be intoxicated incapacitated in public does not commit a criminal offense solely by reason of being in an intoxicated incapacitated condition but may be detained by a peace officer for the person's own protection. A peace officer who detains a person who appears to be intoxicated incapacitated in public shall proceed in the manner provided in 53-24-303 and subsection (3) of this section.
(2) If none of the alternatives in 53-24-303 are reasonably available, a peace officer may detain a person who appears to be intoxicated incapacitated until the person is no longer creating a risk to self or others.
(3) A peace officer, in detaining the person, shall make every reasonable effort to protect the person's health and safety. The peace officer may take reasonable steps for the officer's own protection. An entry or other record may not be made to indicate that the person detained under this section has been arrested or charged with a crime.
(4) A peace officer, acting within the scope of the officer's authority under this chapter, is not personally liable for the officer's actions."
Section 18. Section 53-24-108, MCA, is amended to read:
"53-24-108. Use of funds generated by taxation on alcoholic beverages. (1) Revenue generated by 16-1-404, 16-1-406, and 16-1-411 and allocated to the department to be used in state-approved private or public programs whose function is the treatment, rehabilitation, and prevention of alcoholism, which for the purposes of this section includes chemical dependency substance use disorder, must be distributed as follows:
(a) 20% is statutorily appropriated, as provided in 17-7-502, to be allocated as provided in 53-24-206(3)(b), and must be distributed as grants to state-approved private or public alcoholism programs;
(b) 6.6% is statutorily appropriated, as provided in 17-7-502, to be distributed to state-approved private or public alcoholism programs that provide services for treatment and rehabilitation for persons with co-occurring serious mental illness and chemical dependency substance use disorder; and
(c) the remainder of funds not statutorily appropriated in subsections (1)(a) and (1)(b) may be distributed:
(i) as payment of fees for alcoholism services provided by state-approved private or public alcoholism programs and licensed hospitals for detoxification services; or
(ii) as matching funds for the Montana medicaid program administered by the department that are used for alcoholism and chemical dependency substance use disorder programs.
(2) A person operating a state-approved alcoholism program may not be required to provide matching funds as a condition of receiving a grant under subsection (1)(a).
(3) In addition to funding received under this section, a person operating a state-approved alcoholism program may accept gifts, bequests, or the donation of services or money for the treatment, rehabilitation, or prevention of alcoholism.
(4) A person receiving funding under this section to support operation of a state-approved alcoholism program may not refuse alcoholism treatment, rehabilitation, or prevention services to a person solely because of that person's inability to pay for those services.
(5) A grant made under this section is subject to the following conditions:
(a) The grant application must contain an estimate of all program income, including income from earned fees, gifts, bequests, donations, and grants from other than state sources during the period for which grant support is sought.
(b) Whenever, during the period of grant support, program income exceeds the amount estimated in the grant application, the amount of the excess must be reported to the grantor.
(c) The excess must be used by the grantee under the terms of the grant in accordance with one or a combination of the following options:
(i) use for any purpose that furthers the objectives of the legislation under which the grant was made; or
(ii) to allow program growth through the expansion of services or for capital expenditures necessary to improve facilities where services are provided.
(6) Revenue generated by 16-1-404, 16-1-406, and 16-1-411 for the treatment, rehabilitation, and prevention of alcoholism that has not been encumbered for those purposes by the counties of Montana or the department must be returned to the state special revenue fund for the treatment, rehabilitation, and prevention of alcoholism within 30 days after the close of each fiscal year and must be distributed by the department the following year as provided in 53-24-206(3)(b)."
Section 19. Section 53-24-204, MCA, is amended to read:
"53-24-204. Powers and duties of department. (1) To carry out this chapter, the department may:
(a) accept gifts, grants, and donations of money and property from public and private sources;
(b) enter into contracts; and
(c) acquire and dispose of property.
(2) The department shall:
(a) approve treatment facilities as provided for in 53-24-208;
(b) prepare a comprehensive long-term state chemical dependency substance use disorder plan every 4 years and update this plan each biennium;
(c) provide for and conduct statewide service system evaluations;
(d) distribute state and federal funds to the counties for approved treatment programs in accordance with the provisions of 53-24-108 and 53-24-206;
(e) plan in conjunction with approved programs and provide for training of program personnel delivering services to persons with a chemical dependency substance use disorder;
(f) establish criteria to be used for the development of new programs;
(g) provide planning for the optimal use of funds by increasing efficiency of services, ensuring existing needs are met, and encouraging rural counties to form multicounty districts or contract with urban programs for services;
(h) cooperate with the board of pardons and parole in establishing and conducting programs to provide treatment for intoxicated incapacitated persons and persons with a chemical dependency substance use disorder in or on parole from penal institutions;
(i) establish standards for chemical dependency substance use disorder educational courses provided by state-approved treatment programs and approve or disapprove the courses;
(j) hold all state-approved facilities, programs, and providers to uniform standards as established by the department by rule; and
(k) assist all interested public agencies and private organizations in developing education and prevention programs for chemical dependency substance use disorder."
Section 20. Section 53-24-206, MCA, is amended to read:
"53-24-206. Administration of financial assistance. (1) The department may apply for and receive grants, allotments, or allocations of funds or other assistance for purposes pertaining to the problems of chemical dependency substance use disorder or related social problems under laws and rules of the United States, any other state, or any private organization.
(2) The department may cooperate with any other government agency or private organization in programs on chemical dependency substance use disorder or related social problems. In carrying out cooperative programs, the department may make grants of financial assistance to government agencies and private organizations under terms and conditions agreed upon.
(3) (a) In administering proceeds derived from the liquor license tax, the beer license tax, or the wine tax, the department shall distribute those funds appropriated by the legislature. Money that is appropriated for distribution to approved private or public programs on a discretionary basis must be distributed to those programs that can demonstrate that:
(i) the program is achieving the goals and objectives mutually agreed upon by the program and the department; and
(ii) the receipt of additional funds would be justified.
(b) The remainder of the proceeds that are not appropriated, as provided in subsection (3)(a), or that are not statutorily appropriated in 53-24-108(1)(b) must be distributed to the counties for use by approved private or public programs. The distribution of these proceeds is statutorily appropriated as provided in 17-7-502 and must be distributed in the following manner:
(i) Eighty-five percent must be allocated according to the proportion of each county's population to the state's population according to the most recent United States census.
(ii) Fifteen percent must be allocated according to the proportion of the county's land area to the state's land area.
(c) Money distributed under subsection (3) may only be used for purposes pertaining to the problems of alcoholism and chemical dependency substance use disorder."
Section 21. Section 53-24-207, MCA, is amended to read:
"53-24-207. Comprehensive program for treatment. (1) The department shall establish a comprehensive and coordinated program for the treatment of chemically dependent persons with substance use disorder, intoxicated incapacitated persons, and family members.
(2) The program must include:
(a) emergency treatment provided by a facility affiliated with or part of the medical service of a general hospital;
(b) inpatient treatment;
(c) intermediate treatment;
(d) outpatient treatment; and
(e) followup services.
(3) The department shall provide for adequate and appropriate treatment for alcoholics and intoxicated incapacitated persons admitted under 53-24-301 through 53-24-303.
(4) All appropriate public and private resources must be coordinated with and used in the program if possible.
(5) The department shall prepare, publish, and distribute annually a list of all approved public and private treatment facilities."
Section 22. Section 53-24-209, MCA, is amended to read:
"53-24-209. Rules for acceptance for treatment. The department shall adopt rules for acceptance of persons into the treatment program, considering available treatment resources and facilities, for the purpose of early and effective treatment of chemically dependent persons with substance use disorder, intoxicated incapacitated persons, and family members. In adopting the rules, the department must be guided by the following standards:
(1) If possible, a patient must be treated on a voluntary rather than an involuntary basis.
(2) A patient must be initially assigned or transferred to outpatient treatment unless found to require inpatient treatment.
(3) An individualized treatment plan must be prepared and maintained on a current basis for each person.
(4) Provision must be made for a continuum of coordinated treatment services so that a person who leaves a facility or a form of treatment will have available and use other appropriate treatment."
Section 23. Section 53-24-211, MCA, is amended to read:
"53-24-211. County plan to be submitted to department. (1) Every 4 years each county shall submit to the department a comprehensive countywide plan for the treatment, rehabilitation, and prevention of chemical dependency substance use disorder. Each county shall also submit annual plan updates that include, at a minimum, allocation to approved programs of revenues generated by taxation on alcoholic beverages.
(2) The plan must have been approved by the board of county commissioners and must contain information regarding existing private and public chemical dependency substance use disorder programs within the county. The plan must also contain information regarding the current and future needs of the county for the treatment, rehabilitation, and prevention of chemical dependency substance use disorder.
(3) The department shall approve or disapprove the countywide plan and annual updates. If the department disapproves a plan or update, the county may submit another plan or update to the department. In distributing funds to approved programs in a county, the department shall give consideration to the county plan.
(4) The department may adopt rules regarding the submission, submission dates, updates, approval, and disapproval of plans and the use of plans by the department in determining the needs of the county for the treatment, rehabilitation, and prevention of chemical dependency substance use disorder. No money Money may not be distributed to a county by the department for the treatment, rehabilitation, and prevention of chemical dependency substance use disorder if the county does not comply with these rules."
Section 24. Section 53-24-301, MCA, is amended to read:
"53-24-301. Treatment of the chemically dependent persons with substance use disorder. (1) An applicant for voluntary admission or court-referred admission to an approved public treatment facility shall obtain confirmation from a licensed addiction counselor that the applicant is chemically dependent has a substance use disorder and is appropriate for inpatient, freestanding care as described in the administrative rules. The department shall adopt rules to establish policies and procedures governing assessment, patient placement, confirmation, and admission to an approved public treatment facility. If the proposed patient is a minor or an incompetent person, the proposed patient, a parent, legal guardian, or other legal representative may make the application.
(2) Subject to rules adopted by the department, the administrator of an approved public treatment facility may determine who is admitted for treatment. If a person is refused admission to an approved public treatment facility, the administrator, subject to departmental rules, shall refer the person to an approved private treatment facility for treatment if possible and appropriate.
(3) If a patient receiving inpatient care leaves an approved public treatment facility, the patient must be encouraged to consent to appropriate outpatient or intermediate treatment. If it appears to the administrator of the treatment facility that the patient is chemically dependent has a substance use disorder and requires help, the department shall arrange for assistance in obtaining supportive services and residential facilities.
(4) If a patient leaves an approved public treatment facility, with or against the advice of the administrator of the facility, the department shall make reasonable provisions for the patient's transportation to another facility or to the patient's home. If the patient has no home, the patient must be assisted in obtaining shelter. If the patient is a minor or an incompetent person, the request for discharge from an inpatient facility must be made by a parent, legal guardian, or other legal representative or by the minor or incompetent, if the minor or incompetent person was the original applicant."
Section 25. Section 53-24-302, MCA, is amended to read:
"53-24-302. Involuntary commitment of alcoholics persons with substance use disorder -- rights. (1) A person may be committed to the custody of the department by the district court upon the petition of the person's spouse or guardian, a relative, the certifying physician, or the chief of any approved public treatment facility. The petition must allege that the person is an alcoholic who has a substance use disorder and habitually lacks self-control as to the use of alcoholic beverages alcohol or drugs and that the person has threatened, attempted, or inflicted physical harm on another and that unless committed is likely to inflict physical harm on another or is incapacitated by alcohol. A refusal to undergo treatment does not constitute evidence of lack of judgment as to the need for treatment. The petition must be accompanied by a certificate of a licensed physician who has examined the person within 2 days before submission of the petition unless the person whose commitment is sought has refused to submit to a medical examination, in which case the fact of refusal must be alleged in the petition. The certificate must set forth the physician's findings in support of the allegations of the petition. A physician employed by the admitting facility or the department is not eligible to be the certifying physician.
(2) Upon filing the petition, the court shall fix a date for a hearing no later than 10 days after the date the petition was filed. A copy of the petition and of the notice of the hearing, including the date fixed by the court, must be served on the petitioner, the person whose commitment is sought, the person's next of kin other than the petitioner, a parent or the person's legal guardian if the person is a minor, the administrator in charge of the approved public treatment facility to which the person has been committed for emergency care, and any other person the court believes advisable. A copy of the petition and certificate must be delivered to each person notified.
(3) At the hearing, the court shall hear all relevant testimony, including, if possible, the testimony of at least one licensed physician who has examined the person whose commitment is sought. The person has a right to have a licensed physician of the person's own choosing conduct an examination and testify on the person's behalf. If the person has no funds with which to pay the physician, the reasonable costs of one examination and testimony must be paid by the county. The person must be present unless the court believes that the person's presence is likely to be injurious to the person. The court shall examine the person in open court or, if advisable, shall examine the person in chambers. If the person refuses an examination by a licensed physician and there is sufficient evidence to believe that the allegations of the petition are true or if the court believes that more medical evidence is necessary, the court may make a temporary order committing the person to the department for a period of not more than 5 days for purposes of a diagnostic examination.
(4) If after hearing all relevant evidence, including the results of any diagnostic examination by the department, the court finds that grounds for involuntary commitment have been established by clear and convincing evidence, it shall make an order of commitment to the department. The court may not order commitment of a person unless it determines that the department is able to provide adequate and appropriate treatment for the person and that the treatment is likely to be beneficial.
(5) A person committed under this section must remain in the custody of the department for treatment for a period of 40 days unless sooner discharged. At the end of the 40-day period, the person must automatically be discharged unless before expiration of the period the department obtains a court order from the district court of the committing district for the person's recommitment upon the grounds set forth in subsection (1) for a further period of 90 days unless sooner discharged. If a person has been committed because the person is an alcoholic has a substance use disorder and is likely to inflict physical harm on another, the department shall apply for recommitment if after examination it is determined that the likelihood still exists.
(6) A person recommitted under subsection (5) who has not been discharged by the department before the end of the 90-day period must be discharged at the expiration of that period unless before expiration of the period the department obtains a court order from the district court of the committing district on the grounds set forth in subsection (1) for recommitment for a further period not to exceed 90 days. If a person has been committed because the person is an alcoholic has a substance use disorder and is likely to inflict physical harm on another, the department shall apply for recommitment if after examination it is determined that the likelihood still exists. Only two recommitment orders under subsections (5) and (6) are permitted.
(7) Upon the filing of a petition for recommitment under subsection (5) or (6), the court shall fix a date for hearing no later than 10 days after the date the petition was filed. A copy of the petition and of the notice of hearing, including the date fixed by the court, must be served on the petitioner, the person whose commitment is sought, the person's next of kin other than the petitioner, the original petitioner under subsection (1) if different from the petitioner for recommitment, one of the person's parents or the person's legal guardian if the person is a minor, and any other person the court believes advisable. At the hearing, the court shall proceed as provided in subsection (3).
(8) A person committed to the custody of the department for treatment must be discharged at any time before the end of the period for which the person has been committed if either of the following conditions is met:
(a) in case of an alcoholic a person with a substance use disorder committed on the grounds of likelihood of infliction of physical harm upon another, that the person is no longer in need of treatment or the likelihood no longer exists; or
(b) in case of an alcoholic a person with a substance use disorder committed on the grounds of incapacity and the need of treatment, that the incapacity no longer exists, further treatment will not be likely to bring about significant improvement in the person's condition, or treatment is no longer adequate or appropriate.
(9) The court shall inform the person whose commitment or recommitment is sought of the person's right to contest the application, be represented by counsel at every stage of any proceedings relating to the person's commitment and recommitment, and have assigned counsel pursuant to the Montana Public Defender Act, Title 47, chapter 1, if the person wants the assistance of counsel and is unable to obtain private counsel. If the court believes that the person needs the assistance of counsel, the court shall order the office of state public defender, provided for in 2-15-1029, to assign counsel for the person regardless of the person's wishes. The person whose commitment or recommitment is sought must be informed of the right to be examined by a licensed physician of the person's choice. If the person is unable to obtain a licensed physician and requests examination by a physician, the court shall employ a licensed physician.
(10) If a private treatment facility agrees with the request of a competent patient or the patient's parent, sibling, adult child, or guardian to accept the patient for treatment, the department may transfer the patient to the private treatment facility.
(11) A person committed under this section may at any time seek to be discharged from commitment by writ of habeas corpus or other appropriate means.
(12) The venue for proceedings under this section is the place in which the person to be committed resides or is present."
Section 26. Section 53-24-303, MCA, is amended to read:
"53-24-303. Treatment and services for intoxicated incapacitated persons. (1) A person who appears to be intoxicated incapacitated in a public place and to be in need of help may be assisted to the person's home, an approved private treatment facility, or other health care facility by the police.
(2) A peace officer acting within the scope of the officer's authority under this chapter is not personally liable for the officer's actions."
Section 27. Section 53-24-306, MCA, is amended to read:
"53-24-306. Records of chemically dependent persons with substance use disorder, intoxicated incapacitated persons, and family members. (1) The registration and other records of treatment facilities shall must remain confidential and are privileged to the patient.
(2) Notwithstanding subsection (1), the department may make available in accordance with Title 50, chapter 16, part 5, or other applicable law information from patients' records for purposes of research into the causes and treatment of chemical dependency substance use disorder. Information under this subsection may not be published in a way that discloses patients' names or other identifying information."
- END -
Latest Version of HB 353 (HB0353.01)
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