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| Montana Administrative Register Notice 24-111-29 | No. 15 08/04/2023 | |
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BEFORE THE ALTERNATIVE HEALTH CARE BOARD DEPARTMENT OF LABOR AND INDUSTRY STATE OF MONTANA
TO: All Concerned Persons
1. On August 25, 2023, at 9:00 a.m., a public hearing will be held via remote conferencing to consider the proposed changes to the above-stated rules. There will be no in-person hearing. Interested parties may access the remote conferencing platform in the following ways: a. Join Zoom Meeting, https://mt-gov.zoom.us/j/89164043149 Meeting ID: 891 6404 3149, Passcode: 836300 -OR- b. Dial by telephone, +1 406 444 9999 or +1 646 558 8656 Meeting ID: 891 6404 3149, Passcode: 836300
2. The Department of Labor and Industry (department) will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m., on August 18, 2023, to advise us of the nature of the accommodation that you need. Please contact the department at P.O. Box 1728, Helena, Montana 59624-1728; telephone (406) 444-5466; Montana Relay 711; or e-mail laborlegal@mt.gov.
3. GENERAL STATEMENT OF REASONABLE NECESSITY: The 2023 Legislature passed Senate Bill (SB) 453, effectuating a transfer of acupuncturist licensing from the Board of Medical Examiners to the Alternative Health Care Board. These rules propose to transfer the rules applicable to this license type between the boards to accomplish the bill's purpose.
Section 2-4-309, MCA, recognizes that rulemaking may occur prior to the effective date of legislation. In this instance, SB 453 has an effective date of October 1, 2023. To ensure a seamless transition of the acupuncture program from the Board of Medical Examiners to the Alternative Health Care Board, it is necessary to conduct rulemaking proceedings prior to the effective date of the legislation. This creates the rather unusual circumstance of board-created rulemaking to effectuate a transfer and amendment of rules which are not yet under the jurisdiction of the board amending them. In light of 2-4-309, MCA, this is a permissible use of board authority. The board is considering rules which will fall under its jurisdiction as of the effective date of the legislation. As a result, no rule proposed to be amended and transferred by this notice will have an effective date prior to October 1, 2023.
4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
24.111.401 FEES (1) Fees are payable to the Alternative Health Care Board (2) (a) (b) (c) (d) (e) (3) Fees for midwives are: (4) Fees for acupuncturists are: (a) license application 125 (b) license renewal 100 (a) naturopath (b) midwife (c) midwife apprentice (5) remains the same but is renumbered (6).
AUTH: 37-1-134, 37-13-201, 37-26-201, 37-27-105, MCA IMP: 37-1-134, 37-1-141, 37-13-302, 37-26-201, 37-26-403, 37-27-203, 37-27-205, 37-27-210, MCA
REASON: Reasonable necessity exists to amend this rule to include fees for acupuncturists. Reasonable necessity exists to strike (4) because it is unnecessary to be stated in rule and is not a fee payable to the board. Other changes to the rule are simply for ease of readability. Authorization and implementation statutes additionally require updating. Finally, the fees across license types are proposed to be amended to balance budgetary requirements of the board as measured against expected expenditures. The specific licensee impacts are below, and further information is available from the board on request.
24.111.402 MANAGEMENT OF INFECTIOUS WASTE (1) Each
AUTH: 37-13-201, 37-26-201, 37-27-105, 75-10-1006, MCA IMP: 75-10-1006, MCA
REASON: See general statement of reasonable necessity.
24.111.403 FEE ABATEMENT (1) The Alternative Health Care Board
AUTH: 37-1-101, 37-13-201, 37-26-201, 37-27-105, MCA IMP: 17-2-302, 17-2-303, 37-1-134, MCA
REASON: See general statement of reasonable necessity.
24.111.2301 UNPROFESSIONAL CONDUCT (1) (h) and (i) remain the same but are renumbered (d) and (e).
AUTH: 37-1-131, 37-1-319, 37-13-201, 37-26-201, 37-27-105, MCA IMP: 37-1-141, 37-1-316, 37-1-319, 37-13-201, 37-26-201, 37-27-105, MCA
REASON: Reasonable necessity exists to strike (1)(a) because its substance has been moved to the introductory clause. Subsection (1)(b) is proposed to be stricken because it is duplicative of 37-1-316(18), MCA. Portions of (1)(c) are proposed to be stricken in favor of brevity. Subsections (1)(d) and (e) are proposed to be stricken because they are included in the introductory clause of the rule. Subsection (1)(g) is proposed to be amended to make it applicable to all license types of the board. Subsection (1)(j) is proposed to be amended to specify and clarify that sexual misconduct, whether or not within the scope of practice, may be grounds for disciplinary action. Subsection (1)(l) is proposed to be stricken because it is included in the introductory clause of the rule. Reasonable necessity exists to amend the authorizing and implementing citations to include acupuncture.
5. The following rules are proposed to be amended and transferred, new matter underlined, deleted matter interlined, with proposed rule numbers in parentheses. As set forth in the general statement of reasonable necessity, these rules will fall under the jurisdiction of the board as of October 1, 2023. These amendments, if adopted as proposed, may not be effective until that date.
24.156.1408 (24.111.815) CONTINUING EDUCATION FOR ACUPUNCTURISTS (1) Each acupuncture licensee (2) through (5) remain the same.
AUTH: 37-1-131, 37-1-319, 37-13-201, MCA IMP: 37-1-131, 37-1-306, 37-13-201, MCA
REASON: Reasonable necessity exists to amend this rule to remove reference to the Board of Medical Examiners.
24.156.1409 (24.111.817) ACCREDITATION, APPROVAL, AND STANDARDS (1) Continuing education programs must: (a) (b) (2) Approved continuing education includes: (3) Licensees may claim five hours of self-study toward meeting the requirements of ARM
AUTH: 37-1-131, 37-1-319, 37-13-201, MCA IMP: 37-1-131, 37-1-306, 37-13-201, MCA
REASON: Reasonable necessity exists to amend this rule to specify the types of continuing education which are approved. The continuing education committee has not convened in at least four years and has proved no longer necessary.
24.156.1410 (24.111.819) AUDIT AND CE REPORTING REQUIREMENTS
(1) The department is authorized to audit CE requirements and shall determine the percentage to audit based on a statistically relevant sampling of the total number of licensees and the compliance rate of past audits. (3) remains the same but is renumbered (2).
AUTH: 37-1-131, 37-1-319, 37-13-201, MCA IMP: 37-1-131, 37-1-306, 37-1-319, 37-1-321, 37-13-201, MCA
REASON: Section (1) is proposed to be stricken because it is unnecessary to specify in rule the specifics of the license application or renewal. Section (2) is proposed to be replaced because the current language is duplicative of statute, which caps audits at 50% of licensees. This authorization will permit the department to determine appropriate audit numbers, to be reported to the board, for compliance purposes. Section (4) is proposed to be stricken because its substance is included for all licensees of the board in New Rule I.
6. The following rules are proposed to be transferred, without amendment, proposed numbers in parentheses. As set forth in the general statement of reasonable necessity, these rules will fall within the jurisdiction of the board on October 1, 2023. Transfer is not proposed to be effective until that date:
24.156.1403 (24.111.801) REQUIREMENTS FOR LICENSURE
AUTH: 37-13-201, MCA IMP: 37-13-201, MCA
REASON: See general statement of reasonable necessity.
24.156.1416 (24.111.807) POINT INJECTION EDUCATION AND TRAINING
AUTH: 37-13-201, MCA IMP: 37-13-103, 37-13-302, MCA
REASON: See general statement of reasonable necessity.
7. The proposed new rules are as follows:
NEW RULE I ADMINISTRATIVE SUSPENSION (1) The board authorizes the department to: (a) administratively suspend licenses for deficiencies set forth in 37-1-321(1)(a) though (e), MCA; or (b) file a complaint pertaining to the deficiencies in (1) that are based on repeated or egregious conduct, or that have co-occurring misconduct allegations that directly implicate public safety and may warrant formal disciplinary action. (2) An administrative suspension is not a negative, adverse, or disciplinary action under Title 37, MCA, and is not reportable under federal law and regulations implementing the Healthcare Practitioner Databank or the department's licensee lookup and license verification databank.
AUTH: 37-1-131, MCA IMP: 37-1-321, MCA
REASON: Section 37-1-321, MCA, permits the board to authorize the department to take certain non-disciplinary actions regarding licensees who are out of compliance with administrative licensure requirements such as not meeting continuing education requirements, failing to respond to continuing education audits, not paying required fees, not meeting initial licensing requirements, and noncompliance with board final orders. The board authorized the department to take these actions previously by motion. Reasonable necessity exists to adopt this rule to formally, publicly, and accessibly reiterate that authorization, so the public and licensees are aware of the authorization.
NEW RULE II APPLICATION FOR LICENSURE (1) Each application for licensure from the board must include: (a) a completed application form; (b) the initial license fee; and (c) verification of applicable educational requirements. (2) An applicant licensed in any other jurisdiction at any time shall cause the other jurisdictions to submit a current verification of licensure directly to the board. (3) An applicant may voluntarily withdraw their application by written request if the application has not appeared on a board agenda. Application fees are not refundable.
AUTH: 37-13-201, MCA IMP: 37-13-302, MCA
REASON: Reasonable necessity exists to adopt this new rule to specify the general requirements for license application.
8. The rules proposed to be repealed are as follows:
24.111.412 MILITARY TRAINING OR EXPERIENCE
AUTH: 37-1-145, MCA IMP: 37-1-145, MCA
REASON: Reasonable necessity exists to repeal this rule, effective October 1, 2023, at the earliest, due to House Bill 583 (2023). That legislation amends 37-1-145, MCA, and eliminates the requirement for adoption by the board of a specific military training rule, setting forth specific obligations for the board to accept military experience for granting licensure. As such, the need for this rule is obsolete.
24.111.2105 LICENSE RENEWAL FOR ACTIVATED MILITARY RESERVISTS
AUTH: 37-26-201, 37-27-105, MCA IMP: 37-1-138, MCA
REASON: Reasonable necessity exists to repeal this rule because it is duplicative of statutory requirements set forth in 37-1-138, MCA.
24.111.2401 COMPLAINT PROCEDURE
AUTH: 37-26-201, 37-27-105, MCA
REASON: Reasonable necessity exists to repeal this rule because it sets forth a departmental procedure which is defined by statute and need not be set forth in rule.
24.111.2402 SCREENING PANEL
AUTH: 37-26-201, 37-27-105, MCA IMP: 37-1-307, MCA
REASON: Reasonable necessity exists to repeal this rule because it sets forth board practice which need not be in rule.
24.156.1406 CURRICULUM
AUTH: 37-13-201, MCA IMP: 37-13-301, 37-13-302, 37-13-304, MCA
REASON: Reasonable necessity exists to repeal this rule because it provides no substantive information beyond what is set forth in statute at 37-13-302, MCA.
9. Concerned persons may present their data, views, or arguments at the hearing. Written data, views, or arguments may also be submitted at dli.mt.gov/rules or P.O. Box 1728; Helena, Montana 59624. Comments must be received no later than 5:00 p.m., September 1, 2023.
10. An electronic copy of this notice of public hearing is available at dli.mt.gov/rules and sosmt.gov/ARM/register.
11. The agency maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by the agency. Persons wishing to have their name added to the list may sign up at dli.mt.gov/rules or by sending a letter to P.O. Box 1728; Helena, Montana 59624 and indicating the program or programs about which they wish to receive notices.
12. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted on May 25 by electronic mail and July 24 by telephone.
13. Pursuant to 2-4-111, MCA, the agency has determined that the rule changes to ARM 24.111.401 proposed in this notice will have a significant and direct positive impact upon small businesses by reducing licensing fees. The agency further determined that the remaining rules will not significantly or directly impact small businesses.
14. Department staff has been designated to preside over and conduct this hearing.
Certified to the Secretary of State July 25, 2023.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
