Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

In the matter of the amendment of ARM 37.8.126 pertaining to grandparents and relative caregivers access to birth records

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

TO: All Concerned Persons

1. On July 16, 2009, at 11:00 a.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendment of the above-stated rule.

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on July 7, 2009, to advise us of the nature of the accommodation that you need. Please contact Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

3. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:

37.8.126 ACCESS TO RECORDS (1) and (2) remain the same.

(3) The following people may obtain a certified copy of a birth record:

(a) and (b) remain the same.

(c) a grandparent whose child is listed as a parent on the grandchild's birth certificate upon establishing identification and relationship to the satisfaction of the certifying official;

(d) a caretaker relative providing a medical authorization affidavit issued under 40-6-501 and 40-6-502, MCA, or an educational authorization affidavit issued under 20-50-503, MCA;

(4) through (10) remain the same.

AUTH: 50-15-103, ~~50-15-113~~, 50-15-121, 50-15-122, MCA

IMP: 20-50-503, 40-6-501, 40-6-502, 50-15-103, ~~50-15-113~~, 50-15-121, 50-15-122, MCA

4. The proposed amendments to ARM 37.8.126 allow relative caretakers, including grandparents, to have access to the birth certificate of that child. Many times parents may leave their children with other family members without providing any parental authority for the children's care. The circumstances may include parents abandoning their children.

These relative caregivers can consent to the child's medical treatment under 40-6-501 and 40-6-502, MCA, and enrollment in school pursuant to 20-50-503, MCA, without having legal custody or the parents' permission. The caregivers may need copies of the child's birth certificate to further assist in getting medical treatment, education, public assistance, immigration, and for other matters during the time they care for the child.

Currently, these caretakers have no access to the birth records because they are not specifically listed as authorized persons under 50-15-121, MCA. The current form of ARM 37.8.126 allows access only if they have a legal guardianship. The department has also allowed a caretaker to present a parent's power of attorney or a notarized release signed by the parent. These restrictions hinder relative caregivers' needs for birth records that are necessary for the care of the child.

It was decided to use the department's rulemaking authority to add grandparents and relative caretakers as authorized persons. Section 50-15-121, MCA, provides that the "department shall adopt rules to further define those who may obtain copies of vital records filed under this chapter".

5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., July 23, 2009.

6. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

8. An electronic copy of this Proposal Notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

/s/ Michelle Maltese /s/ Anna Whiting Sorrell

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State June 15, 2009.