BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 37.8.107, 37.8.108, 37.8.126, 37.8.311, 37.8.801, and 37.8.802, pertaining to the update of vital records to reflect current practices

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NOTICE OF PROPOSED AMENDMENT   NO PUBLIC HEARING CONTEMPLATED

 

TO: All Concerned Persons

 

1. On August 15, 2015, the Department of Public Health and Human Services proposes to amend the above-stated rules.

 

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on August 6, 2015, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena MT 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail [email protected].

 

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

 

          37.8.107 AMENDMENT OF VITAL RECORD (1) remains the same.

          (2) Application for the amendment of marriage applications, licenses, certificates, or marital termination reports (which are not part of the decree) may be made by either party directly to the clerk of district court that issued the marriage license or has on file the marital termination orders. The clerk of district court shall will make the changes and forward a copy of the corrected document to the department.

          (3) and (4) remain the same.

          (5) Applications to amend the medical certification of cause of death shall must only be made by the physician who provided the medical certification, or a coroner or state medical examiner if the coroner or medical examiner assumed responsibility for the case. If the cause of death certification is disputed, changes to the cause of death certification must be made pursuant to an order from a court with appropriate jurisdiction.

          (6) remains the same.

          (7) A court order that changes a vital record shall must indicate if an amended or substitute record is to be created. If the court order does not indicate a preference, the record will be amended.

          (8) Any subsequent change to information previously altered amended through this process requires an order from a court with appropriate jurisdiction.

 

AUTH: 50-15-102, 50-15-103, 50-15-204, 50-15-223, MCA

IMP:     50-15-102, 50-15-103, 50-15-204, 50-15-223, 50-15-403, MCA

 

          37.8.108 AMENDMENT PROCESS AND DOCUMENT REQUIREMENTS 

          (1) remains the same.

          (2) Any certified copy of a vital record issued in the state that was amended or corrected within the first year after filing will not be marked "ALTERED" "AMENDED"; however, the summary evidence number and the date of the correction will be indicated. Any vital record amended one year or more after the event will be marked "ALTERED" "AMENDED" and will contain the summary evidence number and the date the alterations occurred.

          (3) The documentation that justifies the alteration amendment of a vital record must be made available upon request to any person receiving a certified copy.

          (4) through (7) remain the same.

 

AUTH: 50-15-102, 50-15-103, 50-15-204, 50-15-208, 50-15-223, MCA

IMP:     50-15-102, 50-15-103, 50-15-204, 50-15-208, 50-15-223, MCA

 

          37.8.126 ACCESS TO RECORDS (1) Anyone who submits a completed state-approved application shall must provide proof of identification before obtaining a certified or noncertified copy of a vital record.

          (2) If a death certificate lists the cause of death as "pending autopsy" or "pending investigation,", a certified or noncertified copy will be issued which that has the cause of death information removed.

          (3) through (10) remain the same.

 

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

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

 

          37.8.311 ADOPTIONS, NAME CHANGES, AND SEX CHANGES (1) The department will replace the original birth certificate with a new one without indicating that the information was altered amended in cases of adoption, a determination of paternity, an acknowledgment of paternity, or legitimation.

          (2) and (3) remain the same.

          (4) Except in the cases specified in ARM 37.8.108, the amendment of a registrant's given name or surname on a birth certificate may be made only if the department receives a certified copy of an order from a Montana district court with appropriate jurisdiction. The court order that directs the name change must include the registrant's name as it appears on the certificate, the registrant's date of birth, the county of birth, if available, and information sufficient to locate and identify the record to be altered amended. If the court order directs the issuance of a new certificate, the record will not show amendments, and the new certificate will not indicate on its face that it was altered amended. The procedure to add a first and/or name, middle name, or both, to a birth record that is more than one year old, as in the case when a child is not named at birth, is regulated under ARM 37.8.108.

          (5) The sex of a registrant as cited on a certificate may be amended only if the department receives a certified copy of an order from a court with appropriate jurisdiction indicating that the sex of an individual born in Montana has been changed by surgical procedure. The order must contain sufficient information for the department to locate the record. If the registrant's name is also to be changed, the court order must indicate the full name of the registrant as it appears on the original birth certificate and the full name to which it is to be altered amended. If the order from the court directs the issuance of a new certificate that does not show amendments, the new certificate will not indicate on its face that it was altered amended.  If the sex of an individual was listed incorrectly on the original certificate, refer to ARM 37.8.108.

 

AUTH: 50-15-102, 50-15-103, 50-15-204, 50-15-223, MCA

IMP:     50-15-102, 50-15-103, 50-15-204, 50-15-223, MCA

 

          37.8.801 DEATH CERTIFICATE (1) and (2) remain the same.

          (3) The person in charge of the final disposition of the dead body shall must present the death certificate to the physician, advanced practice registered nurse, or coroner for cause of death certification within three working days after being notified of the death or receiving the authorization for removal, transportation, and final disposition of a dead body, which ever occurs first.

          (4) The certifying physician, advanced practice registered nurse, or coroner shall must complete and return the death certificate to the person in charge of the final disposition of the body within 48 hours of receipt. If the cause of death certification is pending autopsy results, then the cause of death must be listed as "pending autopsy results"." When the final results are received, they must be sent to the department using a correction affidavit.

          (5) through (8) remain the same.

 

AUTH: 50-15-102, 50-15-103, 50-15-403, MCA

IMP:     50-15-109, 50-15-124, 50-15-403, 50-15-405, MCA

 

          37.8.802 FETAL DEATH CERTIFICATE (1) and (2) remain the same.

          (3) The person in charge of the final disposition of the body of a fetus shall must present the fetal death certificate to the physician, advanced practice registered nurse, or coroner for cause of death certification within three working days after being notified of the death or receiving the authorization for removal, transportation, and final disposition of a dead body, whichever occurs first.

          (4) The certifying physician, advanced practice registered nurse, or coroner shall must complete and return the fetal death certificate to the person in charge of final disposition of the fetal body within 48 hours after receiving the certificate. If the cause of fetal death is pending autopsy results, then the cause of death on the certificate must be listed as "pending autopsy results.". When the final results are received, they must be sent to the department using a correction affidavit.

          (5) through (7) remain the same.

 

AUTH: 50-15-102, 50-15-124, MCA

IMP:     50-15-102, 50-15-109, 50-15-124, 50-15-403, 50-15-405, MCA

 

          4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (the department) proposes the above-described amendments to ARM 37.8.107, 37.8.108, 37.8.126, 37.8.311, 37.8.801, and 37.8.802 to revise vital record's Administrative Rules of Montana to reflect current practices of the department. The department is directed under 50-15-204(3), MCA, to promulgate rules "establishing the circumstances under which vital records may be corrected or amended and the procedure to correct or amend those records." Amendments replacing the word "altered" with the word "amended" are necessary to more accurately describe the process that is needed to correct a vital record using the correction process. Moreover, use of the word "amended" is consistent with statutory language.

 

The department is further directed under 50-15-403(2), MCA, to implement rules stating that medical certification must be completed by a physician, an advanced practice registered nurse, or a coroner within the time frame established by the department. Removal of the word "autopsy" from pending death and fetal death certificates allows for inclusion of other circumstances that potentially delay the filing of a certificate with the actual cause of death. This change will allow more certifications of death to be filed within the ten-day deadline established by ARM 37.8.801(8).

 

The department is proposing minor corrections and revisions to the rules to ensure consistent use of terminology and to comply with current grammar and formatting requirements. The department is proposing to amend these rules by changing the word "shall" to "must" or "will" and removing the term "and/or."

 

The department will write letters to certifiers of the causes of death, explaining that, more certifications of death will meet the required death filing time frame, if we changed the wording to just pending.

 

Specifically, the department proposes the following amendments:

 

ARM 37.8.107, 37.8.108, and 37.8.311

 

The department is proposing to amend these rules by changing the word "altered" to "amended." This wording standardizes the terminology used by the department and county clerk and recorder offices once a change has been made to a birth certificate, whereupon the department is required by law to indicate on the record that the record has been "amended."

 

ARM 37.8.126, 37.8.801, and 37.8.802

 

The department is proposing to remove the word "autopsy" throughout these rules. Removing this word will enable certification of deaths with a pending cause of death to be filed within the ten days of the date of death deadline, even when further investigation/toxicology needs to be performed. When a cause of death cannot be determined to meet the required ten days from date of death deadline, a death or fetal death certificate is now filed with the cause of death field marked as "pending autopsy." However, a pending autopsy is frequently not the reason that a cause of death has not been declared. Use of the word "pending" will be inclusive of all circumstances that delay the cause of death determination, such as toxicology reports.

 

5. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to: Kenneth Mordan, Office of Legal Affairs, Department of Public Health and Human Services, P.O. Box 4210, Helena MT 59604-4210, no later than 5:00 p.m. on August 13, 2015. Comments may also be faxed to (406) 444-9744 or e-mailed to [email protected].

 

6. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Kenneth Mordan at the above address no later than 5:00 p.m., August 13, 2015.

 

7. If the department  receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 61 persons based on the combined annual total of amended records and death certificates submitted as pending.

 

8. 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.

 

9. 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 this 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.

 

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

 

11. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

 

/s/ Nicholas Domitrovich                        /s/ Richard H. Opper                            

Nicholas Domitrovich, Attorney               Richard H. Opper, Director

Rule Reviewer                                       Public Health and Human Services

 

Certified to the Secretary of State July 6, 2015.