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BILL NO.
INTRODUCED BY
(Primary Sponsor)
A BILL FOR AN ACT ENTITLED: "AN ACT REVISING AND CLARIFYING THE LAW RELATING TO RESPONSIBILITY FOR COSTS OF MEDICAL CARE PROVIDED TO A PERSON WHO IS APPREHENDED FOR SUSPECTED CRIMINAL ACTIVITY AND WHO IS INJURED OR OTHERWISE REQUIRES MEDICAL ATTENTION DURING THE PREDETENTION PHASE OF THE PERSON'S CONTACT WITH LAW ENFORCEMENT OFFICERS; ESTABLISHING RESPONSIBILITY FOR ASSOCIATED SECURITY COSTS; ESTABLISHING AN APPREHENDING AGENCY'S RESPONSIBILITY FOR UNPAID MEDICAL COSTS AND ASSOCIATED SECURITY COSTS INCURRED DURING AN ARREST OR APPREHENSION, EXCEPT CITIES AND TOWNS; PROVIDING THAT IN A COURT ACTION TO DETERMINE LIABILITY BETWEEN A MEDICAL PROVIDER AND A GOVERNMENT AGENCY, THE PREVAILING PARTY IS ENTITLED TO AN AWARD OF REASONABLE ATTORNEY FEES; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE."
WHEREAS, in City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983), the United States Supreme Court held that due process requires that persons under official detention have a constitutional right to receive adequate medical care regardless of their ability to pay and further held that responsibility for costs is a matter of state law; and
WHEREAS, there is a distinction in a criminal proceeding between the predetention phase of a person's contact with law enforcement and the postdetention phase; and
WHEREAS, it is possible that medical costs and associated security costs can be incurred for the treatment of persons in the predetention phase; and
WHEREAS, the Legislature has specifically and clearly addressed responsibility for medical costs of inmates that are detained in detention centers (the postdetention phase), as provided in Title 7, chapter 32, part 22, MCA; and
WHEREAS, there are no statutes that address responsibility for medical costs and associated security costs that are incurred for the treatment of persons in the predetention phase; and
WHEREAS, the Montana Supreme Court, in Montana Deaconess Medical Center v. Johnson, 232 Mont. 474, 758 P.2d 756, (1988), established the common-law rule relating to responsibility for predetention medical costs by holding that the government has a constitutional obligation under the due process clause to provide inmate medical care and that a county is primarily responsible to third-party providers for postarrest medical care given to a person who is ultimately charged with a violation of state law, although the county may seek recovery from another party pursuant to state law; and
WHEREAS, in 47 A.G. Op. 2 (1997), the Attorney General, considering certain 1995 legislative amendments, held that the legislative changes to the postdetention statutes did not result in a change in the law relating to predetention medical costs, as established in the Deaconess case; and
WHEREAS, several incidents have arisen around the state in which medical treatment was required for and provided to persons in the predetention phase who were apprehended for suspected criminal activity, who were injured or otherwise required medical care, and who were unable to pay for the medical treatment; and
WHEREAS, these incidents involve factual situations that are not contemplated or addressed by the existing state statutes governing detention centers; and
WHEREAS, there have been situations in which a suspect's ability to leave the scene has been circumscribed by law enforcement and it was asserted that the person was not formally arrested or was subsequently "unarrested"; and
WHEREAS, these attempts to avoid application of the postdetention statutes ignore the common-law liability for predetention medical costs established in the Deaconess case; and
WHEREAS, many of these incidents have resulted in hospitals and other medical providers being unreimbursed for medical treatment that was provided and for associated security costs; and
WHEREAS, these incidents and disputes were brought to the attention of the Legislature's Law and Justice Interim Committee during the 2007-08 interim; and
WHEREAS, the Committee appointed a subcommittee to work with interested parties to develop a legislative solution to the problem; and
WHEREAS, the Committee was unable to develop a compromise that was acceptable to the interested parties; and
WHEREAS, the Legislature now desires to clarify and revise state law relating to responsibility for payment of costs for medical treatment provided to a person who is apprehended for suspected criminal activity and who is injured or otherwise requires medical attention during the predetention phase of the person's contact with law enforcement.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Liability for costs of medical care provided to persons apprehended for suspected criminal activity -- associated security costs -- award of attorney fees. (1) If a person is injured or otherwise requires medical attention during apprehension for suspected criminal activity, the medical costs and associated security costs incurred by a treating facility must be paid as follows:
(a) by the apprehended person; or
(b) if the apprehended person is not able to pay, by the agency that employs the law enforcement officer making the apprehension, except as provided in subsection (3). Reimbursement for medical costs under this subsection (1)(b) must be at:
(i) the medicaid reimbursement rate or at a rate that is 70% of the provider's customary charges, whichever is greater; or
(ii) a negotiated rate.
(2) If a medical provider is reimbursed by the apprehended person or a third-party payor after the provider has been reimbursed under subsection (1)(b), the provider shall refund to the agency the amount that the provider had been paid by the agency for the services provided to the apprehended person.
(3) If a city or town is the apprehending agency and commits a person to the detention center of the county in which the city or town is located for a reason other than detention pending trial for or detention for service of a sentence for violating an ordinance of that city or town, the county in which the city or town is located is responsible for medical costs and security costs.
(4) This section does not restrict an apprehended person's right to use a third-party payor.
(5) An apprehended person's inability to pay may not be a factor in providing necessary medical care for the person.
(6) If litigation results between a medical provider and an agency concerning responsibility for payment under this section, reasonable attorney fees as determined by the court must be awarded to the prevailing party.
(7) The provisions of this section do not apply after a detention center accepts custody of an apprehended person, in which case the provisions of Title 7, chapter 32, part 22, apply.
(8) (a) For purposes of this section, "apprehension" means an act by a law enforcement officer that indicates the officer's intention to detain or take the person into custody and thereby subject the person to the actual control and will of the officer.
(b) Apprehension does not require a formal declaration of arrest.
(9) Responsibility for medical costs under this section does not imply civil liability to an injured person and this section may not be construed to waive any defenses otherwise available to a government agency.
NEW SECTION. Section 2. Notification to tribal governments. The secretary of state shall send a copy of [this act] to each tribal government located on the seven Montana reservations and to the Little Shell Chippewa tribe.
NEW SECTION. Section 3. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 46, chapter 6, part 1, and the provisions of Title 46, chapter 6, part 1, apply to [section 1].
NEW SECTION. Section 4. Effective date. [This act] is effective on passage and approval.
NEW SECTION. Section 5. Applicability. [This act] applies to medical care costs and related security costs incurred and to actions and proceedings filed on or after [the effective date of this act].
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