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Gianforte vetoes bipartisan child welfare and state hospital reforms

The bills required warrants for most child removals and increased oversight for adult psychiatric patients at Warm Springs
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Posted at 12:01 PM, May 12, 2023

HELENA - Gov. Greg Gianforte on Thursday vetoed some of the most significant reforms to child welfare and state mental health systems passed by the Legislature this year. The three bills, sponsored by Republicans and Democrats, surged through both chambers with broad bipartisan support.

The vetoed bills are House Bill 37, which required Child Protective Services to obtain a judicial warrant before removing children except in emergency situations; House Bill 29, a bill to expedite the transfer of patients with dementia, Alzheimer’s and traumatic brain injuries from the Montana State Hospital in Warm Springs to more appropriate clinical settings; and Senate Bill 4, a proposal to increase oversight of abuse and neglect reports at the state hospital, reports the Montana Free Press.

All three policies were developed through roughly two years of research and deliberation by the bipartisan Children, Families, Health and Human Services interim committee. SB 4, sponsored by Sen. Jen Gross, D-Billings, did not receive a single dissenting vote throughout the entire session. Both HB 29 and HB 37, sponsored by Rep. Jennifer Carlson, R-Manhattan, received a handful of no votes from Democrats but ultimately passed both chambers with near-unanimous support.

The governor’s office had originally attempted to issue amendatory vetoes for all three bills during the final hours of the 68th Legislature. But the proposed changes fell into a procedural gray area, returning to lawmakers after the Senate had adjourned but while the House remained in session. Without both chambers available to debate the governor’s wide-ranging amendments, the bills were returned to the governor’s desk in their original form to await his signature or veto.

In the letter explaining his rejection of HB 37, Gianforte said the proposed standards for warrants were too narrow and would risk leaving children in dangerous situations while child protective workers seek judicial consent for a removal.

“Let me be clear: while I am open to testing new and innovative public policy in Montana, we must not experiment with the well-being or lives of children in need of protection. House Bill 37 is undoubtedly a step too far,” Gianforte wrote. Noting that child removal is a last resort for the state health department, the governor continued, “I cannot support legislation that ties the department’s hands in exigent circumstances when a child’s life may be at risk and immediate removal is needed but not permitted under House Bill 37 without a warrant,” the letter said.

As written in the bill passed by lawmakers, child welfare workers would be required to obtain a judicial warrant for a removal “unless the child is likely to experience sexual abuse or physical abuse in the time that would be required to obtain a warrant.”

Many other states, including California, Idaho and Wyoming, have stipulations requiring law enforcement officers or child protective workers to obtain warrants before removals except in emergency circumstances, according to the National Conference of State Legislatures, including when a child is at immediate risk of physical or sexual danger.

Carlson, the bill’s sponsor, told Montana Free Press Thursday that the governor’s decision is “frustrating” and that the letter includes “inflammatory language” that ignores the list of other states with similar protocols in place.

“This is not ‘experimenting’ and not ‘a bridge too far.’ It is a step in the right direction,” she said in an additional written statement.

Carlson’s response also noted that the bill went through multiple revisions and incorporated feedback from a broad array of stakeholders, one factor she credited with its near complete support in the Legislature. Those incorporated perspectives, she suggested, have now been trumped by the state health department.

“Because one party did not get everything they lobbied for, a significant, historic, bipartisan piece of legislation to bring Montana into alignment with best practices in child welfare is now vetoed,” she said. “There are substantial constitutional issues with removing a child without a warrant when the situation is not an emergency.”

The Legislature’s reforms to the state hospital were similarly met with blunt objections from the governor’s administration. In his veto letter for SB 4, which would have required the state health department to release abuse and neglect reports to Disability Rights Montana, the state’s federally mandated civil rights advocacy group for people with disabilities, Gianforte wrote that the bill is “legally insufficient, deeply flawed, and failed to protect Montanans’ constitutionally protected rights to privacy.”

Bernie Franks-Ongoy, the executive director of Disability Rights Montana, told MTFP Thursday she is “incredibly disappointed” by the governor’s veto.

“He’s wrong. The governor’s wrong. The systems in place are not adequate,” Franks-Ongoy said. DRM is required to follow confidentiality requirements under state and federal laws, she continued, making her dubious about the stated reasoning for rejecting the legislation.

“The director of [the state health department] continued to say that he wanted to operate with true transparency. And I believe by [the governor] vetoing this bill, he never meant that,” Franks-Ongoy said.

Regarding HB 29, the bill to phase out involuntary state hospital commitments for patients with a primary diagnosis of dementia, Alzheimer’s or a traumatic brain injury, Gianforte said the measure “fails to offer a realistic mechanism for compliance and to transition these patients who are currently committed to MSH’s care to community-based treatment services and facilities.”

As written, the governor said, the bill would essentially eliminate judicial discretion for civil commitment cases and “could require MSH to discharge some of the most vulnerable Montanans without guarantee that another available, clinically appropriate placement exists for them. This is irresponsible, inappropriate, and inhumane.”

Gianforte maintained that all three policies could have been improved by incorporating feedback from the state health department throughout the prior interim and the legislative session.

At a May 4 press conference with House leadership, the day after the Legislature adjourned, Carlson said the timing of the governor’s amendments made continuing negotiations difficult.

“I didn’t see them until nearly 6:00 last night. That was a really hard process, to be honest with you,” she said.

Lawmakers can be polled to override a governor’s veto after they leave Helena, an outcome that requires two-thirds support of the entire Legislature. In her written response to the veto letters Thursday, Carlson forecast that lawmakers will be polled on House Bill 37 and other vetoes of bills that passed by broad margins.

During her earlier remarks at the May press conference, Carlson characterized the support for HB 37 as an intentional response to Montana’s high rates of children in the foster care system.

“It wasn’t just people pushing a button because someone told them to. People in this building know we need to fix the problem,” Carlson said.

Asked how the governor’s office weighed the possibility of blowback from lawmakers about the vetoes, Gianforte press secretary Kaitlin Price said the administration did not make the decisions lightly and tried to revise the legislation before the session unexpectedly adjourned.

“Unfortunately, the Senate Minority Leader and a band of senators decided to quit early and sine die before the work was done, leaving the bills unchanged and deeply flawed,” Price said in an emailed statement. “When considering these bills, the governor is putting the health and safety of children and other vulnerable Montanans above any political calculations, and we hope lawmakers will do the same.”