By Chisum H.B. No. 860
75R4172 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to regulation of abortion facilities and the protection of
1-3 the health of women; providing a penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 245.002(1), Health and Safety Code, is
1-6 amended to read as follows:
1-7 (1) "Abortion" means any [an] act or procedure
1-8 performed after pregnancy has been medically verified and with the
1-9 intent to cause the termination of a pregnancy other than for the
1-10 purpose of either the birth of a live fetus or removing a dead
1-11 fetus. The term includes any medically accepted method for
1-12 terminating a pregnancy, without regard to the date on which the
1-13 method becomes medically accepted. The term does not include birth
1-14 control devices or oral contraceptives.
1-15 SECTION 2. Section 245.010, Health and Safety Code, is
1-16 amended to read as follows:
1-17 Sec. 245.010. MINIMUM STANDARDS. (a) The rules must
1-18 contain minimum standards to protect the health and safety of a
1-19 patient of an abortion facility.
1-20 (b) Only a physician as defined by the Medical Practice Act
1-21 (Article 4495b, Vernon's Texas Civil Statutes) may perform an
1-22 abortion.
1-23 (c) The standards must include standards to:
1-24 (1) prevent transmission of bloodborne pathogens;
2-1 (2) require the presence of a registered nurse in the
2-2 recovery room; and
2-3 (3) require the administrator or medical director of
2-4 the abortion facility to have the appropriate background or
2-5 experience in administration of health facilities [may not be more
2-6 stringent than Medicare certification standards, if any, for:]
2-7 [(1) qualifications for professional and
2-8 nonprofessional personnel;]
2-9 [(2) supervision of professional and nonprofessional
2-10 personnel;]
2-11 [(3) medical treatment and medical services provided
2-12 by an abortion facility and the coordination of treatment and
2-13 services;]
2-14 [(4) sanitary and hygienic conditions within an
2-15 abortion facility;]
2-16 [(5) the equipment essential to the health and welfare
2-17 of the patients; and]
2-18 [(6) clinical records kept by an abortion facility].
2-19 (d) Subject to Subsection (e), the standards must be at
2-20 least as stringent as the more stringent of:
2-21 (1) the minimum standards applicable to an ambulatory
2-22 surgical center under Chapter 243; and
2-23 (2) the standards imposed for certification of an
2-24 ambulatory surgical center under Title XVIII, Social Security Act
2-25 (42 U.S.C. Section 1395 et seq.).
2-26 (e) The standards adopted under Subsection (c)(1) must be at
2-27 least as stringent as those imposed by the federal Occupational
3-1 Safety and Health Administration under 29 C.F.R. Section 1910.1030.
3-2 The standards adopted under Subsections (c)(2) and (3) must be at
3-3 least as stringent as the analogous standards applicable to a
3-4 hospital under Chapter 241.
3-5 (f) This section does not authorize the board to:
3-6 (1) establish the qualifications of a licensed
3-7 practitioner; or
3-8 (2) permit a person to provide health care services
3-9 who is not authorized to provide those services under other laws of
3-10 this state.
3-11 SECTION 3. Sections 245.011(a) and (c), Health and Safety
3-12 Code, are amended to read as follows:
3-13 (a) Each abortion facility must submit a quarterly [an
3-14 annual] report to the department on each abortion that is performed
3-15 at the abortion facility. The report must be submitted on a form
3-16 provided by the department.
3-17 (c) The report must include:
3-18 (1) whether the abortion facility at which the
3-19 abortion is performed is licensed under this chapter;
3-20 (2) the patient's year of birth, race, marital status,
3-21 and state and county of residence;
3-22 (3) the type of abortion procedure;
3-23 (4) the date the abortion was performed;
3-24 (5) whether the patient survived the abortion, and if
3-25 the patient did not survive, the cause of death;
3-26 (6) any medical complication that arose with respect
3-27 to the abortion, including any infection or hemorrhaging
4-1 experienced by the patient and any complication that required the
4-2 patient to be hospitalized or to receive a transfusion;
4-3 (7) the period of gestation based on the best medical
4-4 judgment of the attending physician at the time of the procedure;
4-5 (8) [(7)] the date, if known, of the patient's last
4-6 menstrual cycle;
4-7 (9) [(8)] the number of previous live births of the
4-8 patient; and
4-9 (10) [(9)] the number of previous induced abortions of
4-10 the patient.
4-11 SECTION 4. Chapter 245, Health and Safety Code, is amended
4-12 by adding Section 245.0125 to read as follows:
4-13 Sec. 245.0125. EMERGENCY SUSPENSION OR CLOSING ORDER. (a)
4-14 The department shall suspend an abortion facility's license or
4-15 order an immediate closing of the facility if the department finds
4-16 that:
4-17 (1) the facility is operating in violation of this
4-18 chapter or a rule adopted under this chapter; and
4-19 (2) the violation creates an immediate threat to the
4-20 health and safety of a patient of the facility.
4-21 (b) An order suspending a license or closing a facility
4-22 under this section is immediately effective on the date on which
4-23 the license holder receives written notice or on a later date
4-24 specified in the order.
4-25 (c) An order suspending a license or ordering an immediate
4-26 closing of a facility is valid for 10 days after the effective date
4-27 of the order.
5-1 SECTION 5. Chapter 245, Health and Safety Code, is amended
5-2 by adding Sections 245.0151-245.0156 to read as follows:
5-3 Sec. 245.0151. ADMINISTRATIVE PENALTY. (a) The department
5-4 may assess an administrative penalty against a person who violates
5-5 this chapter or a rule adopted under this chapter.
5-6 (b) The penalty may not exceed $1,000 for each violation.
5-7 Each day of a continuing violation constitutes a separate
5-8 violation.
5-9 (c) In determining the amount of an administrative penalty
5-10 assessed under this section, the department shall consider:
5-11 (1) the seriousness of the violation;
5-12 (2) the history of previous violations;
5-13 (3) the amount necessary to deter future violations;
5-14 (4) efforts made to correct the violation; and
5-15 (5) any other matters that justice may require.
5-16 (d) All proceedings for the assessment of an administrative
5-17 penalty under this chapter are subject to Chapter 2001, Government
5-18 Code.
5-19 Sec. 245.0152. NOTICE; REQUEST FOR HEARING. (a) If, after
5-20 investigation of a possible violation and the facts surrounding
5-21 that possible violation, the department determines that a violation
5-22 has occurred, the department shall give written notice of the
5-23 violation to the person alleged to have committed the violation.
5-24 The notice must include:
5-25 (1) a brief summary of the alleged violation;
5-26 (2) a statement of the amount of the proposed penalty
5-27 based on the factors set forth in Section 245.0151(c); and
6-1 (3) a statement of the person's right to a hearing on
6-2 the occurrence of the violation, the amount of the penalty, or both
6-3 the occurrence of the violation and the amount of the penalty.
6-4 (b) Not later than the 20th day after the date on which the
6-5 notice is received, the person notified may accept the
6-6 determination of the department made under this section, including
6-7 the proposed penalty, or make a written request for a hearing on
6-8 that determination.
6-9 (c) If the person notified of the violation accepts the
6-10 determination of the department or if the person fails to respond
6-11 in a timely manner to the notice, the commissioner or the
6-12 commissioner's designee shall issue an order approving the
6-13 determination and ordering that the person pay the proposed
6-14 penalty.
6-15 Sec. 245.0153. HEARING; ORDER. (a) If the person notified
6-16 requests a hearing, the department shall:
6-17 (1) set a hearing;
6-18 (2) give written notice of the hearing to the person;
6-19 and
6-20 (3) designate a hearings examiner to conduct the
6-21 hearing.
6-22 (b) The hearings examiner shall make findings of fact and
6-23 conclusions of law and shall promptly issue to the commissioner or
6-24 the commissioner's designee a proposal for decision as to the
6-25 occurrence of the violation and a recommendation as to the amount
6-26 of the proposed penalty if a penalty is determined to be warranted.
6-27 (c) Based on the findings of fact and conclusions of law and
7-1 the recommendations of the hearings examiner, the commissioner or
7-2 the commissioner's designee by order may find that a violation has
7-3 occurred and may assess a penalty, or may find that no violation
7-4 has occurred.
7-5 Sec. 245.0154. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
7-6 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
7-7 the order under Section 245.0153(c) to the person alleged to have
7-8 committed the violation. The notice must include:
7-9 (1) separate statements of the findings of fact and
7-10 conclusions of law;
7-11 (2) the amount of any penalty assessed; and
7-12 (3) a statement of the right of the person to judicial
7-13 review of the order.
7-14 (b) Not later than the 30th day after the date on which the
7-15 decision is final as provided by Chapter 2001, Government Code, the
7-16 person shall:
7-17 (1) pay the penalty;
7-18 (2) pay the penalty and file a petition for judicial
7-19 review contesting the occurrence of the violation, the amount of
7-20 the penalty, or both the occurrence of the violation and the amount
7-21 of the penalty; or
7-22 (3) without paying the penalty, file a petition for
7-23 judicial review contesting the occurrence of the violation, the
7-24 amount of the penalty, or both the occurrence of the violation and
7-25 the amount of the penalty.
7-26 (c) Within the 30-day period, a person who acts under
7-27 Subsection (b)(3) may:
8-1 (1) stay enforcement of the penalty by:
8-2 (A) paying the penalty to the court for
8-3 placement in an escrow account; or
8-4 (B) giving to the court a supersedeas bond that
8-5 is approved by the court for the amount of the penalty and that is
8-6 effective until all judicial review of the order is final; or
8-7 (2) request the court to stay enforcement of the
8-8 penalty by:
8-9 (A) filing with the court a sworn affidavit of
8-10 the person stating that the person is financially unable to pay the
8-11 amount of the penalty and is financially unable to give the
8-12 supersedeas bond; and
8-13 (B) giving a copy of the affidavit to the
8-14 department by certified mail.
8-15 (d) If the department receives a copy of an affidavit under
8-16 Subsection (c)(2), the department may file with the court, within
8-17 five days after the date the copy is received, a contest to the
8-18 affidavit. The court shall hold a hearing on the facts alleged in
8-19 the affidavit as soon as practicable and shall stay the enforcement
8-20 of the penalty on finding that the alleged facts are true. The
8-21 person who files an affidavit has the burden of proving that the
8-22 person is financially unable to pay the penalty and to give a
8-23 supersedeas bond.
8-24 (e) If the person does not pay the penalty and the
8-25 enforcement of the penalty is not stayed, the department may refer
8-26 the matter to the attorney general for collection of the penalty.
8-27 (f) Judicial review of the order:
9-1 (1) is instituted by filing a petition as provided by
9-2 Subchapter G, Chapter 2001, Government Code; and
9-3 (2) is under the substantial evidence rule.
9-4 (g) If the court sustains the occurrence of the violation,
9-5 the court may uphold or reduce the amount of the penalty and order
9-6 the person to pay the full or reduced amount of the penalty. If
9-7 the court does not sustain the occurrence of the violation, the
9-8 court shall order that a penalty is not owed.
9-9 (h) When the judgment of the court becomes final, the court
9-10 shall proceed under this subsection. If the person paid the amount
9-11 of the penalty under Subsection (b)(2) and if that amount is
9-12 reduced or is not upheld by the court, the court shall order that
9-13 the department pay the appropriate amount plus accrued interest to
9-14 the person. The rate of the interest is the rate charged on loans
9-15 to depository institutions by the New York Federal Reserve Bank,
9-16 and the interest shall be paid for the period beginning on the date
9-17 the penalty was paid and ending on the date the penalty is
9-18 remitted. If the person paid the penalty under Subsection
9-19 (c)(1)(A), or gave a supersedeas bond and if the amount of the
9-20 penalty is not upheld by the court, the court shall order the
9-21 release of the escrow account or bond. If the person paid the
9-22 penalty under Subsection (c)(1)(A) and the amount of the penalty is
9-23 reduced, the court shall order that the amount of the penalty be
9-24 paid to the department from the escrow account and that the
9-25 remainder of the account be released. If the person gave a
9-26 supersedeas bond and if the amount of the penalty is reduced, the
9-27 court shall order the release of the bond after the person pays the
10-1 amount.
10-2 Sec. 245.0155. PENALTY DEPOSITED TO STATE TREASURY. An
10-3 administrative penalty collected under this chapter shall be
10-4 deposited in the state treasury to the credit of the general
10-5 revenue fund.
10-6 Sec. 245.0156. RECOVERY OF COSTS. (a) The department may
10-7 assess reasonable expenses and costs against a person in an
10-8 administrative hearing if, as a result of the hearing, the person's
10-9 license is denied, suspended, or revoked or if administrative
10-10 penalties are assessed against the person. The person shall pay
10-11 expenses and costs assessed under this subsection not later than
10-12 the 30th day after the date on which the order issued by the
10-13 commissioner or the commissioner's designee requiring the payment
10-14 of expenses and costs is final. The department may refer the
10-15 matter to the attorney general for collection of the expenses and
10-16 costs.
10-17 (b) If the attorney general brings an action against a
10-18 person to enforce an administrative penalty assessed under this
10-19 chapter and the person is found liable for an administrative
10-20 penalty, the attorney general may recover, on behalf of the
10-21 attorney general and the department, reasonable expenses and costs.
10-22 (c) For purposes of this section, "reasonable expenses and
10-23 costs" include expenses incurred by the department and the attorney
10-24 general in the investigation, initiation, or prosecution of an
10-25 action, including reasonable investigative costs, court costs,
10-26 attorney's fees, witness fees, and deposition expenses.
10-27 (d) Costs and expenses collected under this section shall be
11-1 deposited in the state treasury to the credit of a special account
11-2 that may be appropriated only to the department.
11-3 SECTION 6. Chapter 245, Health and Safety Code, is amended
11-4 by adding Sections 245.017 and 245.018 to read as follows:
11-5 Sec. 245.017. REFERRAL TO OTHER AGENCIES. The department
11-6 shall refer a matter involving a physician or another individual
11-7 who is licensed or certified to administer health care to the
11-8 appropriate licensing or certifying agency if, in administering
11-9 its responsibilities under this chapter, the department finds that
11-10 the individual may have committed an act that:
11-11 (1) may subject the individual to suspension or
11-12 revocation of the individual's license or certification or to other
11-13 professional discipline; or
11-14 (2) indicates lack of competence.
11-15 Sec. 245.018. LICENSED PROFESSIONAL COUNSELORS. A person,
11-16 other than a physician, who is employed by or who is otherwise
11-17 under the supervision of an abortion facility may not provide
11-18 counseling relating to an abortion, a pregnancy, or the decision
11-19 whether to have an abortion or continue a pregnancy unless the
11-20 person is a licensed professional counselor under the Licensed
11-21 Professional Counselor Act (Article 4512g, Vernon's Texas Civil
11-22 Statutes).
11-23 SECTION 7. This Act takes effect September 1, 1997.
11-24 SECTION 8. (a) The Texas Board of Health shall adopt rules
11-25 to implement the change in law made by Section 2 of this Act not
11-26 later than December 31, 1997.
11-27 (b) The change in law made by Section 2 of this Act applies
12-1 only to the operation of an abortion facility on or after January
12-2 1, 1998. The operation of an abortion facility before January 1,
12-3 1998, is governed by the law as it existed immediately before the
12-4 effective date of this Act, and that law is continued in effect for
12-5 that purpose.
12-6 (c) The change in law made by Section 3 of this Act applies
12-7 only to a report of an abortion facility, as required by Section
12-8 245.011, Health and Safety Code, as amended by this Act, made on or
12-9 after January 1, 1998. A report of an abortion facility made
12-10 before January 1, 1998, is governed by the law as it existed
12-11 immediately before the effective date of this Act, and that law is
12-12 continued in effect for that purpose.
12-13 (d) The change in law made by Section 5 of this Act applies
12-14 only to the imposition of an administrative penalty for conduct
12-15 that occurs on or after September 1, 1997. The imposition of an
12-16 administrative penalty for conduct that occurs before September 1,
12-17 1997, is governed by the law as it existed immediately before the
12-18 effective date of this Act, and that law is continued in effect for
12-19 that purpose.
12-20 SECTION 9. The importance of this legislation and the
12-21 crowded condition of the calendars in both houses create an
12-22 emergency and an imperative public necessity that the
12-23 constitutional rule requiring bills to be read on three several
12-24 days in each house be suspended, and this rule is hereby suspended.