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.