By: Shapiro S.B. No. 2571

(In the Senate - Filed April 30, 2009; May 1, 2009, read first time and referred to Committee on State Affairs; May 14, 2009, reported adversely, with favorable Committee Substitute by the following vote: Yeas 6, Nays 2; May 14, 2009, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 2571 By: Deuell

A BILL TO BE ENTITLED

AN ACT

relating to information related to the performance of an abortion; creating an offense.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act may be cited as the Abortion Reporting Requirement Act.

SECTION 2. Subchapter A, Chapter 171, Health and Safety Code, is amended by adding Section 171.006 to read as follows:

Sec. 171.006. REFERRAL TO DOMESTIC VIOLENCE ASSISTANCE. (a) The department shall maintain a list of domestic violence shelters and assistance programs and provide a copy of the list to each person that performs or induces an abortion so that the person may refer a woman to a shelter or program if the woman communicates that the woman is being abused or is being forced into having the abortion.

(b) A physician may refer a woman to a domestic violence shelter or assistance program as medically necessary.

SECTION 3. Chapter 171, Health and Safety Code, is amended by adding Subchapter C to read as follows:

SUBCHAPTER C. ABORTION REPORTING

Sec. 171.051. ABORTION REPORTING FORM. (a) A physician who performs or induces an abortion must submit a report to the department on each abortion the physician performs or induces. The report must be submitted on a form provided by the department and a copy of this section must be attached to the form.

(b) The report may not identify the name of the patient by any means.

(c) The abortion reporting form for each abortion must include space for reporting the following information:

(1) the name of the abortion facility at which the abortion was performed or induced and whether the facility is licensed as an abortion facility under Chapter 245, is operating as the private office of a licensed physician, or is a licensed hospital, hospital satellite clinic, or ambulatory surgical center;

(2) the signature and license number of the physician who performed or induced the abortion;

(3) the patient's age, race, marital status, and municipality, county, and state or, if the person is not a resident of the United States, nation of residence;

(4) the type of abortion procedure;

(5) the date the abortion was performed or induced;

(6) a space for the patient to optionally indicate the specific reason the abortion was performed or induced;

(7) whether the patient survived the abortion, and if the patient did not survive, the cause of death;

(8) the number of weeks of gestation based on the best medical judgment of the attending physician at the time of the procedure and the weight of the fetus, if determinable;

(9) the date, if known, of the patient's last menstrual cycle and the method of pregnancy verification;

(10) the number of previous live births of the patient;

(11) the number of previous performed or induced abortions of the patient;

(12) the number of previous spontaneous abortions of the patient;

(13) the source of referral for the abortion;

(14) the type of anesthetic, if any, used for each abortion performed;

(15) the method used to dispose of the fetal tissue and remains;

(16) complications, if any, for each abortion and for the aftermath of each abortion, with space for description of complications available on the form; and

(17) whether or not the woman availed herself of the opportunity to obtain a copy of the printed information required by Subchapter B, and if not, whether the woman viewed the information described in Section 171.014, through the Internet or by booklet.

(d) If the mother of the unborn child is a minor, the report on each abortion must include space for reporting the following information:

(1) the age of the father;

(2) whether the minor's parent, managing conservator, or guardian provided the written consent required by Section 164.052(a)(19), Occupations Code, and if so, whether the consent was given:

(A) in person at the time of the abortion; or

(B) at a place other than the location at which the abortion is performed or induced;

(3) whether the physician concluded that on the basis of the physician's good faith clinical judgment a condition existed that complicated the medical condition of the pregnant minor and necessitated the immediate abortion of her pregnancy to avert her death or to avoid a serious risk of substantial impairment of a major bodily function and that there was insufficient time to obtain the consent of the minor's parent, managing conservator, or legal guardian;

(4) whether the minor was emancipated and permitted to have the abortion without the written consent required by Section 164.052(a)(19), Occupations Code;

(5) whether judicial authorization was received, waiving the written consent required by Section 164.052(a)(19), Occupations Code; and

(6) if judicial authorization was received, the process the physician or the physician's agent used to inform the female of the judicial bypass, whether court forms were provided to her, and what entity made the court arrangement for the minor.

(e) The patient may fill out sections of the form applicable to the patient's personal information. Sections to be filled out by the patient must be at the top of the form. A patient is not subject to any penalty for failing to fill out any part of the form or filling the form out incorrectly.

(f) Each section of the bottom portion of the reporting form must, if known, be completed by the physician performing or inducing the abortion.

(g) If the patient indicates that the patient may be being forced to have an abortion in the space provided under Subsection (c)(6), the physician must make all reasonable efforts to ensure that the woman is not being forced to have the abortion, including reporting abuse or neglect under Chapter 261, Family Code, if applicable.

(h) A copy of the abortion reporting form must be maintained in the patient's medical file for not less than seven years. The patient must be given a copy of the completed abortion reporting form in person after the physician and patient complete the form.

(i) An abortion reporting form for each abortion submitted to the department must include as a cover page a monthly abortion total form. The department must ensure that the number of abortion reporting forms submitted by each physician coincides with the monthly total of performed or induced abortions indicated on the monthly abortion total form.

Sec. 171.052. ABORTION COMPLICATION REPORT. (a) The department shall prepare an abortion complication report form for all physicians licensed and practicing in this state. A copy of this section must be attached to the form. The department shall create an Internet website at which the report may be filed electronically.

(b) A physician practicing in the state who treats an illness or injury related to complications from an abortion shall complete and submit an abortion complication report to the department. The report may be submitted by mail or electronically filed on an Internet website created by the department. The report must include the following information, if known by the physician:

(1) the date and type of the original abortion;

(2) the name and type of facility where the abortion complication was diagnosed and treated;

(3) the name of the facility and of the physician who performed or induced the abortion, if known;

(4) the license number and signature of the physician who treated the abortion complication;

(5) the date on which the abortion complication was diagnosed and treated;

(6) a description of the abortion complication;

(7) the patient's year of birth, race, marital status, and municipality, county, and state or, if the person is not a resident of the United States, nation of residence;

(8) the week of gestation at which the abortion was performed or induced based on the best medical judgment of the attending physician at the time of treatment for the abortion complication;

(9) the number of previous live births by the patient;

(10) the number of previous performed or induced abortions for the patient;

(11) the number of previous spontaneous abortions by the patient; and

(12) the type of follow-up care recommended and whether the physician who filed the report provided the follow-up care.

(c) The Texas Medical Board shall ensure that abortion complication report forms required by this section, together with a copy of this section, are provided:

(1) to a physician who becomes newly licensed to practice in this state, at the same time as official notification to that physician that the physician is licensed; and

(2) not later than December 1 of each year to all physicians licensed to practice in this state.

(d) A copy of the abortion complication reporting form must be maintained in the patient's medical file for not less than seven years. The patient must receive a copy of the form in person before the person leaves the facility.

Sec. 171.053. REPORTING REQUIREMENTS. (a) A physician performing or inducing an abortion must complete and submit an abortion reporting form for each abortion as required by Section 171.051 not later than the 15th day of each month for abortions performed or induced in the previous calendar month.

(b) A physician required to submit an abortion complication report to the department by Section 171.052 must submit the report as soon as practicable after treatment of the abortion complication, but in no case more than seven days after the treatment.

(c) Not later than April 1 of each year, the department shall issue in aggregate a public report summarizing the information submitted on each individual report required by Sections 171.051 and 171.052. The public report shall cover the entire previous calendar year and shall be compiled from the data in all the abortion reporting forms and the abortion complication reports submitted to the department in accordance with Sections 171.051 and 171.052. Each public report shall also provide information for all previous calendar years, adjusted to reflect any additional information from late or corrected reports. The department shall ensure that none of the information included in the public reports could reasonably lead to identification of any physician who performed or induced an abortion or treated abortion-related complications or of any woman who has had an abortion.

(d) Except as provided by Subsection (c) and Section 245.023, all information and records held by the department under this subchapter are confidential and are not open records for the purposes of Chapter 552, Government Code. That information may not be released or made public on subpoena or otherwise, except that release may be made:

(1) for statistical purposes, but only if a person, patient, physician, or facility is not identified;

(2) with the consent of each person, patient, physician, and facility identified in the information released;

(3) to medical personnel, appropriate state agencies, or county and district courts to enforce this chapter or Chapter 245; or

(4) to appropriate state licensing boards to enforce state licensing laws.

(e) The department or an employee of the department may not disclose to a person or entity outside of the department the reports or contents of the reports required by this section and Sections 171.051 and 171.052 in a manner or fashion that permits the person or entity to whom the report is disclosed to identify in any way the person who is the subject of the report.

(f) The department may alter the reporting dates established by this section for administrative convenience or fiscal savings or another valid reason provided that physicians performing or inducing abortions submit the forms monthly and the department issues its report once a year.

Sec. 171.054. MODIFICATION OF FORM CONTENTS. The department may alter the information required to be reported by this subchapter only in order to update or to clarify the requirements of those sections. The department may not omit information required by this subchapter from forms or reports.

Sec. 171.055. PENALTIES. (a) A physician who intentionally or knowingly does not submit a report required by Section 171.051 or 171.052 within 30 days of the date the report was due is subject to a late fee of $500 for each additional 30-day period or portion of a 30-day period the report is overdue.

(b) A physician required to file a report by Section 171.051 or 171.052 who has not submitted a complete report before the first anniversary of the date the report was due is subject to a late fee under Subsection (a) and, in an action brought by the department, may be directed by a court to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.

(c) If the department fails to issue the public report required by Section 171.053 or fails in any way to enforce this subchapter, any group of 10 or more citizens of this state may petition a court for an injunction against the executive commissioner of the Health and Human Services Commission requiring that a complete public report be issued within a period stated by court order or that enforcement action be taken. Failure to comply with the injunction subjects the executive commissioner to sanctions for civil contempt.

Sec. 171.056. OFFENSE. (a) A person other than the patient commits an offense if a person:

(1) fails to submit a form or report required by this subchapter;

(2) submits false information on a form or report required by this subchapter;

(3) includes the name or identifying information of the woman who had the abortion in a form or report required by this subchapter; or

(4) includes the name or identifying information of a physician in a public report required by Section 171.053(c).

(b) A person who discloses confidential identifying information in violation of Section 171.053(e) commits an offense.

(c) A physician commits an offense if the physician performs or induces an abortion without making a reasonable effort to ensure that the abortion is not the result of coercion, as defined by Section 1.07, Penal Code.

(d) An offense under this section is a Class C misdemeanor.

SECTION 4. Section 245.001, Health and Safety Code, is amended to read as follows:

Sec. 245.001. SHORT TITLE. This chapter may be cited as the Texas Abortion Facility [Reporting and] Licensing Act.

SECTION 5. Subsection (e), Section 245.005, Health and Safety Code, is amended to read as follows:

(e) As a condition for renewal of a license, the licensee must submit to the department the annual license renewal fee and an annual report[, including the report required under Section 245.011].

SECTION 6. Section 248.003, Health and Safety Code, is amended to read as follows:

Sec. 248.003. EXEMPTIONS. This chapter does not apply to:

(1) a home and community support services agency required to be licensed under Chapter 142;

(2) a person required to be licensed under Chapter 241 (Texas Hospital Licensing Law);

(3) an institution required to be licensed under Chapter 242;

(4) an ambulatory surgical center required to be licensed under Chapter 243 (Texas Ambulatory Surgical Center Licensing Act);

(5) a birthing center required to be licensed under Chapter 244 (Texas Birthing Center Licensing Act);

(6) a facility required to be licensed under Chapter 245 (Texas Abortion Facility [Reporting and] Licensing Act);

(7) a child care institution, foster group home, foster family home, and child-placing agency, for children in foster care or other residential care who are under the conservatorship of the Department of Protective and Regulatory Services; or

(8) a person providing medical or nursing care or services under a license or permit issued under other state law.

SECTION 7. Section 245.011, Health and Safety Code, is repealed.

SECTION 8. (a) Not later than December 1, 2009, the Department of State Health Services shall provide for distribution of the forms required by Sections 171.051 and 171.052, Health and Safety Code, as added by this Act, along with instructions for completing the forms.

(b) Not later than January 1, 2010, the Texas Medical Board shall distribute forms as required by Subsection (c), Section 171.052, Health and Safety Code, as added by this Act.

(c) A physician is not required to submit a report under Section 171.051, Health and Safety Code, as added by this Act, before January 1, 2010.

(d) A physician is not required to submit a report under Section 171.052, Health and Safety Code, as added by this Act, before March 1, 2010.

(e) The changes in law made by this Act apply only to an offense committed on or after March 1, 2010. For purposes of this section, an offense is committed before March 1, 2010, if any element of the offense occurs before that date. An offense committed before March 1, 2010, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

SECTION 9. (a) Except as provided by Subsection (b) or (c) of this section, this Act takes effect September 1, 2009.

(b) Section 171.056, Health and Safety Code, as added by this Act, takes effect March 1, 2010.

(c) Subsection (e), Section 245.005, Health and Safety Code, as amended by this Act, and the repeal of Section 245.011, Health and Safety Code, by this Act take effect January 1, 2010.

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