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Texas Register Preamble


The Executive Commissioner of the Health and Human Services Commission (commission), on behalf of the Department of State Health Services (department), adopts amendments to §139.4 and §139.5, concerning the regulation of abortion facilities with changes to the proposed text as published in the August 10, 2012, issue of the Texas Register (37 TexReg 5963).

BACKGROUND AND PURPOSE

Health and Safety Code, Chapter 245, requires certain abortion facilities to be licensed by the department. Section 245.011 mandates annual reporting to the department on each abortion that is performed in an abortion facility, which is defined by statute as any place where an abortion is performed. Chapter 139 of this title, Abortion Facility Reporting and Licensing rules, implements Health and Safety Code, Chapter 245. Existing annual reporting requirements apply to all licensed abortion facilities and all facilities where abortions are performed.

SECTION-BY-SECTION SUMMARY

The amendment to §139.4(a) - (e) provides revised and new language to specify the required data to be reported annually to the department by abortion facilities. Subsections (d) - (f) were renumbered as (f) - (h) without changes to the rule text.

Section 139.5(3) amends reporting requirements for physicians. Additionally, the amendment revises reporting requirements concerning abortion complications by adding a "complications reporting form" submission to existing physician reporting requirements.

COMMENTS

The department, on behalf of the commission, has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period, which the commission has reviewed and accepts. The commenters were individuals, associations and/or groups, and members of the Texas Legislature including the following: Planned Parenthood (Texas Capital Region), Change.org, Concerned Citizens of Texas, Southwestern Women's Surgery Center, and various Texas State Representatives and Senators. Some commenters supported the rules as drafted, others were against the rules in their entirety, and some suggested recommendations for change as discussed in the summary of comments.

Comment: Eight persons wrote in support of the rules, but suggested additional amendments as follows: strike §139.4(d) that addresses the confidentiality of individual reports; require the license number, area of specialty, and signature of the physician who provided the abortion on each report be sent to the department; amend §139.5(3)(A) that requires the abortion complication report to be submitted to the department within 30 days of the complication treatment to instead read "as soon as practicable after diagnosis or treatment of the abortion complication, but in no case more than forty-eight hours after the date of the diagnosis or treatment;" and insert into §139.5(3)(B), the data point of "the number of previous induced abortions of patient."

Response: The commission appreciates and agrees with one of the comments, and the reporting requirement of "the number of previous induced abortions of the patient" was added to §139.5(3)(B)(viii) concerning the additional reporting requirements for physicians.

Comment: Fourteen persons and two petitions commented that the rules should not be implemented as they are the result of certain amendments to filed House Bill (HB) 1602, 82nd Legislature, Regular Session, 2011, and filed HB 1131, 80th Legislature, Regular Session, 2007, that did not pass and therefore does not reflect the will or intent of the Legislature.

Response: The commission appreciates the comments, but does not agree with the comments. The commission has the legal authority to adopt rules relating to regulation of abortion services including reporting requirements and rules relating to the health and safety of the patients in any abortion facility and all facilities where abortions are performed. No change was made as a result of the comments.

Comment: Two persons commented that the reporting requirements are not required by law and are not medically necessary.

Response: The commission appreciates the comments, but does not agree with the comments. The commission has the legal authority to adopt rules relating to regulation of abortion services including reporting requirements and rules relating the health and safety of the patients in any abortion facility and all facilities where abortions are performed. No change was made as a result of the comments.

Comment: One person commented that the increased reporting rules should not be implemented as they are unwarranted, punitive and an attempt to limit a woman's ability to obtain a legal abortion.

Response: The commission appreciates the comment, but does not agree with the comment. The commission has the legal authority to adopt rules relating to regulation of abortion services including reporting requirements and rules relating to the health and safety of the patients in any abortion facility and all facilities where abortions are performed. No change was made as a result of the comment.

Comment: One person commented that the reporting requirements in §139.4(c)(11) - (15), renumbered as (c)(10) - (14), should be stricken from the rule as they are not related to maternal health; and the reporting of §139.4(c)(16), renumbered as (c)(15), method of pregnancy verification, is redundant when taken in consideration with the implementation of HB 15, the Mandatory Sonogram Law, 82nd Legislature, Regular Session, 2011, which amended Health and Safety Code, Chapters 171 and 241.

Response: The commission appreciates the comments, but does not agree with the comments. The commission has the legal authority to adopt rules relating to the regulation of abortion services in any abortion facility and all facilities where abortions are performed. No change was made as a result of the comments.

Comment: Four persons commented that the reporting requirement of "the patient's highest level of education" in §139.4(c)(10) should be stricken from the rules as it is not related to the actual abortion procedure or maternal health.

Response: The commission appreciates the comments, and one change was made as a result of the comments. The reporting requirement of "the patient's highest level of education" was removed in §139.4(c)(10), resulting in renumbering of the remaining paragraphs of the subsection.

Comment: One person commented that a reporting requirement should be added that clearly indicates whether or not the mandatory sonogram as required by HB 15 (82nd Legislature) was a deciding factor in not proceeding with the abortion; an additional reporting requirement should be added to capture all relevant and applicable data on the male biological contributor (if known); and the term "appropriate state agencies" in §139.4(d)(3) is too broad and should be replaced with "state agencies authorized by state law."

Response: The commission appreciates the comments, but does not agree with the comments. The decision not to proceed with the abortion may or may not occur at the abortion facility. The abortion provider collects information at the time of the abortion but if there is no abortion, there will be no data submitted. The commission finds no regulatory reporting or health and safety purpose in the language relating to the male. The language in §139.4(d)(3) is statutory and thus cannot be modified. No change was made as a result of this comment.

Comment: One person commented that §139.4(c)(15), renumbered as (c)(14), which requires the reporting of how a minor obtained consent, is not only irrelevant to maternal health, but is overly intrusive and raises serious Constitutional questions.

Response: The commission appreciates the comment which did point out that the language of the proposed rule was in error and was supposed to require information as to whether consent was obtained, not how it was obtained. As a result, the reporting requirement has been amended to read: "if the patient is younger than 18, was consent obtained" in §139.4(c)(14).

Comment: Four persons commented that the §139.5(3) requirement to report complications stemming from an abortion is burdensome on physicians as there is no definition of "complication" within the proposed rule or elsewhere in existing statute.

Response: The commission appreciates the comments, but does not agree with the comments. The risks and hazards of having an abortion procedure, as contained in 25 TAC §601.2, provides a list of conditions of what a physician may consider to be a complication. No change was made as a result of the comments.

Comment: One person commented that the reporting requirements of provisions in §139.4(c)(14), renumbered as (c)(13), the method used to dispose of fetal tissue and remains; and in §139.4(c)(16), renumbered as (c)(15), the method of pregnancy verification would need to be obtained from the patient by, or on behalf of a physician, and invades the patient's right to privacy.

Response: The commission appreciates the comments, but does not agree with the comments. The commission has the legal authority to adopt rules relating to the regulation of abortion services in any abortion facility and all facilities where abortions are performed. No change was made as a result of the comments.

Comment: One person commented that the new reporting requirement in §139.4(c)(12) that the physician verify that the patient has signed the Abortion and Sonogram election form, in regards to voluntary and informed consent, is unnecessary and redundant.

Response: The commission appreciates the comment, but does not agree with the comment. The commission has the legal authority to adopt rules relating to regulation of abortion services including reporting requirements and rules relating to the health and safety of the patients in any abortion facility and all facilities where abortions are performed. No change was made as a result of the comment.

Comment: Three persons questioned the department's authority to implement the proposed rules as written.

Response: The commission appreciates the comments, but does not agree with the comments. The commission has the legal authority to adopt rules relating to the regulation of abortion services which include reporting requirements and rules relating to the health and safety of the patients in any abortion facility and all facilities where abortions are performed. No change was made as a result of the comments.

Comment: One person commented that the type of anesthesia used in the abortion procedure should be added in §139.5, Additional Reporting Requirements for Physicians.

Response: The commission appreciates the comment, and two changes were made as a result of this comment. The reporting requirement of "the type of anesthesia, if any, used in the procedure: intravenous sedation or general anesthesia," was added in §139.4(c)(16) and in §139.5(3)(B)(ix).

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.

STATUTORY AUTHORITY

The amendments are authorized by Health and Safety Code §245.011, concerning rules and minimum standards for the licensing and regulation of abortion facilities required to obtain a license under this chapter; and Government Code §531.0055 and Health and Safety Code §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.



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