TEXAS. Texas Statutes.

 

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[FAMILY CODE
 
 
CHAPTER 33. NOTICE OF ABORTION]
 
 33.001. DEFINITIONS. In this chapter:
 
(1) "Abortion" means the use of any means to terminate 
the pregnancy of a female known by the attending physician to be 
pregnant, with the intention that the termination of the pregnancy 
by those means will with reasonable likelihood cause the death of 
the fetus. This definition, as applied in this chapter, applies 
only to an unemancipated minor known by the attending physician to 
be pregnant and may not be construed to limit a minor's access to 
contraceptives.
 
(2) "Fetus" means an individual human organism from 
fertilization until birth.
 
(3) "Guardian" means a court-appointed guardian of the 
person of the minor.
 
(4) "Physician" means an individual licensed to 
practice medicine in this state.
 
(5) "Unemancipated minor" includes a minor who: 
 
(A) is unmarried; and 
 
(B) has not had the disabilities of minority 
removed under Chapter 31. 
 
 33.002. PARENTAL NOTICE. (a) A physician may not 
perform an abortion on a pregnant unemancipated minor unless:
 
(1) the physician performing the abortion gives at 
least 48 hours actual notice, in person or by telephone, of the 
physician's intent to perform the abortion to:
 
(A) a parent of the minor, if the minor has no 
managing conservator or guardian; or
 (3) a probate court, county court at law, district 
court, including a family district court, or court of appeals, by 
its inaction, constructively authorizes the minor to consent to the 
abortion as provided by Section 33.003 or 33.004; or
 
(4) the physician performing the abortion: 
 
(A) concludes that on the basis of the 
physician's good faith clinical judgment, a condition exists that 
complicates the medical condition of the pregnant minor and 
necessitates the immediate abortion of her pregnancy to avert her 
death or to avoid a serious risk of substantial and irreversible 
impairment of a major bodily function; and
 
(B) certifies in writing to the Texas Department 
of Health and in the patient's medical record the medical 
indications supporting the physician's judgment that the 
circumstances described by Paragraph (A) exist.
 
(b) If a person to whom notice may be given under Subsection
(a)(1) cannot be notified after a reasonable effort, a physician 
may perform an abortion if the physician gives 48 hours 
constructive notice, by certified mail, restricted delivery, sent 
to the last known address, to the person to whom notice may be given 
under Subsection (a)(1). The period under this subsection begins 
when the notice is mailed. If the person required to be notified is 
not notified within the 48-hour period, the abortion may proceed 
even if the notice by mail is not received.
 
(c) The requirement that 48 hours actual notice be provided 
under this section may be waived by an affidavit of:
 
(1) a parent of the minor, if the minor has no managing 
conservator or guardian; or
 
(2) a court-appointed managing conservator or 
guardian. 
 
(d) A physician may execute for inclusion in the minor's 
medical record an affidavit stating that, according to the best 
information and belief of the physician, notice or constructive 
notice has been provided as required by this section. Execution of 
an affidavit under this subsection creates a presumption that the 
requirements of this section have been satisfied.
 
(e) The Texas Department of Health shall prepare a form to 
be used for making the certification required by Subsection (a)(4).
 
(f) A certification required by Subsection (a)(4) is 
confidential and privileged and is not subject to disclosure under 
Chapter 552, Government Code, or to discovery, subpoena, or other 
legal process. Personal or identifying information about the 
minor, including her name, address, or social security number, may 
not be included in a certification under Subsection (a)(4). The 
physician must keep the medical records on the minor in compliance 
with the rules adopted by the Texas State Board of Medical Examiners 
under Section 153.003, Occupations Code.
 
(g) A physician who intentionally performs an abortion on a 
pregnant unemancipated minor in violation of this section commits 
an offense. An offense under this subsection is punishable by a 
fine not to exceed $10,000. In this subsection, "intentionally" has 
the meaning assigned by Section 6.03(a), Penal Code.
 
(h) It is a defense to prosecution under this section that 
the minor falsely represented her age or identity to the physician 
to be at least 18 years of age by displaying an apparently valid 
governmental record of identification such that a reasonable person 
under similar circumstances would have relied on the 
representation. The defense does not apply if the physician is 
shown to have had independent knowledge of the minor's actual age or 
identity or failed to use due diligence in determining the minor's 
age or identity. In this subsection, "defense" has the meaning and 
application assigned by Section 2.03, Penal Code.
 
(i) In relation to the trial of an offense under this 
section in which the conduct charged involves a conclusion made by 
the physician under Subsection (a)(4), the defendant may seek a 
hearing before the Texas State Board of Medical Examiners on 
whether the physician's conduct was necessary to avert the death of 
the minor or to avoid a serious risk of substantial and irreversible 
impairment of a major bodily function. The findings of the Texas 
State Board of Medical Examiners under this subsection are 
admissible on that issue in the trial of the defendant. 
Notwithstanding any other reason for a continuance provided under 
the Code of Criminal Procedure or other law, on motion of the 
defendant, the court shall delay the beginning of the trial for not 
more than 30 days to permit a hearing under this subsection to take 
place.
 
 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who 
wishes to have an abortion without notification to one of her 
parents, her managing conservator, or her guardian may file an 
application for a court order authorizing the minor to consent to 
the performance of an abortion without notification to either of 
her parents or a managing conservator or guardian.
 
(b) The application may be filed in any county court at law, 
court having probate jurisdiction, or district court, including a 
family district court, in this state.
 
(c) The application must be made under oath and include: 
 
(1) a statement that the minor is pregnant; 
 
(2) a statement that the minor is unmarried, is under 
18 years of age, and has not had her disabilities removed under 
Chapter 31;
 
(3) a statement that the minor wishes to have an 
abortion without the notification of either of her parents or a 
managing conservator or guardian; and
 
(4) a statement as to whether the minor has retained an 
attorney and, if she has retained an attorney, the name, address, 
and telephone number of her attorney.
 
(d) The clerk of the court shall deliver a courtesy copy of 
the application made under this section to the judge who is to hear 
the application.
 
(e) The court shall appoint a guardian ad litem for the 
minor. If the minor has not retained an attorney, the court shall 
appoint an attorney to represent the minor. If the guardian ad 
litem is an attorney admitted to the practice of law in this state, 
the court may appoint the guardian ad litem to serve as the minor's 
attorney.
 
(f) The court may appoint to serve as guardian ad litem: 
 
(1) a person who may consent to treatment for the minor 
under Sections 32.001(a)(1)-(3);
 
(2) a psychiatrist or an individual licensed or 
certified as a psychologist under Chapter 501, Occupations Code;
 
(3) an appropriate employee of the Department of 
Protective and Regulatory Services;
 
(4) a member of the clergy; or 
 
(5) another appropriate person selected by the court. 
 
(g) The court shall fix a time for a hearing on an 
application filed under Subsection (a) and shall keep a record of 
all testimony and other oral proceedings in the action. The court 
shall enter judgment on the application immediately after the 
hearing is concluded.
 
(h) The court shall rule on an application submitted under 
this section and shall issue written findings of fact and 
conclusions of law not later than 5 p.m. on the second business day 
after the date the application is filed with the court. On request 
by the minor, the court shall grant an extension of the period 
specified by this subsection. If a request for an extension is 
made, the court shall rule on an application and shall issue written 
findings of fact and conclusions of law not later than 5 p.m. on the 
second business day after the date the minor states she is ready to 
proceed to hearing. If the court fails to rule on the application 
and issue written findings of fact and conclusions of law within the 
period specified by this subsection, the application is deemed to 
be granted and the physician may perform the abortion as if the 
court had issued an order authorizing the minor to consent to the 
performance of the abortion without notification under Section 
33.002. Proceedings under this section shall be given precedence 
over other pending matters to the extent necessary to assure that 
the court reaches a decision promptly.
 
(i) The court shall determine by a preponderance of the 
evidence whether the minor is mature and sufficiently well informed 
to make the decision to have an abortion performed without 
notification to either of her parents or a managing conservator or 
guardian, whether notification would not be in the best interest of 
the minor, or whether notification may lead to physical, sexual, or 
emotional abuse of the minor. If the court finds that the minor is 
mature and sufficiently well informed, that notification would not 
be in the minor's best interest, or that notification may lead to 
physical, sexual, or emotional abuse of the minor, the court shall 
enter an order authorizing the minor to consent to the performance 
of the abortion without notification to either of her parents or a 
managing conservator or guardian and shall execute the required 
forms.
 
(j) If the court finds that the minor does not meet the 
requirements of Subsection (i), the court may not authorize the 
minor to consent to an abortion without the notification authorized 
under Section 33.002(a)(1).
 
(k) The court may not notify a parent, managing conservator, 
or guardian that the minor is pregnant or that the minor wants to 
have an abortion. The court proceedings shall be conducted in a 
manner that protects the anonymity of the minor. The application 
and all other court documents pertaining to the proceedings are 
confidential and privileged and are not subject to disclosure under 
Chapter 552, Government Code, or to discovery, subpoena, or other 
legal process. The minor may file the application using a pseudonym 
or using only her initials.
 
(l) An order of the court issued under this section is 
confidential and privileged and is not subject to disclosure under 
Chapter 552, Government Code, or discovery, subpoena, or other 
legal process. The order may not be released to any person but the 
pregnant minor, the pregnant minor's guardian ad litem, the 
pregnant minor's attorney, another person designated to receive the 
order by the minor, or a governmental agency or attorney in a 
criminal or administrative action seeking to assert or protect the 
interest of the minor. The supreme court may adopt rules to permit 
confidential docketing of an application under this section.
 
(m) The clerk of the supreme court shall prescribe the 
application form to be used by the minor filing an application under 
this section.
 
(n) A filing fee is not required of and court costs may not 
be assessed against a minor filing an application under this 
section.
 
 33.004. APPEAL. (a) A minor whose application under 
Section 33.003 is denied may appeal to the court of appeals having 
jurisdiction over civil matters in the county in which the 
application was filed. On receipt of a notice of appeal, the clerk 
of the court that denied the application shall deliver a copy of the 
notice of appeal and record on appeal to the clerk of the court of 
appeals. On receipt of the notice and record, the clerk of the 
court of appeals shall place the appeal on the docket of the court.
 
(b) The court of appeals shall rule on an appeal under this 
section not later than 5 p.m. on the second business day after the 
date the notice of appeal is filed with the court that denied the 
application. On request by the minor, the court shall grant an 
extension of the period specified by this subsection. If a request 
for an extension is made, the court shall rule on the appeal not 
later than 5 p.m. on the second business day after the date the 
minor states she is ready to proceed. If the court of appeals fails 
to rule on the appeal within the period specified by this 
subsection, the appeal is deemed to be granted and the physician may 
perform the abortion as if the court had issued an order authorizing 
the minor to consent to the performance of the abortion without 
notification under Section 33.002. Proceedings under this section 
shall be given precedence over other pending matters to the extent 
necessary to assure that the court reaches a decision promptly.
 
(c) A ruling of the court of appeals issued under this 
section is confidential and privileged and is not subject to 
disclosure under Chapter 552, Government Code, or discovery, 
subpoena, or other legal process. The ruling may not be released to 
any person but the pregnant minor, the pregnant minor's guardian ad 
litem, the pregnant minor's attorney, another person designated to 
receive the ruling by the minor, or a governmental agency or 
attorney in a criminal or administrative action seeking to assert 
or protect the interest of the minor. The supreme court may adopt 
rules to permit confidential docketing of an appeal under this 
section.
 
(d) The clerk of the supreme court shall prescribe the 
notice of appeal form to be used by the minor appealing a judgment 
under this section.
 
(e) A filing fee is not required of and court costs may not 
be assessed against a minor filing an appeal under this section.
 
(f) An expedited confidential appeal shall be available to 
any pregnant minor to whom a court of appeals denies an order 
authorizing the minor to consent to the performance of an abortion 
without notification to either of her parents or a managing 
conservator or guardian.
 
 33.005. AFFIDAVIT OF PHYSICIAN. (a) A physician may 
execute for inclusion in the minor's medical record an affidavit 
stating that, after reasonable inquiry, it is the belief of the 
physician that:
 
(1) the minor has made an application or filed a notice 
of an appeal with a court under this chapter;
 
(2) the deadline for court action imposed by this 
chapter has passed; and 
 
(3) the physician has been notified that the court has 
not denied the application or appeal.
 
(b) A physician who in good faith has executed an affidavit 
under Subsection (a) may rely on the affidavit and may perform the 
abortion as if the court had issued an order granting the 
application or appeal.
 
 33.006. GUARDIAN AD LITEM IMMUNITY. A guardian ad 
litem appointed under this chapter and acting in the course and 
scope of the appointment is not liable for damages arising from an 
act or omission of the guardian ad litem committed in good faith. 
The immunity granted by this section does not apply if the conduct 
of the guardian ad litem is committed in a manner described by 
Sections 107.003(b)(1)-(4).
 
 33.007. COSTS PAID BY STATE. (a) A court acting 
under Section 33.003 or 33.004 may issue an order requiring the 
state to pay:
 
(1) the cost of any attorney ad litem and any guardian 
ad litem appointed for the minor;
 
(2) notwithstanding Sections 33.003(n) and 33.004(e), 
the costs of court associated with the application or appeal; and
 
(3) any court reporter's fees incurred. 
 
(b) An order issued under Subsection (a) must be directed to 
the comptroller, who shall pay the amount ordered from funds 
appropriated to the Texas Department of Health.
 
 33.008. PHYSICIAN'S DUTY TO REPORT ABUSE OF A MINOR; 
INVESTIGATION AND ASSISTANCE. (a) A physician who has reason to 
believe that a minor has been or may be physically or sexually 
abused by a person responsible for the minor's care, custody, or 
welfare, as that term is defined by Section 261.001, shall 
immediately report the suspected abuse to the Department of 
Protective and Regulatory Services and shall refer the minor to the 
department for services or intervention that may be in the best 
interest of the minor.
 
(b) The Department of Protective and Regulatory Services 
shall investigate suspected abuse reported under this section and, 
if appropriate, shall assist the minor in making an application 
with a court under Section 33.003.
 
 33.009. OTHER REPORTS OF SEXUAL ABUSE OF A MINOR. A 
court or the guardian ad litem or attorney ad litem for the minor 
shall report conduct reasonably believed to violate Section 22.011, 
22.021, or 25.02, Penal Code, based on information obtained during 
a confidential court proceeding held under this chapter to:
 
(1) any local or state law enforcement agency; 
 
(2) the Department of Protective and Regulatory 
Services, if the alleged conduct involves a person responsible for 
the care, custody, or welfare of the child;
 
(3) the state agency that operates, licenses, 
certifies, or registers the facility in which the alleged conduct 
occurred, if the alleged conduct occurred in a facility operated, 
licensed, certified, or registered by a state agency; or
 
(4) an appropriate agency designated by the court. 
 
 33.010. CONFIDENTIALITY. Notwithstanding any other 
law, information obtained by the Department of Protective and 
Regulatory Services or another entity under Section 33.008 or 
33.009 is confidential except to the extent necessary to prove a 
violation of Section 22.011, 22.021, or 25.02, Penal Code.
 
 33.011. INFORMATION RELATING TO JUDICIAL BYPASS. The 
Texas Department of Health shall produce and distribute 
informational materials that explain the rights of a minor under 
this chapter. The materials must explain the procedures 
established by Sections 33.003 and 33.004 and must be made 
available in English and in Spanish. The material provided by the 
department shall also provide information relating to alternatives 
to abortion and health risks associated with abortion.
 

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[FAMILY CODE
 
 
SUBTITLE B. SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP
 
 
CHAPTER 151. RIGHTS AND DUTIES IN PARENT-CHILD RELATIONSHIP]
 

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 151.002. RIGHTS OF A LIVING CHILD AFTER AN ABORTION OR 
PREMATURE BIRTH. (a) A living human child born alive after an 
abortion or premature birth is entitled to the same rights, powers, 
and privileges as are granted by the laws of this state to any other 
child born alive after the normal gestation period.
 
(b) In this code, "born alive" means the complete expulsion 
or extraction from its mother of a product of conception, 
irrespective of the duration of pregnancy, which, after such 
separation, breathes or shows any other evidence of life such as 
beating of the heart, pulsation of the umbilical cord, or definite 
movement of voluntary muscles, whether or not the umbilical cord 
has been cut or the placenta is attached. Each product of the birth 
is considered born alive.

 

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[FAMILY CODE
 
 
CHAPTER 161. TERMINATION OF THE PARENT-CHILD RELATIONSHIP
 
 
SUBCHAPTER A. GROUNDS]
 
 
 161.006. TERMINATION AFTER ABORTION. (a) A petition 
requesting termination of the parent-child relationship with 
respect to a parent who is not the petitioner may be granted if the 
child was born alive as the result of an abortion.
 
(b) In this code, "abortion" means an intentional expulsion 
of a human fetus from the body of a woman induced by any means for 
the purpose of causing the death of the fetus.
 
(c) The court or the jury may not terminate the parent-child 
relationship under this section with respect to a parent who:
 
(1) had no knowledge of the abortion; or 
 
(2) participated in or consented to the abortion for 
the sole purpose of preventing the death of the mother.
 
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[FAMILY CODE
 
 
CHAPTER 262. PROCEDURES IN SUIT BY GOVERNMENTAL ENTITY TO PROTECT 
HEALTH AND SAFETY OF CHILD
 
 
SUBCHAPTER A. GENERAL PROVISIONS]
 
 
 262.006. LIVING CHILD AFTER ABORTION. (a) An 
authorized representative of the Department of Protective and 
Regulatory Services may assume the care, control, and custody of a 
child born alive as the result of an abortion as defined by Chapter 
161.
 
(b) The department shall file a suit and request an 
emergency order under this chapter.
 
(c) A child for whom possession is assumed under this 
section need not be delivered to the court except on the order of 
the court.
 
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[GOVERNMENT CODE
 
 
SUBTITLE D. JUDICIAL PERSONNEL AND OFFICIALS
 
 
CHAPTER 51. CLERKS
 
 
SUBCHAPTER A. CLERK OF SUPREME COURT]
 
 
 51.943. BASIC CIVIL LEGAL SERVICES ACCOUNT. (a) The 
basic civil legal services account is an account in the judicial 
fund administered by the supreme court.
 
(b) Funds in the basic civil legal services account may be 
used only for the support of programs approved by the supreme court 
that provide basic civil legal services to the indigent. The 
comptroller may pay money from the account only on vouchers 
approved by the supreme court.
 
(c) Except as provided by this subsection, funds from the 
basic civil legal services account may not be used to directly or 
indirectly support a class action lawsuit, abortion-related 
litigation, or a lawsuit against a governmental entity, political 
party, candidate, or officeholder for an action taken in the 
individual's official capacity or for lobbying for or against a 
candidate or issue. Notwithstanding any provision of law to the 
contrary, funds from the basic civil legal services account may not 
be used for the representation of an individual who is confined to a 
local, state, or federal jail or prison. Funds from the basic civil 
legal services account may not be used to provide legal services to 
an individual who is not legally in this country, unless necessary 
to protect the physical safety of the individual. Funds from the 
basic civil legal services account may be used to support a lawsuit 
brought by an individual, solely on behalf of the individual or the 
individual's dependent or ward, to compel a governmental entity to 
provide benefits that the individual or the individual's dependent 
or ward is expressly eligible to receive, by statute or regulation, 
including social security benefits, aid to families with dependent 
children, financial assistance under Chapter 31, Human Resources 
Code, food stamps, special education for the handicapped, Medicare, 
Medicaid, subsidized or public housing, and other economic, 
shelter, or medical benefits provided by a government directly to 
an indigent individual, but not to support a claim for actual or 
punitive damages.
 
(d) Except as provided by this subsection, funds from the 
basic civil legal services account may not be used for a lawsuit or 
other legal matter that if undertaken on behalf of an indigent 
individual by an attorney in private practice might reasonably be 
expected to result in payment of a fee for legal services from an 
award to the individual client from public funds or from an opposing 
party. Funds from the basic civil legal services account may be 
used to support a lawsuit if the indigent individual seeking legal 
assistance made a reasonable effort to obtain legal services from 
an attorney in private practice for the particular legal matter, 
including contacting attorneys who practice law in the judicial 
district that is the residence of the indigent individual and who 
normally accept cases of a similar nature, and the indigent 
individual has been unable to obtain legal services.
 
(e) The supreme court shall file a report with the 
Legislative Budget Board at the end of each fiscal year showing 
disbursements from the account and the purpose for each 
disbursement and the sanctions imposed, if any. All funds expended 
are subject to audit by the supreme court, the comptroller, and the 
state auditor.
 
(f) The purpose of this subchapter is to increase the funds 
available for basic civil legal services to the indigent. Funds 
available from the basic civil legal services account may be 
supplemented by local or federal funds and private or public 
grants.
 
(g) A legal aid society or legal services program that is 
awarded attorney's fees in a case shall send the attorney's fees to 
the comptroller if any attorney representing any party involved in 
the case was paid in that case directly from funds from a grant made 
under this subchapter. The comptroller shall deposit the fees to 
the credit of the basic civil legal services account of the judicial 
fund for use in programs approved by the supreme court that provide 
basic civil legal services to the indigent.
 
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[HEALTH & SAFETY CODE
 
 
CHAPTER 32. MATERNAL AND INFANT HEALTH IMPROVEMENT
 
 
SUBCHAPTER A. PROGRAM FOR WOMEN AND CHILDREN]
 
 
 32.005. ABORTION SERVICES RESTRICTED. [These provisions are invalid.]
 
Notwithstanding any other provision of this chapter, 
funds administered under this chapter may not be used to provide 
abortion services unless the mother's life is in danger.
 

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[HEALTH & SAFETY CODE
 
 
CHAPTER 110. RURAL FOUNDATION]
 
 
 110.013. PROHIBITED USE OF FUNDS. Funds administered 
by the Rural Foundation may not be used to provide an abortion or a 
referral for an abortion, unless there is a medically necessary 
reason to provide the referral.

 

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[HEALTH & SAFETY CODE
 
 
CHAPTER 166. ADVANCE DIRECTIVES
 
 
SUBCHAPTER A. GENERAL PROVISIONS]
 
 166.152. SCOPE AND DURATION OF 
AUTHORITY. (a) Subject to this subchapter or any express 
limitation on the authority of the agent contained in the medical 
power of attorney, the agent may make any health care decision on 
the principal's behalf that the principal could make if the 
principal were competent.
 
(b) An agent may exercise authority only if the principal's 
attending physician certifies in writing and files the 
certification in the principal's medical record that, based on the 
attending physician's reasonable medical judgment, the principal 
is incompetent.
 
(c) Notwithstanding any other provisions of this 
subchapter, treatment may not be given to or withheld from the 
principal if the principal objects regardless of whether, at the 
time of the objection:
 
(1) a medical power of attorney is in effect; or 
 
(2) the principal is competent. 
 
(d) The principal's attending physician shall make 
reasonable efforts to inform the principal of any proposed 
treatment or of any proposal to withdraw or withhold treatment 
before implementing an agent's advance directive.
 
(e) After consultation with the attending physician and 
other health care providers, the agent shall make a health care 
decision:
 
(1) according to the agent's knowledge of the 
principal's wishes, including the principal's religious and moral 
beliefs; or
 
(2) if the agent does not know the principal's wishes, 
according to the agent's assessment of the principal's best 
interests.
 
(f) Notwithstanding any other provision of this subchapter, 
an agent may not consent to:
 
(1) voluntary inpatient mental health services; 
 
(2) convulsive treatment; 
 
(3) psychosurgery; 
 
(4) abortion; or 
 
(5) neglect of the principal through the omission of 
care primarily intended to provide for the comfort of the 
principal.
 
(g) The power of attorney is effective indefinitely on 
execution as provided by this subchapter and delivery of the 
document to the agent, unless it is revoked as provided by this 
subchapter or the principal becomes competent. If the medical power 
of attorney includes an expiration date and on that date the 
principal is incompetent, the power of attorney continues to be 
effective until the principal becomes competent unless it is 
revoked as provided by this subchapter.

 

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[HEALTH & SAFETY CODE
 
 
CHAPTER 170. PROHIBITED ACTS REGARDING ABORTION]
 
 170.001. DEFINITIONS. In this chapter: 
 
(1) "Abortion" means an act involving the use of an 
instrument, medicine, drug, or other substance or device developed 
to terminate the pregnancy of a woman if the act is done with an 
intention other than to:
 
(A) increase the probability of a live birth of 
the unborn child of the woman;
 
(B) preserve the life or health of the child; or 
 
(C) remove a dead fetus. 
 
(2) "Physician" means an individual licensed to 
practice medicine in this state.
 
(3) "Viable" means the stage of fetal development 
when, in the medical judgment of the attending physician based on 
the particular facts of the case, an unborn child possesses the 
capacity to live outside its mother's womb after its premature 
birth from any cause. The term does not include a fetus whose 
biparietal diameter is less than 60 millimeters.
 
 170.002. PROHIBITED ACTS; EXEMPTION. (a) Except as 
provided by Subsection (b), a person may not intentionally or 
knowingly perform an abortion on a woman who is pregnant with a 
viable unborn child during the third trimester of the pregnancy.
 
(b) Subsection (a) does not prohibit a person from 
performing an abortion if at the time of the abortion the person is 
a physician and concludes in good faith according to the 
physician's best medical judgment that:
 
(1) the fetus is not a viable fetus and the pregnancy 
is not in the third trimester;
 
(3) the fetus has a severe and irreversible 
abnormality, identified by reliable diagnostic procedures.
 
(c) A physician who performs an abortion that, according to 
the physician's best medical judgment at the time of the abortion, 
is to abort a viable unborn child during the third trimester of the 
pregnancy shall certify in writing to the department, on a form 
prescribed by the department, the medical indications supporting 
the physician's judgment that the abortion was authorized by 
Subsection (b)(2) or (3). The certification must be made not later 
than the 30th day after the date the abortion was performed.

 

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[HEALTH & SAFETY CODE
 
 
CHAPTER 171. ABORTION
 
 
SUBCHAPTER A. GENERAL PROVISIONS]
 
  
 171.001. SHORT TITLE. This chapter may be called the 
Woman's Right to Know Act.
 
 171.002. DEFINITION. In this chapter, "abortion" 
means the use of any means to terminate the pregnancy of a female 
known by the attending physician to be pregnant with the intention 
that the termination of the pregnancy by those means will, with 
reasonable likelihood, cause the death of the fetus.
 
 171.003. PHYSICIAN TO PERFORM. An abortion may be 
performed only by a physician licensed to practice medicine in this 
state.
 
 171.004. ABORTION OF FETUS AGE 16 WEEKS OR MORE. An 
abortion of a fetus age 16 weeks or more may be performed only at an 
ambulatory surgical center or hospital licensed to perform the 
abortion.
 
 171.005. DEPARTMENT TO ENFORCE. The department shall 
enforce this chapter.
 
SUBCHAPTER B. INFORMED CONSENT
 
 171.011. INFORMED CONSENT REQUIRED. A person may not 
perform an abortion without the voluntary and informed consent of 
the woman on whom the abortion is to be performed.
 
 171.012. VOLUNTARY AND INFORMED CONSENT. (a) Except 
in the case of a medical emergency, consent to an abortion is 
voluntary and informed only if:
 
(1) the physician who is to perform the abortion or the 
referring physician informs the woman on whom the abortion is to be 
performed of:
 
(A) the name of the physician who will perform 
the abortion; 
 
(B) the particular medical risks associated with 
the particular abortion procedure to be employed, including, when 
medically accurate:
 
(i) the risks of infection and hemorrhage; 
  
(ii) the potential danger to a subsequent 
pregnancy and of infertility; and
 
(iii) the possibility of increased risk of 
breast cancer following an induced abortion and the natural 
protective effect of a completed pregnancy in avoiding breast 
cancer;
 
(C) the probable gestational age of the unborn 
child at the time the abortion is to be performed; and
 
(D) the medical risks associated with carrying 
the child to term; 
 
(2) the physician who is to perform the abortion or the 
physician's agent informs the woman that:
 
(A) medical assistance benefits may be available 
for prenatal care, childbirth, and neonatal care;
 
(B) the father is liable for assistance in the 
support of the child without regard to whether the father has 
offered to pay for the abortion;
 
(C) public and private agencies provide 
pregnancy prevention counseling and medical referrals for 
obtaining pregnancy prevention medications or devices, including 
emergency contraception for victims of rape or incest; and
 
(D) the woman has the right to review the printed 
materials described by Section 171.014, that those materials have 
been provided by the Texas Department of Health and are accessible 
on an Internet website sponsored by the department, and that the 
materials describe the unborn child and list agencies that offer 
alternatives to abortion;
 
(3) the woman certifies in writing before the abortion 
is performed that the information described by Subdivisions (1) and 
 
(2) has been provided to her and that she has been informed of her 
opportunity to review the information described by Section 171.014; 
and
 
(4) before the abortion is performed, the physician 
who is to perform the abortion receives a copy of the written 
certification required by Subdivision (3).
 
(b) The information required to be provided under 
Subsections (a)(1) and (2) must be provided:
 
(1) orally by telephone or in person; and 
 
(2) at least 24 hours before the abortion is to be 
performed. 
 
(c) When providing the information under Subsection 
 
(a)(2)(D), the physician or the physician's agent must provide the 
woman with the address of the Internet website on which the printed 
materials described by Section 171.014 may be viewed as required by 
Section 171.014(e).
 
(d) The information provided to the woman under Subsection 
 
(a)(2)(B) must include, based on information available from the 
the three-year period preceding the publication of the information, 
information regarding the statistical likelihood of collecting 
child support.
 
(e) The department is not required to republish 
informational materials described by Subsection (a)(2)(B) because 
of a change in information described by Subsection (d) unless the 
statistical information in the materials changes by five percent or 
more.
 
 171.013. DISTRIBUTION OF STATE MATERIALS. (a) If 
the woman chooses to view the materials described by Section 
171.014, the physician or the physician's agent shall furnish 
copies of the materials to her at least 24 hours before the abortion 
is to be performed. A physician or the physician's agent may 
furnish the materials to the woman by mail if the materials are 
mailed, restricted delivery to addressee, at least 72 hours before 
the abortion is to be performed.
 
(b) A physician or the physician's agent is not required to 
furnish copies of the materials if the woman provides the physician 
with a written statement that she chooses to view the materials on 
the Internet website sponsored by the department.
 
(c) The physician and the physician's agent may 
disassociate themselves from the materials and may choose to 
comment on the materials or to refrain from commenting.
 
 171.014. INFORMATIONAL MATERIALS. (a) The 
department shall publish informational materials that include:
 
(1) the information required to be provided under 
Sections 171.012(a)(1)(B) and (D) and (a)(2)(A), (B), and (C); and
 
(2) the materials required by Sections 171.015 and 
171.016. 
 
(b) The materials shall be published in: 
 
(1) English and Spanish; 
 
(2) an easily comprehensible form; and 
 
(3) a typeface large enough to be clearly legible. 
 
(c) The materials shall be available at no cost from the 
department on request. The department shall provide appropriate 
quantities of the materials to any person.
 
(d) The department shall annually review the materials to 
determine if changes to the contents of the materials are 
necessary. The department shall adopt rules necessary for 
considering and making changes to the materials.
 
(e) The department shall develop and maintain an Internet 
website to display the information required to be published under 
this section. In developing and maintaining the website the 
department shall, to the extent reasonably practicable, safeguard 
the website against alterations by anyone other than the department 
and shall monitor the website each day to prevent and correct 
tampering. The department shall ensure that the website does not 
collect or maintain information regarding access to the website.
 
(f) In addition to any other organization or entity, the 
department shall use the American College of Obstetricians and 
Gynecologists as the resource in developing information required to 
be provided under Sections 171.012(a)(1)(B) and (D), Sections 
171.012(a)(2)(A), (B), and (C), and Section 171.016, and in 
maintaining the department's Internet website.
 
 171.015. INFORMATION RELATING TO PUBLIC AND PRIVATE 
AGENCIES. The informational materials must include either:
 
(1) geographically indexed materials designed to 
inform the woman of public and private agencies and services that:
 
(A) are available to assist a woman through 
pregnancy, childbirth, and the child's dependency, including:
 
(i) a comprehensive list of adoption 
agencies; 
 
(ii) a description of the services the 
adoption agencies offer; and 
 
(iii) a description of the manner, 
including telephone numbers, in which an adoption agency may be 
contacted;
 
(B) do not provide abortions or abortion-related 
services or make referrals to abortion providers; and
 
(C) are not affiliated with organizations that 
provide abortions or abortion-related services or make referrals to 
abortion providers; or
 
(2) a toll-free, 24-hour telephone number that may be 
called to obtain an oral list and description of agencies described 
by Subdivision (1) that are located near the caller and of the 
services the agencies offer.
 
 171.016. INFORMATION RELATING TO CHARACTERISTICS OF 
UNBORN CHILD. (a) The informational materials must include 
materials designed to inform the woman of the probable anatomical 
and physiological characteristics of the unborn child at two-week 
gestational increments from the time when a woman can be known to be 
pregnant to full term, including any relevant information on the 
possibility of the unborn child's survival.
 
(b) The materials must include color pictures representing 
the development of the child at two-week gestational increments. 
The pictures must contain the dimensions of the unborn child and 
must be realistic.
 
(c) The materials provided under this section must be 
objective and nonjudgmental and be designed to convey only accurate 
scientific information about the unborn child at the various 
gestational ages.
 
 171.017. PERIODS RUN CONCURRENTLY. If the woman is an 
unemancipated minor subject to Chapter 33, Family Code, the 24-hour 
periods established under Sections 171.012(b) and 171.013(a) may 
run concurrently with the period during which actual or 
constructive notice is provided under Section 33.002, Family Code.
 
 171.018. OFFENSE. A physician who intentionally 
performs an abortion on a woman in violation of this subchapter 
commits an offense. An offense under this section is a misdemeanor 
punishable by a fine not to exceed $10,000. In this section, 
"intentionally" has the meaning assigned by Section 6.03(a), Penal 
Code.

 

* * *

 

[HEALTH & SAFETY CODE
 
 
CHAPTER 245. ABORTION FACILITIES]
 
 
 
 245.001. SHORT TITLE. This chapter may be cited as 
the Texas Abortion Facility Reporting and Licensing Act.
 
 245.002. DEFINITIONS. In this chapter: 
 
(1) "Abortion" means an act or procedure performed 
after pregnancy has been medically verified and with the intent to 
cause the termination of a pregnancy other than for the purpose of 
either the birth of a live fetus or removing a dead fetus. The term 
does not include birth control devices or oral contraceptives.
 
(2) "Abortion facility" means a place where abortions 
are performed. 
 
(3) "Board" means the Texas Board of Health. 
 
(4) "Department" means the Texas Department of Health. 
 
(5) "Patient" means a female on whom an abortion is 
performed, but does not include a fetus.
 
(6) "Person" means an individual, firm, partnership, 
corporation, or association.
 
 245.003. LICENSE REQUIRED. (a) Except as provided 
by Section 245.004, a person may not establish or operate an 
abortion facility in this state without an appropriate license 
issued under this chapter.
 
(b) Each abortion facility must have a separate license. 
 
(c) A license is not transferable or assignable. 
 
 245.004. EXEMPTIONS FROM LICENSING REQUIREMENT. 
 
(a) The following facilities need not be licensed under this 
chapter: 
 
(1) a hospital licensed under Chapter 241 (Texas 
Hospital Licensing Law); or
 
(2) the office of a physician licensed under Subtitle 
B, Title 3, Occupations Code, unless the office is used for the 
purpose of performing more than 50 abortions in any 12-month 
period.
 
(a) The following facilities need not be licensed under this 
chapter: 
 
(1) a hospital licensed under Chapter 241 (Texas 
Hospital Licensing Law); 
 
(2) the office of a physician licensed under Subtitle 
B, Title 3, Occupations Code, unless the office is used 
substantially for the purpose of performing abortions; or
 
(3) an ambulatory surgical center licensed under 
Chapter 243. 
 
(b) For purposes of this section, a facility is used 
substantially for the purpose of performing abortions if the 
facility:
 
(1) is a provider for performing: 
 
(A) at least 10 abortion procedures during any 
month; or 
 
(B) at least 100 abortion procedures in a year; 
 
(2) operates less than 20 days in a month and the 
facility, in any month, is a provider for performing a number of 
abortion procedures that would be equivalent to at least 10 
procedures in a month if the facility were operating at least 20 
days in a month;
 
(3) holds itself out to the public as an abortion 
provider by advertising by any public means, including advertising 
placed in a newspaper, telephone directory, magazine, or electronic 
medium, that the facility performs abortions; or
 
(4) applies for an abortion facility license. 
 
(c) For purposes of this section, an abortion facility is 
operating if the facility is open for any period of time during a 
day and has on site at the facility or on call a physician available 
to perform abortions.
 
 245.005. LICENSE APPLICATION AND ISSUANCE. (a) An 
applicant for an abortion facility license must submit an 
application to the department on a form prescribed by the 
department.
 
(b) Each application must be accompanied by a nonrefundable 
license fee in an amount set by the board.
 
(c) The application must contain evidence that there are one 
or more physicians on the staff of the facility who are licensed by 
the Texas State Board of Medical Examiners.
 
(d) The department shall issue a license if, after 
inspection and investigation, it finds that the applicant and the 
abortion facility meet the requirements of this chapter and the 
standards adopted under this chapter.
 
(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.
 
(f) Information regarding the licensing status of an 
abortion facility is an open record for the purposes of Chapter 552, 
Government Code, and shall be made available by the department on 
request.
 
 245.006. INSPECTIONS. (a) The department may 
inspect an abortion facility at reasonable times as necessary to 
ensure compliance with this chapter.
 
(b) The department shall inspect an abortion facility 
before renewing the facility's license under Section 245.005(e).
 
 245.007. FEES. The board shall set fees imposed by 
this chapter in amounts reasonable and necessary to defray the cost 
of administering this chapter and Chapter 171.
 
 245.008. ABORTION FACILITY LICENSING FUND. All fees 
collected under this chapter shall be deposited in the state 
treasury to the credit of the abortion facility licensing fund and 
may be appropriated to the department only to administer and 
enforce this chapter.
 
 245.009. ADOPTION OF RULES. The board shall adopt 
rules necessary to implement this chapter, including requirements 
for the issuance, renewal, denial, suspension, and revocation of a 
license to operate an abortion facility.
 
 245.010. MINIMUM STANDARDS. (a) The rules must 
contain minimum standards to protect the health and safety of a 
patient of an abortion facility and must contain provisions 
requiring compliance with the requirements of Subchapter B, Chapter 
171.
 
(b) Only a physician as defined by Subtitle B, Title 3, 
Occupations Code, may perform an abortion.
 
(c) The standards may not be more stringent than Medicare 
certification standards, if any, for:
 
(1) qualifications for professional and 
nonprofessional personnel; 
 
(2) supervision of professional and nonprofessional 
personnel; 
 
(3) medical treatment and medical services provided by 
an abortion facility and the coordination of treatment and 
services, including quality assurance;
 
(4) sanitary and hygienic conditions within an 
abortion facility; 
 
(5) the equipment essential to the health and welfare 
of the patients; 
 
(6) clinical records kept by an abortion facility; 
and 
 
(7) management, ownership, and control of the 
facility. 
 
(d) This section does not authorize the board to: 
 
(1) establish the qualifications of a licensed 
practitioner; or 
 
(2) permit a person to provide health care services 
who is not authorized to provide those services under other laws of 
this state.
 
 245.0105. UNIQUE IDENTIFYING NUMBER; DISCLOSURE IN 
ADVERTISEMENT. (a) The department shall assign to each abortion 
facility a unique license number that may not change during the 
period the facility is operating in this state.
 
(b) An abortion facility shall include the unique license 
number assigned to the facility by the department in any abortion 
advertisement directly relating to the provision of abortion 
services at the facility.
 
(c) In this section, "abortion advertisement" means: 
 
(1) any communication that advertises the 
availability of abortion services at an abortion facility and that 
is disseminated through a public medium, including an advertisement 
in a newspaper or other publication or an advertisement on 
television, radio, or any other electronic medium; or
 
(2) any commercial use of the name of the facility as a 
provider of abortion services, including the use of the name in a 
directory, listing, or pamphlet.
 
 245.011. REPORTING REQUIREMENTS; CRIMINAL 
PENALTY. (a) Each abortion facility must submit an annual report 
to the department on each abortion that is performed at the abortion 
facility. The report must be submitted on a form provided by the 
department.
 
(b) The report may not identify by any means the physician 
performing the abortion or the patient.
 
(c) The report must include: 
 
(1) whether the abortion facility at which the 
abortion is performed is licensed under this chapter; 
 
(2) the patient's year of birth, race, marital status, 
and state and county of residence; 
 
(3) the type of abortion procedure; 
 
(4) the date the abortion was performed; 
 
(5) whether the patient survived the abortion, and if 
the patient did not survive, the cause of death; 
 
(6) the period of gestation based on the best medical 
judgment of the attending physician at the time of the procedure; 
 
(7) the date, if known, of the patient's last menstrual 
cycle; 
 
(8) the number of previous live births of the patient; 
and 
 
(9) the number of previous induced abortions of the 
patient. 
 
(d) Except as provided by Section 245.023, all information 
and records held by the department under this chapter 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, or abortion facility is not identified;
 
(2) with the consent of each person, patient, and 
abortion facility identified in the information released;
 
(3) to medical personnel, appropriate state agencies, 
or county and district courts to enforce this chapter; or
 
(4) to appropriate state licensing boards to enforce 
state licensing laws. 
 
(e) A person commits an offense if the person violates this 
section. An offense under this subsection is a Class A misdemeanor.
 
 245.012. DENIAL, SUSPENSION, PROBATION, OR REVOCATION 
OF LICENSE. (a) The department may deny, suspend, or revoke a 
license for a violation of this chapter or a rule adopted under this 
chapter.
 
(b) The denial, suspension, or revocation of a license by 
the department and the appeal from that action are governed by the 
procedures for a contested case hearing under Chapter 2001, 
Government Code.
 
(c) The department may immediately suspend or revoke a 
license when the health and safety of persons are threatened. If 
the department issues an order of immediate suspension or 
revocation, the department shall immediately give the chief 
executive officer of the abortion facility adequate notice of the 
action and the procedure governing appeal of the action. A person 
whose license is suspended or revoked under this subsection is 
entitled to a hearing not later than the 14th day after the 
effective date of the suspension or revocation.
 
(d) If the department finds that an abortion facility is in 
repeated noncompliance with this chapter or rules adopted under 
this chapter but that the noncompliance does not in any way involve 
the health and safety of the public or an individual, the department 
may schedule the facility for probation rather than suspending or 
revoking the facility's license. The department shall provide 
notice to the facility of the probation and of the items of 
noncompliance not later than the 10th day before the date the 
probation period begins. The department shall designate a period 
of not less than 30 days during which the facility will remain under 
probation. During the probation period, the facility must correct 
the items that were in noncompliance and report the corrections to 
the department for approval.
 
(e) The department may suspend or revoke the license of an 
abortion facility that does not correct items that were in 
noncompliance or that does not comply with this chapter or the rules 
adopted under this chapter within the applicable probation period.
 
 245.013. INJUNCTION. (a) The department may 
petition a district court for a temporary restraining order to 
restrain a continuing violation of the standards or licensing 
requirements provided under this chapter if the department finds 
that the violation creates an immediate threat to the health and 
safety of the patients of an abortion facility.
 
(b) A district court, on petition of the department and on a 
finding by the court that a person is violating the standards or 
licensing requirements provided under this chapter, may by 
injunction:
 
(1) prohibit a person from continuing a violation of 
the standards or licensing requirements provided under this 
chapter; 
 
(2) restrain or prevent the establishment or operation 
of an abortion facility without a license issued under this 
chapter; or
 
(3) grant any other injunctive relief warranted by the 
facts. 
 
(c) The attorney general may institute and conduct a suit 
authorized by this section at the request of the department.
 
(d) Venue for a suit brought under this section is in the 
county in which the abortion facility is located or in Travis 
County.
 
 245.014. CRIMINAL PENALTY. (a) A person commits an 
offense if the person violates Section 245.003(a).
 
(b) An offense under this section is a Class A misdemeanor. 
 
(c) Each day of a continuing violation constitutes a 
separate offense. 
 
 245.015. CIVIL PENALTY. (a) A person who knowingly 
violates this chapter or who knowingly fails to comply with a rule 
adopted under this chapter is liable for a civil penalty of not less 
than $100 or more than $500 for each violation if the department 
determines the violation threatens the health and safety of a 
patient.
 
(b) Each day of a continuing violation constitutes a 
separate ground for recovery.
 
 245.016. ABORTION IN UNLICENSED ABORTION FACILITY TO 
PREVENT DEATH OR SERIOUS IMPAIRMENT. This chapter does not remove 
the responsibility or limit the ability of a physician to perform an 
abortion in an unlicensed abortion facility if, at the commencement 
of the abortion, the physician reasonably believes that the 
abortion is necessary to prevent the death of the patient or to 
prevent serious impairment of the patient's physical health.
 
 245.017. ADMINISTRATIVE PENALTY. (a) The department 
may assess an administrative penalty against a person who violates 
this chapter or a rule adopted under this chapter.
 
(b) The penalty may not exceed $1,000 for each violation. 
Each day of a continuing violation constitutes a separate 
violation.
 
(c) In determining the amount of an administrative penalty 
assessed under this section, the department shall consider:
 
(1) the seriousness of the violation; 
 
(2) the history of previous violations; 
 
(3) the amount necessary to deter future violations; 
 
(4) efforts made to correct the violation; and 
 
(5) any other matters that justice may require. 
 
(d) All proceedings for the assessment of an administrative 
penalty under this chapter are subject to Chapter 2001, Government 
Code.
 
 245.018. REPORT RECOMMENDING ADMINISTRATIVE 
PENALTY. (a) If, after investigation of a possible violation and 
the facts surrounding that possible violation, the department 
determines that a violation has occurred, the department shall give 
written notice of the violation to the person alleged to have 
committed the violation. The notice shall include:
 
(1) a brief summary of the alleged violation; 
 
(2) a statement of the amount of the proposed penalty, 
based on the factors listed in Section 245.017(c); and
 
(3) a statement of the person's right to a hearing on 
the occurrence of the violation, the amount of the penalty, or both 
the occurrence of the violation and the amount of the penalty.
 
(b) Not later than the 20th day after the date the notice is 
received, the person notified may accept the determination of the 
department made under this section, including the recommended 
penalty, or make a written request for a hearing on that 
determination.
 
(c) If the person notified of the violation accepts the 
determination of the department, the commissioner of public health 
or the commissioner's designee shall issue an order approving the 
determination and ordering the person to pay the recommended 
penalty.
 
 245.019. HEARING; ORDER. (a) If the person requests 
a hearing, the commissioner of public health or the commissioner's 
designee shall:
 
(1) set a hearing; 
 
(2) give written notice of the hearing to the person; 
and 
 
(3) designate a hearings examiner to conduct the 
hearing. 
 
(b) The hearings examiner shall make findings of fact and 
conclusions of law and shall promptly issue to the commissioner a 
proposal for decision as to the occurrence of the violation and a 
recommendation as to the amount of the proposed penalty, if a 
penalty is determined to be warranted.
 
(c) Based on the findings of fact and conclusions of law and 
the recommendations of the hearings examiner, the commissioner by 
order may find that a violation has occurred and may assess a 
penalty or may find that no violation has occurred.
 
 245.020. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; 
JUDICIAL REVIEW; REFUND. (a) The commissioner of public health 
or the commissioner's designee shall give notice of the 
commissioner's order under Section 245.019(c) to the person alleged 
to have committed the violation. The notice must include:
 
(1) separate statements of the findings of fact and 
conclusions of law; 
 
(2) the amount of any penalty assessed; and 
 
(3) a statement of the right of the person to judicial 
review of the commissioner's order.
 
(b) Not later than the 30th day after the date the decision 
is final as provided by Chapter 2001, Government Code, the person 
shall:
 
(1) pay the penalty in full; 
 
(2) pay the amount of the penalty and file a petition 
for judicial review contesting the occurrence of the violation, the 
amount of the penalty, or both the occurrence of the violation and 
the amount of the penalty; or
 
(3) without paying the amount of the penalty, file a 
petition for judicial review contesting the occurrence of the 
violation, the amount of the penalty, or both the occurrence of the 
violation and the amount of the penalty.
 
(c) Within the 30-day period, a person who acts under 
Subsection (b)(3) may:
 
(1) stay enforcement of the penalty by: 
 
(A) paying the amount of the penalty to the court 
for placement in an escrow account; or
 
(B) giving to the court a supersedeas bond that 
is approved by the court for the amount of the penalty and that is 
effective until all judicial review of the commissioner's order is 
final; or
 
(2) request the court to stay enforcement of the 
penalty by: 
 
(A) filing with the court a sworn affidavit of 
the person stating that the person is financially unable to pay the 
amount of the penalty and is financially unable to give the 
supersedeas bond; and
 
(B) giving a copy of the affidavit to the 
department by certified mail. 
 
(d) If the department receives a copy of an affidavit under 
Subsection (c)(2), the department may file with the court, within 
five days after the date the copy is received, a contest to the 
affidavit. The court shall hold a hearing on the facts alleged in 
the affidavit as soon as practicable and shall stay the enforcement 
of the penalty on finding that the alleged facts are true. The 
person who files an affidavit has the burden of proving that the 
person is financially unable to pay the amount of the penalty and to 
give a supersedeas bond.
 
(e) If the person does not pay the amount of the penalty and 
the enforcement of the penalty is not stayed, the department may 
refer the matter to the attorney general for collection of the 
amount of the penalty.
 
(f) Judicial review of the order of the commissioner of 
public health: 
 
(1) is instituted by filing a petition as provided by 
Subchapter G, Chapter 2001, Government Code; and
 
(2) is under the substantial evidence rule. 
 
(g) If the court sustains the occurrence of the violation, 
the court may uphold or reduce the amount of the penalty and order 
the person to pay the full or reduced amount of the penalty. If the 
court does not sustain the occurrence of the violation, the court 
shall order that no penalty is owed.
 
(h) When the judgment of the court becomes final, the court 
shall proceed under this subsection. If the person paid the amount 
of the penalty and if that amount is reduced or is not upheld by the 
court, the court shall order that the appropriate amount plus 
accrued interest be remitted to the person. The rate of the 
interest is the rate charged on loans to depository institutions by 
the New York Federal Reserve Bank, and the interest shall be paid 
for the period beginning on the date the penalty was paid and ending 
on the date the penalty is remitted. If the person gave a 
supersedeas bond and if the amount of the penalty is not upheld by 
the court, the court shall order the release of the bond. If the 
person gave a supersedeas bond and if the amount of the penalty is 
reduced, the court shall order the release of the bond after the 
person pays the amount.
 
 245.021. PENALTY DEPOSITED TO STATE TREASURY. A civil 
or administrative penalty collected under this chapter shall be 
deposited in the state treasury to the credit of the general revenue 
fund.
 
 245.022. RECOVERY OF COSTS. (a) The department may 
assess reasonable expenses and costs against a person in an 
administrative hearing if, as a result of the hearing, the person's 
license is denied, suspended, or revoked or if administrative 
penalties are assessed against the person. The person shall pay 
expenses and costs assessed under this subsection not later than 
the 30th day after the date a board order requiring the payment of 
expenses and costs is final. The department may refer the matter to 
the attorney general for collection of the expenses and costs.
 
(b) If the attorney general brings an action against a 
person under Section 245.013 or 245.015 or an action to enforce an 
administrative penalty assessed under Section 245.017 and an 
injunction is granted against the person or the person is found 
liable for a civil or administrative penalty, the attorney general 
may recover, on behalf of the attorney general and the department, 
reasonable expenses and costs.
 
(c) For purposes of this section, "reasonable expenses and 
costs" include expenses incurred by the department and the attorney 
general in the investigation, initiation, or prosecution of an 
action, including reasonable investigative costs, attorney's fees, 
witness fees, and deposition expenses.
 
 245.023. PUBLIC INFORMATION; TOLL-FREE TELEPHONE 
NUMBER. (a) The department on request shall make the following 
information available to the public:
 
(1) the status of the license of any abortion 
facility; 
 
(2) the date of the last inspection of the facility, 
any violation discovered during that inspection that would pose a 
health risk to a patient at the facility, any challenge raised by 
the facility to the allegation that there was a violation, and any 
corrective action that is acceptable to the department and that is 
being undertaken by the facility with respect to the violation; and
 
(3) an administrative or civil penalty imposed against 
the facility or a physician who provides services at the facility, 
professional discipline imposed against a physician who provides 
services at the facility, and any criminal conviction of the 
facility or a physician who provides services at the facility that 
is relevant to services provided at the facility.
 
(b) Subsection (a) does not require the department to 
provide information that is not in the possession of the 
department. The Texas State Board of Medical Examiners shall 
provide to the department information in the possession of the 
board that the department is required to provide under Subsection
(a).
 
(c) The department shall maintain a toll-free telephone 
number that a person may call to obtain the information described by 
Subsection (a).
 
(d) An abortion facility shall provide to a woman, at the 
time the woman initially consults the facility, a written statement 
indicating the number of the toll-free telephone line maintained 
under Subsection (c). The written statement must be available in 
English and Spanish and be in substantially the following form:
 
"(toll-free telephone number)
 
You have a right to access certain information concerning 
this abortion facility by using the toll-free telephone 
number listed above. If you make a call to the number, your 
identity will remain anonymous. The toll-free telephone line 
can provide you with the following information:
 
(1) Whether this abortion facility is licensed by 
the Texas Department of Health.
 
(2) The date of the last inspection of this 
facility by the Texas Department of Health and any violations 
of law or rules discovered during that inspection that may 
pose a health risk to you.
 
(3) Any relevant fine, penalty, or judgment 
rendered against this facility or a doctor who provides 
services at this facility."
 
(e) This section does not authorize the release of the name, 
address, or phone number of any employee or patient of an abortion 
facility or of a physician who provides services at an abortion 

 

* * *

 

[INSURANCE CODE
 
 
CHAPTER 546. USE OF GENETIC TESTING INFORMATION
 
 
SUBCHAPTER A. GENERAL PROVISIONS]
 
 
 
 546.001. DEFINITIONS. In this chapter: 
 
(1) "DNA" means deoxyribonucleic acid. 
 
(2) "Genetic characteristic" means a scientifically 
or medically identifiable genetic or chromosomal variation, 
composition, or alteration that predisposes an individual to a 
disease, disorder, or syndrome.
 
(3) "Genetic information" means information that is: 
 
(A) obtained from or based on a scientific or 
medical determination of the presence or absence in an individual 
of a genetic characteristic; or
 
(B) derived from the results of a genetic test 
performed on an individual.
 
(4) "Genetic test" means a presymptomatic laboratory 
test of an individual's genes, gene products, or chromosomes that:
 
(A) analyzes the individual's DNA, RNA, 
proteins, or chromosomes; and 
 
(B) is performed to identify any genetic 
variation, composition, or alteration that is associated with the 
individual's having a predisposition for:
 
(i) developing a clinically recognized 
disease, disorder, or syndrome; or
 
(ii) being a carrier of a clinically 
recognized disease, disorder, or syndrome.
 The term does not include a blood test, cholesterol 
test, urine test, or other physical test used for a purpose other 
than determining a genetic or chromosomal variation, composition, 
or alteration in a specific individual; a routine physical 
examination or a routine test performed as part of a physical 
examination; a test to determine drug use; or a test to determine 
the presence of the human immunodeficiency virus.
 
(5) "RNA" means ribonucleic acid. 
 
 546.002. APPLICABILITY OF CHAPTER. This chapter 
applies only to a group health benefit plan that:
 
(1) provides benefits for medical or surgical expenses 
incurred as a result of a health condition, accident, or sickness, 
including:
 
(A) a group, blanket, or franchise insurance 
policy or insurance agreement, a group hospital service contract, 
or a group evidence of coverage that is offered by:
 
(i) an insurance company; 
 
(ii) a group hospital service corporation 
operating under Chapter 842; 
 
(iii) a fraternal benefit society operating 
under Chapter 885; 
 
(iv) a stipulated premium company operating 
under Chapter 884; or 
 
(v) a health maintenance organization 
operating under Chapter 843; and 
 
(B) to the extent permitted by the Employee 
Retirement Income Security Act of 1974 (29 U.S.C. Section 1001 et 
seq.), a group health benefit plan that is offered by:
 
(i) a multiple employer welfare arrangement 
as defined by Section 3 of that Act;
 
(ii) another entity not authorized under 
this code or another insurance law of this state that directly 
contracts for health care services on a risk-sharing basis, 
including a capitation basis; or
 
(iii) another analogous benefit 
arrangement; or 
 
(2) is offered by an approved nonprofit health 
corporation that holds a certificate of authority under Chapter 
844.
 
 546.003. EXCEPTIONS. This chapter does not apply to: 
 
(1) a plan that provides coverage: 
 
(A) only for a specified disease; 
 
(B) only for accidental death or dismemberment; 
 
(C) for wages or payments in lieu of wages for a 
period during which an employee is absent from work because of 
sickness or injury; or
 
(D) as a supplement to liability insurance; 
 
(2) a Medicare supplemental policy as defined by 
Section 1882(g)(1), Social Security Act (42 U.S.C. Section 1395ss);
 
(3) workers' compensation insurance coverage; 
 
(4) medical payment insurance coverage provided under 
a motor vehicle insurance policy; or
 
(5) a long-term care policy, including a nursing home 
fixed indemnity policy, unless the commissioner determines that the 
policy provides benefit coverage so comprehensive that the policy 
is a group health benefit plan as described by Section 546.002.
 
SUBCHAPTER B. GENETIC TESTING AND USE OF TEST RESULTS
 
 546.051. CERTAIN TESTING PERMITTED; INDUCEMENT 
PROHIBITED. (a) A group health benefit plan issuer that requests 
an applicant for coverage under the plan to submit to a genetic test 
in connection with the application for coverage for a purpose not 
prohibited under Section 546.052 must:
 
(1) notify the applicant that the test is required; 
 
(2) disclose to the applicant the proposed use of the 
test results; and 
 
(3) obtain the applicant's written informed consent 
before the test is administered.
 
(b) The applicant shall state in the consent form whether 
the applicant elects to be informed of the test results. If the 
applicant elects to be informed, the person or entity that performs 
the test shall disclose the test results to the applicant and the 
group health benefit plan issuer. The issuer shall ensure that:
 
(1) the applicant receives an interpretation of the 
test results made by a qualified health care practitioner; and
 
(2) a physician or other health care practitioner 
designated by the applicant receives a copy of the test results.
 
(c) A group health benefit plan issuer may not use the 
results of a genetic test conducted in accordance with Subsection 
 
(a) to induce the purchase of coverage under the plan.
 
  546.052. IMPROPER USE OF TEST RESULTS; REFUSAL TO 
SUBMIT TO TESTING. A group health benefit plan issuer may not use 
genetic information or the refusal of an applicant to submit to a 
genetic test to reject, deny, limit, cancel, refuse to renew, 
increase the premiums for, or otherwise adversely affect 
eligibility for or coverage under the plan.
 
 546.053. TESTING RELATED TO PREGNANCY. (a) In this 
section, "coerce" means to restrain or dominate a woman's free will 
by actual or implied:
 
(1) force; or 
 
(2) threat of rejecting, denying, limiting, 
canceling, refusing to renew, or otherwise adversely affecting 
eligibility for coverage under a group health benefit plan.
 
(b) A group health benefit plan issuer may not: 
 
(1) require as a condition of coverage genetic testing 
of a child in utero without the pregnant woman's consent; or
 
(2) use genetic information to coerce or compel a 
pregnant woman to have an induced abortion.
 
* * *
 
[INSURANCE CODE
 
 
CHAPTER 1454. EQUAL HEALTH CARE FOR WOMEN
 
 
SUBCHAPTER A. GENERAL PROVISIONS]
 
 
 
 1454.052. REIMBURSEMENT FOR ABORTION NOT 
REQUIRED. This chapter does not require a health benefit plan 
issuer to provide reimbursement for an abortion, as defined by the 
Family Code, or for a service related to an abortion.
 
* * *
 
[LABOR CODE
 
 
TITLE 2. PROTECTION OF LABORERS
 
 
SUBTITLE A. EMPLOYMENT DISCRIMINATION
 
 
CHAPTER 21. EMPLOYMENT DISCRIMINATION]
 
 21.107. EFFECT ON ABORTION BENEFITS. This chapter 
does not: 
 
(1) require an employer to pay for health insurance 
benefits for abortion unless the life of the mother would be 
endangered if the fetus were carried to term;
 
(2) preclude an employer from providing abortion 
benefits; or 
 
(3) affect a bargaining agreement relating to 
abortion. 
 
* * *
 
[OCCUPATIONS CODE
 
 
CHAPTER 103. RIGHT TO OBJECT TO PARTICIPATION IN ABORTION PROCEDURE]
 
 
 
 103.001. RIGHT TO OBJECT. A physician, nurse, staff 
member, or employee of a hospital or other health care facility who 
objects to directly or indirectly performing or participating in an 
abortion procedure may not be required to directly or indirectly 
perform or participate in the procedure.
 
 103.002. DISCRIMINATION PROHIBITED. (a) A hospital 
or health care facility may not discriminate against a physician, 
nurse, staff member, or employee, or an applicant for one of those 
positions, who refuses to perform or participate in an abortion 
procedure.
 
(b) A hospital or health care facility may not discriminate 
against a physician, nurse, staff member, or employee because of 
the person's willingness to participate in an abortion procedure at 
another facility.
 
(c) An educational institution may not discriminate against 
an applicant for admission or employment as a student, intern, or 
resident because of the applicant's attitude concerning abortion.
 
 103.003. REMEDIES. A person whose rights under this 
chapter are violated may sue a hospital, health care facility, or 
educational institution in district court in the county where the 
hospital, facility, or institution is located for:
 
(1) an injunction against any further violation; 
 
(2) appropriate affirmative relief, including 
admission or reinstatement of employment with back pay plus 10 
percent interest; and
 
(3) any other relief necessary to ensure compliance 
with this chapter. 
 
 103.004. DUTY OF CERTAIN PRIVATE ENTITIES TO MAKE 
FACILITIES AVAILABLE. A private hospital or private health care 
facility is not required to make its facilities available for the 
performance of an abortion unless a physician determines that the 
life of the mother is immediately endangered.
 
* * *
 
[TITLE 1. PROPERTY TAX CODE
 
 
SUBTITLE C. TAXABLE PROPERTY AND EXEMPTIONS
 
 
CHAPTER 11. TAXABLE PROPERTY AND EXEMPTIONS
 
 
SUBCHAPTER A. TAXABLE PROPERTY]
 
 
 11.183. ASSOCIATION PROVIDING ASSISTANCE TO 
AMBULATORY HEALTH CARE CENTERS. (a) An association is entitled 
to an exemption from taxation of the property it owns and uses 
exclusively for the purposes for which the association is organized 
if the association:
 
(1) is exempt from federal income taxation under 
Section 501(a), Internal Revenue Code of 1986, as an organization 
described by Section 501(c)(3) of that code;
 
(2) complies with the criteria for a charitable 
organization under Sections 11.18(e) and (f);
 
(3) except as provided by Subsection (b), engages 
exclusively in providing assistance to ambulatory health care 
centers that provide medical care to individuals without regard to 
the individuals' ability to pay, including providing policy 
analysis, disseminating information, conducting continuing 
education, providing research, collecting and analyzing data, or 
providing technical assistance to the health care centers;
 
(4) is funded wholly or partly, or assists ambulatory 
health care centers that are funded wholly or partly, by a grant 
under Section 330, Public Health Service Act (42 U.S.C. Section 
254b), and its subsequent amendments; and
 
(5) does not perform abortions or provide abortion 
referrals or provide assistance to ambulatory health care centers 
that perform abortions or provide (b) Use of the property by a person other than the 
association does not affect the eligibility of the property for an 
exemption authorized by this section if the use is incidental to use 
by the association and limited to activities that benefit:
 
(1) the ambulatory health care centers to which the 
association provides assistance; or
 
(2) the individuals to whom the health care centers 
provide medical care. 
 
(c) Performance of noncharitable functions by the 
association does not affect the eligibility of the property for an 
exemption authorized by this section if those other functions are 
incidental to the association's charitable functions.
 
* * *
 
[TITLE 1. THE INSURANCE CODE OF 1951
 
 
CHAPTER 21. GENERAL PROVISIONS]
 
Prohibited exclusion or limitation
 
 
Sec. 3. (a) A health benefit plan that provides benefits for 
prescription drugs or devices may not exclude or limit benefits to 
enrollees for:
 
(1) a prescription contraceptive drug or device approved by the 
United States Food and Drug Administration; or
 
(2) an outpatient contraceptive service. 
 
(b) This section does not prohibit a limitation that applies to all 
prescription drugs or devices or all services for which benefits 
are provided under a health benefit plan.
 
(c) This section does not provide coverage for abortifacients or 
any other drug or device that terminates a pregnancy.
 
* * *
 
Limitation of Reimbursement Requirements
 
Sec. 6. This article does not require the issuer of a health benefit 
plan to provide reimbursement for an abortion as defined by the 
Family Code or related services.
 
* * *
 
Effect of pregnancy
 
Sec. 8. (a) No issuer of a group health benefit plan shall require, 
as a condition of insurance coverage, genetic testing of a child in 
utero without the consent of the pregnant woman.
 
(b) No issuer of a group health benefit plan shall use genetic 
information to coerce or compel a pregnant woman to have an induced 
abortion.
 
(c) "Coercion" for the purposes of this section means the 
restraining or domination of the free will of a woman by actual or 
implied force, or by actual or implied threat of rejection, denial, 
limitation, cancellation, refusal to renew, or otherwise adversely 
affecting eligibility for coverage under a group health benefit 
plan.
 
* * *
 
[VERNON'S TEXAS CIVIL STATUTES
 
 
CHAPTER 6-12. ABORTION]
 
Art. 4512.5. Destroying unborn child 
 
Whoever shall during parturition of the mother destroy the vitality 
or life in a child in a state of being born and before actual birth, 
which child would otherwise have been born alive, shall be confined 
in the penitentiary for life or for not less than five years.
 
* * *
 
-------------------------------------------

Texas Administrative Code

* * *
 

TITLE 1

ADMINISTRATION

PART 15

TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 354

MEDICAID HEALTH SERVICES

 
* * *
 

354.1167

Reimbursement for Abortions

Reimbursement for an abortion is available when a physician has found and so certified in writing to the Texas Department of Health (department) or its designee that, on the basis of his or her professional judgment, the life of the mother would be endangered if the fetus were carried to term, or that the pregnancy was the result of rape or incest. In cases which do not clearly satisfy the criteria for reimbursement under the Medicaid program, as established by the department or its designee, a second medical opinion may be required.

354.1169

Ectopic Pregnancy

 

Medical procedures necessary for the termination of an ectopic pregnancy are not considered to be abortion procedures and will be paid for by the Medicaid Program.

* * * 
 

TITLE 25

HEALTH SERVICES

PART 1

DEPARTMENT OF STATE HEALTH SERVICES

CHAPTER 139

ABORTION FACILITY REPORTING AND LICENSING

 
 

RULE 139.1

Purpose and Scope

 


 

(a) Purpose. The purpose of this chapter is to implement the Texas Abortion Facility Reporting and Licensing Act, Health and Safety Code (HSC), Chapter 245, which provides the Texas Board of Health with the authority to establish rules governing the licensing and regulation of abortion facilities and to establish annual reporting requirements for each abortion performed.

 

(b) Scope and applicability.

  (1) Licensing requirements.

    (A) A person may not establish or operate an abortion facility in Texas without a license issued under this chapter unless the person is exempt from licensing requirements.

    (B) The following need not be licensed under this chapter:

      (i) a hospital licensed under HSC, Chapter 241;

      (ii) an ambulatory surgical center licensed under HSC, Chapter 243; or

      (iii) the office of a physician licensed under Subtitle B, Title 3, Occupations Code, unless the office is used for the purpose of performing more than 50 abortions in any 12 month period.

  (2) Reporting requirements. All licensed abortion facilities and facilities and persons exempt from licensing must comply with 139.4 of this title (relating to Annual Reporting Requirements for All Abortions Performed).

 

RULE 139.2

Definitions

 


 

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

  (1) Abortion--Any act or procedure performed after pregnancy has been medically verified with the intent to cause the termination of a pregnancy other than for the purpose of either the birth of a live fetus or removing a dead fetus. This term does not include birth control devices or oral contraceptives.

  (2) Abortion facility--A place where abortions are performed.

  (3) Act--Texas Abortion Facility Reporting and Licensing Act, Health and Safety Code, Chapter 245.

  (4) Administrator--A person who:

    (A) is delegated the responsibility for the implementation and proper application of policies, programs, and services established for the licensed abortion facility; and

    (B) meets the qualifications established in 139.46(2) of this title (relating to Licensed Abortion Facility Staffing Requirements and Qualifications).

  (5) Affidavit--A written statement, sworn to or affirmed, and witnessed by a witness whose signature and printed name appears on the affidavit. "Notarized affidavit" in these rules means an affidavit in which the statement is witnessed by a notary acting pursuant to Government Code, Chapter 406.

  (6) Affiliate--With respect to an applicant or owner which is:

    (A) a corporation--includes each officer, consultant, stockholder with a direct ownership of at least 5.0%, subsidiary, and parent company;

    (B) a limited liability company--includes each officer, member, and parent company;

    (C) an individual--includes:

      (i) the individual's spouse;

      (ii) each partnership and each partner thereof of which the individual or any affiliate of the individual is a partner; and

      (iii) each corporation in which the individual is an officer, consultant, or stockholder with a direct ownership of at least 5.0%;

    (D) a partnership--includes each partner and any parent company; and

    (E) a group of co-owners under any other business arrangement--includes each officer, consultant, or the equivalent under the specific business arrangement and each parent company.

  (7) Ambulatory surgical center--An ambulatory surgical center licensed under Health and Safety Code, Chapter 243.

  (8) Anniversary Date--The same month and day of each year as the expiration date of the license.

  (9) Applicant--The owner of an abortion facility which is applying for a license under the Act. For the purpose of this chapter, the word "owner" includes non-profit organization.

  (10) Board--The Texas Board of Health.

  (11) Certified nurse-midwife (CNM)--A person who is:

    (A) a registered nurse who is currently licensed under the Nursing Practice Act, Texas Occupations Code, Chapters 301, and 304;

    (B) recognized as an advanced practice nurse by the Board of Nurse Examiners for the State of Texas; and

    (C) certified by the American College of Nurse-Midwives (ACNM) or ACNM Accreditation Council.

  (12) Certified registered nurse anesthetist (CRNA)--A person who is currently licensed under the Nursing Practice Act, Texas Occupations Code, Chapters 301 and 304, as a registered nurse, has current certification from the Council of Certification-Recertification of the American Association of Nurse Anesthetists, and is currently authorized by the Board of Nurse Examiners as a certified registered nurse anesthetist.

  (13) Change of ownership--A sole proprietor who transfers all or part of the facility's ownership to another person or persons; the removal, addition, or substitution of a person or persons as a partner in a facility owned by a partnership; or a corporate sale, transfer, reorganization, or merger of the corporation which owns the facility if sale, transfer, reorganization, or merger causes a change in the facility's ownership to another person or persons.

  (14) Clinical nurse specialist--A person who is currently licensed under the Nursing Practice Act, Texas Occupations Code, Chapters 301 and 304, and recognized as a clinical nurse specialist by the Board of Nurse Examiners.

  (15) Condition on discharge--A statement on the condition of the patient at the time of discharge.

  (16) Critical item--All surgical instruments and objects that are introduced directly into the bloodstream or into other normally sterile areas of the body.

  (17) Decontamination--The physical and chemical process that renders an inanimate object safe for further handling.

  (18) Department--The Texas Department of Health.

  (19) Director--The director of the Health Facility Licensing and Compliance Division of the Texas Department of Health or his or her designee.

  (20) Disinfection--The destruction or removal of vegetative bacteria, fungi, and most viruses but not necessarily spores; the process does not remove all organisms but reduces them to a level that is not harmful to a person's health. There are three levels of disinfection:

    (A) high level disinfection--kills all organisms, except high levels of bacterial spores, and is effected with a chemical germicide cleared for marketing as a sterilant by the Food and Drug Administration;

    (B) intermediate-level disinfection--kills mycobacteria, most viruses, and bacteria with a chemical germicide registered as a "tuberculocide" by the Environmental Protection Agency (EPA); and

    (C) low-level disinfection--kills some viruses and bacteria with a chemical germicide registered as a hospital disinfectant by the EPA.

  (21) Education/information staff--A professional or nonprofessional person who is trained to provide information on abortion procedures, alternatives, informed consent, and family planning services.

  (22) Facility--A licensed abortion facility as defined in this section.

  (23) Health care facility--Any type of facility or home and community support services agency licensed to provide health care in any state or is certified for Medicare (Title XVIII) or Medicaid (Title XIX) participation in any state.

  (24) Health care worker--Any person who furnishes health care services in a direct patient care situation under a license, certificate, or registration issued by the State of Texas or a person providing direct patient care in the course of a training or educational program.

  (25) Hospital--A facility that is licensed under the Texas Hospital Licensing Law, Health and Safety Code, Chapter 241, or if exempt from licensure, certified by the United States Department of Health and Human Services as in compliance with conditions of participation for hospitals in Title XVIII, Social Security Act (42 United States Code, 1395 et. seq.).

  (26) Immediate jeopardy to health and safety--A situation in which there is a high probability that serious harm or injury to patients could occur at any time or already has occurred and may well occur again if patients are not protected effectively from the harm or if the threat is not removed.

  (27) Inspection--An on-site inspection by the department in which a standard-by-standard evaluation is conducted.

  (28) Licensed abortion facility--A place licensed by the department under Health and Safety Code, Chapter 245, where abortions are performed.

  (29) Licensed mental health practitioner--A person licensed in the State of Texas to provide counseling or psychotherapeutic services.

  (30) Licensed vocational nurse (LVN)--A person who is currently licensed under Texas Occupations Code, Chapter 302, as a licensed vocational nurse.

  (31) Licensee--A person or entity who is currently licensed as an abortion facility.

  (32) Medical consultant--A physician who is designated to supervise the medical services of the facility.

  (33) Midlevel provider--A midlevel provider is:

    (A) an advance practice nurse who is registered currently licensed under the Nurse Practice Act, Texas Occupations Code, Chapters 301 and 304, and is recognized as an advanced practice nurse by the Board of Nurse Examiners (BNE) for the State of Texas. Advanced practice nurses may include, but not be limited to, the following:

      (i) certified registered nurse anesthetist;

      (ii) certified nurse midwife;

      (iii) nurse practitioner;

      (iv) clinical nurse specialist; and

      (v) other titles as approved by the BNE; or

    (B) a physician assistant currently licensed under the Physician Assistant Licensing Act, Texas Occupations Code, Chapter 204.

  (34) Nonprofessional personnel--Personnel of the facility who are not licensed or certified under the laws of this state to provide a service and must function under the delegated authority of a physician, registered nurse, or other licensed health professional who assumes responsibility for their performance in the licensed abortion facility.

  (35) Noncritical items--Items that come in contact with intact skin.

  (36) Notarized copy--A copy attached to a notarized affidavit which states that the attached copy(ies) are true and correct copies of the original documents.

  (37) Nurse practitioner--A person who is currently licensed under the Nursing Practice Act, Texas Occupations Act, Chapters 301 and 304, and recognized as a nurse practitioner by the Board of Nurse Examiners.

  (38) Patient--A pregnant female on whom an abortion is performed, but shall in no event be construed to include a fetus.

  (39) Person--Any individual, firm, partnership, corporation, or association.

  (40) Physician--An individual who is currently licensed to practice medicine under the Medical Practice Act, Texas Occupations Code, Chapters 151-165.

  (41) Plan of correction--A written strategy for correcting a licensing violation. The plan of correction shall be developed by the facility and shall address the system(s) operation(s) of the facility as the system(s) operation(s) apply to the deficiency.

  (42) Postprocedure infection--An infection acquired at or during an admission to a facility; there must be no evidence that the infection was present or incubating at the time of admission to the facility. Postprocedure infections and their complications that may occur after an abortion include, but are not limited to, endometritis and other infections of the female reproductive tract, laboratory-confirmed or clinical sepsis, septic pelvic thrombophlebitis, and disseminated intravascular coagulopathy.

  (43) Pregnant unemancipated minor certification form--The document prepared by the Texas Department of Health and used by physicians to certify the medical indications supporting the judgment for the immediate abortion of a pregnant minor.

  (44) Pre-inspection conference--A conference held with department staff and the applicant or his or her representative to review licensure standards, inspection documents, and provide consultation prior to the on-site licensure inspection.

  (45) Professional personnel--Patient care personnel of the facility currently licensed or certified under the laws of this state to use a title and provide the type of service for which they are licensed or certified.

  (46) Quality assurance--An ongoing, objective, and systematic process of monitoring, evaluating, and improving the appropriateness, and effectiveness of care.

  (47) Quality improvement--An organized, structured process that selectively identifies improvement projects to achieve improvements in products or services.

  (48) Registered nurse (RN)--A person who is currently licensed under the Nursing Practice Act, Texas Occupations Code, Chapters 301 and 304 as a registered nurse.

  (49) Sedation/analgesia levels--Levels of sedation /analgesia include:

    (A) minimal sedation (anxiolysis);

    (B) moderate sedation/analgesia ("conscious sedation");

    (C) deep sedation/analgesia; and

    (D) general anesthesia.

  (50) Semicritical items--Items that come in contact with nonintact skin or mucous membranes. Semicritical items may include respiratory therapy equipment, anesthesia equipment, bronchoscopes, and thermometers.

  (51) Standards--Minimum requirements under the Act and this chapter.

  (52) Sterile field--The operative area of the body and anything that directly contacts this area.

  (53) Sterilization--The use of a physical or chemical procedure to destroy all microbial life, including bacterial endospores.

  (54) Supervision--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity that includes initial direction and periodic inspection of the actual act of accomplishing the function or activity.

  (55) Third trimester certification form--The document prepared by the Texas Department of Health and used by physicians to certify the medical indications supporting the judgment for the abortion of a viable fetus during the third trimester of pregnancy.

  (56) Third trimester--A gestational period of not less than 26 weeks (following last -menstrual period (LMP)).

  (57) Unemancipated minor--A minor who is unmarried and has not had the disabilities of minority removed under the Texas Family Code, Chapter 31.

 

RULE 139.3

Unlicensed Facility

 


 

(a) If the Texas Department of Health (department) has reason to believe that a person or facility may be providing abortion services without a license as required by the Act and this chapter, the department shall notify the person or facility in writing by certified mail, return receipt requested. The person or facility shall submit to the department the following information within 10 days of receipt of the notice:

  (1) an application for a license and the license fee; or

  (2) a notarized affidavit to support exemption under 245.004 of the Act, including any and all documentation. The notarized affidavit shall attest to the fact that the person or facility is exempt from licensing as specified in 139.1(b) of this title. The form of notarized affidavit to support exemption will be provided by the department.

 

(b) If the person or facility has submitted an application for a license, the application will be processed in accordance with 139.23 of this title (relating to Application Procedures and Issuance of Licenses).

 

(c) If the person or facility fails to respond to the notice, either by submitting an application for a license or a notarized affidavit of exemption, the department may seek injunctive relief as prescribed in Health and Safety Code, Chapter 245.

 

RULE 139.4

Annual Reporting Requirements for All Abortions Performed

 


 

(a) The purpose of this section is to implement the abortion reporting requirements of the Texas Abortion Facility Reporting and Licensing Act (Act), Health and Safety Code, 245.011, which mandates that each abortion facility must submit an annual report to the Texas Department of Health on each abortion performed at the abortion facility. This section applies to any place where abortions are performed, and therefore applies to licensed, unlicensed, and exempt facilities (including physicians).

 

(b) Abortion facilities must submit an abortion report on each abortion that was performed at the facility on at least an annual basis. The facility may choose to submit the abortion reports on a monthly or quarterly basis for greater efficiency.

 

(c) The reporting period for each abortion facility is January 1-December 31 of each year. Each facility must submit the abortion report(s) to the department no later than January 31 of the subsequent year.

 

(d) The abortion reports must be submitted:

  (1) on forms approved by the department, by certified mail marked as confidential, to the Texas Department of Health, Bureau of Vital Statistics, P.O. Box 4124, Austin, Texas 78765-4124;

  (2) on a floppy disk in a format approved by the department, by certified mail marked as confidential, to the Texas Department of Health, Bureau of Vital Statistics, P.O. Box 4124, Austin, Texas 78765-4124; or

  (3) via a modem in a format approved by the department.

 

(e) The first annual reporting period for a licensed abortion facility commences on the day the initial license is issued. The report(s) must contain data for the calendar year in which the initial license is issued. If the abortion facility's licensure status changes, the report(s) must contain data from the date the initial license was issued through the date the initial license expired, was revoked, was suspended, or was withdrawn.

 

(f) If a change of ownership has occurred, the previous owner shall submit the report(s) commencing from the date of the previous reporting period and ending on the date the change in ownership of the facility occurred; the report(s) is due 30 days after the date of acquisition. The annual reporting period for the newly acquired facility commences on the day the initial license is issued and shall contain data for the calendar year in which the initial license is issued. If the newly acquired facility's licensure status changes, the report(s) must contain data from the date the initial license was issued through the date the initial license expired, was revoked, was suspended, or was withdrawn.

 

RULE 139.5

Additional Reporting Requirements for Physicians

 


 

In addition to the annual reporting required by 139.4 of this title (relating to Annual Reporting Requirements for All Abortions Performed), physicians must comply with this section when performing third trimester abortions or when performing emergency abortions on certain minors.

  (1) Reporting requirements for third trimester abortions.

    (A) The purpose of this paragraph is to establish procedures for reporting third trimester abortions as required by the Texas Medical Practice Act, Texas Occupations Code, Chapters 151-165.

    (B) A physician who performs a third trimester abortion of a viable fetus with a biparietal diameter of 60 millimeters or greater shall certify in writing to the Texas Department of Health the medical indications supporting the physician's judgment that the abortion is either necessary to prevent the death or a substantial risk of serious impairment to the physical or mental health of the woman or the fetus has a severe and irreversible abnormality, as identified through reliable diagnostic procedures.

    (C) The certification shall be made on a form approved by the board.

    (D) The physician shall return by certified mail, marked as confidential, the certification form and may submit any supporting documents to the Texas Department of Health, Bureau of Vital Statistics, P.O. Box 4124, Austin, Texas 78765-4124, not later than the 30th day after the date the abortion was performed.

    (E) The department will retain the certification form and supporting documents as a cross-reference to the annual reporting requirements of the Act and this section. The certification form and supporting documents retained by the department are confidential. Any release of the documents will be in accordance with the provisions of the Texas Medical Practice Act, Texas Occupations Code, Chapters 151-165.

    (F) A physician performing abortions at a licensed abortion facility who fails to submit the certification form required under this paragraph may subject the licensed facility to denial, suspension, probation, or revocation of the license in accordance with 139.32 of this title (relating to License Denial, Suspension, Probation, or Revocation).

  (2) Reporting requirements for emergency abortions performed on unemancipated minors.

    (A) The purpose of this paragraph is to establish procedures for reporting emergency abortions performed on unemancipated minors, as authorized by Family Code, 33.002(a)(4)(B).

    (B) A physician who performs an emergency abortion on an unemancipated minor shall certify in writing to the Texas Department of Health the medical indications supporting the physician's judgment that the abortion is necessary either to avert her death or to avoid a serious risk of substantial and irreversible impairment of a major bodily function, as identified through reliable diagnostic procedures.

    (C) The certification shall be made on a form approved by the board.

    (D) The physician shall return by certified mail, marked as confidential, the certification form to the Texas Department of Health, Bureau of Vital Statistics, P.O. Box 4124, Austin, Texas 78765-4124 not later than 30 days after the date the abortion was performed.

    (E) A physician performing abortions at a licensed abortion facility who fails to submit the certification form required by this paragraph may subject the licensedfacility to denial, suspension, probation, or revocation of the license in accordance with 139.32 of this title (relating to License Denial, Suspension, Probation, and Revocation).

    (F) If the physician provides parental notice as prescribed by Family Code, 33.002(a)(1), or if the minor has obtained judicial approval as authorized by Family Code, 33.002(a)(2) or 33.002(a)(3), the emergency certification form is not required.

 

RULE 139.6

Public Information; Toll-Free Telephone Number

 


 

  (1) The following form is an example of the statement in English.

Attached Graphic

  (2) The following form is an example of the statement in Spanish.

Attached Graphic

 

(b) The department on request shall make the following information available to the public:

  (1) the status of the license of any abortion facility;

  (2) the date of the last inspection of the facility, any violation discovered during that inspection that would pose a health risk to a patient at the facility, any challenge raised by the facility to the allegation that there was a violation, and any corrective action that is acceptable to the department and that is being undertaken by the facility with respect to the violation; and

  (3) an administrative or civil penalty imposed against the facility or a physician who provides services at the facility, professional discipline imposed against a physician who provides services at the facility, and any criminal conviction of the facility or a physician who provides services at the facility that is relevant to services provided at the facility.

 

(c) Subsection (b) of this section does not require the department to provide information that is not in the possession of the department. In accordance with 245.023(b) of the Act, the Texas State Board of Medical Examiners (board) is required to provide to the department information in the possession of the board that the department is required to provide under subsection (b) of this section.

 

(d) In accordance with Health and Safety Code, 245.023(c), the department shall maintain a toll-free telephone number that a person may call to obtain the information described by subsection (b) of this section.

 

(e) This section does not authorize the department to the release of the name, address, or phone number of any employee or patient of an abortion facility or of a physician who provides services at an abortion facility.

 

RULE 139.7

Unique Identifying Number; Disclosure in Advertisement

 


 

(a) The department shall assign to each licensed abortion facility a unique license number that may not change during the period the facility is operating in this state.

 

(b) A licensed abortion facility shall include the unique license number assigned to the facility by the department in any abortion advertisement directly relating to the provision of abortion services at the facility. If more than one location is advertised in a single advertisement, the license number(s) for each location shall be included in the advertisement. The facility shall document efforts to place the unique license number in advertisements within each specific deadline for each advertisement.

 

(c) In this section, "abortion advertisement" means:

  (1) any communication that advertises the availability of abortion services at a licensed abortion facility and that is disseminated through a public medium, including an advertisement in a newspaper or other publication or an advertisement on television, radio, or any other electronic medium; or

  (2) any commercial use of the name of the licensed facility as a provider of abortion services, including the use of the name in a directory, listing, or pamphlet.

 

RULE 139.8

Quality Assurance

 


 

(a) Quality Assurance (QA) Program. A licensed abortion facility must maintain a QA program in the facility which shall be implemented by a QA committee. The QA program shall be ongoing and have a written plan of implementation. This plan must be reviewed and updated or revised at least annually by the QA Committee. The QA program shall include measures for quality improvement in the measurement of the facility's delivery of service. Quality assurance documents pertinent to the facility shall be kept within the facility.

 

(b) QA committee membership. At a minimum, the QA committee must consist of at least:

  (1) the medical consultant designated by the facility;

  (2) a midlevel provider, a registered nurse, or a licensed vocational nurse; and

  (3) at least two other members of the facility's staff.

 

(c) Frequency of QA committee meetings. The QA committee, by consensus, shall meet at least quarterly to identify issues with respect to which quality assurance activities are necessary.

 

(d) Minimum responsibilities. The QA committee shall:

  (1) evaluate all organized services related to patient care, including services furnished by contract;

  (2) ensure that there is a review of any abortion procedure complication(s) and shall make use of the findings in the development and revision of facility policies;

  (3) address issues of unprofessional conduct by any member of the facility's staff (including contract staff);

  (4) monitor infection control as outlined in 139.49 of this title (relating to Infection Control Standards) and postprocedure infections as outlined in 139.41 of this title (relating to Policy Development and Review);

  (5) address medication therapy practices;

  (6) address the integrity of surgical instruments, medical equipment, and patient supplies; and

  (7) address services performed in the facility as they relate to appropriateness of diagnosis and treatment.

 

(e) Patient care and service issues. The QA committee shall identify and address patient care services and information issues and implement corrective action plans as necessary.

  (1) Identifying issues that necessitate corrective action. The QA committee shall be responsible for identifying issues that necessitate corrective action by the committee, such as issues which negatively affect care or services provided to patients.

  (2) Plan of corrective action. The QA committee shall develop and implement plans of action to correct identified deficiencies.

  (3) Remedial action. The QA committee shall take and document remedial action to address deficiencies found through the QA program. The facility shall document the outcome of the remedial action.

 

(f) Departmental review.

  (1) The department will not use good faith efforts by the QA committee to identify and correct deficiencies as a basis for deficiency(ies), citation(s), or sanction(s).

  (2) Department surveyors shall verify that:

    (A) the facility has a QA committee which addresses concerns; and

    (B) the facility staff know how to access that process.

 

RULE 139.21

General Requirements for Licensure

 


 

An applicant for an abortion facility license must meet the following requirements.

  (1) If the applicant for a license is an individual, the applicant must be at least 18 years of age.

  (2) An abortion facility is required to apply for a separate license for each place of business.

  (3) An abortion facility may not admit a patient for an abortion procedure until it has received an initial license.

  (4) The licensed location must be in Texas.

  (5) The licensee of the abortion facility is responsible for ensuring the facility's compliance with the Act and this chapter.

  (6) An abortion facility license must be renewed annually until January 1, 2005. Renewal licenses issued January 1, 2005, through December 31, 2005, will expire in either one or two years, to be determined by the department prior to the time of license renewal. Renewal licenses issued January 1, 2006, or after, will expire in two years.

  (7) An abortion facility shall prominently and conspicuously post the license issued under the Act for display in a public area of the facility that is readily accessible to patients, employees, and visitors.

  (8) An abortion facility license may not be transferred or assigned from one person to another person.

  (9) A licensed abortion facility shall have the financial ability to carry out its functions under the Act and this chapter.

 

RULE 139.22

Fees

 


 

(a) The schedule of fees for an abortion facility license for all new, change of ownership, and renewal applications received prior to January 1, 2005, is as follows:

  (1) initial license fee--$2,500;

  (2) renewal license fee--$2,500; and

  (3) change of ownership license fee--$2,500.

 

(b) Fees for renewal licenses issued January 1, 2005, through December 31, 2005, will be either $2,500 for one year or $5,000 for two years. The licensure period will be determined by the department prior to the licensure renewal date.

 

(c) Fees for two-year renewals for an abortion facility license for all initial, change of ownership, and renewal applications received on or after January 1, 2006, are as follows:

  (1) initial license fee--$5000;

  (2) renewal license fee--$5000; and

  (3) change of ownership license fee--$5000.

 

(d) The department will not consider an application as officially submitted until the applicant pays the applicable licensing fee. The fee must accompany the application form.

 

(e) A license fee paid to the department is not refundable.

 

(f) Any remittance submitted to the department in payment of a required license fee must be in the form of a certified check, money order, or personal check made payable to the Texas Department of Health.

 

(g) For all applications and renewal applications, the department is authorized to collect subscription and convenience fees, in amounts determined by the TexasOnline Authority, to recover costs associated with application and renewal application processing through TexasOnline, in accordance with Texas Government Code, 2054.111.

 

(h) The department may make periodic reviews of its license fee schedule to ensure that the fees imposed are in amounts reasonable and necessary to defray the cost to the department of administering the Act.

 

(i) The department will assess an annual assessment fee as follows.

  (1) In addition to application fees for initial, renewal, and change of ownership license fees, an annual assessment fee per year will be imposed by the department in amounts reasonable and necessary to defray costs.

  (2) The amount of the one time per year annual assessment fee will be determined by the department on an annual basis.

  (3) Fees will be divided into three categories based on a three year history:

    (A) the average per year of the previous three years reported abortions equals less than 1000;

    (B) the average per year of the previous three years reported abortions equals 1000 - 2999;

    (C) the average per year of the previous three years reported abortions equals 3000 or more.

  (4) Facilities identified in each category will be assessed a proportionate share of the costs.

  (5) Licensees receiving an initial license will be assessed the least of the three fees in effect at the time of application for an initial or change of ownership license. The additional annual assessment fee is due at the same time as the application fee.

  (6) The department shall notify each licensee of the amount assessed for the annual assessment fee by April 1, 2004, and by the first day of April for each subsequent year.

  (7) The annual assessment fee must be received by the department no later than June 1, 2004, and the first day of June for each subsequent year.

  (8) A licensee who fails to pay the assessed annual assessment fee will be subject to denial, revocation, probation, or suspension of a license as prescribed in 139.32 of this title (relating to License Denial, Suspension, Probation or Revocation).

 

RULE 139.23

Application Procedures and Issuance of Licenses

 


 

(a) Purpose. This section establishes the application procedures that an abortion facility must follow to obtain a license to operate as a licensed abortion facility in Texas.

 

(b) Definitions. The following terms when used in this section shall have the following meaning.

  (1) Initial license--A license which is issued by the department to all first-time applicants for an abortion facility license (including those from unlicensed operating facilities and licensed facilities for which a change of ownership is anticipated, that meet the requirements of the Act and this chapter and have successfully completed the application procedures for an initial license as set out in subsection (c) of this section. This license expires 12 months after issuance up to January 1, 2005, and 24 months after January 1, 2005.

  (2) Renewal license--A license issued by the department to a licensed abortion facility that meets all requirements of the Act and this chapter and has completed the application procedures for obtaining a renewal license as set out in subsection (d) of this section. Renewal licenses issued January 1, 2005, through December 31, 2005, will expire in either one or two years, to be determined by the department prior to the time of license renewal. Renewal licenses issued January 1, 2006, or after, will expire in two years.

 

(c) Application procedures for an initial license. This subsection establishes the application procedures for obtaining an initial license.

  (1) Request for an application. Upon request for an abortion facility license, the Texas Department of Health (department) will furnish a person with an application packet. Applications may also be obtained and submitted through the department's web site.

  (2) Application requirements. The applicant shall submit the information listed in subparagraph (C) of this paragraph to the department.

    (A) An applicant shall not misstate a material fact on any documents required to be submitted under this subsection.

    (B) The application form must be accurate and complete and must contain original signatures. The initial license fee must accompany the application.

    (C) The following documents must be submitted with the original application form prescribed by the department and shall be originals or notarized copies:

      (i) information on the applicant including name, street address, mailing address, social security number or Franchise Tax ID number, date of birth, and driver's license number;

      (ii) the name, mailing address, and street address of the abortion facility. The address provided on the application must be the address from which the abortion facility will be operating and providing services;

      (iii) the telephone number of the facility, the telephone number where the administrator can usually be reached when the facility is closed, and if the facility has a fax machine, the fax number;

      (iv) a list of names and business addresses of all persons who own any percentage interest in the applicant including:

        (I) each limited partner and general partner if the applicant is a partnership; and

        (II) each shareholder, member, director, and officer if the applicant is a corporation, limited liability company or other business entity;

      (v) a list of any businesses with which the applicant subcontracts and in which the persons listed under clause (iv) of this subparagraph hold any percentage of the ownership;

      (vi) if the applicant has held or holds an abortion facility license or has been or is an affiliate of another licensed facility, the relationship, including the name and current or last address of thbsp;(viii) a notarized affidavit attesting that the applicant is capable of meeting the requirements of this chapter;

      (ix) an organizational structure of the staffing for the abortion facility. The organizational structure shall include full disclosure in writing of the names and addresses of all owners and persons controlling any ownership interest in the abortion facility. In the case of corporations, holding companies, partnerships, and similar organizations, the names and addresses of officers, directors, and stockholders, both beneficial and of record, when holding any percent, shall be disclosed. In the case of a non-profit corporation, the names and addresses of the officers and directors shall be disclosed;

      (x) the name(s), address(es), and Texas physician license number(s) of the physician(s) (including the facility's designated medical consultant), and all midlevel providers who will provide services at the abortion facility;

      (xi) the following data concerning the applicant, the applicant's affiliates, and the managers of the applicant:

        (I) denial, suspension, probation, or revocation of an abortion facility license in any state, a license for any health care facility or a license for a home and community support services agency (agency) in any state; or any other enforcement action, such as (but not limited to) court civil or criminal action in any state;

        (II) denial, suspension, probation, or revocation of or other enforcement action against an abortion facility license in any state, a license for any health care facility in any state, or a license for an agency in state which is or was proposed by the licensing agency and the status of the proposal;

        (III) surrendering a license before expiration of the license or allowing a license to expire in lieu of the department proceeding with enforcement action;

        (IV) federal or state (any state) criminal felony arrests or convictions;

        (V) federal or state Medicaid or Medicare sanctions or penalties relating to the operation of a health care facility or agency;

        (VI) operation of a health care facility or agency that has been decertified or terminated from participation in any state under Medicare or Medicaid; or

        (VII) debarment, exclusion, or contract cancellation in any state from Medicare or Medicaid; and

      (xii) for the two-year period preceding the application date, the following data concerning the applicant, the applicant's affiliates, and the managers of the applicant:

        (I) federal or state (any state) criminal misdemeanor arrests or convictions;

        (II) federal or state (any state) tax liens;

        (III) unsatisfied final judgments;

        (IV) eviction involving any property or space used as an abortion facility or health care facility in any state;

        (V) injunctive orders from any court; or

        (VI) unresolved final federal or state (any state) Medicare or Medicaid audit exceptions.

  (3) Applicant copy. The applicant shall retain a copy of all documentation that is submitted to the department.

  (4) Application processing. Upon the department's receipt of the application form, the required information described in paragraph (2)(C) of this subsection, and the initial license fee from an applicant, the department shall review the material to determine whether it is complete and correct.

    (A) The time periods for reviewing the material shall be in accordance with 139.25 of this title (relating to Time Periods for Processing and Issuing a License).

    (B) If an abortion facility receives a notice from the department that some or all of the information required under paragraph (2)(C) of this subsection is deficient, the facility shall submit the required information no later than six months from the date of the notice.

      (i) A facility which fails to submit the required information within six months from the notice date is considered to have withdrawn its application for an initial license. The license fee will not be refunded.

      (ii) A facility which has withdrawn its application must reapply for a license in accordance with this section, if it wishes to continue the application process. A new license fee is required.

  (5) Withdrawal from the application process. If an applicant decides at any time not to continue the application process for an initial license, the application will be withdrawn upon written request from the applicant.

  (6) Issuance of an initial license.

    (A) The time periods for processing an initial application shall be in accordance with 139.25 of this title.

    (B) Effective period of an initial license. The initial license is valid for 12 months up to January 1, 2005, and 24 months after January 1, 2005. The initial license expires on the last day of the month ending the licensure period.

    (C) Pre-inspection. Once the department has determined that the application form, the information required to accompany the application form, and the initial license fee are complete and correct, the department shall schedule a pre-inspection conference with the applicant in order to inform the applicant or his or her designee of the standards for the operation of the abortion facility. The department, at its discretion, may waive the pre-inspection conference. Upon recommendation by the pre-inspection conference, the department will issue an initial license to the facility.

    (D) Pre-inspection recommendation. After the pre-inspection conference has been held, the department will:

      (i) issue an initial license to the owner of a facility, if the facility is found to be in compliance with the department's requirements for initial licensure; or

      (ii) deny the application if the facility has not complied with the department's requirements for issuing an initial license. The procedure for denial of a license shall be in accordance with 139.32 of this title (relating to License Denial, Suspension, Probation, or Revocation).

  (7) A department representative shall inspect the abortion facility in accordance with 139.31 of this title (relating to On-Site Inspections and Complaint Investigations of a Licensed Abortion Facility) within 60 days after the issuance of an initial license. If the department determines that a facility is not in compliance with the provisions of the Act or this chapter after the initial onsite inspection, the department shall notify the facility. Notification shall be in accordance with 139.32 of this title.

  (8) If for any reason, an applicant decides not to continue the application process, the applicant must submit to the department a written request to withdraw its application. If an initial license has been issued, the applicant shall cease providing abortion services and return the initial license to the department with its written request to withdraw. The department shall acknowledge receipt of the request to withdraw. The license fee will not be refunded.

  (9) Continuing compliance by the abortion facility with the provisions of the Act and this chapter is required during the initial license period.

 

(d) Application procedures for renewal of a license.

  (1) The department will send notice of expiration of a license to the licensee at least 60 days before the expiration date of the license. If the licensee has not received notice of expiration from the department 45 days prior to the expiration date, it is the duty of the licensee to notify the department and request an application for a renewal license.

  (2) The licensee shall submit the following items to the department by certified mail, marked confidential, and postmarked no later than 30 days prior to the expiration date of the license:

    (A) a complete and accurate renewal application form;

    (B) current updated documents containing all the information required in subsection (c)(2)(C) of this section; and

    (C) the renewal license fee.

  (3) A facility shall not misstate a material fact on any documents required to be submitted to the department or required to be maintained by the facility in accordance with the provisions of the Act and this chapter.

  (4) A department surveyor shall inspect a licensed abortion facility in accordance with 139.31(b) of this title.

  (5) If a licensee makes timely and sufficient application for renewal, the license will not expire until the department issues the renewal license or until the department denies renewal of the license.

    (A) The department shall issue a renewal license to a licensee who meets the minimum standards for a license in accordance with the provisions of the Act and this chapter.

    (B) The department may propose to deny the issuance of a renewal license if:

      (i) based on the inspection report, the department determines that the abortion facility does not meet or is in violation of any of the provisions of the Act or this chapter;

      (ii) renewal is prohibited by the Texas Education Code, 57.491, relating to defaults on guaranteed student loans;

      (iii) a facility discloses any of the actions or offenses listed in subsection (c)(2)(C)(xi) and (xii) of this section; and

 
 

(iv) a facility fails to file abortion reports in accordance with 139.4 of this title (relating to Annual Reporting Requirements for All Abortions Performed) or fails to ensure that the physicians report in accordance with 139.5 of this title (relating to Additional Reporting Requirements for Physicians).

  (6) If a licensee makes a timely application for renewal of a license, and action to revoke, suspend, place on probation, or deny renewal of the license is pending, the license does not expire but does extend until the application for renewal is granted or denied after the opportunity for a formal hearing. A renewal license will not be issued unless the department has determined the reason for the proposed action no longer exists.

  (7) If a suspension of a license overlaps a renewal date, the suspended license holder shall comply with the renewal procedures in this subsection; however, the department may not renew the license until the department determines that the reason for suspension no longer exists.

  (8) If the department revokes or does not renew a license, a person may apply for an initial license by complying with the requirements of the Act and this chapter at the time of reapplication. The department may refuse to issue a license if the reason for revocation or nonrenewal continues to exist.

  (9) Upon revocation or nonrenewal, a license holder shall return the original license to the department.

  (10) The procedures for revocation, suspension, probation, or denial of a license shall be in accordance with 139.32 of this title.

 

(e) Failure to timely renew a license.

  (1) If a licensee fails to timely renew a license in accordance with subsection (d) of this section, the department shall notify the licensee that the facility must cease operation on the expiration date of the license.

  (2) To continue providing services at the abortion facility after the expiration of the license, the owner must apply for an initial license in accordance with subsection (c) of this section.

 

(f) Frequency of inspections. Inspections of the abortion facility shall be performed at a frequency prescribed by and in accordance with 139.31 of this title (relating to On-Site Inspections and Complaint Investigations of a Licensed Abortion Facility).
 

RULE 139.24

Change of Ownership or Services, and Closure of a Licensed Abortion Facility

 


 

(a) The following provisions apply to change of ownership of the licensed abortion facility and affect the condition of a license.

  (1) A licensee shall not transfer or assign its license from one person to another person.

  (2) The licensed abortion facility shall not materially alter any license issued by the department.

  (3) A person who desires to receive a license in its name for a facility licensed under the name of another person or to change the ownership of any facility shall submit a license application and the initial license fee at least 60 calendar days prior to the desired date of the change of ownership. The application shall be in accordance with 139.23(c) of this title (relating to Application Procedures and Issuance of Licenses).

  (4) An application for a change of ownership shall include a notarized affidavit signed by the previous owner acknowledging agreement with the change of ownership. If the applicant is a corporation, the application shall include a copy of the applicant's articles of incorporation. If the applicant is a business entity other than a corporation, the applicant shall include a copy of the sales agreement.

  (5) The pre-inspection conference may, at the department's discretion, be waived for an applicant of a licensed abortion facility for a change in control of ownership. If the pre-inspection conference is waived, the department will issue an initial license to the new owner of the facility.

  (6) When a change of ownership has occurred, the department shall perform an on-site inspection of the facility within 60 days from the effective date of the change of ownership.

  (7) The previous owner's license shall be void on the effective date of the change of ownership.

  (8) This subsection does not apply if a licensee is simply revising its name as allowed by law (i.e., a corporation is amending the articles of incorporation to revise its name).

  (9) The sale of stock of a corporate licensee does not cause this subsection to apply.

 

(b) The following business changes affect the condition of a license and shall be reported to the department.

  (1) If a licensed abortion facility changes its business name, business address, telephone number of the facility, administrator's telephone number, or fax number (if available), the administrator must notify the department in writing within 15 calendar days after the effective date of the change.

  (2) If a licensed abortion facility changes its administrator, the facility shall provide the name of the new administrator and effective date to the department in writing no later than 15 calendar days following such change.

 

(c) The licensee shall notify the department at least 30 days in advance of a relocation.

 

(d) The licensee shall notify the department in writing within 15 calendar days when a licensed abortion facility ceases operation. The licensee shall return the original license to the department.

 

(e) A licensed abortion facility shall have a written policy for the preservation and release of active and inactive medical records in the event the facility closes.

 

RULE 139.25

Time Periods for Processing and Issuing a License

 


 

(a) General.

  (1) The date a license application is received is the date the application reaches the Health Facility Licensing and Compliance Division of the Texas Department of Health (department).

  (2) An application for an initial license is complete when the department has received, reviewed, and found acceptable the information described in 139.23(c)(2)(C) of this title (relating to Application Procedures and Issuance of Licenses).

  (3) An application for a renewal license is complete when the department has received, reviewed, and found acceptable the information described in 139.23(d)(2) of this title.

  (4) An application for a change of ownership license is complete when the department has received, reviewed, and found acceptable the information described in 139.24 of this title (relating to Change of Ownership or Services and Closure of a Licensed Abortion Facility).

 

(b) Time periods. An application from an abortion facility for an initial license, renewal license, or change of ownership license shall be processed in accordance with the following time periods.

  (1) The first time period begins on the date the department receives the application and ends on the date the license is issued, or if the application is received incomplete, the period ends on the date the facility is issued a written notice that the application is incomplete. The written notice shall describe the specific information that is required before the application is considered complete. The first time period is 45 days for initial, renewal, and change of ownership applications.

  (2) The second time period begins on the date the last item necessary to complete the application is received and ends on the date the license is issued. The second time period is 45 days for initial, renewal and change of ownership applications.

 

(c) Reimbursement of fees.

  (1) In the event the application is not processed in the time periods stated in subsection (b) of this section, the applicant has the right to request that the department reimburse in full the fee paid in that particular application process. If the department does not agree that the established periods have been violated or finds that good cause existed for exceeding the established periods, the request will be denied.

  (2) Good cause for exceeding the period established is considered to exist if:

    (A) the number of applications for licenses to be processed exceeds by 15% or more the number processed in the same calendar quarter the preceding year;

    (B) another public or private entity utilized in the application process caused the delay; or

    (C) other conditions existed giving good cause for exceeding the established periods.

 

(d) Appeal. If the request for reimbursement as authorized by subsection (c) of this section is denied, the applicant may then appeal to the commissioner of health for a resolution of the dispute. The applicant shall give written notice to the commissioner requesting reimbursement of the fee paid because the application was not processed within the established time period. The department shall submit a written report of the facts related to the processing of the application and good cause for exceeding the established time periods. The commissioner will make the final decision and provide written notification of the decision to the applicant and the director.

 

(e) Hearings. If a hearing is proposed during the processing of the application, the time periods in 1.34 of this title (relating to Time Periods for Conducting Contested Case Hearings) are applicable.

 

RULE 139.31

On-site Inspections and Complaint Investigations of a Licensed Abortion Facility

 


 

(a) General. An on-site inspection shall determine if the requirements of the Act and this chapter are being met.

  (1) An authorized representative of the department (surveyor) may enter the premises of a licensed abortion facility at reasonable times during business hours and at other times as it considers necessary to ensure compliance with:

    (A) the Act and this chapter;

    (B) an order of the commissioner of health (commissioner);

    (C) a court order granting injunctive relief; or

    (D) other enforcement actions.

  (2) The surveyor is entitled to access all books, records, or other documents maintained by or on behalf of the facility to the extent necessary to ensure compliance with the Act, this chapter, an order of the commissioner, a court order granting injunctive relief, or other enforcement action. The department shall maintain the confidentiality of facility records as applicable under federal or state law. Ensuring compliance includes permitting photocopying by a department surveyor or providing photocopies to a department surveyor of any records or other information by or on behalf of the department as necessary to determine or verify compliance with the Act or this chapter.

  (3) By applying for or holding a license, the facility consents to entry and inspection of the facility by the department or representative of the department in accordance with the Act and this chapter.

 

(b) Inspection procedures.

  (1) All onsite inspections will be unannounced and conducted, at least, annually.

  (2) The department's surveyor shall hold a conference with the person who is in charge of a licensed abortion facility prior to commencing the inspection for the purpose of explaining the nature and scope of the inspection. The surveyor shall hold an exit conference with the person who is in charge of the facility when the inspection is completed, and the surveyor shall identify any records that were duplicated. Any original facility records that are removed from a facility shall be removed only with the consent of the facility.

  (3) The department's authorized representative shall hold an exit conference and fully inform the person who is in charge of the facility of the preliminary finding(s) of the inspection and shall give the person a reasonable opportunity to submit additional facts or other information to the surveyor in response to those findings. The response shall be made a part of the inspection for all purposes and must be received by the department within 14 calendar days of receipt of the preliminary findings of the inspection by the facility.

  (4) After the inspection is completed, the department shall provide the administrator of the facility specific and timely written notice of the findings of the inspection in accordance with paragraph (7) of this subsection.

  (5) If the department determines that the facility is in compliance with minimum standards at the time of the on-site inspection, the department will send a license to the facility, if applicable.

  (6) If the surveyor finds there are deficiencies, the department shall provide the facility with a statement of the deficiencies; the surveyor's recommendation for further action; or if there are no deficiencies found, a statement indicating this fact.

  (7) If the department representative finds there are deficiencies, the facility and the department shall comply with the following procedure.

    (A) The department shall provide the facility with a statement of deficiencies onsite at the time of the exit conference or within 14 calendar days of the exit conference.

    (B) The facility administrator or person in charge shall sign the written statement of deficiencies and return it to the department with its plan of correction(s) for each deficiency within 14 calendar days of its receipt of the statement of deficiencies. The signature does not indicate the person's agreement with deficiencies stated on the form.

    (C) The facility shall have the option to challenge any deficiency cited after receipt of the statement of deficiencies. A challenge to a deficiency(ies) shall be in accordance with this subparagraph.

      (i) An initial challenge to a deficiency(ies) shall be submitted in writing no later than 14 calendar days from the facility's receipt of the statement of deficiencies to the program director for abortion facility licensing, Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199. The initial written challenge shall include any and all documents supporting the facility's position.

      (ii) If the initial challenge is favorable to the department, the facility may request a review of the initial challenge by submitting a written request to the Director, Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199. The facility shall submit its written request for review of the initial challenge no later than 14 calendar days of its receipt of the department's response to the initial challenge. The department will not accept or review any documents that were not submitted with the initial challenge. A determination by the Director, Health Facility Licensing and Compliance Division, relating to a challenge to a deficiency(ies) will be considered the final determination by the department.

      (iii) The department shall respond to any written challenge submitted under clauses (i) or (ii) of this subparagraph no later than 14 calendar days from its receipt.

    (D) The department shall determine if the written plan of correction is acceptable. If the plan of correction(s) is not acceptable to the department, the department shall notify the facility and request that the plan of correction be modified by telephone or resubmitted no later than 14 calendar days from receipt of such request by the facility.

    (E) If the facility does not come into compliance by the required date of correction, the department may propose to deny, suspend, place on probation, or revoke the license in accordance with 139.32 of this title (relating to License Denial, Suspension, Probation, or Revocation).

    (F) Acceptance of a plan of correction by the department does not preclude the department from taking enforcement action as appropriate under 139.32 of this title.

  (8) The department shall refer issues and complaints relating to the conduct or action(s) by licensed health care professionals to their appropriate licensing boards.

 

(c) Complaints.

  (1) In accordance with 139.50 of this title (relating to Disclosure Requirements), all licensed abortion facilities are required to provide the patient and her guardian, if present, if the patient is a minor at time of the initial visit or if guardianship is required, with a written statement that complaints relating to the abortion facility may be registered with the Director, Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199.

  (2) The department will evaluate all complaints against licensed abortion facilities. All complaints submitted to the department must be in writing and signed by the complainant. Only those allegations determined to be relevant to the Act or this chapter will be authorized for investigation. All information pertaining to a complaint is strictly confidential.

  (3) The department or its authorized representative may enter the premises of an abortion facility during normal business hours as necessary to assure compliance with the Act and this chapter. The investigation may be conducted on-site, by phone or by mail.

  (4) Conduct of the on-site investigation of a licensed abortion facility will include, but not be limited to:

    (A) a conference prior to commencing the on-site investigation for the purpose of explaining the nature and scope of the investigation between the department's authorized representative and the administrator of the abortion facility, or his or her designee;

    (B) an inspection of the facility;

    (C) an inspection of medical records, personnel records, administrative files, reports, other records, and/or working papers;

    (D) an interview with any physician or other health care practitioner, including abortion facility personnel who care for the recipient of abortion services;

    (E) a conference at the conclusion of the inspection between the department's representative and the administrator or his or her designee of the facility; and

    (F) identification by the department's representative of any facility documents that have been reproduced.

  (5) If the department finds that there are deficiencies following the on-site inspection, the provisions of subsection (b)(6) and (7) of this section will apply.

  (6) The department will review the report of the investigation and determine the validity of the complaint.

 

RULE 139.32

License Denial, Suspension, Probation, or Revocation

 


 

(a) The department may refuse to issue or renew a license for a facility if the facility fails to comply with any provisions of the Act, or Health and Safety Code, Chapters 245 and 171.

 

(b) The department may suspend, place on probation, or revoke the license of a facility for one or more of the following reasons:

  (1) the facility commits fraud, misrepresentation, or concealment of a material fact on any documents required to be submitted to the department or required to be maintained by the facility pursuant to the Act;

  (2) the facility or any of its employees materially alters any license issued by the department;

  (3) the facility or its employees commits an act which causes immediate jeopardy to the health and safety of a patient;

  (4) the facility is cited for deficiencies and fails to submit an acceptable plan of correction in accordance with this chapter;

  (5) the facility has been cited for deficiencies and fails to timely comply with minimum standards for licensure within the dates designated in the plan of correction;

  (6) the facility or any of its employees has aided, abetted, or permitted the commission of an illegal act;

  (7) the facility or any of its employees fails to comply with any provisions of the Act or this chapter;

  (8) the facility is not in compliance with minimum standards for licensure;

  (9) the facility fails to provide the required application or renewal information;

  (10) the facility fails to comply with an order of the commissioner of health or another enforcement procedure under the Act;

  (11) the facility discloses an action described in 139.23(c)(2)(C)(xii) and (xiii) of this title (relating to Application Procedures and Issuance of Licenses);

  (12) the facility knowingly employs as the facility administrator or chief financial officer an individual who was convicted of a felony or misdemeanor listed in subsection (c) of this subsection;

  (13) has a history of failure to comply with the rules adopted under this chapter; or

  (14) has aided, abetted or permitted the commission of an illegal act;

 

(c) The department may deny a person a license or suspend or revoke an existing license on the grounds that the person has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of the ownership or operation of a facility.

  (1) In determining whether a criminal conviction directly relates to the duties and responsibilities of the ownership or operation of a licensed abortion facility, and in determining the fitness of a person who has been convicted of a crime to perform such duties and responsibilities, the department shall consider the provisions of Texas Occupations Code, Chapter 53.

  (2) The department is entitled to obtain criminal history information maintained by the Texas Department of Public Safety (Government Code, 411.122), the Federal Bureau of Investigation Identification Division (Government Code, 411.087), or any other law enforcement agency to investigate the eligibility of an applicant for an initial or renewal license and to investigate the continued eligibility of a licensee.

  (3) The following felonies and misdemeanors directly relate to the duties and responsibilities of the ownership or operation of a licensed abortion facility because these criminal offenses demonstrate impaired ability to own or operate a facility:

    (A) a misdemeanor violation of Health and Safety Code (HSC), Chapter 244;

    (B) a misdemeanor or felony involving moral turpitude;

    (C) a misdemeanor or felony relating to deceptive business practices;

    (D) a misdemeanor or felony of practicing any health-related profession without a required license;

    (E) a misdemeanor or felony under any federal or state law relating to drugs, dangerous drugs, or controlled substances;

    (F) a misdemeanor or felony under the Texas Penal Code (TPC), Title 5, involving a patient or client of any health care facility, a home and community support services agency or a health care professional;

    (G) a misdemeanor or felony under the TPC:

      (i) Title 4 - offenses of attempting or conspiring to commit any of the offenses in this clause;

      (ii) Title 5 - offenses against the person;

      (iii) Title 7 - offenses against property;

      (iv) Title 8 - offenses against public administration;

      (v) Title 9 - offenses against public order and decency;

      (vi) Title 10 - offenses against public health, safety or morals;

      (vii) Title 11 - offenses involving organized crime.

  (4) Offenses listed in paragraph (3) of this subsection are not exclusive in that the department may consider similar criminal convictions from other state, federal, foreign or military jurisdictions which indicate an impaired ability or tendency for the person to be unable to own or operate a facility.

  (5) A license holder's license shall be revoked on the license holder's imprisonment following a felony conviction, felony community supervision revocation, revocations of parole, or revocation of mandatory supervision.

 

(d) All proceedings for the denial, suspension, probation, or revocation of a license under this section will be conducted at the State Office of Administrative Hearings, and in accordance with Chapter 245 of the Texas Health and Safety Code, Chapter 2001 of the Texas Government Code, and the Formal Hearing Procedures of the Texas Department of Health (Texas Administrative Code, Title 25, Part 1).

 

(e) A person who has had a facility license revoked under this section may not apply for a license under this chapter for one year following the date of revocation.

 

(f) After an inspection in which deficiencies were cited by the surveyor, a facility may submit its license for voluntary cancellation in lieu of the department proceeding with enforcement action. The department may accept such submission or reject it and proceed with an enforcement action. The facility, its owner(s), and its affiliates may not reapply for a license for six months from the date of the surrender or expiration.

 

(g) If the department suspends a license, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. A department surveyor shall conduct an inspection of the facility prior to making a determination.

  (1) During the time of suspension, the suspended license holder shall return the original license certificate to the department.

  (2) If a suspension overlaps a renewal date, the suspended license holder shall comply with the renewal procedures in this chapter; however, the department may not renew the license until the department determines that the reason for suspension no longer exists.

  (3) If suspension is for more than one year, the suspended license holder may apply to the department for cancellation of the suspension only after one year following the initial date of the suspension.

 

(h) If the department revokes or does not renew a license, a person may reapply for a license (subject to subsection (d) of this section), by complying with the requirements and procedures in this chapter at the time of reapplication. The department may refuse to issue a license if the reason for revocation or non-renewal continues to exist and may consider the enforcement history of the applicant, administrator or clinical director in making such a determination.

 

(i) Upon revocation or non-renewal, a license holder shall return the original license certificate to the department.

 

(j) Upon a licensee's felony conviction, felony probation revocation, revocation of parole, or revocation of mandatory supervision, the license shall be revoked.

 

(k) If the department finds that a licensed abortion facility is in repeated noncompliance with Health and Safety, Chapter 245, or rules adopted under this chapter, but the noncompliance does not in any way involve the health and safety of the public or an individual, the department may schedule the facility for probation rather than suspending or revoking the facility's license.

 

(l) The department may suspend or revoke the license of a licensed abortion facility that does not correct items that were in noncompliance or that does not comply with Health and Safety Code, Chapter 245, or rules adopted under this chapter within the applicable probation period.

 

(m) The department may suspend or revoke a license to be effective immediately when a situation(s) is identified that poses immediate jeopardy to the health and safety of person(s) at the facility.

  (1) The department shall immediately give the licensee adequate notice of the action taken, the legal grounds for the action, and the procedure governing appeal of the action.

  (2) The department shall set a hearing date not later than the 14th day after the effective date of the suspension or revocation.

  (3) The department shall also notify the facility in writing of the emergency action, the legal grounds for the action, the effective date of the emergency action, the procedure governing appeal of the action, and the date set for the hearing. This notice shall be sent by certified mail, return receipt requested, or by personal delivery. The hearing shall be conducted at the State Office of Administrative Hearings, and pursuant to the Texas Health and Safety Code, Chapter 245, Texas Government Code, Chapter 2001 and the department's formal hearing procedures set out in Chapter 1 of this title.

 

(n) If a person violates the licensing requirements of the Act or rules adopted under the Act, the department may petition the district court for a temporary restraining order to restrain the person from continuing the violation or operating without a license.

 

(o) If a person operates a facility without a license as required by this chapter and the Act, the person is liable for a civil penalty of not less than $1,000 nor more than $2,500 for each day of violation.

 

(p) If a facility has hatment prevails in one enforcement action (e.g., injunctive action) against the facility but also proceeds with another enforcement action (e.g., revocation) based on some or all of the same violations, but the department does not prevail in the second enforcement action (e.g., the facility prevails), the prohibition in this paragraph does not apply.

 

(q) If the department suspends a license, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. An authorized representative of the department shall conduct an on-site inspection of the facility prior to making a determination.

  (1) During the time of suspension, the suspended license holder shall return the original license to the department.

  (2) If a suspension overlaps a renewal date, the suspended license holder shall comply with the renewal procedures in this chapter; however, the department may not renew the license until the department determines that the reason for suspension no longer exists.

  (3) If suspension is for more than one year, the suspended license holder may apply to the department for cancellation of the suspension only after one year following the initial date of the suspension.

 

(r) If the department revokes or does not renew a license and the one-year period described in subsection (p) of this section has passed, a person may reapply for a license by complying with the requirements and procedures in this chapter at the time of reapplication. The department may refuse to issue a license if the reason for revocation or nonrenewal continues to exist.

 

(s) Upon revocation or nonrenewal, a license holder shall return the license to the department.

 

(t) After an on-site inspection in which deficiencies were cited by the surveyor, a facility may surrender its license before expiration or allow its license to expire in lieu of the department proceeding with enforcement action. A facility may surrender before the expiration date by returning its original license to the department. If a facility surrenders or allows expiration of the license, the facility, its owner(s), and its affiliates may not reapply for a license for six months from the date of the surrender or expiration.

 

RULE 139.33

Administrative Penalties, Injunction, Criminal Penalties, and Civil Penalties

 


 

(a) Administrative penalties.

  (1) The department may assess an administrative penalty against a person who violates the Act or this chapter.

  (2) The penalty may not exceed $1,000 for each violation. Each day of a continuing violation constitutes a separate violation.

  (3) In determining the amount of an administrative penalty assessed under this section, the department shall consider:

    (A) the seriousness of the violation;

    (B) the history of previous violations;

    (C) the amount necessary to deter future violations;

    (D) efforts made to correct the violation; and

    (E) any other matters that justice may require.

  (4) All proceedings for the assessment of an administrative penalty under this section will be conducted at the State Office of Administrative Hearings, and pursuant to the Texas Health and Safety Code (HSC), Chapter 245, the Texas Government Code, Chapter 2001, and the department's formal hearing procedures set out in Chapter 1 of this title.

  (5) The department may assess costs against facilities in administrative proceedings in accordance with HSC, Chapter 245.

 

(b) Injunction, criminal penalties, and civil penalties. In addition to administrative penalties, the Texas Health and Safety Code, Chapter 245, provides for injunctive relief and civil penalties for violations of that chapter and violations of these rules. Chapter 245 also provides for criminal penalties for certain violations described therein.

 

RULE 139.41

Policy Development and Review

 


 

(a) The licensee shall be responsible for the conduct of the licensed abortion facility and shall assume full legal responsibility for developing, implementing, enforcing, and monitoring written policies governing the facility's total operation and for ensuring that these policies comply with the Act and the applicable provisions of this chapter and are administered so as to provide health care in a safe and professionally acceptable environment. These written polices shall include at a minimum the following:

  (1) administrative policies governing the administration of the facility, covering at a minimum:

    (A) personnel;

    (B) employee orientation, training, and evaluation;

    (C) employee and patient record system;

    (D) auditing system for monitoring state or federal funds;

    (E) advertisements for the facility;

    (F) accuracy of public education information materials and activities in relation to abortion, birth control, and sexually-transmitted diseases;

    (G) patient education/information services and referral services;

    (H) reporting requirements; and

    (I) procedures for the resolution of complaints regarding care or services rendered by licensed health professionals and other members of the facility staff, including contract services or staff. The facility shall document the receipt and the disposition of the complaint. The investigation and documentation must be completed within 30 calendar days after the facility receives the complaint, unless the facility has and documents reasonable cause for a delay.

  (2) clinical policies governing medical and clinical practices and procedures of the facility, covering at a minimum:

    (A) the provision of medical and clinical services;

    (B) the provision of laboratory services;

    (C) examination of fetal tissue;

    (D) disposition of medical waste;

    (E) emergency services;

    (F) condition on discharge procedures;

    (G) clinical records;

    (H) reporting and filing requirements; and

    (I) monitoring postprocedure infection(s).

  (3) a policy to ensure that the facility is in compliance with fire safety provisions as required by the local codes;

  (4) policies on decontamination, disinfection, and sterilization, and storage of sterile supplies;

  (5) policies for parental notice for unemancipated pregnant minors as stipulated in Family Code, Chapter 33;

  (6) policies for informed consent as stipulated in Health and Safety Code, Chapter 171, the Woman's Right to Know Act;

  (7) policies for reporting suspected abuse or neglect as stipulated in Family Code, Chapter 261; and

  (8) policies to ensure all women who present to obtain an abortion provide identification that includes the woman's date of birth.

    (A) If the woman does not have identification stating her date of birth, she will be required to execute an affidavit on a form published by the department indicating that she does not have appropriate identification and indicating her date of birth on the affidavit.

Attached Graphic

    (B) The facility will keep a copy of the identification presented or the affidavit in its files.

 

(b) The licensee, in fulfilling its responsibility under subsection (a) of this section, shall review the facility's written policies and procedures periodically, but no less than once every two years; date to indicate time of last review; revise as necessary; and enforce.

 

RULE 139.42

Delegation of Authority and Organizational Structure

 


 

(a) Delegation of authority.

  (1) The licensee shall appoint a medical consultant who shall be responsible for:

    (A) implementing and enforcing the clinical policies of the facility; and

    (B) supervising all medical services provided at the facility, such as medical, nursing, clinical, laboratory, and information/education services.

  (2) The licensee shall appoint an administrator who shall be responsible for implementing and supervising the administrative policies of the facility.

  (3) The licensee shall designate in writing a person who meets the qualifications of an administrator to act in the absence of the administrator.

 

(b) Organizational structure. The licensee shall develop a written organization structure which shall be in a chart format or a narrative explanation that provides a description of the structure of the licensed abortion facility and defines the lines of authority.

  (1) The written organizational structure shall include, at a minimum, the identification of the licensee, medical consultant, administrator, and clinical staff.

  (2) The written organizational structure shall clearly define the lines of authority and the delegation of responsibility for professional and non-professional staff (including the medical consultant, the administrator, the medical and clinical staff, and ancillary staff).

 

RULE 139.43

Personnel Policies

 


 

The licensee shall develop, implement and enforce policies which shall govern all personnel staffed by the facility using the following minimum criteria:

  (1) job descriptions, including qualifications for all personnel providing direct or indirect patient care;

  (2) a requirement for orientation of all employees, volunteers, students and contractors to the policies and objectives of the facility and participation by all personnel in employee training specific to their job;

  (3) job-related training for each position;

  (4) a requirement for an annual evaluation of employee performance;

  (5) in service and continuing education requirements;

  (6) a requirement that all personnel providing direct patient care be currently certified in basic life support by the American Heart Association, the American Red Cross, or the American Safety and Health Institute, or in accordance with their individual professional licensure requirements, and if required in their job description or job responsibilities;

  (7) a requirement that all personnel having direct contact with patients (employed or contracting with the facility) sign a statement that they have read, understand, and will respect the rights of all patients as established in 139.51 of this title (relating to Patient Rights at the Facility); and

  (8) a requirement that all personnel complete a training program developed jointly by the department and the Department of Protective and Regulatory Services (DPRS) concerning their individual duties to report child abuse, how to identify and recognize abuse, and the jurisdiction of DPRS and local law enforcement over child abuse.

 

RULE 139.44

Orientation, Training, and Demonstrated Competency

 


 

(a) A licensed abortion facility shall develop and implement a written orientation and training program to familiarize all employees (including office staff) with the facility's policies, philosophy, job responsibilities of all staff, and emergency procedures.

 

(b) In implementing the orientation and training program, a licensed abortion facility shall orient and train each employee to ensure, through demonstrated competency, that:

  (1) the employee understands his or her specific job description;

  (2) the employee understands the facility's policy and procedure manual, including protocols and description of the roles and responsibilities of all personnel;

  (3) the employee understands, at a minimum but not limited to, the following:

    (A) coordination and treatment of patient care;

    (B) sterilization and infection control policies;

    (C) patient education/information;

    (D) informed consent policies;

    (E) abortion techniques provided at that facility;

    (F) care of the patient before, during, and after an abortion procedure;

    (G) patient rights;

    (H) possible complications of the abortion procedure; and

    (I) prevention of infectious diseases.

 

(c) The facility shall ensure that staff responsible for sterilization of critical surgical instruments are trained by the facility to meet the requirements of 139.49(d) of this title (relating to Infection Control Standards) and demonstrate competency in performing the sterilization procedures at the facility.

 

(d) The facility shall ensure that all staff are aware of the reporting requirements for child abuse or neglect under Family Code, 261.101; and reporting requirements for family violence under Family Code, 73.02 and 73.03.

 

(e) The facility shall document in each employee's personnel record evidence of all training and orientation received.

 

RULE 139.45

Personnel Records

 


 

An individual personnel record shall be maintained on each person employed by the licensed abortion facility which shall include, but not be limited to, the following:

  (1) current job description for the employee, which is reviewed and revised as needed;

  (2) verification of current license and certification of personnel required to have a license and or certification;

  (3) clinical laboratory tests results and vaccinations if required by law (e.g., Mycobacterium tuberculosis, hepatitis B virus);

  (4) documentation of the education, training, and experience of the employee, in addition to a copy or verification of the employee's current license or certification credentials, or both; and

  (5) documentation of the employee's orientation, in-service and other educational programs provided by the licensed abortion facility (training), and employee evaluation.

 

RULE 139.46

Licensed Abortion Facility Staffing Requirements and Qualifications

 


 

A licensed abortion facility shall have an adequate number of personnel qualified under this section available to provide direct patient care as needed by all patients; and administrative and non-clinical services needed to maintain the operation of the facility in accordance with the provisions of the Act and this chapter.

  (1) Medical consultant. The medical consultant shall be a physician.

  (2) Administrator.

    (A) The administrator shall be at least 18 years of age and shall meet at least one of the following qualifications:

      (i) be a licensed health care professional;

      (ii) have a baccalaureate degree, a post graduate degree, or a professional degree and one year administrative experience in a health care or health-related field; or

      (iii) have a minimum of two years of administrative experience in a health care or health-related facility.

    (B) The administrator shall not have been employed in the last year as an administrator with another abortion facility or health-related facility at the time the facility was cited for violations of a licensing law or rule which resulted in enforcement action taken against the abortion facility or health-related facility. For purposes of this subparagraph only, the term "enforcement action" means license revocation, suspension, emergency suspension, probation, denial or injunctive action but does not include administrative penalties or civil penalties. If the department prevails in one enforcement action (e.g., injunctive action) against the facility but also proceeds with another enforcement action (e.g., revocation) based on some or all of the same violations, but the department does not prevail in the second enforcement action (e.g., the facility prevails), the prohibition in this paragraph does not apply.

    (C) The administrator shall not have been convicted of a felony or misdemeanor listed in 139.32 of this title (relating to License Denial, Suspension, Probation, or Revocation).

  (3) Direct patient care staff.

    (A) Medical staff. The medical staff shall include a physician and may include midlevel providers.

    (B) Nursing staff. The nursing staff shall include a registered nurse(s) or a licensed vocational nurse(s).

    (C) Education and information staff. Staff providing education and information services at the facility shall be a person(s) who is trained to provide information on surgical abortion procedures, medical abortions, alternatives to abortion, consent form, and family planning services, and meets at least one of the following additional qualifications:

      (i) has one year experience in a health care facility;

      (ii) has a baccalaureate degree; or

      (iii) is a licensed professional mental health practitioner who provides therapeutic intervention.

    (D) Laboratory staff. The laboratory staff shall include a person(s) who is trained to provide the laboratory services for the facility as determined by the medical consultant.

  (4) Ancillary staff. Ancillary staff may include professional or nonprofessional staff who shall have training and experience to perform duties as prescribed by the administrator and the medical consultant as needed.

  (5) Anesthesia staff. Minimum staffing is required for each level of sedation/analgesia and for general anesthesia if offered by the facility and as established in 139.59 of this title (relating to Anesthesia Services).

 

RULE 139.47

Licensed Abortion Facility Administration

 


 

(a) The administrator shall be responsible for implementing and supervising the administrative policies of the facility.

 

(b) The administrator shall:

  (1) employ a qualified staff adequate in number to:

    (A) provide the medical and clinical services;

    (B) provide the non-clinical services; and

    (C) maintain the abortion facility;

  (2) ensure that employment of personnel is without regard to age, race, religion, or national origin;

  (3) ensure that all medical and clinical personnel hold current Texas licenses to practice their respective disciplines/professions, if applicable;

  (4) develop and make available to all staff and the department, a policy and procedure manual including protocols and description of the roles and responsibilities of all personnel;

  (5) ensure that assignment of duties and functions to each employee are commensurate with his/her licensure, certification, and experience and competence;

  (6) ensure that staff receive training, education, and orientation to their specific job description, facility personnel policies, philosophy, and emergency procedures in accordance with this section;

  (7) schedule employee evaluations;

  (8) maintain employee and patient records;

  (9) ensure the accuracy of public education information materials and activities in relation to abortion, birth control, and sexually-transmitted diseases. The department shall be the primary resource for human immunodeficiency virus (HIV) education, prevention, risk reduction materials, policies, and information. Educational materials may be obtained by writing or calling the Texas Department of Health Warehouse, Literature and Forms, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7761;

  (10) implement an effective budgeting, accounting, and auditing system for receipt of state or federal funds;

  (11) ensure that all advertisements for the facility include the unique identifying license number assigned by the department in accordance with 139.7 of this title (relating to Unique Identifying Number; Disclosure in Advertisement);

  (12) ensure that a woman, at the time of initial on-site consultation, receives the information required to be disclosed under 139.50 of this title (relating to Disclosure Requirements); and

  (13) ensure that the reporting requirements of 139.4 of this title (relating to Annual Reporting Requirements For All Abortions Performed) are performed.

 

(c) A licensed abortion facility shall report violations of practice acts and conditions of license for its licensed health care professional(s) to the appropriate licensing board. If the patient is unsatisfied with the facility's findings, the facility shall provide the complainant with the name, address, and telephone number of the appropriate licensing board. The facility shall document the review and action taken by the facility.

 

RULE 139.48

Physical and Environmental Requirements

 


 

The physical and environmental requirements for a licensed abortion facility are as follows.

  (1) A facility must:

    (A) have a safe and sanitary environment, properly constructed, equipped, and maintained to protect the health and safety of patients and staff at all times;

    (B) equip each procedure room so that procedures can be performed in a manner that assures the physical safety of all individuals in the area;

    (C) have a separate recovery room;

    (D) have a written protocol for emergency evacuation for fire and other disasters tailored to the facility's geographic location. Each staff member employed by or under contract with the facility shall be able to demonstrate their role or responsibility to implement the facility's emergency evacuation protocol required by this subparagraph;

    (E) store hazardous cleaning solutions and compounds in a secure manner and label substances;

    (F) have the capacity to provide patients with liquids. The facility may provide commercially packaged food to patients in individual servings. If other food is provided by the facility, it will be subject to the requirements of 229.161-229.171 of this title (relating to Food Service Sanitation);

    (G) provide clean hand washing facilities for patients and staff including running water, and soap;

    (H) have two functioning sinks and a functioning toilet; and

    (I) have equipment available to sterilize instruments, equipment, and supplies in accordance with 139.49(d) of this title (relating to Infection Control Standards) before use in the facility.

  (2) The equipment for vacuum aspiration shall be electrically safe and designed to prevent reverse pump action.

  (3) Projects involving alterations of and additions to existing buildings shall be programmed and phased so that on-site construction will minimize disruptions of existing functions. Access, exitways, and fire protection shall be maintained so that the safety of the occupants will not be jeopardized during construction.

 

RULE 139.49

Infection Control Standards

 


 

(a) Written policies. A licensed abortion facility shall develop, implement, and enforce infection control policies and procedures to minimize the transmission of postprocedure infections. These policies shall include, but not be limited to, the prevention of the transmission of human immunodeficiency virus (HIV), hepatitis B virus (HBV), hepatitis C virus (HCV), Mycobacterium tuberculosis (TB), and Streptococcus species (SP); educational course requirements; cleaning and laundry requirements; and decontamination, disinfection, sterilization, and storage of sterile supplies.

 

(b) Prevention and control of the transmission of HIV, HBV, HCV, TB, and SP.

  (1) Universal/standard precautions.

    (A) An abortion facility shall ensure that all staff comply with universal/standard precautions as defined in this paragraph.

      (i) Universal/standard precautions includes procedures for disinfection and sterilization of reusable medical devices and the appropriate use of infection control, including hand washing, the use of protective barriers, and the use and disposal of needles and other sharp instruments.

      (ii) Universal/standard precautions synthesize the major points of universal precautions with the points of body substance precautions and applies them to all patients receiving care in facilities, regardless of their diagnosis or presumed infection status.

        (I) Universal/standard precautions apply to:

          (-a-) blood;

          (-b-) body fluids, secretions, and excretions except sweat, regardless of whether or not they contain visible blood;

          (-c-) nonintact skin; and

          (-d-) mucous membranes.

        (II) Universal/standard precautions are designed to reduce the risk of transmission of microorganisms from both recognized and unrecognized sources of infection in facilities.

    (B) A licensed abortion facility shall establish procedures for monitoring compliance with universal/standard precautions described in subparagraph (A) of this paragraph.

  (2) Health care workers infected with the HIV or HBV. A licensed abortion facility shall adopt, implement, and enforce a written policy to ensure compliance of the facility and all of the health care workers within the facility with the Health and Safety Code, Chapter 85, Subchapter I, concerning the prevention of the transmission of HIV and HBV by infected health care workers.

  (3) Educational course work and training. A licensed abortion facility shall require its health care workers to complete educational course work or training in infection control and barrier precautions, including basic concepts of disease transmission, scientifically accepted principles and practices for infection control and engineering and work practice controls. To fulfill the requirements of this paragraph, course work and training may include formal education courses or in-house training or workshops provided by the facility. The course work and training shall include, but not be limited to:

    (A) HIV infection prevention; and

    (B) HBV, HCV, TB, and SP infection prevention based on universal/standard precautions as defined in paragraph (1) of this subsection;

    (C) bidirectional aspect of disease transmission; and

    (D) epidemic control.

 

(c) Cleaning and laundry policies and procedures.

  (1) A licensed abortion facility shall develop, implement, and enforce written policies and procedures on cleaning the procedure room(s).

  (2) A licensed abortion facility shall develop, implement, and enforce written policies and procedures for the handling, processing, storing, and transporting of clean and dirty laundry.

  (3) A licensed abortion facility may provide cleaning and laundry services directly or by contract in accordance with Occupational Safety and Health Association's standards 29 Code of Federal Regulations, Subpart Z. Bloodborne Pathogens.

 

(d) Policies and procedures for decontamination, disinfection, sterilization, and storage of sterile supplies. A licensed abortion facility shall have written policies covering its procedures for the decontamination and sterilization activities performed. Policies shall include, but not be limited to, the receiving, cleaning, decontaminating, disinfecting, preparing and sterilization of critical items (reusable items), as well as those for the assembly, wrapping, storage, distribution, and the monitoring and control of sterile items and equipment.

  (1) Supervision. The decontamination, disinfection, and sterilization of all supplies and equipment shall be under the supervision of a person qualified by education, training, or experience.

  (2) Quantity of sterile surgical instruments. The facility shall ensure that surgical instruments are sufficient in number to permit sterilization of the instrument(s) used for each procedure and adequate to perform conventional cervical dilatation and curettage.

  (3) Inspection of surgical instruments.

    (A) All instruments shall undergo inspection before being packaged for reuse or storage. Routine inspection of instruments shall be made to assure clean locks, crevices, and serrations.

    (B) Inspection procedures shall be thorough and include visual and manual inspection for condition and function.

      (i) Cutting edges shall be checked for sharpness; tips shall be properly aligned, and box locks shall be clean and free from buildup of soap, detergent, dried blood, or tissue.

      (ii) There shall be no evident cracks or fissures in the box locks, and the hinges shall work freely.

      (iii) Ratchets shall hold and be routinely tested.

      (iv) There shall be no corrosion or pitting of the finish.

    (C) Instruments needing maintenance shall be taken out of service and repaired by someone qualified to repair surgical instruments.

    (D) To protect the instrument and its protective finish, impact markers or electric engravers shall not be used for instrument identification. Instrument identification shall be accomplished by the instrument manufacturer, employing methods which will not damage the instrument or its protective finish.

  (4) Items to be disinfected and sterilized.

    (A) Critical items.

      (i) Critical items include all surgical instruments and objects that are introduced directly into the bloodstream or into other normally sterile areas of the body and must be sterilized in accordance with this subsection.

      (ii) All items that come in contact with the sterile field during the operative procedure must be sterile.

    (B) Semicritical items.

      (i) Semicritical items include items that come in contact with nonintact skin or mucous membranes. Semicritical items shall be free of microorganisms, except bacterial spores. Semicritical items may include respiratory therapy equipment, anesthesia equipment, bronchoscopes, and thermometers.

      (ii) High-level disinfection shall be used for semicritical items.

    (C) Noncritical items.

      (i) Noncritical items include items that come in contact with intact skin.

      (ii) Intermediate-level or low-level disinfection shall be used for noncritical items.

  (5) Equipment and sterilization procedures. Effective sterilization of instruments depends on performing correct methods of cleaning, packaging, arrangement of items in the sterilizer, and storage. The following procedures shall be included in the written policies as required in this paragraph to provide effective sterilization measures.

    (A) Equipment. A licensed abortion facility shall provide sterilization equipment adequate to meet the requirements of this paragraph for sterilization of critical items. Equipment shall be maintained and operated to perform, with accuracy, the sterilization of critical items.

    (B) Environmental requirements. Where cleaning, preparation, and sterilization functions are performed in the same room or unit, the physical facilities, equipment, and the written policies and procedures for their use shall be such as to effectively separate soiled or contaminated supplies and equipment from the clean or sterilized supplies and equipment.

      (i) A facility shall have a sink for hand washing. This sink shall not be used for cleaning instruments or disposal of liquid waste.

      (ii) A facility shall have a separate sink for cleaning instruments and disposal of liquid waste. Hand washing shall only be performed at this sink after it has been disinfected.

    (C) Preparation for sterilization.

      (i) All items to be sterilized shall be prepared to reduce the bioburden. All items shall be thoroughly cleaned, decontaminated and prepared in a clean, controlled environment. Cleaning is the removal of all adherent visible soil from the surfaces, crevices, joints, and lumens of instruments. Decontamination is the physical/chemical process that renders an inanimate object safe for further handling.

      (ii) One of the following methods of cleaning and decontamination shall be used as appropriate.

        (I) Manual cleaning. Manual cleaning of instruments at the sink is permitted.

        (II) Ultrasonic cleaning. Ultrasonic cleaning of instruments cleans by cavitation and reduces the need for hand scrubbing. When grossly soiled items are placed in the ultrasonic cleaner the water must be changed more than once a shift. If using this method for cleaning, chambers shall be covered to prevent potential hazards to personnel from aerosolization of the contents.

        (III) Washer-sterilizers. Washer-sterilizers clean by using rotating spray arms to create water jets that clean by impingement and appropriate soap and disinfectant. These machines must reach a temperature of 140 degrees Celsius (285 degrees Fahrenheit).

        (IV) Washer-decontaminator machines. Washer-decontaminator machines clean by numerous water jets and a high-pH of detergent even if instruments are grossly soiled. The thorough cleaning is followed by a neutralizing rinse to quickly restore the pH to neutral.

      (iii) All articles to be sterilized shall be arranged so all surfaces will be directly exposed to the sterilizing agent for the prescribed time and temperature.

    (D) Packaging.

      (i) All wrapped articles to be sterilized shall be packaged in materials recommended for the specific type of sterilizer and material to be sterilized, and to provide an effective barrier to microorganisms. Acceptable packaging includes peel pouches, perforated metal trays, or rigid trays. Muslin packs must be limited in size to 12 inches by 12 inches by 20 inches with a maximum weight of 12 pounds. Wrapped instrument trays must not exceed 17 pounds.

      (ii) All items shall be labeled for each sterilizer load as to the date and time of sterilization, the sterilizing load number, and the autoclave.

    (E) External chemical indicators.

      (i) External chemical indicators, also known as sterilization process indicators, shall be used on each package to be sterilized, including items being flash sterilized to indicate that items have been exposed to the sterilization process.

      (ii) The indicator results shall be interpreted according to the manufacturers' written instructions and indicator reaction specifications.

    (F) Biological indicators.

      (i) The efficacy of the sterilizing process shall be monitored with reliable biological indicators appropriate for the type of sterilizer used (e.g., Bacillus stearothermophilus for steam sterilizers).

      (ii) Biological indicators shall be included in at least one run each day of use for steam sterilizers.

      (iii) A log shall be maintained with the load identification, biological indicator results, and identification of the contents of the load.

      (iv) If a test is positive, the sterilizer shall immediately be taken out of service. A malfunctioning sterilizer shall not be put back into use until it has been serviced and successfully tested according to the manufacturer's recommendations.

      (v) All available items shall be recalled and reprocessed if a sterilizer malfunction is found. A list of all items which were used after the last negative biological indicator test shall be submitted to the administrator.

    (G) Sterilizers.

      (i) Steam sterilizers (saturated steam under pressure) shall be utilized for sterilization of heat and moisture stable items. Steam sterilizers shall be used according to manufacturer's written instructions.

      (ii) Other sterilizers shall be used in accordance with the manufacturer's instructions.

    (H) Maintenance of sterility.

      (i) Items that are properly packaged and sterilized will remain sterile indefinitely unless the package becomes wet or torn, has a broken seal, is damaged in some way, or is suspected of being compromised.

      (ii) Medication or materials within a package that deteriorate with the passage of time, shall be dated according to the manufacturer's recommendations.

 
 

(iii) All packages must be inspected before use. If a package is torn, wet, discolored, has a broken seal, or is damaged, the item may not be used. The item must be returned to sterile processing for reprocessing.

    (I) Commercially packaged items. Commercially packaged items are considered sterile according to the manufacturer's instructions.

    (J) Storage of sterilized items. The loss of sterility is event-related, not time related. The facility shall ensure proper storage and handling of items in a manner that does not compromise the packaging of the product.

      (i) Sterilized items shall be transported so as to maintain cleanliness and sterility and to prevent physical damage.

      (ii) Sterilized items shall be stored in well-ventilated, limited access areas with controlled temperature and humidity.

      (iii) Sterilized items shall be positioned so that the packaging is not crushed, bent, compressed, or punctured so that their sterility is not compromised.

      (iv) Storage of supplies shall be in areas that are designated for storage.

    (K) Disinfection.

      (i) The manufacturer's written instructions for the use of disinfectants shall be followed.

      (ii) An expiration date, determined according to manufacturer's written recommendations, shall be marked on the container of disinfection solution currently in use.

      (iii) Disinfectant solutions shall be kept covered and used in well ventilated areas.

    (L) Performance records.

      (i) Performance records for all sterilizers shall be maintained for each cycle. These records shall be retained and available for review for a minimum of two years.

      (ii) Each sterilizer shall be monitored during operation for pressure, temperature, and time at desired temperature and pressure. A record shall be maintained either manually or machine generated and shall include:

        (I) the sterilizer identification;

        (II) sterilization date and time;

        (III) load number;

        (IV) duration and temperature of exposure phase (if not provided on sterilizer recording charts);

        (V) identification of operator(s);

        (VI) results of biological tests and dates performed; and

        (VII) time-temperature recording charts from each sterilizer (if not provided on sterilizer recording charts).

    (M) Preventive maintenance. Preventive maintenance of all sterilizers shall be performed according to individual policy on a scheduled basis by qualified personnel, using the sterilizer manufacturer's service manual as a reference. A preventive maintenance record shall be maintained for each sterilizer. These records shall be retained at least two years and shall be available for review to the facility within two hours of request by the department.
 

RULE 139.50

Disclosure Requirements

 


 

(a) At the time of a woman's initial consultation with a licensed abortion facility, the facility shall comply with the following.

  (1) Provide the woman with a written statement indicating the number of the toll-free telephone line which is maintained by the department to provide specific information relating to licensed abortion facilities in Texas. The statement shall be in accordance with 139.6 of this title (relating to Public Information; Toll-free Telephone Number).

  (2) Provide the woman with a written statement identifying the department as the responsible agency for facility complaint investigations. The statement shall inform persons to register complaints with the Director, Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. Complaints must be registered with the department in writing. A complainant must provide his/her name. All complaints shall be confidential.

  (3) Provide the woman with a copy of the department's "A Woman's Right to Know" booklet created for women seeking an abortion, if the woman chooses to view it.

  (4) Provide the woman with a copy of the department's "A Woman's Right to Know" resource directory (required by Health and Safety Code, 171.015), if the woman chooses to view it.

  (5) Inform the woman of her option to view the department's "A Woman's Right to Know" booklet and resource directory on the world wide web and provide her with the internet address for obtaining the information.

  (6) Provide the woman with a written statement that she may call the department at (888) 973-0022 if the facility does not provide her with the information required in paragraphs (3) and (4) of this subsection.

 

(b) The facility shall ensure that the woman has been provided with all information required for voluntary and informed consent, as mandated by HSC, 171.012(a)(1)-(2) at least 24 hours prior to the abortion procedure.

 

(c) The facility shall initiate a clinical record for the woman at the time of the initial consultation. The following information pertaining to disclosure, as described in this section, must be documented in the clinical record:

  (1) the date and time of the initial consultation;

  (2) the method by the which the information required under subsections (a) and (b) of this section was provided; and

  (3) the name and title of individual(s) who provided or verified the information required under subsections (a) and (b) of this section.

 

RULE 139.51

Patient Rights at the Facility

 


 

A licensed abortion facility shall ensure that all patients:

  (1) be allowed to make her own choice and self-determination;

  (2) are ensured the right to personal privacy and confidentiality of her choices and decisions;

  (3) are ensured the right to voluntary and informed consent as defined in Health and Safety Code (HSC), 171.012, without paying a fee for the informational materials;

  (4) are ensured individual counseling concerning private medical information and to be given a private opportunity to ask questions;

  (5) be allowed to view their medical record, including the sonogram, if one has been performed, at any time as provided by law;

  (6) have access to care and treatment consistent with available resources and generally accepted standards regardless of race, creed, and national origin;

  (7) are allowed to ask additional questions after giving consent and to withdraw consent while still medically safe to do so;

  (8) are provided freedom from abuse, neglect, or exploitation as those terms are defined in 1.204 of this title (relating to Abuse, Neglect, or Exploitation Defined); and

  (9) be allowed to review the department's informational materials as described in HSC, 171.014 and 171.015.

 

RULE 139.52

Patient Education/Information Services

 


 

(a) A licensed abortion facility shall ensure patient education/information services are provided to each patient to:

  (1) ensure compliance with Health and Safety Code, 171.011 and 171.012, concerning informed consent by utilizing the department's certification form, signed by the woman prior to an abortion procedure, and maintained in the patient's clinical record;

Attached Graphic

  (2) prepare the patient for surgery in a manner that facilitates her safety and comfort;

  (3) assist the patient in reaching a decision about the method of post-procedure birth control she will use, if any, and respect her choices; and

  (4) ensure, when medically appropriate, the patient is advised of the physician's obligation to take all reasonable steps to maintain the life and health of a child who is born alive.

 

(b) A licensed abortion facility shall, if needed, refer a patient to a licensed mental health practitioner who provides therapeutic intervention.

 

RULE 139.53

Medical and Clinical Services

 


 

(a) Surgical abortion.

  (1) The medical consultant shall be responsible for implementing and supervising the medical and clinical policies of the facility.

  (2) All medical and clinical services of the facility, with the exception of the abortion procedure, must be provided under the direction of a physician or registered nurse who assumes responsibility for the clinical employees' performance in the facility.

  (3) A licensed abortion facility must ensure that a surgical consent form is signed by the patient prior to the procedure being started, that the patient is informed of the risks and the benefits of the procedure, and that the patient recognizes the alternatives to abortion. Informed consent shall be in accordance with rules adopted by the Texas Medical Disclosure Panel under 601.2 of this title (relating to Procedures Requiring Full Disclosure--List A), 601.4 of this title (relating to Disclosure and Consent Form), and Health and Safety Code (HSC), 171.011 (relating to Informed Consent Required), and 171.012 (relating to Voluntary Informed Consent).

  (4) A licensed abortion facility shall ensure that the attending physician has obtained and documented a preoperative history, physical exam, and laboratory studies, including verification of pregnancy.

  (5) A licensed abortion facility shall ensure that:

    (A) the attending physician examines each patient immediately prior to surgery to evaluate the risk to the procedure; and

    (B) the person administering the anesthetic agent(s) examines the patient immediately prior to surgery to evaluate the risk of anesthesia.

  (6) The administration of anesthesia must be in accordance with 139.59 of this title (relating to Anesthesia Services).

  (7) An abortion shall be performed only by a physician.

  (8) A physician, midlevel provider, registered nurse, or licensed vocational nurse must be in the facility whenever there is a patient in the procedure room or recovery room. While a patient is in the procedure room or recovery room she shall not be left unattended.

  (9) The recovery room(s) at the facility must be supervised by a physician, midlevel provider, or registered nurse. This supervisor must be available for recovery room staff within a recommended 10 minutes with a maximum required 15 minutes while any patient is in the recovery room.

  (10) A physician shall be available for the facility while any patient is in the recovery room within a recommended 10 minutes and a maximum required 15 minutes.

  (11) The facility must ensure that a patient is fully reactive and her vital signs are stable before discharging the patient from the facility upon written order by the attending physician.

  (12) All fetal tissue must be examined grossly at the time of the procedure. In the absence of visible fetal parts or placenta, the tissue may be examined by magnification for the detection of villi. If this examination is inconclusive, the tissue shall be sent to a pathology lab. The results of the tissue examination shall be recorded in the patient's clinical record.

  (13) A facility shall meet the requirements set forth by the department in 1.131-1.137 of this title (relating to Definition, Treatment, and Disposition of Special Waste from Health Care Related Facilities).

 

(b) Medical abortion.

  (1) The medical consultant shall be responsible for implementing and supervising the medical and clinical policies of the facility.

  (2) All medical and clinical services of the facility, with the exception of the abortion procedure, must be provided under the direction of a physician or registered nurse who assumes responsibility for the clinical employees' performance in the facility.

  (3) A licensed abortion facility shall ensure:

    (A) the physician(s) providing medical abortion is able to accurately date a pregnancy;

    (B) the physician(s) is able to determine that the pregnancy is not an ectopic gestation;

    (C) the physician(s) is able to provide surgical intervention or provide for the patient to receive a surgical abortion if necessary; and

    (D) patients have access to medical facilities equipped to provide blood transfusion and patient resuscitation, if necessary.

  (4) A licensed abortion facility shall ensure follow-up examination and services are provided to patients requesting medical abortion.

  (5) A licensed abortion facility shall ensure that the attending physician has obtained and documented a pre-procedure history, physical exam, and laboratory studies, including verification of pregnancy.

  (6) A licensed abortion facility shall ensure:

    (A) written consent is obtained from the patient prior to the commencement of the abortion procedure;

    (B) the patient is informed of the risks and benefits of the procedure;

    (C) the patient is informed of the possibility that a surgical abortion may be required;

    (D) the patient is informed of the alternatives to abortion; and

    (E) informed consent is in accordance with rules adopted by the Texas Medical Disclosure Panel under 601.2 of this title (relating to Procedures Requiring Full Disclosure--List A), 601.4 of this title (relating to Disclosure and Consent Form), and HSC, 171.011 (relating to Informed Consent Required), and 171.012 (relating to Voluntary Informed Consent).

  (7) A licensed abortion facility shall provide the patient with written discharge instructions including a direct referral to a physician who will accept the patient for surgical abortion.

 

RULE 139.54

Health Care Services

 


 

(a) Definition. For the purposes of this section, the term "health care professional" includes:

  (1) a physician;

  (2) midlevel providers;

  (3) a registered nurse;

  (4) a licensed vocational nurse; or

  (5) licensed mental health practitioner.

 

(b) Nursing services.

  (1) A licensed abortion facility must ensure that its licensed health care professionals practice within the scope of their practice and within the constraints of applicable state laws and regulations governing their practice and must follow the facility's written policies and procedures.

  (2) A licensed abortion facility must ensure that licensed vocational nurses (LVNs) have been instructed and have demonstrated competence in the technique for administering intravenous fluids or medications and extracting blood for laboratory tests if allowing LVNs to perform such tasks.

  (3) A licensed abortion facility may allow an LVN, whose formal training does not include venipuncture procedures, to perform such procedure if a physician, midlevel provider, or registered nurse (RN) documents that the LVN (by name) has received instruction in the performance of venipuncture and is qualified to perform such procedure.

  (4) A licensed abortion facility may allow physicians to train non-licensed personnel, age 18 years or above, to extract blood for laboratory testing and to administer intravenous fluids.

 

(c) Student health care professionals. If the facility has a contract or agreement with an accredited school of health care to use their facility for a portion of the students' clinical experience, those students may provide care under the following conditions.

  (1) Students may be used in facilities, provided the instructor gives class supervision and assumes responsibility for all student activities occurring within the facility. If the student is licensed, such as a licensed vocational nurse attending a registered nurse program for licensure as a registered nurse, the facility shall ensure that the administration of any medication(s) is within the student's licensed scope of practice.

  (2) All instruction must be provided by the school's instructor or his or her designee.

  (3) A student may administer medications only if:

    (A) on assignment as a student of their school of health care; and

    (B) the instructor is on the premises and directly supervises the administration of medication by an unlicensed student and the administration of such medication is within the instructor's licensed scope of practice.

  (4) Students shall not be used to fulfill the requirement for administration of medications by licensed personnel.

  (5) Students shall not be considered when determining staffing needs required by the facility

 

RULE 139.55

Clinical Records

 


 

(a) A licensed abortion facility shall maintain a daily patient roster of all patients receiving abortion services. This daily patient roster shall be retained for a period of five years.

 

(b) A licensed abortion facility shall establish and maintain a clinical record for each patient. A licensed abortion facility shall maintain the record to assure that the care and services provided to each patient is completely and accurately documented, readily, and systematically organized to facilitate the compilation and retrieval of information. Information required for the annual abortion report shall be readily retrievable from the clinical record.

  (1) The facility shall have written procedures which are adopted, implemented, and enforced regarding the removal of records and the release of information. A facility shall not release any portion of a patient record to anyone other than the patient except as allowed by law.

  (2) All information regarding the care and services shall be centralized in the record and be protected against loss or damage and unofficial use.

  (3) The facility shall establish an area for patient record storage. The patient records must be retrievable within two hours by the facility for patients whose date of the last visit is less than twelve months. For patients whose date of the last visit is greater than twelve months, records must be retrievable within ten days.

  (4) The facility shall ensure that each record is treated with confidentiality.

  (5) The clinical record shall be an original, a microfilmed copy, an optical disc imaging system, or a certified copy. An original record includes manually signed paper records or electronically signed computer records. Computerized records shall meet all requirements of paper records including protection from unofficial use and retention for the period specified in subsection (d) of this section. Systems shall assure that entries regarding the delivery of care or services are not altered without evidence and explanation of such alteration.

  (6) A facility shall maintain clinical records in their original state. Each entry shall be accurate, dated with the date of entry, and signed by the individual making the entry. Correction fluid or tape shall not be used in the record. Corrections shall be made by striking through the error with a single line and shall include the date the correction was made and the initials of the person making the correction.

  (7) Inactive patient records may be preserved and stored on microfilm, optical disc or other electronic means. Security shall be maintained and the record must be retrievable within ten days by the facility.

 

(c) The clinical record shall contain:

  (1) patient identifying information;

  (2) name of physician;

  (3) diagnosis;

  (4) history and physical;

  (5) laboratory reports;

  (6) report of gross and/or microscopic examination of tissue obtained during a surgical abortion;

  (7) allergies/drug reactions;

  (8) physician's orders;

  (9) progress notes to include at a minimum, notations of vital signs; signs and symptoms; response to medication(s) and treatment(s); and any changes in physical or emotional condition(s). These notations shall be written, dated, and signed by the individual(s) delivering patient care no later than 10 days from the day the patient is discharged from the facility;

  (10) education/information and referral notes;

  (11) signed patient consent form;

  (12) medication administration records. Notations of all pharmaceutical agents shall include the time and date administered, the name of the individual administering the agent, and the signature of the person making the notation if different than the individual administering the agent;

  (13) condition on discharge;

  (14) the medical examination or written referral, if obtained;

  (15) physician documentation of viability or nonviability of fetus(es) at a gestational age greater than 26 weeks; and

  (16) for patients receiving moderate sedation/analgesia or deep sedation/analgesia:

    (A) a minimum of blood pressure, pulse, and respirations shall be obtained and recorded before sedation, during sedation, during the procedure, during the initial recovery period, and before discharge from the facility; and

    (B) the patient's blood oxygenation shall be assessed and recorded, a minimum of at the time of sedation, during the procedure, and after the procedure.

 

(d) A licensed abortion facility shall retain clinical records for adults for seven years from the time of discharge and clinical records for minors for five years past the age the patient reaches majority.

 

(e) A licensed abortion facility may not destroy patient records that relate to any matter that is involved in litigation if the facility knows the litigation has not been finally resolved.

 

(f) If a licensed abortion facility closes, there shall be an arrangement for the preservation of inactive records to ensure compliance with this section. The facility shall send the department written notification of the reason for closure, the location of the patient records and the name and address of the patient record custodian. If a facility closes with an active patient roster, a copy of the active patient record shall be transferred with the patient to the receiving facility or other health care facility in order to assure continuity of care and services to the patient.

 

RULE 139.56

Emergency Services

 


 

(a) A licensed abortion facility must have a readily accessible written protocol for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital. The facility shall ensure that the physicians who practice at the facility have admitting privileges or have a working arrangement with a physician(s) who has admitting privileges at a local hospital in order to ensure the necessary back-up for medical complications.

 

(b) The facility must have the necessary equipment and personnel for cardiopulmonary resuscitation as described in 139.59 of this title (relating to Anesthesia Services).

 

(c) Personnel providing direct patient care shall be currently certified in basic life support by the American Heart Association or the American Red Cross, or in accordance with their individual professional licensure requirements, and if required in their job description or job responsibilities.

 

RULE 139.57

Discharge and Follow-up Referrals

 


 

(a) A licensed abortion facility shall develop and implement written discharge instructions which shall include:

  (1) a list of complications (developed by the facility in conjunction with a physician who practices in the facility) that warrant the patient contacting the facility, which shall include, but not be limited to:

    (A) pain;

    (B) fever; and

    (C) bleeding;

  (2) a statement of the facility's plan to respond to the patient in the event the patient experiences any of the complications listed in the discharge instructions to include:

    (A) the mechanism by which the patient may contact the facility on a 24 hour basis by telephone answering machine or service or by direct contact with an individual;

    (B) the facility's requirement that every reasonable effort be made and documented to respond to the patient within 30 minutes of the patient's call;

    (C) assurance that the responding individual shall be a physician, physician extender, registered nurse, or licensed vocational nurse; and

    (D) information that the patient may also contact the emergency medical service or present for care at the emergency room of a hospital in addition to contacting the facility; and

  (3) information concerning the need for a post-abortion examination.

 

(b) A facility shall provide a patient with a copy of the written discharge instructions described in subsection (a) of this section.

 

(c) The facility shall develop and implement written policies and procedures for:

  (1) examination or referral of all patients who report complications, as identified in the list required by subsection (a)(1) of this section, to the facility after an abortion procedure. The written policy and procedure shall require:

    (A) the facility to maintain a written system of documentation of patients who report post-abortion complications within 14 days of the procedure date;

    (B) documentation of the facility's action following a patient's reporting of post-abortion complications to be placed in the patient's record; and

    (C) the patients' records to be maintained for adults for seven years and for minors five years past the age the patient reaches majority; and

  (2) periodic review of the record keeping system for post-abortion complications to identify problems and potential problems and to make changes in order to resolve the problems.

 

RULE 139.58

Reporting Requirements

 


 

A licensed abortion facility shall report a woman's death if it results from a complication(s) of an abortion. The report shall be made by phone or fax within one business day after the facility is notified of the death to the director of Health Facility Licensing and Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, Telephone (512) 834-6646, or Fax (512) 834-4514 or (512) 834-6709.

 

RULE 139.59

Anesthesia Services

 


 

(a) Organization of anesthesia services. The organization of anesthesia services shall be appropriate to the scope of the services offered.

 

(b) General. A licensed abortion facility may provide various levels of sedation/analgesia and/or general anesthess.

  (1) Minimal sedation (anxiolysis)--A drug-induced state during which patients respond normally to verbal commands. Although cognitive function and coordination may be impaired, ventilatory and cardiovascular functions are unaffected.

  (2) Moderate sedation/analgesia ("conscious sedation")--A drug-induced depression of consciousness during which patients respond purposefully (reflex withdrawal from a painful stimulus is NOT considered a purposeful response) to verbal commands, either alone or accompanied by light tactile stimulation. No interventions are required to maintain a patent airway, and spontaneous ventilation is adequate. Cardiovascular function is usually maintained.

  (3) Deep sedation/analgesia--A drug-induced depression of consciousness during which patients cannot be easily aroused but respond purposefully following repeated or painful stimulation. The ability to independently maintain ventilatory function may be impaired. Patients may require assistance in maintaining a patent airway, and spontaneous ventilation may be inadequate. Cardiovascular function is usually maintained.

  (4) General anesthesia--A drug-induced loss of consciousness during which patients are not arousable, even by painful stimulation. The ability to independently maintain ventilatory function is often impaired. Patients often require assistance in maintaining a patent airway, and positive pressure ventilation may be required because of depressed spontaneous ventilation or drug-induced depression of neuromuscular function. Cardiovascular function may be impaired.

 

(d) Minimum staffing for the management of the various levels of sedation/analgesia.

  (1) Minimal sedation (anxiolysis). The minimum staffing required for administering minimal sedation (anxiolysis) and local anesthetic shall include the physician and sufficient support staff to perform the procedure.

  (2) Moderate sedation/analgesia ("conscious sedation").

    (A) The minimum staffing required for administering moderate sedation/analgesia ("conscious sedation") shall always include a minimum of:

      (i) a physician, trained and experienced in the use of moderate sedation/analgesia ("conscious sedation"), airway management and resuscitation to manage the care of the patient; and

      (ii) one trained, competent clinic staff person to monitor the patient at all times in the procedure and recovery room.

    (B) The medical or nursing staff managing the anesthesia care of the patient under moderate sedation/analgesia ("conscious sedation") shall have no other responsibilities that would leave the patient unattended or compromise continuous monitoring.

  (3) Deep sedation/analgesia.

    (A) The minimum staffing during deep sedation/analgesia shall be in accordance with subsection (h) of this section.

    (B) The person qualified and performing the administration of deep sedation/analgesia may not be the physician performing the procedure.

  (4) General anesthesia.

    (A) The minimum staffing during general anesthesia shall be in accordance with subsection (i) of this section.

    (B) The person qualified and performing the administration of general anesthesia may not be the physician performing the procedure.

 

(e) Minimum training and knowledge.

  (1) Minimal sedation (anxiolysis). All staff members managing the care of a patient under minimal sedation (anxiolysis) shall be certified in basic life support (BLS) with bi-annual recertification.

  (2) Moderate sedation/analgesia ("conscious sedation").

    (A) The medical or nursing staff managing the care of a patient receiving moderate sedation/analgesia ("conscious sedation") shall at a minimum have the following:

      (i) training in BLS with bi-annual recertification;

      (ii) annual training in the recognition of the cardiovascular and respiratory side effects of sedatives, as well as the variability of patient response; and

      (iii) current knowledge of emergency supplies and equipment inventory and their use.

    (B) The physician, physician extender, or nurse administering the medications shall know the pharmacology of the medications administered.

  (3) Deep sedation/analgesia. The minimum training and knowledge required for providing deep sedation shall be in accordance with subsection (h) of this section.

  (4) General anesthesia. The minimum training and knowledge required for providing general anesthesia shall be in accordance with subsection (i) of this section.

 

(f) Clinical and equipment standards for minimal sedation (anxiolysis) and local anesthetic. For licensed facilities administering minimal sedation (anxiolysis) or local anesthetic, the facility must have at a minimum, the following emergency equipment for local anesthetic and/or light sedation management:

  (1) oxygen;

  (2) mechanical ventilatory assistance equipment that includes airways and manual breathing bag;

  (3) the ability to monitor blood pressure;

  (4) emergency drugs as specified by the physician(s) on staff; and

  (5) functioning oral suction machine apparatus.

 

(g) Procedure room requirements for moderate sedation/analgesia ("conscious sedation") and deep sedation/analgesia.

  (1) Moderate sedation/analgesia ("conscious sedation"). The minimum standards for the procedure room(s) where moderate sedation/analgesia ("conscious sedation") is administered are as follows.

    (A) The facility shall have the capability of monitoring blood pressure and oxygen saturation as well as a functioning oral suction machine apparatus.

    (B) All patients receiving moderate sedation/analgesia ("conscious sedation") shall have a functional intravenous access in place. A functional intravenous access shall be placed in a patient's vein prior to the procedure and maintained until the patient has recovered from the effects of sedation as determined by the person administering the sedation or the physician performing the procedure.

    (C) Emergency supplies and equipment shall be readily accessible and shall include the necessary drugs and equipment to resuscitate a non-breathing and unconscious patient. There shall be documentation that all emergency equipment and drugs are checked and maintained on a scheduled basis.

    (D) Pharmacological antagonist medications and staff trained to administer these medications shall be readily available.

  (2) Deep sedation/analgesia. The minimum standards for the procedure room where deep sedation/analgesia is administered shall be in accordance with subsection (h) of this section.

  (3) General anesthesia. The minimum standards for the procedure room where general anesthesia is administered shall be in accordance with subsection (i) of this section.

 

(h) Standards for administering deep sedation/analgesia.

  (1) A licensed abortion facility which provides deep sedation/analgesia shall provide professional staff; equipment for the administration (of deep sedation/analgesia); a post anesthesia care area; monitoring equipment for procedure room and post anesthesia recovery area sufficient for the provision of deep sedation/analgesia in accordance with the following American Society for Anesthesiologists standards and guidelines:

    (A) Practice Guidelines for Sedation and Analgesia by Non-Anesthesiologists, dated April 2002;

    (B) Standards, Guidelines, and Statements, dated October 2002, specifically:

      (i) Basic Anesthetic Monitoring, dated October 21, 1986, as amended October 21, 1998; and

      (ii) Standards for Post-Anesthesia Care, dated October 12, 1988, as amended October 19, 1994.

  (2) If the provisions contained in the guidelines listed in paragraph (1) of this subsection conflict with this section, the provisions of this section supersede.

  (3) Copies of the standards and guidelines are available for review at the Texas Department of Health, Health Facility Licensing and Compliance Division, Exchange Building, 8407 Wall Street, Austin, Texas 78754. Copies may also be obtained by writing the American Society of the Anesthesiologists, 520 North West Highway, Park Ridge, Illinois 60068-2573; Internet www.ASAhq.org; or by telephone at (847) 825-5586.

 

(i) Standards for administering general anesthesia.

  (1) A licensed abortion facility which provides general anesthesia shall provide professional staff; equipment for the administration of general anesthesia; a post anesthesia care area; and monitoring equipment for procedure room and post anesthesia recovery area sufficient for the provision of general anesthesia. General anesthesia shall be provided in accordance with the following American Society for Anesthesiologists standards and guidelines: American Society of Anesthesiologists Standards, Guidelines, and Statements, dated October 2002, specifically:

    (A) Guidelines for Office-Based Anesthesia, dated October 13, 1999;

    (B) Basic Standards for Pre-anesthesia Care, dated October 14, 1987;

    (C) Basic Anesthetic Monitoring, dated October 21, 1986, as amended October 21, 1998;

    (D) Standards for Post-Anesthesia Care, dated October 12, 1988, as amended October 19, 1994; and

    (E) Guidelines for Ambulatory Anesthesia and Surgery, dated October 11, 1997, as amended October 21, 1998.

  (2) If the provisions contained in the guidelines listed in paragraph (1) of this subsection conflict with this section, the provisions of this section supersede.

 

RULE 139.60

Other State and Federal Compliance Requirements

 


 

(a) A licensed abortion facility must be in compliance with all state and federal laws pertaining to handling of drugs.

 

(b) A licensed abortion facility that provides laboratory services shall meet the Clinical Laboratory Improvement Amendments of 1988, 42 United States Code, 263a, Certification of Laboratories (CLIA 1988). CLIA 1988 applies to all facilities with laboratories that examine human specimens for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings.

 

(c) A licensed abortion facility shall ensure that its physicians comply with the Medical Practice Act, Texas Occupations Code, Chapters 151-165, while functioning in his or her capacity at or for the facility.

 

(d) A licensed abortion facility utilizing the services of a physician assistant(s) shall ensure that its physicians assistants comply with the Physician Assistant Licensing Act, Texas Occupations Code, Chapter 204, while functioning in his or her capacity at or for the facility.

 

(e) A licensed abortion facility utilizing the services of a registered nurse shall ensure that its registered nurses comply with the Nursing Practice Act, Texas Occupations Code, Chapters 301 and 304, while functioning in his or her capacity at or for the facility.

 

(f) A licensed abortion facility utilizing the services of a licensed vocational nurse(s) shall ensure that its vocational nurse(s) comply with the Board of Vocational Nurse Examiners rules Texas Occupations Code, Chapter 302, while functioning in his or her capacity at or for the facility.

 

(g) A licensed abortion facility that provides pharmacy services shall obtain a license as a pharmacy if required by the Texas Pharmacy Act, Texas Occupations Code, Chapters 551-569.

 

(h) A licensed abortion facility shall comply with the following federal Occupation Safety and Health Administration requirements:

  (1) 29 Code of Federal Regulations, Subpart E, 1910.38, concerning employee emergency plans and fire prevention plans;

  (2) 29 Code of Federal Regulations, Subpart I, 1910.132, concerning general requirements for personal protective equipment;

  (3) 29 Code of Federal Regulations, Subpart I, 1910.133, concerning eye and face protection;

  (4) 29 Code of Federal Regulations, Subpart I, 1910.138, concerning hand protection;

  (5) 29 Code of Federal Regulations, Subpart L, 1910.157, concerning portable fire extinguishers;

  (6) 29 Code of Federal Regulations, Subpart Z, 1910.1030, concerning blood borne pathogens;

  (7) 29 Code of Federal Regulations, Subpart Z, 1910.1200, Appendices A-E, concerning hazard communication (hazardous use of chemicals); and

  (8) 29 Code of Federal Regulations, Subpart K, 1910.151, concerning medical services and first aid.

 

(i) A licensed abortion facility shall not use adulterated or misbranded drugs or devices in violation of the Health and Safety Code, 431.021. Adulterated drugs and devices are described in Health and Safety Code, 431.111. Misbranded drugs or devices are described in Health and Safety Code, 431.112.

 

(j) A licensed abortion facility shall not commit a false, misleading, or deceptive act or practice as that term is defined in the Deceptive Trade Practices-Consumer Protection Act, Business and Commerce Code, 17.46.

 

(k) A licensed abortion facility shall comply with the requirements of the Family Code, 33.002 (relating to Parental Notice).

 

(l) A licensed abortion facility shall comply with the requirements of Health and Safety Code, Chapter 171, the Woman's Right to Know Act.

 

(m) A licensed abortion facility shall comply with the requirements of Occupations Code, Chapter 102, Solicitation of Patients.

 
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