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. * * * [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. * * * [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. * * * [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.
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[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
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[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
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ADMINISTRATION |
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MEDICAID HEALTH SERVICES |
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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.
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§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.
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HEALTH SERVICES |
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DEPARTMENT OF STATE HEALTH SERVICES |
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ABORTION FACILITY REPORTING AND LICENSING |
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RULE §139.1 |
Purpose and Scope |
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(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 (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). |
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RULE §139.2 |
Definitions |
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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-- (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 (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 (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
substitut ion 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 (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 (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. |
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RULE §139.3 |
Unlicensed Facility |
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(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. |
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RULE §139.4 |
Annual Reporting Requirements
for All Abortions Performed |
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(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, (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. |
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RULE §139.5 |
Additional Reporting
Requirements for Physicians |
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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, (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, (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. |
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RULE §139.6 |
Public Information; Toll-Free Telephone Number |
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(1) The following form is an example of the statement in English. (2) The following form is an example of the statement in Spanish.
(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. |
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RULE §139.7 |
Unique Identifying Number; Disclosure
in Advertisement |
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(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. |
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RULE §139.8 |
Quality Assurance |
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(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. |
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RULE §139.21 |
General Requirements for
Licensure |
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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 (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 (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. |
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RULE §139.22 |
Fees |
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(a) The schedule of fees for an
abortion facility license for all new, change of ownership, and renewal
applications received prior to (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 (c) Fees for two-year renewals
for an abortion facility license for all initial, change of ownership, and
renewal applications received on or after (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 (7) The annual
assessment fee must be received by the department no later than (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).
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RULE §139.23 |
Application Procedures and
Issuance of Licenses |
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(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 (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 (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 (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 (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 (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).
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RULE §139.24 |
Change of Ownership or
Services, and Closure of a Licensed Abortion Facility |
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(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. |
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RULE §139.25 |
Time Periods for Processing
and Issuing a License |
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(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 p rocessing 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. |
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RULE §139.31 |
On-site Inspections and
Complaint Investigations of a Licensed Abortion Facility |
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(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, (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. |
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RULE §139.32 |
License Denial, Suspension,
Probation, or Revocation |
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(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. |
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RULE §139.33 |
Administrative Penalties,
Injunction, Criminal Penalties, and Civil Penalties |
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(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. |
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RULE §139.41 |
Policy Development and Review |
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(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. (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. |
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RULE §139.42 |
Delegation of Authority and
Organizational Structure |
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(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). |
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RULE §139.43 |
Personnel Policies |
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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. |
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RULE §139.44 |
Orientation, Training, and
Demonstrated Competency |
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(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. |
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RULE §139.45 |
Personnel Records |
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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. |
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RULE §139.46 |
Licensed Abortion Facility
Staffing Requirements and Qualifications |
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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. &n bsp; (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). |
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RULE §139.47 |
Licensed Abortion Facility
Administration |
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(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 (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, (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. |
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RULE §139.48 |
Physical and Environmental Requirements |
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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. |
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RULE §139.49 |
Infection Control Standards |
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(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. &nb sp; (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.
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RULE §139.50 |
Disclosure Requirements |
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(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 (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, (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. |
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RULE §139.51 |
Patient Rights at the Facility |
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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. |
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RULE §139.52 |
Patient Education/Information Services |
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(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; (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. |
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RULE §139.53 |
Medical and Clinical Services |
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(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. |
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RULE §139.54 |
Health Care Services |
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(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 |
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RULE §139.55 |
Clinical Records |
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(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. |
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RULE §139.56 |
Emergency Services |
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(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. |
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RULE §139.57 |
Discharge and Follow-up
Referrals |
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(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. |
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RULE §139.58 |
Reporting Requirements |
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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, |
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RULE §139.59 |
Anesthesia Services |
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(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 (ii)
Standards for Post-Anesthesia Care, dated (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, (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 (B)
Basic Standards for Pre-anesthesia Care, dated (C)
Basic Anesthetic Monitoring, dated (D)
Standards for Post-Anesthesia Care, dated (E)
Guidelines for Ambulatory Anesthesia and Surgery, dated (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 |
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(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 (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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