HB 1666-FN – AS INTRODUCED
2010 SESSION
01/09
HOUSE BILL 1666-FN
AN ACT requiring licensing of outpatient abortion facilities.
SPONSORS: Rep. N. Elliott, Hills 19; Rep. Baldasaro, Rock 3; Rep. Hagan, Rock 7; Rep. Dumaine, Rock 3; Rep. Hogan, Hills 25; Sen. Roberge, Dist 9
COMMITTEE: Health, Human Services and Elderly Affairs
This bill requires licensing of outpatient abortion facilities with the department of health and human services.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
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STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT requiring licensing of outpatient abortion facilities.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Findings and Purposes.
I. The general court finds that:
(a) Most abortions are performed in clinics devoted solely to providing abortions and family planning services. Most women who seek abortions at these facilities do not have any relationship with the physician who performs the abortion, before or after the procedure. They do not return to the facility for postsurgical care. In most instances, the woman’s only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to ask questions about the procedure, potential complications, and proper follow-up care.
(b) “The medical, emotional, and psychological consequences of an abortion are serious and can be lasting ....” H.L. v. Matheson, 450 U.S. 398, 411 (1981).
(c) “The abortion decision is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 852 (1992).
(d) Abortion is an invasive, surgical procedure that can lead to numerous and serious medical complications. Potential complications for first trimester abortions include, among others, bleeding, hemorrhage, infection, uterine perforation, blood clots, cervical tears, incomplete abortion (retained tissue), failure to actually terminate the pregnancy, free fluid in the abdomen, acute abdomen, missed ectopic pregnancies, cardiac arrest, sepsis, respiratory arrest, reactions to anesthesia, fertility problems, emotional problems, and even death.
(e) The risks for second trimester abortions are greater than for first trimester abortions. The risk of hemorrhage, in particular, is greater, and the resultant complications may require a hysterectomy, other reparative surgery, or a blood transfusion.
(f) The state of New Hampshire has a legitimate concern for the public’s health and safety. Williamson v. Lee Optical, 348 U.S. 483, 486 (1985).
(g) The state of New Hampshire “has legitimate interests from the outset of pregnancy in protecting the health of women.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847 (1992).
(h) More specifically, the state of New Hampshire “has a legitimate concern with the health of women who undergo abortions.” Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 428-29 (1983).
(i) The state of New Hampshire has “a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient.” Roe v. Wade, 410 U.S. 113, 150 (1973).
(j) Since the Supreme Court’s decision in Roe v. Wade, courts have recognized that for the purposes of regulation, abortion services are rationally distinct from other routine medical services, because of the “particular gravitas of the moral, psychological, and familial aspects of the abortion decision.” Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 173 (4th Cir. 2000), cert. denied, 531 U.S. 1191 (2001).
(k) In adopting an array of regulations that treat the often relatively simple medical procedures of abortion more seriously than other medical procedures, the state of New Hampshire recognizes the importance of the abortion practice while yet permitting it to continue, as protected by the Supreme Court’s cases on the subject. Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 175 (4th Cir. 2000), cert. denied, 531 U.S. 1191 (2001).
II. Based on the findings in paragraph I, it is the purpose of this act to:
(a) Regulate abortion consistent with and to the extent permitted by the decisions of the Supreme Court of the United States.
(b) Provide for the protection of public health through the development, establishment, and enforcement of standards of care of individuals in abortion clinics.
2 New Chapter; Licensure of Outpatient Abortion Clinics. Amend RSA by inserting after chapter 126-S the following new chapter:
CHAPTER 126-T
LICENSURE OF OUTPATIENT ABORTION CLINICS
126-T:1 Women’s Health Protection Act. This chapter shall be known as the “women’s health protection act.”
126-T:2 Definitions. In this chapter:
I. “Abortion” means the act of using or prescribing any instrument, machine, or device with the intent to terminate a woman’s pregnancy for reasons other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, to terminate an ectopic pregnancy, or to remove a dead fetus. Abortion does not include birth control devices or oral contraceptives.
II. “Abortion clinic” means a facility, other than an accredited hospital, in which 5 or more first trimester abortions in any month or any second or third trimester abortions are performed.
III. “Commissioner” means the commissioner of the department of health and human services.
IV. “Conception” and “fertilization” each mean the fusion of the human spermatozoon with a human ovum.
V. “Department” means the department of health and human services.
VI. “Gestation” means the time that has elapsed since the first day of the woman’s last menstrual period.
VII. “Licensee” means an individual, a partnership, an association, a limited liability company, or a corporation authorized by the department to operate an abortion clinic.
VIII. “Physician” means a person licensed under RSA 329.
126-T:3 Licensure Requirements.
I. All abortion clinics shall be licensed by the department. Any existing abortion clinic shall make application for license within 90 days.
II. An application for a license shall be made to the department on forms provided by it and shall contain such information as the department reasonably requires, which may include affirmative evidence of the ability to comply with this chapter and the rules adopted pursuant to this chapter.
III. Following receipt of an application for license, the department shall issue a license if the applicant and the facility meet the requirements established by this chapter for a period of one year. A temporary or provisional license may be issued to an abortion clinic for a period of 6 months in cases where sufficient compliance with this chapter requires an extension of time, if a disapproval has not been received from any other state or local agency otherwise authorized to inspect such facilities. The failure to comply shall not be detrimental to the health and safety of the public.
IV. A license shall apply only to the location and licensee stated on the application, and such license, once issued, shall not be transferable from one place to another or from one person to another. If the location of the facility is changed, the license shall be automatically revoked. A new application form shall be completed prior to all license renewals.
V. An application for a license or renewal to operate an abortion clinic shall be accompanied by a fee of $100.
VI. A license issued under this chapter shall be for a period of one year from the date of issuance unless sooner revoked, shall be on a form prescribed by the department, and may be renewed annually upon application and payment of the license fee as in the case of procurement of the original license.
VII. The commissioner may deny, suspend, revoke, or refuse to renew a license in any case in which it finds that there has been a substantial failure of the applicant or licensee to comply with the requirements of this chapter or the rules adopted pursuant to this chapter. In such case, the commissioner shall furnish the person, applicant, or licensee 30 days’ notice specifying reasons for the action.
VIII. Any person, applicant, or licensee aggrieved by the action of the commissioner in denying, suspending, revoking, or refusing to renew a license may appeal the commissioner’s action in accordance with RSA 541.
IX. Any person, applicant, or licensee aggrieved by the action of the department may, within 30 days after notification of such action, appeal to the supreme court.
X. The department shall establish minimum standards and administrative rules for the licensing and operation of abortion clinics.
126-T:4 Inspections and Investigations.
I. The commissioner shall establish policies and procedures for conducting pre-licensure and re-licensure inspections of abortion clinics. Prior to issuing or reissuing a license, the department shall conduct an on-site inspection to ensure compliance with this chapter.
II. The commissioner shall also establish policies and procedures for conducting inspections and investigations pursuant to complaints received by the department and made against any abortion clinic. The department shall receive, record, and dispose of complaints in accordance with rules adopted pursuant to RSA 541-A.
126-T:5 Rulemaking.
I. The commissioner shall adopt rules, pursuant to RSA 541-A. At a minimum these rules shall include:
(a) Adequate private space that is specifically designated for interviewing, counseling, and medical evaluations.
(b) Dressing rooms for staff and patients.
(c) Appropriate lavatory areas.
(d) Areas for pre-procedure hand washing.
(e) Private procedure rooms.
(f) Adequate lighting and ventilation for abortion procedures.
(g) Surgical or gynecologic examination tables and other fixed equipment.
(h) Post-procedure recovery rooms that are supervised, staffed, and equipped to meet the patients’ needs.
(i) Emergency exits to accommodate a stretcher or gurney.
(j) Areas for cleaning and sterilizing instruments.
(k) Adequate areas for the secure storage of medical records and necessary equipment and supplies.
(l) The display in the abortion clinic, in a place that is conspicuous to all patients, of the clinic’s current license issued by the department.
II. The commissioner shall adopt rules, pursuant to RSA 541-A, to prescribe abortion clinic supplies and equipment standards, including supplies and equipment that are required to be immediately available for use in an emergency. At a minimum these rules shall:
(a) Prescribe required equipment and supplies, including medications, required for the conduct, in an appropriate fashion, of any abortion procedure that the medical staff of the clinic anticipates performing and for monitoring the progress of each patient throughout the procedure and recovery period.
(b) Require that the number or amount of equipment and supplies at the clinic is adequate at all times to assure sufficient quantities of clean and sterilized durable equipment and supplies to meet the needs of each patient.
(c) Prescribe required equipment, supplies, and medications that shall be available and ready for immediate use in an emergency and requirements for written protocols and procedures to be followed by staff in an emergency, such as the use of a backup generator in case of a loss of electrical power.
(d) Prescribe required equipment and supplies for required laboratory tests and requirements for protocols to calibrate and maintain laboratory equipment at the abortion clinic or operated by clinic staff
(e) Require ultrasound equipment in those facilities that provide abortions after 12 weeks’ gestation.
(f) Require that all equipment is safe for the patient and the staff, meets applicable federal standards, and is checked annually to ensure safety and appropriate calibration.
III. The commissioner shall adopt rules, pursuant to RSA 541-A, relating to abortion clinic personnel. At a minimum these rules shall require that:
(a) The abortion clinic designate a medical director of the abortion clinic who is licensed to practice medicine and surgery in the state of New Hampshire.
(b) Physicians performing surgery are licensed to practice medicine and surgery in the state of New Hampshire, demonstrate competence in the procedure involved, and are acceptable to the medical director of the abortion clinic.
(c) A physician with admitting privileges at an accredited hospital in this state is available.
(d) If a physician is not present, a registered nurse, nurse practitioner, licensed practical nurse, or physician’s assistant is present and remains at the clinic where abortions are performed to provide postoperative monitoring and care until each patient who had an abortion that day is discharged.
(e) Surgical assistants receive training in counseling, patient advocacy, and the specific responsibilities of the services the surgical assistants provide.
(f) Volunteers receive training in the specific responsibilities of the services the volunteers provide, including counseling and patient advocacy, as provided in the rules adopted by the commissioner for different types of volunteers based on their responsibilities.
IV. The commissioner shall adopt rules, pursuant to RSA 541-A, relating to the medical screening and evaluation of each abortion clinic patient. At a minimum these rules shall require:
(a) A medical history including the following:
(1) Reported allergies to medications, antiseptic solutions, or latex.
(2) Obstetric and gynecologic history.
(3) Past surgeries.
(b) A physical examination including a bimanual examination estimating uterine size and palpation of the adnexa.
(c) The appropriate laboratory tests including:
(1) For an abortion in which an ultrasound examination is not performed before the abortion procedure, urine or blood tests for pregnancy performed before the abortion procedure.
(2) A test for anemia.
(3) Rh typing, unless reliable written documentation of blood type is available.
(4) Other tests as indicated from the physical examination.
(d) An ultrasound evaluation for all patients who elect to have an abortion after 12 weeks gestation. The rules shall require that if a person who is not a physician performs an ultrasound examination, that person shall have documented evidence that the person completed a course in the operation of ultrasound equipment. The physician or other health care professional shall review, at the request of the patient, the ultrasound evaluation results with the patient before the abortion procedure is performed, including the probable gestational age of the fetus.
(e) That the physician is responsible for estimating the gestational age of the fetus based on the ultrasound examination and obstetric standards in keeping with established standards of care regarding the estimation of fetal age as defined in rule and shall write the estimate in the patient’s medical history. The physician shall keep original prints of each ultrasound examination of a patient in the patient’s medical history file.
V. The commissioner shall adopt rules, pursuant to RSA 541-A, relating to the abortion procedure. At a minimum these rules shall require:
(a) That medical personnel is available to all patients throughout the abortion procedure.
(b) Standards for the safe conduct of abortion procedures that conform to obstetric standards in keeping with established standards of care regarding the estimation of fetal age as defined in rule.
(c) Appropriate use of local anesthesia, analgesia, and sedation if ordered by the physician.
(d) The use of appropriate precautions, such as the establishment of intravenous access at least for patients undergoing second or third trimester abortions.
(e) The use of appropriate monitoring of the vital signs and other defined signs and markers of the patient’s status throughout the abortion procedure and during the recovery period until the patient’s condition is deemed to be stable in the recovery room.
VI. The commissioner shall adopt rules, pursuant to RSA 541-A, that prescribe minimum recovery room standards. At a minimum these rules shall require that:
(a) Immediate postprocedure care consists of observation in a supervised recovery room for as long as the patient’s condition warrants.
(b) The clinic arrange hospitalization if any complication beyond the management capability of the staff occurs or is suspected.
(c) A licensed health professional who is trained in the management of the recovery area and is capable of providing basic cardiopulmonary resuscitation and related emergency procedures remains on the premises of the abortion clinic until all patients are discharged.
(d) A physician with admitting privileges at an accredited hospital in this state remains on the premises of the abortion clinic until all patients are stable and are ready to leave the recovery room and to facilitate the transfer of emergency cases if hospitalization of the patient or viable fetus is necessary. A physician shall sign the discharge order and be readily accessible and available until the last patient is discharged.
(e) A physician discusses RhO(d) immune globulin with each patient for whom it is indicated and assures it is offered to the patient in the immediate postoperative period or that it will be available to her within 72 hours after completion of the abortion procedure. If the patient refuses, a refusal form approved by the department shall be signed by the patient and a witness and included in the medical record.
(f) Written instructions with regard to post abortion coitus, signs of possible problems, and general aftercare are given to each patient. Each patient shall have specific instructions regarding access to medical care for complications, including a telephone number to call for medical emergencies.
(g) There is a specified minimum length of time that a patient remains in the recovery room by type of abortion procedure and duration of gestation.
(h) The physician assures that a licensed health professional from the abortion clinic makes a good faith effort to contact the patient by telephone, with the patient’s consent, within 24 hours after surgery to assess the patient’s recovery.
(i) Equipment and services are located in the recovery room to provide appropriate emergency resuscitative and life support procedures pending the transfer of the patient or viable fetus to the hospital.
VII. The commissioner shall adopt rules, pursuant to RSA 541-A, that prescribe standards for follow-up care. At a minimum these rules shall require that:
(a) A postabortion medical visit is offered and, if requested, scheduled for 2 to 3 weeks after the abortion, including a medical examination and a review of the results of all laboratory tests.
(b) A urine pregnancy test is obtained at the time of the follow-up visit to rule out continuing pregnancy. If a continuing pregnancy is suspected, the patient shall be evaluated and a physician who performs abortions shall be consulted.
VIII. The commissioner shall adopt rules, pursuant to RSA 541-A, to prescribe minimum abortion clinic incident reporting. At a minimum these rules shall require that:
(a) The abortion clinic records each incident resulting in a patient’s or viable fetus’ serious injury occurring at an abortion clinic and shall report them in writing to the department within 10 days after the incident. For the purposes of this paragraph, “serious injury” means an injury that occurs at an abortion clinic and that creates a serious risk of substantial impairment of a major body organ.
(b) If a patient’s death occurs, other than a fetal death properly reported pursuant to law, the abortion clinic reports it to the department not later than the next department work day.
(c) Incident reports are filed with the department and appropriate professional regulatory boards.
(d) For patients receiving 3 or more abortions, it shall be assumed that there is a probability of abuse or human trafficking and the abortion clinic personnel shall report such fact to law enforcement authorities.
126-T:6 Confidentiality.
I. The department shall not release personally identifiable patient or physician information.
II. The rules adopted by the commissioner pursuant to RSA 126-T:5 shall not limit the ability of a physician or other health professional to advise a patient on any health issue.
126-T:7 Criminal Penalties.
I. Whoever operates an abortion clinic without a valid license issued by the department shall be guilty of a class A misdemeanor.
II. Any person who intentionally, knowingly, or recklessly violates this chapter or any rules adopted under this chapter shall be guilty of a class A misdemeanor.
126-T:8 Civil Penalties and Fines.
I. Any violation of this chapter or any rules adopted under this chapter may be subject to a civil penalty or fine up to $250. Each day of violation constitutes a separate violation for purposes of assessing civil penalties or fines. In deciding whether and to what extent to impose fines, the department shall consider the following factors:
(a) Gravity of the violation, including the probability that death or serious physical harm to a patient or individual will result or has resulted;
(b) Size of the population at risk as a consequence of the violation;
(c) Severity and scope of the actual or potential harm;
(d) Extent to which the provisions of the applicable statutes or regulations were violated;
(e) Any indications of good faith exercised by licensee;
(f) The duration, frequency, and relevance of any previous violations committed by the licensee; and
(g) Financial benefit to the licensee of committing or continuing the violation.
II. The department of justice may institute a legal action to enforce collection of any civil penalties or fines levied pursuant to this chapter.
126-T:9 Injunctive Remedies. In addition to any other penalty provided by law, whenever in the judgment of the commissioner, any person has engaged, or is about to engage, in any acts or practices which constitute, or will constitute, a violation of this chapter, or any rule and regulation adopted under the provision of this chapter, the commissioner shall make application to any court of competent jurisdiction for an order enjoining such acts and practices, and upon a showing by the commissioner that such person has engaged, or is about to engage, in any such acts or practices, an injunction, restraining order, or such other order as may be appropriate shall be granted by such court without bond.
126-T:10 Construction. Nothing in this chapter shall be construed as creating or recognizing a right to abortion. It is not the intention of this law to make lawful an abortion that is currently unlawful.
126-T:11 Right of Intervention. The general court, by joint resolution, may appoint one or more of its members who sponsored or cosponsored this chapter in his or her official capacity, to intervene as a matter of right in any case in which the constitutionality of this chapter is challenged.
126-T:12 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provisions or applications, and to this end the provisions of this chapter are severable.
3 Effective Date. This act shall take effect January 1, 2011.
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HB 1666-FN - FISCAL NOTE
AN ACT requiring licensing of outpatient abortion facilities.
FISCAL IMPACT:
The Department of Health and Human Services, Department of Justice, Judicial Branch, and Judicial Council state this bill may increase state revenue and expenditures, and county expenditures by an indeterminable amount in FY 2011 and each year thereafter. This bill will have no fiscal impact on local expenditures, or county and local revenue.
METHODOLOGY:
The Department of Health and Human Services (DHHS) states this bill will require the licensing of all abortion clinics. Abortion clinics would be required to pay a fee of $100 for an application for license or renewal. The term abortion clinic is defined as, “a facility, other than an accredited hospital, which 5 or more first trimester abortions in any month or any second or third trimester abortions are performed.” Abortions that are not performed in a hospital are typically performed in either outpatient clinics or physician’s offices. Although RSA 151 exempts physician’s offices from licensure, the definition contained in this bill would require certain offices to be considered abortion clinics and as such be inspected and licensed by the Department. The Department is unable to determine how many physician’s offices would fall under the proposed definition, and cannot estimate the exact fiscal impact on state revenue or expenditures at this time.
The Department of Justice states if DHHS requires assistance with rulemaking, it anticipates the process of drafting rules and creating a statewide training program would require approximately 500 hours of time of an assistant attorney general in the Civil Bureau. There would also be a fiscal impact to the Department in instances when an enforcement action taken by DHHS was appealed. The bill also authorizes DHHS to seek injunctive relief in a court, but such remedies are typically sought by the Department of Justice, not other agencies. It is not possible to determine how many cases would be generated, and therefore is not possible to project how much additional time would be needed to investigate and prosecute violations of the act. Criminal violations under this bill would be prosecuted by the county or local prosecutor. There would be some fiscal impact to the Department of Justice in instances when an appeal
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would be taken to the supreme court from a prosecution. The Department is unable to determine the exact fiscal impact at this time.
The Judicial Branch states this bill would add RSA chapter 126-T requiring the licensing of outpatient abortion clinics. Four provisions of this proposed bill have a potential fiscal impact on the Branch. These are: 1.) appeal to the supreme court of actions of the commissioner and the Department of Health and Human Services pursuant to proposed RSA 126-T:3, VIII and IX; 2.) class A misdemeanor penalties pursuant to proposed RSA 126-T:7; 3.) legal action by the attorney general to enforce collection of civil penalties and fines pursuant to proposed RSA 126-T:8, II; and 4.) petitions for injunctive relief pursuant to proposed RSA 126-T:9. Regarding appeals to the supreme court from various department decisions on the regulation of abortion clinics, the Branch has no information on how many such appeals may arise. The supreme court has discretionary review of such appeals; therefore, a variable is whether the court accepts the appeal for full appellate review, accepts it for more limited review, or declines the appeal. Such appeals are too speculative to arrive at a conclusion regarding fiscal impact. The second potential for fiscal impact is in the criminal penalties of proposed RSA 126-T:8, which provides for class A misdemeanors for operating an abortion clinic without a license and for violating RSA chapter 126-T or any rules adopted pursuant to it. The cost to the Branch of an average class A misdemeanor charge in the district court is $51.14 in FY 2010 and beyond, without consideration of any salary increases or decreases that may occur. One caveat is in order. The per charge costs dramatically rise if an appeal is taken to either the superior court for a jury trial or to the supreme court or to both. Since class A misdemeanors involve the possibility of incarceration, they can be appealed to the superior court for a jury trial and then to the supreme court or directly to the supreme court following the district court. Appeals can bring the cost of even a single charge to at or in excess of the $10,000 fiscal note threshold. Given the controversy surrounding and the notoriety of this issue, one case is likely to cross that threshold. The last two potential fiscal impacts involve court action on the civil side, namely collection actions by the attorney general's office to collect fines and civil penalties and potential injunction actions pursuant to proposed RSA 126-T:9. The Branch has no information on which to estimate how many, if any, collection or injunction cases there will be. The Branch is unable to determine the exact fiscal impact at this time.
The Judicial Council states if there is a right to counsel, the flat fee of $275 per misdemeanor would be charged by a public defender or contract attorney. If an assigned counsel attorney is
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used the fee is $60 per hour with a cap of $1,400 for a misdemeanor. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal. The exact fiscal impact cannot be determined at this time.
The Departments of Corrections states this bill will have no fiscal impact on the Department.