Untitled Texas Attorney General Opinion

The Attorney’ General of Texas
JIM MATTOX
hne 19, 1986
Attorney General
Supreme Courl Building Robert Bernstein, M.D. Opinion No. JM-502
P. 0. BOX 12545
Austin, TX. 79711. 2549
Comissioner of Health
51214752501 Texas Department cf Health Re: Whether the reporting require-
Telex 91019741357 1100 West 49th Slxeet ments of section 4(a) of article
TelecoDier 51214750288 Austin, Texas 76,756 4512.8, V.T.C.S., the Texas Abortion
Facility Reporting and Licensing Act,
714 Jackson, Suite 700
apply to both licensed and unlicensed
Dallas. TX. 752024506 facilities
2w742aw4
Dear Dr. Bernstein:
4824 Alberta Ave., Suite 160
El Paso. TX. 799052793
You ask aboul:the scope of the reporting requirements set out in
915/533a4s4 the Texas Abortim Facility Reporting and Licensing Act, article
4512.8, V.T.C.S.
‘- 1 Texas, suits 7w The act set,; out the following reporting requirements, which
>uston, TX. 77002-3111
apply to any "fac:.l.ity":
713/22369ea
Sec. 4. (a) Each facility must submit an
800 Broadway, Suite 312 annual report to the [Department of Health] on
Lubbock. TX. 79401-3479 each abortion that is performed at the facility on
8081747-5239 a form provided by the department. The report
shall r,ot identify by any means the physician
4309 N. Tenth. Suite B performmg the abortion or the patient on whom the
McAllen, TX. 78501-1685 abortion was performed. The report shall include
51216824547 the fol:.cwinginformation:
200 Main Plaza. Suite 400 (1) whether or not the facility at which the
San Antonio, TX. 792052797 abortion is performed is licensed under this
512n254191 article;
(2) patient's year of birth, race, marital
An Equal OpportunityI
Affirmative Action Employer
status, and state and county of residence;
(3) 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;
p. 2305
Dr. Robert Bernstein - Page 2 (m-502)
-,
(6) the peric'dof 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;
(9) the numbm of previous induced abortions
of the patient.
(b) All information and records held by the
department under the provisions of this article
shall be strictl),confidential and not considered
open records for the purposes of Chapter 424, Acts
of the 63rd Legislature, Regular Session, 1973, as
amended (Article 6252-17a. Vernon's Texas Civil
Statutes). Such information shall not be released
or made public upon subpoena or otherwise, except
that release mar be made under the following
circumstances:
(1) release is made for statistical purposes
only, so that no 'person,patient or facility may
be identified; or
(2) release I,s made with the consent of each
person, patient and facility identified in the
information releamd; or
(3) release i:s made to medical personnel,
appropriate state iagencies,or county and district
courts to enforce .theprovisions of this article.
(c) A violation of this section is punishable
as a Class A misdaneanor.
Art. 4512.8, P4. The act defines "facility" as "a place where
abortions are performed." ha. 4512.8, §2(1).
The act also provides that a person may not establish or operate
a "facility" without "the appropriate license issued under this
article." Art. 4512.8, 05. Section 6(f), however, provides:
Nothing in this article shall be construed to
require a facility licensed under the Texas
Hospital Licensing Law (Article 4437f, Vernon's
p. 2306
Dr. Robert Bernstein - Page I! (JM-502)
Texas Civil Statuxes) or the office of a physician
licensed under tt,eMedical Practice Act (Article
4459b. Vernon's T?:rasCivil Statutes) to obtain a
license under this article, unless such office is
utilized primarily for the purpose of performing
abortions. (Emphmis added).
You ask:
Do the report,lng requirements set forth in
section 4(a) of article 4512.8, V.T.C.S., apply
only to licensed facilities or to both licensed
facilities and ttme facilities which are exempt
from licensure under section 6(f) of that act?
We conclude that the r,eportingrequirements apply to any place
where abortions are performed, including a place licensed under the
Hospital Licensing Law, art,icle4437f. V.T.C.S., or a place that is
the office of a physician :Licensedunder the Medical Practice Act,
article 4495b. V.T.C.S. Section 6(f) exempts certain places from the
licensing requirements only. Also, it refers to the places exempted
as "facilities." In other words, the licensing exemption only makes
certain places exempt from licensing requirements. It does not exempt
those places from the d~z!Iinitionof "facility." The reporting
requirements apply to any "facility" -- in other words, to any "place
where abortions are performed." Therefore, the plain language of
article 4512.8 requires us to conclude that the reporting requirements
of article 4512.8 apply to any facility licensed under the Hospital
Licensing Act and any faci:Xty that is the office of a physician who
is licensed under the Medixl Practices Act as well as any facility
licensed under article 4512.8. Also, section 4(a)(l) requires
reporting of whether the "facilityU "is licensed under this article."
This would be surplusage unless unlicensed facilities had to report.
Also, we think there :ts an obvious reason for exempting certain
facilities from the licensj,ngrequirements but not from the reporting
requirements. The exemption from the licensing requirements under
article 4512.8 applies only,to facilities licensed under the Hospital
Licensing Law or to the of:l:icesof physicians who are licensed under
the Medical Practices Act. Apparently the legislature determined that
"double licensing" is unnece~ssaryor undesirable because the licensing
requirements of those act, ensure the standards of care that the
licensing requirements of article 4512.8 are intended to ensure. The
reporting requirements of s:cticle4512.8. on the other hand, are at
least in part for statistjcal purposes. See art. 4512.8, 54(b)(l).
It makes sense to compile statistics regasding abortions from all
facilities at which abortions are performed, not just those licensed
under article 4512.8.
p. 2307
Dr. Robert Bernstein - Page 4 (JM-502)
Therefore, we conclude that the reporting requirements of article
4512.8 apply to any place "bare abortions are performed, regardless of
whether the place is exempt from the licensing requirements of article
4512.8.
SUMMARY
The reporting requirements of article 4512.8,
section 4, V.T.C.S,., apply to all facilities at
which abortions are performed, not just to those
facilities licensed under article 4512.8, V.T.C.S.
JIM MATTOX
Attorney General of Texas
JACK HIGETOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorne:?General
ROBERT GRAY
Special Assistant Attorney 'General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 2308