PRIOR PRINTER'S NOS. 738, 1177, 1185

PRINTER'S NO.  1310

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

732

Session of

2011

  

  

INTRODUCED BY VANCE, SCARNATI, PILEGGI, BAKER, ERICKSON, FONTANA, KASUNIC, MENSCH, WARD, ALLOWAY, BROWNE, BREWSTER, BRUBAKER, SMUCKER, STACK, TOMLINSON, D. WHITE, WOZNIAK, YUDICHAK, DINNIMAN, EARLL, EICHELBERGER, FOLMER, GORDNER, ORIE, PIPPY, RAFFERTY AND ROBBINS, MARCH 2, 2011

  

  

AS AMENDED ON THIRD CONSIDERATION, JUNE 8, 2011   

  

  

  

AN ACT

  

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Regulating certain facilities which perform abortions; imposing

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powers and duties on the Department of Health and the

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Legislative Reference Bureau; and imposing penalties.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Short title.

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This act shall be known and may be cited as the Department of

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Health Abortion Facility Oversight Act.

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Section 1.1.  Legislative findings and declaration of policy.

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(a)  Legislative findings.--It is hereby determined and

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declared as a matter of legislative finding that:

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(1)  The citizens of this Commonwealth have a substantial

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interest in regulating abortion facilities operating in this

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Commonwealth.

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(2)  Regulation of abortion facilities reasonably serves

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the Commonwealth's substantial interests in protecting the

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citizens of this Commonwealth from bodily injury and death.

 


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(3)  Warrantless administrative inspections of abortion

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facilities operating in this Commonwealth are a necessary

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part of this comprehensive regulatory scheme. 

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(1)  A Philadelphia County investigating grand jury

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report has revealed systemic deficiencies in the manner in

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which the Commonwealth has regulated abortion facilities

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operating in this Commonwealth.

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(2)  These systemic deficiencies have led to horrific

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instances of bodily injury and death.

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(3)  The general public has a substantial interest in the

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comprehensive regulation of abortion facilities operating in

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this Commonwealth.

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(4)  Comprehensive regulation of abortion facilities

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reasonably serves the Commonwealth's substantial interests in

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protecting the health, safety and welfare of the general

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public.

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(5)  Regulation of abortion facilities that perform

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outpatient surgical procedures as ambulatory surgical

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facilities is necessary to cure the systemic deficiencies

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present in the current regulatory scheme.

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(6)  Use of outpatient surgical procedures in abortion

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facilities is more likely to occur after nine weeks

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gestational age.

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(7)  Proper licensing and a system of random

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administrative inspections of abortion facilities operating

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in this Commonwealth are also a necessary part of any

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comprehensive regulatory scheme.

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(b)  Declaration of policy.--It is hereby declared to be the

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intention of the General Assembly to protect the health, safety

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and general welfare of the citizens of this Commonwealth by

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closely regulating abortion facilities operating in this

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Commonwealth welfare of the general public through the

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comprehensive regulation of abortion facilities operating in

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this Commonwealth.

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Section 2.  Definitions.

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The following words and phrases when used in this act shall

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have the meanings given to them in this section unless the

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context clearly indicates otherwise: 

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"Abortion."  As defined in 18 Pa.C.S. § 3203 (relating to

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definitions).

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"Abortion facility."  A facility:

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(1)  which is not subject to licensure under act of July

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19, 1979 (P.L.130, No.48), known as the Health Care

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Facilities Act; and 

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(2)  in which abortions are performed on an elective

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basis.

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"Complainant."  An individual who contacts the department for

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the purpose of making a complaint.

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"Complaint."  A communication received by the department,

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which describes conduct in violation of this act or any other

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statute or regulations pertaining to abortions or abortion

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facilities.

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"Department."  The Department of Health of the Commonwealth.

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"Inspection."  An examination by the department, including

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interviews with the office staff, clients and individuals

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providing abortions or assisting in providing abortions, and a

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review of documents pertinent to initial and continued

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compliance for the purpose of operating an abortion facility.

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"Serious event."  As defined in section 302 of the act of

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March 20, 2002 (P.L.154, No.13), known as the Medical Care

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Availability and Reduction of Error (Mcare) Act.

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Section 3.  Licensure.

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(a)  License required.--An abortion facility must be licensed 

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by the department.

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(b)  Procedure.--

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(1)  An abortion facility must submit an application for

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licensure to the department on a form prescribed by the

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department.

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(2)  Upon receipt of an application under paragraph (1),

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the department shall inspect the abortion facility to

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determine the ability to comply with this act.

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(c)  License.--

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(1)  If the department determines that the abortion

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facility is able to comply with this act, the department

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shall issue a license indicating all of the following:

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(i)  Name.

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(ii)  Compliance with statutory and regulatory

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requirements.

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(iii)  Term. The term shall be for a period of not

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more than one year.

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(iv)  The date the inspection took place.

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(2)  A license is nontransferable.

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(3)  The abortion facility shall prominently display the

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license where it is visible to patients.

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(d)  Renewal.--Before expiration of the term under subsection

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(c)(1)(iii), an abortion facility must apply for renewal in

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accordance with subsection (c).

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Section 4.  Inspections.

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(a)  Authority.--

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(1)  An inspector of the department may, with

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identification, enter and inspect an abortion facility which:

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(i)  holds a license; or

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(ii)  is seeking licensure.

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(2)  In an inspection, the department shall have free and

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full access to all of the following:

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(i)  Premises and records of the abortion facility.

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(ii)  Individuals employed by or under contract with

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the abortion facility. This subparagraph includes the

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opportunity to interview the individuals.

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(b)  Timing.--

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(1)  An initial inspection shall be conducted under

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section 3(b)(2).

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(2)  An inspection shall be conducted for license renewal 

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under section 3(d).

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(3)  The department shall annually conduct at least one

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unannounced inspection of each abortion facility. Such

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inspection may satisfy the requirements of paragraph (2).

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(4)  The department may conduct other inspections,

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announced or unannounced, for the purpose of:

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(i)  ensuring compliance; or

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(ii)  investigating a complaint.

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(c)  Reports.--Inspection reports and plans of correction

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under section 5(c)(3) shall be posted on the department's

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publicly accessible Internet website and shall be searchable by

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the public.

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(d)  Privacy.--The department shall conduct its inspection in

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such a way so as not to delay, disrupt or interfere with patient

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care or jeopardize patient safety and privacy.

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Section 5.  Violations. 

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(a)  Illegal actions.--The following are violations of this

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act:

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(1)  Violation of a regulation promulgated under this act 

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or any other statute or regulation pertaining to abortions or

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abortion facilities or, in the case of abortion facilities

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performing abortions after nine weeks gestational age, the

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regulations applicable to ambulatory surgical facilities

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promulgated under the act of July 19, 1979 (P.L.130, No.48),

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known as the Health Care Facilities Act.

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(2)  Transferring a license.

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(3)  Obtaining or attempting to obtain a license in

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violation of this act. This paragraph includes fraud or

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deceit in the application process.

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(4)  Gross incompetence, negligence or misconduct in

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operation of the abortion facility.

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(5)  Mistreating or abusing patients cared for in the

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abortion facility.

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(6)  Failure to permit inspectors to enter the facility

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or to provide access to requested records.

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(b)  Notice.--If the department discovers a violation under

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subsection (a), the department shall give written notice to the

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abortion facility specifying the violation.

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(c)  Effect.--

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(1)  The department may deny licensure or renewal until

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correction of the violation under subsection (a).

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(2)  If the department determines that a violation under

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subsection (a) immediately compromises the health and safety

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of the patient, the department shall immediately revoke the

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license.

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(3)  Except as set forth in paragraph (1) or (2), within

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ten days of notice under subsection (b), the abortion

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facility shall prepare a plan of correction.

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(4)  The department may assess an administrative penalty

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against a license holder. This paragraph is subject to 2

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Pa.C.S. Chs. 5. Subch. A (relating to practice and procedure

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of Commonwealth agencies) and 7 Subch. A (relating to

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judicial review of Commonwealth agency action).

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Section 6.  Operation without a license.

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(a)  Prohibition.--An abortion facility may not operate

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without a license. Each day of operation constitutes a separate

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offense.

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(b)  Penalty.--A person that violates subsection (a) commits

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a summary offense misdemeanor of the third degree and shall,

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upon conviction, be sentenced to pay a fine of $250 up to

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$2,000, or to imprisonment for not more than six months, or

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both, for the first violation. On the second and each subsequent

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conviction, he or she shall be sentenced to pay a fine of not

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less than $5,000 nor more than $20,000, or to imprisonment for

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not less than six months nor more than one year, or both.

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Section 7.  Complaints.

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(a)  Procedure.--The department shall promulgate regulations

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for a formal complaint process for a person to report a

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violation of this act or any other statute or regulation

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pertaining to abortions or abortion facilities. The process

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shall include:

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(1)  A toll-free telephone number for lodging verbal

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complaints.

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(2)  A form, easily accessible on the department's

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Internet website, to allow for electronic submission of

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written complaints.

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(3)  An intake system and protocols for dealing with

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individuals making complaints directly to department

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employees or through the postal system.

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(4)  A complaint tracking system.

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(b)  Treatment.--A complainant shall receive all of the

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following:

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(1)  Notification of the option to remain anonymous.

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(2)  Written acknowledgment regarding the receipt of the

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complaint.

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(3)  Written notification of the final outcome of

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investigation of the complaint.

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Section 8.  Reports.

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(a)  Serious event reports.--

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(1)  Notwithstanding any other provision to the contrary,

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all abortion facilities as defined in this act shall report

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the occurrence of a serious event to the department and the

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Patient Safety Authority within 24 hours of the abortion

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facility's confirmation of the serious event.

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(2)  Within 72 hours of a report of a serious event, the

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department shall initiate an inspection.

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(3)  Failure to report a serious event may be the basis

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for the revocation of licensure under this act. In addition

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to any penalty which may be imposed under 18 Pa.C.S. Ch. 32

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(relating to abortion), an abortion facility which fails to

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report a serious event in accordance with this act may be

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subject to an administrative penalty of $1,000 per day

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imposed by the department.

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(4)  Reporting under paragraph (1) shall be in accordance

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with section 313 of the act of March 20, 2002 (P.L.154,

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No.13), known as the Medical Care Availability and Reduction

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of Error (Mcare) Act.

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(b)  Communication with Department of State.--The department

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shall establish regular and formal mechanisms for making reports

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to the Department of State. Complaints pertaining to any

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licensed professional under the jurisdiction of the Bureau of

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Professional and Occupational Affairs shall be reported as soon

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as possible to the appropriate licensing board but no less more 

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than 72 hours after receipt.

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Section 9.  Confidentiality.

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Information regarding complainant and patient identity The

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following shall apply:

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(1)  Information regarding complainant and patient

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identity received by the department shall be kept

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confidential and shall not be subject to the act of February

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14, 2008 (P.L.6, No.3), known as the Right-to-Know Law.

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(2)  The department shall at all times respect the

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privacy of patients and patient records which shall be

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subject to the Health Insurance Portability and

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Accountability Act (HIPAA) of 1996 (Public Law 104-191, 110

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Stat. 1936).

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Section 10.  Regulations.

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The department shall promulgate regulations to implement this

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act. Existing regulations of the department applicable to

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abortion facilities not clearly inconsistent with the provisions

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of this act shall remain in effect until amended by the

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department under this section.

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Section 11.  Existing abortion facilities.

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The department shall begin a process to ensure all of the

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following:

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(1)  Abortion facilities in existence on the effective

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date of this section are able to receive a license if

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warranted. When a licensure process is in effect, the

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department shall transmit notice of this fact to the

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Legislative Reference Bureau for publication in the

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Pennsylvania Bulletin.

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(2)  Abortion facilities are in compliance with other

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statutes administered by the department pertaining to

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abortion facilities.

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Section 12.  Setting of fees and disposition of fees.

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(a)  Setting of fees.--All fees may be fixed by the

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department by regulation and shall be subject to the act of June

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25, 1982 (P.L.633, No.181), known as the Regulatory Review Act.

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If the revenues raised by the fees imposed under this act are

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not sufficient to meet expenditures over a two-year period, the

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department may increase those fees by regulation so that the

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projected revenues will meet or exceed projected expenditures.

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(b)  Licensure Fee Account.--The Licensure Fee Account is

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hereby established as a restricted account in the General Fund.

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All fees shall be deposited in the Licensure Fee Account. Moneys

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in the account are hereby appropriated to the department for use

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in the performance of its duties under this act.

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Section 12 13.  Construction.

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Nothing in this act shall be construed to limit the

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provisions of 18 Pa.C.S. Ch. 32 (relating to abortion) or limit

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any regulation promulgated under 18 Pa.C.S. Ch. 32.

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Section 30.  Effective date.

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This act shall take effect as follows:

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(1)  The following provisions shall take effect

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immediately:

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(i)  Section 2.

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(ii)  Section 10.

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(iii)  Section 11.

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(iv)  This section.

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(2)  Section 6 shall take effect 60 days after

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publication of the notice under section 11(1).

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(3)  Section 5(a)(1) shall take effect in 180 days.

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(3) (4)  The remainder of this act shall take effect in

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60 days.

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