THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

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

Regulating certain facilities which perform abortions; imposing

powers and duties on the Department of Health and the

Legislative Reference Bureau; and imposing penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

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

Health Abortion Facility Oversight Act.

Section 1.1.  Legislative findings and declaration of policy.

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

declared as a matter of legislative finding that:

(1)  The citizens of this Commonwealth have a substantial

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interest in regulating abortion facilities operating in this

Commonwealth.

(2)  Regulation of abortion facilities reasonably serves

the Commonwealth's substantial interests in protecting the

citizens of this Commonwealth from bodily injury and death.

(3)  Warrantless administrative inspections of abortion

facilities operating in this Commonwealth are a necessary

part of this comprehensive regulatory scheme. 

(1)  A Philadelphia County investigating grand jury

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report has revealed systemic deficiencies in the manner in

which the Commonwealth has regulated abortion facilities

operating in this Commonwealth.

(2)  These systemic deficiencies have led to horrific

instances of bodily injury and death.

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

comprehensive regulation of abortion facilities operating in

this Commonwealth.

(4)  Comprehensive regulation of abortion facilities

reasonably serves the Commonwealth's substantial interests in

protecting the health, safety and welfare of the general

public.

(5)  Regulation of abortion facilities that perform

outpatient surgical procedures as ambulatory surgical

facilities is necessary to cure the systemic deficiencies

present in the current regulatory scheme.

(6)  Use of outpatient surgical procedures in abortion

facilities is more likely to occur after nine weeks

gestational age.

(7)  Proper licensing and a system of random

administrative inspections of abortion facilities operating

in this Commonwealth are also a necessary part of any

comprehensive regulatory scheme.

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

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

Commonwealth welfare of the general public through the

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comprehensive regulation of abortion facilities operating in

this Commonwealth.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise: 

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

definitions).

"Abortion facility."  A facility:

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

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

Facilities Act; and 

(2)  in which abortions are performed on an elective

basis.

"Complainant."  An individual who contacts the department for

the purpose of making a complaint.

"Complaint."  A communication received by the department,

which describes conduct in violation of this act or any other

statute or regulations pertaining to abortions or abortion

facilities.

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

"Inspection."  An examination by the department, including

interviews with the office staff, clients and individuals

providing abortions or assisting in providing abortions, and a

review of documents pertinent to initial and continued

compliance for the purpose of operating an abortion facility.

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

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

Availability and Reduction of Error (Mcare) Act.

Section 3.  Licensure.

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

by the department.

(b)  Procedure.--

(1)  An abortion facility must submit an application for

licensure to the department on a form prescribed by the

department.

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

the department shall inspect the abortion facility to

determine the ability to comply with this act.

(c)  License.--

(1)  If the department determines that the abortion

facility is able to comply with this act, the department

shall issue a license indicating all of the following:

(i)  Name.

(ii)  Compliance with statutory and regulatory

requirements.

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

more than one year.

(iv)  The date the inspection took place.

(2)  A license is nontransferable.

(3)  The abortion facility shall prominently display the

license where it is visible to patients.

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

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

accordance with subsection (c).

Section 4.  Inspections.

(a)  Authority.--

(1)  An inspector of the department may, with

identification, enter and inspect an abortion facility which:

(i)  holds a license; or

(ii)  is seeking licensure.

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

full access to all of the following:

(i)  Premises and records of the abortion facility.

(ii)  Individuals employed by or under contract with

the abortion facility. This subparagraph includes the

opportunity to interview the individuals.

(b)  Timing.--

(1)  An initial inspection shall be conducted under

section 3(b)(2).

(2)  An inspection shall be conducted for license renewal 

under section 3(d).

(3)  The department shall annually conduct at least one

unannounced inspection of each abortion facility. Such

inspection may satisfy the requirements of paragraph (2).

(4)  The department may conduct other inspections,

announced or unannounced, for the purpose of:

(i)  ensuring compliance; or

(ii)  investigating a complaint.

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

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

publicly accessible Internet website and shall be searchable by

the public.

(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

care or jeopardize patient safety and privacy.

Section 5.  Violations. 

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

act:

(1)  Violation of a regulation promulgated under this act 

or any other statute or regulation pertaining to abortions or

abortion facilities or, in the case of abortion facilities

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performing abortions after nine weeks gestational age, the

regulations applicable to ambulatory surgical facilities

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

known as the Health Care Facilities Act.

(2)  Transferring a license.

(3)  Obtaining or attempting to obtain a license in

violation of this act. This paragraph includes fraud or

deceit in the application process.

(4)  Gross incompetence, negligence or misconduct in

operation of the abortion facility.

(5)  Mistreating or abusing patients cared for in the

abortion facility.

(6)  Failure to permit inspectors to enter the facility

or to provide access to requested records.

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

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

abortion facility specifying the violation.

(c)  Effect.--

(1)  The department may deny licensure or renewal until

correction of the violation under subsection (a).

(2)  If the department determines that a violation under

subsection (a) immediately compromises the health and safety

of the patient, the department shall immediately revoke the

license.

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

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

facility shall prepare a plan of correction.

(4)  The department may assess an administrative penalty

against a license holder. This paragraph is subject to 2

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

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

judicial review of Commonwealth agency action).

Section 6.  Operation without a license.

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

without a license. Each day of operation constitutes a separate

offense.

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

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

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

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

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

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

Section 7.  Complaints.

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

for a formal complaint process for a person to report a

violation of this act or any other statute or regulation

pertaining to abortions or abortion facilities. The process

shall include:

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

complaints.

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

Internet website, to allow for electronic submission of

written complaints.

(3)  An intake system and protocols for dealing with

individuals making complaints directly to department

employees or through the postal system.

(4)  A complaint tracking system.

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

following:

(1)  Notification of the option to remain anonymous.

(2)  Written acknowledgment regarding the receipt of the

complaint.

(3)  Written notification of the final outcome of

investigation of the complaint.

Section 8.  Reports.

(a)  Serious event reports.--

(1)  Notwithstanding any other provision to the contrary,

all abortion facilities as defined in this act shall report

the occurrence of a serious event to the department and the

Patient Safety Authority within 24 hours of the abortion

facility's confirmation of the serious event.

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

department shall initiate an inspection.

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

for the revocation of licensure under this act. In addition

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

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

report a serious event in accordance with this act may be

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

imposed by the department.

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

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

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

of Error (Mcare) Act.

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

shall establish regular and formal mechanisms for making reports

to the Department of State. Complaints pertaining to any

licensed professional under the jurisdiction of the Bureau of

Professional and Occupational Affairs shall be reported as soon

as possible to the appropriate licensing board but no less more 

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than 72 hours after receipt.

Section 9.  Confidentiality.

Information regarding complainant and patient identity The

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following shall apply:

(1)  Information regarding complainant and patient

identity received by the department shall be kept

confidential and shall not be subject to the act of February

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

(2)  The department shall at all times respect the

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privacy of patients and patient records which shall be

subject to the Health Insurance Portability and

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

Stat. 1936).

Section 10.  Regulations.

The department shall promulgate regulations to implement this

act. Existing regulations of the department applicable to

abortion facilities not clearly inconsistent with the provisions

of this act shall remain in effect until amended by the

department under this section.

Section 11.  Existing abortion facilities.

The department shall begin a process to ensure all of the

following:

(1)  Abortion facilities in existence on the effective

date of this section are able to receive a license if

warranted. When a licensure process is in effect, the

department shall transmit notice of this fact to the

Legislative Reference Bureau for publication in the

Pennsylvania Bulletin.

(2)  Abortion facilities are in compliance with other

statutes administered by the department pertaining to

abortion facilities.

Section 12.  Setting of fees and disposition of fees.

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

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

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

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

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

department may increase those fees by regulation so that the

projected revenues will meet or exceed projected expenditures.

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

hereby established as a restricted account in the General Fund.

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

in the account are hereby appropriated to the department for use

in the performance of its duties under this act.

Section 12 13.  Construction.

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Nothing in this act shall be construed to limit the

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

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

Section 30.  Effective date.

This act shall take effect as follows:

(1)  The following provisions shall take effect

immediately:

(i)  Section 2.

(ii)  Section 10.

(iii)  Section 11.

(iv)  This section.

(2)  Section 6 shall take effect 60 days after

publication of the notice under section 11(1).

(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.