HOUSE AMENDED

 

PRIOR PRINTER'S NOS. 738, 1177, 1185, 1310, 1326

PRINTER'S NO.  1443

  

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, BRUBAKER, SMUCKER, STACK, TOMLINSON, D. WHITE, WOZNIAK, YUDICHAK, DINNIMAN, EARLL, EICHELBERGER, FOLMER, GORDNER, ORIE, PIPPY, RAFFERTY AND ROBBINS, MARCH 2, 2011

  

  

AS REPORTED FROM COMMITTEE ON HEALTH, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 27, 2011   

  

  

  

AN ACT

  

1

Regulating certain facilities which perform abortions; imposing

<--

2

powers and duties on the Department of Health, the

3

Legislative Budget and Finance Committee and the Legislative

4

Reference Bureau; and imposing penalties.

5

Amending the act of July 19, 1979 (P.L.130, No.48), entitled "An

<--

6

act relating to health care; prescribing the powers and

7

duties of the Department of Health; establishing and

8

providing the powers and duties of the State Health

9

Coordinating Council, health systems agencies and Health Care

10

Policy Board in the Department of Health, and State Health

11

Facility Hearing Board in the Department of Justice;

12

providing for certification of need of health care providers

13

and prescribing penalties," further providing for

14

definitions, for licensure, for application for license and

15

for issuance of license; and making an inconsistent repeal.

16

The General Assembly of the Commonwealth of Pennsylvania

17

hereby enacts as follows:

18

Section 1.  Short title.

<--

19

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

20

Health Abortion Facility Oversight Act.

21

Section 1.1.  Legislative findings and declaration of policy.

22

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

 


1

declared as a matter of legislative finding that:

2

(1)  A Philadelphia County investigating grand jury

3

report has revealed systemic deficiencies in the manner in

4

which the Commonwealth has regulated abortion facilities

5

operating in this Commonwealth.

6

(2)  These systemic deficiencies have led to horrific

7

instances of bodily injury and death.

8

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

9

comprehensive regulation of abortion facilities operating in

10

this Commonwealth.

11

(4)  Comprehensive regulation of abortion facilities

12

reasonably serves the Commonwealth's substantial interests in

13

protecting the health, safety and welfare of the general

14

public.

15

(5)  Regulation of abortion facilities that perform

16

outpatient surgical procedures as ambulatory surgical

17

facilities is necessary to cure the systemic deficiencies

18

present in the current regulatory scheme.

19

(6)  Use of outpatient surgical procedures in abortion

20

facilities is more likely to occur after nine weeks

21

gestational age.

22

(7)  Proper licensing and a system of random

23

administrative inspections of abortion facilities operating

24

in this Commonwealth are also a necessary part of any

25

comprehensive regulatory scheme.

26

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

27

intention of the General Assembly to protect the health, safety

28

and welfare of the general public through the comprehensive

29

regulation of abortion facilities operating in this

30

Commonwealth.

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1

Section 2.  Definitions.

2

The following words and phrases when used in this act shall

3

have the meanings given to them in this section unless the

4

context clearly indicates otherwise: 

5

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

6

definitions).

7

"Abortion facility."  A facility:

8

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

9

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

10

Facilities Act; and 

11

(2)  in which abortions are performed on an elective

12

basis.

13

"Complainant."  An individual who contacts the department for

14

the purpose of making a complaint.

15

"Complaint."  A communication received by the department,

16

which describes conduct in violation of this act or any other

17

statute or regulations pertaining to abortions or abortion

18

facilities.

19

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

20

"Inspection."  An examination by the department, including

21

interviews with the office staff, clients and individuals

22

providing abortions or assisting in providing abortions, and a

23

review of documents pertinent to initial and continued

24

compliance for the purpose of operating an abortion facility.

25

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

26

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

27

Availability and Reduction of Error (Mcare) Act.

28

Section 3.  Licensure.

29

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

30

by the department.

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1

(b)  Procedure.--

2

(1)  An abortion facility must submit an application for

3

licensure to the department on a form prescribed by the

4

department.

5

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

6

the department shall inspect the abortion facility to

7

determine the ability to comply with this act.

8

(c)  License.--

9

(1)  If the department determines that the abortion

10

facility is able to comply with this act, the department

11

shall issue a license indicating all of the following:

12

(i)  Name.

13

(ii)  Compliance with statutory and regulatory

14

requirements.

15

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

16

more than one year.

17

(iv)  The date the inspection took place.

18

(2)  A license is nontransferable.

19

(3)  The abortion facility shall prominently display the

20

license where it is visible to patients.

21

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

22

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

23

accordance with subsection (c).

24

Section 4.  Inspections.

25

(a)  Authority.--

26

(1)  An inspector of the department may, with

27

identification, enter and inspect an abortion facility which:

28

(i)  holds a license; or

29

(ii)  is seeking licensure.

30

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

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1

full access to all of the following:

2

(i)  Premises and records of the abortion facility.

3

(ii)  Individuals employed by or under contract with

4

the abortion facility. This subparagraph includes the

5

opportunity to interview the individuals.

6

(b)  Timing.--

7

(1)  An initial inspection shall be conducted under

8

section 3(b)(2).

9

(2)  An inspection shall be conducted for license renewal 

10

under section 3(d).

11

(3)  The department shall annually conduct at least one

12

unannounced inspection of each abortion facility. Such

13

inspection may satisfy the requirements of paragraph (2).

14

(4)  The department may conduct other inspections,

15

announced or unannounced, for the purpose of:

16

(i)  ensuring compliance; or

17

(ii)  investigating a complaint.

18

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

19

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

20

publicly accessible Internet website and shall be searchable by

21

the public.

22

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

23

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

24

care or jeopardize patient safety and privacy.

25

Section 5.  Violations. 

26

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

27

act:

28

(1)  Violation of a regulation promulgated under this act 

29

or any other statute or regulation pertaining to abortions or

30

abortion facilities or, in the case of abortion facilities

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1

performing abortions after nine weeks gestational age, the

2

regulations applicable to ambulatory surgical facilities

3

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

4

known as the Health Care Facilities Act.

5

(2)  Transferring a license.

6

(3)  Obtaining or attempting to obtain a license in

7

violation of this act. This paragraph includes fraud or

8

deceit in the application process.

9

(4)  Gross incompetence, negligence or misconduct in

10

operation of the abortion facility.

11

(5)  Mistreating or abusing patients cared for in the

12

abortion facility.

13

(6)  Failure to permit inspectors to enter the facility

14

or to provide access to requested records.

15

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

16

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

17

abortion facility specifying the violation.

18

(c)  Effect.--

19

(1)  The department may deny licensure or renewal until

20

correction of the violation under subsection (a).

21

(2)  If the department determines that a violation under

22

subsection (a) immediately compromises the health and safety

23

of the patient, the department shall immediately revoke the

24

license.

25

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

26

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

27

facility shall prepare a plan of correction.

28

(4)  The department may assess an administrative penalty

29

against a license holder. This paragraph is subject to 2

30

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

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1

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

2

judicial review of Commonwealth agency action).

3

Section 6.  Operation without a license.

4

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

5

without a license. Each day of operation constitutes a separate

6

offense.

7

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

8

a misdemeanor of the third degree and shall, upon conviction, be

9

sentenced to pay a fine of up to $2,000, or to imprisonment for

10

not more than six months, or both, for the first violation. On

11

the second and each subsequent conviction, he or she shall be

12

sentenced to pay a fine of not less than $5,000 nor more than

13

$20,000, or to imprisonment for not less than six months nor

14

more than one year, or both.

15

Section 7.  Complaints.

16

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

17

for a formal complaint process for a person to report a

18

violation of this act or any other statute or regulation

19

pertaining to abortions or abortion facilities. The process

20

shall include:

21

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

22

complaints.

23

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

24

Internet website, to allow for electronic submission of

25

written complaints.

26

(3)  An intake system and protocols for dealing with

27

individuals making complaints directly to department

28

employees or through the postal system.

29

(4)  A complaint tracking system.

30

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

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1

following:

2

(1)  Notification of the option to remain anonymous.

3

(2)  Written acknowledgment regarding the receipt of the

4

complaint.

5

(3)  Written notification of the final outcome of

6

investigation of the complaint.

7

Section 8.  Reports.

8

(a)  Serious event reports.--

9

(1)  Notwithstanding any other provision to the contrary,

10

all abortion facilities as defined in this act shall report

11

the occurrence of a serious event to the department and the

12

Patient Safety Authority within 24 hours of the abortion

13

facility's confirmation of the serious event.

14

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

15

department shall initiate an inspection.

16

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

17

for the revocation of licensure under this act. In addition

18

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

19

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

20

report a serious event in accordance with this act may be

21

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

22

imposed by the department.

23

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

24

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

25

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

26

of Error (Mcare) Act.

27

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

28

shall establish regular and formal mechanisms for making reports

29

to the Department of State. Complaints pertaining to any

30

licensed professional under the jurisdiction of the Bureau of

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1

Professional and Occupational Affairs shall be reported as soon

2

as possible to the appropriate licensing board but no more than

3

72 hours after receipt.

4

Section 9.  Confidentiality.

5

 The following shall apply:

6

(1)  Information regarding complainant and patient

7

identity received by the department shall be kept

8

confidential and shall not be subject to the act of February

9

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

10

(2)  The department shall at all times respect the

11

privacy of patients and patient records which shall be

12

subject to the Health Insurance Portability and

13

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

14

Stat. 1936).

15

Section 10.  Regulations.

16

The department shall promulgate regulations to implement this

17

act. Existing regulations of the department applicable to

18

abortion facilities not clearly inconsistent with the provisions

19

of this act shall remain in effect until amended by the

20

department under this section.

21

Section 11.  Existing abortion facilities.

22

The department shall begin a process to ensure all of the

23

following:

24

(1)  Abortion facilities in existence on the effective

25

date of this section are able to receive a license if

26

warranted. When a licensure process is in effect, the

27

department shall transmit notice of this fact to the

28

Legislative Reference Bureau for publication in the

29

Pennsylvania Bulletin.

30

(2)  Abortion facilities are in compliance with other

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1

statutes administered by the department pertaining to

2

abortion facilities.

3

Section 12.  Setting of fees and disposition of fees.

4

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

5

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

6

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

7

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

8

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

9

department may increase those fees by regulation so that the

10

projected revenues will meet or exceed projected expenditures.

11

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

12

hereby established as a restricted account in the General Fund.

13

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

14

in the account are hereby appropriated to the department for use

15

in the performance of its duties under this act.

16

Section 13.  Study.

17

The Legislative Budget and Finance Committee shall study the

18

fiscal impact of applying 28 Pa. Code Pt. IV Subpt. F (relating

19

to ambulatory surgical facilities) to existing abortion

20

facilities that currently perform abortions under 28 Pa. Code

21

Pt. IV Subpt. F. The department shall assist the committee in

22

obtaining necessary information for the study. Within 90 days of

23

the effective date of this section, the committee shall report

24

the results of the study to the President pro tempore of the

25

Senate, the Minority Leader of the Senate, the Speaker of the

26

House of Representatives and the Minority Leader of the House of

27

Representatives.

28

Section  14.  Construction.

29

Nothing in this act shall be construed to limit the

30

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

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1

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

2

Section 30.  Effective date.

3

This act shall take effect as follows:

4

(1)  The following provisions shall take effect

5

immediately:

6

(i)  Section 2.

7

(ii)  Section 10.

8

(iii)  Section 11.

9

(iv)  Section 13.

10

(v)  This section.

11

(2)  Section 6 shall take effect 60 days after

12

publication of the notice under section 11(1).

13

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

14

(4)  The remainder of this act shall take effect in 60

15

days.

16

Section 1.  The definition of "health care facility" in

<--

17

section 802.1 of the act of July 19, 1979 (P.L.130, No.48),

18

known as the Health Care Facilities Act, amended July 7, 2006

19

(P.L.334, No.69), is amended and the section is amended by

20

adding a definition to read:

21

Section 802.1.  Definitions.

22

The following words and phrases when used in this chapter

23

shall have, unless the context clearly indicates otherwise, the

24

meanings given them in this section:

25

"Abortion facility."  Any public or private hospital, clinic,

26

center, medical school, medical training institution,

27

physician's office, infirmary or other institution which

28

provides surgical services meant to terminate the clinically

29

diagnosable pregnancy of a woman with knowledge that the

30

termination by those means will, with reasonable likelihood,

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1

cause the death of the unborn child.

2

* * *

3

"Health care facility."  For purposes of Chapter 8, a health

4

care facility includes, but is not limited to, a general,

5

chronic disease or other type of hospital, a home health care

6

agency, a home care agency, a hospice, a long-term care nursing

7

facility, cancer treatment centers using radiation therapy on an

8

ambulatory basis, an ambulatory surgical facility, an abortion

9

facility, a birth center regardless of whether such health care

10

facility is operated for profit, nonprofit or by an agency of

11

the Commonwealth or local government. The department shall have

12

the authority to license other health care facilities as may be

13

necessary due to emergence of new modes of health care. When the

14

department so finds, it shall publish its intention to license a

15

particular type of health care facility in the Pennsylvania

16

Bulletin in accordance with the act of June 25, 1982 (P.L.633,

17

No.181), known as the "Regulatory Review Act." The term health

18

care facility shall not include an office used primarily for the

19

private practice of a health care practitioner, nor a program

20

which renders treatment or care for drug or alcohol abuse or

21

dependence unless located within a health facility, nor a

22

facility providing treatment solely on the basis of prayer or

23

spiritual means. The term health care facility shall not apply

24

to a facility which is conducted by a religious organization for

25

the purpose of providing health care services exclusively to

26

clergymen or other persons in a religious profession who are

27

members of a religious denomination.

28

* * *

29

Section 2.  Section 806 of the act is amended by adding a

30

subsection to read:

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1

Section 806.  Licensure.

2

* * *

3

(h)  Abortion facilities.--The department shall apply the

4

same fire and safety standards; personnel and equipment

5

requirements; and quality assurance procedures to abortion

6

facilities that are applied to ambulatory surgical facilities.

7

Section 3.  Sections 807(b) of the act, amended July 7, 2006

8

(P.L.334, No.69), is amended and the section is amended by

9

adding a subsection to read:

10

Section 807.  Application for license.

11

* * *

12

(b)  Fees.--Application for a license or for renewal of a

13

license shall be accompanied by the following fees:

14

(1)  Regular or special license:

  

15

Home health agency

$250.00

16

17

Home care agency or home care

registry

  

100.00

18

Ambulatory surgical facility

250.00

19

Abortion facility

250.00

20

Birth center

70.00

21

Long-term care nursing facility

250.00

22

23

Plus per each long-term care

bed in excess of 75 beds

  

2.00

24

Hospital

  

25

Every two years

500.00

26

27

Plus per each inpatient bed

every two years

  

4.00

28

Other health care facility

100.00

29

(2)  Provisional license all facilities:

  

30

Provisional I

$400.00

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1

Plus per each inpatient bed

4.00

2

Provisional II

600.00

3

Plus per each inpatient bed

6.00

4

Provisional III

800.00

5

Plus per each inpatient bed

8.00

6

Provisional IV

1,000.00

7

Plus per each inpatient bed

10.00

8

(b.1)  Licensure Fee Account.--

9

(1)  The Licensure Fee Account is established as a

10

restricted account in the General Fund.

11

(2)  Fees under subsection (b)(1) pertaining to abortion

12

facilities shall be deposited in the account.

13

(3)  Money in the account is appropriated on a continuing

14

basis to the department for use in the performance of its

15

duties. This appropriation shall not lapse at the end of any

16

fiscal year.

17

* * *

18

Section 3.1.  Section 808(A) of the act, amended December 18,

19

1992 (P.L.1602, No.179), is amended to read:

20

Section 808.  Issuance of license.

21

(a)  Standards.--The department shall issue a license to a

22

health care provider when it is satisfied that the following

23

standards have been met:

24

(1)  that the health care provider is a responsible

25

person;

26

(2)  that the place to be used as a health care facility

27

is adequately constructed, equipped, maintained and operated

28

to safely and efficiently render the services offered;

29

(3)  that the health care facility provides safe and

30

efficient services which are adequate for the care, treatment

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1

and comfort of the patients or residents of such facility;

2

(4)  that there is substantial compliance with the rules

3

and regulations adopted by the department pursuant to this

4

act; [and]

5

(5)  that a certificate of need has been issued if one is

6

necessary[.]; and

7

(6)  that, in the case of abortion facilities, such

8

facility is in compliance with the requirements of 18 Pa.C.S.

9

Ch. 32 (relating to abortion) and such regulations  

10

promulgated thereunder.

11

* * *

12

Section 4.  The definition of "abortion facility" in section

13

302 of the act of March 20, 2002 (P.L.154, No.13), known as the

14

Medical Care Availability and Reduction of Error (Mcare) Act, is

15

repealed to the extent that it excludes abortion facilities

16

which are not subject to licensure under the act.

17

Section 5.  This act shall take effect in 180 days.

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