HOUSE AMENDED

 

PRIOR PRINTER'S NOS. 738, 1177, 1185, 1310, 1326, 1443

PRINTER'S NO.  1851

  

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, EARLL, EICHELBERGER, FOLMER, GORDNER, ORIE, PIPPY, RAFFERTY AND ROBBINS, MARCH 2, 2011

  

  

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES, DECEMBER 12, 2011   

  

  

  

AN ACT

  

1

Regulating certain facilities which perform abortions; imposing

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powers and duties on the Department of Health, the

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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

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6

act relating to health care; prescribing the powers and

7

duties of the Department of Health; establishing and

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providing the powers and duties of the State Health

9

Coordinating Council, health systems agencies and Health Care

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Policy Board in the Department of Health, and State Health

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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

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definitions, for licensure, for application for license and, 

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for issuance of license; and making an inconsistent repeal 

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and for inspections.

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The General Assembly finds and declares as follows:

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(1)  A Philadelphia County investigating grand jury

19

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

 


1

instances of bodily injury and death.

2

(3)  Surgical abortions are at a minimum an outpatient

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surgical procedure performed in this Commonwealth.

4

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

5

comprehensive regulation of abortion facilities operating in

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this Commonwealth.

7

(5)  Comprehensive regulation of abortion facilities

8

reasonably serves the Commonwealth's substantial interests in

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protecting the health, safety and welfare of the general

10

public.

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(6) Regulation of abortion facilities that perform

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outpatient surgical procedures as ambulatory surgical

13

facilities is necessary to cure the systemic deficiencies

14

present in the current regulatory scheme.

15

(7)  Proper licensing and a system of random

16

administrative inspections of abortion facilities operating

17

in this Commonwealth are also a necessary part of any

18

comprehensive regulatory scheme.

19

(8)  Unannounced inspections are necessary to further the

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regulation of abortion facilities due to the controversial

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nature of the procedures performed in an abortion facility

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and understandable concerns by the patients that their

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medical history will not remain private if a report of a

24

violation is made.

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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.

30

Section 1.1.  Legislative findings and declaration of policy.

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1

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

2

declared as a matter of legislative finding that:

3

(1)  A Philadelphia County investigating grand jury

4

report has revealed systemic deficiencies in the manner in

5

which the Commonwealth has regulated abortion facilities

6

operating in this Commonwealth.

7

(2)  These systemic deficiencies have led to horrific

8

instances of bodily injury and death.

9

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

10

comprehensive regulation of abortion facilities operating in

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this Commonwealth.

12

(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

15

public.

16

(5)  Regulation of abortion facilities that perform

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outpatient surgical procedures as ambulatory surgical

18

facilities is necessary to cure the systemic deficiencies

19

present in the current regulatory scheme.

20

(6)  Use of outpatient surgical procedures in abortion

21

facilities is more likely to occur after nine weeks

22

gestational age.

23

(7)  Proper licensing and a system of random

24

administrative inspections of abortion facilities operating

25

in this Commonwealth are also a necessary part of any

26

comprehensive regulatory scheme.

27

(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

29

and welfare of the general public through the comprehensive

30

regulation of abortion facilities operating in this

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1

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: 

6

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

7

definitions).

8

"Abortion facility."  A facility:

9

(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

11

Facilities Act; and 

12

(2)  in which abortions are performed on an elective

13

basis.

14

"Complainant."  An individual who contacts the department for

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the purpose of making a complaint.

16

"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

19

facilities.

20

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

21

"Inspection."  An examination by the department, including

22

interviews with the office staff, clients and individuals

23

providing abortions or assisting in providing abortions, and a

24

review of documents pertinent to initial and continued

25

compliance for the purpose of operating an abortion facility.

26

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

27

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

28

Availability and Reduction of Error (Mcare) Act.

29

Section 3.  Licensure.

30

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

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1

by the department.

2

(b)  Procedure.--

3

(1)  An abortion facility must submit an application for

4

licensure to the department on a form prescribed by the

5

department.

6

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

7

the department shall inspect the abortion facility to

8

determine the ability to comply with this act.

9

(c)  License.--

10

(1)  If the department determines that the abortion

11

facility is able to comply with this act, the department

12

shall issue a license indicating all of the following:

13

(i)  Name.

14

(ii)  Compliance with statutory and regulatory

15

requirements.

16

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

17

more than one year.

18

(iv)  The date the inspection took place.

19

(2)  A license is nontransferable.

20

(3)  The abortion facility shall prominently display the

21

license where it is visible to patients.

22

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

23

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

24

accordance with subsection (c).

25

Section 4.  Inspections.

26

(a)  Authority.--

27

(1)  An inspector of the department may, with

28

identification, enter and inspect an abortion facility which:

29

(i)  holds a license; or

30

(ii)  is seeking licensure.

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1

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

2

full access to all of the following:

3

(i)  Premises and records of the abortion facility.

4

(ii)  Individuals employed by or under contract with

5

the abortion facility. This subparagraph includes the

6

opportunity to interview the individuals.

7

(b)  Timing.--

8

(1)  An initial inspection shall be conducted under

9

section 3(b)(2).

10

(2)  An inspection shall be conducted for license renewal 

11

under section 3(d).

12

(3)  The department shall annually conduct at least one

13

unannounced inspection of each abortion facility. Such

14

inspection may satisfy the requirements of paragraph (2).

15

(4)  The department may conduct other inspections,

16

announced or unannounced, for the purpose of:

17

(i)  ensuring compliance; or

18

(ii)  investigating a complaint.

19

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

20

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

22

the public.

23

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

24

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

25

care or jeopardize patient safety and privacy.

26

Section 5.  Violations. 

27

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

28

act:

29

(1)  Violation of a regulation promulgated under this act 

30

or any other statute or regulation pertaining to abortions or

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1

abortion facilities or, in the case of abortion facilities

2

performing abortions after nine weeks gestational age, the

3

regulations applicable to ambulatory surgical facilities

4

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

5

known as the Health Care Facilities Act.

6

(2)  Transferring a license.

7

(3)  Obtaining or attempting to obtain a license in

8

violation of this act. This paragraph includes fraud or

9

deceit in the application process.

10

(4)  Gross incompetence, negligence or misconduct in

11

operation of the abortion facility.

12

(5)  Mistreating or abusing patients cared for in the

13

abortion facility.

14

(6)  Failure to permit inspectors to enter the facility

15

or to provide access to requested records.

16

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

17

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

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abortion facility specifying the violation.

19

(c)  Effect.--

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(1)  The department may deny licensure or renewal until

21

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

24

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

27

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

28

facility shall prepare a plan of correction.

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(4)  The department may assess an administrative penalty

30

against a license holder. This paragraph is subject to 2

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1

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

2

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

3

judicial review of Commonwealth agency action).

4

Section 6.  Operation without a license.

5

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

6

without a license. Each day of operation constitutes a separate

7

offense.

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

more than one year, or both.

16

Section 7.  Complaints.

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

18

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

20

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

23

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

26

written complaints.

27

(3)  An intake system and protocols for dealing with

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individuals making complaints directly to department

29

employees or through the postal system.

30

(4)  A complaint tracking system.

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

2

following:

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(1)  Notification of the option to remain anonymous.

4

(2)  Written acknowledgment regarding the receipt of the

5

complaint.

6

(3)  Written notification of the final outcome of

7

investigation of the complaint.

8

Section 8.  Reports.

9

(a)  Serious event reports.--

10

(1)  Notwithstanding any other provision to the contrary,

11

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

13

Patient Safety Authority within 24 hours of the abortion

14

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

20

(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

23

imposed by the department.

24

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

25

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

26

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

27

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

30

to the Department of State. Complaints pertaining to any

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1

licensed professional under the jurisdiction of the Bureau of

2

Professional and Occupational Affairs shall be reported as soon

3

as possible to the appropriate licensing board but no more than

4

72 hours after receipt.

5

Section 9.  Confidentiality.

6

 The following shall apply:

7

(1)  Information regarding complainant and patient

8

identity received by the department shall be kept

9

confidential and shall not be subject to the act of February

10

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

11

(2)  The department shall at all times respect the

12

privacy of patients and patient records which shall be

13

subject to the Health Insurance Portability and

14

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

15

Stat. 1936).

16

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

20

of this act shall remain in effect until amended by the

21

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

24

following:

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(1)  Abortion facilities in existence on the effective

26

date of this section are able to receive a license if

27

warranted. When a licensure process is in effect, the

28

department shall transmit notice of this fact to the

29

Legislative Reference Bureau for publication in the

30

Pennsylvania Bulletin.

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(2)  Abortion facilities are in compliance with other

2

statutes administered by the department pertaining to

3

abortion facilities.

4

Section 12.  Setting of fees and disposition of fees.

5

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

6

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

7

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

8

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

9

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

10

department may increase those fees by regulation so that the

11

projected revenues will meet or exceed projected expenditures.

12

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

13

hereby established as a restricted account in the General Fund.

14

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

15

in the account are hereby appropriated to the department for use

16

in the performance of its duties under this act.

17

Section 13.  Study.

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The Legislative Budget and Finance Committee shall study the

19

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

20

to ambulatory surgical facilities) to existing abortion

21

facilities that currently perform abortions under 28 Pa. Code

22

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

23

obtaining necessary information for the study. Within 90 days of

24

the effective date of this section, the committee shall report

25

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

26

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

27

House of Representatives and the Minority Leader of the House of

28

Representatives.

29

Section  14.  Construction.

30

Nothing in this act shall be construed to limit the

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1

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

2

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

3

Section 30.  Effective date.

4

This act shall take effect as follows:

5

(1)  The following provisions shall take effect

6

immediately:

7

(i)  Section 2.

8

(ii)  Section 10.

9

(iii)  Section 11.

10

(iv)  Section 13.

11

(v)  This section.

12

(2)  Section 6 shall take effect 60 days after

13

publication of the notice under section 11(1).

14

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

15

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

16

days.

17

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

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

19

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

20

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

21

adding a definition to read:

22

Section 1.  Section 802.1 of the act of July 19, 1979

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(P.L.130, No.48), known as the Health Care Facilities Act, is

24

amended by adding a definition to read:

25

Section 802.1.  Definitions.

26

The following words and phrases when used in this chapter

27

shall have, unless the context clearly indicates otherwise, the

28

meanings given them in this section:

29

"Abortion facility."  Any public or private hospital, not

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subject to inspection and regulation under this act, and any

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clinic, center, medical school, medical training institution,

2

physician's office, infirmary or other institution, which

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3

provides surgical services meant to terminate the clinically

4

diagnosable pregnancy of a woman with knowledge that the 

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termination by those means will, with reasonable likelihood,

6

cause the death of the unborn child.

7

* * *

8

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

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9

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

10

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

11

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

12

facility, cancer treatment centers using radiation therapy on an

13

ambulatory basis, an ambulatory surgical facility, an abortion

14

facility, a birth center regardless of whether such health care

15

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

16

the Commonwealth or local government. The department shall have

17

the authority to license other health care facilities as may be

18

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

19

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

20

particular type of health care facility in the Pennsylvania

21

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

22

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

23

care facility shall not include an office used primarily for the

24

private practice of a health care practitioner, nor a program

25

which renders treatment or care for drug or alcohol abuse or

26

dependence unless located within a health facility, nor a

27

facility providing treatment solely on the basis of prayer or

28

spiritual means. The term health care facility shall not apply

29

to a facility which is conducted by a religious organization for

30

the purpose of providing health care services exclusively to

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1

clergymen or other persons in a religious profession who are

2

members of a religious denomination.

3

* * *

4

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

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subsection SUBSECTIONS a subsection to read:

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Section 806.  Licensure.

7

* * *

8

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

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same fire and safety standards; personnel and equipment

10

requirements; and quality assurance procedures to abortion

11

facilities that are applied to ambulatory surgical facilities.

12

(h)  Abortion facilities.--

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(1)  The department shall apply the same regulations

14

promulgated under subsection (f) to abortion facilities that

15

are applied to ambulatory surgical facilities. These

16

regulations include classification of the facilities in the

17

same manner as ambulatory surgical facilities.

18

(2)  The department shall apply to abortion facilities

19

any other provision of this chapter governing health care

20

facilities insofar as they are applicable to ambulatory

21

surgical facilities.

22

(3)  For the purpose of applying the rules applicable to

23

ambulatory surgical facilities, all of the following apply:

24

(i)  The department shall allow the abortion facility

25

to request an exception.

26

(ii)  The request must identify with specificity the

27

reasons for which the exception is sought.

28

(iii)  In considering a petition under this

29

paragraph, the department shall apply the same procedures

30

and criteria that are applicable to other health care

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1

facilities.

2

(iv)  The department shall issue a written

3

determination stating the reasons for a decision under

4

this paragraph.

5

(4)  None of the following shall apply to an abortion

6

facility:

7

(i)  The definition of "ambulatory surgical facility"

8

in section 802.1.

9

(ii)  The definition of "ASF--Ambulatory Surgical

10

Facility" in 28 Pa. Code § 551.3 (relating to

11

definitions).

12

(5)  Notwithstanding the definition of "abortion

13

facility" in section 302 of the act of March 20, 2002

14

(P.L.154, No.13), known as the Medical Care Availability and

15

Reduction of Error (Mcare) Act, an abortion facility shall

16

continue to comply with applicable provisions of the Medical

17

Care Availability and Reduction of Error (Mcare) Act.

18

(6)  An abortion facility shall comply with Federal

19

privacy statutes, including the Health Insurance Portability

20

and Accountability Act of 1996 (Public Law 104-191, 110 Stat.

21

1936).

22

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

23

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

24

adding a subsection to read:

25

Section 807.  Application for license.

26

* * *

27

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

28

license shall be accompanied by the following fees:

29

(1)  Regular or special license:

  

30

Home health agency

$250.00

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1

2

Home care agency or home care

registry

  

100.00

3

Ambulatory surgical facility

250.00

4

Abortion facility

250.00

5

Birth center

70.00

6

Long-term care nursing facility

250.00

7

8

Plus per each long-term care

bed in excess of 75 beds

  

2.00

9

Hospital

  

10

Every two years

500.00

11

12

Plus per each inpatient bed

every two years

  

4.00

13

Other health care facility

100.00

14

(2)  Provisional license all facilities:

  

15

Provisional I

$400.00

16

Plus per each inpatient bed

4.00

17

Provisional II

600.00

18

Plus per each inpatient bed

6.00

19

Provisional III

800.00

20

Plus per each inpatient bed

8.00

21

Provisional IV

1,000.00

22

Plus per each inpatient bed

10.00

23

(b.1)  Licensure Fee Account.--

24

(1)  The Licensure Fee Account is established as a

25

restricted account in the General Fund.

26

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

27

facilities shall be deposited in the account.

28

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

29

basis to the department for use in the performance of its

30

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

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1

fiscal year.

2

* * *

3

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

4

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

5

Section 808.  Issuance of license.

6

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

7

health care provider when it is satisfied that the following

8

standards have been met:

9

(1)  that the health care provider is a responsible

10

person;

11

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

12

is adequately constructed, equipped, maintained and operated

13

to safely and efficiently render the services offered;

14

(3)  that the health care facility provides safe and

15

efficient services which are adequate for the care, treatment

16

and comfort of the patients or residents of such facility;

17

(4)  that there is substantial compliance with the rules

18

and regulations adopted by the department pursuant to this

19

act; [and]

20

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

21

necessary[.]; and

22

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

23

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

24

Ch. 32 (relating to abortion) and such regulations  

25

promulgated thereunder.

26

* * *

27

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

<--

28

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

29

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

30

repealed to the extent that it excludes abortion facilities

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1

which are not subject to licensure under the act.

2

Section 4.  Section 813 of the act, added July 12, 1980

<--

3

(P.L.655, No.136), is amended to read:

4

Section 813.  Right to enter and inspect.

5

(a)  Authorization.--For the purpose of determining the

6

suitability of the applicants and of the premises or for

7

determining the adequacy of the care and treatment provided or

8

the continuing conformity of the licensees to this act and to

9

applicable local, State and Federal regulations, any authorized

10

agent of the department may enter, visit and inspect the

11

building, grounds, equipment and supplies of any health care

12

facility licensed or requiring a license under this act and

13

shall have full and free access to the records of the facility

14

and to the patients and employees therein and their records, and

15

shall have full opportunity to interview, inspect, and examine

16

such patients and employees. Upon entering a health care

17

facility the inspectors shall properly identify themselves to

18

the individual on the premises then in charge of the facility.

19

(b)  Abortion facilities.--

20

(1)  In addition to an inspection under subsection (a),

21

the department shall conduct, on an annual basis, at least

22

one unannounced inspection of each abortion facility.

23

(2)  An inspection of an abortion facility under this

24

section shall be conducted in a manner which respects the

25

privacy of each patient of the facility.

26

Section 5.  Nothing in this act shall be construed to limit:

27

(1)  a provision of 18 Pa.C.S. Ch. 32; or

28

(2)  a regulation promulgated under 18 Pa.C.S. Ch. 32 if

29

the regulation provides greater health and safety protection

30

than this act or a regulation promulgated under this act.

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1

Section 6.  The provisions of this act are severable. If any

2

provision of this act or its application to any person or

3

circumstance is held invalid, the invalidity shall not affect

4

other provisions or applications of this act which can be given

5

effect without the invalid provision or application.

6

Section 5 7.  This act shall take effect in 180 days.

<--

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