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  81R10539 JSC-F
 
  By: Shapiro S.B. No. 2571
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to informed and voluntary consent for an abortion and the
  collection and reporting of information related to the performance
  of an abortion; providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  The heading to Subchapter B, Chapter 171, Health
  and Safety Code, is amended to read as follows:
  SUBCHAPTER B. VOLUNTARY AND INFORMED CONSENT
         SECTION 2.  Section 171.018, Health and Safety Code, is
  amended to read as follows:
         Sec. 171.018.  OFFENSE.  A physician who intentionally
  performs an abortion on a woman in violation of Section 171.011
  [this subchapter] commits an offense. An offense under this
  section is a misdemeanor punishable by a fine not to exceed $10,000.
  In this section, "intentionally" has the meaning assigned by
  Section 6.03(a), Penal Code.
         SECTION 3.  Subchapter B, Chapter 171, Health and Safety
  Code, is amended by adding Sections 171.019, 171.020, 171.021, and
  171.022 to read as follows:
         Sec. 171.019.  PREVENTION OF COERCED ABORTIONS. (a) Before
  performing an abortion, a physician shall:
               (1)  verbally inform the woman on whom the abortion is
  to be performed that a person cannot coerce or force her to have an
  abortion and that the physician cannot perform the abortion unless
  the woman provides her voluntary and informed consent;
               (2)  provide the woman on whom the abortion is to be
  performed with the coerced abortion form described by Section
  171.021:
                     (A)  in both English and Spanish; and
                     (B)  in a language other than English or Spanish,
  if applicable, under Section 171.021(c); and
               (3)  provide the woman with access to a telephone in a
  private room.
         (b)  A doctor may not perform an abortion on a woman unless,
  before the abortion, the woman certifies on the coerced abortion
  form described by Section 171.021 that she received from the
  physician the information and materials required by Subsection (a).
         (c)  If the woman indicates on the coerced abortion form or
  on the abortion reporting form required by Section 171.051 that she
  is being coerced to have an abortion performed, the physician:
               (1)  shall report abuse or neglect under Chapter 261,
  Family Code, if applicable;
               (2)  shall provide the referral required by Section
  171.020(2); and
               (3)  may not perform the abortion until the woman
  provides her voluntary and informed consent that the woman states
  is not a result of coercion.
         Sec. 171.020.  REFERRAL TO DOMESTIC VIOLENCE ASSISTANCE.
  The department shall require each physician who performs an
  abortion to:
               (1)  maintain a list of domestic violence shelters and
  assistance programs that do not provide or refer for abortions; and
               (2)  provide a referral to a domestic violence shelter
  or assistance program that does not provide or refer for abortions
  if the woman seeking an abortion communicates to the facility, the
  physician, or an agent of the physician who is performing the
  abortion that the woman is being abused or is being coerced to have
  the abortion.
         Sec. 171.021.  CONTENTS OF FORM. (a) The department shall
  develop a coerced abortion form to be completed by each woman on
  whom an abortion is performed in this state. The form must include:
               (1)  the following title centered on the page in
  boldfaced capital letters in 18-point font or larger: "NOTICE";
               (2)  the following statement printed in 14-point font
  or larger: "It is against the law for a person, regardless of that
  person's relationship to you, to coerce or force you to have an
  abortion. By law, a physician cannot perform an abortion, including
  inducing, prescribing for, or otherwise providing the means for an
  abortion, unless you give your voluntary and informed consent
  without coercion or force. It is against the law for a physician to
  perform an abortion against your will. You have the right to contact
  any local or state law enforcement agency to receive protection
  from any actual or threatened physical abuse or violence.";
               (3)  the following statements printed in 14-point font
  or larger followed by spaces for the woman to initial:
                     (A)  "I have been informed in person that no one
  can coerce or force me to have an abortion and that an abortion
  cannot be provided to me unless I provide my voluntary and informed
  consent.";
                     (B)  "I have read the above notice and understand
  that I have legal protection against being coerced or forced to have
  an abortion."; and
                     (C)  "I understand that I will be given access to a
  telephone in a private room.";
               (4)  spaces for the signature of the woman on whom an
  abortion is to be performed and the date the form was completed; and
               (5)  spaces for the license number, area of specialty,
  and signature of the physician who performed the abortion.
         (b)  The department shall provide the form required by
  Subsection (a) in both English and Spanish.
         (c)  If the department determines that a substantial number
  of residents in this state speak a primary language other than
  English or Spanish, the department shall provide the form required
  by Subsection (a) in that language. The department shall instruct a
  facility that provides abortions to provide the coerced abortion
  form in a language other than English or Spanish if the department
  determines that a substantial number of residents in the area speak
  a primary language other than English or Spanish.
         Sec. 171.022.  PROVISION, SUBMISSION, AND RETENTION OF
  COERCED ABORTION FORM. (a) The department shall provide a copy of
  this section and the coerced abortion form required by Section
  171.019 to:
               (1)  a physician who becomes newly licensed to practice
  in this state, not later than the 30th day after the date the
  physician receives the license; and
               (2)  all physicians licensed to practice in this state,
  not later than December 1 of each year.
         (b)  A physician who performs an abortion shall submit a
  coerced abortion form, completed by the woman on whom the abortion
  is performed, to the department for each abortion the physician
  performs.
         (c)  The original coerced abortion form shall be submitted by
  mail.
         (d)  A copy of the coerced abortion form certified by the
  woman shall be placed in the woman's medical file and kept until at
  least the seventh anniversary of the date on which the form was
  signed or, if the woman is a minor, at least until the date the woman
  reaches 20 years of age, whichever is later.
         (e)  The woman on whom an abortion is performed shall be
  given a copy of the completed coerced abortion form in person before
  the woman leaves the facility where the abortion is performed.
         SECTION 4.  Chapter 171, Health and Safety Code, is amended
  by adding Subchapter C to read as follows:
  SUBCHAPTER C.  ABORTION REPORTING
         Sec. 171.051.  ABORTION REPORTING FORM.  (a)  A physician who
  performs an abortion must submit a report by mail to the department
  on each abortion the physician performs. The report must be
  submitted on a form provided by the department.
         (b)  The report may not identify the name of the patient by
  any means.
         (c)  The abortion reporting form for each abortion must
  include the following information to be completed by the patient:
               (1)  the patient's age, race or ethnicity, and marital
  status and municipality, county, state, and nation of residence;
               (2)  the age of the father of the unborn child at the
  time of the abortion;
               (3)  a space for the patient to indicate the specific
  reason the abortion was performed, including:
                     (A)  the mother feels coerced or forced to have
  the abortion;
                     (B)  the mother has all the children she wants;
                     (C)  the mother cannot afford the child;
                     (D)  the child has been diagnosed with one or more
  health problems that are documented in the medical records of the
  mother;
                     (E)  the father of the child opposes the
  pregnancy;
                     (F)  a parent of the mother of the unborn child
  opposes the pregnancy;
                     (G)  the mother fears a loss of family support;
                     (H)  the mother fears losing her job;
                     (I)  a school counselor recommends abortion;
                     (J)  a physician recommends abortion;
                     (K)  the pregnancy was a result of rape;
                     (L)  the pregnancy was a result of incest; or
                     (M)  the mother does not wish to complete this
  section;
               (4)  the number of previous live births of the patient;
               (5)  the number of previous induced abortions of the
  patient;
               (6)  the number of previous miscarriages or spontaneous
  abortions of the patient;
               (7)  the source of referral for the abortion,
  including:
                     (A)  a physician;
                     (B)  self;
                     (C)  a friend or family member;
                     (D)  a member of the clergy;
                     (E)  a school counselor;
                     (F)  a social services agency;
                     (G)  the Department of State Health Services;
                     (H)  a family planning agency; or
                     (I)  other (specify): ___________________; and
               (8)  whether or not the woman availed herself of the
  opportunity to view the printed information required by Subchapter
  B, and, if so, whether the woman viewed the information described in
  Section 171.014, through the Internet or by booklet.
         (d)  The abortion reporting form for each abortion must
  include the following information to be completed by the physician:
               (1)  the name of the abortion facility at which the
  abortion was performed, the municipality and county in which the
  facility is located, and whether the facility:
                     (A)  is licensed as an abortion facility under
  Chapter 245;
                     (B)  is operating as the private office of a
  licensed physician;
                     (C)  is a licensed hospital;
                     (D)  is a licensed hospital satellite clinic; or
                     (E)  is a licensed ambulatory surgical center;
               (2)  the license number, area of specialty, and
  signature of the physician who performed or induced the abortion;
               (3)  the type of abortion procedure, including:
                     (A)  nonsurgical abortion, specifying the
  medication or chemical used;
                     (B)  suction and curettage;
                     (C)  dilation and curettage;
                     (D)  dilation and evacuation;
                     (E)  labor and induction;
                     (F)  dilation and extraction;
                     (G)  hysterotomy or hysterectomy; or
                     (H)  other (specify): ________;
               (4)  the date the abortion was performed;
               (5)  whether the patient survived the abortion, and if
  the patient did not survive, the cause of death;
               (6)  the number of fetuses the patient was carrying;
               (7)  the number of weeks of gestation based on the best
  medical judgment of the attending physician at the time of the
  procedure and the weight of the fetus or fetuses, if determinable;
               (8)  the method of pregnancy verification, including:
                     (A)  urine test;
                     (B)  clinical lab test;
                     (C)  ultrasound;
                     (D)  not tested; or
                     (E)  other (specify): ____________________;
               (9)  whether the abortion was paid for by:
                     (A)  private insurance;
                     (B)  a public health plan; or
                     (C)  personal payment by patient;
               (10)  whether there was no insurance coverage or
  insurance coverage was provided by:
                     (A)  a fee-for-service insurance company;
                     (B)  a managed care company; or
                     (C)  another source (specify): ________________;
               (11)  the total fee collected for performing the
  abortion, including any services related to the abortion;
               (12)  the type of anesthetic, if any, used for each
  abortion performed, and whether anesthetic was used for the woman,
  the unborn child or children, or both;
               (13)  the method used to dispose of the fetal tissue and
  remains;
               (14)  complications for each abortion, including:
                     (A)  none;
                     (B)  shock;
                     (C)  uterine perforation;
                     (D)  cervical laceration;
                     (E)  hemorrhage;
                     (F)  aspiration or allergic response;
                     (G)  infection or sepsis;
                     (H)  infant or infants born alive;
                     (I)  death of mother; or
                     (J)  other (specify): __________; and
               (15)  if the infant or infants were born alive:
                     (A)  whether life-sustaining measures were
  provided to the infant or infants; and
                     (B)  the period of time the infant or infants
  survived.
         (e)  If the patient is a minor, the report on each abortion
  must include:
               (1)  whether the minor's parent, managing conservator,
  or legal guardian provided the written consent required by Section
  164.052(a)(19), Occupations Code, and, if so, whether the consent
  was given:
                     (A)  in person at the time of the abortion;  or
                     (B)  at a place other than the location at which
  the abortion is performed or induced;
               (2)  whether the physician concluded and documented in
  writing in the patient's medical record that on the basis of the
  physician's good faith clinical judgment a condition existed that
  complicated the medical condition of the pregnant minor and
  necessitated the immediate abortion of her pregnancy to avert her
  death or to avoid a serious risk of substantial impairment of a
  major bodily function and that there was insufficient time to
  obtain the consent of the minor's parent, managing conservator, or
  legal guardian;
               (3)  whether the minor was emancipated and permitted to
  have the abortion without the written consent required by Section
  164.052(a)(19), Occupations Code;
               (4)  whether judicial authorization was received,
  waiving the written consent required by Section 164.052(a)(19),
  Occupations Code; and
               (5)  if judicial authorization was received, the
  process the physician or the physician's agent used to inform the
  minor of the judicial bypass, whether court forms were provided to
  her, and what entity made the court arrangement for the minor.
         (f)  The patient must fill out sections of the form under
  Subsection (c).  Sections to be filled out by the patient must be at
  the top of the form.  The bottom portion of the reporting form must
  be completed by the physician performing the abortion. The
  requirement that the patient fill out the patient's portion of the
  form may be waived only if the abortion is performed to prevent the
  death of the mother or to avoid harm to a mother described by
  Section 164.052(a)(18), Occupations Code, or harm to a mother who
  is a minor described by Section 164.052(a)(19), Occupations Code.  
  If the requirement that the patient fill out the patient's portion
  of the form is waived under this subsection, the physician
  performing the abortion shall include in the patient's medical
  records a signed written statement certifying the nature of the
  medical emergency.
         (g)  A copy of the abortion reporting form must be maintained
  in the patient's medical file at least until the seventh
  anniversary of the date of the abortion. The patient must be given
  a copy of the completed abortion reporting form in person after the
  physician and patient complete the form.
         (h)  The department shall provide the abortion reporting
  form required by this section, together with a copy of this section
  to:
               (1)  a physician who becomes newly licensed to practice
  in this state, not later than the 30th day after the date the
  physician receives the license; and
               (2)  all physicians licensed to practice in this state,
  not later than December 1 of each year.
         Sec. 171.052.  ABORTION COMPLICATION REPORT. (a) A
  physician practicing in the state who treats an illness or injury
  related to complications from an abortion shall complete and submit
  an abortion complication report to the department. The report must
  be submitted by mail on the form provided by the department.
         (b)  The department shall prepare an abortion complication
  report form for all physicians licensed and practicing in this
  state. A copy of this section must be attached to the form. The
  form must include:
               (1)  the date and type of the original abortion,
  including:
                     (A)  nonsurgical abortion, specifying the
  medication or chemical used;
                     (B)  suction and curettage;
                     (C)  dilation and curettage;
                     (D)  dilation and evacuation;
                     (E)  labor and induction;
                     (F)  dilation and extraction;
                     (G)  hysterotomy or hysterectomy; or
                     (H)  other (specify): ______________;
               (2)  the name and type of facility where the abortion
  complication was diagnosed and treated, including:
                     (A)  an abortion facility licensed under Chapter
  245;
                     (B)  a private office of a licensed physician;
                     (C)  a licensed hospital;
                     (D)  a licensed hospital satellite clinic; or
                     (E)  a licensed ambulatory surgical center;
               (3)  the name and type of facility where the abortion
  was performed, if known;
               (4)  the license number, area of specialty, and
  signature of the physician who treated the abortion complication;
               (5)  the date on which the abortion complication was
  diagnosed and treated;
               (6)  a description of the abortion complication,
  including:
                     (A)  none;
                     (B)  shock;
                     (C)  uterine perforation;
                     (D)  cervical laceration;
                     (E)  hemorrhage;
                     (F)  aspiration or allergic response;
                     (G)  infection or sepsis;
                     (H)  infant or infants born alive;
                     (I)  death of mother; or
                     (J)  other (specify): ________________;
               (7)  the patient's age, race or ethnicity, and marital
  status and municipality, county, state, and nation of residence;
               (8)  the number of weeks of gestation at which the
  abortion was performed based on the best medical judgment of the
  attending physician at the time of treatment for the abortion
  complication;
               (9)  the number of previous live births of the patient;
               (10)  the number of previous induced abortions for the
  patient;
               (11)  the number of previous miscarriages or
  spontaneous abortions of the patient;
               (12)  whether treatment for the abortion complication
  was paid for by:
                     (A)  private insurance;
                     (B)  a public health plan; or
                     (C)  personal payment by the patient;
               (13)  the total fee collected for treatment for the
  abortion complication;
               (14)  whether there was no insurance coverage or
  insurance coverage was provided by:
                     (A)  a fee-for-service insurance company;
                     (B)  a managed care company; or
                     (C)  another provider; and
               (15)  the type of follow-up care recommended.
         (c)  The department shall provide the abortion complication
  form required by this section, together with a copy of this section,
  to:
               (1)  a physician who becomes newly licensed to practice
  in this state, not later than the 30th day after the date the
  physician receives the license; and
               (2)  all physicians licensed to practice in this state,
  not later than December 1 of each year.
         (d)  A copy of the abortion complication report form must be
  maintained in the patient's medical file until the seventh
  anniversary of the date the abortion complication was diagnosed and
  treated. The patient must receive a copy of the completed form in
  person before the patient leaves the facility.
         SECTION 5.  Chapter 171, Health and Safety Code, is amended
  by adding Subchapter D to read as follows:
  SUBCHAPTER D.  PROVISIONS RELATING TO REPORTS; PENALTIES
         Sec. 171.061.  REPORTING REQUIREMENTS. (a) A physician
  performing an abortion shall complete and submit an abortion
  reporting form to the department for each abortion as required by
  Section 171.051 not later than the 15th day of each month for
  abortions performed in the previous calendar month.
         (b)  A physician required to submit an abortion complication
  report to the department by Section 171.052 shall submit the report
  as soon as practicable after diagnosis or treatment of the abortion
  complication, but in no case more than seven days after the date of
  the diagnosis or treatment.
         (c)  A physician performing an abortion shall submit a
  certified coerced abortion form for each abortion to the department
  as required by Section 171.022 not later than the 15th day of each
  month for abortions performed in the previous calendar month.
         (d)  Not later than April 1 of each year, the department
  shall issue in aggregate a public report summarizing the
  information submitted on each individual report required by
  Sections 171.051 and 171.052. The public report shall cover the
  entire previous calendar year and shall be compiled from the data in
  all the abortion reporting forms and the abortion complication
  reports submitted to the department in accordance with Sections
  171.051 and 171.052. Each public report shall also provide
  information for all previous calendar years, adjusted to reflect
  any additional information from late or corrected reports. The
  department shall ensure that none of the information included in
  the public reports could reasonably lead to identification of any
  physician who performed an abortion or treated abortion-related
  complications or of any woman who has had an abortion.
         (e)  Except as provided by Subsection (d) and Section
  245.023, all information and records held by the department under
  this subchapter and Subchapters B and C are confidential and are not
  open records for the purposes of Chapter 552, Government Code. That
  information may not be released or made public, except that release
  may be made:
               (1)  for statistical purposes, but only if a person,
  patient, physician, or facility is not identified;
               (2)  with the consent of each person, patient,
  physician, and facility identified in the information released;
               (3)  to medical personnel, appropriate state agencies,
  or county and district courts to enforce this chapter or Chapter
  245; or
               (4)  to appropriate state licensing boards to enforce
  state licensing laws.
         (f)  The department or an employee of the department may not
  disclose to a person or entity outside of the department the form or
  contents of the form described by Section 171.021 or the reports or
  contents of the reports required by this section and Sections
  171.051 and 171.052 in a manner or fashion that permits the person
  or entity to whom the form or report is disclosed to identify in any
  way a person who is the signatory of the form or the subject of the
  report.
         Sec. 171.062.  PENALTIES.  (a)  A physician who does not file
  a form required by Section 171.022 or submit a report required by
  Section 171.051 or 171.052 within 30 days of the date the form or
  report was due is subject to a late fee of $500 for each additional
  30-day period or portion of a 30-day period the report is overdue.
         (b)  A physician required to file a form by Section 171.022
  or a report by Section 171.051 or 171.052 who has not submitted a
  complete form or report before the first anniversary of the date the
  form or report was due is subject to a late fee under Subsection (a)
  and, in an action brought by the department, may be directed by a
  court to submit a complete form or report within a period stated by
  court order or be subject to sanctions for civil contempt.
         Sec. 171.063.  OFFENSE.  (a)  A person commits an offense if
  a person:
               (1)  fails to submit a form or report required by this
  subchapter or Subchapters B and C;
               (2)  intentionally, knowingly, or recklessly submits
  false information on a form or report required by this subchapter or
  Subchapters B and C;
               (3)  includes the name or identifying information of
  the woman who had the abortion in a form or report required by this
  subchapter or Subchapter C; or
               (4)  includes the name or identifying information of a
  physician in a public report required by Section 171.061(d).
         (b)  A person who discloses confidential identifying
  information in violation of Section 171.061(f) commits an offense.
         (c)  A physician commits an offense if the physician performs
  an abortion and the physician reasonably believes that the abortion
  is the result of coercion, as defined by Section 1.07, Penal Code.
         (d)  An offense under this section is a Class A misdemeanor.
         SECTION 6.  Section 245.001, Health and Safety Code, is
  amended to read as follows:
         Sec. 245.001.  SHORT TITLE.  This chapter may be cited as the
  Texas Abortion Facility [Reporting and] Licensing Act.
         SECTION 7.  Section 245.005(e), Health and Safety Code, is
  amended to read as follows:
         (e)  As a condition for renewal of a license, the licensee
  must submit to the department the annual license renewal fee and an
  annual report[, including the report required under Section
  245.011].
         SECTION 8.  Section 248.003, Health and Safety Code, is
  amended to read as follows:
         Sec. 248.003.  EXEMPTIONS.  This chapter does not apply to:
               (1)  a home and community support services agency
  required to be licensed under Chapter 142;
               (2)  a person required to be licensed under Chapter 241
  (Texas Hospital Licensing Law);
               (3)  an institution required to be licensed under
  Chapter 242;
               (4)  an ambulatory surgical center required to be
  licensed under Chapter 243 (Texas Ambulatory Surgical Center
  Licensing Act);
               (5)  a birthing center required to be licensed under
  Chapter 244 (Texas Birthing Center Licensing Act);
               (6)  a facility required to be licensed under Chapter
  245 (Texas Abortion Facility [Reporting and] Licensing Act);
               (7)  a child care institution, foster group home,
  foster family home, and child-placing agency, for children in
  foster care or other residential care who are under the
  conservatorship of the Department of Protective and Regulatory
  Services; or
               (8)  a person providing medical or nursing care or
  services under a license or permit issued under other state law.
         SECTION 9.  Section 245.011, Health and Safety Code, is
  repealed.
         SECTION 10.  (a)  Not later than December 1, 2009, the
  Department of State Health Services shall provide for distribution
  of the forms required by Subchapter B, Chapter 171, Health and
  Safety Code, as amended by this Act, and Subchapter C, Chapter 171,
  Health and Safety Code, as added by this Act, along with
  instructions for completing the forms.
         (b)  Not later than January 1, 2010, the Department of State
  Health Services shall distribute forms as required by Sections
  171.022(a), 171.051(h), and 171.052(c), Health and Safety Code, as
  added by this Act.
         (c)  A physician is not required to submit a form or report
  under Sections 171.022, 171.051, and 171.052, Health and Safety
  Code, as added by this Act, before January 1, 2010.
         (d)  The changes in law made by this Act apply only to an
  offense committed on or after January 1, 2010. For purposes of this
  section, an offense is committed before January 1, 2010, if any
  element of the offense occurs before that date. An offense
  committed before January 1, 2010, is covered by the law in effect
  when the offense was committed, and the former law is continued in
  effect for that purpose.
         SECTION 11.  (a)  Except as provided by Subsection (b) or
  (c) of this section, this Act takes effect September 1, 2009.
         (b)  Section 171.063, Health and Safety Code, as added by
  this Act, takes effect January 1, 2010.
         (c)  Sections 7 and 9 of this Act take effect January 1, 2010.