Case Information
*1 The Attorney’ General of Texas hne 19, 1986
JIM MATTOX
Attorney General
Supreme Courl Building P. 0. BOX 12545 Austin, TX. 79711. 2549 [51214752501] Telex 91019741357 TelecoDier 51214750288 Texas Department cf Health Robert Bernstein, M.D. Austin, Texas 76,756 Comissioner of Health 1100 West 49th Slxeet Opinion No. JM-502 Re: Whether the reporting require- ments of section 4(a) of article Facility Reporting and Licensing Act, 4512.8, V.T.C.S., the Texas Abortion apply to both licensed and unlicensed 714 Jackson, Suite 700 facilities Dallas. TX. 752024506 2w742aw4 Dear Dr. Bernstein: 4824 Alberta Ave., Suite 160
You ask aboul: the scope of the reporting requirements set out in El Paso. TX. 799052793 the Texas Abortim Facility Reporting and Licensing Act, article 915/533a4s4 4512.8, V.T.C.S. ‘- 1 Texas, suits 7w The act set,; out the following reporting requirements, which >uston, TX. 77002-3111 apply to any "fac:.l.ity":
713/22369ea
Sec. 4. (a) Each facility must submit an annual report to the [Department of Health] on 800 Broadway, Suite 312 each abortion that is performed at the facility on Lubbock. TX. 79401-3479 8081747-5239 a form provided by the department. The report
shall r,ot identify by any means the physician
4309 N. Tenth. Suite B McAllen, TX. 78501-1685 [51216824547] performmg the abortion or the patient on whom the abortion was performed. The report shall include the fol:.cwing information: (1) whether or not the facility at which the 200 Main Plaza. Suite 400 abortion is performed is licensed under this San Antonio, TX. 792052797 article; 512n254191 (2) patient's year of birth, race, marital An Equal OpportunityI and state and county of residence; status, Affirmative Action Employer
(3) type of abortion procedure: (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;
Dr. Robert Bernstein - Page 2 (m-502)
-, (6) the peric'd of gestation based on the best medical judgment of the attending physician at the time of the procedure;
(7) the date, if known, of the patient's last menstrual cycle;
(8) the number of previous live births of the patient;
(9) the numbm of previous induced abortions of the patient.
(b) All information and records held by the department under the provisions of this article shall be strictl), confidential and not considered open records for the purposes of Chapter 424, Acts of the 63rd Legislature, Regular Session, 1973, as amended (Article 6252-17a. Vernon's Texas Civil Statutes). Such information shall not be released or made public upon subpoena or otherwise, except that release mar be made under the following circumstances:
(1) release is made for statistical purposes only, so that no 'person, patient or facility may be identified; or release I,s made with the consent of each (2)
person, patient and facility identified in the information releamd; or
(3) release i:s made to medical personnel, appropriate state iagencies, or county and district courts to enforce .the provisions of this article.
(c) A violation of this section is punishable as a Class A misdaneanor.
Art. 4512.8, P4. The act defines "facility" as "a place where abortions are performed." ha. 4512.8, §2(1).
The act also provides that a person may not establish or operate a "facility" without "the appropriate license issued under this article." Art. 4512.8, 05. Section 6(f), however, provides:
Nothing in this article shall be construed to require a facility licensed under the Texas Hospital Licensing Law (Article 4437f, Vernon's *3 Dr. Robert Bernstein - Page I! (JM-502)
Texas Civil Statuxes) or the office of a physician licensed under tt,e Medical Practice Act (Article 4459b. Vernon's T?:ras Civil Statutes) to obtain a license under this article, unless such office is utilized primarily for the purpose of performing abortions. (Emphmis added).
You ask:
Do the report,lng requirements set forth in section 4(a) of article 4512.8, V.T.C.S., apply only to licensed facilities or to both licensed facilities and ttme facilities which are exempt from licensure under section 6(f) of that act?
We conclude that the r,eporting requirements apply to any place where abortions are performed, including a place licensed under the Hospital Licensing Law, art,icle 4437f. V.T.C.S., or a place that is the office of a physician :Licensed under the Medical Practice Act, article 4495b. V.T.C.S. Section 6(f) exempts certain places from the licensing requirements only. Also, it refers to the places exempted as "facilities." In other words, the licensing exemption only makes certain places exempt from licensing requirements. It does not exempt those places from the d~z!Iinition of "facility." The reporting requirements apply to any "facility" -- in other words, to any "place where abortions are performed." Therefore, the plain language of article 4512.8 requires us to conclude that the reporting requirements of article 4512.8 apply to any facility licensed under the Hospital Licensing Act and any faci:Xty that is the office of a physician who is licensed under the Medixl Practices Act as well as any facility licensed under article 4512.8. Also, section 4(a)(l) requires reporting of whether the "facility U "is licensed under this article." This would be surplusage unless unlicensed facilities had to report.
Also, we think there :ts an obvious reason for exempting certain facilities from the licensj,ng requirements but not from the reporting requirements. The exemption from the licensing requirements under article 4512.8 applies only, to facilities licensed under the Hospital Licensing Law or to the of:l:ices of physicians who are licensed under the Medical Practices Act. Apparently the legislature determined that "double licensing" is unnece~ssary or undesirable because the licensing requirements of those act, ensure the standards of care that the licensing requirements of article 4512.8 are intended to ensure. The reporting requirements of s:cticle 4512.8. on the other hand, are at least in part for statistjcal purposes. See art. 4512.8, 54(b)(l). It makes sense to compile statistics regasding abortions from all facilities at which abortions are performed, not just those licensed under article 4512.8.
Dr. Robert Bernstein - Page 4 (JM-502)
Therefore, we conclude that the reporting requirements of article 4512.8 apply to any place "bare abortions are performed, regardless of whether the place is exempt from the licensing requirements of article 4512.8.
SUMMARY The reporting requirements of article 4512.8, section 4, V.T.C.S,., apply to all facilities at which abortions are performed, not just to those facilities licensed under article 4512.8, V.T.C.S.
JIM MATTOX Attorney General of Texas JACK HIGETOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorne:? General
ROBERT GRAY
Special Assistant Attorney 'General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General