                         @ffice of tip !Zlttornep @enera
                                 &tate of Qexae
DAN MORALES                            August 13,1992
 ATTORNEI’
      GENERAL
     David R. Smith, M.D.               Opinion No. DM-153
     Commissioner
     Texas Department of Health         Re: Whether the Texas Abortion Facility
     1100 West 49th Street              Reporting and Licensing Act, Health and Safety
     Austin Texas 78756-3199            Code chapter 245, authorizes the Department of
                                        Health to release information relating to
                                        physicians and nurses to the State Board of
                                        Medical Examiners and Board of Nurse Bxam-
                                        iners, or authorizes the department to publicly
                                        disclose that an office or clinic is not a licensed
                                        abortion facility (RQ-322)

     Dear Commissioner Smith:

              On behalf of the Texas Department of Health (the “department”), your
     predecessor asked whether the Texas Abortion Facility Reporting and Licensing Act
     (the “act”), Health and Safety Code chapter 245, permits the department to release
     information to other state agencies such as the Board of Medical Examiners or the
     Board of Nurse Examiners. He also asked whether the act permits the department
     to inform a person that an office, clinic, or facility is not licensed as an abortion
     facility.

            The act generally sets forth licensing requirements for abortion facilities.
    Health & Safety Code $5 245.003-245.008. The act also authorizes the Texas Board
    of Health (the “board”) to adopt rules regarding the issuance of licenses and
    establishing minimum standards to protect the health and safety of patients. Id.
    gg245.009, 245.010. Section 245.011 of the act sets forth certain reporting
    requirements applicable to all abortion facilities. Subsection (b) of section 245.011
    provides that “[t]he report may not identify by any means the physician performing
    the abortion or the patient.” Subsection (d) provides that “[a]11information and
    records held by the department under this chapter are confidential and are not open
    records for purposes of [the Texas Open Records Act]. . . .” It also provides that
    information may not be released except under the following circumstances:
                  (1) for statistical purposes, but only if a person, patient, or
              abortion facility is not identified;



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David   R. Smith, M.D.     -   Page 2          (m-153)




                 (2) with the consent of each person, patient, and abortion
            facility identified in the information released; or
                (3) to medical personnel, appropriate state agencieq or
            county or district courts to enforce this chapter.

Id 5245.011(d).       A violation of section 245.011 is a class A misdemeanor.                  Id.
0 245.011(e).

        Your predecessor first asked whether the act permits the department to
release information to other state agencies such as the Board of Medical Examiners
or the Board of Nurse Examiners.            Specifically, he stated that “[d]uring
investigations the department may receive information concerning the alleged
unprofessional or unethical conduct of a physician or muse. The department would
like to be able to release information relating to that physician or nurse to the
appropriate licensing agency for action as determined by that agency.” Thus, he
asked whether section 245.011(d)(3) allows the release of information to such
licensing agencies in these circumstances.

        Section 245011(d)(3) authoriaes the department to release information “to
medical personnel appropriate state agencies, or county or district courts to enforce
tti chapter..” (Emphasis added.) We believe that this provision authorizes the de-
partment to release information to other, state agencies only for the purpose of en-
forcing the act. As noted above, the act deals primarily with the licensing and
licensing standards for abortion facilities. It does not include provisions governing
the “unprofessional or unethical” conduct of physicians and nurses, nor has the
board adopted any such regulations. See 25 T.A.C. ch. 139.’ Therefore, we



         ‘We do not decide whether the board would be autborkd to adopt regulations gowning the
“uoprofcssiod or unethical” conduct of physidansand nurse& We note, lwwem, lhalwwescctioo
2/1X010 of the act authorizes the board to cstabkb “minimum stmdar& to protect the health and
safw of abortion facility patients, its authority under this pmvision is not utdindtd   Rather it is
cqmcsly limited to rulemaking in the folkming areas qualirutions for and supcNision of
profcsiomd and nonprofessional pcrsonncl; medical treatment and medical sewices pmvidcd by ao
abortim facility smitay and hygienic con-          quipmeat; md &ical rcead* Health& Safety
Code 0 245.010(c)(l)-(6); see a&o Attorney General Opinion JM-1076 (1989) (board not author&d to
adoptrulesg~thc~~~of~~bceauseautboritytordopt
‘minimum health and safety standardsg limited to these pm&bed arcas) @cmtndq former V.T.C.S.
article 492.8, of which chapter 245 of the Health and Safety Code is a mmsubstantivc rwxlikation;
see Acts 1989, 7lst Leg., ch. 678, 0 l, at 248549). Furthermore, uxtion 245.101(c) provides that
atandartis adopted in these areas ‘may not be more stringent than Medicare artitication standards, if



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David R. Smith, M.D. - Page 3                    ON-153)




conclude that the release of infortnation to the Board of Medical Examiners or the
Board of Nurse Examiners for the purpose of disciplining a physician or nurse for
“unprofessional or unethical conduct” would not be for the purpose of enforcing the
act and is not authorized by section 245.011(d)(3).2

        With respect to his second question, we believe that the act does not permit
the department to inform a person that an office, clinic, or facility is not licensed as
an abortion facility. As noted above, section 245.011(d) provides that all
information and reports held by the department under the act are confidential and
may be released only in certain prescribed circumstances. In Attorney General
Opinion JM-1144 (1990), this of&e addressed these confidentiality provisions and
interpreted them broadly. On the basis that both subsections (b) and (d)( 1) protect
the identities of physicians and clinics, the opinion concluded that the act prohibits

(foc4notc wntinued)
my...:    In addition, subsection (d)(l) of section 245.010 cxpmsly states that it ‘does not authorize
the board to establish the qualiktions of a &ken&pmctinbna.      (Emphasis added.)

         %I a brief submitted to this oftii the Board of Nurse Examii     matends that the following
provision of the Nurse Practice Act, V.T.C.S. art. 45l3 et seq., rquim the department to rck.a.u any
iufamation about 11u1s.sto the Board of Nurse Exandinas:




          We do not believe that this pmision rqukcs the department to repmt infomatioa it obtains
in an investigation of a licensed abortion kility pursuant to the act to the Board of Nurse Exam&n.
First, as noted above, an inm%igatioa of a licmsed abortion facility pursuant to the act is not a
‘==Yil . . . with rcspcu to quality of profcssiorlaJ n@      care proviw       Rather, its purpose is to
cnsurc compliarm with chapter 245 of the Health and Safety Code which does not govern the qwJity of
nursing care.. See Health k Safety Code 0 24S.CKl6(author&g tbc dcpartmcat to bwpcet abortk
farilitics 90 assure compliance with this chapter*); see ako sups note 1. Second, Health and Safety
Code seetim 245011(d)(3) expressly prohibits the department from rcksing b&rmation about
ticcad ahwtion facilities to state agencies except for the purpose of enforcing the act.




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David R. Smith, M.D. - Page 4            w-153)




the department from confitming whether a certain clinic or physician’s office is a
licensed abortion facility, absent consent. Attorney General Opinion JM-1144 at 3.
The opinion also concluded that the act prohibits the department from releasing
statistical information if that information would allow a person to infer the identity
of a clinic, patient or physician. Id. at 4 (citing Open Records Decision No. 422
(1984)). In sum, Attorney General Opinion JM-1144 construed the act to absolutely
prohibit the release of any information which would confirm, dhecdy or indirectly,
that a clinic or physician’s office is a licensed abortion facility, absent the clinic or
physician% consent.

        We conclude that the act also prohibits the department from releasing
information that an office, clinic or facility is nor a licensed abortion facility.
Obviously, if requesters are aware that the department routinely confirms that an
office, clinic or facility is nor a licensed abortion facility but is prohibited from
affhmatively stating that an office. clinic or facility ir a licensed abortion facility,
they will be able to determine the license status of particular facilities based on the
department’s response to their queries. In other words, if the department declines
to respond to an inquiry, the requestor will be able to glean from that response that
the subject of the inquiry is a licensed abortion facility. The act, as construed in
Attorney General Opinion JM-1144, prohibits such a release of information,
however indirect.

                                  SUMMARY

               The Texas Abortion Facility Reporting and Licensing Act,
          Health and Safety Code chapter 245, does not pertnit the Texas
          Department of Health to release information to the Board of
          Medical Examiners or the Board of Nurse Examiners for the
          purpose of disciplining physicians or nurses for “unprofessional
          or unethical conduct.” Nor does the act pemrit the department
          to inform a person that an office, clinic, or facility is not licensed
          as an abortion facility.




                                                    DAN      MORALES
                                                    Attorney General of Texas


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David R. Smith, M.D. - Page 5        (m-153)




WILL PRYOR
First As$stant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAHlcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General




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