                       July 31, 1989




Honorable Hugh Parmer       opinion No.   JR-1076
Chairman
Committee on Intergovern-   Re: Validity   of rules issued
   mental Relations         by the Texas Board of Health  to
Texas State Senate          implement the Texas     Abortion
P. 0. Box 12068             Facility Reporting and Licensing
Austin, Texas   78711       Act, article 4512.8, V.T.C.S.
                            (RQ-1511)

Dear Senator Parmer:

     You ask whether  rules adopted by the Texas Board of
Health with regard to the "construction and design" of abor-
tion facilities exceed the rule-making authority granted to
the board in article 4512.8, V.T.C.S.,   the Texas Abortion
Facility Reporting and Licensing Act.

     The Texas Abortion     Facility Reporting   and Licensing
Act was enacted in 1985. Acts 1985, 69th Leg., ch. 931, at
3121, 3173. The Act requires that abortion facilities       be
licensed by the Department       of Health,    imposes certain
reporting requirements    on such facilities, authorizes   the
department to seek.injunctions    for violations of standards
or licensing requirements    under the Act, and provides   for
penalties.  The Nlemaking    authority about which you inquire
is conferred on the Board of Health in section 3 of the Act,
which provides in part:

           (a) The board shall adopt rules necessary
       to implement this article, including reguire-
       ments   for the issuance, renewal,    denial,
       suspension, and revocation of a license, to
       operate a facility based on the       minimum
       standards set out below.

           (b) The board shall set minimum  standards
       to protect the health and safety of the
       patient.   An abortion shall be      performed
       only by a physician as defined by the provi-
       sions of the Medical Practice Act      (Article
       4495b, Vernon's Texas Civil Statutes).    These




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Honorable Hugh Parmer - Page 2     (JM-1076)




       standards shall be no more stringent               than
       Medicare certification standards for:

          (1) qualifications     for     professional     per-
       sonnel:

           (2) qualifications      for      nonprofessional
       personnel;

           (3) medical treatment and medical services
       provided by a facility and the coordination of
       treatment and services:

           (4) supervision of professional        and     non-
       professional personnel;

           (5) sanitary   and     hygienic       conditions
       within the facility:

          (6) the equipment essential to the            health
       and welfare of the patients: and

          (7)   clinical records kept by the facility.

     Relying on the provisions    of section 3 of article
4512.8 as authority, the Board of Health has adopted    rules
regulating abortion facilities.  25 T.A.C. 55 139.1 through
139.47. Sections 139.21 through 139.23 ("General Construc-
tion Requirements for Abortion Facilities"), sections 139.31
and 139.32 ("Requirements for Existing Abortion Facilities")
and sections 139.41 through 139.47 ("Construction Reguire-
ments for New Abortion Facilities") impose various standards
for the construction and design of abortion facilities,   the
area of regulation about which you are concerned.       Also,
other provisions touch on the matter of the construction and
design of abortion facilities.    a,   e.q., id.    5 139.16.
Many of the rules incorporate by reference technical    rules
or standards, such as those of the National Fire  Protection
Association, the American Society for Testing and Materials,
etc.

     It appears from our research,  and from the brief sub-
mitted by the Department of Health in connection with this
request, that the resolution   of the question you present
turns on the interpretation of section 3 of article  4512.8.
The department argues:

           u    of these construction and design stan-
        dards   for abortion   facilities  insure -the




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Honorable Hugh Parmer - Page 3 (JM-1076)


                  .


        health and safety of patients, and, there-
        fore, fall within the standards allowed by
        the first sentence of Section 3(b) of the
        Act.

        . . . .

        It is reasonable to say that the list of
        categories in Section 3(b) of the Act is not
        meant to limit the types of minimum standards
        the board may establish to protect the health
        and safety of the patient,      but only to
        itemize certain  areas which  the board must
        cover in its standards  and which must be no
        more stringent than certain Medicare   stand-
        ards. The seven categories should be read as
        an inclusive, rather than exclusive, list of
        standards.

Brief for Texas Department of Health,   at 6 and 7 (Dec.   22,
1988).

     From the scant legislative history on the provisions of
the Texas Abortion Facility Reporting and Licensing Act1 we
find only one clear indication of the intended scope of the
Board of Health's rule-making   authority under section   3.
The document  "Conference Committee Report, H.B. 2091 En-
grossed and the Senate Version of H.B. 2091" (May 27, 1985)
states in part that section 3

        [aluthorizes the board to establish minimum
        standards  for   facility  licensure  which



      1. House Bill 2091 as originally filed did not include
the provisions   of the Abortion    Facility  Reporting  and
Licensing Act, nor did the committee substitute version   of
the bill which passed the House on May 22, 1985.         The
provisions of the Abortion Facility Reporting and Licensing
Act were added in the Senate by floor 'amendment, where the
bill passed, with other amendments as well, on May 26.   The
House refused to accept the Senate amendments and the bill
was referred to conference committee where   it was adopted
with the    Abortion   Facility Reporting    and   Licensing
provisions added by the Senate.    The conference  committee
version was adopted by both the House and Senate on May 27,
1985.




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        concern:   personal   qualifications;   medical
        treatment   and services provided     and   the
        coordination   of those services;     personnel
        supervision:   sanitary   conditions   of   the
        facility; equipment essential for the health
        and welfare     of patients:     and   clinical
        records.

     The provisions   of section   3(b), again, provide   that
"[t]he board shall set minimum      standards to protect    the
health and safety of the patient. . , . These standards
shall be no more stringent       than Medicare   certification
standards for [seven listed areas which do not include the
'construction and design' of a facility]." We concede     that
these provisions are susceptible of two different    interpre-
tations. The Department of Health's view is that the first
sentence confers general    authority   to set standards     to
protect patient health and safety and that the seven listed
categories, for which "standards shall be no more stringent
than Medicare certification standards," restrict the board's
authority in rule-making   only regarding   those seven cate-
gories. The view expressed in the Conference         Committee
Report quoted above is that the seven listed categories
constitute the exclusive areas regarding which the board may
promulgate standards.

     The rules in question were not adopted until 1987. The
Board of Health's  interpretation of the rules is thus not
one of such long standing that we believe   it would be ac-
corded great weight by a court. &R Guarantee Mutual     Life
Ins. Co. v. Harrison, 358 S.W.2d 404 (Tex. Civ. App. - Aus-
tin 1962, writ ref'd n.r.e.).

     On the other hand, we believe that the interpretation
of the section  3 provisions  found in the Conference   Com-
mittee Report quoted above is of considerable   significance
in determining  the legislative intent in enacting     these
provisions. See. e.a   National Carloadina Corn. v. Phoenix-
El Paso EXDrSSS, 178'8.W.2d 133 (Tex. Civ. App. - El Paso),
aff'd 176 S.W.2d 564 (Tex. 1943), cert. denied, 322 U.S. 747
(1944).

     Accordingly, we conclude that the authority in section
3 of article 4512.8 for the Board of Health to set standards
for abortion facilities is limited to those areas listed  in
subsections (b)(l) through (b)(7), and does not include the
authority to impose construction and design standards.




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Honorable Hugh Parmer - Page 5   (JM-1976)




     In support of this conclusion we note that another
article of H.B. 2091 makes provisions for the licensing   by
the Department   of Health of Ambulatory  Surgical  Centers.
See V.T.C.S.   art. 4437f-2, the Texas Ambulatory   Surgical
Center Licensing Act.     That act also confers  rule-making
authority on the Board of Health vis a vis the setting    of
minimum standards.   In this instance, however, the provi-
sions for rule-making authority read in part:

           (b)   The board shall set minimum standards
        for:

           (1) the construction   and desian of an
        ambulatorv suraical center, including plumb-
        ing, heating,   lighting, ventilation,    and
        other design standards that are necessary  to
        ensure the health and safety of patients;

           (2) the qualifications   of the       profes-
        sional staff and other personnel         at   an
        ambulatory surgical center:

           (3) the equipment essential to the health
        and welfare of the patients:

            (4) sanitary and    hygienic   conditions
        within the ambulatory surgical center and its
        surroundings: and

           (5) a quality assurance      program for   pa-
        tient care.

           (c) Standards set under this section may
        not exceed the minimum standards for certifi-
        cation under Title XVIII of the Social Secu-
        rity Act, as added July 30, 1965   (Pub.L.No.
        89-97).   (Emphasis added.)

     The specific authorization   in the Ambulatory  Surgical
Center Licensing Act for the board to set minimum   standards
for the wconstruction and design" of a facility suggests
that had the legislature     in the same bill intended to
authorize the board to adopt construction and design    stan-
dards for abortion  facilities, it would have done so ex-
pressly.

     We note, however, that though we find the board has no
authority to impose construction   and design standards   on
abortion facilities, some of the standards adopted under the




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Honorable Hugh Parmer - Page 6       (J&1076)




above referenced rules relating to construction and design
may be authorized as falling within one of the areas listed
in subsections   (b)(l) through   (b)(7) of section  3, -
"sanitary and hygienic     conditions within   the facility"
(subsection (b)(5)), or "the equipment     essential  to the
health and welfare of the patients" (subsection (b)(6)). We
are unable, however,   in the opinion process to review an
extensive body of agency rules for the legal sufficiency  of
each item.

     We also note that we do not understand you to ask
about, and therefore we do not address, the effect of the
provisions of section 3 of article       4512.8, which  limit
standards adopted by the board to being "no more stringent
than Medicare   certification   standards."  It appears that
there are no "Medicare certification standards" for abortion
facilities.   The Department of Health has informed us in its
brief that it has deemed this language to refer to Medicare
Standards for ambulatory surgical centers "which appear to
be the type of Medicare facility closest        in nature to
abortion facilities.*' w     42 C.F.R. 416.

                       SUMMARY

           Rules adopted by the Board of Health
        setting minimum standards    for the construc-
        tion and design of abortion facilities exceed
        the board's   statutory   authority  under the
        Texas Abortion Facility Reporting and Licens-
        ing Act to the extent such rules are not
        authorized by provisions of the act authoriz-
        ing the board to set minimum standards      for
        the qualifications      for professional    and
        non-professional personnel, medical treatment
        and medical services, supervision of person-
        nel, sanitary and hygienic     conditions,  the
        equipment essential to the health and welfare
        of the patients,    and the clinical    records
        kept by the facility.             .




                                          JIM     MATTOX
                                          Attorney General of Texas

MARY KELLER
First Assistant-Attorney   General




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LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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