                                    The Attorney’ General of Texas

     JIM MATTOX
                                                        hne   19, 1986
     Attorney General



     Supreme Courl Building         Robert Bernstein, M.D.                Opinion No. JM-502
     P. 0. BOX 12545
     Austin, TX. 79711. 2549
                                    Comissioner of Health
     51214752501                    Texas Department cf Health            Re: Whether the reporting require-
     Telex 91019741357              1100 West 49th Slxeet                 ments of section 4(a) of article
     TelecoDier 51214750288         Austin, Texas   76,756                4512.8, V.T.C.S., the Texas Abortion
                                                                          Facility Reporting and Licensing Act,
     714 Jackson, Suite 700
                                                                          apply to both licensed and unlicensed
     Dallas. TX. 752024506                                                facilities
     2w742aw4
                                    Dear Dr. Bernstein:
     4824 Alberta Ave., Suite 160
     El Paso. TX. 799052793
                                         You ask aboul:the scope of the reporting requirements set out in
     915/533a4s4                    the Texas Abortim Facility Reporting and Licensing Act, article
                                    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
     800 Broadway, Suite 312                  annual report to the [Department of Health] on
     Lubbock. TX. 79401-3479                  each abortion that is performed at the facility on
     8081747-5239                             a form provided by the department. The report
                                              shall r,ot identify by any means the physician
     4309 N. Tenth. Suite B                   performmg the abortion or the patient on whom the
     McAllen, TX. 78501-1685                  abortion was performed. The report shall include
     51216824547                              the fol:.cwinginformation:

     200 Main Plaza. Suite 400                   (1) whether or not the facility at which the
     San Antonio, TX. 792052797               abortion is performed is licensed under this
     512n254191                               article;

                                                  (2) patient's year of birth, race, marital
     An Equal OpportunityI
     Affirmative Action Employer
                                              status, and state and county of residence;

                                                  (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;




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Dr. Robert Bernstein - Page 2    (m-502)


                                                                        -,


            (6) the peric'dof 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

             (2)  release I,s made with the consent of each
          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 .theprovisions 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




                           p. 2306
Dr. Robert Bernstein - Page I! (JM-502)




          Texas Civil Statuxes) or the office of a physician
          licensed under tt,eMedical Practice Act (Article
          4459b. Vernon's T?:rasCivil 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,eportingrequirements apply to any place
where abortions are performed, including a place licensed under the
Hospital Licensing Law, art,icle4437f. V.T.C.S., or a place that is
the office of a physician :Licensedunder 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!Iinitionof "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 "facilityU "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,ngrequirements 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:icesof physicians who are licensed under
the Medical Practices Act. Apparently the legislature determined that
"double licensing" is unnece~ssaryor 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:cticle4512.8. 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.




                             p. 2307
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




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