Bill Text: NJ A4440 | 2012-2013 | Regular Session | Introduced
Bill Title: Provides for licensing of abortion facilities and establishes criminal and civil penalties for violations, and designated as the "Women's Health Protection Act."
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2013-11-18 - Introduced, Referred to Assembly Health and Senior Services Committee [A4440 Detail]
Download: New_Jersey-2012-A4440-Introduced.html
Sponsored by:
Assemblywoman ALISON LITTELL MCHOSE
District 24 (Morris, Sussex and Warren)
SYNOPSIS
Provides for licensing of abortion facilities and establishes criminal and civil penalties for violations, and designated as the "Women's Health Protection Act."
CURRENT VERSION OF TEXT
As introduced.
An Act concerning regulation of facilities that perform abortions, supplementing Title 26 of the Revised Statutes, and designated as the "Women's Health Protection Act."
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in this act:
"Abortion" means the use of any means to terminate the pregnancy of a female known to be pregnant with knowledge that the termination with those means will, with reasonable likelihood, cause the death of the fetus.
"Abortion facility" means an abortion practice or licensed ambulatory care facility.
"Abortion practice" means a setting, other than in a hospital or licensed ambulatory care facility, in which a licensed physician performs five or more first trimester abortions in any month in accordance with regulations adopted by the State Board of Medical Examiners.
"Commissioner" means the Commissioner of Health.
"Department" means the Department of Health.
"Gestation" means the time that has elapsed since the first day of a woman's last menstrual period.
"Health care professional" means a health care professional who is licensed or otherwise authorized to practice a health care profession pursuant to Title 45 of the Revised Statutes and is currently engaged in that practice.
"License" means a license issued by the department pursuant to this act.
"Licensed abortion facility" means an abortion facility licensed pursuant to this act.
"Licensee" means the holder of the license.
"Licensed ambulatory care facility" means a facility licensed pursuant to P.L.1971, c.126 (C.26:2H-1 et seq.), other than a hospital, in which five or more first trimester abortions are performed in any month, or in which any abortions in the second or third trimester are performed.
"Physician" means a person who is licensed to practice medicine and surgery pursuant to chapter 9 of Title 45 of the Revised Statutes.
2. a. An abortion practice, which performed abortions prior to the effective date of this act, shall apply to the department for a license as a licensed abortion facility within 90 days of the effective date of this act.
b. A licensed ambulatory care facility, which performed abortions prior to the effective date of this act, shall comply with the provisions of this act within 90 days of the effective date of this act.
c. Beginning six months after the effective date of this act:
(1) the department shall issue a license as a licensed abortion facility to an abortion practice or licensed ambulatory care facility which complies with the provisions of this act; and
(2) in the case of a licensed ambulatory care facility that performed abortions prior to the effective date of this act, the department shall, at the time of renewal, issue the licensed ambulatory care facility a license as a licensed abortion facility if the licensed ambulatory care facility complies with the provisions of this act.
d. A person who operates an abortion facility in violation of this section shall be guilty of a crime of the third degree.
e. A person who purposely, knowingly, or recklessly violates the provisions of this act, or any rules and regulations adopted pursuant thereto, shall be guilty of a crime of the third degree.
f. A licensed abortion facility that violates the provisions of this act may be liable to a civil penalty of $500 for the first offense, $1,000 for the second offense, and $2,000 for the third and each subsequent offense, to be sued for and collected in a summary proceeding by the commissioner pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). Each day of violation shall constitute a separate violation for purposes of assessing the penalty. The commissioner shall consider, in determining whether to pursue a civil penalty pursuant to this subsection, the following:
(1) the gravity of the violation, including the probability that death or serious physical harm may or has resulted as a consequence of the violation;
(2) the size of the population at risk as a consequence of the violation;
(3) the extent to which this act or rules and regulations adopted pursuant thereto were violated;
(4) an indication that the licensed abortion facility acted in good faith;
(5) the duration, frequency, and relevance of any previous violation; and
(6) the financial benefit to the licensed abortion facility of continuing or having committed the violation.
g. The Attorney General may, in a civil action, obtain appropriate prospective injunctive relief to enjoin a violation of this act.
3. a. The department shall prescribe the form and manner for applying to the department for a license as a licensed abortion facility, which shall provide for submission of information the department deems necessary for complying with the provisions of this act and the rules and regulations adopted pursuant thereto.
b. The department may issue a provisional license for a six-month period in a case in which compliance with minimum standards, rules, and regulations require an extension of time, unless another State or local agency authorized to perform inspections has otherwise disapproved the applicant or the applicant's noncompliance would be detrimental to the health and safety of the public.
c. A license issued pursuant to this act shall apply to the location and licensee stated on the application, and shall not be transferable from one location to another location or from one licensed abortion facility to another licensed abortion facility.
d. If a licensed abortion facility changes location, the department shall revoke its license and require a new application to be filed with the department prior to renewal of a license.
e. A full license shall be valid for one year from the date of issuance, be on a form prescribed by the department, and may be renewed yearly upon application and payment of a renewal fee.
f. The department shall set by regulation the fee for an initial license and license renewal.
g. The department may deny, suspend, revoke, or refuse to renew a license in any case in which the department finds that there has been a substantial failure of the applicant or licensed abortion facility to comply with the requirements of this act or the rules and regulations adopted pursuant thereto. The department shall furnish the person, applicant, or licensee with a 30 days' notice specifying the reason for denial, suspension, revocation, or refusal to renew a license.
h. A person, applicant, or licensee who feels aggrieved by the action of the department in denying, suspending, revoking, or refusing to renew a license may appeal the action in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
4. Prior to the issuance or renewal of a license pursuant to this act, the department shall conduct an on-site inspection to ensure compliance with the provisions of this act and the rules and regulations adopted pursuant thereto. The department shall establish rules and regulations for conducting pre-licensure and re-licensure inspections, which shall include procedures for:
a. conducting an inspection and investigation as a result of a complaint received by the department that is made against a licensed abortion facility for non-compliance with the provisions of this act and the rules and regulations adopted pursuant thereto; and
b. recording, responding to, and disposing of, complaints received concerning a licensed abortion facility.
5. a. The commissioner shall adopt rules and regulations that, at a minimum, require a licensed abortion facility to have physical facilities that provide:
(1) adequate private space specifically designated for interviewing, counseling, and medically evaluating a patient;
(2) a dressing room for patients and health care professionals;
(3) appropriate lavatory areas for handwashing prior to performing an abortion;
(4) a private procedure room for performing an abortion that provides adequate lighting and ventilation;
(5) surgical or gynecological examination tables and other fixed equipment necessary to facilitate performance of an abortion;
(6) a dedicated recovery area sufficiently equipped to provide for a patient to be supervised, monitored, and observed until discharge;
(7) emergency exits that accommodate a stretcher and gurney;
(8) an area for cleaning and sterilizing instruments; and
(9) an area for securely storing medical records, equipment, and supplies.
b. A licensed abortion facility shall display its current license in an area that is conspicuous to patients.
6. The commissioner shall adopt rules and regulations concerning medications, supplies, and equipment that shall be immediately available at a licensed abortion facility in case of an emergency. The rules and regulations shall, at a minimum:
a. prescribe required equipment and supplies, including medications, that are necessary for performance of an abortion in an appropriate manner and that health care professionals at the licensed abortion facility anticipate may be necessary, and for monitoring the progress of each patient throughout the abortion and the recovery period;
b. require that a sufficient amount of supplies and adequate furnishing of equipment are available at all times to ensure sufficient quantities of clean and sterilized equipment and supplies to meet each patient's needs;
c. prescribe required equipment, supplies, and medications that shall be available and ready for immediate use in case of an emergency, and requirements for written protocols and procedures to be followed in an emergency situation, such as a power outage;
d. prescribe mandated equipment and supplies for required laboratory tests and the requirements for protocols to calibrate and maintain laboratory equipment at the licensed abortion facility;
e. require a licensed abortion facility to be equipped with ultrasound equipment; and
f. require equipment to be in an operating condition that is safe for the patient and a health care professional at the licensed abortion facility, meet applicable federal standards, and be checked annually to ensure safety and appropriate calibration.
7. The commissioner shall adopt rules and regulations concerning health care professionals at a licensed abortion facility that, at a minimum, shall require:
a. the licensed abortion facility to have a medical director who is a physician;
b. a physician who performs an abortion in the licensed abortion facility to demonstrate to the medical director competence in the procedures involved in performing an abortion, in a manner that is acceptable to the medical director;
c. the employment of at least one physician with admitting privileges at a hospital in the State that is within 30 miles of the licensed abortion facility;
d. a health care professional providing services under the supervision of a physician to receive training, as appropriate, in counseling patients, patient advocacy, and the specific responsibilities assigned to the health care professional by the physician; and
e. a volunteer to receive training in the specific services provided, including counseling patients and patient advocacy, as appropriate.
8. The commissioner shall adopt rules and regulations concerning medical screening and evaluation of a patient of a licensed abortion facility that, at a minimum, shall require:
a. a patient's medical history to include: reported allergies to medications, antiseptic solutions, or latex; obstetric and gynecologic history; past surgeries; and medications the patient is currently taking;
b. a physical examination of a patient, including a bimanual examination estimating uterine size and palpation of the adnexa;
c. pre-procedure testing, including, but not limited to, urine or blood tests for pregnancy if ordered by a physician, a test for anemia, Rh typing pursuant to P.L.1987, c.166 (C.26:2-143 et seq.), and other testing as may be indicated from a physical examination of the patient;
d. ultrasound evaluation of a patient who elects to have an abortion, which shall be performed by a duly authorized technician;
e. upon request of the patient, a review by a physician or other health care professional of the results of the ultrasound evaluation prior to performance of the abortion, and which shall include permitting the patient to view the active ultrasound image and learn the probable gestational age of the fetus;
f. the physician to be responsible for: estimating the gestational age of the fetus based on the ultrasound evaluation and obstetric standards, in keeping with established standards of care regarding the estimate of gestational age; and writing in the patient's medical history the estimate of the gestational age of the fetus; and
g. the physician to keep the original prints of each ultrasound evaluation in the patient's medical history.
9. The commissioner shall adopt rules and regulations concerning an abortion at a licensed abortion facility which, at a minimum, shall:
a. require a health care professional to be available throughout an abortion;
b. provide for the safe conduct of an abortion, in conformance with obstetric standards of care and in keeping with established standards of care regarding the estimation of gestational age, as prescribed by rules and regulations adopted pursuant to this act;
c. require appropriate use of local anesthesia, analgesia, and sedation if ordered by a physician;
d. require that for a second or third trimester abortion, appropriate precautions, including, but not limited to, intravenous access, be made available to the patient; and
e. require appropriate monitoring of vital signs and other signs and markers of the patient throughout the abortion and during the recovery period, until the condition of the patient is deemed stable in the recovery room.
10. The commissioner shall adopt rules and regulations concerning a recovery room in a licensed abortion facility, which, at a minimum, shall require:
a. immediate care following an abortion that shall consist of observation in a supervised recovery room for as long as the condition of a patient warrants;
b. the transfer of a patient to a hospital if a complication beyond the management capability of a health care professional at the licensed abortion facility is suspected or occurs;
c. monitoring of a patient by a health care professional who is trained in management of patients in recovery and is capable of providing basic cardiopulmonary resuscitation and related emergency procedures;
d. that a physician, who has admitting privileges at a hospital that is within 30 miles of the licensed abortion facility:
(1) remains on the premises of the licensed abortion facility until each patient is stable and ready to leave the recovery room;
(2) in the case of an emergency, facilitates the transfer of the patient and the child born alive to the hospital for emergency care if hospitalization of the patient or child is necessary;
(3) signs the discharge order; and
(4) is readily accessible and available until the last patient is discharged from the licensed abortion facility;
e. a physician to discuss Rho(D) immune globulin with each patient for whom the medication is indicated, and to ensure that it is offered to the patient in the immediate post-operative period or that it will be available within 72 hours after completion of the abortion; if the patient refuses the medication, the patient and a witness shall sign a refusal form, which shall be prepared by the department and kept in the patient's medical record;
f. require that written instructions concerning post-abortion sexual relations, signs of possible complications, general aftercare, and access to medical care for complications, including a telephone number to call for a medical emergency, are provided to each patient prior to discharge;
g. provide for a specified length of time that a patient is to remain in the recovery room, based on the type of abortion performed and duration of gestation;
h. require a physician to ensure that a health care professional from the licensed abortion facility contacts the patient by telephone within 24 hours of the abortion to assess the patient's recovery, if the patient consents to the contact; and
i. require a recovery room to have equipment and services to provide appropriate emergency resuscitative and life support procedures pending the transfer of a patient or her child born alive from the recovery room to the hospital.
11. The commissioner shall adopt rules and regulations concerning follow-up care after an abortion that shall require a licensed abortion facility to offer a patient a post-abortion medical visit. If the patient requests the visit, it shall be scheduled for two to three weeks after the abortion and shall include a medical examination and review of the results of any laboratory test that was taken in connection with the abortion. The follow-up visit shall also include a urine or blood test for pregnancy to determine if there is a continued pregnancy and, if a continued pregnancy is suspected, a physician who performs abortions shall be consulted.
12. a. The commissioner shall adopt rules and regulations concerning an incident resulting in serious injury at a licensed abortion facility that shall require the facility to:
(1) record each incident that resulted in a serious injury to a patient or her child born alive;
(2) report each incident that resulted in a serious injury in writing to the department within 10 days after the incident;
(3) report any death of the abortion patient to the department no later than the next working day; and
(4) report each incident resulting in a serious injury to the appropriate regulatory professional board in the State.
b. As used in this section, "serious injury" means an injury that occurs at a licensed abortion facility and creates a serious risk of substantial impairment of a major body function or organ.
13. Nothing in this act shall be construed to limit the ability of a physician or other health care professional to advise a patient on any health issue.
14. a. The rules and regulations adopted by the Commissioner of Health pursuant to this act shall be in addition to any rules and regulations applicable to licensed ambulatory care facilities that are not obviated by the provisions of this act.
b. The commissioner shall ensure that no personally identifiable patient or physician information is released as a result of this act.
15. The Commissioner of Health shall adopt rules and regulations necessary to effectuate the provisions of this act pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
16. This bill shall take effect on the first day of the 13th month next following the date of enactment, but the Commissioner of Health may take such anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act.
STATEMENT
This bill, designated as the "Women's Health Protection Act," provides for a new licensing category of "licensed abortion facility." The bill provides specific regulations to be adopted by the Department of Health (DOH) which a licensed abortion facility would need to comply with in order to obtain or renew a license. The regulations to be adopted concern: the physical plant of the facility; the medications, supplies, and equipment (including ultrasound equipment) that are to be available at a licensed abortion facility; the health care professionals who staff a facility; medical screenings and evaluations of patients; the abortion procedure itself; recovery rooms of the facility; follow-up care for patients; and incident reporting to DOH.
The bill provides that, beginning six months after the effective date, DOH is to issue a license as a licensed abortion facility to an "abortion practice" or "licensed ambulatory care facility" (as those terms are defined in the bill) that complies with the provisions of the bill. DOH is to prescribe the licensing application forms and may issue a provisional six-month license, if there is no detriment to the health and safety of the public or a State or local agency has not otherwise disapproved the applicant.
A license is to be non-transferable, apply only to the location stated on the license application, and be valid for one year. Currently, licenses are renewed every two years. DOH may deny, suspend, revoke, or refuse to renew a license in any case in which DOH finds that there has been a substantial failure of the applicant or licensed abortion facility to comply with the requirements of the bill or the rules and regulations adopted to implement the bill.
Prior to issuance or renewal of a license DOH is to conduct an on-site inspection to ensure compliance with the bill's provisions. DOH regulations are to include provisions for conducting pre-licensure and re-licensure inspections, which are to provide procedures for conducting inspections and investigations as a result of a complaint for non-compliance, and for recording, responding to, and disposing of, complaints.
The bill also provides criminal and civil penalties, as well as injunctive relief. A person who operates an abortion facility in violation of the licensing requirements of the bill would be guilty of a crime of the third degree (punishable by three to five years imprisonment or fined up to $15,000, or both), and a person who purposely, knowingly, or recklessly violates the provisions of the bill or the rules and regulations adopted by DOH also would be guilty of a crime of the third degree.
A licensed abortion facility that violates the regulatory provisions of the bill may be subject to a civil penalty of $500 for the first offense, $1,000 for the second offense, and $2,000 for the third and each subsequent offense. Each day of violation constitutes a separate violation.
The bill provides that the Attorney General may, in a civil action, obtain prospective injunctive relief to enjoin a violation of the bill.
The bill is intended to help ensure that the unsafe practices and squalid conditions present at the abortion facility in Philadelphia run by Dr. Kermit Gosnell, who was sentenced in May 2013 to life in prison without parole for the murder of three babies born alive, and the involuntary manslaughter of a patient who died after being given too much anesthetic, do not occur in this State.
