Yesterday the Department of Health and Human Services (DHHS) of Texas held a stakeholders meeting for abortion providers in Texas to discuss new reporting requirements being issued this year. I attended the meeting and not too shockingly, DHHS had disappointing news to share. At the beginning of the meeting there was general confusion over why a meeting was being held since, to the knowledge of the providers in the room, reporting requirements were not being updated as part of the new legislation. However, the handout given at the door, listed eight new reporting requirements that all abortion providers (clinics, private physicians, and hospital providers) will have to follow once passed.
The new requirements are additions to “Statute 139.4 Annual Reporting Requirements for All Abortions Performed,” which outlines all the specialized reporting requirements for abortion providers. The following seven provisions will be required to be on all abortion patients’ charts and reported to DHHS for each patient:
“(10) the patient’s highest level of education;
(11) whether the patient viewed the printed material provided under Health and Safetly Code Chapter 171;
(12) whether the sonogram image, verbal explanation of the image, and the audio of the heat sounds were made available to the patient;
(13) whether the patient completed the abortion sonogram election form;
(14) method used to dispose of fetal tissue and remains
(15) if patient is younger than 18, was consent obtained; and
(16) method of pregnancy verification.”
Stakeholders commented that these requirements were redundant—if a sonogram is performed (as required in item 12), why would you need to confirm the method of pregnancy verification (as required in item 16). Concerns about why this information must be on the chart of the patient were also raised, specifically in regards to the form of disposal of the fetal remains. Another provider’s concern was that the language in 11 puts too much responsibility on the provider to confirm the patient has read all of the materials, something which they can not necessarily know enough to sign off on.
The above requirements are joined by an addition to a sub-statute of Statute 139.4 (above), “Statute 139.5 Additional Reporting Requirements for Physicians.” The addition in this portion of the statutes calls for additional reporting on the abortion complications (in addition to the reports the clinics must already file for abortion complications); the language of this requirement reads as follows:
“Reporting requirements for abortion complications: (A) Within 20 calander days after the date the complication is discovered, a physician shall submit an abortion complications report on a form provided by the department; and via certified mail marked as confidential to the Department of State Health Services; vital statistics…”
The language then expands on what must be included in the report specifically. Providers questioned what constituted a complication, what they would be accountable for in terms of reporting complications, and what this information would be used for in addition to the reports they already sent to the Medical Boards on complications. The DHHS personnel responded that the requirements would be an extra check on foul play by providers, and admitted they know it is an extra check on providers that would not be welcomed.
So, what does this mean for providers? Simply put the restrictions mean increased time and monetary investment in reporting on their patients and practice, and bigger picture, it intimidates small and midlevel clinics and hospitals from providing abortion care. This also enables the state to punish abortion providers. A provider from a hospital commented, “I am concerned by these statutes because all they seem to be doing is diverting resources I could spend on patient care to reporting.” Another provider commented that the state is setting up more hoops to jump through and more opportunities for providers to be breaking the law, which would lead to more fines, investigations, and financial drains on providers. These reporting requirements are physician-specific, not clinic=specific, meaning that these hoops serve to intimidate doctors and facilities from providing abortion care; the more burdensome it is to become a provider and the more risk involved in providing care from a legal perspective, the less likely doctors and facilities (who may not be designated abortion clinics) will be to provide abortions.
The main question at the meeting was why are these requirements being handed down at this time? A question that the DHHS staff hosting the meeting could not answer in satisfactory terms: the legislator asked them to review the reporting requirements for abortion providers, and although they are not required by any statute to address legislative requests, DHHS decided to address this appeal and instituted new requirements. As one DHHS staff member said, “[The requirements] did not come down statutorily, but [the DHHS] has the statutory authority to do so [pass regulations]”
Basically, this is not part of any statute passed down, but is being pursued because the DHHS can, and the legislator said “please.” My biased translation: TEXAS LEGISLATORS OPPOSE ABORTION AND WANT TO INTIMIDATE AND PUNISH ABORTION PROVIDERS AND DHHS IS PLAYING ALONG TO APPEASE THOSE IN CHARGE. Comments flew about how this was undue and unfairly targeted punishment for abortion providers; DHHS personal’s response there was that all groups feel like they are targeted, abortion care providers are not special in that regard. The DHHS staff also commented that these were the first round of requirements, so hold on to the edges of your seats, pro-choice Texans, we’re in for a statute-full ride.
The statutes are still in the draft stage, which means all providers and stakeholders can propose revisions. From my understanding from the meeting and the DHHS website, the drafted provisions should be up soon, and they are open to comments until June 12, the day before a committee hearing on whether or not to pass the requirements. I did not fully understand where to send suggestions, but Amy S. Harper, Regulatory Licensing Unit Manager, Division of Regulatory Services, gave her contact information out at the meeting: firstname.lastname@example.org or 512-834-6730.
My heartfelt thanks goes out to all the providers, their administration and managers in Texas as they implement some version of these new reporting laws this summer. Abortion providers deserve our support and thanks for expanding reproductive freedom and justice. What they don’t deserve: state-mandated punishment.