RH Reality Check, April 8, 2012 by Andrea Grimes
Texas Republican House Representative Bill Zedler couldn’t get the anti-choice amendment he proposed during last year’s special lawmaking session approved by his peers in the legislature–he’d like to gather as much information as possible on women seeking, and doctors performing, abortions–so he’s asked the Texas Department of State Health Services (DSHS) to do it for him. And at a meeting held last week in Austin, it became clear the DSHS brass is happy to help him out.
The Texas DSHS called the abortion provider stakeholders meeting one afternoon last week to begin the process of getting public comment on “updated reporting requirements” instituted at the behest of Rep. Zedler.
It confirms the worst fears of abortion providers who suspected, when they were notified a week before about the meeting, “that the truth the state is hiding is that it now means to implement by regulation what it has failed for the past several years to accomplish through legislation.”
DSHS Health Care Quality Section Director Renee Clack told a group of about twenty abortion providers, pro-choice activists and clinical workers that the “primary reason” for the meeting was to address implementation of two laws passed last year that require mandatory transvaginal sonograms and exclude Planned Parenthood from participating in Texas’ Medicaid Women’s Health Program, and also to address “some amendments the department has included that specifically relate to a request by Representative Zedler.”
Even though lawmakers did not approve these new rules because Zedler’s amendment–and others like it–have repeatedly been shot down in legislative session or languished in committee hearings, the DSHS says it has the “authority” to initiate them anyway, so that’s what they’re going to do.
The DSHS’ willingness to take up new requirements that, by their own admission, they were not seeking to institute before Rep. Zedler’s request raises disturbing questions: Can individual lawmakers simply bypass the legislative process and “request” that state departments do their bidding? Why should lawmakers bother trying to pass laws with the consent of their fellow democratically-elected legislators when they can just “request” state departments do their bidding later on?
When pressed by RH Reality Check, the DSHS reps refused to clarify its intentions with the updated reporting requirements and specify how the updated requirements–which are redundant at best and intimidating at worst–would benefit the public health and safety of Texans. Their refrain: we have the authority to do this, so we’re doing it.
Zedler’s failed amendment, on which the new requirements are based, is the latest version of an Orwellian information-gathering bill his fellow Republicans have tried, unsuccessfully, to pass in the Texas legislature for years. To be sure, the proposed updated requirements are less extreme than what Zedler would probably like–the original version of his bill sought to make a bevy of private, personal information about abortion-seeking women available to the state and, very potentially, to the public–but Zedler is certainly in the DSHS draft in spirit.
New proposed rules would induce any and all abortion providers to submit to the state the following information:
- the patient’s highest level of education
- whether the patient viewed printed health materials provided by the state
- whether the sonogram image, verbal explanation of the image and audio of a heartbeat were made available
- whether the patient completed the “Abortion and Sonogram Election form”
- the method used to dispose of fetal tissue and remains
- if a patient is younger than 18, was consent obtained and
- the method of pregnancy verification
These requirements would be in addition to rules that already require providers to inform the state of an abortion-seeking woman’s previous live births, induced abortions and age, race, residence and marital status.
But the updated reporting rules that caused the most consternation among abortion stakeholders at the meeting were new rules requiring individual physicians to report, within 20 days, any complications resulting from an abortion procedure. Abortion providing facilities already report complications to the DSHS, causing a number of meeting attendees to call the new rule redundant and potentially intimidating, especially to individual abortion-providing physicians who aren’t intimately familiar with reporting requirements the way clinical facilities are.
The DSHS said it would leave the determination of what constitutes a “complication” to individual doctors’ discretion, raising among gathered providers the question of whether, later on, the lack of direction from DSHS could be used to play “gotcha” with doctors when they don’t report complications the DSHS later determines to be relevant.
“This is a lot of rigmarole,” commented Dr. James Alexander, an OB-GYN from Parkland Hospital in Dallas. “We’re trying to comply,” he said, “but I’m having to spend money I could spend on patient care” on paperwork.
Because the new reporting updates aren’t required by statute, questioned Dr. Alexander, why do them at all when there are already reporting methods in place? “If the law doesn’t require me to,” he said, “I don’t need another form.”
The DSHS assured providers that all of their reporting data would be kept confidential, including the doctors’ complication reports, and that it would all be handled and protected by the Bureau of Vital Statistics, without any direct identification of either doctors or patients by name.
The DSHS said it plans to present the final draft of the updated requirements to their decision-making committee on the 14th of June. Until then, says DSHS’ Assistant Commissioner for Regulatory Services Kathy Perkins, “there’s a lot of opportunity here to provide input.”
Texas abortion providers wishing to ask questions or make comments about Zedler’s requested changes at DSHS can contact Amy Harper at the Regulatory Licensing Unit at (512) 834-6730.
See the proposed requirements here.