Texas Bureaucrats Listen To, But Do Not *Hear,* Concerns of Providers on Unnecessary Regulations

Posted on June 15, 2012

RH Reality Check, June 15, 2012 by Andrea Grimes

The Texas Department of State Health Services Council met this week to do its part in pushing forward the adoption of new abortion reporting requirements enacted at the behest of one anti-choice Texas state representative who failed to get the requirements passed democratically through the Texas Legislature in years past. On Thursday, the DSHS Council approved its proposed version of the new rules, which will be passed on to the Health and Human Services Council later this year for public comment and approval.

The new requirements, developed collaboratively between conservative Texas Representative Bill Zedler’s office and DSHS, would increase the amount of personal information the state gathers about abortion-seeking people and require individual physicans to report vaguely defined abortion “complications.”

But more and more voices are joining the opposition to the requirements, which physicians, abortion providers, and pro-choice Texans are concerned could be used to intimidate abortion-seeking people and abortion-providing doctors–all with the intent of making legal abortion both harder to provide and harder to access in Texas. Sen. Jose Rodriguez of El Paso is the first Texas legislator–and that includes Rep. Bill Zedler himself–to publicly speak out about the requirements.

“We should not allow one member to subvert the will of the legislature and circumvent the democratic process in order to push his personal political, anti-choice agenda,” said Sen. Rodriguez in a press release Thursday afternoon. “If he is successful, there will be serious ramifications for years to come.”

Texas’ staunchly conservative legislature has repeatedly considered versions of these proposed requirements to be too extreme and unnecessary for its approval, declining to pass two of Rep. Bill Zedler’s proposed abortion reporting bills in 2007 and 2011.

The proposed requirements would, among other rules, require abortion-seeking people to report their highest level of education and doctors to report to DSHS, within 30 days, “when abortion complications occur.” The department has provided no guidance on what might constitute a complication or what the consequences for non-compliance might be, despite requests for both from Texas physicians at the intial abortion stakeholders meeting in April.

Critics of the proposed new rules say DSHS and HHSC are willfully ignoring the democratic process in favor of putting into practice, via statute, as much of Rep. Bill Zedler’s failed legislation as they can.

In a May letter to DSHS, Planned Parenthood expresses concern that “these reporting requirements are not the will or intent of the Legislature,” and feature obvious redundancies. For example, the new requirements would demand that abortion providers report whether consent for a minor’s abortion was obtained, while that’s already done in accordance with state law. They also require providers to report the method of pregnancy verification, even though Texas law requires a mandatory sonogram. Therefore, “it is implied in the law that the method of pregnancy verification for a woman who has an abortion is through a sonogram.” Ultimately, the organiziation says the rules “should not be implemented.”

But if DSHS must go through with the requirements as is, Planned Parenthood asks that DSHS provide “background information,” including “a description of the problem which necessitates these rules” and “how these rules will solve the problem.”

So far, DSHS has not been willing to provide RH Reality Check with answers to these same questions, saying that the new requirements “could help from a regulatory perspective and in demographic and trend analysis,” according to DSHS press representative Carrie Williams. DSHS has readily admitted that after Rep. Zedler’s abortion reporting amendment failed to pass in the legislature last year, according to Williams, “HHSC and DSHS agreed to look at the additional requirements and determine what elements could possibly be adopted by rule.”

But the rules themselves are ill-defined according to Sen. Rodriguez, who said today:

“The requirement to report information irrelevant to the services being provided — including the patient’s level of education and how a minor obtained consent — is unnecessary and takes focus away from the delivery of care. Even more concerning is the requirement for physicians to report any ‘complications’ stemming from an abortion. There is no definition for what this means in statute or in the proposed rule.”

Even though abortion stakeholders such as Planned Parenthood and individual abortion-providing physicians and the public have voiced multiple, intersecting concerns about the new rules over the past two months since the DSHS’ first public hearing on the requirements, DSHS appears to have taken none of these concerns–whether they be about redundant requirements, defining “complication” or or simply explaining the need for the rules in the first place–into account or reflected them in any meaningful amendments to the original draft.

Blake Rocap, legislative counsel at NARAL Pro-Choice Texas, says there have been “very few changes made to the original draft rules, except those items that were obviously unworkable or contradictory.” In particular, he says, the DSHS council has “clearly not taken seriously” concerns that the requirements were “drafted at the request of a single member of the legislature,” since “no member of the council would share whether they had knowledge of the origin of these rules” at Thursday’s meeting.

Now, the proposed rules will go on to be approved by the separate Health and Human Services Council this fall. If that council approves the rules, they’ll be published formally in the state’s official Texas Register for a 30-day public comment period before returning to the HHSC for final approval.

Posted in: Texas