6-22-17 Legislative Update
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Here is the second session update from our lobbyist group. Thanks to Derek Leffert and 109 Group for all the work they have done for us.
The second extraordinary session convened last week following the call by Governor Greitens to resolve issues stemming from a St. Louis County ordinance relating to abortions. This special session, unlike the first special session dealing with ratemaking and regulatory reforms on utilities that lasted only a week, will consume at least three weeks of time.
The Senate has passed their own version of legislation seeking to address the governor’s call after extensive negotiations to attempt to avoid a filibuster by Democrats. SB 5, authored by Sen. Andrew Koenig and handled in the House by Rep. Franklin, was passed by the Senate on Thursday, June 15th, with compromise language that didn’t go as far as what was originally anticipated. The House amended SB 5 in committee and again on the floor, where amendments offered by Rep. Franklin and Rep. Jay Barnes were successfully added. Rep. Franklin’s amendment modified fetal tissue reports, requiring the entire sample be sent to a pathologist rather than a representative sample. Rep. Barnes amendment requires a complication plan for abortion facilities, a consent to procedure conference between the woman and physician, and reporting requirements for abortion procedures within the state.
The House has yet to debate their own bills, with the provisions of HB 7 (Rep. Franklin) and HB 9 (Rep. Kelly) rolled into SB 5 during floor debate and sent back to the Senate with a 110-38 vote. Sen. Jill Schupp has signaled her intent to filibuster the House version if the bill isn’t modified in conference. The House is slated to return on June 30th for a technical session but the situation remains fluid enough to where they may return sooner depending on the Senate’s actions.
A full summary of the HCS SS SB 5 is listed below. If you have any questions, please don’t hesitate to contact us.
SUMMARY: House Committee Substitute for Senate Substitute for Senate Bill 5
COMPLICATION PLANS (Section 188.021)
Under this act, no physician may prescribe or administer to a patient any drug or chemical used for the purpose of inducing an abortion without first obtaining the Department of Health and Senior Services' approval of a complication plan if the Food and Drug Administration label of such drug or chemical includes a clinical study in which more than one percent of patients administered the drug or chemical required surgical intervention after administration. The complication plan shall include any necessary information as determined by the Department in rule.
CONSENT TO ABORTION PROCEDURES (Sections 188.027 and 188.039)
This act modifies the consent process for a woman seeking an abortion. Under current law, the physician who is to perform or induce the abortion or a qualified professional shall hold a conference with the woman prior to the woman's consent. Under this act, discussions involving medical risks to the woman, potential abortion methods, and other medical factors shall be undertaken by the woman and the physician who is to perform or induce the abortion or the referring physician only.
TISSUE REPORTS (Section 188.047)
Under current law, a representative sample of tissue removed at the time of abortion is sent to a pathologist for examination. This provision requires that all tissue removed at the time of abortion be sent to the pathologist within seventy-two hours for gross and histopathological examination. The pathologists shall provide a copy of the tissue report to the abortion facility or hospital within seventy-two hours. If the pathological examination does not reveal the presence of a completed abortion, the pathologist shall notify the abortion facility within twenty-four hours.
The Department shall reconcile each notice of abortion with its corresponding tissue report. If the Department does not receive either a notice or a report, the Department shall conduct an investigation and, if a deficiency is discovered, shall perform an unscheduled inspection of the facility to ensure such deficiency is remedied. If the deficiency is not remedied, the Department shall suspend the abortion facility's or hospital's license for at least one year, subject to applicable licensure procedures.
Finally, this provision requires the Department, beginning January 1, 2018, to make an annual report to the General Assembly. The report shall include all reports and information received under this provision and the following for each abortion procedure reported to the Department the previous calendar year: (1) the termination procedure used; (2) whether the Department received the tissue report for that abortion; and (3) the existence and nature, if any, of any inconsistencies or concerns between the physician's abortion report to the Department and the pathologist's submitted tissue report. The report shall not disclose any personal patient information prohibited by law and shall maintain the confidentiality of all personal information of patients, facility personnel, and facility physicians.
Nothing in this provision shall prohibit the utilization of fetal organs or tissue resulting from an abortion for medical or scientific purposes to determine the cause or causes of any anomaly, illness, death, or genetic condition of the fetus, the paternity of the fetus, or for law enforcement purposes.
ATTORNEY GENERAL JURISDICTION (Section 188.075)
Under this act, the Attorney General shall have concurrent original jurisdiction throughout the state, along with each prosecuting attorney and circuit attorney within their respective jurisdictions, to commence actions for any violation of the state's abortion laws. The Attorney General, or each respective prosecuting or circuit attorney, may seek injunctive or any other relief as necessary.
PREEMPTION OF POLITICAL SUBDIVISION AUTHORITY REGARDING ABORTION (Section 188.125)
Under this act, the General Assembly acknowledges the rights of alternatives to abortion agencies to operate freely and engage in speech without government interference, as well as the right of a person not to be compelled by the government to participate in abortion, and that the constitution and laws of the United States and Missouri shall be interpreted, construed, applied, and enforced to fully protect these rights.
A political subdivision is preempted from enacting, adopting, maintaining, or enforcing any order, ordinance, rule, regulation, policy, or other similar measure that: (1) prohibits, restricts, limits, controls, directs, interferes with, or otherwise adversely affects an alternatives to abortion agency or its officers', agents', employees', or volunteers' operations or speech; (2) has the purpose or effect of requiring a person to directly or indirectly participate in abortion if such participation is contrary to their religious beliefs or moral convictions; (3) requires a real estate broker, real estate salesperson, real estate broker-salesperson, appraisal firm, appraiser, property owner, or any other person to buy, sell, exchange, purchase, rent, lease, advertise for, or otherwise conduct real estate transactions for, to, or with an abortion facility or for, to, or with a person for the purpose of performing or inducing an abortion not necessary to save the life of the mother if such requirement is contrary to their religious beliefs or moral convictions; and (4) requires an employer, employee, health care provider, health plan provider, health plan sponsor, or any other person to provide coverage for or to participate in a health plan that includes benefits that are not otherwise required by state law. However, nothing in this act shall be construed to prohibit any political subdivision from enacting, adopting, maintaining, or enforcing any order, ordinance, rule, regulation, policy, or other similar measure to assist pregnant women to carry their unborn children to term or to assist women in caring for their dependent children or placing them for adoption.
A court may order injunctive relief with specified damages for violations of this provision. Additionally, the Attorney General may bring a cause of action to defend the rights guaranteed under this act.
Nothing in this provision shall preclude or preempt a political subdivision from exercising its lawful authority to regulate zoning or land use or to enforce a building or fire code regulation, provided that the political subdivision treats an alternatives to abortion agency in the same manner as a similarly situated agency.
WHISTLEBLOWER PROTECTIONS (Section 188.160)
Every hospital, abortion facility, pathology laboratory, medical research entity, and any other facility involved in abortion shall establish and implement a written policy relating to protections for employees who disclose information concerning actual, potential, or alleged violations of applicable federal or state laws or administrative rules, regulations, or standards. The Department may adopt rules, regulations, or standards regarding the establishment and implementation of such policies.
DEFINITION OF AN ABORTION FACILITY (Sections 197.200 and 197.215)
This act modifies the definition of an ambulatory surgical to remove any reference to establishments operated for the purpose of performing or inducing an abortion and creates a new definition for such establishments.
This act adds a requirement for licensure of an abortion facility that each physician who is authorized to perform or induce an abortion be currently licensed to practice in Missouri. Additionally, this act limits the facility licensure requirement that physicians have surgical privileges at nearby hospitals to ambulatory surgical centers only and not abortion facilities. Abortion facilities shall also maintain a written protocol for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital within a reasonable distance from the facility.
This act modifies several other provisions of law to include references to or replace references to "ambulatory surgical centers" with the newly-defined "abortion facilities", including provisions relating to infection control, licensure standards, staff training, and whistleblower protections.
ABORTION FACILITY INSPECTIONS (Section 197.230)
This provision requires the Department to conduct annual, unannounced, on-site inspections and investigations of abortion facilities. These inspections shall, at a minimum, include the following areas: (1) compliance with all statutory and regulatory requirements for an abortion facility, including requirements that the facility maintain adequate staffing and equipment to respond to medical emergencies; (2) compliance with statutory requirements relating to abortion; and (3) compliance with the requirement in state law that continuous physician or registered professional nursing services be provided whenever a patient is in the facility. Additionally, the inspection and investigation reports shall be available to the public, provided that information not subject to disclosure under the law be redacted.
INTERFERENCE WITH MEDICAL ASSISTANCE (Section 574.200)
This act creates the crime of interference with medical assistance if an employee of an abortion facility knowingly orders or requests medical personnel to deviate from any applicable standard of care or ordinary practice while providing medical assistance to a patient for reasons unrelated to the patient's health or welfare or knowingly attempts to prevent medical personnel from providing medical assistance in accordance with all applicable standards of care or ordinary practice. This offense shall be a class A misdemeanor.
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