Untitled Texas Attorney General Opinion ( 1989 )

July 31, 1989
Honorable Hugh Parmer opinion No. JR-1076
Chairman
Committee on Intergovern- Re: Validity of rules issued
mental Relations by the Texas Board of Health to
Texas State Senate implement the Texas Abortion
P. 0. Box 12068 Facility Reporting and Licensing
Austin, Texas 78711 Act, article 4512.8, V.T.C.S.
(RQ-1511)
Dear Senator Parmer:
You ask whether rules adopted by the Texas Board of
Health with regard to the "construction and design" of abor-
tion facilities exceed the rule-making authority granted to
the board in article 4512.8, V.T.C.S., the Texas Abortion
Facility Reporting and Licensing Act.
The Texas Abortion Facility Reporting and Licensing
Act was enacted in 1985. Acts 1985, 69th Leg., ch. 931, at
3121, 3173. The Act requires that abortion facilities be
licensed by the Department of Health, imposes certain
reporting requirements on such facilities, authorizes the
department to seek.injunctions for violations of standards
or licensing requirements under the Act, and provides for
penalties. The Nlemaking authority about which you inquire
is conferred on the Board of Health in section 3 of the Act,
which provides in part:
(a) The board shall adopt rules necessary
to implement this article, including reguire-
ments for the issuance, renewal, denial,
suspension, and revocation of a license, to
operate a facility based on the minimum
standards set out below.
(b) The board shall set minimum standards
to protect the health and safety of the
patient. An abortion shall be performed
only by a physician as defined by the provi-
sions of the Medical Practice Act (Article
4495b, Vernon's Texas Civil Statutes). These
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Honorable Hugh Parmer - Page 2 (JM-1076)
standards shall be no more stringent than
Medicare certification standards for:
(1) qualifications for professional per-
sonnel:
(2) qualifications for nonprofessional
personnel;
(3) medical treatment and medical services
provided by a facility and the coordination of
treatment and services:
(4) supervision of professional and non-
professional personnel;
(5) sanitary and hygienic conditions
within the facility:
(6) the equipment essential to the health
and welfare of the patients: and
(7) clinical records kept by the facility.
Relying on the provisions of section 3 of article
4512.8 as authority, the Board of Health has adopted rules
regulating abortion facilities. 25 T.A.C. 55 139.1 through
139.47. Sections 139.21 through 139.23 ("General Construc-
tion Requirements for Abortion Facilities"), sections 139.31
and 139.32 ("Requirements for Existing Abortion Facilities")
and sections 139.41 through 139.47 ("Construction Reguire-
ments for New Abortion Facilities") impose various standards
for the construction and design of abortion facilities, the
area of regulation about which you are concerned. Also,
other provisions touch on the matter of the construction and
design of abortion facilities. a, e.q., id. 5 139.16.
Many of the rules incorporate by reference technical rules
or standards, such as those of the National Fire Protection
Association, the American Society for Testing and Materials,
etc.
It appears from our research, and from the brief sub-
mitted by the Department of Health in connection with this
request, that the resolution of the question you present
turns on the interpretation of section 3 of article 4512.8.
The department argues:
u of these construction and design stan-
dards for abortion facilities insure -the
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Honorable Hugh Parmer - Page 3 (JM-1076)
.
health and safety of patients, and, there-
fore, fall within the standards allowed by
the first sentence of Section 3(b) of the
Act.
. . . .
It is reasonable to say that the list of
categories in Section 3(b) of the Act is not
meant to limit the types of minimum standards
the board may establish to protect the health
and safety of the patient, but only to
itemize certain areas which the board must
cover in its standards and which must be no
more stringent than certain Medicare stand-
ards. The seven categories should be read as
an inclusive, rather than exclusive, list of
standards.
Brief for Texas Department of Health, at 6 and 7 (Dec. 22,
1988).
From the scant legislative history on the provisions of
the Texas Abortion Facility Reporting and Licensing Act1 we
find only one clear indication of the intended scope of the
Board of Health's rule-making authority under section 3.
The document "Conference Committee Report, H.B. 2091 En-
grossed and the Senate Version of H.B. 2091" (May 27, 1985)
states in part that section 3
[aluthorizes the board to establish minimum
standards for facility licensure which
1. House Bill 2091 as originally filed did not include
the provisions of the Abortion Facility Reporting and
Licensing Act, nor did the committee substitute version of
the bill which passed the House on May 22, 1985. The
provisions of the Abortion Facility Reporting and Licensing
Act were added in the Senate by floor 'amendment, where the
bill passed, with other amendments as well, on May 26. The
House refused to accept the Senate amendments and the bill
was referred to conference committee where it was adopted
with the Abortion Facility Reporting and Licensing
provisions added by the Senate. The conference committee
version was adopted by both the House and Senate on May 27,
1985.
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concern: personal qualifications; medical
treatment and services provided and the
coordination of those services; personnel
supervision: sanitary conditions of the
facility; equipment essential for the health
and welfare of patients: and clinical
records.
The provisions of section 3(b), again, provide that
"[t]he board shall set minimum standards to protect the
health and safety of the patient. . , . These standards
shall be no more stringent than Medicare certification
standards for [seven listed areas which do not include the
'construction and design' of a facility]." We concede that
these provisions are susceptible of two different interpre-
tations. The Department of Health's view is that the first
sentence confers general authority to set standards to
protect patient health and safety and that the seven listed
categories, for which "standards shall be no more stringent
than Medicare certification standards," restrict the board's
authority in rule-making only regarding those seven cate-
gories. The view expressed in the Conference Committee
Report quoted above is that the seven listed categories
constitute the exclusive areas regarding which the board may
promulgate standards.
The rules in question were not adopted until 1987. The
Board of Health's interpretation of the rules is thus not
one of such long standing that we believe it would be ac-
corded great weight by a court. &R Guarantee Mutual Life
Ins. Co. v. Harrison, 358 S.W.2d 404 (Tex. Civ. App. - Aus-
tin 1962, writ ref'd n.r.e.).
On the other hand, we believe that the interpretation
of the section 3 provisions found in the Conference Com-
mittee Report quoted above is of considerable significance
in determining the legislative intent in enacting these
provisions. See. e.a National Carloadina Corn. v. Phoenix-
El Paso EXDrSSS, 178'8.W.2d 133 (Tex. Civ. App. - El Paso),
aff'd 176 S.W.2d 564 (Tex. 1943), cert. denied, 322 U.S. 747
(1944).
Accordingly, we conclude that the authority in section
3 of article 4512.8 for the Board of Health to set standards
for abortion facilities is limited to those areas listed in
subsections (b)(l) through (b)(7), and does not include the
authority to impose construction and design standards.
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In support of this conclusion we note that another
article of H.B. 2091 makes provisions for the licensing by
the Department of Health of Ambulatory Surgical Centers.
See V.T.C.S. art. 4437f-2, the Texas Ambulatory Surgical
Center Licensing Act. That act also confers rule-making
authority on the Board of Health vis a vis the setting of
minimum standards. In this instance, however, the provi-
sions for rule-making authority read in part:
(b) The board shall set minimum standards
for:
(1) the construction and desian of an
ambulatorv suraical center, including plumb-
ing, heating, lighting, ventilation, and
other design standards that are necessary to
ensure the health and safety of patients;
(2) the qualifications of the profes-
sional staff and other personnel at an
ambulatory surgical center:
(3) the equipment essential to the health
and welfare of the patients:
(4) sanitary and hygienic conditions
within the ambulatory surgical center and its
surroundings: and
(5) a quality assurance program for pa-
tient care.
(c) Standards set under this section may
not exceed the minimum standards for certifi-
cation under Title XVIII of the Social Secu-
rity Act, as added July 30, 1965 (Pub.L.No.
89-97). (Emphasis added.)
The specific authorization in the Ambulatory Surgical
Center Licensing Act for the board to set minimum standards
for the wconstruction and design" of a facility suggests
that had the legislature in the same bill intended to
authorize the board to adopt construction and design stan-
dards for abortion facilities, it would have done so ex-
pressly.
We note, however, that though we find the board has no
authority to impose construction and design standards on
abortion facilities, some of the standards adopted under the
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Honorable Hugh Parmer - Page 6 (J&1076)
above referenced rules relating to construction and design
may be authorized as falling within one of the areas listed
in subsections (b)(l) through (b)(7) of section 3, -
"sanitary and hygienic conditions within the facility"
(subsection (b)(5)), or "the equipment essential to the
health and welfare of the patients" (subsection (b)(6)). We
are unable, however, in the opinion process to review an
extensive body of agency rules for the legal sufficiency of
each item.
We also note that we do not understand you to ask
about, and therefore we do not address, the effect of the
provisions of section 3 of article 4512.8, which limit
standards adopted by the board to being "no more stringent
than Medicare certification standards." It appears that
there are no "Medicare certification standards" for abortion
facilities. The Department of Health has informed us in its
brief that it has deemed this language to refer to Medicare
Standards for ambulatory surgical centers "which appear to
be the type of Medicare facility closest in nature to
abortion facilities.*' w 42 C.F.R. 416.
SUMMARY
Rules adopted by the Board of Health
setting minimum standards for the construc-
tion and design of abortion facilities exceed
the board's statutory authority under the
Texas Abortion Facility Reporting and Licens-
ing Act to the extent such rules are not
authorized by provisions of the act authoriz-
ing the board to set minimum standards for
the qualifications for professional and
non-professional personnel, medical treatment
and medical services, supervision of person-
nel, sanitary and hygienic conditions, the
equipment essential to the health and welfare
of the patients, and the clinical records
kept by the facility. .
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant-Attorney General
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LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
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