HBA-GUM, ALS H.B. 5 76(R)BILL ANALYSIS Office of House Bill AnalysisH.B. 5 By: Gray State Affairs 5/7/1999 Committee Report (Amended) BACKGROUND AND PURPOSE Currently, there is no statutory provision addressing parental notification regarding abortions performed on minors. H.B. 5 sets forth parental notification requirements that a physician must follow before performing an abortion on an unemancipated minor. H.B. 5 requires a physician to notify the parents or guardian of a minor before performing an abortion on the minor. This bill sets forth several exceptions to this notification requirement through use of judicial approval, a finding of medical emergency, constructive notice, or a certification made by a licensed mental health professional or the Department of Protective and Regulatory Services that the abortion is in the best interest of the minor or that the minor is capable of giving consent. H.B. 5 also authorizes a physician to notify, at least 24 hours in advance, the pregnant minor's grandparent, adult sibling, or adult aunt or uncle of the physician's intent to perform the abortion. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Board of Protective and Regulatory Services in SECTION 1 (Sec. 33.153, Family Code) and the Supreme Court of Texas in SECTION 2 of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subtitle A, Title 2, Family Code, by adding Chapter 33, as follows: CHAPTER 33. NOTICE OF ABORTION SUBCHAPTER A. GENERAL PROVISIONS; NOTICE REQUIRED Sec. 33.001. Defines "abortion," "guardian," "medical emergency," and "physician." Sec. 33.002. PARENTAL NOTICE. (a) Prohibits a physician from performing an abortion on a minor who has not had the disabilities of minority removed under Section 31.001 (Requirements), if the minor's parent, court-appointed managing conservator, or guardian are not present during the consultation on the abortion, unless the physician, or the physician's agent, gives actual notice, in person or by telephone, of the intent to perform the abortion to a parent, court-appointed managing conservator or guardian of the minor or at least 24 hours actual notice, in person or by telephone, of the physician's intent to perform the abortion to any person listed in Sections 32.001(a)(1)-(3) (Consent by Non-Parent), Family Code. (b) Authorizes a physician, if the person to whom notice may be given cannot be notified after a reasonable effort, to perform an abortion if the physician gives 72 hours constructive notice by certified mail sent to the last known address of a person to whom notice may be given under Subsection (a). Provides that the time period begins at the time notice is mailed. Authorizes the performance of an abortion to proceed 72 hours after the notice is mailed without regard to whether the notice is received. (c) Requires a physician to document in the minor's medical record that notice or constructive notice has been provided as required by this section. Establishes that such documentation creates a conclusive presumption that the requirements of this section have been satisfied. (d) Requires a physician who has reason to believe that providing notice may subject the pregnant minor to physical or sexual abuse to refer the minor to the Department of Protective and Regulatory Services (DPRS) for an evaluation under Subchapter D and for any other services that may be in the best interests of the minor. Prohibits DPRS, on receiving a referral, from conducting an investigation or taking any other action that could result in the disclosure to the minor's parent, managing conservator, or guardian of the fact that the minor is or was pregnant or that the minor is seeking or sought an abortion, notwithstanding any other law. Sec. 33.003. MEDICAL EMERGENCY. (a) Authorizes a physician to perform an abortion without providing notice under Section 33.002 if the physician concludes that a medical emergency exists and there is insufficient time to provide notice under Section 33.002 and certifies in writing to the Texas State Board of Medical Examiners (board of medical examiners), in the form required by that board and in the patient's medical record, the medical indications supporting the physician's conclusion that a medical emergency exists and that there is insufficient time to provide the required notice. (b) Provides that a certification required by Subsection (a) is confidential and privileged and is not subject to disclosure under Chapter 552, Government Code (Public Information), or to discovery, subpoena, or other legal process. Prohibits the inclusion of personal or identifying information about the minor, including her name, address, or social security number in a certification. Sec. 33.004. INFORMATION FORM. (a) Requires a physician who is requested by a minor to perform an abortion to which this chapter applies to provide to the minor an information form that describes the minor's rights under this chapter and the procedures that the minor may follow to obtain an abortion without satisfaction of the requirements of Section 33.002. (b) Requires the board of medical examiners to prescribe the information form to be used by a physician to comply with this section. Sec. 33.005. DETERMINATION FINAL; COLLATERAL ATTACK PROHIBITED. Prohibits a person from bringing a judicial action challenging the performance of an abortion after the compliance with any procedure established under this chapter that authorizes an abortion. Sec. 33.006. PUNITIVE ACTION. (a) Provides that a physician who violates this chapter is subject to disciplinary action under Article 4495b, Subchapter D, V.T.C.S. (Medical Practice Act). (b) Requires the board of medical examiners to review the information submitted under this section relating to a physician and authorizes the board to initiate an action under this section for a violation of this chapter. SUBCHAPTER B. JUDICIAL APPROVAL Sec. 33.051. APPLICATION; JUDICIAL APPROVAL. (a) Authorizes a pregnant minor who wants to have an abortion without satisfying the requirements of Section 33.002 to file an application for a court order authorizing the minor to consent to the performance of an abortion without the required notice. (b) Authorizes the application to be filed in a county court at law, a court having probate jurisdiction, or a district court having family jurisdiction for the county in which the minor resides or the county in which the hospital, clinic, or facility in which the abortion would be performed is located. (c) Provides that the application must be made under oath and include specified statements regarding the minor. (d) Requires a court, if a minor has not retained an attorney, to appoint an attorney to represent the minor and to serve as the minor's attorney ad litem. Authorizes a court to appoint a program volunteer as an advocate for the pregnant minor in a county in which a public or private nonprofit entity operates a volunteer advocate program under which court-appointed advocates assist abused or neglected children. (e) Requires a court to set a time for a hearing on filed application and to keep a record of all testimony and other oral proceedings in the action, subject to Subsection (f). Requires the court to enter judgment on the application immediately after the hearing is concluded. (f) Requires a court to rule on an application submitted under this section and to issue written findings of fact and conclusions of law not later than 5 p.m. of the second business day after the date the application is filed with the court. Requires the court, upon request by the minor, to grant an extension of the period specified by this subsection. Requires the court to rule on a request for an extension and to issue written findings of fact and conclusions of law not later than 5 p.m. of the second business day after the date the minor states that she is ready to proceed to a hearing. Provides that if the court fails to rule on the application and issue written findings of fact and conclusions of law within that period, the application is considered granted on the expiration of the period and the physician is authorized to perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of the abortion without satisfaction of the requirements of Section 33.002. Requires proceedings under this section to be given precedence over other pending matters to ensure that the court reaches a decision promptly. (g) Requires the court to determine by a preponderance of the evidence whether parental notice would not be in the best interests of the minor or the minor is mature and capable of giving informed consent to an abortion. (h) Requires a court that finds in the affirmative on either issue presented by Subsection (g) to enter an order authorizing the minor to consent to the performance of the abortion without satisfaction of the requirements of Section 33.002 and to execute the required forms. (i) Prohibits a court that finds in the negative on both issues presented by Subsection (g) from authorizing the minor to consent to an abortion without satisfaction of the requirements of Section 33.002. (j) Requires a court that finds that a minor has been the subject of physical or sexual abuse, to refer the minor to DPRS for services or intervention that may be in the best interests of the minor. Prohibits DPRS, on receiving a referral under this subsection, from conducting an investigation or taking any other action that could result in the disclosure to the minor's parent, managing conservator, or guardian of the fact that the minor is or was pregnant or that the minor is seeking or sought an abortion, notwithstanding any other law. (k) Prohibits a court from notifying any person that the minor is pregnant or that the minor wants to have an abortion. Requires the court proceedings to be conducted in a manner that protects the anonymity of the minor, and provides that the application and all court documents pertaining to the proceedings are confidential and privileged and are not subject to discovery, subpoena, or other legal process. Authorizes the minor to file the application using a pseudonym or using only her initials. (l) Requires the clerk of the supreme court to prescribe the application form to be used by the minor filing an application under this section. (m) Provides that a filing fee is not required of and court costs may not be assessed against a minor filing an application under this section. Sec. 33.052. APPEAL. (a) Requires an appeal to a court of appeals to be available to any pregnant minor to whom a county court at law, court having probate jurisdiction, or district court having family jurisdiction denies an order authorizing the minor to consent to the performance of an abortion without satisfaction of the requirements of Section 33.002. (b) Requires the court of appeals to rule on an appeal under this section not later than 5 p.m. of the second business day after the date the notice of appeal is filed. Requires the court, upon request by the minor, to grant an extension of the period specified by this subsection. Requires the court to which a request for an extension is made to rule on the appeal not later than 5 p.m. of the second business day after the date the minor states that she is ready to proceed with the appeal. Provides that the appeal is considered granted on the expiration of the period and the physician is authorized to perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of the abortion without satisfaction of the requirements of Section 33.002 if the court fails to rule on the appeal within the specified period. Requires proceedings under this section to be given precedence over other pending matters to ensure that the court reaches a decision promptly. (c) Prohibits the court of appeals from notifying a person that the minor is pregnant or that the minor wants to have an abortion. Requires the court proceedings to be conducted in a manner that protects the anonymity of the minor, and provides that the application, notice of appeal, and all court documents are confidential and privileged and are not subject to discovery, subpoena, or other legal process. Authorizes the minor to file the notice of appeal using a pseudonym or using only her initials. Sec. 33.053. AFFIDAVIT OF PHYSICIAN. (a) Requires a physician who performs an abortion after a court has failed to timely issue an order or timely rule on an appeal to execute for inclusion in the minor's medical record an affidavit stating that, to the best information and belief of the physician, the minor has made an application or filed a notice of an appeal with a court under this subchapter; the deadline for court action imposed by this subchapter has passed and the physician has not been notified that the minor has requested an extension of the time for the court to act; and the physician has not been notified that the court has denied the application or appeal. (b) Authorizes a physician who has executed such an affidavit to conclusively rely on the affidavit and perform the abortion as if the court had issued an order granting the application or appeal. (c) Requires the board of medical examiners to prescribe the form of the affidavit to be used by a physician to comply with this section. Sec. 33.054. EFFECT OF ORDER. Provides that a court action under this subchapter that denies an order authorizing a minor to consent to an abortion without satisfaction of the requirements of Section 33.002 does not bar the subsequent performance of the abortion on the minor in accordance with Section 33.002 or 33.003 and does not bar the minor from proceeding under Subchapter C or D. Sec. 33.055. COSTS PAID BY STATE. (a) Authorizes a court acting under Section 33.051 or 33.052 to issue an order requiring the state to pay the cost of the appointment of an attorney ad litem for the minor; the court costs associated with the application or appeal; and any court reporter's fees incurred. (b) Provides that an order issued under Subsection (a) must be directed to the comptroller. Requires the comptroller to pay the amount ordered from funds appropriated to the Texas Department of Health for family planning. SUBCHAPTER C. INDEPENDENT EVALUATION Sec. 33.101. DEFINITION. Defines "licensed mental health professional." Sec. 33.102. INDEPENDENT EVALUATION OF MINOR. (a) Authorizes a physician to perform an abortion without providing notice under Section 33.002 if a licensed mental health professional: (1) in the person's professional judgment, determines that notice under Section 33.002 would not be in the best interests of the minor or the minor is mature and capable of giving informed consent to an abortion, and (2) certifies in writing to the physician that the person has made the determination described by Subdivision (1). (b) Requires a physician who performs an abortion under this section to include a copy of the certification under Subsection (a) in the minor's medical record. (c) Authorizes a certification under Subsection (a) to be made only by a licensed mental health professional who is not located at or affiliated with the facility at which the abortion is to be performed. (d) Requires a licensed mental health professional who finds that the minor has been the subject of physical or sexual abuse to refer the minor to DPRS for services or intervention that may be in the best interests of the minor. Prohibits DPRS, upon receiving a referral under this subsection, from conducting an investigation or from taking any action that could result in the disclosure to the minor's parent, managing conservator, or guardian of the fact that the minor is or was pregnant or that the minor is seeking or sought an abortion, notwithstanding any other law. Sec. 33.103. CONFIDENTIALITY. Provides that a certification made under this subchapter is confidential and privileged and is not subject to disclosure under Chapter 552, Government Code, or to discovery, subpoena, or other legal process. Sec. 33.104. FAILURE TO OBTAIN CERTIFICATION. Provides that the minor's right to proceed under Subchapter B or D is not affected if the minor does not obtain a certification described by this subchapter. SUBCHAPTER D. EVALUATION BY DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES Sec. 33.151. DEFINITIONS. Defines "board" and "department." Sec. 33.152. CERTIFICATION BY DEPARTMENT. (a) Authorizes a physician to perform an abortion without providing notice under Section 33.002 if DPRS certifies that notice under Section 33.002 would not be in the best interests of the minor or the minor is mature and capable of giving informed consent to an abortion. (b) Authorizes DPRS to communicate a certification made under Subsection (a) by telephone or electronically. Requires DPRS to provide a written copy of the certification to the physician. Sec. 33.153. ADMINISTRATIVE EVALUATION. (a) Requires the Board of Protective and Regulatory Services (board), by rule, to develop a procedure for accepting an application for certification; timely evaluation of the application and investigation by trained DPRS personnel; and issuance or denial of the certification. (b) Provides that the board rules must require completion of the evaluation of the application and investigation and issuance or denial of the certification not later than 5 p.m. of the second business day after the date the application is filed with DPRS, unless an extension is requested by the minor. (c) Prohibits DPRS from imposing a fee for a certification under this subchapter. Sec. 33.154. ADMINISTRATIVE REVIEW. (a) Authorizes a minor, if DPRS denies issuance of the certification, to request review of the determination by an administrative law judge in accordance with board rules. (b) Provides that the board rules must require completion of the review and issuance or denial of the certification by order of the administrative law judge not later than 5 p.m. of the second business day after the date the request for the review is filed, unless an extension is requested by the minor. (c) Provides that the final determination of an administrative law judge under this section is not subject to appeal but does not affect the minor's right to proceed under Subchapter B or C. Sec. 33.155. CONFIDENTIALITY. (a) Provides that an application or a certification made under this subchapter, and any information in the possession of DPRS regarding the application or certification, is confidential and privileged and is not subject to disclosure under Chapter 552, Government Code, or to discovery, subpoena, or other legal process. (b) Prohibits DPRS from notifying a person that the minor is pregnant or that the minor wants to have an abortion, except as provided by Section 33.152. SECTION 2. Requires the Supreme Court of Texas to promptly issue rules as necessary to ensure that the process established by Subchapter B, Chapter 33, Family Code, as added by this Act, are conducted in a manner that ensures confidentiality and sufficient precedence over all other pending matters to ensure promptness of disposition. SECTION 3. Requires the board of medical examiners to adopt the forms to be used under Sections 33.003(a), 33.004, and 33.053, Family Code, as added by this Act, not later than December 15, 1999. SECTION 4. Requires the board to develop the certification procedure required by Subchapter D, Chapter 33, Family Code, as added by this Act, not later than December 15, 1999. SECTION 5.Makes application of this Act prospective as of January 1, 2000. SECTION 6.Effective date: September 1, 1999. SECTION 7.Emergency clause. EXPLANATION OF AMENDMENTS Amendment No. 1 substitutes "for" with "in any county" in proposed Section 33.051 (Application; Judicial Approval), Subtitle A, Title 2, Family Code, to authorize an application for a court order authorizing the minor to consent to the performance of an abortion to be filed in a county court at law, a court having probate jurisdiction, or a district court having family jurisdiction in any county, rather than having family jurisdiction for the county in which the minor resides, or the county in which the hospital, clinic, or facility in which the abortion would be performed is located.