SB172 INTR

Senate Bill No. 172
(By Senators Anderson, McKenzie and Ross)
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[Introduced January 11, 2002; referred to the Committee

on the Judiciary; and then to the Committee on Finance.]

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A BILL to

amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-i, relating to the reporting and collection of abortion data; and providing enforcement provisions, including criminal and civil penalties.
Be it enacted by the Legislature of West Virginia:

That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two-i, to read as follows:
ARTICLE 2I. COLLECTION OF ABORTION DATA.
§16-2I-1. Recording and reporting abortion data.

(a) By the first day of November, two thousand two, the director of the division of health shall prepare a reporting form for use by physicians or facilities performing abortions. A copy of this section shall be attached to the form. A physician or facility performing an abortion shall obtain a form from the director.

(b) The form shall require the following information:

(1) The number of abortions performed by the physician and the number of spontaneous abortions treated by the physician in the previous calendar year, reported by month;

(2) The method used for each abortion;

(3) The approximate gestational age expressed in one of the following increments:

(A) Less than nine weeks;

(B) Nine to ten weeks;

(D) Thirteen to fifteen weeks;

(E) Sixteen to twenty weeks;

(F) Twenty-one to twenty-four weeks;

(G) Twenty-five to thirty weeks;

(H) Thirty-one to thirty-six weeks; or

(I) Thirty-seven weeks to term;

(4) The age of the woman at the time the abortion was performed;

(5) The specific reason for the abortion, including, but not limited to, the following:

(A) The pregnancy was a result of rape;

(B) The pregnancy was a result of incest;

(D) The woman does not want children at this time;

(E) The woman's emotional health is at stake;

(F) The woman's physical health is at stake;

(G) The woman will suffer substantial and irreversible impairment of a major bodily function if the pregnancy continues;

(H) The pregnancy resulted in fetal anomalies; or

(I) Unknown or the woman refused to answer;

(6) The number of prior induced abortions;

(7) The number of prior spontaneous abortions;

(8) Whether the abortion was paid for by:

(A) Private coverage;

(B) Public assistance health coverage; or

(9) Whether coverage was under:

(A) A fee-for-service plan;

(B) A capitated private plan; or

(10) Complications, if any, for each abortion and for the aftermath of each abortion. Space for a description of any complications shall be available on the form;

(11) The medical specialty of the physician performing the abortion; and

(12) The fee collected for performing or treating the abortion and the type of anesthetic used, if any.

(c) A physician performing an abortion or a facility at which an abortion is performed shall complete and submit the form to the director no later than the first day of April for abortions performed in the previous calendar year. The annual report to the director shall include the methods used to dispose of fetal tissue and remains.

(d) Nothing in this section precludes the voluntary or required submission of other reports or forms regarding abortions.

(e) The reporting requirements of this article are in addition to the reporting requirements contained in article two- f of this chapter.
§16-2I-2. Recording and reporting abortion complication data.

(a) By the first day of November, two thousand two, the director of the division of health shall prepare an abortion complication reporting form for all physicians licensed and practicing in the state. A copy of this section shall be attached to the form.

(b) The board of medicine shall ensure that the abortion complication reporting form is distributed:

(1) To all physicians licensed to practice in the state, by the first day of March, two thousand three, and by the first day of December of each subsequent year; and

(2) To a physician who is newly licensed to practice in the state, at the same time as official notification to the physician that the physician is so licensed.

(c) A physician licensed and practicing in the state who knowingly encounters an illness or injury that, in the physician's medical judgment, is related to an induced abortion or the facility where the illness or injury is encountered shall complete and submit an abortion complication reporting form to the director.

(d) A physician or facility required to submit an abortion complication reporting form to the director shall do so within sixty days after the encounter with the abortion-related illness or injury.

(e) Nothing in this section precludes the voluntary or required submission of other reports or forms regarding abortion complications.
§16-2I-3. Reporting out-of-state abortions.

The commissioner of human services shall report to the director of the division of health by the first day of April of each year the following information regarding abortions paid for with state funds and performed out-of-state in the previous calendar year:

(1) The total number of abortions performed out-of-state and partially or fully paid for by the state with state or federal funds;

(2) The total amount of state funds and the total amount of federal funds used by the state to pay for the abortions and expenses incidental to the abortions; and

(3) The gestational age at the time of abortion.
§16-2I-4. Director's public report.

By the first day of July of each year, beginning in two thousand four, the director shall issue a public report providing statistics for the previous calendar year compiled from the data submitted under sections one, two and three of this article. For information collected in two thousand two, the report shall be issued by the first day of October, two thousand three. Each report shall provide the statistics for all previous calendar years, adjusted to reflect any additional information from late or corrected reports. The director shall ensure that none of the information included in the public reports can reasonably lead to identification of an individual having performed or having had an abortion. All data included on the forms under sections one and two of this article must be included in the public report, except that the director shall maintain as confidential, data which alone or in combination may constitute information from which an individual having performed or having had an abortion may be identified using epidemiologic principles. The director shall submit the report to the governor and the joint committee on government and finance.
§16-2I-5. Enforcement and penalties.

(a) If the director finds that a physician or facility has failed to submit the required form under section one of this article within sixty days following the due date, the director shall notify the physician or facility that the form is late. A physician or facility who fails to submit the required form under section one of this article within thirty days following notification from the director that a report is late is subject to a late fee of five hundred dollars for each thirty-day period, or portion of each thirty-day period, that the form is overdue. If a physician or facility required to report under this section does not submit a report, or submits only an incomplete report, more than one year following the due date, the director may impose a civil penalty of no more than five thousand dollars on the physician or facility or may bring an action to require that the physician or facility be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt. Notwithstanding any other provision of this code to the contrary, action taken by the director to enforce the provision of this section shall be treated as confidential if the data related to this action, alone or in combination, may constitute information from which an individual having performed or having had an abortion may be identified using epidemiologic principles.

(b) If the director fails to issue the public report required under section four of this article or fails in any way to enforce this section, a group of one hundred or more citizens of the state may seek an injunction in a court of competent jurisdiction against the director requiring that a complete report be issued within a period stated by court order or requiring that enforcement action be taken.

(c) A physician or facility reporting in good faith and exercising due care has immunity from civil, criminal or administrative liability that might otherwise result from reporting. A physician who knowingly or recklessly submits a false report under this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for no more than one year, and fined no more than five thousand dollars, or both fined and confined.

(d) The director may take reasonable steps to ensure compliance with sections one, two and three of this article and to verify data provided, including, but not limited to, inspection of places where abortions are performed.

(e) The director shall develop recommendations on appropriate penalties and methods of enforcement for physicians or facilities who fail to submit the report required under section two of this article, submit an incomplete report or submit a late report. The director shall also assess the effectiveness of the enforcement methods and penalties provided in subsection (a) of this section and shall recommend appropriate changes, if any. These recommendations shall be reported to the joint committee on government and finance by the first day of November, two thousand three.

§16-2I-6. Penalties for disclosing identity of patient; civil liability.

(a) No physician or employee or agent of a physician may disclose to any other person, not an employee or agent of the physician, without the express written consent of the patient, the identity of the patient upon which an abortion is performed.

(b) Any person who unintentionally violates subsection (a) of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility under the supervision of the commissioner of corrections for a definite term of at least one and not more than two years. In addition, any license or authority to conduct a profession issued under the authority of chapter thirty of this code, is automatically suspended for one year from the date of the conviction.

(c) Any person who intentionally violates subsection (a) of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility under the supervision of the commissioner of corrections for a definite term of at least five and not more than ten years. In addition, any license or authority to conduct a profession issued under the authority of chapter thirty of this code, is permanently revoked from the date of the conviction.

(d) Any woman whose identity is disclosed in violation of this section has a cause of action against the physician performing the abortion and any other person violating this section for all damages suffered as a result of the violation. The minimum amount recoverable under this subsection is one hundred thousand dollars.

NOTE: The purpose of this bill is to require the reporting of and collection of specified information concerning abortions.

This article is new; therefore, strike-throughs and underscoring have been omitted.