H. B. 3043
(By Delegate Eldridge)
[Introduced March 15, 2005; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §16-2J-1 and
§16-2J-2, all relating to requiring that abortion procedures
after the first trimester be performed only at an ambulatory
surgical facility or hospital licensed to perform that
service; and requiring that abortion facilities not be located
within fifteen hundred feet from the property on which any
church, school or kindergarten is located.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §16-2J-1 and §16-2J-2,
all to read as follows:
ARTICLE 2J. ABORTIONS.
§16-2J-1. Abortions after the first trimester must be performed in
an ambulatory surgical facility or hospital licensed to perform that service.
For the purpose of this article:
(a) "Ambulatory surgical facility" means a publicly or
privately owned institution that is primarily organized,
constructed, renovated or otherwise established for the purpose of
providing elective surgical treatment of "outpatients" whose
recovery, under normal and routine circumstances, will not require
"inpatient" care. The facility defined in this paragraph does not
include the offices of private physicians or dentists, whether
practicing individually or in groups, but does include
organizations or facilities primarily engaged in that outpatient
surgery, whether using the name "ambulatory surgical facility" or
a similar or different name. That organization or facility, if in
any manner considered to be operated or owned by a hospital or a
hospital holding, leasing or management company, either for profit
or not for profit, is required to comply with all licensing agency
ambulatory surgical licensure standards governing a "hospital
affiliated" facility as adopted under Section 41-9-1 et seq.:
Provided, That the organization or facility does not intend to seek
federal certification as an ambulatory surgical facility as
provided at 42 CFR, Parts 405 and 416. If the organization or
facility is to be operated or owned by a hospital or a hospital
holding, leasing or management company and intends to seek federal
certification as an ambulatory facility, then the facility is considered to be "freestanding" and must comply with all licensing
agency ambulatory surgical licensure standards governing a
"freestanding" facility.
If the organization or facility is to be owned or operated by
an entity or person other than a hospital or hospital holding,
leasing or management company, then the organization or facility
must comply with all licensing agency ambulatory surgical facility
standards governing a "freestanding" facility.
(b) "Hospital affiliated" ambulatory surgical facility means
a separate and distinct organized unit of a hospital or a building
owned, leased, rented or utilized by a hospital and located in the
same county in which the hospital is located, for the primary
purpose of performing ambulatory surgery procedures. The facility
is not required to be separately licensed under this chapter and
may operate under the hospital's license in compliance with all
applicable requirements of Section 41-9-1 et seq.
(c) "Freestanding" ambulatory surgical facility means a
separate and distinct facility or a separate and distinct organized
unit of a hospital owned, leased, rented or utilized by a hospital
or other persons for the primary purpose of performing ambulatory
surgery procedures. The facility must be separately licensed as
defined in this section and must comply with all licensing
standards promulgated by the licensing agency under this chapter
regarding a "freestanding" ambulatory surgical facility. Further, the facility must be a separate, identifiable entity and must be
physically, administratively and financially independent and
distinct from other operations of any other health facility, and
shall maintain a separate organized medical and administrative
staff. Furthermore, once licensed as a "freestanding" ambulatory
surgical facility, the facility shall not become a component of any
other health facility without securing a certificate of need to do
that.
(d) "Ambulatory surgery" means surgical procedures that are
more complex than office procedures performed under local
anesthesia, but less complex than major procedures requiring
prolonged postoperative monitoring and hospital care to ensure safe
recovery and desirable results. General anesthesia is used in most
cases. The patient must arrive at the facility and expect to be
discharged on the same day. Ambulatory surgery shall only be
performed by physicians or dentists licensed to practice in the
State of West Virginia.
(e) "Abortion" means the use or prescription of any
instrument, medicine, drug or any other substances or device to
terminate the pregnancy of a woman known to be pregnant with an
intention other than to increase the probability of a live birth,
to preserve the life or health of the child after live birth or to
remove a dead fetus. Abortion procedures after the first trimester
shall only be performed at an ambulatory surgical facility or hospital licensed to perform that service.
(f) "Abortion facility" means a facility operating
substantially for the purpose of performing abortions and is a
separate identifiable legal entity from any other health care
facility. Abortions shall only be performed by physicians licensed
to practice in the State of West Virginia. The term "abortion
facility" includes physicians' offices that are used substantially
for the purpose of performing abortions. An abortion facility
operates substantially for the purpose of performing abortions if
any of the following conditions are met:
(1) The abortion facility is a provider for performing ten or
more abortion procedures per calendar month during any month of a
calendar year, or one hundred or more in a calendar year.
(2) The abortion facility, if operating less than twenty days
per calendar month, is a provider for performing ten or more
abortion procedures, or performing a number of abortion procedures
that would be equivalent to ten procedures per month, if the
facility were operating twenty or more days per calendar month, in
any month of a calendar year.
(3) The abortion facility holds itself out to the public as an
abortion provider by advertising by any public means, such as
newspaper, telephone directory, magazine or electronic media, that
it performs abortions.
(4) The facility applies to the licensing agency for licensure as an abortion facility.
(g) "Licensing agency" means the State Department of Health.
(h) "Operating" an abortion facility means that the facility
is open for any period of time during a day and has on-site at the
facility or on-call a physician licensed to practice in the State
of West Virginia available to provide abortions.
§16-2J-2. Restriction of where facilities providing abortions may
be located.
Any abortion facility that begins operation after the first
day of July, two thousand five shall not be located within fifteen
hundred feet from the property on which any church, school or
kindergarten is located. An abortion facility shall not be in
violation of this paragraph if it is in compliance with this
paragraph on the date it begins operation and the property on which
a church, school or kindergarten is located within fifteen hundred
feet from the facility.
NOTE:
The purpose of this bill is to
require that abortion
procedures after the first trimester be performed only at an
ambulatory surgical facility or hospital licensed to perform that
service; and to require that abortion facilities not be located
within fifteen hundred feet from the property on which any church,
school or kindergarten is located.
Article 2J is new; therefore, strike-throughs and underscoring
have been omitted.