H. B. 4375


(By Delegate Eldridge)
[Introduced February 3, 2006; 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 and Human Resources.
(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 six 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.