BILL ANALYSIS Ó AB 980 Page 1 Date of Hearing: April 30, 2013 ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER PROTECTION Richard S. Gordon, Chair AB 980 (Pan) - As Amended: March 21, 2013 SUBJECT : Building standards. SUMMARY : Requires the California Building Standards Commission (CBSC), in conjunction with the Office of Statewide Health Planning and Development (OSHPD) to adopt emergency regulations to delete proposed building standard regulations for primary care clinics offering abortion services, and prohibits CBSC from adopting building standard regulations for construction requirements that differ between primary care clinics that offer certain abortion services and those that do not. Specifically, this bill : 1)Requires the CBSC and OSHPD to adopt emergency regulations that delete proposed building standard regulations for primary care clinics providing abortion services (Section 1226.7) from the 2013 Triennial Edition of the California Building Standards Code (2013 Code). 2)Prohibits the CBSC from adopting building standard regulations for construction requirements that differ between primary care clinics providing medication or aspiration abortion services and certain other primary care clinics. 3)Declares that the Legislature intends to preempt and render inoperative the proposed 2013 Code regulations defining a primary care clinic that provides abortion services. EXISTING LAW : 1)Requires the building standards adopted by state agencies and submitted to the CBSC for approval to be accompanied by a written analysis that satisfies the CBSC and justifies approval based on specified criteria, that includes, but is not limited to the following: a) The proposed building standards do not conflict with, overlap, or duplicate other building standards; AB 980 Page 2 b) The proposed building standard is not unreasonable, arbitrary, unfair, or capricious, in whole or in part; and, c) The cost to the public is reasonable, based on the overall benefit to be derived from the building standards. (Health and Safety Code (HSC) Section 18930) 2)Requires the CBSC, as authorized by the California Building Standards Law (Law), to review the standards of adopting agencies in order to approve, return for amendment with recommended changes, or reject building standards or administrative regulations that apply directly to the implementation or enforcement of building standards submitted to CBSC for approval. (HSC 18901 et al.) 3)Requires that an emergency building standard shall contain a finding that includes a written statement demonstrating the existence of an emergency and the need for immediate action, supported by substantial evidence. Provides that the enactment of an urgency statute shall not, in and of itself, constitute a need for immediate action. Provides that a finding of emergency based only upon expediency, convenience, best interest, general public need, or speculation shall not be adequate to demonstrate the existence of an emergency. (Government Code (GC) Section 11346.1) 4)Requires a space for the provision of abortion services to meet the following requirements: a) Each abortion room shall have a floor area which can accommodate the patient and required staff, equipment, and supplies; b) A post-abortion recovery area that is maintained, adequate for the number of recovering patients, and provides privacy for patients requesting it; c) A counseling area that is maintained and provides privacy for patients requesting it, which may be the same area as the post-abortion recovery area; and, d) Storage space for a patient's clothing and personal items. (22 California Code of Regulations (CCR) Section 77044) AB 980 Page 3 5)Requires the California Department of Public Health (CDPH) to license, inspect and approve clinics to offer special services. (HSC 1207) 6)Authorizes CDPH to license the following classes of primary care clinics and specialty clinics, as defined, including community clinics, free clinics, surgical clinics, chronic dialysis clinics, rehabilitation clinics, and alternative birth centers. (HSC 1204) 7)Defines "emergency" to mean a situation that calls for immediate action to avoid serious harm to the public, health, safety, or general welfare. (G C 11342.545) 8)Provides that a "nonsurgical abortion" includes the termination of pregnancy through the use of pharmacological agents. (Business and Professions Code 2253 (c)) FISCAL EFFECT : Unknown COMMENTS : 1)Purpose of this bill . This bill would require CBSC and OSHPD to adopt emergency regulations to preempt a pending building standard regulation that would effectively prevent clinics that provide medication and aspiration abortion services from utilizing a proposed building standard exemption for primary care clinics that would allow them to follow less stringent and less costly space and plumbing code requirements for new and retrofitted clinics. Additionally, this bill would prohibit CBSC from adopting any future building standards that would differentiate between primary care clinics that provide medication or aspiration abortion services and those that do not. The sponsors believe that differential treatment of primary care clinics is unjustified, and argue that building standards for primary care clinics should be uniformly applied, regardless of whether or not abortion services are offered. This bill is sponsored by the Planned Parenthood Affiliates of California (PPAC). 2)Author's statement . According to the author, "OSHPD has the authority to set building standards for a number of types of health facilities including hospitals, skilled nursing AB 980 Page 4 facilities, correctional treatment centers and licensed clinics. Regulations pertaining to licensed clinics are identified as "OSHPD 3." Recently, OSHPD proposed exempting primary care clinics (2013 Code Section 1226.6) from certain existing mechanical and plumbing code requirements, under the OSHPD 3SE exemption. "OSHPD did not include within the OSHPD 3SE exemption primary care clinics that perform abortion services (2013 Code 1226.7). Under these recommendations, all newly constructed or renovated primary care clinics that provide abortion (including just medication or aspiration abortions) would continue to have to meet these rigorous and expensive construction standards? "This exemption is an unnecessary targeting of abortion providers. The exemption of primary care clinics that provide abortions places unequal building standards on certain primary care clinics simply because they provide abortions. There is no medical reason to differentiate between these types of clinics or to require higher plumbing and ventilation standards in a clinic that provides medication or aspiration abortion. "This bill will expand access to needed health care facilities. The primary care clinic 3SE exemption was approved in order to reduce the cost of construction of community clinics that serve low-income populations, increasing access to needed health care services. With millions more individuals coming into the health care system, more providers and facilities will be needed to meet the health care needs of this population. Including primary care clinics that provide abortions in this exemption is consistent with OSHPD's goals of increasing access. California should be reducing barriers to care safely and where appropriate." 3)Understanding the building standards code cycle and rulemaking process . The CBSC was established in 1953 and is responsible for administering California's building codes, including adopting, approving, publishing, and implementing codes and standards. The CBSC publishes the Code every three years, and supplements to the Code in intervening years. Building regulations and standards take effect 180 days after their publication unless otherwise stated. The Code applies to all buildings in the State of California. AB 980 Page 5 State agencies may propose changes to building standards or regulations related to the implementation or enforcement of building standards. The Law requires the agency proposing changes to adopt building standards and then submit the proposed building standard to the CBSC for adoption and/or approval. OSHPD promulgates building standard regulations related to the construction of licensed clinics and outpatient clinical services of a hospital in non-hospital buildings under the jurisdiction of local building departments. OSHPD also develops building standards that have specific construction requirements for primary care clinics providing abortion services based on CDPH regulations under Title 22 (i.e., CCR 77044) prescribing general space requirements for clinics. The focus of this bill is on two individual sections of the proposed OSHPD 3 regulations, related to primary care clinics and certain exemptions from current space requirements and plumbing code requirements, termed "OSHPD 3SE". 4)Understanding the OSHPD 3SE exemption for primary care clinics . On April 24, 2013, CBSC adopted the proposed OSHPD 3SE regulations that exempted primary care clinics, except for those that provide abortions, from certain plumbing code and space requirements. These regulations are part of the 2013 Code that take effect on January 1, 2014. The "3SE" exemptions developed by OSHPD target a limited classification of primary care clinics to align with the national standards contained in the Guidelines for the Design and Construction of Health Care Facilities developed by the Facilities Guidelines Institute. These guidelines are established for small, community-oriented primary care outpatient facilities. The number of these community care clinics is expected to increase as a result of the federal Affordable Care Act and increased fee payments to health care providers servicing Medi-Cal patients. The 3SE exemption under Section 1226.6 of the 2013 Code would permit the construction or renovation of primary care clinics at a lower cost because they would not have to comply with the existing - and more stringent - plumbing standards. The 2013 Code standards also state that "primary care clinics AB 980 Page 6 that include treatment rooms, procedure rooms, or patient treatment spaces that require positive or negative pressure other than airborne infection isolation exam rooms, shall not be classified OSHPD 3SE." Furthermore, Section 1226.7 of the Code directly addresses primary care clinics that provide abortion services, stating that such clinics must follow the 1226.6 standards, as well as minimize size requirements for treatment rooms, post-abortion recovery areas, storage space, and counseling areas under Section 1226.7. However, it is unclear whether this provision is meant to refer to abortions requiring treatment rooms. The end result is that if a primary care clinic that would provide abortions is being built or retrofitted, it would not be entitled to the exemption from the space and plumbing code requirements of OSHPD 3SE - meaning that the clinic would have to adhere to the more stringent and costly building standards. 5)This bill in practice . As noted above, the actions taken by this bill are relatively straightforward: First, AB 980 requires CBSC and OSHPD to adopt emergency regulations to repeal Section 1226.7 (which deals specifically with requirements for primary care clinics that provide abortion services) so only Section 1226.6 (dealing with the lower requirements for primary care clinics in general) remains. By deleting Section 1226.7, primary care clinics that provide abortion services will be able to avail themselves of the less expensive building standard quickly, thereby making it easier to build new clinics and retrofit existing ones. Any building standard adopted through the emergency rulemaking procedure takes effect immediately upon filing with the Secretary of State but expire after six months. Any permanent change to the building code would need to be promulgated through the regular rulemaking process within 180 days of taking effect, to keep the OSHPD 3SE exemptions permanently in the Code. Second, AB 980 would explicitly prohibit CBSC from adopting building standards in the future that distinguish between primary care clinics providing medication or aspiration (as AB 980 Page 7 opposed to surgical) abortion services and certain other primary care clinics. The purpose of this is simply to prevent the promulgation of a regulation like Section 1226.7 in the future. 6)Questions for the Committee . Given the apparent disagreement between OSHPD and the sponsor as to whether or not primary care clinics that provide abortion services should be treated differently from other clinics, the Committee may wish to inquire of the author and the sponsor as to what medical evidence exists to support differential treatment in construction requirements (i.e., plumbing, mechanical, ventilation and space) for primary care clinics that provide abortion services, particularly medication and aspiration procedures. Given that this bill's deletion of Section 1226.7 is accomplished through the mandated adoption of an emergency regulation, the Committee may wish to inquire of the author and sponsor as to the likelihood of CBSC meeting the standard for an emergency regulation, which is "a situation that calls for immediate action to avoid serious harm to the public, health, safety, or general welfare". Furthermore, given that an emergency regulation expires after six months, the Committee may also wish to inquire of the author as to the long term plan for addressing the concern raised by this bill. 7)Arguments in support . According to the sponsor, the PPAC, "OSHPD recently proposed changes to update building standard regulations for the construction of community clinics. These changes align the state's regulations with national building standards by exempting most primary care clinics from certain mechanical and plumbing standards (known as the 3SE exemption) in order to reduce costs without compromising patient safety. "Unfortunately, OSHPD's proposal doesn't include primary care clinics that provide abortions. Because of this, beginning in 2014, all new primary care clinics that provide abortion (even when those are abortion pills or very early abortion procedures) would have to meet rigorous and expensive construction standards while primary care clinics providing other, similar procedures would not. "AB 980 will ensure that building requirements for all primary AB 980 Page 8 care clinics are aligned and held to the appropriate standard for the level of health care services they provide. There is no medical reason to discriminate against clinics that provide medication or early abortion procedures by requiring higher plumbing and ventilation standards. Imposing unequal and burdensome building standards onto clinics providing abortions is a tactic often used in other states to impede access by making it more difficult and expensive for reproductive health providers to open and maintain their facilities. "These types of laws target abortion providers, not because they are medically necessary to prevent infection or keep patients safe, but because legislators and policy makers are uncomfortable with abortion and seek to restrict women's access to a legal medical procedure, a right that has been consistently upheld by the United States Supreme Court beginning with the landmark case, Roe v Wade. It is untenable for California, a state with a long history of supporting and upholding access to reproductive health services and a women's right to choose, to impose through the regulatory process this type of medically unnecessary and unequal building standards. "Further, with millions more individuals coming into the health care system, more providers and facilities will be needed to meet the growing demand for health care. Requiring all primary care clinics to be held to the same building standards (even those providing abortion services) aligns with the state's goal of expanding access. This bill will allow primary care clinics, essential health care access points for many Californians, to open quickly and more efficiently. California must reduce barriers to care safely and where appropriate in order to serve the newly eligible populations in 2014 and beyond." 8)Related Legislation . AB 154 (Atkins) would authorize a nurse practitioner, certified nurse midwife, and physician assistant to perform an abortion by aspiration techniques, in addition to medication, in the first trimester of pregnancy upon completion of specified training and validation of clinical competency, as specified. AB 154 is pending in the Assembly Appropriations Committee. REGISTERED SUPPORT / OPPOSITION : Support AB 980 Page 9 Planned Parenthood Affiliates of California (sponsor) American Civil Liberties Union California Primary Care Association Planned Parenthood Advocacy Project Los Angeles County Opposition None on file. Analysis Prepared by : Joanna Gin / B.,P. & C.P. / (916) 319-3301