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;
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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)
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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
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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.
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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
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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
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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
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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
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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