BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 980
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          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 








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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