BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: AB 775 --------------------------------------------------------------- |AUTHOR: |Chiu and Burke | |---------------+-----------------------------------------------| |VERSION: |May 4, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |June 24, 2015 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Melanie Moreno | --------------------------------------------------------------- SUBJECT : Reproductive FACT Act. SUMMARY :1. Enacts the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act and requires clinics and other facilities that provide family planning or pregnancy-related services to provide specified notices to clients. Existing law: 1)Requires the Department of Public Health (DPH) to inspect and license health facilities, including but not limited to clinics. 2)Provides for exemptions from licensing requirements for certain types of clinics, including federally operated clinics, local government primary care clinics, clinics affiliated with an institution of higher learning, clinics conducted as outpatient departments of hospitals, and community or free clinics. Provides for exemptions for community or free clinics that are operated on separate premises from the licensed clinic and are only open for limited services of no more than 20 hours per week (also known as intermittent clinics). 3)Authorizes DPH to take various types of enforcement actions against a primary care clinic that has violated state law or regulation, including imposing fines, sanctions, civil or criminal penalties, and suspension or revocation of the clinic's license. 4)Grants a specific right of privacy under the California Constitution and provides that the right to have an abortion may not be infringed upon without a compelling state interest. AB 775 (Chiu and Burke) Page 2 of ? This bill: 1)Enacts the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (Reproductive FACT Act). 2)Defines a "licensed covered facility," for the purposes of the Reproductive FACT Act, as a licensed clinic or an intermittent clinic operating under a primary care clinic whose primary purpose is providing family planning or pregnancy-related services, and that satisfies two or more of the following: a) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women; b) The facility provides, or offers counseling about, contraception or contraceptive methods; c) The facility offers pregnancy testing or pregnancy diagnosis; d) The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. e) The facility offers abortion services; or, f) The facility has staff or volunteers who collect health information from clients. 3)Defines an "unlicensed covered facility," for the purposes of the Reproductive FACT Act, as a facility that is not licensed and does not have a licensed medical provider on staff or under contract who provides or directly supervises the provision of all of the services, whose primary purpose is providing pregnancy-related services, and that satisfies two or more of the following: a) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women; b) The facility offers pregnancy testing or pregnancy diagnosis; c) The facility advertises or solicits patrons with offers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling; or, d) The facility has staff or volunteers who collect health information from clients. 4)Specifies this bill does not apply to a clinic directly conducted, maintained, or operated by the United States or any AB 775 (Chiu and Burke) Page 3 of ? of its departments, officers, or agencies; or, a licensed primary care clinic that is enrolled as a Medi-Cal provider and a provider in the Family Planning, Access, Care, and Treatment Program (FamilyPACT). 5)Requires a licensed covered facility to disseminate to clients on site the following notice in English and in the primary threshold languages for Medi-Cal beneficiaries as determined by DHCS for the county in which the facility is located: "California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number]." 6)Permits the notice to be combined with other mandated disclosures, but requires it be disclosed through one of the following methods: a) A public notice posted in a conspicuous place where individuals wait that may be easily read by those seeking services from the facility. Requires the notice to be at least 8.5 inches by 11 inches and written in no less than 22-point type; b) A printed notice distributed to all clients in no less than 14-point type; or, c) A digital notice distributed to all clients that can be read at the time of check-in or arrival, in the same point type as other digital disclosures. Requires a printed notice be available for all clients who cannot or do not wish to receive the information in a digital format. 7)Requires an unlicensed covered facility to disseminate to clients on site and in any print and digital advertising materials including Internet Web sites, the following notice in English and in the primary threshold languages for Medi-Cal beneficiaries as determined DHCS for the county in which the facility is located: "This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services." AB 775 (Chiu and Burke) Page 4 of ? 8)Requires the onsite notice for unlicensed covered facilities to be a sign at least 8.5 inches by 11 inches and written in no less than 48-point type, and to be posted conspicuously in the entrance of the facility and at least one additional area where clients wait to receive services. 9)Requires the notice in the advertising material for unlicensed covered facilities to be clear and conspicuous. Defines "clear and conspicuous" to mean in larger point type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the language. 10)Makes covered facilities that fail to comply with the Reproductive FACT Act liable for a civil penalty of $500 for a first offense and $1,000 for each subsequent offense. Permits the Attorney General (AG), city attorney, or county counsel to bring an action to impose a civil penalty after: a) Providing the covered facility with reasonable notice of noncompliance, which informs the facility that it is subject to a civil penalty if it does not correct the violation within 30 days from the date the notice is sent to the facility; and, b) Verifying that the violation was not corrected within the 30-day period. 11)Requires any penalty resulting from an action brought by the AG to be deposited into the General Fund. Requires the penalty, if the action is brought by a city attorney, to be paid to the treasurer of the city in which the judgment is entered. Requires the penalty, if the action is brought by a county counsel, to be paid to the treasurer of the county in which the judgment is entered. 12)Makes the provisions of the Reproductive FACT Act severable, and prohibits, if any provision of the Act or its application is held invalid, that invalidity from affecting other provisions or applications that can be given effect without the invalid provision or application. FISCAL EFFECT : This bill is keyed non-fiscal AB 775 (Chiu and Burke) Page 5 of ? PRIOR VOTES : ----------------------------------------------------------------- |Assembly Floor: |49 - 26 | |------------------------------------+----------------------------| |Assembly Judiciary Committee: | 7 - 3 | |------------------------------------+----------------------------| |Assembly Health Committee: |12 - 5 | | | | ----------------------------------------------------------------- COMMENTS : 1)Author's statement. According to the author, California has a proud legacy of respecting reproductive freedom and funding forward-thinking programs to provide reproductive health assistance to low income women. The power of the law is only fully realized when California's women are fully informed of the rights and services available to them. Because family planning and pregnancy decisions are time sensitive, California women should receive information that helps them make decisions and access financial support at the sites where they seek care. It is in the best interest of the state, patients and providers that women are aware of available assistance for preventing, continuing or terminating a pregnancy. According to the Department of Health Care Services, the Affordable Care Act expansion has made millions of Californians, 53 percent of them women, newly eligible for Medi-Cal. It is also critical that women know whether they are receiving care from licensed medical professionals when they are making important reproductive health decisions. AB 775 ensures that women in California are fully informed of their options and are able to make their own healthcare and pregnancy-related decisions. 2)Unintended pregnancies. Almost half of all pregnancies in California are unintended. According to a 2014 Guttmacher Institute document titled "State Facts About Unintended Pregnancy: California," an extensive body of research links births resulting from unintended or closely spaced pregnancies to adverse maternal and child health outcomes and myriad social and economic challenges. Economically disadvantaged women are disproportionately affected by unintended pregnancy and its consequences. In 2008, the unintended pregnancy rate AB 775 (Chiu and Burke) Page 6 of ? among women with incomes lower than the federal poverty level, at 137 per 1,000, was more than five times as high as the rate among women with incomes greater than 200 percent of poverty (26 per 1,000). 3)Crisis pregnancy centers. According to a 2011 report by the Public Law Research Institute of UC Hastings College of the Law, CPCs are pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center. CPCs are local non-profit organizations, generally receiving substantial funding and resources from at least one large pro-life umbrella organizations such as: Care Net, International Heart Beat, and the National Institute of Family and Life Advocates. CPCs typically do not offer services that conflict with pro-life pregnancy options, like abortion referrals or procedures. In contrast, full-service organizations that provide pregnancy-related services offer a wider variety of services including administering medical tests, performing medical procedures (including abortions), and providing counseling in pregnancy options. At least 228 CPCs exist in California and approximately 2,500 exist nationwide. CPC networks claim that centers collectively extended pregnancy services to approximately 1.8 million women between 2008 and 2013. 4)University of California, Hastings College of Law research report. In the fall of 2009 the Assembly Business, Professions and Consumer Protection Committee, concerned that CPCs throughout California were disseminating medically inaccurate information about pregnancy options available in the state, requested a report by the University of California, Hastings College of Law regarding CPCs' practices and potential legislative options for regulating them. Issued in April 2011 and updated in June 2015, "Pregnancy Resource Centers: Ensuring Access and Accuracy of Information," discusses several options for regulation of CPCs, ranging from creating new regulations, leveraging existing regulations aimed specifically at medical services, as well as creating a new statute. Because approaches that have treated CPCs and full-service pregnancy centers differently have been challenged as violating the First Amendment, the report concludes that the best approach to a statutory change would regulate all pregnancy centers, not just CPCs, in a uniform manner. AB 775 (Chiu and Burke) Page 7 of ? 5)Policies in other locales. The City of New York enacted regulations in 2011 and Montgomery County, Maryland adopted a resolution in 2010 requiring CPCs without medical staff to post signage indicating that they do not have a licensed medical professional on staff and that pregnant women are encouraged to consult with a licensed health care provider. The City of New York's regulations also required CPCs to disclose whether or not it provides referrals for abortions, emergency contraception, and prenatal care. In 2014, an appeals court overturned those provisions and the requirement that CPCs tell clients that New York City health officials recommend that pregnant women consult a licensed healthcare provider, but upheld the medical staff notification piece. The City and County of San Francisco passed a false advertising ordinance aimed at CPCs, called the Pregnancy Information and Protection Ordinance, which was challenged by CPC owner in court as a violation of free speech. The ordinance was upheld by a federal court earlier this year. 6)Support. Black Women for Wellness and NARAL Pro-Choice, California co-sponsors of this bill, and numerous other organizations, including, California Council of Churches IMPACT, California Latinas for Reproductive Justice, Maternal and Child Health Access, and Planned Parenthood, California, state that this bill will enable women to seek the care they wish to obtain and providing context for counseling given at unlicensed facilities. They also state that distributing a notice of reproductive health services would ensure that women in any reproductive health or pregnancy counseling facility know that California respects their rights and provides assistance. The California Primary Care Association (CPCA) states this bill will protect patients by allowing them to fully understand their rights when it comes to their reproductive freedom and to not be deceived by organizations whose sole purpose is to provide them with a biased view that does not allow them to make their own informed choice. CPCA notes that many of their community clinics and health centers grew out of the women's movement and their members believe a women's right to choose is a fundamental health right that must be protected. The American Nurses Association, California (ANA\C) writes that all California residents should have access to reproductive health services, and more than 700,000 California women become pregnant every year, approximately half of them unintentionally. ANA\C states thousands of women AB 775 (Chiu and Burke) Page 8 of ? do not know the legal options they have, or the funding resources available to them, and this bill will help ensure that pregnant women receive the information they need to make an informed decision. Forward Together states that women in California face a threat from manipulative crisis pregnancy centers which pose as comprehensive reproductive health centers, but are, in fact, anti-choice organizations that target women with the goal of blocking them from considering abortion as an option and using proven contraceptive methods. Forward Together contends that CPCs use false and misleading advertising to appeal to women, who think they may be pregnant and are looking for comprehensive reproductive health care, and then manipulate and shame these women by peddling medically inaccurate information about abortion and contraception. 7)Opposition. The California Catholic Conference (CCC) states that on its surface, the bill proposes to regulate the state's pregnancy centers, but in actuality is aimed at discriminating against those pregnancy centers that hold a pro-life viewpoint. CCC contends that such unfair legislation may discourage women from getting the assistance that they need and deserve as well as expose many of these pregnancy centers to needless criminal or civil sanctions for failure to comply. CCC concludes that because they believe all life is sacred, they support programs which offer medical, economic and emotional support for pregnant women and children, so that they can make life-affirming choices. The California Right to Life Committee, Inc. (CRLC) states that, if enacted, it could set a precedent for many other businesses that are not like or appreciated by one group in society which could bring a law suit against another business, company, or agency. CRLC asks us to consider car dealerships: what if they were to be seen as anti-environmental with misleading advertising, selling too many cars, and making citizens not anxious to take high speed rail? CRLC asks: would it not be possible that the California High Speed Rail Authority require that car dealerships advertise High Speed Rail locations, schedules, and fees? CRLC argues the provisions of this bill would not be best practice for the car industry any more that it would be for pro-life pregnancy centers to have to promote services which they consider morally reprehensible. SUPPORT AND OPPOSITION : Support: AB 775 (Chiu and Burke) Page 9 of ? Attorney General Kamala Harris (co-sponsor) Black Women for Wellness (co-sponsor) NARAL Pro-Choice California (co-sponsor) ACT for Women and Girls Alameda County Board of Supervisors Alameda County Public Health Department American Congress of Obstetricians and Gynecologists District IX American Nurses Association\California Anti-Defamation League California Association for Nurse Practitioners California Church IMPACT California Family Health Council California Latinas for Reproductive Justice California Nurses Association California Pan-Ethnic Health Network California Primary Care Association California Religious Coalition for Reproductive Choice California Women Lawyers California Women's Law Center Center on Reproductive Rights and Justice, University of California, Berkeley School of Law Citizens for Choice City and County of San Francisco City and County of San Francisco Department of Public Health City of Berkeley City of Los Angeles Mayor Eric Garcetti City of West Hollywood Feminist Majority Forward Together Fresno Barrios Unidos League of Women Voters of California Maternal and Child Health Access National Center for Youth Law National Council of Jewish Women California National Health Law Program Planned Parenthood Affiliates of California San Francisco Women's Political Committee Unite for Reproductive and Gender Equity Western Methodist Justice Movement Women's Community Clinic Oppose: Alternatives Pregnancy Center California Catholic Conference California Right to Life Committee AB 775 (Chiu and Burke) Page 10 of ? California, Concerned Women for America Capitol Resource Institute Marin Pregnancy Clinic National Institute of Family and Life Advocates Open Arms Pregnancy Center Numerous individuals -- END --