Bill Text: VA SB709 | 2018 | Regular Session | Prefiled
Bill Title: Abortions; performance of ultrasound, informed written consent.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-01-18 - Stricken at request of patron in Education and Health (15-Y 0-N) [SB709 Detail]
Download: Virginia-2018-SB709-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§16.1-77, 18.2-74, 18.2-76, and 32.1-127 of the Code of Virginia are amended and reenacted as follows:
§16.1-77. Civil jurisdiction of general district courts.
Except as provided in Article 5 (§16.1-122.1 et seq.), each general district court shall have, within the limits of the territory it serves, civil jurisdiction as follows:
(1) Exclusive original jurisdiction of any claim to specific personal property or to any debt, fine or other money, or to damages for breach of contract or for injury done to property, real or personal, or for any injury to the person that would be recoverable by action at law or suit in equity, when the amount of such claim does not exceed $4,500 exclusive of interest and any attorney fees, and concurrent jurisdiction with the circuit courts having jurisdiction in such territory of any such claim when the amount thereof exceeds $4,500 but does not exceed $25,000, exclusive of interest and any attorney fees. However, this $25,000 limit shall not apply with respect to distress warrants under the provisions of §55-230, cases involving liquidated damages for violations of vehicle weight limits pursuant to §46.2-1135, nor cases involving forfeiture of a bond pursuant to §19.2-143.
(2) Jurisdiction to try and decide attachment cases when the amount of the plaintiff's claim does not exceed $25,000 exclusive of interest and any attorney fees.
(3) Jurisdiction of actions of unlawful entry or detainer as provided in Article 13 (§8.01-124 et seq.) of Chapter 3 of Title 8.01, and in Chapter 13 (§55-217 et seq.) of Title 55, and the maximum jurisdictional limits prescribed in subdivision (1) shall not apply to any claim, counter-claim or cross-claim in an unlawful detainer action that includes a claim for damages sustained or rent against any person obligated on the lease or guarantee of such lease.
(4) Except where otherwise specifically provided, all jurisdiction, power and authority over any civil action or proceeding conferred upon any general district court judge or magistrate under or by virtue of any provisions of the Code.
(5) Jurisdiction to try and decide suits in interpleader involving personal or real property where the amount of money or value of the property is not more than the maximum jurisdictional limits of the general district court. However, the maximum jurisdictional limits prescribed in subdivision (1) shall not apply to any claim, counter-claim, or cross-claim in an interpleader action that is limited to the disposition of an earnest money deposit pursuant to a real estate purchase contract. The action shall be brought in accordance with the procedures for interpleader as set forth in § 8.01-364. However, the general district court shall not have any power to issue injunctions. Actions in interpleader may be brought by either the stakeholder or any of the claimants. The initial pleading shall be either by motion for judgment, by warrant in debt, or by other uniform court form established by the Supreme Court of Virginia. The initial pleading shall briefly set forth the circumstances of the claim and shall name as defendant all parties in interest who are not parties plaintiff.
(6) Jurisdiction to try and decide any cases pursuant to § 2.2-3713 of the Virginia Freedom of Information Act (§2.2-3700 et seq.) or § 2.2-3809 of the Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq.), for writs of mandamus or for injunctions.
(7) Concurrent jurisdiction with the circuit courts having jurisdiction in such territory to adjudicate habitual offenders pursuant to the provisions of Article 9 (§46.2-355.1 et seq.) of Chapter 3 of Title 46.2.
(8) Jurisdiction to try
and decide cases alleging a civil violation described in §18.2-76.
(9)
Jurisdiction to try and decide any cases pursuant to §55-79.80:2 of the
Condominium Act (§55-79.39 et seq.) or §55-513 of the Property Owners'
Association Act (§55-508 et seq.).
(10) (9) Concurrent
jurisdiction with the circuit courts to submit matters to arbitration pursuant
to Chapter 21 (§8.01-577 et seq.) of Title 8.01 where the amount in
controversy is within the jurisdictional limits of the general district court.
Any party that disagrees with an order by a general district court granting an
application to compel arbitration may appeal such decision to the circuit court
pursuant to §8.01-581.016.
§18.2-74. When abortion or termination of pregnancy lawful after second trimester of pregnancy.
Notwithstanding any of the provisions of §18.2-71 and in addition to the provisions of §§18.2-72 and 18.2-73, it shall be lawful for any physician licensed by the Board of Medicine to practice medicine and surgery to terminate or attempt to terminate a human pregnancy or aid or assist in the termination of a human pregnancy by performing an abortion or causing a miscarriage on any woman in a stage of pregnancy subsequent to the second trimester, provided that the following conditions are met:
(a) Said operation is performed in a hospital licensed by the Virginia State Department of Health or operated by the Department of Behavioral Health and Developmental Services.
(b) The physician and two
consulting physicians certify certifies and so enter
enters in the hospital record of the woman, that in their the
physician's medical opinion, based upon
their the physician's
best clinical judgment, the continuation of the pregnancy is likely to result
in the death of the woman or substantially and
irremediably impair the mental or physical health of the
woman.
(c) Measures for life support for the product of such abortion
or miscarriage must shall be available and
utilized if there is any clearly visible evidence of viability.
§18.2-76. Informed written consent required.
A.
Before performing any abortion or inducing any miscarriage or terminating a
pregnancy as provided in §18.2-72, 18.2-73, or 18.2-74, the physician shall
obtain the informed written consent of the pregnant woman. However, if the
woman has been adjudicated incapacitated by any court of competent jurisdiction
or if the physician knows or has good reason to believe that such woman is
incapacitated as adjudicated by a court of competent jurisdiction, then only
after permission is given in writing by a parent, guardian, committee, or other
person standing in loco parentis to the woman, may the physician perform the
abortion or otherwise terminate the pregnancy.
B. At least 24 hours
before the performance of an abortion, a qualified medical professional trained
in sonography and working under the supervision of a physician licensed in the
Commonwealth shall perform fetal transabdominal ultrasound imaging on the
patient undergoing the abortion for the purpose of determining gestational age.
If the pregnant woman lives at least 100 miles from the facility where the
abortion is to be performed, the fetal ultrasound imaging shall be performed at
least two hours before the abortion. The ultrasound image shall contain the
dimensions of the fetus and accurately portray the presence of external members
and internal organs of the fetus, if present or viewable. Determination of
gestational age shall be based upon measurement of the fetus in a manner
consistent with standard medical practice in the community for determining
gestational age. When only the gestational sac is visible during ultrasound
imaging, gestational age may be based upon measurement of the gestational sac.
If gestational age cannot be determined by a transabdominal ultrasound, then
the patient undergoing the abortion shall be verbally offered other ultrasound
imaging to determine gestational age, which she may refuse. A print of the
ultrasound image shall be made to document the measurements that have been
taken to determine the gestational age of the fetus.
The provisions of this
subsection shall not apply if the woman seeking an abortion is the victim of
rape or incest, if the incident was reported to law-enforcement authorities.
Nothing herein shall preclude the physician from using any ultrasound imaging
that he considers to be medically appropriate pursuant to the standard medical
practice in the community.
C. The qualified
medical professional performing fetal ultrasound imaging pursuant to subsection
B shall verbally offer the woman an opportunity to view the ultrasound image,
receive a printed copy of the ultrasound image and hear the fetal heart tones
pursuant to standard medical practice in the community, and shall obtain from
the woman written certification that this opportunity was offered
and whether or not it was accepted and, if applicable, verification that the
pregnant woman lives at least 100 miles from the facility where the abortion
is to be performed. A printed copy of the ultrasound image shall be maintained
in the woman's medical record at the facility where the abortion is to be
performed for the longer of (i) seven years or (ii) the extent required by
applicable federal or state law.
D. For purposes of
this section:
"Informed written
consent" means the knowing and voluntary written consent to abortion by a pregnant
woman of any age, without undue inducement or any element of force, fraud,
deceit, duress, or other form of constraint or coercion by the physician who is
to perform the abortion or his agent. The basic information to effect such
consent, as required by this subsection, shall be provided by telephone or in
person to the woman at least 24 hours before the abortion by the physician who
is to perform the abortion, by a referring physician, or by a licensed
professional or practical nurse working under the direct supervision of either
the physician who is to perform the abortion or the referring physician;
however, the information in subdivision 5 may be provided instead by a licensed
health-care professional working under the direct supervision of either the
physician who is to perform the abortion or the referring physician. This basic
information shall include:
1. A full, reasonable
and comprehensible medical explanation of the nature, benefits, and risks of
and alternatives to the proposed procedures or protocols to be followed in her
particular case;
2. An instruction that
the woman may withdraw her consent at any time prior to the performance of the
procedure;
3. An offer for the
woman to speak with the physician who is to perform the abortion so that he may
answer any questions that the woman may have and provide further information
concerning the procedures and protocols;
4. A statement of the
probable gestational age of the fetus at the time the
abortion is to be performed and that fetal ultrasound imaging shall be
performed prior to the abortion to confirm the gestational age; and
5. An offer to review
the printed materials described in subsection F. If the woman
chooses to review such materials, they shall be provided to her in a respectful
and understandable manner, without prejudice and intended to give the woman the
opportunity to make an informed choice and shall be provided to her at least 24
hours before the abortion or mailed to her at least 72 hours before the
abortion by first-class mail or, if the woman requests, by certified mail,
restricted delivery. This offer for the woman to review the material shall
advise her of the following: (i) the Department of Health publishes printed
materials that describe the unborn child and list agencies that offer
alternatives to abortion; (ii) medical assistance benefits may be available for
prenatal care, childbirth and neonatal care, and that more detailed information
on the availability of such assistance is contained in the printed materials
published by the Department; (iii) the father of the unborn child is liable to
assist in the support of her child, even in instances where he has offered to
pay for the abortion, that assistance in the collection of such support is
available, and that more detailed information on the availability of such
assistance is contained in the printed materials published by the Department;
(iv) she has the right to review the materials printed by the Department and
that copies will be provided to her free of charge if she chooses to review
them; and (v) a statewide list of public and private agencies and services that
provide ultrasound imaging and auscultation of fetal heart tone services free
of charge. Where the woman has advised that the pregnancy is the result of a rape,
the information in clause (iii) may be omitted.
The information
required by this subsection may be provided by telephone or in person.
E. The physician need
not obtain the informed written consent of the woman when the abortion is to be
performed pursuant to a medical emergency or spontaneous miscarriage.
"Medical emergency" means any condition which, on the basis of the
physician's good faith clinical judgment, so complicates the medical condition
of a pregnant woman as to necessitate the immediate abortion of her pregnancy
to avert her death or for which a delay will create a
serious risk of substantial and irreversible impairment of a major bodily
function.
F. On or before
October 1, 2001, the Department of Health shall publish, in English and in each
language which is the primary language of two percent
or more of the population of the Commonwealth, the following printed materials
in such a way as to ensure that the information is easily comprehensible:
1. Geographically
indexed materials designed to inform the woman of public and private agencies
and services available to assist a woman through pregnancy, upon childbirth and
while the child is dependent, including, but not limited to, information on
services relating to (i) adoption as a positive alternative, (ii) information
relative to counseling services, benefits, financial assistance, medical care
and contact persons or groups, (iii) paternity establishment and child support
enforcement, (iv) child development, (v) child rearing and stress management,
(vi) pediatric and maternal health care, and (vii) public and private agencies
and services that provide ultrasound imaging and auscultation of fetal heart
tone services free of charge. The materials shall include a comprehensive list
of the names and telephone numbers of the agencies, or, at the option of the
Department of Health, printed materials including a toll-free, 24-hour-a-day
telephone number which may be called to obtain, orally, such a list and
description of agencies in the locality of the caller and of the services they
offer;
2. Materials designed
to inform the woman of the probable anatomical and physiological
characteristics of the human fetus at two-week gestational increments from the
time when a woman can be known to be pregnant to full term, including any
relevant information on the possibility of the fetus's survival and pictures or
drawings representing the development of the human fetus at two-week
gestational increments. Such pictures or drawings shall contain the dimensions
of the fetus and shall be realistic and appropriate for
the stage of pregnancy depicted. The materials shall be objective,
nonjudgmental and designed to convey only accurate scientific information about
the human fetus at the various gestational ages; and
3. Materials
containing objective information
describing the methods of abortion procedures commonly employed, the medical
risks commonly associated with each such procedure, the possible detrimental
psychological effects of abortion, and the medical risks commonly associated
with carrying a child to term.
The Department of
Health shall make these materials available at each local health department
and, upon request, to any person or entity, in reasonable numbers and without
cost to the requesting party.
G. Any physician who
fails to comply with the provisions of this section shall be subject to a
$2,500 civil penalty.
§32.1-127. Regulations.
A. The regulations promulgated by the Board to carry out the provisions of this article shall be in substantial conformity to the standards of health, hygiene, sanitation, construction and safety as established and recognized by medical and health care professionals and by specialists in matters of public health and safety, including health and safety standards established under provisions of Title XVIII and Title XIX of the Social Security Act, and to the provisions of Article 2 (§32.1-138 et seq.).
B. Such regulations:
1. Shall include minimum standards for (i) the construction
and maintenance of hospitals, nursing homes and certified nursing facilities to
ensure the environmental protection and the life safety of its patients, and
employees, and the public; (ii) the
operation, staffing and equipping of hospitals, nursing homes and certified
nursing facilities; (iii) qualifications and training of staff of hospitals,
nursing homes and certified nursing facilities, except those professionals
licensed or certified by the Department of Health Professions; (iv) conditions
under which a hospital or nursing home may provide medical and nursing services
to patients in their places of residence; and (v) policies related to infection
prevention, disaster preparedness, and facility security of hospitals, nursing
homes, and certified nursing facilities. For purposes of this
paragraph, facilities in which five or more first trimester abortions per month
are performed shall be classified as a category of "hospital";
2. Shall provide that at least one physician who is licensed to practice medicine in this Commonwealth shall be on call at all times, though not necessarily physically present on the premises, at each hospital which operates or holds itself out as operating an emergency service;
3. May classify hospitals and nursing homes by type of specialty or service and may provide for licensing hospitals and nursing homes by bed capacity and by type of specialty or service;
4. Shall also require that each hospital establish a protocol for organ donation, in compliance with federal law and the regulations of the Centers for Medicare and Medicaid Services (CMS), particularly 42 C.F.R. § 482.45. Each hospital shall have an agreement with an organ procurement organization designated in CMS regulations for routine contact, whereby the provider's designated organ procurement organization certified by CMS (i) is notified in a timely manner of all deaths or imminent deaths of patients in the hospital and (ii) is authorized to determine the suitability of the decedent or patient for organ donation and, in the absence of a similar arrangement with any eye bank or tissue bank in Virginia certified by the Eye Bank Association of America or the American Association of Tissue Banks, the suitability for tissue and eye donation. The hospital shall also have an agreement with at least one tissue bank and at least one eye bank to cooperate in the retrieval, processing, preservation, storage, and distribution of tissues and eyes to ensure that all usable tissues and eyes are obtained from potential donors and to avoid interference with organ procurement. The protocol shall ensure that the hospital collaborates with the designated organ procurement organization to inform the family of each potential donor of the option to donate organs, tissues, or eyes or to decline to donate. The individual making contact with the family shall have completed a course in the methodology for approaching potential donor families and requesting organ or tissue donation that (a) is offered or approved by the organ procurement organization and designed in conjunction with the tissue and eye bank community and (b) encourages discretion and sensitivity according to the specific circumstances, views, and beliefs of the relevant family. In addition, the hospital shall work cooperatively with the designated organ procurement organization in educating the staff responsible for contacting the organ procurement organization's personnel on donation issues, the proper review of death records to improve identification of potential donors, and the proper procedures for maintaining potential donors while necessary testing and placement of potential donated organs, tissues, and eyes takes place. This process shall be followed, without exception, unless the family of the relevant decedent or patient has expressed opposition to organ donation, the chief administrative officer of the hospital or his designee knows of such opposition, and no donor card or other relevant document, such as an advance directive, can be found;
5. Shall require that each hospital that provides obstetrical services establish a protocol for admission or transfer of any pregnant woman who presents herself while in labor;
6. Shall also require that each licensed hospital develop and implement a protocol requiring written discharge plans for identified, substance-abusing, postpartum women and their infants. The protocol shall require that the discharge plan be discussed with the patient and that appropriate referrals for the mother and the infant be made and documented. Appropriate referrals may include, but need not be limited to, treatment services, comprehensive early intervention services for infants and toddlers with disabilities and their families pursuant to Part H of the Individuals with Disabilities Education Act, 20 U.S.C. §1471 et seq., and family-oriented prevention services. The discharge planning process shall involve, to the extent possible, the father of the infant and any members of the patient's extended family who may participate in the follow-up care for the mother and the infant. Immediately upon identification, pursuant to §54.1-2403.1, of any substance-abusing, postpartum woman, the hospital shall notify, subject to federal law restrictions, the community services board of the jurisdiction in which the woman resides to appoint a discharge plan manager. The community services board shall implement and manage the discharge plan;
7. Shall require that each nursing home and certified nursing facility fully disclose to the applicant for admission the home's or facility's admissions policies, including any preferences given;
8. Shall require that each licensed hospital establish a protocol relating to the rights and responsibilities of patients which shall include a process reasonably designed to inform patients of such rights and responsibilities. Such rights and responsibilities of patients, a copy of which shall be given to patients on admission, shall be consistent with applicable federal law and regulations of the Centers for Medicare and Medicaid Services;
9. Shall establish standards and maintain a process for designation of levels or categories of care in neonatal services according to an applicable national or state-developed evaluation system. Such standards may be differentiated for various levels or categories of care and may include, but need not be limited to, requirements for staffing credentials, staff/patient ratios, equipment, and medical protocols;
10. Shall require that each nursing home and certified nursing facility train all employees who are mandated to report adult abuse, neglect, or exploitation pursuant to §63.2-1606 on such reporting procedures and the consequences for failing to make a required report;
11. Shall permit hospital personnel, as designated in medical staff bylaws, rules and regulations, or hospital policies and procedures, to accept emergency telephone and other verbal orders for medication or treatment for hospital patients from physicians, and other persons lawfully authorized by state statute to give patient orders, subject to a requirement that such verbal order be signed, within a reasonable period of time not to exceed 72 hours as specified in the hospital's medical staff bylaws, rules and regulations or hospital policies and procedures, by the person giving the order, or, when such person is not available within the period of time specified, co-signed by another physician or other person authorized to give the order;
12. Shall require, unless the vaccination is medically contraindicated or the resident declines the offer of the vaccination, that each certified nursing facility and nursing home provide or arrange for the administration to its residents of (i) an annual vaccination against influenza and (ii) a pneumococcal vaccination, in accordance with the most recent recommendations of the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention;
13. Shall require that each nursing home and certified nursing facility register with the Department of State Police to receive notice of the registration or reregistration of any sex offender within the same or a contiguous zip code area in which the home or facility is located, pursuant to §9.1-914;
14. Shall require that each nursing home and certified nursing facility ascertain, prior to admission, whether a potential patient is a registered sex offender, if the home or facility anticipates the potential patient will have a length of stay greater than three days or in fact stays longer than three days;
15. Shall require that each licensed hospital include in its visitation policy a provision allowing each adult patient to receive visits from any individual from whom the patient desires to receive visits, subject to other restrictions contained in the visitation policy including, but not limited to, those related to the patient's medical condition and the number of visitors permitted in the patient's room simultaneously;
16. Shall require that each nursing home and certified nursing facility shall, upon the request of the facility's family council, send notices and information about the family council mutually developed by the family council and the administration of the nursing home or certified nursing facility, and provided to the facility for such purpose, to the listed responsible party or a contact person of the resident's choice up to six times per year. Such notices may be included together with a monthly billing statement or other regular communication. Notices and information shall also be posted in a designated location within the nursing home or certified nursing facility. No family member of a resident or other resident representative shall be restricted from participating in meetings in the facility with the families or resident representatives of other residents in the facility;
17. Shall require that each nursing home and certified nursing facility maintain liability insurance coverage in a minimum amount of $1 million, and professional liability coverage in an amount at least equal to the recovery limit set forth in §8.01-581.15, to compensate patients or individuals for injuries and losses resulting from the negligent or criminal acts of the facility. Failure to maintain such minimum insurance shall result in revocation of the facility's license;
18. Shall require each hospital that provides obstetrical services to establish policies to follow when a stillbirth, as defined in § 32.1-69.1, occurs that meet the guidelines pertaining to counseling patients and their families and other aspects of managing stillbirths as may be specified by the Board in its regulations;
19. Shall require each nursing home to provide a full refund of any unexpended patient funds on deposit with the facility following the discharge or death of a patient, other than entrance-related fees paid to a continuing care provider as defined in §38.2-4900, within 30 days of a written request for such funds by the discharged patient or, in the case of the death of a patient, the person administering the person's estate in accordance with the Virginia Small Estates Act (§64.2-600 et seq.); and
20. Shall require that each hospital that provides inpatient psychiatric services establish a protocol that (i) requires, for any refusal to admit a medically stable patient referred to its psychiatric unit, direct verbal communication between the on-call physician in the psychiatric unit and the referring physician, if requested by such referring physician, and (ii) prohibits on-call physicians or other hospital staff from refusing a request for such direct verbal communication by a referring physician.
C. Upon obtaining the appropriate license, if applicable, licensed hospitals, nursing homes, and certified nursing facilities may operate adult day care centers.
D. All facilities licensed by the Board pursuant to this article which provide treatment or care for hemophiliacs and, in the course of such treatment, stock clotting factors, shall maintain records of all lot numbers or other unique identifiers for such clotting factors in order that, in the event the lot is found to be contaminated with an infectious agent, those hemophiliacs who have received units of this contaminated clotting factor may be apprised of this contamination. Facilities which have identified a lot which is known to be contaminated shall notify the recipient's attending physician and request that he notify the recipient of the contamination. If the physician is unavailable, the facility shall notify by mail, return receipt requested, each recipient who received treatment from a known contaminated lot at the individual's last known address.