MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Public Health and Human Services; Revenue and Expenditure General Bills
By: Representative Eubanks
AN ACT TO CREATE THE "WHOLE WOMEN'S HEALTHCARE FUNDING ACT"; TO PROVIDE FOR LEGISLATIVE FINDINGS; TO PROVIDE DEFINITIONS; TO PROVIDE THE PRIORITY THAT PUBLIC FUNDS EXPENDED FOR FAMILY PLANNING SERVICES ARE TO BE DISTRIBUTED BY THE STATE DEPARTMENT OF HEALTH; TO AUTHORIZE ENFORCEMENT OF THIS ACT BY THE ATTORNEY GENERAL AND ANY ENTITY THAT RECEIVES PUBLIC FUNDS; TO AUTHORIZE THE LEGISLATURE TO INTERVENE IF THE CONSTITUTIONALITY OF THIS ACT IS CHALLENGED; TO PROVIDE FOR THE REVISION OF APPROPRIATE FUNDS UPON THE EFFECTIVE DATE OF THIS ACT; TO BRING FORWARD SECTIONS 41-41-91, 41-41-97, 41-41-99 AND 41-75-1, MISSISSIPPI CODE OF 1972, WHICH PROHIBIT PUBLIC FUNDS TO BE USED TO PROVIDE ABORTIONS, FOR THE PURPOSE OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Whole Women's Healthcare Funding Act."
SECTION 2. (1) The Legislature finds that limited federal and state public funding exists for family planning and preventive health services for women generally, and for maternal and fetal patients in particular. Fiscal constraints mandate that the state allocate available funding efficiently. The principal means by which the state may fulfill its duty to steward these funds is to ensure that funds are distributed by priority to the most effective point-of-service health care providers.
(2) The Legislature further finds that public and private providers of primary and preventive care use public funds more effectively than providers of health care services that are specialized to particular medical services or discrete patient populations. Consequently, the Legislature intends, through the policies established in this act, to prioritize the distribution and utilization of public funds for family planning, reproductive health care and maternal and fetal care to such public and private primary and preventive care providers. The prioritization of public health care funding to primary and preventive care also furthers sound health care policy. Individuals who have a primary care clinician are more likely to access health care services, leading to more favorable long-term outcomes. Health care costs are lowered when primary and preventive care is provided by such primary care clinicians in a setting that addresses the whole person by emphasizing counseling, screening and early detection of leading causes of morbidity and mortality, which includes diabetes, hypertension, obesity, cardiovascular and renal diseases, and asthma. Indirect costs such as lost worker productivity and employer health care are also reduced. Most importantly, individual citizens will lead longer, healthier and happier lives as a result of having less fragmented health care.
(3) The Legislature further finds that the public policy of this state is to ensure delivery of comprehensive preconception and prenatal care for maternal and fetal patients in order to reduce maternal and fetal morbidity and mortality. According to the United States Centers for Disease Control, comprehensive preconception and prenatal care includes encouraging women to stop smoking, refrain from using alcohol and other drugs, eat a healthy diet, take folic acid supplements, maintain a healthy weight, control high blood pressure and diabetes, and reduce exposure to workplace and environmental hazards. In addition, screening and providing services to prevent intimate partner violence and infections such as HIV, sexually transmitted infections and viral hepatitis help to improve the health of the mother and the baby. Delivery of these critical services is best accomplished through a single point-of-service provider such as a primary care provider, and directed by a primary care clinician who has knowledge of the patient's medical history and personal, familial and environmental health factors. Medical intervention models that emphasize the provision of services to discrete patient sub-populations, such as women of child-bearing age, to address discrete patient conditions or provide particular therapies conflict with the utilization of public funding to maximize effective delivery of holistic prenatal and maternal health care.
(4) Federal law and the laws of the State of Mississippi provide that nontherapeutic or elective abortion shall not be subsidized with public funds. Moreover, it is also the public policy of this state that public funds shall not be provided for the direct or indirect costs, such as overhead, rent and utilities, of nontherapeutic abortion procedures by providing funds to state contractors or grantees that regularly provide such procedures.
SECTION 3. The following terms, when used in this act, unless a different meaning is plainly required by the context, shall have the following meanings:
(a) "Federally Qualified Abortion" means an abortion qualified for federal matching funds under the Medicaid program.
(b) "Public Funds" means state funds from whatever source, including without limitation state general revenue funds, state special account and limited purpose grants or loans and federal funds administered by state agencies provided pursuant to federal law.
(c) "Federally Qualified Health Center" means a health care provider that is eligible to receive federal funds.
(d) "Rural Health Clinic" means a health care provider that is eligible to receive federal funds.
(e) "Hospital" means a primary or tertiary care facility licensed under the state laws of Mississippi.
(f) "Department" means the State Department of Health.
SECTION 4. (1) Subject to any applicable requirements of federal statutes, rules, regulations or guidelines, any expenditures or grants of public funds for family planning services by the state by and through the department shall be made in the following order of priority:
(a) To public entities;
(b) To nonpublic hospitals and federally qualified health centers;
(c) To rural health clinics;
(d) To nonpublic health providers that have as their primary purpose the federal primary health care services;
(e) To nonpublic health providers that do not have as their primary purpose the federal primary health care services.
(2) The department shall not enter into a contract with, or make a grant to, any entity that performs nonfederally qualified abortions or maintains or operates a facility where nonfederally qualified abortions are performed.
SECTION 5. (1) The Attorney General shall have the authority to bring an action in law or equity to enforce the provisions of this act, and relief shall be available in appropriate circumstances including recoupment and declaratory and injunctive relief, including without limitation suspension or debarment.
(2) Any entity eligible to receive public funds shall possess standing to bring any action that the Attorney General has authority to bring under the provisions of subsection (1) of this section, and shall in appropriate circumstances be entitled to the same relief, if an expenditure or grant of public funds made in violation of this act has resulted in the reduction of public funds available to that entity. Any award of monetary relief shall be made to the appropriate public officer for deposit into one or more accounts maintained by the state for public funds.
(3) In an action brought under subsection (2) of this section, a prevailing plaintiff shall be entitled to an award of reasonable attorney's fees and costs.
SECTION 6. The Legislature, through one or more sponsors of this act duly appointed by resolution of their respective chamber, may intervene as a matter of right in any case in which the constitutionality of this act is challenged.
SECTION 7. It is the intent of the Legislature that every provision of this act shall operate with equal force and shall be severable one from the other, and that in the event that any provision of this act shall be held invalid or unenforceable by a court of competent jurisdiction, the provision shall be severed with the other provisions remaining fully enforceable.
SECTION 8. Any appropriation of public funds made by the department in derogation of the provisions of Section 4 of this act shall be null and void as of July 1, 2016, and the funds allocated under the appropriations shall be transferred to the eligible entities.
SECTION 9. Section 41-41-91, Mississippi Code of 1972, is brought forward as follows:
41-41-91. Notwithstanding any other provision of law to the contrary, no public funds that are made available to any institution, board, commission, department, agency, official, or employee of the State of Mississippi, or of any local political subdivision of the state, whether those funds are made available by the government of the United States, the State of Mississippi, or a local governmental subdivision, or from any other public source, shall be used in any way for, to assist in, or to provide facilities for abortion, except:
(a) When the abortion is medically necessary to prevent the death of the mother; or
(b) When the abortion is being sought to terminate a pregnancy resulting from an alleged act of rape or incest; or
(c) When there is a fetal malformation that is incompatible with the baby being born alive.
SECTION 10. Section 41-41-97, Mississippi Code of 1972, is brought forward as follows:
41-41-97. Legislative findings and purposes. (1) The Legislature of the State of Mississippi finds that under Section 1303 of the federal Patient Protection and Affordable Care Act, states are explicitly permitted to pass laws prohibiting qualified health plans offered through an exchange in their state from offering abortion coverage.
(2) It is the purpose of Sections 41-41-95 through 41-41-99 to affirmatively opt out of allowing qualified health plans that cover abortions to participate in exchanges within the State of Mississippi.
SECTION 11. Section 41-41-99, Mississippi Code of 1972, is brought forward as follows:
41-41-99. Opt-Out. (1) No abortion coverage may be provided by a qualified health plan offered through an exchange created pursuant to the federal Patient Protection and Affordable Care Act within the State of Mississippi.
(2) This limitation shall not apply to an abortion performed (a) when the life of the mother is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, or (b) when the pregnancy is the result of an alleged act of rape or incest. The physician is required to maintain sufficient documentation in the medical record that supports the medical necessity for the abortion for one (1) of the reasons outlined in this subsection (2).
SECTION 12. Section 41-75-1, Mississippi Code of 1972, is brought forward as follows:
41-75-1. For the purpose of this chapter:
(a) "Ambulatory surgical facility" means a publicly or privately owned institution that is primarily organized, constructed, renovated or otherwise established for the purpose of providing elective surgical treatment of "outpatients" whose recovery, under normal and routine circumstances, will not require "inpatient" care. The facility defined in this paragraph does not include the offices of private physicians or dentists, whether practicing individually or in groups, but does include organizations or facilities primarily engaged in that outpatient surgery, whether using the name "ambulatory surgical facility" or a similar or different name. That organization or facility, if in any manner considered to be operated or owned by a hospital or a hospital holding, leasing or management company, either for profit or not for profit, is required to comply with all licensing agency ambulatory surgical licensure standards governing a "hospital affiliated" facility as adopted under Section 41-9-1 et seq., provided that the organization or facility does not intend to seek federal certification as an ambulatory surgical facility as provided for at 42 CFR, Parts 405 and 416. If the organization or facility is to be operated or owned by a hospital or a hospital holding, leasing or management company and intends to seek federal certification as an ambulatory facility, then the facility is considered to be "freestanding" and must comply with all licensing agency ambulatory surgical licensure standards governing a "freestanding" facility.
If the organization or facility is to be owned or operated by an entity or person other than a hospital or hospital holding, leasing or management company, then the organization or facility must comply with all licensing agency ambulatory surgical facility standards governing a "freestanding" facility.
(b) "Hospital affiliated" ambulatory surgical facility means a separate and distinct organized unit of a hospital or a building owned, leased, rented or utilized by a hospital and located in the same county in which the hospital is located, for the primary purpose of performing ambulatory surgery procedures. The facility is not required to be separately licensed under this chapter and may operate under the hospital's license in compliance with all applicable requirements of Section 41-9-1 et seq.
(c) "Freestanding" ambulatory surgical facility means a separate and distinct facility or a separate and distinct organized unit of a hospital owned, leased, rented or utilized by a hospital or other persons for the primary purpose of performing ambulatory surgery procedures. The facility must be separately licensed as defined in this section and must comply with all licensing standards promulgated by the licensing agency under this chapter regarding a "freestanding" ambulatory surgical facility. Further, the facility must be a separate, identifiable entity and must be physically, administratively and financially independent and distinct from other operations of any other health facility, and shall maintain a separate organized medical and administrative staff. Furthermore, once licensed as a "freestanding" ambulatory surgical facility, the facility shall not become a component of any other health facility without securing a certificate of need to do that.
(d) "Ambulatory surgery" means surgical procedures that are more complex than office procedures performed under local anesthesia, but less complex than major procedures requiring prolonged postoperative monitoring and hospital care to ensure safe recovery and desirable results. General anesthesia is used in most cases. The patient must arrive at the facility and expect to be discharged on the same day. Ambulatory surgery shall only be performed by physicians or dentists licensed to practice in the State of Mississippi.
(e) "Abortion" means the use or prescription of any instrument, medicine, drug or any other substances or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus. Abortion procedures after the first trimester shall only be performed at a Level I abortion facility or an ambulatory surgical facility or hospital licensed to perform that service.
(f) "Abortion facility" means a facility operating substantially for the purpose of performing abortions and is a separate identifiable legal entity from any other health care facility. Abortions shall only be performed by physicians licensed to practice in the State of Mississippi. All physicians associated with the abortion facility must have admitting privileges at a local hospital and staff privileges to replace local hospital on-staff physicians. All physicians associated with an abortion facility must be board certified or eligible in obstetrics and gynecology, and a staff member trained in CPR shall always be present at the abortion facility when it is open. The term "abortion facility" includes physicians' offices that are used substantially for the purpose of performing abortions. An abortion facility operates substantially for the purpose of performing abortions if any of the following conditions are met:
(i) The abortion facility is a provider for performing ten (10) or more abortion procedures per calendar month during any month of a calendar year, or one hundred (100) or more in a calendar year.
(ii) The abortion facility, if operating less than twenty (20) days per calendar month, is a provider for performing ten (10) or more abortion procedures, or performing a number of abortion procedures that would be equivalent to ten (10) procedures per month, if the facility were operating twenty (20) or more days per calendar month, in any month of a calendar year.
(iii) The abortion facility holds itself out to the public as an abortion provider by advertising by any public means, such as newspaper, telephone directory, magazine or electronic media, that it performs abortions.
(iv) The facility applies to the licensing agency for licensure as an abortion facility.
(g) "Licensing agency" means the State Department of Health.
(h) "Operating" an abortion facility means that the facility is open for any period of time during a day and has on site at the facility or on call a physician licensed to practice in the State of Mississippi available to provide abortions.
An abortion facility may apply to be licensed as a Level I facility or a Level II facility by the licensing agency. Level II abortion facilities shall be required to meet minimum standards for abortion facilities as established by the licensing agency. Level I abortion facilities shall be required to meet minimum standards for abortion facilities and minimum standards for ambulatory surgical facilities as established by the licensing agency.
Any abortion facility that begins operation after June 30, 1996, shall not be located within fifteen hundred (1,500) feet from the property on which any church, school or kindergarten is located. An abortion facility shall not be in violation of this paragraph if it is in compliance with this paragraph on the date it begins operation and the property on which a church, school or kindergarten is located is later within fifteen hundred (1,500) feet from the facility.
SECTION 13. This act shall take effect and be in force from and after July 1, 2016.