Thursday, June 14, 2012

Separate and unequal regulations for women

Casey is the director of the Harry L. Carrico Center for Pro Bono Service, Universityof Richmond School of Law.

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If the Virginia General Assembly session of 2012 gave rise to shock and awe both regionally and nationally, then its session last year served as an apt prequel.

In 2011, the Senate passed SB924, a seemingly harmless bill that required the Department of Health to issue regulations related to infection prevention and disaster preparedness for hospitals. However, when it was considered in the Virginia House of Delegates, a surprise amendment was added that reclassified abortion providers across Virginia as a category of hospital. The bill narrowly passed the Senate on its return, with Lt. Gov. Bill Bolling casting the tie-breaking vote. Prior to signing the bill, Gov.Bob McDonnell told reporters, "I think it's fair to say that all outpatient surgical hospitals or clinics should be regulated in the same way, and I think this bill will do that."

However, even when categorized as hospitals, which is inappropriate in itself, these medical offices are being treated differently than other outpatient clinics. The proposed regulations by the Virginia Department of Health single out women's health care centers for a new set of rules, otherwise not applicable to any other outpatient facility. In effect, these regulations provide a mechanism for the McDonnell administration to achieve its endgame goal - the elimination of safe and affordable access to reproductive health services for Virginia's women.

This disparate treatment resounds throughout the proposed regulations, with the Department of Health and the McDonnell administration clearly expressing its mistrust of, and abject bias against, the health care professionals operating and staffing these centers. Here are but a few examples of the separate and unequal treatment handed to abortion providers now classified as hospitals:

-- An outpatient hospital is presumed to meet certification requirements if it is accredited by a peer-review organization (e.g., Joint Commission on Accreditation of Healthcare Organizations); no such peer-review option is available to abortion providers through these regulations, even though such options exist for the centers affected by these regulations (at a cost-saving to the commonwealth).

-- An abortion provider is required to provide any requested records (including patient records) to a Department of Health representative at any time, with the representative possibly removing redacted files from the clinic. If a records custodian is not present at the time of department inspection, then "such person ... shall be available on the premises within one hour of the surveyor's arrival" or risk "denial, suspension or revocation of the facility's license." Not only is this Draconian review not required of outpatient hospitals, no such review of medical records is even addressed in their set of regulations.

-- The proposed regulations provide exhaustive instructions on how trained, trusted health care professionals should deliver medical services to their patients, including, for example, how to monitor a patient on anesthesia. The regulations on outpatient hospitals summarily delegate administration of these services to the clinical staff to determine policies and procedures.

The enactment of this legislation and proposed regulations has been expedited through an emergency process, with a public hearing scheduled for Friday. However, the real emergency is the threat these regulations pose to the women's health centers across Virginia, which provide an array of safe and affordable medical services. These regulations do not seek to treat these medical centers as any other outpatient medical office; a comparison review of the proposed regulations with those in place for similar facilities clearly reveals as much.

The McDonnell administration's proposed regulations seek to do one thing and one thing only - cast a Big Brother shadow over the operations of all women's health centers, further constricting access to their services.

Virginia would be wise to avoid this trap.

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