The Florida Senate

390.011  Definitions.

390.0111  Termination of pregnancies.

390.0112  Termination of pregnancies; reporting.

390.012  Powers of agency; rules; disposal of fetal remains.

390.013  Effective date of rules.

390.014  Licenses; fees, display, etc.

390.015  Application for license.

390.016  Expiration of license; renewal.

390.017  Grounds for suspension or revocation of license.

390.018  Administrative penalty in lieu of revocation or suspension.

390.019  Inspections; investigations.

390.021  Injunction.

390.025  Abortion referral or counseling agencies; penalties.

390.011  Definitions.--As used in this chapter, the term:

(1)  "Abortion" means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus.

(2)  "Abortion clinic" or "clinic" means any facility in which abortions are performed. The term does not include:

(a)  A hospital; or

(b)  A physician's office, provided that the office is not used primarily for the performance of abortions.

(3)  "Agency" means the Agency for Health Care Administration.

(4)  "Department" means the Department of Health.

(5)  "Hospital" means a facility licensed under chapter 395.

(6)  "Partial-birth abortion" means a termination of pregnancy in which the physician performing the termination of pregnancy partially vaginally delivers a living fetus before killing the fetus and completing the delivery.

(7)  "Physician" means a physician licensed under chapter 458 or chapter 459 or a physician practicing medicine or osteopathic medicine in the employment of the United States.

(8)  "Third trimester" means the weeks of pregnancy after the 24th week of pregnancy.

History.--s. 1, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429; s. 4, ch. 97-151; s. 37, ch. 97-264; s. 3, ch. 98-1.

390.0111  Termination of pregnancies.--

(1)  TERMINATION IN THIRD TRIMESTER; WHEN ALLOWED.--No termination of pregnancy shall be performed on any human being in the third trimester of pregnancy unless:

(a)  Two physicians certify in writing to the fact that, to a reasonable degree of medical probability, the termination of pregnancy is necessary to save the life or preserve the health of the pregnant woman; or

(b)  The physician certifies in writing to the medical necessity for legitimate emergency medical procedures for termination of pregnancy in the third trimester, and another physician is not available for consultation.

(2)  PERFORMANCE BY PHYSICIAN REQUIRED.--No termination of pregnancy shall be performed at any time except by a physician as defined in s. 390.011.

(3)  CONSENTS REQUIRED.--A termination of pregnancy may not be performed or induced except with the voluntary and informed written consent of the pregnant woman or, in the case of a mental incompetent, the voluntary and informed written consent of her court-appointed guardian.

(a)  Except in the case of a medical emergency, consent to a termination of pregnancy is voluntary and informed only if:

1.  The physician who is to perform the procedure, or the referring physician, has, at a minimum, orally, in person, informed the woman of:

a.  The nature and risks of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision of whether to terminate a pregnancy.

b.  The probable gestational age of the fetus at the time the termination of pregnancy is to be performed.

c.  The medical risks to the woman and fetus of carrying the pregnancy to term.

2.  Printed materials prepared and provided by the department have been provided to the pregnant woman, if she chooses to view these materials, including:

a.  A description of the fetus.

b.  A list of agencies that offer alternatives to terminating the pregnancy.

c.  Detailed information on the availability of medical assistance benefits for prenatal care, childbirth, and neonatal care.

3.  The woman acknowledges in writing, before the termination of pregnancy, that the information required to be provided under this subsection has been provided.

Nothing in this paragraph is intended to prohibit a physician from providing any additional information which the physician deems material to the woman's informed decision to terminate her pregnancy.

(b)  In the event a medical emergency exists and a physician cannot comply with the requirements for informed consent, a physician may terminate a pregnancy if he or she has obtained at least one corroborative medical opinion attesting to the medical necessity for emergency medical procedures and to the fact that to a reasonable degree of medical certainty the continuation of the pregnancy would threaten the life of the pregnant woman. In the event no second physician is available for a corroborating opinion, the physician may proceed but ¹shall document reasons for the medical necessity in the patient's medical records.

(c)  Violation of this subsection by a physician constitutes grounds for disciplinary action under s. 458.331 or s. 459.015. Substantial compliance or reasonable belief that complying with the requirements of informed consent would threaten the life or health of the patient is a defense to any action brought under this paragraph.

(4)  STANDARD OF MEDICAL CARE TO BE USED DURING VIABILITY.--If a termination of pregnancy is performed during viability, no person who performs or induces the termination of pregnancy shall fail to use that degree of professional skill, care, and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. "Viability" means that stage of fetal development when the life of the unborn child may with a reasonable degree of medical probability be continued indefinitely outside the womb. Notwithstanding the provisions of this subsection, the woman's life and health shall constitute an overriding and superior consideration to the concern for the life and health of the fetus when such concerns are in conflict.

(5)  PARTIAL-BIRTH ABORTION PROHIBITED; EXCEPTION.--

(a)  No physician shall knowingly perform a partial-birth abortion.

(b)  A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section for a conspiracy to violate the provisions of this section.

(c)  This subsection shall not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury, provided that no other medical procedure would suffice for that purpose.

(6)  EXPERIMENTATION ON FETUS PROHIBITED; EXCEPTION.--No person shall use any live fetus or live, premature infant for any type of scientific, research, laboratory, or other kind of experimentation either prior to or subsequent to any termination of pregnancy procedure except as necessary to protect or preserve the life and health of such fetus or premature infant.

(7)  FETAL REMAINS.--Fetal remains shall be disposed of in a sanitary and appropriate manner and in accordance with standard health practices, as provided by rule of the Department of Health. Failure to dispose of fetal remains in accordance with department rules is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(8)  REFUSAL TO PARTICIPATE IN TERMINATION PROCEDURE.--Nothing in this section shall require any hospital or any person to participate in the termination of a pregnancy, nor shall any hospital or any person be liable for such refusal. No person who is a member of, or associated with, the staff of a hospital, nor any employee of a hospital or physician in which or by whom the termination of a pregnancy has been authorized or performed, who shall state an objection to such procedure on moral or religious grounds shall be required to participate in the procedure which will result in the termination of pregnancy. The refusal of any such person or employee to participate shall not form the basis for any disciplinary or other recriminatory action against such person.

(9)  EXCEPTION.--The provisions of this section shall not apply to the performance of a procedure which terminates a pregnancy in order to deliver a live child.

(10)  PENALTIES FOR VIOLATION.--Except as provided in subsections (3) and (7):

(a)  Any person who willfully performs, or actively participates in, a termination of pregnancy procedure in violation of the requirements of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b)  Any person who performs, or actively participates in, a termination of pregnancy procedure in violation of the provisions of this section which results in the death of the woman commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(11)  CIVIL ACTION PURSUANT TO PARTIAL-BIRTH ABORTION; RELIEF.--

(a)  The father, if married to the mother at the time she receives a partial-birth abortion, and, if the mother has not attained the age of 18 years at the time she receives a partial-birth abortion, the maternal grandparents of the fetus may, in a civil action, obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion.

(b)  In a civil action under this section, appropriate relief includes:

1.  Monetary damages for all injuries, psychological and physical, occasioned by the violation of subsection (5).

2.  Damages equal to three times the cost of the partial-birth abortion.

History.--s. 1, ch. 79-302; s. 1, ch. 80-208; s. 6, ch. 88-97; s. 6, ch. 91-223; s. 64, ch. 91-224; s. 694, ch. 95-148; s. 2, ch. 97-151; s. 1, ch. 98-1.

¹Note.--The word "be" following the word "shall" was deleted by the editors.

Note.--Former s. 390.001.

390.0112  Termination of pregnancies; reporting.--

(1)  The director of any medical facility in which any pregnancy is terminated shall submit a monthly report which contains the number of procedures performed, the reason for same, and the period of gestation at the time such procedures were performed to the department. The department shall be responsible for keeping such reports in a central place from which statistical data and analysis can be made.

(2)  If the termination of pregnancy is not performed in a medical facility, the physician performing the procedure shall be responsible for reporting such information as required in subsection (1).

(3)  Reports submitted pursuant to this section shall be confidential and exempt from the provisions of s. 119.07(1) and shall not be revealed except upon the order of a court of competent jurisdiction in a civil or criminal proceeding. This exemption is subject to the Open Government Sunset Review Act in accordance with ¹s. 119.14.

(4)  Any person required under this section to file a report or keep any records who willfully fails to file such report or keep such records may be subject to a $200 fine for each violation. The department shall be required to impose such fines when reports or records required under this section have not been timely received. For purposes of this section, timely received is defined as 30 days following the preceding month.

History.--s. 2, ch. 79-302; s. 1, ch. 90-336; s. 191, ch. 97-101; s. 3, ch. 97-151.

¹Note.--

A.  Repealed by s. 1, ch. 95-217.

B.  Section 4, ch. 95-217, provides that "[n]otwithstanding any provision of law to the contrary, exemptions from chapter 119, Florida Statutes, or chapter 286, Florida Statutes, which are prescribed by law and are specifically made subject to the Open Government Sunset Review Act in accordance with section 119.14, Florida Statutes, are not subject to review under that act, and are not abrogated by the operation of that act, after October 1, 1995."

Note.--Former s. 390.002.

390.012  Powers of agency; rules; disposal of fetal remains.--

(1)  The agency shall have the authority to develop and enforce rules for the health, care, and treatment of persons in abortion clinics and for the safe operation of such clinics. These rules shall be comparable to rules which apply to all surgical procedures requiring approximately the same degree of skill and care as the performance of first trimester abortions. The rules shall be reasonably related to the preservation of maternal health of the clients. The rules shall not impose a legally significant burden on a woman's freedom to decide whether to terminate her pregnancy. The rules shall provide for:

(a)  The performance of pregnancy termination procedures only by a licensed physician.

(b)  The making, protection, and preservation of patient records, which shall be treated as medical records under chapter 458.

(2)  The agency may adopt and enforce rules, in the interest of protecting the public health, to ensure the prompt and proper disposal of fetal remains and tissue resulting from pregnancy termination.

(3)  If any owner, operator, or employee of an abortion clinic fails to dispose of fetal remains and tissue in a manner consistent with the disposal of other human tissue in a competent professional manner, the license of such clinic may be suspended or revoked, and such person is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 2, ch. 78-382; s. 1, ch. 80-413; s. 1, ch. 86-286; ss. 1, 4, 5, ch. 88-97; s. 65, ch. 91-224; s. 4, ch. 91-429; s. 5, ch. 97-151.

390.013  Effective date of rules.--Any abortion clinic which is in operation at the time of adoption of any applicable rule under this act shall be given a reasonable time under the particular circumstances, not to exceed 1 year from the date of such adoption, within which to comply with such rule.

History.--s. 3, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429.

390.014  Licenses; fees, display, etc.--

(1)  No abortion clinic shall operate in this state without a currently effective license issued by the agency.

(2)  A separate license shall be required for each clinic maintained on separate premises, even though it is operated by the same management as another clinic; but a separate license shall not be required for separate buildings on the same premises.

(3)  The annual license fee required for a clinic shall be nonrefundable and shall be reasonably calculated to cover the cost of regulation under this chapter, but may not be less than $35 nor more than $250.

(4)  Counties and municipalities applying for licenses under this act shall be exempt from the payment of the license fees.

(5)  The license shall be displayed in a conspicuous place inside the clinic.

(6)  A license shall be valid only for the clinic to which it is issued, and it shall not be subject to sale, assignment, or other transfer, voluntary or involuntary. No license shall be valid for any premises other than those for which it was originally issued.

History.--s. 4, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 5, ch. 91-282; s. 4, ch. 91-429; s. 6, ch. 97-151.

390.015  Application for license.--

(1)  An application for a license to operate an abortion clinic shall be made to the agency on a form furnished by it for that purpose. The application shall be accompanied by the applicable license fee.

(2)  The application, which shall be made under oath, shall contain, among other things, the following:

(a)  The name and address of the applicant if the applicant is an individual; or if the applicant is a firm, partnership, or association, the name and address of each member thereof; or if the applicant is a corporation, its name and address and the name and address of each of its officers.

(b)  The name by which the clinic is to be known.

(c)  The location of the clinic for which application is made and a statement that local zoning ordinances permit such location.

(d)  The name of the person or persons under whose management or supervision the clinic will be operated.

¹(3)  Each applicant for licensure must comply with the following requirements:

(a)  Upon receipt of a completed, signed, and dated application, the agency shall require background screening, in accordance with the level 2 standards for screening set forth in chapter 435, of the managing employee, or other similarly titled individual who is responsible for the daily operation of the clinic, and financial officer, or other similarly titled individual who is responsible for the financial operation of the clinic, including billings for patient care and services. The applicant must comply with the procedures for level 2 background screening as set forth in chapter 435, as well as the requirements of s. 435.03(3).

(b)  The agency may require background screening of any other individual who is an applicant if the agency has probable cause to believe that he or she has been convicted of a crime or has committed any other offense prohibited under the level 2 standards for screening set forth in chapter 435.

(c)  Proof of compliance with the level 2 background screening requirements of chapter 435 which has been submitted within the previous 5 years in compliance with any other health care licensure requirements of this state is acceptable in fulfillment of the requirements of paragraph (a).

(d)  A provisional license may be granted to an applicant when each individual required by this section to undergo background screening has met the standards for the abuse registry background check and the Department of Law Enforcement background check, but the agency has not yet received background screening results from the Federal Bureau of Investigation, or a request for a disqualification exemption has been submitted to the agency as set forth in chapter 435 but a response has not yet been issued. A standard license may be granted to the applicant upon the agency's receipt of a report of the results of the Federal Bureau of Investigation background screening for each individual required by this section to undergo background screening which confirms that all standards have been met, or upon the granting of a disqualification exemption by the agency as set forth in chapter 435. Any other person who is required to undergo level 2 background screening may serve in his or her capacity pending the agency's receipt of the report from the Federal Bureau of Investigation. However, the person may not continue to serve if the report indicates any violation of background screening standards and a disqualification exemption has not been requested of and granted by the agency as set forth in chapter 435.

(e)  Each applicant must submit to the agency, with its application, a description and explanation of any exclusions, permanent suspensions, or terminations of the applicant from the Medicare or Medicaid programs. Proof of compliance with the requirements for disclosure of ownership and control interests under the Medicaid or Medicare programs shall be accepted in lieu of this submission.

(f)  Each applicant must submit to the agency a description and explanation of any conviction of an offense prohibited under the level 2 standards of chapter 435 by a member of the board of directors of the applicant, its officers, or any individual owning 5 percent or more of the applicant. This requirement does not apply to a director of a not-for-profit corporation or organization if the director serves solely in a voluntary capacity for the corporation or organization, does not regularly take part in the day-to-day operational decisions of the corporation or organization, receives no remuneration for his or her services on the corporation or organization's board of directors, and has no financial interest and has no family members with a financial interest in the corporation or organization, provided that the director and the not-for-profit corporation or organization include in the application a statement affirming that the director's relationship to the corporation satisfies the requirements of this paragraph.

(g)  A license may not be granted to an applicant if the applicant or managing employee has been found guilty of, regardless of adjudication, or has entered a plea of nolo contendere or guilty to, any offense prohibited under the level 2 standards for screening set forth in chapter 435, unless an exemption from disqualification has been granted by the agency as set forth in chapter 435.

(h)  The agency may deny or revoke licensure if the applicant:

1.  Has falsely represented a material fact in the application required by paragraph (e) or paragraph (f), or has omitted any material fact from the application required by paragraph (e) or paragraph (f); or

2.  Has had prior action taken against the applicant under the Medicaid or Medicare program as set forth in paragraph (e).

(i)  An application for license renewal must contain the information required under paragraphs (e) and (f).

History.--s. 5, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429; s. 7, ch. 97-151; ss. 21, 71, ch. 98-171.

¹Note.--

A.  Section 70, ch. 98-171, provides that "[t]he provisions of this act which require an applicant for licensure, certification, or registration to undergo background screening shall apply to any individual or entity that applies, on or after July 1, 1998, for renewal of a license, certificate, or registration that is subject to the background screening required by this act."

B.  Section 71(1), ch. 98-171, provides that "[t]he provisions of this act which require an applicant for licensure, certification, or registration to undergo background screening shall stand repealed on June 30, 2001, unless reviewed and saved from repeal through reenactment by this legislature."

390.016  Expiration of license; renewal.--

(1)  A license issued for the operation of an abortion clinic, unless sooner suspended or revoked, shall expire 1 year from the date of issuance. Sixty days prior to the expiration date, an application for renewal of such license shall be submitted to the agency on a form furnished by the agency. The license may be renewed if the applicant has met the requirements of this chapter and of all rules adopted pursuant to this chapter.

(2)  A licensee against which a revocation or suspension proceeding is pending at the time of license renewal may be issued a conditional license which shall be effective until final disposition of the proceeding by the agency. If judicial relief is sought from the order resulting from the revocation or suspension proceeding, the court having jurisdiction may order that the conditional license be continued for the duration of the judicial proceeding.

History.--s. 6, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429; s. 8, ch. 97-151.

390.017  Grounds for suspension or revocation of license.--The license of an abortion clinic may be revoked, or may be suspended for a period not to exceed 2 years, or the agency may refuse to renew such license, if it is determined in accordance with the provisions of chapter 120 that the clinic has violated a provision of this chapter or any rule or lawful order of the agency.

History.--s. 7, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429; s. 9, ch. 97-151.

390.018  Administrative penalty in lieu of revocation or suspension.--If the agency finds that one or more grounds exist for the revocation or suspension of a license issued to an abortion clinic, the agency may, in lieu of such suspension or revocation, impose a fine upon the clinic in an amount not to exceed $1,000 for each violation. The fine shall be paid to the agency within 60 days from the date of entry of the administrative order. If the licensee fails to pay the fine in its entirety to the agency within the period allowed, the license of the licensee shall stand suspended, revoked, or renewal or continuation may be refused, as the case may be, upon expiration of such period and without any further administrative or judicial proceedings.

History.--s. 8, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429; s. 10, ch. 97-151.

390.019  Inspections; investigations.--The agency shall make or shall cause to be made an inspection of an abortion clinic prior to licensing such clinic, and it shall make such additional inspections and investigations as may be necessary to assure compliance with this chapter.

History.--s. 9, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429; s. 11, ch. 97-151.

390.021  Injunction.--In addition to the other powers provided by this chapter, the agency may institute injunction proceedings in a court of competent jurisdiction to restrain or prevent the establishment or operation of an abortion clinic which does not have a license or is in violation of any provision of this chapter or of any rules adopted pursuant to this chapter.

History.--s. 11, ch. 78-382; s. 1, ch. 86-286; ss. 4, 5, ch. 88-97; s. 4, ch. 91-429; s. 12, ch. 97-151.

390.025  Abortion referral or counseling agencies; penalties.--

(1)  As used in this section, an "abortion referral or counseling agency" is any person, group, or organization, whether funded publicly or privately, that provides advice or help to persons in obtaining abortions.

(2)  An abortion referral or counseling agency, before making a referral or aiding a person in obtaining an abortion, shall furnish such person with a full and detailed explanation of abortion, including the effects of and alternatives to abortion. If the person advised is a minor, a good faith effort shall be made by the referral or counseling agency to furnish such information to the parents or guardian of the minor. No abortion referral or counseling agency shall charge or accept any fee, kickback, or compensation of any nature from a physician, hospital, clinic, or other medical facility for referring a person thereto for an abortion.

(3)  Any person who violates the provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 1, ch. 79-302; s. 66, ch. 91-224.