Once upon a time in the last legislative session, Arlington state rep Bill Zedler tried and failed to introduce a law requiring a whole slew of new information that abortion-seeking women and their doctors would have to provide to the state. His bill failed, but as we told you a couple months ago, Zedler seems to have asked the Department of State Health Services to go ahead and implement his rules anyway. He must have been really nice about it, because as former Observer-er Andrea Grimes reports over on RH Reality Check, the department's doing just that.
More specifically, DSHS is poised to implement just a few of Zedler's proposed rules, chief among them asking a woman to provide her educational history, and requiring physicians to report "complications" from abortion procedures, without defining just yet exactly what that means.
"The more information you can find out about who's getting an abortion and why they're getting it is helpful," Zedler told the Dallas Morning News Friday. "The other side is always saying they want to make it legal but rare. So first we have to get the information."
The state Health and Human Services Commission is now drafting the proposed rules, which will soon be published in the Texas Register. They'll be available for public comment there for 30 days, after which time they'll return to HHSC to be considered for final adoption.
DSHS was initially pretty clear about the fact that the rules were going forward because of a request from Zedler. At a meeting DSHS had in April with doctors and clinic workers, a representative from the department, Renee Clack, said specifically they were there to discuss "some amendments the department has included that specifically relate to a request by Representative Zedler."
RH Reality Check and Unfair Park both reported those words. A few days later, UP was contacted by DSHS press officer Carrie Williams, asking us to make a correction. She told us that Clack "misspoke." The possible change to the rules, she said, was the result of "a general discussion among state leadership that resulted in us agreeing to look into it once it was clear the Rep. Zedler amendment would not be added to SB7."
"It wasn't at his specific request," she wrote. "We agreed to look at it after his amendment ultimately did not get added."
We didn't know what "a general discussion among state leadership" actually means or who it involves, and we still don't. As the rules move forward, DSHS is increasingly unwilling to say what role Bill Zedler had in making them a reality. We spoke with Williams again late last week to clarify.
"An amendment was brought forward that would have added additional requirements last session," she told us. "It didn't go through. There were discussions about the possibility of looking at whether we should add some of those element to the requirements. We agreed to take a look at that at the time, which is the process we're in now. We took a look at the various elements and drafted the rules."
So who asked DSHS to "take a look," if not Zedler?
"It was his - well, I really just can't speak to that level of detail," she replied. "He put forward the amendment that didn't ultimately pass. That generated discussions about the possibility of looking at those elements. So we agreed to that. I can't be more specific about that at this point. I don't know the details. I just - the conversations that took place months ago, I don't have information about those. I do know that it generated discussion about the possibility. I'm not aware of who the discussions were specifically between."
(Update, 12:47 p.m.:: Grimes reminds us of a previous article she wrote in which an open records request showed that DSHS was already corresponding with Zedler's office on getting his requirements put into statute the week before his amendment failed. Although Williams may not recall just who the discussions involved, it sure looks like it was Phil Fountain, Bill Zedler's chief of staff, and reps from HHSC and DSHS. Those conversations, once again, began rather earlier than Williams states.)
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Williams added that the rule-making procedures are meant to be totally transparent. "Any person in the public can come to us at any point in time if they have a concern about a rule we have in place, a flaw in a rule or something that has to be added. Our rule-making process is very open. People can make suggestions to us and provide comment. That's what's happening in this case."
Williams reiterated a point she's made in previous conversations (we have a lot of them lately), namely that DSHS has a legal right to change their own rules at any time.
"The changes are within our authority to pursue," she said. "We're always looking at our rules, making decisions about whether the rules need to be strengthened, clarifications that need to be made to help us do a better job as the entity that regulates health facilities. And the complication reporting will help us track potential problems at a particular facility and help us make sure that patients are safe."
The state's abortion facility inspectors, she said, "go out to facilities, inspect the facilities annually, and investigate complaints. The focus of their job is to go into a facility and make sure patients are getting the best care possible."