Can the Texas health department share abortion-clinic records with the medical or nursing board, or confirm a place is not a licensed abortion facility?

Plain-English summary

The Commissioner of the Texas Department of Health asked the Attorney General two questions about the confidentiality rules that come with regulating abortion facilities. The Texas Abortion Facility Reporting and Licensing Act tells the department to license these facilities and keeps tight control over the information the department collects in the process. The first question was whether the department could pass along information about a physician or nurse to the boards that license doctors and nurses, so those boards could discipline the professional. The department explained that during its investigations it sometimes learns of alleged unprofessional or unethical conduct by a physician or nurse, and it wanted to be able to refer that to the appropriate licensing board. The second question was whether the department could tell a member of the public that some office, clinic, or facility is not a licensed abortion facility.

The Attorney General answered no to both. On the first, the key was the statute's narrow release valve. The act makes all information and records the department holds confidential and lists only a few situations where they may be released: for statistics with no one identified, with everyone's consent, or to medical personnel, appropriate state agencies, or courts "to enforce this chapter." The phrase "to enforce this chapter" did the work. The act is about licensing abortion facilities and setting health and safety standards for them. It does not govern whether a physician or nurse behaved unprofessionally or unethically, and the Board of Health had not adopted rules on that subject. So referring information to the medical or nursing board to discipline a professional for unprofessional or unethical conduct would not be enforcing the abortion-facility act, and the statute did not authorize it.

On the second question, the opinion built on an earlier one, Attorney General Opinion JM-1144 (1990), which had read the same confidentiality provisions broadly. That opinion concluded the act absolutely prohibits releasing any information that would confirm, directly or indirectly, that a clinic or physician's office is a licensed abortion facility, unless the clinic or physician consents. It even barred releasing statistics if someone could use them to figure out the identity of a clinic, patient, or physician. Given that, the Attorney General reasoned that the department also cannot say a place is not a licensed abortion facility. The logic is about inference: if the public knows the department will confirm "this is not a licensed facility" but is forbidden to confirm "this is a licensed facility," then a refusal to answer becomes an answer. A requester could simply note which inquiries the department declines to address and conclude those are the licensed facilities. Because that indirect disclosure is exactly what the act, as construed in JM-1144, forbids, the department could not give the "not licensed" answer either.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Health and Safety Code chapter 245 and the related rules and reporting requirements have been amended substantially since 1992, and the Texas Open Records Act has been recodified as the Public Information Act in Government Code chapter 552, so confirm current law before relying on anything described here.

Background and statutory framework

The act generally sets forth licensing requirements for abortion facilities. Health & Safety Code §§ 245.003-245.008. It authorizes the Texas Board of Health to adopt rules regarding the issuance of licenses and establishing minimum standards to protect the health and safety of patients. Id. §§ 245.009, 245.010. Section 245.011 sets out reporting requirements applicable to all abortion facilities. Subsection (b) provides that the report "may not identify by any means the physician performing the abortion or the patient." Subsection (d) provides that all information and records held by the department under the chapter are confidential and are not open records for purposes of the Texas Open Records Act, and that information may not be released except: (1) for statistical purposes, but only if a person, patient, or abortion facility is not identified; (2) with the consent of each person, patient, and abortion facility identified in the information released; or (3) to medical personnel, appropriate state agencies, or county or district courts to enforce the chapter. Id. § 245.011(d). A violation of section 245.011 is a class A misdemeanor. Id. § 245.011(e).

On the first question, the Attorney General concluded that section 245.011(d)(3) authorizes the department to release information to other state agencies only for the purpose of enforcing the act. The act deals primarily with the licensing and licensing standards for abortion facilities; it does not include provisions governing the "unprofessional or unethical" conduct of physicians and nurses, nor has the board adopted any such regulations. See 25 T.A.C. ch. 139. The opinion noted that while section 245.010 authorizes the board to establish minimum standards to protect the health and safety of abortion-facility patients, that authority is expressly limited to specified areas (qualifications for and supervision of professional and nonprofessional personnel; medical treatment and medical services; sanitary and hygienic conditions; equipment; and clinical records), Health & Safety Code § 245.010(c)(1)-(6); see also Attorney General Opinion JM-1076 (1989), and that section 245.010(d)(1) expressly states it does not authorize the board to establish the qualifications of a licensed practitioner. Therefore, releasing information to the Board of Medical Examiners or the Board of Nurse Examiners to discipline a physician or nurse for "unprofessional or unethical conduct" would not be for the purpose of enforcing the act and is not authorized by section 245.011(d)(3). (The opinion separately concluded the Nurse Practice Act did not require the department to report information obtained in an abortion-facility investigation to the Board of Nurse Examiners, because such an investigation ensures compliance with chapter 245 rather than reviewing the quality of nursing care, and section 245.011(d)(3) prohibits release to state agencies except to enforce the act.)

On the second question, the Attorney General concluded the act does not permit the department to inform a person that an office, clinic, or facility is not a licensed abortion facility. Section 245.011(d) makes all information and reports confidential, releasable only in the prescribed circumstances. In Attorney General Opinion JM-1144 (1990), the office construed these confidentiality provisions broadly: because subsections (b) and (d)(1) protect the identities of physicians and clinics, the act prohibits the department from confirming whether a certain clinic or physician's office is a licensed abortion facility absent consent, and prohibits releasing statistical information if that information would allow a person to infer the identity of a clinic, patient, or physician. Attorney General Opinion JM-1144 at 3-4 (citing Open Records Decision No. 422 (1984)). In short, JM-1144 construed the act to absolutely prohibit the release of any information that would confirm, directly or indirectly, that a clinic or physician's office is a licensed abortion facility, absent consent. Because requesters who knew the department would confirm a facility is not licensed, but is prohibited from affirmatively stating that a facility is licensed, could determine the license status of particular facilities from the department's responses (or its refusal to respond), the act as construed in JM-1144 prohibits that indirect release as well.

Common questions

Can the Texas health department refer an abortion-clinic physician or nurse to the licensing boards for discipline?
Not using records held under the Abortion Facility Reporting and Licensing Act, according to this opinion. The act lets the department share those records with other agencies only to enforce the act, and disciplining a professional for unprofessional or unethical conduct is not enforcing the act.

Why can't the department just confirm a place is not a licensed abortion facility?
Because, the opinion explained, confirming "not licensed" lets people deduce which places are licensed from the department's silence about the others. The act (as read in an earlier opinion) bars confirming licensed status even indirectly.

Are abortion-facility records open under the Texas public records law?
No. Section 245.011(d) makes them confidential and expressly says they are not open records under the Texas Open Records Act, with only a few narrow exceptions.

What happens if someone releases this confidential information improperly?
The opinion noted that a violation of section 245.011 is a class A misdemeanor under the act.

Citations

• Health & Safety Code ch. 245 (Texas Abortion Facility Reporting and Licensing Act); §§ 245.003-245.008, 245.006, 245.009, 245.010, 245.010(c)(1)-(6), 245.010(d)(1), 245.011, 245.011(b), 245.011(d), 245.011(d)(3), 245.011(e)
• 25 Tex. Admin. Code ch. 139
• Attorney General Opinions JM-1144 (1990), JM-1076 (1989)
• Open Records Decision No. 422 (1984)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0153
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0153.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and two long footnotes in the scan are heavily degraded; illegible portions are marked rather than guessed. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 13, 1992

David R. Smith, M.D.
Commissioner
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

Opinion No. DM-153

Re: Whether the Texas Abortion Facility Reporting and Licensing Act, Health and Safety Code chapter 245, authorizes the Department of Health to release information relating to physicians and nurses to the State Board of Medical Examiners and Board of Nurse Examiners, or authorizes the department to publicly disclose that an office or clinic is not a licensed abortion facility (RQ-322)

Dear Commissioner Smith:

On behalf of the Texas Department of Health (the "department"), your predecessor asked whether the Texas Abortion Facility Reporting and Licensing Act (the "act"), Health and Safety Code chapter 245, permits the department to release information to other state agencies such as the Board of Medical Examiners or the Board of Nurse Examiners. He also asked whether the act permits the department to inform a person that an office, clinic, or facility is not licensed as an abortion facility.

The act generally sets forth licensing requirements for abortion facilities. Health & Safety Code §§ 245.003-245.008. The act also authorizes the Texas Board of Health (the "board") to adopt rules regarding the issuance of licenses and establishing minimum standards to protect the health and safety of patients. Id. §§ 245.009, 245.010. Section 245.011 of the act sets forth certain reporting requirements applicable to all abortion facilities. Subsection (b) of section 245.011 provides that "[t]he report may not identify by any means the physician performing the abortion or the patient." Subsection (d) provides that "[a]ll information and records held by the department under this chapter are confidential and are not open records for purposes of [the Texas Open Records Act] . . . ." It also provides that information may not be released except under the following circumstances:

              (1) for statistical purposes, but only if a person, patient, or abortion facility is not identified;
              (2) with the consent of each person, patient, and abortion facility identified in the information released; or
              (3) to medical personnel, appropriate state agencies, or county or district courts to enforce this chapter.

Id. § 245.011(d). A violation of section 245.011 is a class A misdemeanor. Id. § 245.011(e).

Your predecessor first asked whether the act permits the department to release information to other state agencies such as the Board of Medical Examiners or the Board of Nurse Examiners. Specifically, he stated that "[d]uring investigations the department may receive information concerning the alleged unprofessional or unethical conduct of a physician or nurse. The department would like to be able to release information relating to that physician or nurse to the appropriate licensing agency for action as determined by that agency." Thus, he asked whether section 245.011(d)(3) allows the release of information to such licensing agencies in these circumstances.

Section 245.011(d)(3) authorizes the department to release information "to medical personnel, appropriate state agencies, or county or district courts to enforce this chapter." (Emphasis added.) We believe that this provision authorizes the department to release information to other state agencies only for the purpose of enforcing the act. As noted above, the act deals primarily with the licensing and licensing standards for abortion facilities. It does not include provisions governing the "unprofessional or unethical" conduct of physicians and nurses, nor has the board adopted any such regulations. See 25 T.A.C. ch. 139.[1] Therefore, we conclude that the release of information to the Board of Medical Examiners or the Board of Nurse Examiners for the purpose of disciplining a physician or nurse for "unprofessional or unethical conduct" would not be for the purpose of enforcing the act and is not authorized by section 245.011(d)(3).[2]

With respect to his second question, we believe that the act does not permit the department to inform a person that an office, clinic, or facility is not licensed as an abortion facility. As noted above, section 245.011(d) provides that all information and reports held by the department under the act are confidential and may be released only in certain prescribed circumstances. In Attorney General Opinion JM-1144 (1990), this office addressed these confidentiality provisions and interpreted them broadly. On the basis that both subsections (b) and (d)(1) protect the identities of physicians and clinics, the opinion concluded that the act prohibits the department from confirming whether a certain clinic or physician's office is a licensed abortion facility, absent consent. Attorney General Opinion JM-1144 at 3. The opinion also concluded that the act prohibits the department from releasing statistical information if that information would allow a person to infer the identity of a clinic, patient or physician. Id. at 4 (citing Open Records Decision No. 422 (1984)). In sum, Attorney General Opinion JM-1144 construed the act to absolutely prohibit the release of any information which would confirm, directly or indirectly, that a clinic or physician's office is a licensed abortion facility, absent the clinic or physician's consent.

We conclude that the act also prohibits the department from releasing information that an office, clinic or facility is not a licensed abortion facility. Obviously, if requesters are aware that the department routinely confirms that an office, clinic or facility is not a licensed abortion facility but is prohibited from affirmatively stating that an office, clinic or facility is a licensed abortion facility, they will be able to determine the license status of particular facilities based on the department's response to their queries. In other words, if the department declines to respond to an inquiry, the requestor will be able to glean from that response that the subject of the inquiry is a licensed abortion facility. The act, as construed in Attorney General Opinion JM-1144, prohibits such a release of information, however indirect.

                              SUMMARY

           The Texas Abortion Facility Reporting and Licensing Act, Health and Safety Code chapter 245, does not permit the Texas Department of Health to release information to the Board of Medical Examiners or the Board of Nurse Examiners for the purpose of disciplining physicians or nurses for "unprofessional or unethical conduct." Nor does the act permit the department to inform a person that an office, clinic, or facility is not licensed as an abortion facility.

                                                DAN MORALES
                                                Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[Footnote 1: We do not decide whether the board would be authorized to adopt regulations governing the "unprofessional or unethical" conduct of physicians and nurses. We note, however, that while section 245.010 of the act authorizes the board to establish "minimum standards to protect the health and safety of abortion facility patients," its authority under this provision is not unlimited. Rather, it is expressly limited to rulemaking in the following areas: qualifications for and supervision of professional and nonprofessional personnel; medical treatment and medical services provided by an abortion facility; sanitary and hygienic conditions; equipment; and clinical records. Health & Safety Code § 245.010(c)(1)-(6); see also Attorney General Opinion JM-1076 (1989) (board not authorized to adopt rules governing the qualifications of a licensed practitioner because authority to adopt "minimum health and safety standards" is limited to these prescribed areas) (construing former V.T.C.S. article [number illegible in scan], of which chapter 245 of the Health and Safety Code is a nonsubstantive recodification; see Acts 1989, 71st Leg., ch. 678, § 1, at 2485-49). Furthermore, section 245.010(c) provides that standards adopted in these areas "may not be more stringent than Medicare certification standards, if any . . . ." In addition, subsection (d)(1) of section 245.010 expressly states that it "does not authorize the board to establish the qualifications of a licensed practitioner." (Emphasis added.)]

[Footnote 2: In a brief submitted to this office, the Board of Nurse Examiners contends that a provision of the Nurse Practice Act requires the department to release information about nurses to the Board of Nurse Examiners. We do not believe that this provision requires the department to report information it obtains in an investigation of a licensed abortion facility pursuant to the act to the Board of Nurse Examiners. First, as noted above, an investigation of a licensed abortion facility pursuant to the act is not an inquiry with respect to quality of professional nursing care provided; rather, its purpose is to ensure compliance with chapter 245 of the Health and Safety Code, which does not govern the quality of nursing care. See Health & Safety Code § 245.006 (authorizing the department to inspect abortion facilities to assure compliance with this chapter); see also supra note 1. Second, Health and Safety Code section 245.011(d)(3) expressly prohibits the department from releasing information about licensed abortion facilities to state agencies except for the purpose of enforcing the act.]