Physicians Concerned Bill Infringes on Patient-Physician Relationship

Written Testimony on Senate Bill CSSB 258 by Sen. Don Huffines

Senate Health and Human Services

Feb. 15, 2017

The Texas Medical Association appreciates the opportunity to present comments on behalf of the more than 50,000 members of the Texas Medical Association. TMA’s members fall on both sides of the abortion debate so our comments and concerns on the legislation you are considering today are not about that highly personal issue. TMA makes these comments to again voice our concerns about continued action by the legislature to interfere with the patient-physician relationship – a relationship which must be focused solely on the unique health needs and interests of each patient. While we have concerns on each of the bills this committee is considering today, our particular concern is with CSSB 258 relating to the informed consent process and the physician’s role in addressing the disposition of fetal remains following an abortion. 

TMA has a long history of advocating on behalf of our patients and physicians on mandates that interfere in the patient-physician relationship — and in particular, in relation to reproductive health. Unfortunately, CSSB 258 not only conflates two highly personal and complex matters but it again calls for further interference in the patient-physician relationship and the informed consent process by essentially scripting the interaction between a physician and patient. We believe an open conversation rooted in science-based information is the foundation of the physician-patient relationship and informed decision-making for our patients. 

CSSB 258 would require a physician who is caring for a woman seeking an abortion to ensure the already complex informed consent process also addresses the disposition of fetal remains. The bill would apply not only to women seeking an elective procedure but also to women with an ectopic pregnancy for which surgical intervention is essential to protect the woman’s life. As proposed, the physician would be required to inform the patient that she must consider the cost of the burial or cremation of the fetal remains from an abortion. If a woman indicates she would be interested in seeking support to pay for the costs of a burial or cremation, the physician would also: be required to have the patient review and sign another form; provide her information about a nonprofit organization that might be able to pay for the disposition; and further, share the patient’s name and contact information with that organization. 

To conduct all of these activities, the physician and his/her delegate will first need to request and obtain information from each patient about their income in order to help the patient assess whether they could qualify for potential assistance for disposition. The physician would need to be able to answer questions on the burial or cremation process such as the process and the cost, as well as questions about the organization that might offer to cover costs. Of even greater concern is the requirement for the physician to submit confidential patient contact information to one or more unidentified private, nonprofit organizations that can potentially assist with the costs of disposition.   This is not the routine work of a physician’s office — it is the work of a public or nonprofit entity. 

Physicians would have no guarantee that the patient’s information would be handled by the nonprofit confidentially. This legislation outlines no requirements for the Department of State Health Services (DSHS) to develop materials and guidance for physicians on these requirements nor is DSHS directed to conduct extensive screening of each nonprofit to guarantee they will ensure the confidentiality of private information for each potential applicant. 

CSSB 258 also renews our concerns on the several still unanswered questions that TMA and the Texas Hospital Association raised on both the proposed and final DSHS fetal tissue disposition rules.  This legislation raises further issues on the physician’s role in the disposition of fetal remains:

  • Under DISPOSITION OF EMBRYONIC AND FETAL TISSUE REMAINS,  a “health care facility” providing health or medical care to a pregnant women is not defined and broadly interpreted, could include physician’s offices and clinics, federally qualified health centers, birthing centers, ambulatory surgical centers, and freestanding emergency m00981edical clinics, in addition to hospitals. The scope of the facilities is broad and the penalties are significant – including the loss of licensure;
  • CSSB refers to interment or scattering of the ashes “in any manner as authorized by law for human remains.” As interment of human remains requires burial, this raises the question on whether fetal remains intended for interment rather than cremation would require its own burial plot? – A costly burden for individuals and a physician practice.

We recognize your interest in offering options for women or families that experience a fetal demise or that seek an abortion. However, this proposal would dictate a physician and patient conversation, force the physician to evaluate a patient’s income, and turn over their patient’s confidential information. This is all contrary to the patient-physician relationship. CSSB 258 merely adds to the confusion brought by actions that call for disposition of fetal remains — action for which the state has yet to identify a compelling public health concern or threat. 

We believe an open conversation rooted in science-based information is the cornerstone of informed decision-making for our patients. It is also the cornerstone of the physician-patient relationship. We have and will continue to ask you to work with Texas physicians to help ensure that we can continue to have non-judgmental conversations and open communication with our patients. Information in the state’s “Women’s Right to Know” pamphlet, or requirements included in the still pending rules on fetal remains, or legislation such as CSSB 258, all influence the communication between the patient and physician. We remain deeply concerned with efforts to legislate the actions of physicians. This is a precedent which would lay the foundation for future lawmakers to establish the details of the interaction between physicians and patients, and allow non-physicians to mandate what information, tests, or procedures must be provided to patients.

We look forward to working with the committee to address our concerns with CSSB 258. 

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Last Updated On

February 17, 2017