SECTION 139.23. Application Procedures and Issuance of Licenses

(a) Purpose. This section establishes the application procedures that an abortion facility shall follow to obtain a license to operate as a licensed abortion facility in Texas.

(b) Definitions. The following terms when used in this section shall have the following meaning.

(1) Initial license--A license which is issued by the commission to a first-time applicant for an abortion facility license, including an unlicensed abortion facility, to a licensed facility for which a change of ownership is anticipated, and to a licensed facility for which a change of physical location will occur, that meets the requirements of the Act and this chapter and has successfully completed the application procedures for an initial license as set out in subsection (c) of this section. Initial licenses shall expire in two years.

(2) Renewal license--A license issued by the commission to a licensed abortion facility that meets all requirements of the Act and this chapter and has completed the application procedures for obtaining a renewal license as set out in subsection (d) of this section. Renewal licenses shall expire in two years.

(c) Application procedures for an initial license. This subsection establishes the application procedures for obtaining an initial license.

(1) Request for an application. Upon request for an abortion facility license, the commission shall furnish a person with an application packet. Applications may also be obtained and submitted through the commission's web site.

(2) Application requirements. The applicant shall submit the information listed in subparagraph (C) of this paragraph to the commission.

(A) An applicant shall not misstate a material fact on any documents required to be submitted under this subsection.

(B) The application form shall be accurate and complete and shall contain original signatures. The initial license fee shall accompany the application.

(C) The following documents shall be submitted with the original application form prescribed by the commission and shall be originals or notarized copies:

(i) information on the applicant including name, street address, mailing address, social security number or franchise tax identification number, date of birth, and driver's license number;

(ii) the name, mailing address, and street address of the abortion facility. The street address provided on the application shall be the physical location from which the abortion facility will be operating and providing services;

(iii) the telephone number of the facility, the telephone number where the administrator can usually be reached when the facility is closed, and if the facility has a fax machine, the fax number;

(iv) a list of names and business addresses of all persons who own any percentage interest in the applicant including:

(I) each limited partner and general partner if the applicant is a partnership; and

(II) each shareholder, member, director, and officer if the applicant is a corporation, limited liability company, or other business entity;

(v) a list of any businesses with which the applicant subcontracts and in which the persons listed under clause (iv) of this subparagraph hold any percentage of the ownership;

(vi) if the applicant has held or holds an abortion facility license or has been or is an affiliate of another licensed facility, the relationship, including the name and current or last mailing address and physical location of the other facility, and the date such relationship commenced and, if applicable, the date it was terminated;

(vii) if the facility is operated by or proposed to be operated under a management contract, the names and addresses of any person and organization having an ownership interest of any percentage in the management company;

(viii) a notarized affidavit attesting that the applicant is capable of meeting the requirements of this chapter;

(ix) an organizational structure of the staffing for the abortion facility. The organizational structure shall include full disclosure in writing of the names and addresses of all owners and persons controlling any ownership interest in the abortion facility. In the case of corporations, holding companies, partnerships, and similar organizations, the names and addresses of officers, directors, and stockholders, both beneficial and of record, when holding any percent, shall be disclosed. In the case of a nonprofit corporation, the names and addresses of the officers and directors shall be disclosed;

(x) the name(s), address(es), and Texas physician license number(s) of the physician(s) (including the facility's designated medical consultant), and all advanced practice registered nurse(s) and physician assistant(s) who will provide services at the abortion facility;

(xi) the following data concerning the applicant, the applicant's affiliates, and the managers of the applicant:

(I) denial, suspension, probation, or revocation of an abortion facility license in any state, a license for any health care facility or a license for a home and community support services agency (agency) in any state or any other enforcement action, such as (but not limited to) court civil or criminal action in any state;

(II) denial, suspension, probation, or revocation of or other enforcement action against an abortion facility license in any state, a license for any health care facility in any state, or a license for an agency in any state which is or was proposed by the licensing agency and the status of the proposal;

(III) surrendering a license before expiration of the license or allowing a license to expire in lieu of the commission proceeding with enforcement action;

(IV) federal or state (any state) criminal felony arrests or convictions;

(V) Medicare or Medicaid sanctions or penalties relating to the operation of a health care facility or agency;

(VI) operation of a health care facility or agency that has been decertified or terminated from participation in any state under Medicare or Medicaid; or

(VII) debarment, exclusion, or contract cancellation in any state from Medicare or Medicaid; and

(xii) for the two-year period preceding the application date, the following data concerning the applicant, the applicant's affiliates, and the managers of the applicant:

(I) federal or state (any state) criminal misdemeanor arrests or convictions;

(II) federal or state (any state) tax liens;

(III) unsatisfied final judgments;

(IV) eviction involving any property or space used as an abortion facility or health care facility in any state;

(V) injunctive orders from any court; or

(VI) unresolved final Medicare or Medicaid audit exceptions.

(3) Applicant copy. The applicant shall retain a copy of all documentation that is submitted to the commission.

(4) Application processing. Upon the commission's receipt of the application form, the required information described in paragraph (2)(C) of this subsection, and the initial license fee from an applicant, the commission shall review the material to determine whether it is complete and correct.

(A) The time periods for reviewing the material shall be in accordance with §139.25 of this title (relating to Time Periods for Processing and Issuing a License).

(B) If an abortion facility receives a notice from the commission that some or all of the information required under paragraph (2)(C) of this subsection is deficient, the facility shall submit the required information no later than six months from the date of the notice.

(i) A facility which fails to submit the required information within six months from the notice date is considered to have withdrawn its application for an initial license. The license fee shall not be refunded.

(ii) A facility which has withdrawn its application shall reapply for a license in accordance with this subsection, if it wishes to continue the application process. A new license fee is required.

(5) Withdrawal from the application process. If an applicant decides at any time not to continue the application process for an initial license, the application shall be withdrawn upon written request from the applicant.

(6) Issuance of an initial license.

(A) Time periods for processing. The time periods for processing an initial application shall be in accordance with §139.25 of this title.

(B) Effective period of an initial license. The initial license is valid for two years. The initial license expires on the last day of the month ending the licensure period.

(C) Pre-licensing Inspection. Once the commission has determined that the application form, the information required to accompany the application form, and the initial license fee are complete and correct, the commission shall conduct an on-site pre-licensing inspection of the physical location.

(D) After the on-site pre-licensing inspection has been completed, the commission shall:

(i) issue an initial license to the owner of a facility, if the facility is found to be in compliance with the commission's requirements for initial licensure; or

(ii) deny the application, if the facility has not complied with the commission's requirements for issuing an initial license. The procedure for denial of a license shall be in accordance with §139.32 of this title (relating to License Denial, Suspension, Probation, or Revocation).

(7) A commission representative shall inspect the abortion facility in accordance with §139.31 of this title (relating to On-Site Inspections and Complaint Investigations of a Licensed Abortion Facility) within 60 days after the issuance of an initial license. If the commission determines that a facility is not in compliance with the provisions of the Act or this chapter after the initial on-site inspection, the commission shall notify the facility. Notification shall be in accordance with §139.32 of this title.

(8) If for any reason, an applicant decides not to continue the application process, the applicant shall submit to the commission a written request to withdraw its application. If an initial license has been issued, the applicant shall cease providing abortion services and return the initial license to the commission with its written request to withdraw. The commission shall acknowledge receipt of the request to withdraw. The license fee shall not be refunded.

(9) Continuing compliance by the licensed abortion facility with the provisions of the Act and this chapter is required.

(d) Application procedures for renewal of a license.

(1) The commission shall send notice of expiration of a license to the licensee at least 60 days before the expiration date of the license. If the licensee has not received notice of expiration from the commission 45 days prior to the expiration date, it is the duty of the licensee to notify the commission and request an application for a renewal license.

(2) The licensee shall submit the following items to the commission by certified mail, marked confidential, and postmarked no later than 30 days prior to the expiration date of the license:

(A) a complete and accurate renewal application form;

(B) current updated documents containing all the information required in subsection (c)(2)(C) of this section; and

(C) the renewal license fee.

(3) A facility shall not misstate a material fact on any documents required to be submitted to the commission or required to be maintained by the facility in accordance with the provisions of the Act and this chapter.

(4) A commission surveyor shall inspect a licensed abortion facility in accordance with §139.31(b) of this title.

(5) If a licensee makes timely and sufficient application for renewal, the license shall not expire until the commission issues the renewal license or until the commission denies renewal of the license.

(A) The commission shall issue a renewal license to a licensee who meets the minimum standards for a license in accordance with the provisions of the Act and this chapter.

(B) The commission may propose to deny the issuance of a renewal license if:

(i) based on the inspection report, the commission determines that the abortion facility does not meet or is in violation of any of the provisions of the Act or this chapter;

(ii) renewal is prohibited by the Education Code, §57.491, relating to defaults on guaranteed student loans;

(iii) a facility discloses any of the actions or offenses listed in subsection (c)(2)(C)(xi) and (xii) of this section; and

(iv) a facility fails to file abortion reports or fails to ensure that a physician's report is filed in accordance with §139.5 of this title (relating to Additional Reporting Requirements).

(6) If a licensee makes a timely application for renewal of a license, and action to revoke, suspend, place on probation, or deny renewal of the license is pending, the license does not expire but does extend until the application for renewal is granted or denied after the opportunity for a formal hearing. A renewal license shall not be issued unless the commission has determined the reason for the proposed action no longer exists.

(7) If a suspension of a license overlaps a renewal date, the suspended license holder shall comply with the renewal procedures in this subsection; however, the commission may not renew the license until the commission determines that the reason for suspension no longer exists.

(8) If the commission revokes or does not renew a license, a person may apply for an initial license by complying with the requirements of the Act and this chapter at the time of reapplication. The commission may refuse to issue a license, if the reason for revocation or non-renewal continues to exist.

(9) Upon revocation or non-renewal, a license holder shall return the original license to the commission.

(10) The procedures for revocation, suspension, probation, or denial of a license shall be in accordance with §139.32 of this title.

(e) Failure to timely renew a license.

(1) If a licensee fails to timely renew a license in accordance with subsection (d) of this section, the commission shall notify the licensee that the facility shall cease operation on the expiration date of the license.

(2) To continue providing services at the abortion facility after the expiration of the license, the owner shall apply for an initial license in accordance with subsection (c) of this section.

(f) Frequency of inspections. Inspections of the abortion facility shall be performed at a frequency prescribed by and in accordance with §139.31 of this title.

Source Note: The provisions of this §139.23 adopted to be effective June 28, 2009, 34 TexReg 4125; amended to be effective March 26, 2019, 44 TexReg 1532