Targeted Regulation of Abortion Providers (TRAP)
Kansas has an unenforceable regulatory scheme, which imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.
Restrictions on Where Abortion Services May Be ProvidedAmong the most common TRAP regulations are those restricting the provision of abortion services to hospitals or other specialized facilities, which place medically unnecessary and costly requirements on doctors and can decrease the availability of abortion care for women. Kansas has such regulations, including:
Any provider that provides five or more first-trimester procedures in a month or any procedures beyond the first trimester is singled out as "abortion facility" which must comply with a uniquely imposed licensure scheme not required of other medical providers--unless it is already a hospital or ambulatory surgical center. S.B. 36, 84th Leg., Reg. Sess. (Kan. 2011). "Abortion facilities" must be located within 30 miles of a hospital, and each physician at the facility must have admitting and clinical privileges at that hospital. No exception is provided for rural areas and nothing in the law requires hospitals to grant such privileges. Kan. Admin. Regs. §§ 28-34-127 (c)(1), 28-34-132.
All licensed facilities are subject to inspection at least twice per year and at any additional time the secretary of the state Department of Health and Environment deems necessary; at least one of these shall be without notice. All records shall be available for review by the secretary of the Department of Health and Environment or an agent of the secretary shall have access to all records and reports necessary to ensure compliance with this scheme, including patient records. The regulations make no reference to patient privacy or confidentiality. S.B. 36, 84th Leg., Reg. Sess. (Kan. 2011).
Abortion clinics in Kansas are subject to more than 30 pages of regulations regarding administration, professional qualifications, patient and employee testing, and physical-plant specifications. Kan. Admin. Regs. §§ 28-34-126 to 28-34-144. Regulations include many requirements that are not medically related, such as: separate locker rooms for patients and staff to store clothing and belongings, janitorial closets of 50 square feet per procedure room; and the maintenance of air temperature at between 70 and 75 degrees in patient recovery rooms and between 68 and 73 degrees in procedure rooms; Kan. Admin. Regs. §§ 28-34-133 (3), 28-34-133 (15), 28-34-134(a).
Kansas requires that certain second-trimester abortion services be provided in a hospital or ambulatory surgical center. S.B. 36, 84th Leg., Reg. Sess. (Kan. 2011).
Kansas prohibits certain qualified health-care professionals from providing abortion services. Only a physician licensed to practice medicine in the state may provide abortion care. S.B. 36, 84th Leg., Reg. Sess. (Kan. 2011).
A federal court temporarily enjoined the draft regulations. Hodes & Nauser, MDs, P.A. et al. v. Robert Moser, M.D et al. Case No. 2:11-CV-02365, U.S. District Court for the District of Kansas, Order Granting Motion for Preliminary Injunction (July 1, 2011). However, once the state codified the temporary regulations, the federal court case was dropped, in lieu of a state-level case. Hodes & Nauser, MDs, P.A. et al. v. Robert Moser, M.D et al. Case No. 11-C-1298, District Court of Shawnee County, Kansas, Div. 7. The state court issued a temporary restraining order against both S.B. 36, 84th Leg., Reg. Sess. (Kan. 2011) and the Permanent regulations Kan. Admin. Regs. §§ 28-34-133 (3), 28-34-133 (15), 28-34-134(a). Hodes & Nauser, MDs, P.A. et al. v. Robert Moser, M.D et al. Case No. 11-C-1298, District Court of Shawnee County, Kansas, Div. 7, Order Granting Temporary Restraining Order (Nov. 10, 2011.) The parties agreed that the temporary restraining order would remain in place while litigation was ongoing, so neither the statute nor the regulations are currently in effect. Hodes & Nauser, MDs, P.A. et al. v. Robert Moser, M.D et al. Case No. 11-C-1298, District Court of Shawnee County, Kansas, Div. 7, Agreed Order (Dec. 2, 2012).