March 29, 2013

Board of Directors
Virginia Department of Health
Richmond, Virginia 23218-2448

VIA ELECTRONIC TRANSMISSION

Dear Board Members,

We have learned that you were informed by the office of Attorney General Ken Cuccinelli that you violated your statutory authority in adopting the Regulations for Licensure of Abortion Facilities that grandfathered existing facilities at the June 15, 2012 Board of Health meeting.
 
The Attorney General's office is incorrect in his interpretation.
 
The Attorney General's office position is that the proposed 12 VAC 5-412-370 conflicted with the Virginia Code 32.1-127.001. However, that section has never required existing facilities to meet new construction codes.  In fact, while the code states that the Board issue regulations for health care facilities, "consistent with the current edition of the 2010 Guidelines for Design and Construction of Hospital and Health Care Facilities,"
the 2010 Guidelines clearly state that they are "intended as minimum standards for designing and constructing new health care facility projects."

Your June 15th amendment to differentiate between new and existing facilities was "consistent with" the Guidelines, and clearly was within the statutory authority the General Assembly has given you.  Indeed, your June 15th amendments were also consistent with regulations promulgated in the past.  For example, the regulations that apply to hospitals in Virginia contain requirements for “construction of new buildings and additions, renovations, alterations or repairs of existing buildings for occupancy as a hospital” (12 VAC 5- 410-650). These new construction requirements incorporate the Guidelines. The requirements for existing facilities, however, do not. The same is true for the regulations governing outpatient surgical hospitals, which apply certain physical plant requirements to “construction of new buildings and additions, alterations or repairs to existing buildings for occupancy,” and apply the guidelines to the “design[] and construct[ion]” of hospitals” (12 VAC 5-410-1350). And similarly, regulations concerning obstetric services and newborn services impose physical plant requirements only for “[r]enovation or construction of a hospital’s obstetric unit” or “[c]onstruction and renovation of a hospital’s nursery” (12 VAC 5-410-442; 12 VAC 5- 410-445). Indeed, we are aware of no other instance in which Virginia has forced existing healthcare facilities to satisfy standards designed for new construction.
 
We, the undersigned members of the Virginia House of Delegates, strongly urge you to reconsider abandoning your June 15th amendments, and adopt final regulations that exempt existing facilities to move forward and avoid certain litigation with respect to your decision to establish disparate treatment for these clinics under the law.

Sincerely,



The Honorable David J. Toscano, 57th District

The Honorable Mark D. Sickles, 43rd District

The Honorable Rosalyn R. Dance, 63rd District

The Honorable Jennifer L. McClellan, 71st District

The Honorable Betsy Carr, District 69

The Honorable Jeion Ward, District 92

The Honorable Delores McQuinn, District 70

The Honorable Charniele Herring, District 46

The Honorable Eileen Filler-Corn, District 41

The Honorable Mamye BaCote, District 95

The Honorable Robert Brink, District 48

The Honorable Patrick Hope, District 47
 
The Honorable Mark Keam, District 35

The Honorable Robert Krupicka, District 45

The Honorable Alfonso Lopez, District 49

The Honorable Kenneth Plum, District 36

The Honorable James Scott, District 53

The Honorable Scott Surovell, District 44

The Honorable Roslyn Tyler, District 75

The Honorable Onzlee Ware, District 11

The Honorable Vivian Watts, District 39