From AG Mark Herring's office:
As you know, the Board of Health is currently revising regulations that apply to certain health care facilities that provide abortion services after a periodic review was ordered by Governor McAuliffe. As part of that process, Health Commissioner Dr. Marissa Levine requested and has now received an official opinion from Attorney General Herring on three issues, the most noteworthy of which is:
“Whether the Board of Health may require that facilities in existence before the enactment of the Regulations for Licensure of Abortion Facilities satisfy the 'design-and-construction standards' in those regulations.”
After exhaustive and careful review, Attorney General Herring has concluded that:
“…in 2011 and 2013 the Board did not have the authority to apply the design-and-construction section of the regulations to facilities built before the regulations took effect, nor does it have the authority to do so now.”
The opinion supersedes and reverses incorrect advice provided to the Board of Health by the previous Attorney General during the regulatory process in 2012. That advice–that design-and-construction standards had to apply to preexisting facilities–is not supported by the law and represented an anomaly in how the Board of Health has treated the facilities it regulates and the way that laws are interpreted in Virginia. This opinion restores the way the Board has traditionally dealt with “design-and-construction” standards of health care facilities–namely that they apply only to new construction and major renovations.
Design-and-construction standards do not apply to preexisting facilities because:
1–The General Assembly did not use any language authorizing the Board to apply design-and-construction standards to facilities built before the new regulations took effect. Laws in Virginia are not applied retroactively unless the legislation explicitly says to do so, which the General Assembly did not do for these regulations.
2–Applying design-and-construction standards retroactively to pre-existing facilities is contrary to the longstanding administrative practice of the Board of Health. The General Assembly knew that the Board of Health has always applied these standards prospectively for health care facilities (hospitals, nursing homes) not retroactively, and it did not indicate in the legislation that these regulations were to be handled differently.
3–Under the statute, the “design-and-construction” regulations are supposed to be “consistent with the current edition of the Guidelines for design-and-construction of Hospital and Health Care Facilities issued by the American Institute of Architects Academy of Architecture for Health.” The Guidelines explicitly limit the scope of their application to “new construction and major renovation projects.”
4–The Virginia Uniform Statewide Building Code makes it plain that standards in the building code should not be applied retroactively:
“Any building or structure, for which a building permit has been issued or on which construction has commenced, or for which working drawings have been prepared in the year prior to the effective date of the Building Code, shall remain subject to the building regulations in effect at the time of such issuance or commencement of construction.”
Second, Commissioner Levine asked in her opinion request:
“If the Board of Health has the discretion under § 32.1-127.001 of the Code of Virginia to decide which prevails-the Uniform Statewide Building Code or the Guidelines for design-and-construction of Hospitals and Outpatient Facilities -when the two standards contain conflicting requirements.”
Attorney General Herring concludes that the 2013 regulatory process got it right and “the Board was correct in its determination in 2013 that the Guidelines prevail over the USBC” because the plain language of the statute, “ Notwithstanding any law or regulation to the contrary, the Board of Health shall promulgate regulations… consistent with the current edition of the [Guidelines],” means that it supersedes any other statutes that may be in conflict.
Third and finally, she asked:
“What § 32.1-127.001 means when it provides that the regulations must be 'consistent with' the current edition of the Guidelines for design-and-construction of Hospital and Health Care Facilities.”
Attorney General Herring concludes that, because the Guidelines that must inform the regulations include different sets of standards for different types of hospitals, “the Board's task is to determine which parts of the Guidelines should apply to which facilities so that those regulations substantially conform to the standards established by professionals… Just as the Board has determined that inpatient and outpatient categories of hospitals should be consistent with different sections of the Guidelines, the Board has the discretion to determine which parts of the Guidelines are appropriately applied to regulated health care facilities that provide abortion services, in keeping with their treatment as a category of hospital.”
Please see below for an on the record quote about the opinion attributable to Attorney General Mark R. Herring:
“The previous administration provided incorrect legal advice to the Board of Health and intervened in a process that is supposed to be driven by medical professionals. That inappropriate intrusion produced regulations that would impose a de facto abortion ban in Virginia by forcing many health care facilities to either shut down, leaving thousands of women without access to critical services, or to stop offering abortion services. Virginia women can make their own healthcare decisions and they have a right to safely and affordably access the full range of healthcare services they may need in the communities where they live.
“Despite what the previous attorney general claimed, nothing in the law requires or even authorizes the Board to apply these design and construction standards retroactively. Without his interference, the Board would have done what it has always done which is apply these standards to new facilities, not preexisting ones. This opinion corrects the previous administration's incorrect advice and helps restore the integrity of the regulatory process, which should be used to ensure the health and safety of Virginians, not as cover to pursue ideological agendas.”