Disbelief: Texas new rule on burial of fetal remains

Texas Administrative Code

New York Times

The national headlines this morning read "Texas Will Require Burial of Fetal Remains".  Hospital administrators, lab directors, surgery directors, facility directors, in-house counsel, healthcare lawyers, environmental lawyers, waste management companies, and consultants are all shaking their heads in disbelief.  The new rules, filed Monday with the Texas Secretary of State's office, are set to take effect mid-December. 

The Texas Health and Human Services Commission proposed the new rules under the direction of Texas Governor Greg Abbott. The state expects healthcare providers, and not patients, to absorb the cost of costly cremation or burials.  Who sponsored this legislation? Hospitals are not in the business of cremating or burying patients, let alone "fetal remains".  Only the funeral home lobby can benefit from it. 

This legislation does not consider the gestation period. It is applicable from the date of conception forward.  It is gasoline on the political fireball topic of abortions. (A topic that I typically stay far away from).  But this bizarre new rule is also applicable to fetal remains unrelated to abortion.  Fetal remains result from miscarriages, ectopic pregnancies, D & C procedures, stillbirths, and a host of other scenarios. "Generous exceptions" were made for home miscarriages so that women would not have to transport their fetal remains to a healthcare facility to arrange for burial.

The law is in the Texas Administrative Code Chapter 1 Miscellaneous Provisions Subchapter K Definition of Treatment, and Disposition of Special Waste from Health-Care Related Facilities, Rule 1.136 Approved Methods of Treatment and Disposition Section (a)(4 Pathological Waste.  Under this section, all body parts and tissues, other than "fetal remains", can be disposed in sanitary landfills following certain disinfection processes.  Really, no one really wants to know the level of detail about what is done to any body part or tissue but if you do, you now know where to find it.

There were two public comment hearings held by the Texas Department of Health and Human Services and they received 35,000 comments according to a department spokeswoman Carrie Williams.  The Texas Medical Association and Texas Hospital Association have been strong advocates for the healthcare industry but were unable to stop the legislation from moving forward.

Expect a legal court challenge to ensue. In the meanwhile, how will hospitals abide by the new rules? As a former healthcare executive and current healthcare lawyer, I'll be thinking about an answer to this in case the phone starts to ring. I'd be interested in your thoughts and comments.