Relates to prohibiting drug or alcohol testing and screening of pregnant women unless the woman consents or the testing or screening is necessary for a medical emergency.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5478A
SPONSOR: Rosenthal L TITLE OF BILL:
An act to amend the public health law and the education law, in relation
to prohibiting drug or alcohol testing and screening of pregnant persons
PURPOSE:
This bill preserves the trust between a pregnant or perinatal person and
their healthcare provider by prohibiting drug testing without informed
consent.
SUMMARY OF SPECIFIC PROVISIONS:
Section one amends the public health law by adding a new section 2509-b.
Section two amends section 6530 of the education law by adding a new
subdivision 51. Section three establishes the effective date
JUSTIFICATION:
When a pregnant person comes to a hospital seeking medical care, there
is an expectation that they will receive only services to which they
consent and seek. The involuntary drug testing of pregnant and perinatal
persons not only runs counter to this, but it serves as a disincentive
to the pursuit of medical support in childbirth. New York State current-
ly ranks 30th among all states with a maternal mortality rate at 25
deaths per 100,000 live births.
In cases where a doctor deems it necessary to perform an emergency drug
test on an incapacitated patient, unable to consent to such testing, it
is equally vital that the results of this testing be kept confidential
and not used for any purpose outside of medical diagnoses and treatment.
This legislation prohibits physicians or other medical personnel from
conducting drug testing of a pregnant or perinatal person or their
newborn without informed consent being provided, unless such testing is
necessary for emergency purposes. This legislation will help to preserve
the necessary trust between a pregnant or perinatal person in need of
medical support, and their provider, and will remove a potential disin-
centive to seeking care.
LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS:
Undetermined.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
5478--A
2019-2020 Regular Sessions
IN ASSEMBLY
February 12, 2019
___________
Introduced by M. of A. L. ROSENTHAL -- read once and referred to the
Committee on Governmental Operations -- recommitted to the Committee
on Governmental Operations in accordance with Assembly Rule 3, sec. 2
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
AN ACT to amend the public health law and the education law, in relation
to prohibiting drug or alcohol testing and screening of pregnant
persons
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The public health law is amended by adding a new section
2 2509-b to read as follows:
3 § 2509-b. Drug or alcohol testing and screening for pregnant persons;
4 prohibited. 1. For purposes of this section, "drug" shall mean a
5 controlled substance as that term is defined in section thirty-three
6 hundred six of this chapter.
7 2. No physician, authorized practitioner, nurse practitioner, social
8 worker, hospital and/or any medical personnel shall perform a drug or
9 alcohol test or drug or alcohol screen on a pregnant or perinatal person
10 unless:
11 (a) such pregnant person or perinatal person gives prior written and
12 verbal informed consent specific to the drug and/or alcohol test or drug
13 and/or alcohol screen; and
14 (b) the performance of the drug and/or alcohol test or drug and/or
15 alcohol screen is within the scope of medical care being provided to
16 such pregnant person or perinatal person.
17 3. No physician, authorized practitioner, nurse practitioner, social
18 worker, hospital, and/or any medical personnel shall perform a drug or
19 alcohol test or drug or alcohol screen on a newborn unless:
20 (a) the person authorized to consent for a newborn, as defined by
21 subdivision two of section twenty-five hundred four of this title, gives
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06057-06-0
A. 5478--A 2
1 prior written and verbal informed consent specific to the drug and/or
2 alcohol test or drug and/or alcohol screen; and
3 (b) the performance of the drug and/or alcohol test or drug and/or
4 alcohol screen is within the scope of medical care being provided to the
5 newborn.
6 4. Written and verbal informed consent to a drug or alcohol test or
7 drug or alcohol screen shall occur at the time of testing, in language
8 understandable to the pregnant person, perinatal person or the persons
9 authorized to consent for newborns, under circumstances that provide
10 such person sufficient opportunity to consider whether or not to undergo
11 such drug or alcohol test or drug or alcohol screen and minimize the
12 possibility of coercion or undue influence, and shall consist of verbal
13 authorization and written authorization that is dated, signed and
14 includes the following:
15 (a) a statement explaining that consenting to a drug or alcohol test
16 or drug or alcohol screen is voluntary and requires written and verbal
17 informed consent, except when conditions under subdivision five of this
18 section are met;
19 (b) a statement that testing or screening positive for drugs and/or
20 alcohol could have legal consequences, including, but not limited to, a
21 report to child protective services, and that the person may want to
22 consult with legal counsel prior to or after consenting to a drug or
23 alcohol test or drug or alcohol screen;
24 (c) a statement explaining the extent of confidentiality of the test
25 or screen results;
26 (d) a statement of the medical purpose of the test or screen; and
27 (e) a general description of the test or screen.
28 5. Drug and/or alcohol testing or drug and/or alcohol screening may be
29 performed without consent of the patient or the persons authorized to
30 consent for minors when, in the physician's judgment, an emergency
31 exists and the person is in immediate need of medical attention, and an
32 attempt to secure consent would result in delay of treatment which would
33 increase the risk to such person's life or health. In the case that drug
34 and/or alcohol testing or drug and/or alcohol screening is performed
35 under these circumstances, the test or screen results shall be discussed
36 with the patient or the persons authorized to consent for newborns, in
37 language understandable to the pregnant person, perinatal person or the
38 persons authorized to consent for newborns and shall consist of verbal
39 notification and written notification that is dated, signed and includes
40 the following:
41 (a) a statement that testing or screening positive for drug and/or
42 alcohol could have legal consequences, including but not limited to a
43 potential report to child protective services, and that the patient may
44 want to consult with legal counsel;
45 (b) a statement that the patient or the persons authorized to consent
46 for newborns may appeal the determination that unconsented testing or
47 screening was necessary due to emergency;
48 (c) a statement in the medical record with a description of the emer-
49 gency that necessitated unconsented drug and/or alcohol testing or drug
50 and/or alcohol screening; and
51 (d) a statement explaining the extent of confidentiality of the test
52 or screen results.
53 6. No physician, authorized practitioner, nurse practitioner, hospi-
54 tal, and/or any medical personnel shall refuse to treat a pregnant or
55 perinatal person or a perinatal person's newborn child due to the
A. 5478--A 3
1 person's refusal to submit to a drug and/or alcohol test or drug and/or
2 alcohol screen.
3 7. Nothing in this section shall diminish any other requirement to
4 obtain informed consent for a drug or alcohol test or drug or alcohol
5 screen or any other procedure.
6 § 2. Section 6530 of the education law is amended by adding a new
7 subdivision 51 to read as follows:
8 51. Performing a drug or alcohol test or drug or alcohol screen in
9 violation of section twenty-five hundred nine-b of the public health
10 law.
11 § 3. This act shall take effect immediately.
