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A00076 Summary:

Amd SS422, 409-a & 423, Soc Serv L; add S2500-l, Pub Health L; amd SS1046 & 1051, Fam Ct Act
Provides for testing of newborns for presence of alcohol and/or controlled substances; makes provisions for intensive drug rehabilitation services as preventative services for any parent of a newborn testing positive for alcohol and/or controlled substances; establishes guidelines for admissibility of such laboratory test results in family court; provides for referring alcohol and substance abusers to drug treatment court.
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A00076 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                   IN ASSEMBLY
                                     January 7, 2015
        Introduced  by  M.  of  A.  SIMANOWITZ -- Multi-Sponsored by -- M. of A.
          CROUCH -- read once and referred to  the  Committee  on  Children  and
        AN  ACT  to amend the social services law, in relation to providing drug
          rehabilitative services to parents of a newborn who tests positive for
          alcohol and/or controlled substances; to amend the public health  law,
          in  relation  to  providing  for  testing  of  newborns for alcohol or
          controlled substances; and to amend the family court act, in  relation
          to the admissibility of laboratory tests showing usage of a controlled
          substance  and referring certain alcohol and substance abusers to drug
          treatment court
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. Subdivision 2 of section 422 of the social services law is
     2  amended by adding a new paragraph (d) to read as follows:
     3    (d) Whenever a telephone call or report has been received by the state
     4  central register about a case of suspected child abuse  or  maltreatment
     5  from  an  attending  physician because a newborn has tested positive for
     6  alcohol and/or for a controlled substance as defined in section  thirty-
     7  three  hundred six of the public health law and that such positive toxi-
     8  cology was confirmed by a second test, the local district shall  conduct
     9  an  investigation  of  the subject of the report. Furthermore, the local
    10  district shall investigate the home in which the newborn  is  to  reside
    11  with  the  custodial  parent  in  order  to  assess  whether such living
    12  arrangements will impair the child or place the child at  imminent  risk
    13  of  impairment  pursuant  to paragraph (a) of subdivision two of section
    14  four hundred twelve of this title and subdivision  (f)  of  section  one
    15  thousand  twelve  of  the  family  court  act. The local social services
    16  commissioner shall in writing inform the subject of such central  regis-
    17  ter report about the availability of drug and/or alcohol substance abuse
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 76                               2
     1  treatment programs, and intensive caregiver rehabilitation services that
     2  may  be provided. The local social services district or the hospital, as
     3  defined in article twenty-eight of the public health law, may, if appro-
     4  priate,  make arrangements for the admission of the caretaker parent and
     5  child or children into a residential treatment program or into  an  out-
     6  patient  treatment  program  pursuant  to section four hundred nine-a of
     7  this article.  The subject of a report pursuant to this section shall be
     8  informed in writing by the local commissioner of social services of  the
     9  possible  civil  consequences  of failing to participate and comply with
    10  the requirements of a substance abuse treatment program.
    11    § 2. Paragraph (a) of subdivision 5 of section  409-a  of  the  social
    12  services  law, as added by chapter 610 of the laws of 1979 and as desig-
    13  nated by chapter 731 of the laws of 1989, such subdivision as renumbered
    14  by chapter 465 of the laws of 1987, is amended to read as follows:
    15    (a) Regulations of the department, promulgated  pursuant  to  and  not
    16  inconsistent  with this section, shall contain program standards includ-
    17  ing, but not limited to: specification of services to be  classified  as
    18  preventive  services,  which  shall  include  substance  abuse treatment
    19  services provided to a pregnant woman or a caretaker person; appropriate
    20  circumstances and conditions for the provision of  particular  services;
    21  appropriate  providers and recipients of such services; and time limits,
    22  as may be appropriate, for the provision of particular  services.    The
    23  department shall, subject to the approval of the director of the budget,
    24  establish reimbursement or charge limitations for particular services or
    25  groups of services to be provided.  The department shall also promulgate
    26  regulations  to  prevent  social  services  districts from overutilizing
    27  particular forms or  types  of  preventive  services  and  to  encourage
    28  districts  to provide balanced preventive services programs based on the
    29  identified needs of children and families residing in such districts.
    30    § 3. Section 423 of the social services law is amended by adding a new
    31  subdivision 7 to read as follows:
    32    7. (a) Subject  to  the  amounts  annually  appropriated  specifically
    33  therefor, the commissioner of children and family services is authorized
    34  to award grants to not-for-profit organizations which may, to the extent
    35  practicable,  be  community-based and/or consortia of organizations with
    36  community advisory boards. Such organizations shall  create  or  enhance
    37  caregiver  rehabilitation  services that provide an alcohol or substance
    38  abusing pregnant woman or a caretaker  person  with  residential  and/or
    39  out-patient  treatment  services, including counseling, parenting skills
    40  and intensive case monitoring.  Caregiver  rehabilitation  services  may
    41  provide  such  eligible persons with an opportunity to receive intensive
    42  rehabilitation  treatment  and  intensive  case   management   specially
    43  tailored  to  accommodate  the needs of expectant mothers and caregivers
    44  with children.
    45    (b) Local social  services  districts  shall  make  the  provision  of
    46  substance  abuse  treatment  services to a pregnant woman or a caretaker
    47  person a priority whenever such person is the subject of a report to the
    48  central register pursuant to section four  hundred  twenty-two  of  this
    49  title. Such substance abuse treatment programs shall be called intensive
    50  caregiver  rehabilitation  services.  The  intensive caregiver rehabili-
    51  tation services program may be provided to eligible persons pursuant  to
    52  this  section  in  order to permit a child to be placed with the child's
    53  parent in a residential program that provides treatment and other neces-
    54  sary services for parents and children, including counseling,  parenting
    55  services and intensive case monitoring when:

        A. 76                               3
     1    (i)  the  parent  or  caregiver  is attempting to overcome a substance
     2  abuse problem and is complying with an approved treatment plan;
     3    (ii) the safety of the child can be assured;
     4    (iii)  the  range  of  services provided by the program is designed to
     5  appropriately address the needs of the parent and child; and
     6    (iv) the goal of the case plan for the child is either to  prevent  an
     7  out  of  home  placement or to try to reunify the child with the family.
     8  Out-patient services shall also be made available by  the  local  social
     9  services  district  to those pregnant women and caregivers whose circum-
    10  stances prevent them from enrolling in a residential  treatment  program
    11  but  who  are  seeking intensive caregiver rehabilitation services in an
    12  effort to eliminate their addiction while preserving their families.
    13    (c) The intensive caregiver rehabilitation services program shall have
    14  a caseworker to client ratio which shall not exceed the  staffing  level
    15  which  is  deemed to be appropriate by the office of children and family
    16  services.  Intensive treatment services shall be  provided  to  eligible
    17  families  for  not more than forty-five days for a residential basis and
    18  no more than ninety days for an out-patient basis; and, weekly follow-up
    19  services shall be provided for a period of not more than six  months  as
    20  determined  on a case-by-case basis. Provided, however, that such inten-
    21  sive treatment services, both residential and out-patient, and the week-
    22  ly follow-up services may be extended as needed on a case-by-case  basis
    23  for up to one year.
    24    §  4.  The public health law is amended by adding a new section 2500-l
    25  to read as follows:
    26    § 2500-l. Alcohol and substance abuse;  screening  and/or  testing  of
    27  newborns.  1. The commissioner shall establish a program for the screen-
    28  ing and/or  testing  of  newborns  for  exposure  to  alcohol  and/or  a
    29  controlled substance, including exposure which results from the abuse of
    30  prescription drugs.
    31    2.  The commissioner shall, no later than one year after the effective
    32  date of this section, promulgate rules and regulations  to  establish  a
    33  hospital  protocol  to  implement  the  program  established pursuant to
    34  subdivision one of this section. Such protocol shall include the  admin-
    35  istration of screening, testing, review processes, counseling and refer-
    36  rals  for  alcohol  and substance abuse treatment.  Such protocols shall
    37  detail the presenting of medical conditions, criteria or symptoms  which
    38  require the responsible physician or birth attendant to screen, test and
    39  initiate  a  review  process for exposure to alcohol and/or a controlled
    40  substance as defined in section thirty-three hundred six of  this  chap-
    41  ter.  Such protocols shall not rely on the expectant mother's age, race,
    42  marital status, source of income, residence, insurance provider,  educa-
    43  tional  level, occupation, place of employment or profession when deter-
    44  mining whether or not to test a newborn for exposure to alcohol and/or a
    45  controlled substance.   Such  protocol  shall  require  that:  (a)  each
    46  screening for alcohol and/or drugs be subjected to a second confirmatory
    47  test  before  an incident report may be filed with the statewide central
    48  register of child abuse and maltreatment pursuant to  paragraph  (d)  of
    49  subdivision  two  of  section  four  hundred  twenty-two  of  the social
    50  services law; (b) that a medical review officer interview the  expectant
    51  or  postpartum  woman  relative  to  a positive toxicology report on her
    52  newborn; and (c) each hospital collect  blind  data  on  the  screening,
    53  testing  and  treatment  referrals,  when  appropriate,  to  families of
    54  newborns.
    55    3. Commencing on the first of January  next  succeeding  the  date  on
    56  which  rules and regulations have been filed with the secretary of state

        A. 76                               4
     1  to implement this section, the commissioner shall biennially  prepare  a
     2  report no later than the fifteenth of December of each year. Such report
     3  shall  evaluate  the effectiveness of the alcohol and drug screening and
     4  testing policy and protocol established by this subdivision. Such report
     5  shall  include,  but  not  be  limited  to  the following: the number of
     6  newborns screened for exposure to alcohol or a controlled  substance  by
     7  age,  race,  color,  ethnicity,  socio-economic  status, type of medical
     8  insurance, and zip code; the number of screens which resulted in a posi-
     9  tive toxicology; the number of screens which were then  subjected  to  a
    10  second  confirmatory  test;  the  number  of  false  positive toxicology
    11  reports; the number of physician reports to the state  central  register
    12  for child abuse and maltreatment of a positive toxicology which has been
    13  confirmed  and  reviewed;  the  number of women admitted to an intensive
    14  caregiver rehabilitative services program as a result of hospital inter-
    15  vention; the number of alcohol and drug screens performed at a hospital.
    16    § 5. Paragraphs (vii) and (viii) of subdivision (a) of section 1046 of
    17  the family court act, paragraph (vii) as amended by chapter 432  of  the
    18  laws  of  1993 and paragraph (viii) as added by chapter 1015 of the laws
    19  of 1972, are amended and a new  paragraph  (ix)  is  added  to  read  as
    20  follows:
    21    (vii)  neither  the privilege attaching to confidential communications
    22  between husband and wife, as set forth in section forty-five hundred two
    23  of the civil practice law  and  rules,  nor  the  physician-patient  and
    24  related  privileges,  as set forth in section forty-five hundred four of
    25  the civil practice law and rules, nor the psychologist-client privilege,
    26  as set forth in section forty-five hundred seven of the  civil  practice
    27  law  and  rules, nor the social worker-client privilege, as set forth in
    28  section forty-five hundred eight of the civil practice  law  and  rules,
    29  nor  the rape crisis counselor-client privilege, as set forth in section
    30  forty-five hundred ten of the civil practice law and rules, shall  be  a
    31  ground  for  excluding  evidence which otherwise would be admissible[.];
    32  and
    33    (viii) proof of the "impairment of emotional health" or "impairment of
    34  mental or emotional condition" as  a  result  of  the  unwillingness  or
    35  inability  of the respondent to exercise a minimum degree of care toward
    36  a child may include  competent  opinion  or  expert  testimony  and  may
    37  include  proof  that  such  impairment lessened during a period when the
    38  child was in the care, custody or supervision  of  a  person  or  agency
    39  other than the respondent[.]; and
    40    (ix)  the  results  of  any  laboratory  test  showing  the usage of a
    41  controlled substance by, or the presence of a controlled substance in, a
    42  parent, child or other person shall be admissible only if:
    43    (A) such test was conducted by a laboratory that has met the  require-
    44  ments  established  by  section  five hundred seventy-five of the public
    45  health law; and
    46    (B) the laboratory and the person or institution collecting the sample
    47  has established a chain of custody procedure for sample  collecting  and
    48  testing  that  will  verify the identity of each sample and test result;
    49  and
    50    (C) the collecting entity divides the sample collected, if  sufficient
    51  into two separate containers and preserves one sample in a secure freez-
    52  er in such a way that it can be later tested for the presence of alcohol
    53  or controlled substances; and
    54    (D)  the  sample  is retested to confirm the results of the first test
    55  and which provides quantitative data about the  detected  drug  or  drug
    56  metabolites; and

        A. 76                               5
     1    (E)  the  results  include the type of tests conducted, the results of
     2  each test, and the detection level, meaning the cutoff or  measure  used
     3  to distinguish positive from negative samples.
     4    §  6.  Section 1051 of the family court act is amended by adding a new
     5  subdivision (g) to read as follows:
     6    (g) Where the court makes a finding of neglect or abuse and finds that
     7  the parent or other person legally responsible for the child  misuses  a
     8  drug  or drugs or alcoholic beverages, the court may refer the case to a
     9  part of the court known as the "drug treatment court". The  drug  treat-
    10  ment  court  may  require  that the respondent meet with a case manager,
    11  comply with a treatment plan, and submit  to  oversight  by  the  court,
    12  including  regular  drug testing. The drug treatment court shall provide
    13  for  speedy  enrollment  of  respondents  into   appropriate   treatment
    14  programs,  frequent  and  consistent monitoring of respondents including
    15  rewarding of good behavior and penalizing of poor  behavior,  and  expe-
    16  dited decision making.
    17    § 7. This act shall take effect on the one hundred eightieth day after
    18  it shall have become a law.
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