Relates to prohibiting drug or alcohol testing and screening of pregnant or postpartum individuals and newborns unless the individual consents and it is within the scope of medical care, or the testing or screening is necessary for a medical emergency.
STATE OF NEW YORK
________________________________________________________________________
4821--A
2021-2022 Regular Sessions
IN SENATE
February 12, 2021
___________
Introduced by Sens. SALAZAR, BIAGGI, BROUK, CLEARE, JACKSON, KRUEGER,
MYRIE, RIVERA, SEPULVEDA -- read twice and ordered printed, and when
printed to be committed to the Committee on Women's Issues -- recom-
mitted to the Committee on Women's Issues in accordance with Senate
Rule 6, sec. 8 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the public health law, in relation to prohibiting drug
or alcohol testing and screening of pregnant or postpartum individuals
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 or post-
4 partum individuals; prohibited. 1. For purposes of this section, "drug"
5 shall mean a controlled substance as that term is defined in section
6 thirty-three hundred six of this chapter.
7 2. No health care professional licensed, certified, or authorized
8 under title eight of the education law shall:
9 (a) perform a drug or alcohol test on a person who is pregnant or up
10 to one year postpartum unless:
11 (i) the pregnant or postpartum individual gives prior written and oral
12 informed consent specific to the drug or alcohol test; and
13 (ii) the performance of the drug or alcohol test is within the scope
14 of medical care being provided to the individual.
15 (b) perform a drug or alcohol screen in a hospital on a person who is
16 pregnant or up to one year postpartum unless:
17 (i) the pregnant or postpartum individual gives prior written and
18 oral informed consent specific to the drug or alcohol screen; and
19 (ii) the performance of the drug or alcohol screen is within the
20 scope of medical care being provided to the individual;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00548-05-2
S. 4821--A 2
1 (c) perform a drug or alcohol screen outside a hospital on a person
2 who is pregnant or up to one year postpartum unless:
3 (i) the pregnant or postpartum individual gives prior oral informed
4 consent specific to the drug or alcohol screen; and
5 (ii) the performance of the drug or alcohol screen is within the
6 scope of medical care being provided to the individual.
7 3. No health care professional licensed, certified or authorized under
8 title eight of the education law shall:
9 (a) perform a drug or alcohol test on a newborn unless:
10 (i) the individual authorized to consent for the newborn, as defined
11 by subdivision two of section twenty-five hundred four of this title,
12 gives prior written and oral informed consent specific to the drug or
13 alcohol test; and
14 (ii) the performance of the drug or alcohol test is within the scope
15 of medical care being provided to the newborn;
16 (b) perform a drug or alcohol screen in a hospital on a newborn
17 unless:
18 (i) the individual authorized to consent for the newborn, as
19 defined by subdivision two of section twenty-five hundred four of this
20 title, gives prior written and oral informed consent specific to the
21 drug or alcohol screen; and
22 (ii) the performance of the drug or alcohol screen is within the
23 scope of medical care being provided to the newborn;
24 (c) perform a drug or alcohol screen outside a hospital on a
25 newborn unless:
26 (i) the individual authorized to consent for the newborn, as
27 defined by subdivision two of section twenty-five hundred four of this
28 title, gives prior oral informed consent specific to the drug or alco-
29 hol screen; and
30 (ii) the performance of the drug or alcohol screen is within the
31 scope of medical care being provided to the newborn.
32 4. Written and oral informed consent to a drug or alcohol test or drug
33 or alcohol screen shall occur at the time of testing, in language under-
34 standable to the pregnant or postpartum individual, or the individual
35 authorized to consent for the newborn, under circumstances that provide
36 such individual sufficient opportunity to consider whether or not to
37 authorize the drug or alcohol test or drug or alcohol screen and mini-
38 mize the possibility of coercion or undue influence, and shall consist
39 of oral authorization and written authorization that is dated, signed
40 and includes the following:
41 (a) a statement explaining that consenting to a drug or alcohol test
42 or drug or alcohol screen is voluntary and requires written and oral
43 informed consent, except when conditions under subdivision five of this
44 section are met;
45 (b) a statement that testing or screening positive for drugs or alco-
46 hol could have legal consequences, including, but not limited to, a
47 report to child protective services, and that the individual may want to
48 consult with legal counsel prior to or after consenting to a drug or
49 alcohol test or drug or alcohol screen;
50 (c) a statement explaining the extent of confidentiality of the test
51 or screen results;
52 (d) a statement of the medical purpose of the test or screen; and
53 (e) a general description of the test or screen.
54 5. Drug or alcohol testing or drug or alcohol screening may be
55 performed without consent of the patient or the individual authorized to
56 consent for a newborn when, in the health care professional's judgment,
S. 4821--A 3
1 an emergency exists and the patient or newborn is in immediate need of
2 medical attention, and an attempt to secure consent would result in
3 delay of treatment that could increase the risk to the patient's or
4 newborn's life or health. In the case that drug or alcohol testing or
5 drug or alcohol screening is performed under these circumstances, the
6 test or screen results shall be discussed with the patient or the indi-
7 vidual authorized to consent for the newborn, in language understandable
8 to the patient or individuals authorized to consent for the newborn and
9 shall consist of oral notification and written notification that is
10 dated, signed and includes the following:
11 (a) a statement that testing or screening positive for drugs or alco-
12 hol could have legal consequences, including but not limited to a poten-
13 tial report to child protective services, and that the patient or indi-
14 vidual authorized to consent for the newborn may want to consult with
15 legal counsel;
16 (b) a statement in the medical record with a description of the emer-
17 gency that necessitated unconsented drug or alcohol testing or drug or
18 alcohol screening; and
19 (c) a statement explaining the extent of confidentiality of the test
20 or screen results.
21 6. No health care professional licensed, certified, or authorized
22 under title eight of the education law shall refuse to treat an individ-
23 ual who is pregnant or up to one year postpartum or a newborn because of
24 the patient or individuals authorized to consent for the newborn's
25 refusal to submit to a drug or alcohol test or drug or alcohol screen.
26 7. Nothing in this section shall diminish any other requirement to
27 obtain informed consent for a drug or alcohol test or drug or alcohol
28 screen or any other procedure.
29 § 2. This act shall take effect immediately.
