STATE OF NEW YORK ________________________________________________________________________ 109--A 2023-2024 Regular Sessions IN ASSEMBLY (Prefiled) January 4, 2023 ___________ Introduced by M. of A. L. ROSENTHAL, FORREST, SEAWRIGHT, AUBRY, BICHOTTE HERMELYN, CLARK, ZINERMAN, CARROLL, HEVESI, SIMON, JACKSON, MITAYNES, REYES, GONZALEZ-ROJAS, JEAN-PIERRE, BURGOS, CRUZ, EPSTEIN, OTIS, GALLAGHER, CUNNINGHAM, SOLAGES, RAGA -- read once and referred to the Committee on Health -- 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: 5 (a) "drug" shall mean a controlled substance as that term is defined 6 in section thirty-three hundred six of this chapter. 7 (b) "drug or alcohol test" shall mean a test using a biological 8 sample, including, but not limited to, urine or hair, for the presence 9 of drugs or alcohol. 10 (c) "drug or alcohol screen" shall mean the use of a validated verbal 11 or written tool or questionnaire by a health care professional licensed, 12 certified, or authorized under title eight of the education law to 13 determine use of drugs or alcohol by a pregnant or postpartum person. 14 2. No health care professional licensed, certified, or authorized 15 under title eight of the education law shall: 16 (a) perform a drug or alcohol test on a person who is pregnant or up 17 to one year postpartum unless: 18 (i) the pregnant or postpartum individual gives prior written and oral 19 informed consent specific to the drug or alcohol test; and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00489-02-3
A. 109--A 2 1 (ii) the performance of the drug or alcohol test is within the scope 2 of medical care being provided to the individual. 3 (b) perform a drug or alcohol screen in a hospital on a person who is 4 pregnant or up to one year postpartum unless: 5 (i) the pregnant or postpartum individual gives prior written and 6 oral informed consent specific to the drug or alcohol screen; and 7 (ii) the performance of the drug or alcohol screen is within the 8 scope of medical care being provided to the individual; 9 (c) perform a drug or alcohol screen outside a hospital on a person 10 who is pregnant or up to one year postpartum unless: 11 (i) the pregnant or postpartum individual gives prior oral informed 12 consent specific to the drug or alcohol screen; and 13 (ii) the performance of the drug or alcohol screen is within the 14 scope of medical care being provided to the individual. 15 3. No health care professional licensed, certified or authorized under 16 title eight of the education law shall: 17 (a) perform a drug or alcohol test on a newborn unless: 18 (i) the individual authorized to consent for the newborn, as defined 19 by subdivision two of section twenty-five hundred four of this title, 20 gives prior written and oral informed consent specific to the drug or 21 alcohol test; and 22 (ii) the performance of the drug or alcohol test is within the scope 23 of medical care being provided to the newborn; 24 (b) perform a drug or alcohol screen in a hospital on a newborn 25 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 written and oral informed consent specific to the 29 drug or alcohol 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 (c) perform a drug or alcohol screen outside a hospital on a 33 newborn unless: 34 (i) the individual authorized to consent for the newborn, as 35 defined by subdivision two of section twenty-five hundred four of this 36 title, gives prior oral informed consent specific to the drug or alco- 37 hol screen; and 38 (ii) the performance of the drug or alcohol screen is within the 39 scope of medical care being provided to the newborn. 40 4. Written and oral informed consent to a drug or alcohol test or drug 41 or alcohol screen shall occur at the time of testing, in language under- 42 standable to the pregnant or postpartum individual, or the individual 43 authorized to consent for the newborn, under circumstances that provide 44 such individual sufficient opportunity to consider whether or not to 45 authorize the drug or alcohol test or drug or alcohol screen and mini- 46 mize the possibility of coercion or undue influence, and shall consist 47 of oral authorization and written authorization that is dated, signed 48 and includes the following: 49 (a) a statement explaining that consenting to a drug or alcohol test 50 or drug or alcohol screen is voluntary and requires written and oral 51 informed consent, except when conditions under subdivision five of this 52 section are met; 53 (b) a statement that testing or screening positive for drugs or alco- 54 hol could have legal consequences, including, but not limited to, a 55 report to child protective services, and that the individual may want to
A. 109--A 3 1 consult with legal counsel prior to or after consenting to a drug or 2 alcohol test or drug or alcohol screen; 3 (c) a statement explaining the extent of confidentiality of the test 4 or screen results; 5 (d) a statement of the medical purpose of the test or screen; and 6 (e) a general description of the test or screen. 7 5. Drug or alcohol testing or drug or alcohol screening may be 8 performed without consent of the patient or the individual authorized to 9 consent for a newborn when, in the health care professional's judgment, 10 an emergency exists and the patient or newborn is in immediate need of 11 medical attention, and an attempt to secure consent would result in 12 delay of treatment that could increase the risk to the patient's or 13 newborn's life or health. In the case that drug or alcohol testing or 14 drug or alcohol screening is performed under these circumstances, the 15 test or screen results shall be discussed with the patient or the indi- 16 vidual authorized to consent for the newborn, in language understandable 17 to the patient or individuals authorized to consent for the newborn and 18 shall consist of oral notification and written notification that is 19 dated, signed and includes the following: 20 (a) a statement that testing or screening positive for drugs or alco- 21 hol could have legal consequences, including but not limited to a poten- 22 tial report to child protective services, and that the patient or indi- 23 vidual authorized to consent for the newborn may want to consult with 24 legal counsel; 25 (b) a statement in the medical record with a description of the emer- 26 gency that necessitated unconsented drug or alcohol testing or drug or 27 alcohol screening; and 28 (c) a statement explaining the extent of confidentiality of the test 29 or screen results. 30 6. No health care professional licensed, certified, or authorized 31 under title eight of the education law shall refuse to treat an individ- 32 ual who is pregnant or up to one year postpartum or a newborn because of 33 the patient or individuals authorized to consent for the newborn's 34 refusal to submit to a drug or alcohol test or drug or alcohol screen. 35 7. Nothing in this section shall diminish any other requirement to 36 obtain informed consent for a drug or alcohol test or drug or alcohol 37 screen or any other procedure. 38 § 2. This act shall take effect immediately.