S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5478--A
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             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:
 
   Section  1.  The  public health law is amended by adding a new section
 2509-b to read as follows:
   § 2509-B. DRUG OR ALCOHOL TESTING AND SCREENING FOR PREGNANT  PERSONS;
 PROHIBITED.  1.    FOR  PURPOSES  OF  THIS  SECTION, "DRUG" SHALL MEAN A
 CONTROLLED SUBSTANCE AS THAT TERM IS  DEFINED  IN  SECTION  THIRTY-THREE
 HUNDRED SIX OF THIS CHAPTER.
   2.  NO  PHYSICIAN, AUTHORIZED PRACTITIONER, NURSE PRACTITIONER, SOCIAL
 WORKER, HOSPITAL AND/OR ANY MEDICAL PERSONNEL SHALL PERFORM  A  DRUG  OR
 ALCOHOL TEST OR DRUG OR ALCOHOL SCREEN ON A PREGNANT OR PERINATAL PERSON
 UNLESS:
   (A)  SUCH  PREGNANT PERSON OR PERINATAL PERSON GIVES PRIOR WRITTEN AND
 VERBAL INFORMED CONSENT SPECIFIC TO THE DRUG AND/OR ALCOHOL TEST OR DRUG
 AND/OR ALCOHOL SCREEN; AND
   (B) THE PERFORMANCE OF THE DRUG AND/OR ALCOHOL  TEST  OR  DRUG  AND/OR
 ALCOHOL  SCREEN  IS  WITHIN  THE SCOPE OF MEDICAL CARE BEING PROVIDED TO
 SUCH PREGNANT PERSON OR PERINATAL PERSON.
   3. NO PHYSICIAN, AUTHORIZED PRACTITIONER, NURSE  PRACTITIONER,  SOCIAL
 WORKER,  HOSPITAL,  AND/OR ANY MEDICAL PERSONNEL SHALL PERFORM A DRUG OR
 ALCOHOL TEST OR DRUG OR ALCOHOL SCREEN ON A NEWBORN UNLESS:
   (A) THE PERSON AUTHORIZED TO CONSENT FOR  A  NEWBORN,  AS  DEFINED  BY
 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
 
 PRIOR  WRITTEN  AND  VERBAL INFORMED CONSENT SPECIFIC TO THE DRUG AND/OR
 ALCOHOL TEST OR DRUG AND/OR ALCOHOL SCREEN; AND
   (B)  THE  PERFORMANCE  OF  THE DRUG AND/OR ALCOHOL TEST OR DRUG AND/OR
 ALCOHOL SCREEN IS WITHIN THE SCOPE OF MEDICAL CARE BEING PROVIDED TO THE
 NEWBORN.
   4. WRITTEN AND VERBAL INFORMED CONSENT TO A DRUG OR  ALCOHOL  TEST  OR
 DRUG  OR  ALCOHOL SCREEN SHALL OCCUR AT THE TIME OF TESTING, IN LANGUAGE
 UNDERSTANDABLE TO THE PREGNANT PERSON, PERINATAL PERSON OR  THE  PERSONS
 AUTHORIZED  TO  CONSENT  FOR  NEWBORNS, UNDER CIRCUMSTANCES THAT PROVIDE
 SUCH PERSON SUFFICIENT OPPORTUNITY TO CONSIDER WHETHER OR NOT TO UNDERGO
 SUCH DRUG OR ALCOHOL TEST OR DRUG OR ALCOHOL  SCREEN  AND  MINIMIZE  THE
 POSSIBILITY  OF COERCION OR UNDUE INFLUENCE, AND SHALL CONSIST OF VERBAL
 AUTHORIZATION AND  WRITTEN  AUTHORIZATION  THAT  IS  DATED,  SIGNED  AND
 INCLUDES THE FOLLOWING:
   (A)  A  STATEMENT EXPLAINING THAT CONSENTING TO A DRUG OR ALCOHOL TEST
 OR DRUG OR ALCOHOL SCREEN IS VOLUNTARY AND REQUIRES WRITTEN  AND  VERBAL
 INFORMED  CONSENT, EXCEPT WHEN CONDITIONS UNDER SUBDIVISION FIVE OF THIS
 SECTION ARE MET;
   (B) A STATEMENT THAT TESTING OR SCREENING POSITIVE  FOR  DRUGS  AND/OR
 ALCOHOL  COULD HAVE LEGAL CONSEQUENCES, INCLUDING, BUT NOT LIMITED TO, A
 REPORT TO CHILD PROTECTIVE SERVICES, AND THAT THE  PERSON  MAY  WANT  TO
 CONSULT  WITH  LEGAL  COUNSEL  PRIOR TO OR AFTER CONSENTING TO A DRUG OR
 ALCOHOL TEST OR DRUG OR ALCOHOL SCREEN;
   (C) A STATEMENT EXPLAINING THE EXTENT OF CONFIDENTIALITY OF  THE  TEST
 OR SCREEN RESULTS;
   (D) A STATEMENT OF THE MEDICAL PURPOSE OF THE TEST OR SCREEN; AND
   (E) A GENERAL DESCRIPTION OF THE TEST OR SCREEN.
   5. DRUG AND/OR ALCOHOL TESTING OR DRUG AND/OR ALCOHOL SCREENING MAY BE
 PERFORMED  WITHOUT  CONSENT  OF THE PATIENT OR THE PERSONS AUTHORIZED TO
 CONSENT FOR MINORS WHEN,  IN  THE  PHYSICIAN'S  JUDGMENT,  AN  EMERGENCY
 EXISTS  AND THE PERSON IS IN IMMEDIATE NEED OF MEDICAL ATTENTION, AND AN
 ATTEMPT TO SECURE CONSENT WOULD RESULT IN DELAY OF TREATMENT WHICH WOULD
 INCREASE THE RISK TO SUCH PERSON'S LIFE OR HEALTH. IN THE CASE THAT DRUG
 AND/OR ALCOHOL TESTING OR DRUG AND/OR  ALCOHOL  SCREENING  IS  PERFORMED
 UNDER THESE CIRCUMSTANCES, THE TEST OR SCREEN RESULTS SHALL BE DISCUSSED
 WITH  THE  PATIENT OR THE PERSONS AUTHORIZED TO CONSENT FOR NEWBORNS, IN
 LANGUAGE UNDERSTANDABLE TO THE PREGNANT PERSON, PERINATAL PERSON OR  THE
 PERSONS  AUTHORIZED  TO CONSENT FOR NEWBORNS AND SHALL CONSIST OF VERBAL
 NOTIFICATION AND WRITTEN NOTIFICATION THAT IS DATED, SIGNED AND INCLUDES
 THE FOLLOWING:
   (A) A STATEMENT THAT TESTING OR SCREENING  POSITIVE  FOR  DRUG  AND/OR
 ALCOHOL  COULD  HAVE  LEGAL CONSEQUENCES, INCLUDING BUT NOT LIMITED TO A
 POTENTIAL REPORT TO CHILD PROTECTIVE SERVICES, AND THAT THE PATIENT  MAY
 WANT TO CONSULT WITH LEGAL COUNSEL;
   (B)  A STATEMENT THAT THE PATIENT OR THE PERSONS AUTHORIZED TO CONSENT
 FOR NEWBORNS MAY APPEAL THE DETERMINATION THAT  UNCONSENTED  TESTING  OR
 SCREENING WAS NECESSARY DUE TO EMERGENCY;
   (C)  A STATEMENT IN THE MEDICAL RECORD WITH A DESCRIPTION OF THE EMER-
 GENCY THAT NECESSITATED UNCONSENTED DRUG AND/OR ALCOHOL TESTING OR  DRUG
 AND/OR ALCOHOL SCREENING; AND
   (D)  A  STATEMENT EXPLAINING THE EXTENT OF CONFIDENTIALITY OF THE TEST
 OR SCREEN RESULTS.
   6. NO PHYSICIAN, AUTHORIZED PRACTITIONER, NURSE  PRACTITIONER,  HOSPI-
 TAL,  AND/OR  ANY  MEDICAL PERSONNEL SHALL REFUSE TO TREAT A PREGNANT OR
 PERINATAL PERSON OR A  PERINATAL  PERSON'S  NEWBORN  CHILD  DUE  TO  THE

 A. 5478--A                          3
 
 PERSON'S  REFUSAL TO SUBMIT TO A DRUG AND/OR ALCOHOL TEST OR DRUG AND/OR
 ALCOHOL SCREEN.
   7.  NOTHING  IN  THIS  SECTION SHALL DIMINISH ANY OTHER REQUIREMENT TO
 OBTAIN INFORMED CONSENT FOR A DRUG OR ALCOHOL TEST OR  DRUG  OR  ALCOHOL
 SCREEN OR ANY OTHER PROCEDURE.
   §  2.  Section  6530  of  the education law is amended by adding a new
 subdivision 51 to read as follows:
   51. PERFORMING A DRUG OR ALCOHOL TEST OR DRUG  OR  ALCOHOL  SCREEN  IN
 VIOLATION  OF  SECTION  TWENTY-FIVE  HUNDRED NINE-B OF THE PUBLIC HEALTH
 LAW.
   § 3. This act shall take effect immediately.