S T A T E O F N E W Y O R K
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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.