STATE OF NEW YORK
________________________________________________________________________
320--A
2023-2024 Regular Sessions
IN SENATE
(Prefiled)
January 4, 2023
___________
Introduced by Sens. SALAZAR, BRISPORT, BROUK, CLEARE, COONEY, FERNANDEZ,
GOUNARDES, JACKSON, KRUEGER, MYRIE, RIVERA, SEPULVEDA, WEBB -- read
twice and ordered printed, and when printed to be committed to the
Committee on Women's Issues -- 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
20 (ii) the performance of the drug or alcohol test is within the scope
21 of medical care being provided to the individual.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00489-03-3
S. 320--A 2
1 (b) perform a drug or alcohol screen in a hospital on a person who is
2 pregnant or up to one year postpartum unless:
3 (i) the pregnant or postpartum individual gives prior written and
4 oral informed 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 (c) perform a drug or alcohol screen outside a hospital on a person
8 who is pregnant or up to one year postpartum unless:
9 (i) the pregnant or postpartum individual gives prior oral informed
10 consent specific to the drug or alcohol screen; and
11 (ii) the performance of the drug or alcohol screen is within the
12 scope of medical care being provided to the individual.
13 3. No health care professional licensed, certified or authorized under
14 title eight of the education law shall:
15 (a) perform a drug or alcohol test on a newborn unless:
16 (i) the individual authorized to consent for the newborn, as defined
17 by subdivision two of section twenty-five hundred four of this title,
18 gives prior written and oral informed consent specific to the drug or
19 alcohol test; and
20 (ii) the performance of the drug or alcohol test is within the scope
21 of medical care being provided to the newborn;
22 (b) perform a drug or alcohol screen in a hospital on a newborn
23 unless:
24 (i) the individual authorized to consent for the newborn, as
25 defined by subdivision two of section twenty-five hundred four of this
26 title, gives prior written and oral informed consent specific to the
27 drug or alcohol screen; and
28 (ii) the performance of the drug or alcohol screen is within the
29 scope of medical care being provided to the newborn;
30 (c) perform a drug or alcohol screen outside a hospital on a
31 newborn unless:
32 (i) the individual authorized to consent for the newborn, as
33 defined by subdivision two of section twenty-five hundred four of this
34 title, gives prior oral informed consent specific to the drug or alco-
35 hol screen; and
36 (ii) the performance of the drug or alcohol screen is within the
37 scope of medical care being provided to the newborn.
38 4. Written and oral informed consent to a drug or alcohol test or drug
39 or alcohol screen shall occur at the time of testing, in language under-
40 standable to the pregnant or postpartum individual, or the individual
41 authorized to consent for the newborn, under circumstances that provide
42 such individual sufficient opportunity to consider whether or not to
43 authorize the drug or alcohol test or drug or alcohol screen and mini-
44 mize the possibility of coercion or undue influence, and shall consist
45 of oral authorization and written authorization that is dated, signed
46 and includes the following:
47 (a) a statement explaining that consenting to a drug or alcohol test
48 or drug or alcohol screen is voluntary and requires written and oral
49 informed consent, except when conditions under subdivision five of this
50 section are met;
51 (b) a statement that testing or screening positive for drugs or alco-
52 hol could have legal consequences, including, but not limited to, a
53 report to child protective services, and that the individual may want to
54 consult with legal counsel prior to or after consenting to a drug or
55 alcohol test or drug or alcohol screen;
S. 320--A 3
1 (c) a statement explaining the extent of confidentiality of the test
2 or screen results;
3 (d) a statement of the medical purpose of the test or screen; and
4 (e) a general description of the test or screen.
5 5. Drug or alcohol testing or drug or alcohol screening may be
6 performed without consent of the patient or the individual authorized to
7 consent for a newborn when, in the health care professional's judgment,
8 an emergency exists and the patient or newborn is in immediate need of
9 medical attention, and an attempt to secure consent would result in
10 delay of treatment that could increase the risk to the patient's or
11 newborn's life or health. In the case that drug or alcohol testing or
12 drug or alcohol screening is performed under these circumstances, the
13 test or screen results shall be discussed with the patient or the indi-
14 vidual authorized to consent for the newborn, in language understandable
15 to the patient or individuals authorized to consent for the newborn and
16 shall consist of oral notification and written notification that is
17 dated, signed and includes the following:
18 (a) a statement that testing or screening positive for drugs or alco-
19 hol could have legal consequences, including but not limited to a poten-
20 tial report to child protective services, and that the patient or indi-
21 vidual authorized to consent for the newborn may want to consult with
22 legal counsel;
23 (b) a statement in the medical record with a description of the emer-
24 gency that necessitated unconsented drug or alcohol testing or drug or
25 alcohol screening; and
26 (c) a statement explaining the extent of confidentiality of the test
27 or screen results.
28 6. No health care professional licensed, certified, or authorized
29 under title eight of the education law shall refuse to treat an individ-
30 ual who is pregnant or up to one year postpartum or a newborn because of
31 the patient or individuals authorized to consent for the newborn's
32 refusal to submit to a drug or alcohol test or drug or alcohol screen.
33 7. Nothing in this section shall diminish any other requirement to
34 obtain informed consent for a drug or alcohol test or drug or alcohol
35 screen or any other procedure.
36 § 2. This act shall take effect immediately.