S T A T E O F N E W Y O R K
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3534
2013-2014 Regular Sessions
I N A S S E M B L Y
January 28, 2013
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Introduced by M. of A. SIMANOWITZ -- read once and referred to the
Committee on Children and Families
AN ACT to amend the social services law, in relation to providing drug
rehabilitative services to parents of a newborn who tests positive for
alcohol and/or controlled substances; to amend the public health law,
in relation to providing for testing of newborns for alcohol or
controlled substances; and to amend the family court act, in relation
to the admissibility of laboratory tests showing usage of a controlled
substance and referring certain alcohol and substance abusers to drug
treatment court
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 2 of section 422 of the social services law is
amended by adding a new paragraph (d) to read as follows:
(D) WHENEVER A TELEPHONE CALL OR REPORT HAS BEEN RECEIVED BY THE STATE
CENTRAL REGISTER ABOUT A CASE OF SUSPECTED CHILD ABUSE OR MALTREATMENT
FROM AN ATTENDING PHYSICIAN BECAUSE A NEWBORN HAS TESTED POSITIVE FOR
ALCOHOL AND/OR FOR A CONTROLLED SUBSTANCE AS DEFINED IN SECTION THIRTY-
THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW AND THAT SUCH POSITIVE TOXI-
COLOGY WAS CONFIRMED BY A SECOND TEST, THE LOCAL DISTRICT SHALL CONDUCT
AN INVESTIGATION OF THE SUBJECT OF THE REPORT. FURTHERMORE, THE LOCAL
DISTRICT SHALL INVESTIGATE THE HOME IN WHICH THE NEWBORN IS TO RESIDE
WITH THE CUSTODIAL PARENT IN ORDER TO ASSESS WHETHER SUCH LIVING
ARRANGEMENTS WILL IMPAIR THE CHILD OR PLACE THE CHILD AT IMMINENT RISK
OF IMPAIRMENT PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH (A) OF SUBDIVI-
SION TWO OF SECTION FOUR HUNDRED TWELVE OF THIS TITLE AND SUBDIVISION
(F) OF SECTION ONE THOUSAND TWELVE OF THE FAMILY COURT ACT. THE LOCAL
SOCIAL SERVICES COMMISSIONER SHALL IN WRITING INFORM THE SUBJECT OF SUCH
CENTRAL REGISTER REPORT ABOUT THE AVAILABILITY OF DRUG AND/OR ALCOHOL
SUBSTANCE ABUSE TREATMENT PROGRAMS, AND INTENSIVE CAREGIVER REHABILI-
TATION SERVICES THAT MAY BE PROVIDED. THE LOCAL SOCIAL SERVICES DISTRICT
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03955-01-3
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OR THE HOSPITAL, AS DEFINED IN ARTICLE TWENTY-EIGHT OF THE PUBLIC HEALTH
LAW, MAY, IF APPROPRIATE, MAKE ARRANGEMENTS FOR THE ADMISSION OF THE
CARETAKER PARENT AND CHILD OR CHILDREN INTO A RESIDENTIAL TREATMENT
PROGRAM OR INTO AN OUT-PATIENT TREATMENT PROGRAM PURSUANT TO SECTION
FOUR HUNDRED NINE-A OF THIS ARTICLE. THE SUBJECT OF A REPORT PURSUANT
TO THIS SECTION SHALL BE INFORMED IN WRITING BY THE LOCAL COMMISSIONER
OF SOCIAL SERVICES OF THE POSSIBLE CIVIL CONSEQUENCES OF FAILING TO
PARTICIPATE AND COMPLY WITH THE REQUIREMENTS OF A SUBSTANCE ABUSE TREAT-
MENT PROGRAM.
S 2. Paragraph (a) of subdivision 5 of section 409-a of the social
services law, as added by chapter 610 of the laws of 1979 and as desig-
nated by chapter 731 of the laws of 1989, such subdivision as renumbered
by chapter 465 of the laws of 1987, is amended to read as follows:
(a) Regulations of the department, promulgated pursuant to and not
inconsistent with this section, shall contain program standards includ-
ing, but not limited to: specification of services to be classified as
preventive services, WHICH SHALL INCLUDE SUBSTANCE ABUSE TREATMENT
SERVICES PROVIDED TO A PREGNANT WOMAN OR A CARETAKER PERSON; appropriate
circumstances and conditions for the provision of particular services;
appropriate providers and recipients of such services; and time limits,
as may be appropriate, for the provision of particular services. The
department shall, subject to the approval of the director of the budget,
establish reimbursement or charge limitations for particular services or
groups of services to be provided. The department shall also promulgate
regulations to prevent social services districts from overutilizing
particular forms or types of preventive services and to encourage
districts to provide balanced preventive services programs based on the
identified needs of children and families residing in such districts.
S 3. Section 423 of the social services law is amended by adding a new
subdivision 7 to read as follows:
7. (A) SUBJECT TO THE AMOUNTS ANNUALLY APPROPRIATED SPECIFICALLY
THEREFOR, THE COMMISSIONER OF CHILDREN AND FAMILY SERVICES IS AUTHORIZED
TO AWARD GRANTS TO NOT-FOR-PROFIT ORGANIZATIONS WHICH MAY, TO THE EXTENT
PRACTICABLE, BE COMMUNITY-BASED AND/OR CONSORTIA OF ORGANIZATIONS WITH
COMMUNITY ADVISORY BOARDS. SUCH ORGANIZATIONS SHALL CREATE OR ENHANCE
CAREGIVER REHABILITATION SERVICES THAT PROVIDE AN ALCOHOL OR SUBSTANCE
ABUSING PREGNANT WOMAN OR A CARETAKER PERSON WITH RESIDENTIAL AND/OR
OUT-PATIENT TREATMENT SERVICES, INCLUDING COUNSELING, PARENTING SKILLS
AND INTENSIVE CASE MONITORING. CAREGIVER REHABILITATION SERVICES MAY
PROVIDE SUCH ELIGIBLE PERSONS WITH AN OPPORTUNITY TO RECEIVE INTENSIVE
REHABILITATION TREATMENT AND INTENSIVE CASE MANAGEMENT SPECIALLY
TAILORED TO ACCOMMODATE THE NEEDS OF EXPECTANT MOTHERS AND CAREGIVERS
WITH CHILDREN.
(B) LOCAL SOCIAL SERVICES DISTRICTS SHALL MAKE THE PROVISION OF
SUBSTANCE ABUSE TREATMENT SERVICES TO A PREGNANT WOMAN OR A CARETAKER
PERSON A PRIORITY WHENEVER SUCH PERSON IS THE SUBJECT OF A REPORT TO THE
CENTRAL REGISTER PURSUANT TO SECTION FOUR HUNDRED TWENTY-TWO OF THIS
TITLE. SUCH SUBSTANCE ABUSE TREATMENT PROGRAMS SHALL BE CALLED INTENSIVE
CAREGIVER REHABILITATION SERVICES. THE INTENSIVE CAREGIVER REHABILI-
TATION SERVICES PROGRAM MAY BE PROVIDED TO ELIGIBLE PERSONS PURSUANT TO
THIS SECTION IN ORDER TO PERMIT A CHILD TO BE PLACED WITH THE CHILD'S
PARENT IN A RESIDENTIAL PROGRAM THAT PROVIDES TREATMENT AND OTHER NECES-
SARY SERVICES FOR PARENTS AND CHILDREN, INCLUDING COUNSELING, PARENTING
SERVICES AND INTENSIVE CASE MONITORING WHEN:
(I) THE PARENT OR CAREGIVER IS ATTEMPTING TO OVERCOME A SUBSTANCE
ABUSE PROBLEM AND IS COMPLYING WITH AN APPROVED TREATMENT PLAN;
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(II) THE SAFETY OF THE CHILD CAN BE ASSURED;
(III) THE RANGE OF SERVICES PROVIDED BY THE PROGRAM IS DESIGNED TO
APPROPRIATELY ADDRESS THE NEEDS OF THE PARENT AND CHILD; AND
(IV) THE GOAL OF THE CASE PLAN FOR THE CHILD IS EITHER TO PREVENT AN
OUT OF HOME PLACEMENT OR TO TRY TO REUNIFY THE CHILD WITH THE FAMILY.
OUT-PATIENT SERVICES SHALL ALSO BE MADE AVAILABLE BY THE LOCAL SOCIAL
SERVICES DISTRICT TO THOSE PREGNANT WOMEN AND CAREGIVERS WHOSE CIRCUM-
STANCES PREVENT THEM FROM ENROLLING IN A RESIDENTIAL TREATMENT PROGRAM
BUT WHO ARE SEEKING INTENSIVE CAREGIVER REHABILITATION SERVICES IN AN
EFFORT TO ELIMINATE THEIR ADDICTION WHILE PRESERVING THEIR FAMILIES.
(C) THE INTENSIVE CAREGIVER REHABILITATION SERVICES PROGRAM SHALL HAVE
A CASEWORKER TO CLIENT RATIO WHICH SHALL NOT EXCEED THE STAFFING LEVEL
WHICH IS DEEMED TO BE APPROPRIATE BY THE OFFICE OF CHILDREN AND FAMILY
SERVICES. INTENSIVE TREATMENT SERVICES SHALL BE PROVIDED TO ELIGIBLE
FAMILIES FOR NOT MORE THAN FORTY-FIVE DAYS FOR A RESIDENTIAL BASIS AND
NO MORE THAN NINETY DAYS FOR AN OUT-PATIENT BASIS; AND, WEEKLY FOLLOW-UP
SERVICES SHALL BE PROVIDED FOR A PERIOD OF NOT MORE THAN SIX MONTHS AS
DETERMINED ON A CASE-BY-CASE BASIS. PROVIDED, HOWEVER, THAT SUCH INTEN-
SIVE TREATMENT SERVICES, BOTH RESIDENTIAL AND OUT-PATIENT, AND THE WEEK-
LY FOLLOW-UP SERVICES MAY BE EXTENDED AS NEEDED ON A CASE-BY-CASE BASIS
FOR UP TO ONE YEAR.
S 4. The public health law is amended by adding a new section 2500-k
to read as follows:
S 2500-K. ALCOHOL AND SUBSTANCE ABUSE; SCREENING AND/OR TESTING OF
NEWBORNS. 1. THE COMMISSIONER SHALL ESTABLISH A PROGRAM FOR THE SCREEN-
ING AND/OR TESTING OF NEWBORNS FOR EXPOSURE TO ALCOHOL AND/OR A
CONTROLLED SUBSTANCE, INCLUDING EXPOSURE WHICH RESULTS FROM THE ABUSE OF
PRESCRIPTION DRUGS.
2. THE COMMISSIONER SHALL, NO LATER THAN ONE YEAR AFTER THE EFFECTIVE
DATE OF THIS SECTION, PROMULGATE RULES AND REGULATIONS TO ESTABLISH A
HOSPITAL PROTOCOL TO IMPLEMENT THE PROGRAM ESTABLISHED PURSUANT TO
SUBDIVISION ONE OF THIS SECTION. SUCH PROTOCOL SHALL INCLUDE THE ADMIN-
ISTRATION OF SCREENING, TESTING, REVIEW PROCESSES, COUNSELING AND REFER-
RALS FOR ALCOHOL AND SUBSTANCE ABUSE TREATMENT. SUCH PROTOCOLS SHALL
DETAIL THE PRESENTING OF MEDICAL CONDITIONS, CRITERIA OR SYMPTOMS WHICH
REQUIRE THE RESPONSIBLE PHYSICIAN OR BIRTH ATTENDANT TO SCREEN, TEST AND
INITIATE A REVIEW PROCESS FOR EXPOSURE TO ALCOHOL AND/OR A CONTROLLED
SUBSTANCE AS DEFINED IN SECTION THIRTY-THREE HUNDRED SIX OF THIS CHAP-
TER. SUCH PROTOCOLS SHALL NOT RELY ON THE EXPECTANT MOTHER'S AGE, RACE,
MARITAL STATUS, SOURCE OF INCOME, RESIDENCE, INSURANCE PROVIDER, EDUCA-
TIONAL LEVEL, OCCUPATION, PLACE OF EMPLOYMENT OR PROFESSION WHEN DETER-
MINING WHETHER OR NOT TO TEST A NEWBORN FOR EXPOSURE TO ALCOHOL AND/OR A
CONTROLLED SUBSTANCE. SUCH PROTOCOL SHALL REQUIRE THAT: (A) EACH
SCREENING FOR ALCOHOL AND/OR DRUGS BE SUBJECTED TO A SECOND CONFIRMATORY
TEST BEFORE AN INCIDENT REPORT MAY BE FILED WITH THE STATEWIDE CENTRAL
REGISTER OF CHILD ABUSE AND MALTREATMENT PURSUANT TO PARAGRAPH (D) OF
SUBDIVISION TWO OF SECTION FOUR HUNDRED TWENTY-TWO OF THE SOCIAL
SERVICES LAW; (B) THAT A MEDICAL REVIEW OFFICER INTERVIEW THE EXPECTANT
OR POSTPARTUM WOMAN RELATIVE TO A POSITIVE TOXICOLOGY REPORT ON HER
NEWBORN; AND (C) EACH HOSPITAL COLLECT BLIND DATA ON THE SCREENING,
TESTING AND TREATMENT REFERRALS, WHEN APPROPRIATE, TO FAMILIES OF
NEWBORNS.
3. COMMENCING ON THE FIRST OF JANUARY NEXT SUCCEEDING THE DATE ON
WHICH RULES AND REGULATIONS HAVE BEEN FILED WITH THE SECRETARY OF STATE
TO IMPLEMENT THIS SECTION, THE COMMISSIONER SHALL BIENNIALLY PREPARE A
REPORT NO LATER THAN THE FIFTEENTH OF DECEMBER OF EACH YEAR. SUCH REPORT
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SHALL EVALUATE THE EFFECTIVENESS OF THE ALCOHOL AND DRUG SCREENING AND
TESTING POLICY AND PROTOCOL ESTABLISHED BY THIS SUBDIVISION. SUCH REPORT
SHALL INCLUDE, BUT NOT BE LIMITED TO THE FOLLOWING: THE NUMBER OF
NEWBORNS SCREENED FOR EXPOSURE TO ALCOHOL OR A CONTROLLED SUBSTANCE BY
AGE, RACE, COLOR, ETHNICITY, SOCIO-ECONOMIC STATUS, TYPE OF MEDICAL
INSURANCE, AND ZIP CODE; THE NUMBER OF SCREENS WHICH RESULTED IN A POSI-
TIVE TOXICOLOGY; THE NUMBER OF SCREENS WHICH WERE THEN SUBJECTED TO A
SECOND CONFIRMATORY TEST; THE NUMBER OF FALSE POSITIVE TOXICOLOGY
REPORTS; THE NUMBER OF PHYSICIAN REPORTS TO THE STATE CENTRAL REGISTER
FOR CHILD ABUSE AND MALTREATMENT OF A POSITIVE TOXICOLOGY WHICH HAS BEEN
CONFIRMED AND REVIEWED; THE NUMBER OF WOMEN ADMITTED TO AN INTENSIVE
CAREGIVER REHABILITATIVE SERVICES PROGRAM AS A RESULT OF HOSPITAL INTER-
VENTION; THE NUMBER OF ALCOHOL AND DRUG SCREENS PERFORMED AT A HOSPITAL.
S 5. Paragraphs (vii) and (viii) of subdivision (a) of section 1046 of
the family court act, paragraph (vii) as amended by chapter 432 of the
laws of 1993 and paragraph (viii) as added by chapter 1015 of the laws
of 1972, are amended and a new paragraph (ix) is added to read as
follows:
(vii) neither the privilege attaching to confidential communications
between husband and wife, as set forth in section forty-five hundred two
of the civil practice law and rules, nor the physician-patient and
related privileges, as set forth in section forty-five hundred four of
the civil practice law and rules, nor the psychologist-client privilege,
as set forth in section forty-five hundred seven of the civil practice
law and rules, nor the social worker-client privilege, as set forth in
section forty-five hundred eight of the civil practice law and rules,
nor the rape crisis counselor-client privilege, as set forth in section
forty-five hundred ten of the civil practice law and rules, shall be a
ground for excluding evidence which otherwise would be admissible[.];
AND
(viii) proof of the "impairment of emotional health" or "impairment of
mental or emotional condition" as a result of the unwillingness or
inability of the respondent to exercise a minimum degree of care toward
a child may include competent opinion or expert testimony and may
include proof that such impairment lessened during a period when the
child was in the care, custody or supervision of a person or agency
other than the respondent[.]; AND
(IX) THE RESULTS OF ANY LABORATORY TEST SHOWING THE USAGE OF A
CONTROLLED SUBSTANCE BY, OR THE PRESENCE OF A CONTROLLED SUBSTANCE IN, A
PARENT, CHILD OR OTHER PERSON SHALL BE ADMISSIBLE ONLY IF:
(A) SUCH TEST WAS CONDUCTED BY A LABORATORY THAT HAS MET THE REQUIRE-
MENTS ESTABLISHED BY SECTION FIVE HUNDRED SEVENTY-FIVE OF THE PUBLIC
HEALTH LAW; AND
(B) THE LABORATORY AND THE PERSON OR INSTITUTION COLLECTING THE SAMPLE
HAS ESTABLISHED A CHAIN OF CUSTODY PROCEDURE FOR SAMPLE COLLECTING AND
TESTING THAT WILL VERIFY THE IDENTITY OF EACH SAMPLE AND TEST RESULT;
AND
(C) THE COLLECTING ENTITY DIVIDES THE SAMPLE COLLECTED, IF SUFFICIENT
INTO TWO SEPARATE CONTAINERS AND PRESERVES ONE SAMPLE IN A SECURE FREEZ-
ER IN SUCH A WAY THAT IT CAN BE LATER TESTED FOR THE PRESENCE OF ALCOHOL
OR CONTROLLED SUBSTANCES; AND
(D) THE SAMPLE IS RETESTED TO CONFIRM THE RESULTS OF THE FIRST TEST
AND WHICH PROVIDES QUANTITATIVE DATA ABOUT THE DETECTED DRUG OR DRUG
METABOLITES; AND
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(E) THE RESULTS INCLUDE THE TYPE OF TESTS CONDUCTED, THE RESULTS OF
EACH TEST, AND THE DETECTION LEVEL, MEANING THE CUTOFF OR MEASURE USED
TO DISTINGUISH POSITIVE FROM NEGATIVE SAMPLES.
S 6. Section 1051 of the family court act is amended by adding a new
subdivision (g) to read as follows:
(G) WHERE THE COURT MAKES A FINDING OF NEGLECT OR ABUSE AND FINDS THAT
THE PARENT OR OTHER PERSON LEGALLY RESPONSIBLE FOR THE CHILD MISUSES A
DRUG OR DRUGS OR ALCOHOLIC BEVERAGES, THE COURT MAY REFER THE CASE TO A
PART OF THE COURT KNOWN AS THE "DRUG TREATMENT COURT". THE DRUG TREAT-
MENT COURT MAY REQUIRE THAT THE RESPONDENT MEET WITH A CASE MANAGER,
COMPLY WITH A TREATMENT PLAN, AND SUBMIT TO OVERSIGHT BY THE COURT,
INCLUDING REGULAR DRUG TESTING. THE DRUG TREATMENT COURT SHALL PROVIDE
FOR SPEEDY ENROLLMENT OF RESPONDENTS INTO APPROPRIATE TREATMENT
PROGRAMS, FREQUENT AND CONSISTENT MONITORING OF RESPONDENTS INCLUDING
REWARDING OF GOOD BEHAVIOR AND PENALIZING OF POOR BEHAVIOR, AND EXPE-
DITED DECISION MAKING.
S 7. This act shall take effect on the one hundred eightieth day after
it shall have become a law.