S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4285--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 1, 2021
                                ___________
 
 Introduced   by  M.  of  A.  L. ROSENTHAL,  FORREST,  SEAWRIGHT,  AUBRY,
   J. RIVERA, BICHOTTE HERMELYN, HEVESI, CARROLL, CLARK, ZINERMAN, SIMON,
   JACKSON, MITAYNES, GONZALEZ-ROJAS, SOLAGES, REYES, FERNANDEZ,  BURGOS,
   JEAN-PIERRE,  QUART  --  read  once  and  referred to the Committee on
   Governmental Operations --  reference  changed  to  the  Committee  on
   Health  --  recommitted  to the Committee on Health 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, 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:
 
   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 OR POST-
 PARTUM INDIVIDUALS; 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  HEALTH  CARE  PROFESSIONAL  LICENSED, CERTIFIED, OR AUTHORIZED
 UNDER TITLE EIGHT OF THE EDUCATION LAW SHALL:
   (A) PERFORM A DRUG OR ALCOHOL TEST ON A PERSON WHO IS PREGNANT  OR  UP
 TO ONE YEAR POSTPARTUM UNLESS:
   (I) THE PREGNANT OR POSTPARTUM INDIVIDUAL GIVES PRIOR WRITTEN AND ORAL
 INFORMED CONSENT SPECIFIC TO THE DRUG OR ALCOHOL TEST; AND
   (II)  THE  PERFORMANCE OF THE DRUG OR ALCOHOL TEST IS WITHIN THE SCOPE
 OF MEDICAL CARE BEING PROVIDED TO THE INDIVIDUAL.
   (B) PERFORM A DRUG OR ALCOHOL SCREEN IN A HOSPITAL ON A PERSON WHO  IS
 PREGNANT OR UP TO ONE YEAR POSTPARTUM UNLESS:
   (I)  THE    PREGNANT OR POSTPARTUM INDIVIDUAL GIVES PRIOR WRITTEN  AND
 ORAL INFORMED CONSENT SPECIFIC TO THE DRUG OR ALCOHOL SCREEN; AND
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00548-04-2
 A. 4285--A                          2
              

 
   (II)  THE  PERFORMANCE  OF  THE DRUG OR ALCOHOL SCREEN IS  WITHIN  THE
 SCOPE OF MEDICAL CARE  BEING  PROVIDED  TO THE INDIVIDUAL;
   (C)  PERFORM  A  DRUG OR ALCOHOL SCREEN OUTSIDE A HOSPITAL ON A PERSON
 WHO IS PREGNANT OR UP TO ONE YEAR POSTPARTUM UNLESS:
   (I) THE  PREGNANT OR POSTPARTUM INDIVIDUAL GIVES PRIOR  ORAL  INFORMED
 CONSENT SPECIFIC TO THE DRUG OR ALCOHOL SCREEN; AND
   (II)   THE   PERFORMANCE  OF  THE DRUG OR ALCOHOL SCREEN IS WITHIN THE
 SCOPE OF MEDICAL  CARE  BEING  PROVIDED  TO THE INDIVIDUAL.
   3. NO HEALTH CARE PROFESSIONAL LICENSED, CERTIFIED OR AUTHORIZED UNDER
 TITLE EIGHT OF THE EDUCATION LAW SHALL:
   (A) PERFORM A DRUG OR ALCOHOL TEST ON A NEWBORN UNLESS:
   (I) THE INDIVIDUAL AUTHORIZED TO CONSENT FOR THE NEWBORN,  AS  DEFINED
 BY  SUBDIVISION  TWO  OF SECTION TWENTY-FIVE HUNDRED FOUR OF THIS TITLE,
 GIVES PRIOR WRITTEN AND ORAL INFORMED CONSENT SPECIFIC TO  THE  DRUG  OR
 ALCOHOL TEST; AND
   (II)  THE  PERFORMANCE OF THE DRUG OR ALCOHOL TEST IS WITHIN THE SCOPE
 OF MEDICAL CARE BEING PROVIDED TO THE NEWBORN;
   (B) PERFORM A DRUG OR ALCOHOL  SCREEN  IN  A  HOSPITAL  ON  A  NEWBORN
 UNLESS:
   (I)  THE    INDIVIDUAL   AUTHORIZED   TO   CONSENT FOR THE NEWBORN, AS
 DEFINED BY SUBDIVISION TWO OF SECTION TWENTY-FIVE HUNDRED FOUR  OF  THIS
 TITLE,  GIVES  PRIOR   WRITTEN AND ORAL INFORMED CONSENT SPECIFIC TO THE
 DRUG OR ALCOHOL SCREEN; AND
   (II)  THE  PERFORMANCE  OF  THE DRUG OR ALCOHOL SCREEN IS  WITHIN  THE
 SCOPE OF MEDICAL CARE  BEING  PROVIDED  TO THE NEWBORN;
   (C)  PERFORM  A  DRUG  OR  ALCOHOL  SCREEN  OUTSIDE  A  HOSPITAL  ON A
 NEWBORN UNLESS:
   (I) THE   INDIVIDUAL   AUTHORIZED   TO   CONSENT FOR THE  NEWBORN,  AS
 DEFINED  BY  SUBDIVISION TWO OF SECTION TWENTY-FIVE HUNDRED FOUR OF THIS
 TITLE, GIVES PRIOR  ORAL INFORMED CONSENT SPECIFIC TO THE DRUG OR  ALCO-
 HOL SCREEN; AND
   (II)   THE   PERFORMANCE  OF  THE DRUG OR ALCOHOL SCREEN IS WITHIN THE
 SCOPE OF MEDICAL CARE  BEING  PROVIDED  TO THE NEWBORN.
   4. WRITTEN AND ORAL INFORMED CONSENT TO A DRUG OR ALCOHOL TEST OR DRUG
 OR ALCOHOL SCREEN SHALL OCCUR AT THE TIME OF TESTING, IN LANGUAGE UNDER-
 STANDABLE TO THE PREGNANT OR POSTPARTUM INDIVIDUAL,  OR  THE  INDIVIDUAL
 AUTHORIZED  TO CONSENT FOR THE NEWBORN, UNDER CIRCUMSTANCES THAT PROVIDE
 SUCH INDIVIDUAL SUFFICIENT OPPORTUNITY TO CONSIDER  WHETHER  OR  NOT  TO
 AUTHORIZE  THE  DRUG OR ALCOHOL TEST OR DRUG OR ALCOHOL SCREEN AND MINI-
 MIZE THE POSSIBILITY OF COERCION OR UNDUE INFLUENCE, AND  SHALL  CONSIST
 OF  ORAL  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 ORAL
 INFORMED CONSENT, EXCEPT WHEN CONDITIONS UNDER SUBDIVISION FIVE OF  THIS
 SECTION ARE MET;
   (B)  A STATEMENT THAT TESTING OR SCREENING POSITIVE FOR DRUGS OR ALCO-
 HOL COULD HAVE LEGAL CONSEQUENCES, INCLUDING,  BUT  NOT  LIMITED  TO,  A
 REPORT TO CHILD PROTECTIVE SERVICES, AND THAT THE INDIVIDUAL 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.
 A. 4285--A                          3
 
   5.  DRUG  OR  ALCOHOL  TESTING  OR  DRUG  OR  ALCOHOL SCREENING MAY BE
 PERFORMED WITHOUT CONSENT OF THE PATIENT OR THE INDIVIDUAL AUTHORIZED TO
 CONSENT FOR A NEWBORN WHEN, IN THE HEALTH CARE PROFESSIONAL'S  JUDGMENT,
 AN  EMERGENCY  EXISTS AND THE PATIENT OR NEWBORN IS IN IMMEDIATE NEED OF
 MEDICAL  ATTENTION,  AND  AN  ATTEMPT  TO SECURE CONSENT WOULD RESULT IN
 DELAY OF TREATMENT THAT COULD INCREASE THE  RISK  TO  THE  PATIENT'S  OR
 NEWBORN'S  LIFE  OR  HEALTH. IN THE CASE THAT DRUG OR ALCOHOL TESTING OR
 DRUG OR ALCOHOL SCREENING IS PERFORMED UNDER  THESE  CIRCUMSTANCES,  THE
 TEST  OR SCREEN RESULTS SHALL BE DISCUSSED WITH THE PATIENT OR THE INDI-
 VIDUAL AUTHORIZED TO CONSENT FOR THE NEWBORN, IN LANGUAGE UNDERSTANDABLE
 TO THE PATIENT OR INDIVIDUALS AUTHORIZED TO CONSENT FOR THE NEWBORN  AND
 SHALL  CONSIST  OF  ORAL  NOTIFICATION  AND WRITTEN NOTIFICATION THAT IS
 DATED, SIGNED AND INCLUDES THE FOLLOWING:
   (A) A STATEMENT THAT TESTING OR SCREENING POSITIVE FOR DRUGS OR  ALCO-
 HOL COULD HAVE LEGAL CONSEQUENCES, INCLUDING BUT NOT LIMITED TO A POTEN-
 TIAL  REPORT TO CHILD PROTECTIVE SERVICES, AND THAT THE PATIENT OR INDI-
 VIDUAL AUTHORIZED TO CONSENT FOR THE NEWBORN MAY WANT  TO  CONSULT  WITH
 LEGAL COUNSEL;
   (B)  A STATEMENT IN THE MEDICAL RECORD WITH A DESCRIPTION OF THE EMER-
 GENCY THAT NECESSITATED UNCONSENTED DRUG OR ALCOHOL TESTING OR  DRUG  OR
 ALCOHOL SCREENING; AND
   (C)  A  STATEMENT EXPLAINING THE EXTENT OF CONFIDENTIALITY OF THE TEST
 OR SCREEN RESULTS.
   6. NO HEALTH CARE  PROFESSIONAL  LICENSED,  CERTIFIED,  OR  AUTHORIZED
 UNDER TITLE EIGHT OF THE EDUCATION LAW SHALL REFUSE TO TREAT AN INDIVID-
 UAL WHO IS PREGNANT OR UP TO ONE YEAR POSTPARTUM OR A NEWBORN BECAUSE OF
 THE  PATIENT  OR  INDIVIDUALS  AUTHORIZED  TO  CONSENT FOR THE NEWBORN'S
 REFUSAL TO SUBMIT TO A DRUG OR ALCOHOL TEST OR DRUG 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. This act shall take effect immediately.