New York City’s public hospitals will end a longstanding practice of drug testing pregnant patients without their explicit written consent, a policy that advocates say leads to unnecessary investigations and perpetuates racial disparities in the child welfare system.

The policy change comes as the city’s Commission on Human Rights also opens an investigation into three private hospitals to determine if there is evidence of racial bias in who is tested for substances and reported to child welfare authorities.

Under the City Health and Hospitals Corporation's previous policy, medical staff did not need to provide pregnant patients with any written information on a toxicology test or obtain their signatures to perform one, which led to women reporting that they were tested unknowingly or without their approval.

Health providers have broad discretion in calling in reports of child neglect, and a positive drug test can lead to a suspected case. Once those reports are entered into a statewide system, local agencies like the city’s Administration for Children’s Services are mandated to investigate them.

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Health and Hospitals does not track how many test results have led to reports of child neglect from hospital staff. It has also not yet responded to a Freedom of Information Law request by Gothamist/WNYC for data, submitted more than a year ago, on the number of women and newborns tested for substances. ACS also said it did not have readily available data on cases related to drug use during pregnancy.

But a FOIL request by the Movement for Family Power, an advocacy organization, found that hundreds of newborns with positive toxicology tests in New York City are reported to child welfare officials each year.

In 2019, 760 newborns with positive toxicology tests were reported to child welfare authorities. After an initial investigation, the city found 486 of those cases to be credible, according to a lengthy report on the issue published by the organization in June.

Lisa Sangoi, co-director and co-founder of the Movement for Family Power, said testing pregnant women or their newborns, and reporting these results to child welfare authorities, has its roots in the war on drugs. Much like the city’s unconstitutional use of stop and frisk, Sangoi said the drug testing practice “targets black and brown communities for policing, for surveillance, and for control in a way that white and wealthy people who also use drugs at the same rate are rarely if ever policed.”

Overall, Black and Latino children in New York City comprise 87% of reports of child neglect or abuse, even though they represent 23% and 36% of the child population respectively. These disparities worsen through the different stages of the child welfare system, such as families that must undergo supervision ordered by a court or children who are placed in foster care.

Nearly 56% of New York City children in foster care last year were Black, according to the Administration for Children’s Services. Just 5.3% were white.

At a City Council hearing in 2019, mothers and their advocates described a child welfare system that surveils and punishes families, rather than supporting them through issues such as substance use and problems primarily related to poverty.

Shakira Kennedy testified during the hearing that she smoked pot to help with severe nausea when she was pregnant with twins, and that she disclosed this information to a doctor. Kennedy, a Black woman, said she was administered a drug test at a public hospital without her consent, and the results were reported to child welfare officials. Child protective workers from ACS came to her hospital bedside while she was recovering from delivery, Kennedy said, and informed her that they were opening an investigation.

Gothamist/WNYC also reported last year on a case in which the city removed a newborn from her mother after the baby tested positive for marijuana. The city used its emergency powers to separate the mother and child — a power that allows the city to remove children without approval from a family court judge only when there is evidence that a child is in imminent danger. Child welfare workers allowed the baby to stay in the care of her father, and ejected the mother from the homeless shelter where all three were staying.

“We have a collective duty to make sure this government intervention is sought and used only when there is true concern for the safety of a child or imminent risk to a child, and that it is not used inappropriately or disproportionately, resulting in further marginalization and trauma for families of color,” said David Hansell, Commissioner of the Administration for Children’s services, at a different City Council hearing last month, on disparities in the system.

Yet advocates say that a drug test is frequently and unfairly used as a kind of parenting test.

“Often what we see when there is a positive toxicology with a parent — that is pathologized,” said Miriam Mack, policy counsel for the family defense practice at The Bronx Defenders. “It's held up as an indictment of their parenting.”

Mack and others note that, at a time when both the city and the country recognize drug use in the criminal justice system as an issue that should be addressed with treatment over incarceration, the same logic is not applied to the child welfare system with its power to supervise and separate families.

In the Bronx alone, drug-related arrests decreased from 2011 to 2017. But child welfare investigations involving allegations of drug use remained steady over the same period, according to the Movement for Family Power’s report.

Sarah Roberts, associate professor in the Department of Obstetrics, Gynecology and Reproductive Sciences at the University of California San Francisco, says the focus on drug use in pregnancy must be on treatment rather than on who should be tested and when.

Roberts’s research has shed light on how fears of child welfare involvement have led to women of color delaying prenatal care, sometimes leading to adverse pregnancy outcomes, and on how even new policies meant to standardize screening procedures have actually further codified racial disparities.

“We spend so much of our time focusing on testing and questions around, ‘Should it be universal? Should it be targeted?’” said Roberts. “And I think that that actually takes us away from the more important question, which is, ‘What should actually be happening if there is a positive test?’ And if a positive test led somebody to get six weeks of a night nurse and six months of free childcare, my concerns about the current racial inequities in testing would go away. So the problem is not actually the testing itself. The problem is what happens in response.”

The new policy at New York City’s public hospitals, which went into effect September 15th and replaces the one issued in 2014, asserts that use of drugs or other substances during pregnancy, like alcohol and cigarettes, is a medical issue that should be assessed for the purposes of linking women to treatment, if necessary. The policy advises medical staff to screen all pregnant women receiving care with a verbal questionnaire on potential substance use.

Providers may still order a toxicology test, but the policy aims to standardize when that test is ordered, if at all, and only for the purposes of providing necessary medical treatment. A toxicology test also now requires the written, informed consent of the mother.

Dr. Machelle Allen, the system chief medical officer for Health and Hospitals Corporation, acknowledged that the change in policy came in response to the testimony heard at the City Council hearing last year.

“The essence of the policy essentially is emphasizing the fact that substance use disorder is a medical condition and not a moral problem — and that's actually the first sentence in our policy,” Allen said. “I think this written policy really enhances the protections of the patients, and that's just good medical care.”

The new hospital testing policy offers no guidance on when to report or refrain from reporting results to child welfare investigators. Just last week, ACS in conjunction with the Department of Health, issued guidelines reminding health providers that a positive drug test alone does not warrant a report of neglect or maltreatment.

The investigation being conducted by the Commission on Human Rights will examine whether testing and reporting bias exists at three private hospitals: Montefiore, Mount Sinai and New York Presbyterian. The city’s investigation is expected to take at least a year.

The Commission said there is no specific complaint against the hospitals, but that the investigation stems from concerns raised by advocates about potential bias. The Commission says it also chose Montefiore, Mount Sinai and New York Presbyterian so that it could examine hospital systems that serve a diversity of patients to identify and root out any possible discrimination. Representatives for the three hospitals did not immediately return requests for comment.