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About This, I Have Some Concerns

February 18, 2009

A proposed bill in Tennessee:
SB 1065 by Marrero B (HB 0890 by Hackworth)

AN ACT to amend Tennessee Code Annotated, Title 68, relative to testing for certain substances in pregnant women.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1.Tennessee Code Annotated, Title 68, Chapter 5, is amended by adding Section 2 of this act as a new part thereto.

SECTION 2.
(a) The general assembly declares that, as a matter of public policy of this state and in
the interest of public health, pregnant women who abuse alcohol and drugs pose a risk to their unborn children. Pregnant women who meet certain criteria, as determined by the department, through rules and regulations duly promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, shall be tested for alcohol and drugs in order to encourage them to seek immediate treatment for an alcohol-related or drug-related problem.

(b) If the department levies a fee or charge for the cost of testing, it shall use the same billing and collection methods normally used by independent private laboratories. Any fee shall be waived for patients who are unable to pay.

(c) The department, in promulgating rules to implement this act, shall consider the following as indications of the necessity for alcohol or drug testing:
(1) No prenatal care;
(2) Late prenatal care after twenty-four (24) weeks gestation;
(3) Incomplete prenatal care;
(4) Abruptio placentae;
(5) Intrauterine fetal death;
(6) Preterm labor of no obvious cause;
(7) Intrauterine growth retardation of no obvious cause;
(8) Previously known alcohol or drug abuse; or
(9) Unexplained congenital anomalies.

(d) The commissioner of health is authorized to adopt rules, using criteria established by the United States department of health and human services as guidelines for modeling the drug and alcohol testing program pursuant to this act, concerning, but not limited to:
(1) Standards for licensing drug and alcohol testing laboratories and suspension and revocation of the licenses;
(2) Body specimens and minimum specimen amounts that are appropriate for drug or alcohol testing;
(3) Methods of analysis and procedures to ensure reliable drug or alcohol testing results, including the use of breathalyzers and standards for initial tests and confirmation tests;
(4) Minimum cut-off detection levels for alcohol, each drug or metabolites of the drug for the purposes of determining a positive test result;
(5) Chain-of-custody procedures to ensure proper identification, labeling and handling of specimens tested; and
(6) Retention, storage and transportation procedures to ensure reliable results on confirmation tests and retests.

(e) Prior to acting on the proposed rules to implement this chapter, the commissioner shall submit the proposed rules to the house health and human resources and the senate general welfare committees of the general assembly for their review and comment. The committees shall have forty-five (45) days to review the proposed rules and transmit any comment it may have to the commissioner.

(f) Any woman who tests positive for alcohol or drugs on a test administered pursuant to this chapter shall be referred to treatment for an alcohol-related or drug-related problem. Every physician, surgeon or other person permitted by law to attend a pregnant woman during gestation shall report each woman who refuses to seek treatment for an alcohol-related or drug-related problem or who misses two (2) or more appointments to the department of children’s services. Such reports shall be in a manner specified by the department, either by contacting a local representative of the department or by utilizing the department’s centralized intake procedure, where applicable.

(g) A health care provider who makes a report of alcohol or drug abuse, as required by subsection (f), shall not be liable in any civil or criminal action that is based solely upon such report.

(h) Nothing in this section shall be construed to confer any immunity upon a health care provider for a criminal or civil action arising out of the treatment of a woman about whom the report of alcohol or drug abuse was made.

(i) All information, interviews, reports, statements, memoranda and drug or alcohol test results, written or otherwise, received by the covered employer through a drug or alcohol testing program are confidential communications and may not be used or received in evidence, obtained in discovery or disclosed in any public or private proceedings, except in accordance with this section.

(j) Laboratories, medical review officers, employee assistance programs, drug or alcohol rehabilitation programs and their agents who receive or have access to information concerning drug or alcohol test results shall keep all information confidential. Release of the information under any other circumstance is authorized solely pursuant to a written consent form signed voluntarily by the person tested, unless the release is compelled by a hearing officer or a court of competent jurisdiction pursuant to an appeal taken under this section, relevant to a legal claim asserted by the employee or is deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. The consent form must contain, at a minimum:
(1) The name of the person who is authorized to obtain the information;
(2) The purpose of the disclosure;
(3) The precise information to be disclosed;
(4) The duration of the consent; and
(5) The signature of the person authorizing release of the information.

(k) Information on drug or alcohol test results for tests administered pursuant to this act shall not be released or used in any criminal proceeding against the woman who was subject to the test. Information released contrary to this section is inadmissible as evidence in the criminal proceeding.

SECTION 3. For the purpose of promulgating rules and regulations, this act shall take effect upon becoming a law, the public welfare requiring it. For all other purposes this act shall take effect January 1, 2010, the public welfare requiring it.

Added: I have detailed commentary on the bill here, and links to others who are writing about it here.

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52 Comments leave one →
  1. February 18, 2009 7:53 pm

    ?!?!?!?!?!?! I am speechless. If you don’t treat your pregnancy in an “acceptable” manner, they want the right to drug test you?!

  2. February 18, 2009 8:05 pm

    The presence of unexplained congenital anomalies will be due cause for drug and alcohol testing?!

    Paging NAPW…

  3. February 18, 2009 9:42 pm

    Jill, and “preterm labor of no obvious cause!”

  4. Lesley permalink
    February 18, 2009 9:46 pm

    Uh, I’m certainly not a medical professional, but aren’t “unexplained congenital anomalies” all anomalies? Does that mean that I would have been subjected to drug/alcohol testing because my son had an in-utero stroke of unexplained reasons? Total crap and adding insult to injury.

  5. MomTFH permalink
    February 18, 2009 11:11 pm

    I am sure this will be applied disproportionately to women below a certain income level, women on Medicaid, teen mothers and women of color.

    • Brian permalink
      July 15, 2009 12:59 pm

      Oh, you mean mothers at high risk for drug use? Of course it will be disproportionately applied to those women as it should be.

  6. February 19, 2009 7:44 am

    MomTFH, exactly – it puts those women under more scrutiny in the first place, the women who may not have health insurance or time off work or money or transportation to get prenatal care, who are going to have those same barriers to going through drug rehabilitation. It also privileges the fetus over the woman in decreeing that pregnancies must be managed in certain ways and outcomes must be successful or the presumption is that the woman has done something wrong and must be drug tested.

  7. February 19, 2009 7:47 am

    Lesley, I’m thinking along those same lines on the “preterm labor of no obvious cause.”

  8. February 19, 2009 8:53 am

    Holy crap. Did anyone on Capitol Hill happen to notice our state’s financial crisis? Education issues? Etc. etc.? And THIS is what they want to do?

    OK never mind. I am NOT surprised.

  9. February 19, 2009 10:13 am

    OK, I just talked to a friend “in the know.” She says she believes this bill is intended to address the shockingly high infant mortality rate in Shelby County, and that perhaps some constructive ideas about the concerning parts could be helpful. That makes a lot more sense to me, though I am still troubled by many of the specifics [or lack thereof] in the bill as it stands.

  10. February 19, 2009 10:15 am

    So every “physician, surgeon or other person permitted by law to attend a pregnant woman” (I guess midwife is a dirty word) is now will report any woman that refuses treatment, meaing the state could get custody of… a fetus? Do fetuses get case workers? Home visits? Does a case worker attend the birth to make sure no drugs are taken? So are IV narcotics or anesthesia not going to be allowed by the pregnancy police?

    I’ve been reading a lot lately about our cultural belief that a pregnant woman is one big walking risk to their fetus.

    Here’s another thing that pisses me off about this. It’s yet another test that dictates a mandatory course of action. Pregnant women are already forced to plead their cases to a “jury” of docs and hospital staff who really don’t give a shit about them and really just need for them to be compliant. And comply quickly so we can intervene before the baby comes out on its own!

    My friend is a physician and drank wine during her pregnancy. Do you think her colleagues would give her a pass if she went into labor at 36.5 weeks?

  11. Kari permalink
    February 19, 2009 11:45 am

    I didn’t read every single word of this, but isn’t this a *huge* breach of doctor/patient confidentiality?

  12. February 19, 2009 12:17 pm

    Laura, I don’t think this is the appropriate way to address high infant mortality in Memphis *at all.* Thanks for passing that along, though – it just reinforces my concern that this would be used to disproportionately target women who are already at a disadvantage of being poor, non-white, and so on. That people think this is the way to address that problem – I’m more bothered now instead of less.

    [added: which is not to blame you for it!-thanks for passing along that info]

  13. WTF permalink
    February 19, 2009 5:48 pm

    Uh…..what about people with no health insurance? Might this be a reason why they delay or forgo prenatal care? The state would have a right to force a drug test?!?! They can’t even compel a blood-alcohol test on erratic drivers!

  14. MomTFH permalink
    February 19, 2009 11:45 pm

    Not only can they not do a blood test on drunk drivers, there is no situation at all that the father of the child will ever, ever be forced to be subjected to a drug test, no matter how much he neglects his wife and unborn future baby. There are so few circumstances that a man would be subjected to a tox screen against his will. It is completely sexist and unfair to say that simply the fact that she is pregnant makes a woman unable to refuse a drug test.

  15. February 20, 2009 9:59 am

    This is outrageous. It basically reduces us women to the level of “breeders.”

    9 years ago, I went into preterm labor and my child was born premature. We still don’t know why.
    I wasn’t using drugs or alcohol, though.

    Under this proposed law, I could have been forced to undergo testing… at my OWN expense.

  16. Anne permalink
    February 20, 2009 12:20 pm

    The TN General Assembly must have as its mission statement to Become the Laughingstock of all State Legislative Bodies in All the Fifty States.

  17. Tina Shang permalink
    February 20, 2009 2:12 pm

    There is absurd. I wish that people would open their eyes and take a look around the government is pretty much trampling on our constitutional rights. Forced Vaccinations, Forced Drug Testing, Whats next forced mandatory sterilization for those deemed unfit to procreate? How about jail time and removal of children from your home for not using anti-psychotic drugs on your ADHD child or maybe a death sentence for those of us who dare seek Holistic Healing rather than scarf down a cabinet full of mainstream drug pushed on us by Drug companies and our own government.

    If they want to pass some new legislation how about some house cleaning bills that clean up their own messes before they start messing around with our individual rights why don’t they start with protecting the American Citizens from a corrupt system with more interest in the bottom line than in the good of the people.

  18. curtis permalink
    February 20, 2009 4:18 pm

    Women need to gather up the courage to state the principal of the matter: Children’s health and well being is not a valid reason to deny women their constitutional rights.

    The state does not have the right to practice Big Brotherism against women no matter what the reason. If the state cannot figure out a way to improve the health of babies and children without subjecting women to substandard rights then our society is not entitled to healthy babies and children and too bad for our young.

  19. paranoiastrksdp permalink
    February 21, 2009 8:22 am

    Tennessee is broke, like every other state in the union. How do they intend to pay for this?

  20. Joyce Arthur permalink
    February 21, 2009 9:23 am

    Please don’t overlook one of the most ominous things about this proposed legislation – Tennessee law says the killing of an “unborn child” after viability is murder. Therefore, any woman who has a miscarriage or stillbirth and has taken drugs during pregnancy can be charged.

  21. Shocked and appalled permalink
    February 21, 2009 3:26 pm

    I’m really horrified. TN was always considered my utopia for birth. Not anymore :(

    How will this affect women under midwives?

  22. Thomas Olson permalink
    February 22, 2009 8:39 am

    This has been going on in the People’s Republic of Kalifornia for over 20 years now.

  23. Elizabeth Allemann, MD permalink
    February 22, 2009 11:30 pm

    “Every physician, surgeon or other person permitted by law to attend a pregnant woman during gestation shall report each woman who . . . .misses two (2) or more appointments to the department of children’s services. ”

    If this bill passes, the above sentence, taken out of context will be read by many physicians and women will be hotlined for changing care providers, for moving, for not understanding when her appointment was, etc. This sentence says that EVERY pregnant woman who misses two appointments, even if she has no other evidence of drug or alcohol use should be reported. I have no doubt that this will be used more against poor, single, young women of color than against busy white married rich professional women.

    Pregnant women who have the DISEASE of addiction need treatment, not punishment. If TN is like every other state I know, they don’t have enough beds in treatment centers to take care of the women who are already begging for treatment.

    Coercion to drug treatment doesn’t work very well.

    There HAS to be a better way.

  24. Susan Hodges permalink
    February 23, 2009 8:20 am

    This bill reduces women to “baby containers” when they become pregnant. Since when do babies, born or unborn, have MORE rights than the mother?

    If a state were going to pursue this illogic, it is interesting to note that tobacco use, which is known to have negative effects on the baby’s health, is missing from the list. I wonder why…

    This bill is really bad news. If Tennessee wants to improve outcomes, they should mandate more midwives, and get a wide range of services to the women in the county they are so concerned about.

  25. Liz permalink
    February 23, 2009 1:45 pm

    Wonderful! Wonderful that they are concerned about the imr. But terrible solution! They need to dig deeper, as with most things that go on in the medical industry they are looking to “diagnose” something here in stead of getting all the way down to the root of this problem. I agree with many others who have said it all seems to start with poverty!

  26. February 26, 2009 6:42 am

    Rachel, you are a rock star.

  27. March 4, 2009 12:17 pm

    Here is the link to the government of Tennessee page, from there you can find your representatives and send them emails telling them to vote no on this. We can’t just sit back and moan about how wrong this is and not do anything. Also here is a copy of the letter I sent to mine, if you want to just copy and paste it. I included the bill from above so that, hopefully, they will actually read it.

    http://www.tennesseeanytime.org/government/elected.html

    My body belongs to me! I may not know I’m pregnant, I may not have a car or can aford to go to a doctor several times in nine months. My unborn child may simplely die for no reason, there may be complications for no reason, these things happen. That doesn’t not make me a drug user nor does that give the state the right to treat me as such. Please, for your wife and your daughters and your sisters and neices and all the women of child baring age in the state of Tennessee, vote no on this legislation!

    SB 1065 by Marrero B (HB 0890 by Hackworth)

    AN ACT to amend Tennessee Code Annotated, Title 68, relative to testing for certain substances in pregnant women.
    BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
    SECTION 1.Tennessee Code Annotated, Title 68, Chapter 5, is amended by adding Section 2 of this act as a new part thereto.

    SECTION 2.
    (a) The general assembly declares that, as a matter of public policy of this state and in
    the interest of public health, pregnant women who abuse alcohol and drugs pose a risk to their unborn children. Pregnant women who meet certain criteria, as determined by the department, through rules and regulations duly promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, shall be tested for alcohol and drugs in order to encourage them to seek immediate treatment for an alcohol-related or drug-related problem.

    (b) If the department levies a fee or charge for the cost of testing, it shall use the same billing and collection methods normally used by independent private laboratories. Any fee shall be waived for patients who are unable to pay.

    (c) The department, in promulgating rules to implement this act, shall consider the following as indications of the necessity for alcohol or drug testing:
    (1) No prenatal care;
    (2) Late prenatal care after twenty-four (24) weeks gestation;
    (3) Incomplete prenatal care;
    (4) Abruptio placentae;
    (5) Intrauterine fetal death;
    (6) Preterm labor of no obvious cause;
    (7) Intrauterine growth retardation of no obvious cause;
    (8) Previously known alcohol or drug abuse; or
    (9) Unexplained congenital anomalies.

    (d) The commissioner of health is authorized to adopt rules, using criteria established by the United States department of health and human services as guidelines for modeling the drug and alcohol testing program pursuant to this act, concerning, but not limited to:
    (1) Standards for licensing drug and alcohol testing laboratories and suspension and revocation of the licenses;
    (2) Body specimens and minimum specimen amounts that are appropriate for drug or alcohol testing;
    (3) Methods of analysis and procedures to ensure reliable drug or alcohol testing results, including the use of breathalyzers and standards for initial tests and confirmation tests;
    (4) Minimum cut-off detection levels for alcohol, each drug or metabolites of the drug for the purposes of determining a positive test result;
    (5) Chain-of-custody procedures to ensure proper identification, labeling and handling of specimens tested; and
    (6) Retention, storage and transportation procedures to ensure reliable results on confirmation tests and retests.

    (e) Prior to acting on the proposed rules to implement this chapter, the commissioner shall submit the proposed rules to the house health and human resources and the senate general welfare committees of the general assembly for their review and comment. The committees shall have forty-five (45) days to review the proposed rules and transmit any comment it may have to the commissioner.

    (f) Any woman who tests positive for alcohol or drugs on a test administered pursuant to this chapter shall be referred to treatment for an alcohol-related or drug-related problem. Every physician, surgeon or other person permitted by law to attend a pregnant woman during gestation shall report each woman who refuses to seek treatment for an alcohol-related or drug-related problem or who misses two (2) or more appointments to the department of children’s services. Such reports shall be in a manner specified by the department, either by contacting a local representative of the department or by utilizing the department’s centralized intake procedure, where applicable.

    (g) A health care provider who makes a report of alcohol or drug abuse, as required by subsection (f), shall not be liable in any civil or criminal action that is based solely upon such report.

    (h) Nothing in this section shall be construed to confer any immunity upon a health care provider for a criminal or civil action arising out of the treatment of a woman about whom the report of alcohol or drug abuse was made.

    (i) All information, interviews, reports, statements, memoranda and drug or alcohol test results, written or otherwise, received by the covered employer through a drug or alcohol testing program are confidential communications and may not be used or received in evidence, obtained in discovery or disclosed in any public or private proceedings, except in accordance with this section.

    (j) Laboratories, medical review officers, employee assistance programs, drug or alcohol rehabilitation programs and their agents who receive or have access to information concerning drug or alcohol test results shall keep all information confidential. Release of the information under any other circumstance is authorized solely pursuant to a written consent form signed voluntarily by the person tested, unless the release is compelled by a hearing officer or a court of competent jurisdiction pursuant to an appeal taken under this section, relevant to a legal claim asserted by the employee or is deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. The consent form must contain, at a minimum:
    (1) The name of the person who is authorized to obtain the information;
    (2) The purpose of the disclosure;
    (3) The precise information to be disclosed;
    (4) The duration of the consent; and
    (5) The signature of the person authorizing release of the information.

    (k) Information on drug or alcohol test results for tests administered pursuant to this act shall not be released or used in any criminal proceeding against the woman who was subject to the test. Information released contrary to this section is inadmissible as evidence in the criminal proceeding.

    SECTION 3. For the purpose of promulgating rules and regulations, this act shall take effect upon becoming a law, the public welfare requiring it. For all other purposes this act shall take effect January 1, 2010, the public welfare requiring it.

  28. Jim Hackworth permalink
    April 3, 2009 2:02 pm

    The following is the text of an amendment that will make HB2136. This bill is being proposed and will replace HB-890. It reflects what our original intent was for HB-890. Unfortunately it got off to a bad start due to poor communications with our staff attorney. Senator Marero and I have put HB2136 on notice for next week. It is my hope your readers will review it and send me their comments. I would like to point out that the bill protects women from charges or prosecution when they come forward for help for them and their unborn child..
    Thanks
    Jim Hackworth
    HB2136 (v5 modified 04.02.09)

    AN ACT to amend Tennessee Code Annotated, Title 37,
    Chapter 5 and Title 68, relative to newborn infants.
    BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
    SECTION 1. Tennessee Code Annotated, Title 68, Chapter 5, is amended by adding
    Sections 2 through 3 as a new part thereto.

    SECTION 2. The purpose of this bill is to decrease the exposure of children to alcohol and drugs prior to birth and to avoid adverse consequences of any exposures that do occur by:
    (a) Improving access of pregnant women who abuse alcohol or drugs to effective treatment,
    (b) Ensuring that children who were exposed receive appropriate treatment and follow up,
    (c) Using supportive, non-punitive, and confidential approaches to promote the mother’s ability to care for her child, and
    (d) Ascertaining the extent of the problem of prenatal alcohol and drug exposure in Tennessee.

    SECTION 3.
    (a) The bureau of TennCare and the Department of Health shall work with health care providers to enhance opportunities for women who are pregnant to receive treatment for addiction to alcohol or controlled substances. The bureau of TennCare, the Department of Mental Health and Developmental Disabilities, the Department of Children’s Services and the Department of Health shall all work together to ensure that women who are addicted to alcohol or drugs and who have recently given birth will be referred to the appropriate agencies for any necessary services for themselves and their baby.
    (b) (1) If a health care provider has reason to believe based on a medical assessment of the mother or an infant that the mother used alcohol or a controlled substance for a nonmedical purpose during the pregnancy and that the infant is suffering from withdrawal from neonatal abstinence syndrome, such health care provider shall comply with the clinical standard of care in deciding whether to administer a confirmatory test, what treatment is needed, and what medical follow up is appropriate.
    (b)(2) A health care provider who determines, pursuant to this part, that a newborn infant is suffering from neonatal abstinence syndrome shall notify the department of children’s services. The department shall assess such child to ensure the child is getting adequate and appropriate services for any issues arising from the child’s mother’s abuse of alcohol or controlled substances. The department shall presume that the child should remain with the mother and so shall not intervene to disrupt this relationship in the absence of evidence of actionable abuse or neglect beyond the mother’s use of alcohol or drugs. The Department’s fundamental assumption shall be that most children are better off with their own families than in substitute care and that separation has detrimental effects on both parents and children. Whenever possible, preservation of the family should serve as the framework for services, but in any case, the best interest of the child shall be paramount.

    (b)(3) A health care provider who makes a report of alcohol or drug abuse as required by subsection (b)(2) shall not be liable in any civil or criminal action that is based solely upon such report.
    (c) All hospitals and birthing centers shall report to the Department of Health the number of infants born in their facility who were exposed to alcohol or drugs prenatally.
    (d)(1) All information, interviews, reports, statements, memoranda and drug or alcohol test results, written or otherwise, received through a drug or alcohol testing program are confidential communications and may not be used or received in evidence, obtained in discovery or disclosed in any public or private proceedings, except in accordance with this section.
    (d)(2) Information on drug or alcohol test results for tests administered pursuant to this part shall not be released or used in any criminal proceeding against the mother of the child who was subject to the test. Information released contrary to this section is inadmissible as evidence in a criminal proceeding.
    (d)(3) Laboratories, medical review officers, employee assistance programs, drug or alcohol rehabilitation programs and their agents who receive or have access to information concerning drug or alcohol test results shall keep all information confidential. Release of the information under any other circumstance is authorized solely pursuant to a written consent form signed voluntarily by the parent of the infant who is tested, unless the release is compelled by a hearing officer or a court of competent jurisdiction pursuant to an appeal taken under this section. The consent form must contain, at a minimum:
    (1) The name of the person who is authorized to obtain the information;
    (2) The purpose of the disclosure;
    (3) The precise information to be disclosed;
    (4) The duration of the consent; and
    (5) The signature of the person authorizing release of the information.
    (e) Prior to acting on the proposed rules to implement this chapter, the commissioner shall submit the proposed rules to the health and human resources committee of the House of Representatives and the senate general welfare health and human resources committee for their review and comment. The committees shall have forty-five (45) days to review the proposed rules and transmit any comment it may have to the commissioner.

    SECTION 4. For the purpose of promulgating rules and regulations, this act shall take effect upon becoming a law, the public welfare requiring it. For all other purposes this act shall take effect January 1, 2010, the public welfare requiring it.

    • April 4, 2009 12:31 pm

      On a first read, this seems much fairer and more appropriate than the initial version. I’ll add it to a new post for readers to examine. Thanks very much for the update.

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