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Proposed Legislation on Pregnant Women & Drug Testing in Tennessee Revised

April 4, 2009

In February, I posted about a bill proposed in the Tennessee legislature that began thusly:

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…shall be tested for alcohol and drugs in order to encourage them to seek immediate treatment for an alcohol-related or drug-related problem.

It included language that would have forced drug testing on women with tragic complications in wanted pregnancies, women who didn’t adhere to some standard of “adequate” prenatal care, women who were known to have in the past used drugs or alcohol. I had more problems with this proposed legislation than you can shake a stick at.

Yesterday, I got a comment on one of those original posts from Jim Hackworth (apparently), the sponsor of the House version of the original bills. It says:

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.
Jim Hackworth
HB2136 (v5 modified 04.02.09)

I’m re-posting the full text of the bill, according to Hackworth’s comment on the revised version, [HB 2136 by Hackworth (SB 2095 by *Marrero B)] below the jump. On a first pass reading of the bill summary, it seems much fairer, more responsible, and less problematic than the originals, but it’s not exactly like what is currently available online as the text of HB2136, and I would love your responses to this. I’m going to bold some sections that I specifically think are improvements OR I would specifically like your responses to.

AN ACT to amend Tennessee Code Annotated, Title 37,
Chapter 5 and Title 68, relative to newborn infants.
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.

(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.

3 Comments leave one →
  1. Blue Sumner Daze permalink
    April 4, 2009 5:54 pm

    Do they not require mandatory “diaper testing” in Tennessee? In many states they do, and a baby whose test is hot for drugs rates an automatic referral to children’s services. That doesn’t mean automatic removal from the home, but it does mean a close personal relatiionship with social services. As it should.


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