New York City moved this week to curb hospital drug testing of new and expecting mothers, a widespread and controversial practice that can lead to newborns being placed in foster care at perhaps the most delicate stage of life.
Studies suggest that Black women are more likely than white women to be drug tested before or immediately following childbirth, despite similar rates of drug use, and they are more likely to be deemed unfit parents, losing custody of their babies.
On Monday, the city’s Human Rights Commission indicated these disparities might be a result of unlawful practices and announced it would investigate racial bias in private hospitals’ use of toxicology tests on Black and Latina women and babies. A day later, the Gothamist news website reported on a new policy in the city’s public hospital system, finalized in September, that requires mothers’ written consent to be tested for drugs.
Underscoring the significance of these moves, the city’s child welfare and health agencies issued joint guidance last week stating that positive toxicology tests alone do not warrant reports to child welfare authorities.
“It is the policy and practice of NYC Health + Hospitals to treat Substance Use Disorders (SUD) as medical conditions, not moral problems,” reads a policy dated Sept. 9 from Mitchell Katz, the president and CEO of New York City’s Health and Hospitals Corp. In the memo, Katz stated that the city’s 11 public hospitals now need written informed consent for toxicology testing during pregnancy.
The policy outlines criteria for when to recommend a toxicology test and establishes the universal use of a “verbal screening tool” for alcohol and substance use disorders with pregnant women.
The public hospitals’ new policy does not affect the city’s privately run hospitals systems. Three of those systems — Montefiore, New York-Presbyterian and Mount Sinai — are now the subject of the racial bias investigation by the New York City Commission on Human Rights, which investigates discrimination in the workplace, housing and public services. These investigations, which can last more than a year, typically produce settlements involving policy or practice changes. In rare instances, fines of up to $250,000 for each violation of the law are imposed.
Its current inquiry centers on the practice of testing nursing infants at birth or their mothers. If policies change as a result, it could have far-reaching implications for the city’s most marginalized families, some of whom are losing their children to foster care based on positive tests for marijuana use, parent advocates say.
One Bronx mother who spoke to The Imprint described how the hospital where she delivered her baby girl didn’t explain why they were testing her daughter, and she didn’t question it.
Marlena, who declined to share her last name for fear of retribution from the child welfare system, said she had smoked marijuana for pain management while recovering from a difficult surgery and living in a homeless shelter. She didn’t want it to appear she had anything to hide when asked about it at the hospital.
After being discharged, Marlena found out her baby had tested positive for marijuana, she said. And that’s when she said child welfare workers required her to leave her home and the baby with the father, or lose her to foster care. Despite the new Health and Hospitals’ policy, the family’s case could have still ended up in court because it involved testing of the baby.
“The doctor told me this happens all the time,” said Marlena, who with the help of her lawyer was quickly granted permission to return home. “People abuse their authority if they know they aren’t going to be challenged.”
Last year, the Administration for Children’s Services conducted child maltreatment investigations involving nearly 74,000 children, 87% of whom were identified as “Black/African-American” or “Latinx/Hispanic.” Agency figures show both groups are overrepresented in substantiated child abuse and neglect investigations, court-ordered supervision cases and referrals to foster care prevention programs, while white and Asian or Pacific Islander children are underrepresented.
Black children are the only group overrepresented in foster care placements. While just 23% of the city’s child population, they comprised almost 56% of the 8,603 children in the system last year.
There are no publicly available figures showing how many cases involved positive toxicology tests of pregnant women, new mothers or infants. But medical and mental health professionals made more than 10% of the hotline calls that prompted child abuse investigations between July and September, city data show.
Although those professionals are required by law to report suspected child abuse or neglect, the Administration for Children’s Services made clear last week that the results of drug tests alone do not warrant a hotline call.
“A positive toxicology result for a parent or a newborn, by itself, does not constitute reasonable suspicion of child abuse or maltreatment, and thus does not necessitate a report,” reads the memo from the Administration for Children’s Services and the New York City Department of Health and Mental Hygiene.
A spokesperson for Children’s Services said via email that the new guidance aims “to reduce unnecessary and inappropriate child welfare involvement, especially for families of color.”
The spokesperson, Marisa Kaufman, went on to state: “The bottom line is that reports to the State child abuse hotline should only be made when there is a reasonable concern about the child’s safety, and that there are other routes to helping families access services they may need.”
Advocates were heartened by the recent developments in drug testing of mothers but expressed alarm about what was not being addressed: permission to test babies like Marlena’s daughter.
“What has been missing from the narrative in both the reporting on this and social media is what’s missing from the policy. It is silent on testing newborns – and that is a critical silence,” said Miriam Mack, policy counsel for the Bronx Defenders’s family defense practice. “If you ask a lot of parents, that’s a greater harm. It’s one thing to do something to me without my consent, but to do it to my child, without me knowing? The child has just been born and is in such a fragile state.”
The tragic outcome, she added, is parents being fearful of seeking medical care and not wanting to be honest with their medical providers.
At a recent council hearing, the city’s child welfare agency leadership described a litany of efforts designed to reduce racial disproportionality in foster care. But Andrew White, deputy commissioner for policy, planning and measurement said, the most concerning disproportionality “by far” was at the front end of the system, where mandated reporters like teachers and doctors call the child protection hotline.
“That’s not to take any responsibility away from us,” he added, “because there are also disparities at every step of the system that we need to address.”