New York City’s Commission on Human Rights has launched an investigation into whether hospitals are targeting Black and Latino pregnant mothers and newborns for drug testing, an inquiry that will assess whether they are being subject to racial bias and discrimination.
“Achieving racial justice requires systemic change across all aspects of daily life, not least of all in the medical system,” Deputy Commissioner Sapna Raj of the Commission on Human Rights said in a press statement released Monday.
The commission’s investigation, prompted by advocates’ concerns, seeks “to root out any discriminatory policies or practices and prevent further harm to these communities,” Raj stated. “The manifestation of anti-Black racism in medical settings is a well-known and entrenched problem.”
According to Monday’s public statement, the investigation will examine whether three private hospitals’ policies and practices for drug testing pregnant patients and newborns violate the city’s human rights law. The law prohibits discrimination based on race, gender and other protected categories in housing, employment and public services such as hospitals.
The three hospitals under investigation are Montefiore Medical Center, Mount Sinai Health System and New York-Presbyterian, which have facilities across four of the city’s five boroughs.
The Imprint sought comment by phone and email from the three hospitals under investigation but received no response by late Monday.
City Councilmember Carlina Rivera, chair of the council’s Hospitals Committee, praised the inquiry and called on the state Department of Health to step in and require “full explanation and consent” for drug testing. Rivera said the state also needs to restrict “improper referrals by medical staff” to the state’s Central Register of Child Abuse and Maltreatment hotline, referred to as the SCR.
“At a time when hospitals should be working to solve the maternal mortality crisis facing black and brown mothers in this country, these discriminatory and improper drug tests and SCR referrals, often without full patient consent or understanding, have led to babies being torn from their mothers and caused significant harm,” Rivera emailed through a spokesperson.
Rivera, a Democrat who represents the Lower East Side, held public hearings on hospital drug testing last year and said she is disheartened to learn that problems may still exist.
“Hospital representatives said things would change,” she wrote. “Clearly at too many hospitals they haven’t.”
Advocates for new and expecting mothers, low-income communities, and child welfare-involved families have long expressed concern that hospitals use a single positive drug test to report parents to the maltreatment hotline. Such a test on its own does not require a call to the register, according to the Commission on Human Rights, but those reports, if accepted, can trigger a child protection investigation by child welfare officials with the power to remove infants from their parents.
There were roughly 7,800 children in New York City foster care as of late August, according to city data. The Administration for Children’s Services does not regularly report the number of child welfare investigations that separate newborns from their mothers following hospital drug tests.
This summer, though, the Movement for Family Power advocacy group published detailed data on the issue in the Bronx, acquired through public records request to Children’s Services, covering odd-numbered years from 2011 to 2017.
In those years, the number of child welfare investigations in the Bronx involving parental drug or alcohol use fluctuated from 2,909 to 3,422, or roughly 20% of all investigations. In 2017, 330 investigations involved prenatal drug use, specifically, and 228 of those were found to be “credible,” elevating the risk of foster care removal. The vast majority of those corroborated investigations — 85% — were identified as African-American or Hispanic. It is unknown how many of those were reported by hospitals.
Last month, the City Council held a public hearing with the city’s child welfare commissioner, David Hansell, that examined the stark overrepresentation of Black and Latino families in the child welfare system.
During the hearing, one parent from the Bronx described being mistreated by hospital staff after her child was injured in a fall.
“This experience has humbled me and served as a stark reminder of my blackness,” Taylor Thomas said during the City Council’s General Welfare Committee meeting. “I was not treated as a patient’s mother, but as a criminal.”
Advocates have long struggled to find ways to fight the disproportionate treatment they say pregnant and postnatal parents experience in hospitals. In 2017, 60 infants younger than 1 month were placed in foster care with an allegation of drug use involved, according to the Bronx data acquired by the Movement for Family Power.
“Drug testing of pregnant people and newborns has long been implemented in racially discriminatory ways that put Black and Latinx families at higher risk for destructive state policing and punishment,” said Dorothy Roberts, professor of Africana studies, law, and sociology at the University of Pennsylvania, in a statement included in the Commission on Human Rights’ news release. “This investigation is an important step toward abolishing structural racism in health care and child welfare and creating more just and equitable approaches to meeting people’s needs.”
The commission’s announcement of its investigation is a brief seven paragraphs, but beneath it are quotes from Roberts and 21 other leading scholars, lawyers and activists decrying the practice of separating newborns from their mothers.
The commission requested data from the hospitals earlier this year and is encouraging individuals who believe they’ve been impacted by this type of discrimination to contact its members, according to a spokesperson.
Investigations can last from roughly a year to 18 months, or longer, and can result in out-of-court settlements involving policy, practice or training changes. In the most egregious and willful violations of the New York City Human Rights Law, they can also result in financial damages for individuals or a maximum of $250,000 per violation in civil penalties paid to the city. A small percentage of the commission’s cases go to trial in the city’s Office of Administrative Trials and Hearings.
In its Monday announcement, the human rights commission* describes racial bias in medical settings as well-documented, saying it “leads to disproportionately high negative health outcomes for Black and Latinx patients, especially people receiving obstetric care.”
In New York City, the maternal mortality rate of Black women is 12 times higher than that of white women, the release stated, noting studies that Black women are far more likely than white women to be drug tested before or immediately following childbirth despite similar rates of drug use in both populations.
“These two factors,” the commission reported, “can lead to mistrust of medical providers, fear of medical settings, and elevated stress levels, as well as act as a deterrent in seeking necessary medical treatment.”
Correction: Nov. 17, 2020. A previous version of this article said the human rights commissioners described racial bias in medical settings as well-documented. The commission’s investigations are the purview of only the Deputy Commissioner of the Law Enforcement Bureau at the Commission.
