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Nebraska Providers: NDHHS Requests for Maternal and Infant Drug Testing and Notification

on Monday, 21 September 2015 in Health Law Advisory: Zachary J. Buxton, Editor

Recently, many health care providers have received letters from the Nebraska Department of Health and Human Services, Division of Children and Family Services (“CFS”) regarding expectant mothers who CFS believes to be drug users. The letter includes the mother’s name and due date and asks the provider to notify CFS when the baby is born and to test the mother and baby for the presence of drugs. The inclination is to cooperate fully with CFS, act according to CFS’s direction, and disclose the information to CFS. However, there are important legal issues with respect to the CFS requests and a provider’s ability to respond, including: (1) limitations on disclosing information to law enforcement under the HIPAA Privacy Rule; and (2) the absence of legal support for testing mothers and infants solely at the request of CFS.

1. Reporting to CFS

There is no legal support for gratuitous reporting (absent a subpoena or court order) merely because a child abuse or neglect case is under investigation or because CFS has requested that it be notified of the infant’s delivery and/or test results. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) permits disclosures of protected health information (“PHI”) to law enforcement authorities, without patient authorization and without providing the patient an opportunity to object, only under limited circumstances, including: (a) reporting of certain types of wounds or other physical injuries; (b) pursuant to a court order, subpoena, or summons; (c) pursuant to an investigative demand, administrative request, or administrative subpoena; and (d) in response to a law enforcement official’s request for the purpose of identifying or locating a suspect, fugitive, material witness, or missing person. Therefore, if CFS issued a valid subpoena or informed the provider that a fugitive was located in the provider’s service area, the provider may disclose PHI in response to the subpoena or to locate the fugitive.

In general, unless the provider has initially suspected or reported child abuse or neglect, Nebraska law and consequently the HIPAA Privacy Rule do not permit disclosures of PHI to third parties who assert a neglect or abuse situation. All reporting must be only as permitted or required by the Nebraska statute. There is no specific authority under the Nebraska child abuse reporting laws that allows providers to respond to general law enforcement inquiries or demands for information about infants whose mothers are believed or known to be chemically dependent. Under HIPAA, a covered entity may disclose PHI to an appropriate government authority authorized by law to receive reports of child abuse or neglect. The Nebraska child abuse reporting laws are very specific and do not cover an unborn child. Therefore, before the infant is delivered, if an expectant mother tests positive for the presence of drugs, providers do not have authority to report suspected child about abuse of the unborn infant. However, after the baby is delivered, if a clinically-indicated drug test of an infant shows the presence of an illegal substance, then the provider must make a decision about whether or not to make a report to CFS under the child abuse and neglect reporting statute. This decision must be based on the provider’s judgment about whether the child is at risk due to the apparent drug use of the parent.

2. Drug Testing of Mothers and Infants

The CFS letter directs providers to drug test both the mother and the newborn infant. There are constitutional protections that prohibit testing mothers or infants without consent or proper legal authority. The request of CFS does not constitute such authority. Clinical indications for drug testing may arise from observing the mother or the baby, or may be based on information provided by the mother concerning prenatal care. A test performed for non-clinical purposes (for example, only at CFS’ request) would likely exceed the scope of the consent for routine care given at admission, and the unauthorized testing could form the basis for an allegation of battery under state tort law. Around the country there have been a number of constitutional and civil rights actions brought against health care providers for performing drug testing without consent and in the absence of medical need for the test results. Therefore, drug testing of mothers or infants should be predicated on medical need. Again, once a baby is delivered and information is obtained from the test, mandatory reporters must determine whether the drug test results form the basis for a reasonable suspicion of child abuse or neglect requiring reporting to CFS or law enforcement. Testing for reasons other than medical need may unnecessarily expose health care providers to state law claims for battery or invasion of privacy and federal constitutional and civil rights claims.

Recommendations

It is important that health care organizations know how to respond to the requests from CFS regarding maternal drug abuse. Providers should not perform maternal or infant drug testing based solely on CFS’s request, and should only disclose PHI regarding suspected child abuse of the infant only after the infant is born, and in accordance with the Nebraska child abuse and neglect reporting laws. Providers should educate those involved in the care of mothers and infants (including physicians, midlevel practitioners, nurses, and social workers) about the permissible methods for obtaining and disclosing information related to child abuse investigations.

Michael W. Chase

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500