New York hospital sues attorney general over drug-testing investigation

NEW YORK — State Attorney General Tish James has quietly teamed up with a special counsel brought over from the American Civil Liberties Union to investigate allegations of hospitals secretly drug testing pregnant patients — and now she’s the one being taken to court.

Garnet Health Medical Center filed a petition last month asking a county judge to quash a subpoena by James’ office for the medical records of thousands of its obstetrics patients over the last six years, arguing the subpoena was overly broad and “appears to be motivated by political interests.”

The Orange County-based nonprofit health system called the subpoena a “fishing expedition” motivated by the “legislative agenda” of women’s rights organizations involved in discrimination cases filed in 2021 by two former obstetrics patients who were secretly drug tested, according to the petition filed in Orange County Supreme Court. Both patients were admitted to Garnet Health Medical Center in Middletown before it changed its toxicology screening policy in October 2021.

The case puts the high-profile attorney general in the unusual position of having to publicly defend her office’s investigatory procedures amid an active probe that would have otherwise unfolded behind closed doors.

James’ office declined to comment. A Garnet spokesperson did not respond to requests for comment.

James’ office informed the health system last October that it was investigating information it had received about Garnet performing medically unnecessary drug tests on pregnant and birthing patients without their knowledge or consent, then reporting results to Child Protective Services, court records show.

Such testing subjected patients to illegal sex discrimination under state law, the attorney general’s office wrote in the October letter, which requested a swath of internal records about the hospital’s drug-testing policies and practices. The letter was signed by Galen Sherwin, a former New York Civil Liberties Union attorney who is serving as James’ special counsel for reproductive justice.

Civil rights groups say New York hospitals have routinely and arbitrarily conducted drug tests on pregnant and postpartum patients — as well as their newborn infants — without their knowledge and without any indication of drug use. In some cases, hospitals subsequently reported positive results to the state’s central registry for suspected child abuse and maltreatment, triggering an investigation by child-protective services and resulting in newborns being separated from their parents.

The practice recently prompted several gender and racial discrimination lawsuits, from Brooklyn to Buffalo.

Representatives from the attorney general’s office told Garnet Health that their probe was based on two discrimination complaints filed with the state Division of Human Rights on behalf of patients who delivered at the hospital in December 2020 and March 2021, the health system said in its petition. The complaints were filed by the New York Civil Liberties Union and National Advocates for Pregnant Women and are scheduled for hearings before an administrative law judge later this year.

In the discrimination complaints, the two former Garnet patients claim the hospital tested their urine samples for drugs without their consent and without any medical reason or justification. Both patients were barred from breastfeeding their babies and subjected to “highly invasive” child abuse investigations after their tests returned a “presumptive positive” result for opiates, according to their complaints. Both tests were later determined to be false positives triggered by poppy seeds they had recently eaten, the complaints state.

In November 2021, the state instructed health care providers to only perform drug testing on pregnant patients “when medically indicated” and to obtain informed consent. The state also stated that substance use alone is not evidence of child abuse or neglect.

However, hospitals were left to develop their own policies and procedures, and advocates for a statewide informed-consent requirement allege they have not been consistently followed or enforced.

Garnet's lawyers have spent months pressing James' office to close or narrow the drug-testing investigation, court records show. Garnet eventually sent the attorney general’s office nearly 100 pages of records “as a show of good faith” but is arguing the subpoena for thousands of patients’ records is “unreasonable, unduly burdensome and oppressive” and that the hospital would be “ethically, legally and administratively compromised” because the information is protected under federal privacy law, according to its petition.

Garnet is now asking a judge to quash the subpoena or, alternatively, narrow its scope to only include records from February 2021 through October 2021. That October was when Garnet issued a new policy removing urine drug screens from the list of default tests performed on obstetric patients, court records show. Garnet providers may still order a drug test based on their assessment of the patient but must obtain verbal consent, and a presumptive positive result does not automatically generate a Child Protective Services referral or prevent mothers from breastfeeding, the policy states.

All New York hospitals may soon have to follow suit: Gov. Kathy Hochul’s pending budget proposal includes a requirement that pregnant and postpartum individuals give informed consent to be tested for alcohol, cannabis or other drugs.

CORRECTION: The article has been updated to clarify that the special counsel was brought over from the American Civil Liberties Union, not the New York Civil Liberties Union.
CORRECTION: A previous version of this story misstated when the case was first reported on. It was first reported on by New York Law Journal.