Minnesota Legislature
HF 2095
1st Engrossment - 93rd Legislature (2023 - 2024) Posted on 03/13/2023 04:42pm
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A bill for an act
relating to child protection; modifying terminology for pregnant persons; modifying
standards for chemical dependency in pregnancy and prenatal substance use;
specifying that prenatal substance use does not itself constitute neglect or
maltreatment; modifying prenatal substance use reporting requirements; establishing
informed consent requirements for parent and newborn infant toxicology tests and
drug or alcohol screenings; amending Minnesota Statutes 2022, sections 253B.02,
subdivision 2; 260E.03, subdivision 15; 260E.31, subdivision 1; 260E.32,
subdivisions 1, 2, by adding a subdivision.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
Minnesota Statutes 2022, section 253B.02, subdivision 2, is amended to read:
Subd. 2.
Chemically dependent person.
"Chemically dependent person" means any
person (a) determined as being incapable of self-management or management of personal
affairs by reason of the habitual and excessive use of alcohol, drugs, or other mind-altering
substances; and (b) whose recent conduct as a result of habitual and excessive use of alcohol,
drugs, or other mind-altering substances poses a substantial likelihood of physical harm to
self or others as demonstrated by (i) a recent attempt or threat to physically harm self or
others, (ii) evidence of recent serious physical problems, or (iii) a failure to obtain necessary
food, clothing, shelter, or medical care. "Chemically dependent person" also means a pregnant
deleted text begin womandeleted text end new text begin personnew text end who has engaged during the pregnancy in deleted text begin habitual or excessivedeleted text end new text begin chronic and
severenew text end use, for a nonmedical purpose, of any of the following substances or their derivatives:
opium, cocaine, heroin, phencyclidine, methamphetamine, amphetamine,
tetrahydrocannabinol, or alcohol.
Sec. 2.
Minnesota Statutes 2022, section 260E.03, subdivision 15, is amended to read:
Subd. 15.
Neglect.
(a) "Neglect" means the commission or omission of any of the acts
specified under clauses (1) to (8), other than by accidental means:
(1) failure by a person responsible for a child's care to supply a child with necessary
food, clothing, shelter, health, medical, or other care required for the child's physical or
mental health when reasonably able to do so;
(2) failure to protect a child from conditions or actions that seriously endanger the child's
physical or mental health when reasonably able to do so, including a growth delay, which
may be referred to as a failure to thrive, that has been diagnosed by a physician and is due
to parental neglect;
(3) failure to provide for necessary supervision or child care arrangements appropriate
for a child after considering factors as the child's age, mental ability, physical condition,
length of absence, or environment, when the child is unable to care for the child's own basic
needs or safety, or the basic needs or safety of another child in their care;
(4) failure to ensure that the child is educated as defined in sections 120A.22 and
260C.163, subdivision 11, which does not include a parent's refusal to provide the parent's
child with sympathomimetic medications, consistent with section 125A.091, subdivision
5;
(5) deleted text begin prenatal exposure todeleted text end new text begin chronic and severe use ofnew text end a deleted text begin controlleddeleted text end substancedeleted text begin , as defineddeleted text end new text begin
listednew text end in section 253B.02, subdivision 2, deleted text begin useddeleted text end by deleted text begin the motherdeleted text end new text begin a pregnant personnew text end for a
nonmedical purpose, deleted text begin as evidenced by withdrawal symptoms in the child at birth, results ofdeleted text end new text begin
that results in harm to a newborn child's health, safety, or development, as determined by
a physician, advanced practice registered nurse, or physician assistant involved in the child's
care.new text end Anew text begin positivenew text end toxicology test deleted text begin performed on the mother at delivery or the child at birth,
medical effects or developmental delays during the child's first year of life that medically
indicate prenatal exposure to a controlled substance, or the presence of a fetal alcohol
spectrum disorderdeleted text end new text begin for a substance listed in section 253B.02, subdivision 2; a pregnant
person's participation in a substance use disorder treatment program during pregnancy; or
withdrawal symptoms exhibited by a pregnant person shall not alone constitute neglect for
purposes of screening a maltreatment report or making a maltreatment determinationnew text end ;
(6) medical neglect, as defined in section 260C.007, subdivision 6, clause (5);
(7) chronic and severe use of alcohol or a controlled substance by a person responsible
for the child's care that adversely affects the child's basic needs and safety; or
(8) emotional harm from a pattern of behavior that contributes to impaired emotional
functioning of the child which may be demonstrated by a substantial and observable effect
in the child's behavior, emotional response, or cognition that is not within the normal range
for the child's age and stage of development, with due regard to the child's culture.
(b) Nothing in this chapter shall be construed to mean that a child is neglected solely
because the child's parent, guardian, or other person responsible for the child's care in good
faith selects and depends upon spiritual means or prayer for treatment or care of disease or
remedial care of the child in lieu of medical care.
(c) This chapter does not impose upon persons not otherwise legally responsible for
providing a child with necessary food, clothing, shelter, education, or medical care a duty
to provide that care.
Sec. 3.
Minnesota Statutes 2022, section 260E.31, subdivision 1, is amended to read:
Subdivision 1.
deleted text begin Reportsdeleted text end new text begin Noticenew text end required.
(a) Except as provided in paragraph (b), a
person mandated to report under this chapter shall deleted text begin immediately report todeleted text end new text begin notifynew text end the local
welfare agency if the person knows or has reason to believe that a deleted text begin womandeleted text end new text begin personnew text end is pregnant
and has used a deleted text begin controlleddeleted text end substance new text begin listed in section 253B.02, subdivision 2, new text end for a nonmedical
purpose during the pregnancydeleted text begin , including but not limited to tetrahydrocannabinol, or has
consumed alcoholic beverages during the pregnancydeleted text end in any way that is deleted text begin habitual or excessivedeleted text end new text begin
chronic and severenew text end .new text begin Notice provided under this subdivision must not be construed as a report
of child maltreatment without evidence of harm to the infant's health, safety, or development,
as determined by a physician, advanced practice registered nurse, or physician assistant
involved in the child's care.
new text end
(b) A deleted text begin health care professionaldeleted text end new text begin physician, advanced practice registered nurse, physician
assistant,new text end or a social service professional who is mandated to report under this chapter is
exempt from deleted text begin reportingdeleted text end new text begin providing notice to the local welfare agencynew text end under paragraph (a) if
the professional is providing or collaborating with other professionals to provide the deleted text begin womandeleted text end new text begin
personnew text end with prenatal care, postpartum care, or other health care services, including care of
the deleted text begin woman'sdeleted text end new text begin person'snew text end infant. If the deleted text begin womandeleted text end new text begin pregnant personnew text end does not continue to receive
regular prenatal or postpartum care, after the deleted text begin woman's health care professionaldeleted text end new text begin pregnant
person's physician, advanced practice registered nurse, or physician assistantnew text end has made
attempts to contact the deleted text begin womandeleted text end new text begin pregnant personnew text end , then the deleted text begin professionaldeleted text end new text begin physician, advanced
practice registered nurse, or physician assistantnew text end is required to deleted text begin reportdeleted text end new text begin provide noticenew text end under
paragraph (a).
(c) Any person may deleted text begin make a voluntary reportdeleted text end new text begin voluntarily provide notice under this
subdivision new text end if the person knows or has reason to believe that a deleted text begin womandeleted text end new text begin personnew text end is pregnant
and has used a deleted text begin controlleddeleted text end substance new text begin listed in section 253B.02, subdivision 2, new text end for a nonmedical
purpose during the pregnancydeleted text begin , including but not limited to tetrahydrocannabinol, or has
consumed alcoholic beverages during the pregnancydeleted text end in any way that is deleted text begin habitual or excessivedeleted text end new text begin
chronic and severenew text end .new text begin Notice provided under this subdivision must not be construed as a report
of child maltreatment without evidence of harm to the infant's health, safety, or development,
as determined by a physician, advanced practice registered nurse, or physician assistant
involved in the child's care.
new text end
(d) deleted text begin Andeleted text end Oral deleted text begin report shalldeleted text end new text begin notice must new text end be made deleted text begin immediatelydeleted text end by telephone or otherwise.
deleted text begin Andeleted text end Oral deleted text begin report madedeleted text end new text begin notice providednew text end by a person required to deleted text begin report shalldeleted text end new text begin provide notice
mustnew text end be followed within 72 hours, exclusive of weekends and holidays, by deleted text begin a reportdeleted text end new text begin noticenew text end
in writing to the local welfare agency. Any deleted text begin report shalldeleted text end new text begin notice mustnew text end be of sufficient content
to identify the pregnant woman, the nature and extent of the use, if known, and the name
and address of the deleted text begin reporterdeleted text end new text begin person providing the noticenew text end . The local welfare agency shall
accept deleted text begin a reportdeleted text end new text begin noticenew text end made under paragraph (c) notwithstanding refusal by a deleted text begin voluntary
reporterdeleted text end new text begin notifying personnew text end to provide the deleted text begin reporter'sdeleted text end new text begin person'snew text end name or address as long as the
deleted text begin reportdeleted text end new text begin noticenew text end is otherwise sufficient.
(e) For purposes of this section, "prenatal care" means the comprehensive package of
medical and psychological support provided throughout the pregnancy.
new text begin
(f) Nothing under this subdivision is to be construed to prevent a person from reporting
to the local welfare agency if the person knows or has reason to believe that a child has
been maltreated based on other criteria or information.
new text end
Sec. 4.
Minnesota Statutes 2022, section 260E.32, subdivision 1, is amended to read:
Subdivision 1.
deleted text begin Test; reportdeleted text end new text begin Pregnant personsnew text end .
deleted text begin (a)deleted text end A physician deleted text begin shalldeleted text end new text begin , advanced practice
registered nurse, or physician assistant maynew text end administer a toxicology test to a pregnant deleted text begin womandeleted text end new text begin
personnew text end under the physician'snew text begin , advanced practice registered nurse's, or physician assistant'snew text end
care deleted text begin or to a woman under the physician's care within eight hours after delivery to determine
whether there is evidence that she has ingested a controlled substance if the woman has
obstetrical complications that are a medical indication of possible use of a controlled
substance for a nonmedical purpose.deleted text end new text begin for the purpose of providing medical treatment. A
positive toxicology test for a substance listed in section 253B.02, subdivision 2, in pregnancy
must not form the sole or primary basis for providing notice to the local welfare agency
under section 260E.31.
new text end
deleted text begin
(b) If the test results are positive, the physician shall report the results under section
260E.31. A negative test result does not eliminate the obligation to report under section
260E.31 if other evidence gives the physician reason to believe the patient has used a
controlled substance for a nonmedical purpose.
deleted text end
Sec. 5.
Minnesota Statutes 2022, section 260E.32, is amended by adding a subdivision to
read:
new text begin Subd. 1a. new text end
new text begin Informed consent for toxicology tests. new text end
new text begin
(a) The requirements under this
subdivision apply only to juvenile protection proceedings under chapter 260C and the
reporting of maltreatment of minors under chapter 260E. This subdivision does not apply
to toxicology testing ordered by Tribal or state courts.
new text end
new text begin
(b) Toxicology tests may be used by a physician, advanced practice registered nurse, or
physician assistant for the purpose of providing medical treatment in pregnancy or for a
newborn infant. A physician, advanced practice registered nurse, or physician assistant must
inform a newborn infant's parent or legal guardian of the medical reasons for performing a
toxicology test for the newborn infant prior to administering a toxicology test to the newborn
infant.
new text end
new text begin
(c) No physician, advanced practice registered nurse, or physician assistant shall perform
a toxicology test during pregnancy or at the time of birth unless the patient to be tested gives
prior written and oral informed consent specific to the toxicology test and the performance
of the toxicology test is within the scope of medical care being provided to the patient.
new text end
new text begin
(d) Written and oral informed consent to a toxicology test or drug or alcohol screening
must occur at the time of testing, in language understandable to the patient undergoing the
test or screening, under circumstances that provide the patient sufficient opportunity to
consider whether or not to authorize the toxicology test or drug or alcohol screening and
minimize the possibility of coercion or undue influence. Informed consent to a toxicology
test or alcohol or drug screening must consist of oral and written authorization that is dated,
signed, and includes the following:
new text end
new text begin
(1) a statement explaining that consenting to a toxicology test or drug or alcohol screening
is voluntary and requires written and oral informed consent, except under conditions
described in paragraph (e);
new text end
new text begin
(2) a statement that testing or screening positive for drugs or alcohol could have legal
consequences, including but not limited to a report to child protective services, and the
patient may want to consult with legal counsel before or after consenting to a toxicology
test or drug or alcohol screening;
new text end
new text begin
(3) a statement explaining the extent of confidentiality of the test or screening results;
new text end
new text begin
(4) a statement of the medical purpose of the test or screening; and
new text end
new text begin
(5) a general description of the test or screening.
new text end
new text begin
(e) A toxicology test or drug or alcohol screening may be performed without a patient's
informed consent when, in the physician's, advanced practice registered nurse's, or physician
assistant's judgment, an emergency exists and the patient is in immediate need of medical
attention and an attempt to secure consent would result in delay of treatment that could
increase the risk to the patient's life or health. If a toxicology test or drug or alcohol screening
is performed in emergency circumstances under this paragraph, the test or screening results
must be discussed with the patient in language understandable to the patient, and must
consist of oral and written notification that is dated, signed, and includes the following:
new text end
new text begin
(1) a statement that testing or screening positive for drugs or alcohol could have legal
consequences, including but not limited to a potential report to child protective services,
and that the patient may wish to consult with legal counsel;
new text end
new text begin
(2) a statement in the patient's medical record with a description of the emergency
circumstances that necessitated a toxicology test or drug or alcohol screening performed
without the patient's informed consent; and
new text end
new text begin
(3) a statement explaining the extent of confidentiality of the test or screening results.
new text end
new text begin
(f) No physician, advanced practice registered nurse, or physician assistant shall refuse
to treat a pregnant patient because the patient has refused to consent to a toxicology test or
drug or alcohol screening.
new text end
Sec. 6.
Minnesota Statutes 2022, section 260E.32, subdivision 2, is amended to read:
Subd. 2.
Newborns.
deleted text begin (a)deleted text end A physician deleted text begin shalldeleted text end new text begin , advanced practice registered nurse, or
physician assistant maynew text end administer to deleted text begin eachdeleted text end new text begin anew text end newborn infant born under the physician'snew text begin ,
advanced practice registered nurse's, or physician assistant'snew text end care a toxicology test deleted text begin to
determine whether there is evidence of prenatal exposure to a controlled substance if the
physician has reason to believe, based on a medical assessment of the mother or the infant,
that the mother used a controlled substance for a nonmedical purpose during pregnancydeleted text end new text begin for
the purpose of providing medical treatment. A positive toxicology test for a substance listed
in section 253B.02, subdivision 2, in an infant must not form the sole or primary basis for
providing notice to the local welfare agency under section 260E.31new text end .
deleted text begin
(b) If the test results are positive, the physician shall report the results as neglect under
section 260E.03. A negative test result does not eliminate the obligation to report under this
chapter if other medical evidence of prenatal exposure to a controlled substance is present.
deleted text end
Sec. 7. new text begin REVISOR INSTRUCTION.
new text end
new text begin
(a) The revisor of statutes shall amend the headnote for Minnesota Statutes, section
260E.31, to read "NOTICE OF PRENATAL EXPOSURE TO CONTROLLED
SUBSTANCES."
new text end
new text begin
(b) The revisor of statutes shall amend the headnote for Minnesota Statutes, section
260E.32, to read "TOXICOLOGY TESTS AND INFORMED CONSENT."
new text end