WASHINGTON, DC - Today, Representatives Jerrold Nadler, Joyce Beatty and Nikema Williams led Representatives Barragán, Brown, DeGette, Schakowsky, and Watson Coleman in a letter to the Center for Medicare and Medicaid Services (CMS) requesting CMS include guidance on informed consent prior to drug testing of pregnant patients in the proposed obstetric care Medicare Conditions of Participation (CoPs) included in the proposed CY2025 Hospital Outpatient Prospective Payment System (OPPS).

The risk of arrest, prosecution, or family separation following a positive toxicology test makes patients afraid to access health and medical services during pregnancy, putting them and their fetus at an increased risk of harm. While the Supreme Court determined in 2001 that diagnostic tests on pregnant patients without the patient’s consent constitutes an unreasonable search, drug testing of pregnant patients without their consent is still a relatively common practice.

The members write: "As members of Congress committed to improving the health and safety of our pregnant, birthing, and postpartum constituents, we write to commend the Centers for Medicare & Medicaid Services (CMS) for promulgating a thoughtfully considered proposed rule that establishes obstetric care Medicare Conditions of Participation (CoPs) for hospitals and critical access hospitals (CAHs). As part of our efforts to advance the health and safety of all patients, we encourage CMS to incorporate guidance into the final rule that reduces roadblocks for pregnant patients with substance use disorder (SUD) seeking prenatal care.

SUD is a leading cause of maternal death and can also have severe health consequences for infants. However, research has shown that increasing prenatal care for pregnant people with SUD can improve both maternal health outcomes and birth outcomes."

In an effort to improve maternal and fetal health outcomes, the letter requests that CMS:

1. Provide guidance for providers on how to obtain informed consent for drug testing during the prenatal period and during labor and delivery.
2. Prohibit drug testing of people during pregnancy and labor and delivery without the patient’s informed consent.
3. Enhance provider training requirements regarding SUD during pregnancy.

The members continued: "CMS should include guidance for medical providers in the obstetric care CoPs on obtaining informed consent for drug toxicology testing during the prenatal period and during labor and delivery. The risk of arrest, prosecution, or family separation following a positive toxicology test makes patients afraid to access health and medical services during pregnancy, putting them and their fetus at an increased risk of harm.

Maternal toxicology testing often takes the form of a verbal screen or urine test to monitor for conditions such as diabetes or preeclampsia. However, many pregnant patients are not informed that the urine tests can also be used to screen for substance use. Additionally, doctors have reported that because urine tests are regularly provided in prenatal care, patients are not given an option to refuse urine drug testing... 

...This high occurrence of drug testing of people during pregnancy and labor and delivery without informed consent is concerning, as experts warn that nonconsensual drug testing can undermine trust between patients and providers. In fact, research found that the most common strategy that pregnant patients with SUD employ to avoid their provider detecting their substance use is to skip medical visits or avoid prenatal care altogether...

....Ensuring that pregnant patients are aware of all potential ramifications that could result from any medical test in advance of a patient consenting to that test will assuage fears and encourage patients to seek essential prenatal care. Therefore, CMS should incorporate guidance into the obstetric care CoPs that specifically prohibits drug testing of pregnant, birthing, and postpartum patients without their informed consent. CMS should ensure that any updated guidance related to informed consent and drug testing of pregnant patients is not redundant with or in conflict with current requirements mandated by existing state or federal policy."

The full letter can be found here. 

###