Testimony of the NYCLU Before The NYC Council Committee on Consumer Affairs Regarding Enforcement of Local Law 17 and the Regulation of Pregnancy Service Centers
Testimony of the New York Civil Liberties Union Before The New York City Council Committee on Consumer Affairs Regarding Enforcement of Local Law 17 of 2011 and the Regulation of Pregnancy Service Centers
November 15, 2017
The New York Civil Liberties Union (NYCLU) is grateful for the opportunity to provide testimony before the New York City Council’s Committee on Consumer Affairs in support of enforcing Local Law 17 of 2011 (LL17). This law requires Pregnancy Service Centers (PSCs) to disclose that they are not medical facilities, with the objective of preventing PSCs from engaging in deceptive practices, and ensuring that individuals are not deterred, or otherwise prevented, from receiving time-sensitive health care services.
The NYCLU, the state affiliate of the American Civil Liberties Union, is a not-for-profit, nonpartisan organization with eight offices across the state and over 160,000 members and supporters. The NYCLU’s mission is to defend and promote the fundamental principles, rights, and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. This includes the rights to privacy, personal autonomy, and equality that are the foundation of reproductive freedom, and the rights to free speech, assembly, and religious liberty embodied in the First Amendment. In light of our long history of vigorously defending and balancing these sometimes competing constitutional concerns, as well as our ongoing support of enforcing Local Law 17, the NYCLU is uniquely situated to provide testimony on this matter.
Background on Local Law 17: Preventing Fraud and Promoting Access to Time-Sensitive Health Care Services
The City of New York has a compelling interest in promoting public health and protecting individuals from medical fraud. CPCs undermine this interest. Although not licensed as medical facilities, PSCs give the impression that they are operating as such. Many PSCs have used deceptive and inflammatory material to dissuade women from seeking time-sensitive reproductive health care such as abortion and contraception. This practice presents a grave risk of harm to women who seek medical services or information from a PSC. Women may rely on inaccurate information. In some instances, they may mistakenly believe that they have received medical care, when they have not. As a consequence, these women may delay – or never receive – time-sensitive health care from a licensed medical practitioner.
To address these concerns, the New York City Council passed Local Law 17 of 2011, which requires PSCs to disclose to consumers whether or not a licensed medical provider is on staff and providing, or supervising the provision of, its services. Critical pieces of this law, including consumer confidentiality protections and an oral and written disclosure that PSCs do not have a medical provider supervising the provision of care, were upheld by the United States Court of Appeals for the Second Circuit. On December 10, 2015, the Department of Consumer Affairs proposed and published a rule addressing the law’s requirements. After a public hearing held on January 11, 2016, a final rule was adopted and became effective on May 27, 2016.
Enforcement Recommendations: Creation of a Navigable and Effective Complaint Mechanism; Training for Inspectors with the Department of Consumer Affairs; and Transparent Enforcement Procedures
To prevent consumers from relying on misinformation and delaying time-sensitive reproductive health care services, the NYCLU supports strong enforcement of Local Law 17 and makes the following recommendations to improve enforcement by the Department of Consumer Affairs (DCA).
First, the NYCLU recommends that DCA create and maintain an easily accessible and navigable complaint process to report suspected violations of Local Law 17. Since the law went in to effect, the NYCLU has received reports regarding the difficulty of making a complaint against a PSC – both in relation to how to file a complaint and the complaint procedure itself. This is in part due to the nature of PSCs: the facilities subject to Local Law 17 are unique when compared to other types of medical facilities that are subject to consumer protections that DCA is charged with enforcing. A distinct complaint form tailored to the specific requirements of the law would facilitate the submission of information necessary to identify entities that are covered by the law as well as those entities that are failing to comply with the law’s disclosure requirements. For example, for a facility to be considered a PSC and be covered by the law it must either “offer obstetric ultrasounds, obstetric sonograms or prenatal care” or have “the appearance of a licensed medical facility” based on various factors within the law. A complaint form that elicited this information would facilitate enforcement.
In addition, the NYCLU has received reports that facilities may be attempting to evade the law by contracting with licensed medical professionals. To help DCA address this problem, the complaint form should ask whether or not a consumer interacted with a licensed medical provider and the basis for this belief. The DCA would then be able to investigate whether there is a licensed medical provider providing or supervising the provision of all medical services at the facility or whether the facility is trying to evade this requirement in Local Law 17.
Second, the NYCLU recommends that DCA inspectors and 311 operators receive training regarding the unique requirements of Local Law 17. Those responsible for inspecting PSCs and for informing the public about these facilities must know how to identify a PSC; they must understand the policy objectives the law seeks to achieve, as well as the legal requirements that PSCs must comply with regarding advertising, written and oral disclosures, and consumer confidentiality.
Third, the NYCLU calls upon DCA to ensure its enforcement processes are transparent and that complaints are investigated and resolved in a timely manner. Since implementation of the law on May 27, 2016, dozens of complaints have been lodged through 311 as well as DCA’s website against PSCs that may be violating the law. However, information on the status of complaints is often not provided, nor is information available regarding remedial actions taken, if any are taken at all.
In conclusion, the NYCLU supports the City in its efforts to safeguard women’s access to reproductive health care services and to prevent delays in medical care. In furtherance of these goals the NYCLU calls on the City Council to ensure robust enforcement of those provisions in Local Law 17 that require PSCs to make written and oral disclosures regarding their services, and to abide by restrictions on the release of consumers’ health and personal information.
 It was this type of misrepresentation and deception that gave rise to litigation, which led ultimately to the enactment of LL17. See Evergreen Ass'n, Inc. v. City of New York, 740 F.3d 233 (2d Cir. 2014), cert. denied, 135 S. Ct. 435 (2014).
 N.Y.C. Admin. Code § 20-816.
 N.Y.C. Admin. Code § 20-817.
 Evergreen Ass'n, Inc. v. City of New York, 740 F.3d 233 (2d Cir. 2014), cert. denied, 135 S. Ct. 435 (2014).
 6 R.C.N.Y. §§ 5-266–5-271, available at: http://rules.cityofnewyork.us/content/pregnancy-services-centers-disclosures.
 N.Y.C. Admin. Code § 20-815; 6 R.C.N.Y. § 5-271. To determine whether a facility has the appearance of a licensed medical facility, the DCA considers whether the facility: 1) offers pregnancy testing and/or pregnancy diagnosis; 2) has staff or volunteers who wear medical attire or uniforms; 3) contains one or more examination tables; 4) contains a private or semi-private room or area containing medical supplies and/or medical instruments; 5) has staff or volunteers who collect health insurance information from clients; and 6) is located on the same premises as a licensed medical facility or provider or shares facility space with a licensed medical provider. If two or more of these factors are present, then the facility is assumed to be a PSC and falls within LL17’s requirements. Further, a PSC shall not include a facility that is licensed by the state of New York or the United States government to provide medical or pharmaceutical services or where a licensed medical provider is present to directly provide or directly supervise the provision of all services that are provided at the facility.
 DCA is in the best position to collect information regarding when a facility does not constitute a PSC under LL17 because a licensed medical professional is providing or supervising all services at the PSC. Information gathered regarding deceptive behaviors by licensed medical professionals and their agents would enable DCA to facilitate other consumer protection measures and/or notify NYC or state agencies where appropriate.