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States and hospital systems seek less punitive drug testing of pregnant women and newborns • Colorado Newsline

This story originally appeared on Stateline.

Some states and hospital systems have updated their policies on drug testing of pregnant women and newborns to better support patients' treatment and recovery from substance use disorders and to address racial disparities in testing and reporting.

Federal law requires health care professionals to notify child protective services if an infant has been adversely affected by the mother's substance use, including alcohol use. However, federal regulations – updated in 2016 in response to the opioid epidemic – emphasize that a substance use disorder alone does not constitute child abuse and require states to develop their own “safe care plans” to promote the long-term health of the newborn and mother.

But federal law doesn't define “affected,” and testing and reporting policies vary from state to state and even hospital to hospital. As the opioid crisis continues, some of the nation's major hospital systems and a handful of states have taken or are considering less punitive measures as long as the baby isn't in immediate danger.

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One reason for this change is research showing that pregnant black women are more likely to be drug tested, as well as long-standing disparities in the way child welfare agencies treat black and indigenous families. Mental illness and substance abuse are also considered leading causes of maternal deaths, according to the U.S. Centers for Disease Control and Prevention.

“The data on bias in child welfare reporting related to substance use by pregnant/birthing women has been available for decades,” Sarah Roberts, a legal epidemiologist and professor at the University of California, San Francisco, wrote in an email to Stateline. Roberts tracks testing policies across the country.

What has changed, Roberts said, is a growing awareness of the dangers posed by excessive testing and excessive reporting to child welfare services.

Only two states, Minnesota and North Dakota, have laws requiring drug testing of pregnant patients under certain circumstances, such as when there are complications during childbirth that indicate possible drug or alcohol use, according to an analysis by If/When/How, a reproductive justice nonprofit. And only four states (Louisiana, Minnesota, North Dakota and Wisconsin) require drug testing of newborns under certain circumstances.

Data on biased child protection reporting related to substance use by pregnant/childbearing persons have been available for decades.

– Sarah Roberts, legal epidemiologist and professor at the University of California, San Francisco

But hospitals and doctors are often unclear about their own state's laws, says Joelle Puccio, director of education at the Academy of Perinatal Harm Reduction, which provides information to pregnant women and parents who use drugs.

“What's actually happening is more and more penalties and surveillance than the law actually allows, and it's hitting indigenous, black and other families of color harder and harder,” says Puccio, who has worked as a registered nurse in perinatal and neonatal intensive care for two decades.

Mass General Brigham in Boston, one of the nation's most respected hospital systems, announced changes to its perinatal reporting policy in April. The changes are part of a broader effort to eliminate practices that may “inadvertently perpetuate structural racism.”

Unless the baby is in immediate danger, the hospital will now only conduct toxicology tests with the pregnant patient's written consent and will only report positive results to child protective services if doctors determine the baby is suffering or in immediate danger. Mass General Brigham will also move away from automatically considering a baby's exposure to drugs or alcohol – including the mother's drug treatment for opioid use disorder – as grounds for reporting abuse or neglect. This is intended to combat the stigma that pregnant patients often face during such drug treatment, which causes them to fear medical settings.

“The biggest barrier for people entering treatment was the concern that if they took buprenorphine or methadone, a life-saving treatment for their opioid use disorder, they would have an open case with the Department of Children and Families,” said Dr. Davida Schiff, director of perinatal and family-based substance use disorder treatment at Mass General Brigham. “We know that buprenorphine and methadone reduce the risk of overdose.”

Dr. Allison Bryant Mantha, an ob-gyn and deputy director of health equity at Mass General Brigham, said a priority of the policy change is to reduce the room for bias.

“When you give people a lot of discretion, sometimes bias creeps in,” she said. “Sometimes minimizing variability leads to fairness.”

A bill has been introduced in the Massachusetts Senate to protect parents from surveillance by child protective services or criminal prosecution if their child has come into contact with addictive substances in the womb.

Other states have already passed such measures. Since 2019, Connecticut has required health care providers to protect the identity of parents when reporting a positive test to child protective services and to offer supportive services instead. That same year, New Mexico also passed a law that no longer considers substance use disorders to be abuse or neglect in and of themselves.

And in 2020, Colorado updated its definition of child abuse and neglect to exclude cases where a newborn tests positive for drug or alcohol abuse and the mother is in medication-assisted treatment.

But hospital staff are still confused about the state's laws, says Britt Westmoreland, a doula and addiction treatment specialist at the University of Colorado College of Nursing.

“I have experienced hospitals whose policies were stricter than state law,” Westmoreland said, “and I addressed that directly by educating them about state law.”

Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) nonprofit organization. Stateline maintains its editorial independence. If you have any questions, please contact Editor Scott S. Greenberger: [email protected]. Follow Stateline on Facebook and X.

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