States and hospital systems are trying less stringent drug testing for pregnant women and newborns • Michigan Advance

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

Federal law requires health care professionals to notify child protective services if an infant is affected by the mother's substance use, including alcohol consumption. 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 long-term care – Long-term health of the newborn and mother.

But federal law does not 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 taking less punitive measures as long as the baby is not in immediate danger.

Impetus for change is research showing that Black pregnant women are more likely to be drug tested, as well as long-standing disparities in the way Black and Indigenous families are treated by child welfare agencies. Mental illness and substance use have also emerged as leading causes of maternal deaths, according to the federal Centers for Disease Control and Prevention.

“Data on bias in reporting on child well-being related to substance use by pregnant/birthing people has existed for decades,” Sarah Roberts, a legal epidemiologist and professor at the University of California, San Francisco, wrote in an email to Stateline. Roberts is tracking testing policies across the country.

What has changed, Roberts said, is a growing awareness of the harms associated with over-testing and over-reporting to child protective authorities.

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

But hospitals and clinicians are often confused about their own states' laws, said Joelle Puccio, director of education at the Academy of Perinatal Harm Reduction, which provides information for pregnant women and parents who use drugs.

“What is actually happening is more and more punitive, more surveillance than required by law, and it is increasingly affecting Indigenous, Black and other families of color,” said Puccio, who has worked as a registered nurse in perinatal and perinatal surgery for two decades in the intensive care unit working for newborns.

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

Provided that the baby is not in imminent danger, the hospital will only conduct toxicology tests with the written consent of the pregnant patient and will report positive results to child protection authorities only if doctors determine that the baby is suffering or in imminent danger. Mass General Brigham will also move away from considering a baby's exposure to drugs or alcohol — including the mother's medication treatment for opioid use disorder — as an automatic reason for reporting abuse or neglect. This is intended to counteract the stigmatization that pregnant patients often face during such drug treatment and which causes them to fear health care.

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

Dr. Allison Bryant Mantha, a gynecologist and deputy chief health equity officer at Mass General Brigham, said a priority of the policy change is to reduce the scope for bias.

“When you give people a lot of leeway, sometimes prejudice creeps in,” she said. “Sometimes minimizing variability leads to equity.”

A bill aimed at protecting parents from scrutiny by child protective services or prosecution if their infant was exposed to a substance in utero has passed in the Massachusetts Senate.

Other states have already approved such policies. Since 2019, Connecticut has directed health care providers to conceal parents' identities when reporting a positive test to child welfare authorities and instead provide supportive services. This year, New Mexico also passed a law that no longer considers substance use disorders solely as abuse or neglect.

And in 2020, Colorado updated its definition of child abuse and neglect to exclude cases in which a newborn tests positive for substance or alcohol exposure and the mother is receiving medication treatment.

But hospital staff still express confusion about state laws, said Britt Westmoreland, a doula and addiction recovery specialist at the University of Colorado College of Nursing.

“I have had hospitals whose policies were more punitive than state law,” Westmoreland said, “and I addressed that head-on by educating them about state law.”

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