Abstract
Importance:
Despite increased initiatives and funding to improve access to evidence-based treatments for opioid use disorder (OUD), including medications for OUD (mOUD), pregnant/postpartum individuals have significant obstacles to accessing these life-saving medications.
Observations:
Current legislation, specifically the Comprehensive Addiction and Recovery Act (CARA), mandates that the Governor of each state has systems in place to identify and address the needs of substance-exposed infants. However, this legislation removed the word “illegal” when defining substance use and left other important words in the law up to each individual state to define. These changes resulted in pregnant/postpartum individuals with OUD who were receiving legally prescribed mOUD, being subject to legal actions. In many states, such notifications result in investigation and punitive actions, which may include the removal of children from the care of postpartum individuals. These state policies have created additional barriers to accessing mOUD for pregnant and/or postpartum individuals. Research has demonstrated that pregnant individuals delay and/or avoid recommended prenatal care or decide to stop taking mOUD altogether, to prevent potential legal and child welfare-related consequences. This situation is problematic as it places individuals at risk of overdose and death and infants at risk of health complications. Importantly, such policies are subject to bias and disproportionately impact individuals of color and those from lower socioeconomic backgrounds.
Conclusions and Relevance:
The need to address and change the criminalization of pregnant/postpartum substance use laws to not penalize individuals adhering to the recommended standard of evidence-based care is urgent. Specific recommendations include: not relying on toxicology testing, reinstating “illegal/non-prescribed” language in legislation, implementing Plans of Safe Care, use of a two “track” reporting system, and federal support for states complying with Child Abuse Prevention and Treatment Act Reauthorization of 2010 (CAPTA) laws, increasing resources to improve outcomes for infants/postpartum individuals with OUD, and additional mandated training to educate key individuals, such as hospital/outpatient clinic providers and child-welfare workers.
Providing Care to Pregnant and Postpartum Individuals with Opioid Use Disorder
With the rise of the opioid crisis in the United States, substantial efforts have been made to reduce barriers to care and increase access to evidence-based treatments, including medications for opioid use disorder ([mOUD]; e.g., buprenorphine, methadone), in order to address the harms and reduce deaths attributed to OUD. 1 For instance, the Comprehensive Addiction and Recovery Act (CARA) was signed into law in 2016. 2 CARA was a significant legislative effort to expand resources, including an increase in funding to improve prevention, treatment, rehabilitation, legal reform, and overdose interventions, with the goal to address overdose deaths and increase access to substance use disorder (SUD) treatment in the United States. 3 However, these efforts have created additional obstacles for subpopulations with OUDs, including pregnant and postpartum individuals.
Across the United States, pregnant and postpartum individuals continue to struggle to obtain adequate evidence-based treatment for OUDs. There has been a substantial increase in overdose deaths among pregnant and postpartum individuals between 2018 and 2021, with the mortality rate more than tripling among individuals 35–44 years old. 4 Such statistics are troublesome, as pregnant individuals face barriers accessing the recommended mOUD, 5 and these barriers are greater among persons of color and individuals in rural areas, who are less likely to have access to such treatments. 6
Implications of the CARA
While CARA expanded resources for the treatment of OUD, CARA also amended the Child Abuse Prevention and Treatment Act Reauthorization of 2010 (CAPTA) which included mandates that the Governor of each state has systems in place for the identification of prenatal substance exposure and to address the needs (e.g., safety planning) of substance-exposed infants. This federal law now required states receiving specific child abuse-related funding from the federal government, to “notify” relevant state agencies (i.e., child protective services [CPS]) regarding newborns “affected by substance abuse”. 7 These notifications (e.g., the number of notifications made) are required to be tracked for annual state data for CAPTA compliance 8 ; however, not every state tracks such data. Notably, CARA removed the word “illegal” from the law and left the application of key clinical definitions in the legislation, including Fetal Alcohol Spectrum Disorder, affected by, substance abuse, SUD, withdrawal, neonatal opioid withdrawal syndrome, monitoring system, child abuse or neglect, up to the individual states. 7 CARA also required plans of safe care to address the needs of both infants and their families/caretakers, as well as increased monitoring of the number of infants identified as being exposed to prenatal substances, those receiving a plan of safe care (POSC), and the types and utilizations of referrals. 7 It is worth noting that, while CARA specifies such plans address health and substance use treatment needs for the pregnant individual and newborn, there is no specific language in CARA to specify the content or requirements of such plans of safe care. Because of this, the requirements of the plans vary depending upon individual state policies, resulting in variations of their potential helpfulness, or adverse consequences.
Implications of Punitive State Policies
However, few states have adopted state legislation that is compliant with the federal regulations specified by CARA. In fact, many states have regulations that are more stringent, with broad applications of the CARA regulations. For example, several states mandate the reporting of positive infant drug tests to child welfare agencies whether or not concerns about maltreatment or safety are present. 7 Such toxicology testing has significant clinical limitations and has been related to negative child welfare outcomes. Toxicology testing often ignores alcohol and tobacco use, which also have significant possible harms for fetuses. 9 –12 In addition, such policies disproportionally impact members of marginalized communities regarding child safety and reporting. For instance, Black parents and their newborns are more likely to have toxicology tests conducted in medical settings and are also more likely to be reported to CPS than their White counterparts. 13 These testing and reporting standards place hospital and clinic staff in the role of policing patients and shift the focus away from providing critical evidence-based treatments.
Across many states, pregnant individuals with OUD who were obtaining evidence-based mOUD, the standard of care treatment, are subject to having relevant authorities, including child welfare agencies, notified of their use of legally prescribed, lifesaving medications. 14,15 Such reports may initiate significant investigations, and bring increased scrutiny to parents, which research has shown may result in increases in foster care placements and low reunification rates. 14,16 Several examples of such punitive practices highlight the vulnerable position of pregnant individuals. Alabama has a “Chemical Endangerment Law,” which specifies that exposing a child to a controlled substance or other chemical/drug is a felony. 17 In addition, Oklahoma defines substance use in the context of child endangerment as “addiction to and misuse of alcohol and controlled dangerous substances, including prescription medication that may impact the person responsible for the child’s ability to provide child safety. Substance use alone does not directly determine child abuse or neglect; however, it is a factor considered when safety determinations and intervention strategies are considered.” While this policy states that this alone does not determine the use of prescribed mOUD as child abuse or neglect, it does imply that this should be taken into consideration when a child’s safety is evaluated. 18
Pregnant individuals utilizing mOUD are forced to wrestle with the stigma and guilt associated with utilizing these medications, including concern about neonatal opioid withdrawal syndrome and the health of their infants. 19 These concerns are likely amplified when considering the physical and emotional consequences of the criminalization of these medications, which may drastically impact the delivery of evidence-based care. For example, a recent article appearing in the New York Times Magazine, 20 highlighted the devastating impact such criminalization has on new parents by detailing several firsthand accounts of mothers whose use of prescribed mOUD leads to CPS involvement and legal consequences. Such criminalization forces pregnant or postpartum individuals who are adhering to the prescribed mOUD to make difficult decisions between such potential legal consequences, which include being reported to CPS, and obtaining appropriate health care for themselves and their children. Research has demonstrated that many pregnant individuals report delaying recommended prenatal care or avoiding it altogether to prevent potential legal or child welfare consequences. 21 Because of this action, many report deciding to stop taking prescribed mOUD and risk relapse or overdose, as well as increased potential consequences for infants, including risking infectious disease transmission and preterm birth associated with ongoing opioid use. 22 This situation is challenging as pregnant individuals receiving mOUD, in states with punitive policies in place, have a decreased likelihood of receiving adequate and appropriate prenatal care, 23 which benefits both the pregnant individual and fetus.
These punitive state laws have further exacerbated problems accessing mOUD among pregnant populations, placing individuals and their newborns at increased, additional risk (see Table 1 for examples). Following the implementation of punitive prenatal substance use policies, there was a decrease in SUD treatment, including psychosocial services and methadone prescriptions, as well as a 45% increase in overdoses among commercially insured individuals residing in states implementing criminalizing policies. 26 Such policies directly contradict the recommended standard of care for pregnant individuals with OUDs. Over 18 professional organizations including the American College of Obstetricians and Gynecologists, 27 and the American Academy of Pediatrics, 28 (see Table 2), advocate for the use of mOUD among pregnant persons as the recommended standard of care. Overwhelmingly, these guidelines, recommendations, and position statements call for the utilization of evidence-based treatment, including mOUD, for OUD during pregnancy and the postpartum period, as well as a call to reduce treatment barriers and stigma related to treatment access for pregnant and postpartum individuals. This includes ensuring access to mOUD for “pregnant, postpartum, and parenting” persons via improved enforcement of laws and policies. 29 These recommendations arise from research showing that such penalizing policies discourage pregnant individuals from seeking adequate prenatal and SUD treatment during pregnancy, 30,31 leading to poor pregnancy outcomes, 32 including increased rates of neonatal opioid withdrawal syndrome. 33
Examples of Child Abuse Laws and Mandated Testing Laws
Relevant Medical and Public Health Organizations’ Guidelines and/or Position Statements on Treatment of Substance Use Disorders, Including Opioid Use
Joint Statement made by American College of Obstetricians and Gynecologists, American Psychiatric Association, American Academy of Family Physicians, American College of Physicians, and American Osteopathic Association.
Joint Opinion made by American College of Obstetricians and Gynecologists, American Society of Addiction Medicine.
Policy Statement expresses support for evidence-based, and cost-effective substance use treatment for pregnant women without explicit mention of MOUD.
It is important to note that penalizing state legislation disproportionately affects individuals of color and individuals with lower socioeconomic status. Overall, pregnant individuals from marginalized communities and vulnerable socioeconomic groups experience disproportionately elevated rates of arrest, prosecution, and child removal related to substance use disclosure. 21 Among states with criminalizing prenatal substance use policies, non-Hispanic Black children have a lower chance of being reunited with their parents following separation than their White counterparts. 14 This is especially concerning as the loss of child custody is associated with increased substance use and overdose risk, as well as decreased treatment participation (see Vassoler and Wimmer, 2021 for review). 34 –37 It is essential to consider the potential for bias in how such policies are applied in practice.
Recommendations
Accordingly, there is an urgent need to address and change criminalizing prenatal substance policies, while enacting laws that support pregnant and postpartum individuals with OUD. We offer the following list of recommendations and highlighted several states that have begun to make important changes in policy below (See Table 3):
Summary of Key Recommendations with State Examples
—: no current state examples to authors’ knowledge.
CAPTA, Child Abuse Prevention and Treatment Act Reauthorization of 2010; OUD, opioid use disorder.
Recommendation 1: Avoid toxicology tests in reporting
In general, it is recommended that reporting systems move away from reliance on drug testing. This recommendation is congruent with guidance from the American College of Obstetricians and Gynecologists, which opposes mandated drug testing.
38
Specific recommendations have been suggested by Wakefield and colleagues 2023,
13
which include: Using a universal verbal screening to offer support and treatment versus reliance upon toxicology testing; Utilizing toxicology testing only if clinically indicated; Obtaining written informed consent for all toxicology testing of pregnant patients and/or newborns, when deemed clinically necessary.
13
California is one example of a state approaching such recommendations; California legislation states that a child abuse/neglect report cannot be based solely on a positive toxicology report; safety concerns or concerns related to neglect in the context of substance use must also be present. In addition, such reports should be made to welfare services and/or probation departments, as opposed to law enforcement agencies. 39 In alignment with this legislation, it is recommended that states abolish laws that define child abuse and neglect solely based on a positive toxicology screen or prenatal substance exposure.
The National Center on Substance Abuse and Child Welfare (NCSACW) advises standardized questionnaire-based screening and assessment tools for all families to reduce stigma and bias while identifying parents needing referrals to appropriate medical professionals. Implementing universal, standardized screening for all families to determine the need for subsequent assessment will also reduce the overidentification of marginalized communities. 40 Recommended question-based assessment tools include: the Alcohol, Smoking, and Substance Involvement Screening Test (ASSIST), Screening, Brief Intervention, and Referral to Treatment (SBIRT) or the UNCOPE (a brief, six question screening to evaluate if an individual needs substance use assessment). Screenings are suggested to also include questions regarding concurrent mental health concerns to facilitate needs-based referrals. 40 Such question-based assessment tools are also beneficial as they can be easily implemented in resource-limited environments and provide valuable information to begin a conversation to assess and make appropriate referrals.
Recommendation 2: Reinstating “illegal/non-prescribed” in legislation
It is recommended that the federal legislation be amended to reinstate language regarding “illegal” or “non-prescribed” medication, to clarify that CAPTA notification should not be required in the context of a monitored, prescription medication (i.e., mOUD) in the absence of other concerns related to child neglect or safety.
For example, Washington recently passed legislation that created an online referral portal, the HELP ME GROW online referral system, in which referrals to the Department of Children and Families (DCF) occur if an infant has “a positive toxicology for an illegal or non-prescribed substance” or is “experiencing neonatal abstinence syndrome/neonatal opioid withdrawal syndrome due to prenatal exposure to illegal, non-prescribed or misused medication.” Similarly, recent legislation passed in Massachusetts decouples the use of mOUD and a mandated report of abuse/neglect. 41 This distinction allows for families utilizing the legal, prescribed standard of care (i.e., mOUD) to receive much needed social and community services without a child welfare report when safety concerns are absent. 42 Furthermore, the reinstatement of such language allows for important distinctions to be made when filing either a report and/or notification.
Another example includes Vermont’s CAPTA notification guidance. The policy states that a report to DCF’s child protection hotline line should be made if: (1) “substance use is a concern for child safety”; (2) “use of an illegal substance or non-prescribed prescription medication or misuse of prescription medication during the third trimester of pregnancy”; (3) “newborn has a positive confirmed toxicology result for an illegal substance or non-prescribed medication,” among other instances. 43 However, in highlighting these examples, legislation continues to use toxicology screening to identify substance use and this does not address the problems with such methodologies described above.
Recommendation 3: Use CAPTA POSC
While the HELP ME GROW online referral system in Washington, is one adaptation of the POSC, additional examples warrant mention. Consistent with CAPTA, Connecticut guidance describes the POSC as a “mom’s plan,” in which the pregnant/postpartum individual chooses a qualified professional with whom to collaborate when creating the POSC. This process also includes the involvement of partners and other relevant family support. Connecticut’s guidance regarding the POSC encourages consideration of possible components relevant to the newborn/family’s needs, such as behavioral health counseling, a safe sleep plan, housing/financial support, and pediatric care. 44 In addition, the POSC in Connecticut can be created prior to delivery, 44 and thus be created by the providers prescribing mOUD.
Another example of POSC implementation includes New Mexico, in which a notification to CPS will result in the creation of a POSC, which is followed by referral to a “Medicaid managed care organization” or other relevant service for subsequent coordination and monitoring. 45,46 Implementation of language to support specialized, comprehensive treatment delivery, utilizing all available resources would also be beneficial in future legislation surrounding POSC. Specifically, legislative language to establish specialized units to carry out and monitor POSC would be beneficial. Currently, Tennessee uses POSC coordinators to help develop plans that are appropriately tailored to the needs of the family and monitor referrals. 47
In addition, in Vermont should a newborn test positive for prescribed medications, including mOUD, a POSC, which includes current supports, referrals for services, and follow-up care, is implemented prior to hospital discharge, and is shared with the infant’s pediatrician and the family. 48 Having an independent, and anonymized system to collect data and complete notifications that is independent of CPS, 13 but meeting current CARA requirements, as is currently present in Connecticut, would complement Vermont’s current system.
Recommendation 4: Use a two “track” reporting system
The NCSACW highlights the significant importance of distinguishing between a CPS report and a notification, as this decoupling is postulated to increase both provider and parent engagement in the implementation of POSC. 45 Nebraska’s Department of Health and Human Services has implemented two “tracks” for reporting instances when an infant is exposed to a substance. In Nebraska, if a health care provider identifies that an infant is unsafe or at risk for abuse/neglect, that provider is mandated to place a report with the Nebraska Child Abuse and Neglect Hotline. Alternatively, in the absence of such safety concerns, the second “track” or pathway, requires the filing of an anonymous form to CPS to indicate that a mother is: (1) engaged in the use of prescription mOUD under the supervision of a licensed physician, (2) stable in treatment for another SUD, (3) the infant is at risk for Fetal Alcohol Spectrum Disorder, or (4) there is no concern about abuse/neglect within ongoing substance use or misuse. 45 The language included in Nebraska’s legislation allows for the anonymous notification of use of mOUD under a physician’s care without reporting an instance of abuse/neglect. The NCSACW notes that utilization of these two “track” systems fosters important collaborations and information sharing between health care providers, public health departments, and CPS which ultimately enhances care. 45
Recommendation 5: Federal support of compliant CAPTA laws
Specifically, it would be beneficial for federal legislation to support individual states updating CAPTA laws to be compliant with federal law, in order to receive CAPTA funding. As of 2019, only two states and territories have adopted state legislation that complies with federal regulations specified by CARA. In addition, 40 states/territories continue to utilize “report” or “refer” in their notification guidance despite this being inconsistent with CAPTA terminology. 7
Recommendation 6: Adequately fund CPS
CPS is generally regarded as an extension of legal entities and is regulated by various laws, policies, funding mechanisms, and agencies. 49 However, CPS is uniquely positioned to not only promote safety and support vulnerable families but also monitor child safety and well-being, while reporting to such entities. 50 Due to this dual role, CPS is often not in a position to address the needs of the communities and individuals it serves. 50,51 CPS is rarely able to offer adequate funding for critical needs to improve outcomes for newborns and postpartum individuals with OUD, including resources to access food, housing, treatment services, and other resources for parents. Specifically, federal incentives for states providing early intervention and in-home services that enhance infant maternal bonding, prioritize keeping families together, and support healthy infant development would likely improve parental treatment and childhood outcomes. It may be advantageous to use funding from the National Opioid Settlement, 52 to support such recommendations.
Recommendation 7: Educating key stakeholders in evidence-based treatment of OUD
It is critical to continue to train hospital and outpatient clinical staff, as well as child welfare workers adequately to understand the current standards of care for OUD. It would be beneficial to recommend a semi-annual, mandatory education that discusses best practices regarding working with pregnant and postpartum individuals with OUD. Such education should include understanding the substance use continuum from use to use disorder, risk factors, and protective factors for SUD, as well as reviewing evidenced-based treatments and the standard of practice medications used for OUD.
Summary
In summary, pregnant and postpartum individuals with OUD need support and treatment, not punishment. As a medical community, we should strive to advocate for and provide pregnant and postpartum individuals with the highest level of evidence-based treatment, devoid of barriers to access the standard of care for OUD. Specifically, it is vital that legislation decouple the use of prescribed, evidence-based treatments such as mOUD with reports of abuse/neglect. Suggestions to improve access and reduce stigma and legal consequences of mOUD among pregnant and postpartum individuals include: moving away from the reliance on toxicology testing to identify prenatal substance use in reporting, reinstating the “illegal/non-prescribed” description in legislation, and utilizing a two “track” reporting system. In addition, the implementation of POSC provides comprehensive treatment services, increases compliance with CAPTA laws, improves CPS’ ability to support families through providing housing, food and goods that promote child safety, and trains key stakeholders in the recommended standard of care for OUD will undoubtedly improve the health and outcomes for pregnant and postpartum individuals and their newborns.
Footnotes
Authors’ Contributions
M.R.P., D.D.P., G.C., C.M.W., S.A.M., H.E.J., and G.C.: Concept and design. M.R.P., D.D.P., and S.A.M.: Drafting of the article. M.R.P., D.D.P., G.C., C.M.W., S.A.M., H.E.J., and G.C.: Critical review of the article for important intellectual content. S.A.M., H.E.J., M.R.P., and D.D.P.: Obtained funding. Not Applicable: acquisition, analysis, interpretation of data, statistical analysis, administrative, technical, or material support, supervision.
Disclaimer
The opinions expressed in this article are the authors’ own and do not reflect the views of the National Institutes of Health, Department of Health and Human Services, or the United States government.
Author Disclosure Statement
The authors report no conflict of interest.
Funding Information
National Institute on Alcohol Abuse and Alcoholism U54AA027989 (S.A.M.), P01AA027473 (S.A.M.); National Institute on Drug Abuse R01DA04786 (H.E.J.), T32 DA007238 (D.D.P.); Veteran’s Affairs VISN1 CDA (M.R.P.). The funder had no role in the preparation, review, or approval of the article; and decision to submit the article for publication.