States, hospital systems are trying less punitive drug tests for pregnant women and newborns

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

Federal law requires medical professionals to notify child protective services when a baby has been affected by the mother’s substance use, including alcohol use. However, federal rules, updated in 2016 in response to the opioid epidemic, emphasize that substance abuse 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 from hospital to hospital. As the opioid crisis continues, some of the nation’s leading hospital systems and a handful of states have implemented or are considering less punitive measures as long as the baby is not in immediate danger.

Driving the shift is research showing that Black pregnant women are more likely to be drug tested and longstanding 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 death, according to the federal Centers for Disease Control and Prevention.

“The data on bias in child welfare reporting related to substance use in 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 tracks testing policies across the country.

What has changed, Roberts says, is a growing awareness of the dangers of over-testing and over-reporting to child welfare agencies.

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

But hospitals and clinicians are often confused about the laws in their own states, 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 happens in reality is always harsher and stricter than what the law prescribes. Moreover, it always affects indigenous, black and other families of color more than anything else,” said Puccio, who has worked as a registered nurse in perinatal and neonatal intensive care for 20 years.

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

As long as the baby is not in immediate danger, the hospital will now only perform toxicology tests with the written consent of the pregnant patient. Positive results will only be reported to child protection if doctors determine that the baby is suffering or in immediate danger.

Mass General Brigham also will move away from considering a baby’s exposure to drugs or alcohol — including a mother’s medication treatment for opioid addiction — as automatic grounds for reporting abuse or neglect. This is to combat the stigma that pregnant patients often report experiencing during such medication treatment, which leaves them fearful of health care facilities.

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

Dr. Allison Bryant Mantha, an obstetrician-gynecologist and associate chief of health equity at Mass General Brigham, said one of the priorities of the policy change was to reduce the space for bias.

“When you give people a lot of insight, sometimes that’s where bias creeps in,” she said. “Sometimes you achieve equality by minimizing variability.”

Legislation has been introduced in the Massachusetts Senate that would protect parents from being monitored by child protective services or criminal prosecution if their baby is exposed to a substance in the womb.

Other states have already adopted such policies. Since 2019, Connecticut has required health care providers to protect the identity of parents when reporting a positive test to child protective services, and instead offer supportive services. That year, New Mexico also passed a law that exempts substance abuse from the status of abuse or neglect per se.

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

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

“I’ve had hospitals that have policies that are stricter than state law,” Westmoreland said, “and I’ve addressed that directly by educating them about state law.”

2024 States Newsroom. Distributed by Tribune Content Agency, LLC.