SUBSTANCEAFFECTED INFANTS

Additional Guidance 

Would Help States 

Better Implement 

Protections for 

Children

Report to the Ranking Member, 

Subcommittee on Children and 

Families, Committee on Health, 

Education, Labor, and Pensions, 

U.S. Senate

January 2018

GAO-18-196

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-18-196, a report to the

Ranking Member, Subcommittee on Children 

and Families, Committee on Health, 

Education, Labor, and Pensions, U.S. Senate

January 2018

SUBSTANCE-AFFECTED INFANTS

Additional Guidance Would Help States Better 

Implement Protections for Children

What GAO Found

All states reported adopting, to varying degrees, policies and procedures 

regarding health care providers notifying child protective services (CPS) about 

infants affected by opioids or other substances. Under the Child Abuse 

Prevention and Treatment Act (CAPTA), as amended, governors are required to 

provide assurances that the states have laws or programs that include policies 

and procedures to address the needs of infants affected by prenatal substance 

use. This is to include health care providers notifying CPS of substance-affected 

infants. In response to GAO’s survey, 42 states reported having policies and 

procedures that require health care providers to notify CPS about substanceaffected infants and 8 states reported having policies that encourage notification. 

The remaining 1 state has a policy requiring health care providers to assess the 

needs of mothers and infants and if they conclude that infants are at risk for 

abuse or neglect, CPS is notified.

In response to GAO’s survey, 49 states reported that their CPS agency has 

policies to develop a plan of safe care; 2 reported not having such a requirement.

Under CAPTA, states are required to develop a plan of safe care for substanceaffected infants. Although not defined in law, a plan of safe care generally entails 

an assessment of the family’s situation and a plan for connecting families to 

appropriate services to stabilize the family and ensure the child’s safety and wellbeing. States reported that plans typically address the infant’s safety needs, 

immediate medical needs, and the caregiver’s substance use treatment needs.

However, officials in the 3 states GAO visited noted challenges, including 

uncertainty about what to include in plans and the level of intervention needed 

for infants at low risk of abuse or neglect.

The Department of Health and Human Services (HHS) has provided technical 

assistance and guidance to states to implement these CAPTA requirements. 

Most states reported in GAO’s survey that additional guidance and assistance 

would be very or extremely helpful for addressing their challenges. Nevertheless, 

HHS officials told GAO that the agency does not anticipate issuing additional 

written guidance, but that states can access technical assistance through their 

regional offices and the National Center on Substance Abuse and Child 

Welfare—a resource center funded by HHS. However, of the 37 states that 

reported on the helpfulness of the assistance they have received, 19 said it was 

only moderately helpful to not helpful. States offered suggestions for improving 

the assistance, such as developing substance abuse training materials for staff 

and holding video conferences with other states to share information. In October 

2017, HHS officials explained that some states have submitted plans that include 

details on how they are addressing the CAPTA requirements. HHS officials 

reported that some of the plans submitted to date indicated that states are not 

meeting the requirements and those states have been asked to develop program 

improvement plans. Without more specific guidance and assistance to enhance 

states’ understanding of CAPTA requirements and better address known 

challenges such as the ones described in this report, states may miss an 

opportunity to provide more effective protections and services for the children and 

families most in need.

View GAO-18-196. For more information, 

contact Kathryn Larin at (202) 512-7215 or 

larink@gao.gov

Why GAO Did This Study

Under CAPTA, states perform a range 

of prevention activities, including 

addressing the needs of infants born 

with prenatal drug exposure. The 

number of children under the age of 1 

entering foster care increased by about 

15 percent from fiscal years 2012 

through 2015. Child welfare 

professionals attribute the increase to 

the opioid epidemic. GAO was asked 

to examine the steps states are taking 

to implement CAPTA requirements on

substance-affected infants and related 

amendments enacted in 2016.

This report examines (1) the extent to 

which states have adopted policies and 

procedures to notify CPS of substanceaffected infants; (2) state efforts to 

develop plans of safe care, and 

associated challenges; and (3) steps 

HHS has taken to help states 

implement the provisions. 

To obtain this information, GAO 

surveyed state CPS directors in all 50 

states and the District of Columbia and 

reached a 100 percent response rate. 

GAO also visited 3 states (Kentucky, 

Massachusetts, and Pennsylvania);

reviewed relevant documents such as 

federal laws and regulations, and HHS 

guidance; and interviewed HHS

officials. GAO did not assess states’ 

compliance with CAPTA requirements.

What GAO Recommends

GAO recommends that HHS provide 

additional guidance and technical 

assistance to states to address known 

challenges and enhance their 

understanding of requirements. HHS 

did not concur with the 

recommendation. As discussed in the 

report, GAO continues to believe that 

added guidance would benefit states.
Page i GAO-18-196 Substance-Affected Infants

Letter 1

Background 4

Most States Reported Having Policies About Notification and 

Investigation of Substance-Affected Infants 11

Most States Reported Having Requirements to Develop Plans of 

Safe Care, but Officials We Interviewed Reported Challenges 

Meeting the Needs of All Families 17

Although HHS Has Provided Technical Assistance and Guidance 

to Assist States’ Efforts to Implement CAPTA, States Want 

More Help 25

Conclusions 32

Recommendation for Executive Action 32

Agency Comments and Our Evaluation 32

Appendix I Comments from the Department of Health and Human Services 36

Appendix II GAO Contact and Staff Acknowledgments 40

Table

Table 1: Child Abuse Prevention and Treatment Act (CAPTA) 

Provisions Pertaining to Substance-Affected Infants 

Before and After 2016 Amendments 6

Figures

Figure 1: Typical Child Protective Services Notification and 

Investigation Process 9

Figure 2: Number of States That Reported Their Plans of Safe 

Care Address Infants and Caregivers Needs 19

Figure 3: Number of States That Reported a Need for Additional 

Guidance and Assistance from HHS in Addressing the 

Needs of Substance-Affected Infants and Their Families 30

Contents
Page ii GAO-18-196 Substance-Affected Infants

Abbreviations

ACF Administration for Children and Families

CAPTA Child Abuse Prevention and Treatment Act

CARA Comprehensive Addiction and Recovery Act 

of 2016

CPS child protective services

HHS Department of Health and Human Services 

MAT medication-assisted treatment

NAS neonatal abstinence syndrome 

NCSACW National Center on Substance Abuse and Child 

Welfare

SAMHSA Substance Abuse and Mental Health Services 

Administration

START Sobriety Treatment and Recovery Team

This is a work of the U.S. government and is not subject to copyright protection in the 

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Page 1 GAO-18-196 Substance-Affected Infants

441 G St. N.W.

Washington, DC 20548

January 19, 2018

The Honorable Robert P. Casey, Jr.

Ranking Member

Subcommittee on Children and Families

Committee on Health, Education, Labor, and Pensions

United States Senate

Dear Mr. Casey:

States reported that parental drug abuse was a factor associated with the 

removal of 32 percent of the children entering foster care in fiscal year 

2015. In addition, the number of children under the age of 1 entering 

foster care increased by about 15 percent (from 41,235 to 47,219) from 

fiscal year 2012 through fiscal year 2015—an increase that many 

researchers and child welfare professionals attribute to the opioid 

epidemic.1 Infants born to women who misuse drugs or alcohol during 

their pregnancy are particularly vulnerable. Many infants are born affected 

by substance exposure and experience withdrawal symptoms, referred to 

as substance-affected infants. A subset of these infants who were 

exposed to opioids in utero may be diagnosed with neonatal abstinence 

syndrome (NAS), a condition characterized by a range of symptoms, 

including excessive crying, irritability, and difficulties with breathing and 

feeding.2 The health, well-being, and safety of these infants may be 

jeopardized if they are sent home with parents with substance use 

disorders who do not have a system of support and are not in treatment 

or recovery.3

The Child Abuse Prevention and Treatment Act (CAPTA) is one of the 

key pieces of federal legislation that guides child protection and includes 

 1

U.S. Department of Health and Human Services, Administration for Children and 

Families, Adoption and Foster Care Analysis and Reporting System (AFCARS), fiscal year 

2012 through fiscal year 2015.

2

GAO, Newborn Health: Federal Action Needed to Address Neonatal Abstinence 

Syndrome, GAO-18-32 (Washington, D.C.: October 4, 2017).

3

National survey data suggest that new mothers have a high prevalence of alcohol and 

illicit drug use. Depression correlates with substance use, and new mothers with 

postpartum depression may be at high risk for substance use. Shawna L. Carroll 

Chapman and Li-Tzy Wu, “Postpartum Substance Use and Depressive Symptoms: A 

Review,” Women & Health, vol. 53, no. 5 (2013).

Letter
Page 2 GAO-18-196 Substance-Affected Infants

provisions related to substance-affected infants. Under CAPTA, state 

governors are required to provide an assurance to the Secretary of the 

Department of Health and Human Services (HHS) that their states have 

in effect and are enforcing a law or statewide program that requires (1) 

health care providers to notify child protective services (CPS)4 of all 

infants affected by substance use or withdrawal symptoms resulting from 

prenatal drug exposure, and (2) a plan of safe care be developed for all 

such infants, including the affected caregiver.5

You asked us to examine how states are implementing these CAPTA 

requirements. In this review, we examine (1) the extent to which states 

have adopted policies and procedures to notify CPS of substanceaffected infants, and to guide how CPS officials respond once they 

receive a notification; (2) the extent to which states have adopted policies 

and procedures to develop plans of safe care for substance-affected 

infants, and any challenges associated with implementing such policies 

and procedures; and (3) steps HHS has taken to assist and monitor 

states’ efforts in implementing CAPTA provisions related to substanceaffected infants.

To address these questions, we collected and analyzed information using 

several methods. To obtain information on all three research questions, 

we designed and administered a web-based survey of states directed 

toward CPS directors in all 50 states and the District of Columbia.6 The 

survey was conducted between March and May 2017, with 100 percent of 

states responding to the survey. The survey included open-ended and 

closed-ended questions about state laws, policies, and procedures 

regarding substance-affected infants; specific requirements or processes 

relating to infants affected by opioids; plans for ensuring the safety and 

well-being of substance-affected infants; data collection efforts; 

 4

In most jurisdictions, CPS is the agency mandated by law to conduct an initial 

assessment or investigation of reports of child abuse and neglect. It also offers services to 

families and children where maltreatment has occurred or is likely to occur.

5

42 U.S.C. § 5106a(b)(2)(B)(ii),(iii).

6

For the purpose of this report, we will collectively refer to the 50 states and the District of 

Columbia as “states.”
Page 3 GAO-18-196 Substance-Affected Infants

challenges to implementing CAPTA requirements; and assistance and 

guidance provided by HHS.7

To minimize nonsampling errors, we pretested the questionnaire with four 

states via telephone. We chose the pretest sites to include states with 

moderate to high rates of drug mortalities,8 moderate to high NAS rates,9

variation in state CPS administrative frameworks (two state-administered, 

one county-administered, and one hybrid partially administered by the 

state and partially administered by counties), and geographic variation 

(states from the mid-Atlantic, north, south, and west). In the pretests and 

expert reviews, we were generally interested in the clarity of the questions 

and the flow and layout of the survey. For example, we wanted to ensure 

that terms used in the survey were clear and known to the respondents, 

categories provided in closed-ended questions were complete and 

exclusive, and the ordering of survey sections and the questions within 

each section were appropriate. The web instrument was revised based on 

the pretests and expert reviews. We reviewed state officials’ responses 

and conducted follow-up, as necessary, to determine that their responses 

were complete, reasonable, and sufficiently reliable for the purposes of 

this report. Specifically, we followed up with nine states via email and, in 

August 2017, conducted a semi-structured phone interview with one 

state.

To obtain more in-depth information on all three research questions about 

state laws, policies or procedures, as well as challenges to implementing 

the CAPTA provisions, we conducted site visits to three states (Kentucky, 

Massachusetts, and Pennsylvania). These states were selected based on 

their high rates of drug mortalities in 201410 and NAS in 2012,11 the most 

recent and comprehensive publicly available data at the time of our 

analysis; recommendations from subject matter experts; and for variation 

 7

GAO did not assess states’ compliance with CAPTA requirements; rather, this report 

conveys information which was reported to us by states about policies and procedures 

they have regarding substance-affected infants. 

8

L.M. Rossen, B. Bastian, M. Warner, D. Khan, and Y. Chong, Drug poisoning mortality: 

United States, 1999–2014 (National Center for Health Statistics, 2016).

9

Jean Y. Ko et al., Incidence of Neonatal Abstinence Syndrome – 28 states, 1999-2013, 

CDC MMWR, vol. 65 (2016).

10L.M. Rossen, B. Bastian, M. Warner, D. Khan, and Y. Chong, Drug poisoning mortality: 

United States, 1999–2014.

11Jean Y. Ko et al., Incidence of Neonatal Abstinence Syndrome – 28 states, 1999-2013.
Page 4 GAO-18-196 Substance-Affected Infants

in state CPS administrative frameworks (two state-administered or one 

county-administered). We also visited two localities in each state, 

selected based on their high rates of drug mortalities and counties with a 

high incidence of neonatal abstinence syndrome (NAS) or infants born 

drug exposed. During the site visits we interviewed state CPS directors, 

alcohol and drug abuse directors, and maternal and child health directors; 

local CPS staff; and hospital staff, including hospital social workers. The 

information gathered from interviews with officials from selected states 

and localities is not generalizable to all states and localities and is meant 

to provide illustrative examples.

To learn about the steps HHS has taken to assist and monitor states’

efforts in implementing CAPTA provisions related to substance-affected 

infants, we reviewed relevant documents, federal laws and regulations, 

guidance, and other information. In addition, we interviewed officials from 

the Department of Health and Human Services’ (HHS) Administration for 

Children and Families (ACF) and the Substance Abuse and Mental 

Health Services Administration (SAMHSA) about oversight, technical 

assistance, and guidance regarding CAPTA provisions related to 

substance-affected infants. We also interviewed officials from the National 

Center on Substance Abuse and Child Welfare—the technical assistance 

provider under contract with HHS.

We conducted this performance audit from June 2016 to November 2017 

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.

CAPTA, originally enacted in 1974, provides formula grants12 to states to 

improve child protective service systems.13 ACF administers the CAPTA 

 12Formula grant programs are noncompetitive awards based on a predetermined formula. 

13Pub. L. No. 93-247, 88 Stat. 4 (1974) (codified as amended at 42 U.S.C. §§ 5101-

5119c). For purposes of this report, we use “CAPTA” to refer to this statute as amended.

Background

Child Abuse Prevention 

and Treatment Act
Page 5 GAO-18-196 Substance-Affected Infants

state grant program and provides guidance and oversight to states. In 

fiscal year 2017, Congress provided about $25 million for the program.

As part of the CAPTA state grant program, states are required to submit 

to the Secretary of HHS plans outlining how they intend to use CAPTA 

funds to improve their child protective service systems, among other 

things. State plans remain in effect for the duration of states’ participation 

in the grant program; if modifications are needed, these must be 

submitted. In addition to state plans, states are required to submit to HHS 

an annual data report providing information on agency decisions made in 

response to referrals of child abuse and neglect, as well as preventive

services provided to families, among other things.

CAPTA requires state governors to provide a series of assurances in their 

state plans. Since 2003, governors have had to provide an assurance that 

states have in effect and are enforcing a state law or program that 

includes policies and procedures to address the needs of infants affected 

by prenatal substance abuse or displaying withdrawal symptoms at birth. 

Under states’ policies and procedures, health care providers are required 

to notify CPS of such infants.14 Governors must also assure that a plan of 

safe care is developed for these infants. Although CAPTA does not define 

“plans of safe care,” for the purposes of this report we define them as 

plans to ensure the safety and well-being of infants who are born 

substance-affected.15

The Comprehensive Addiction and Recovery Act of 2016 (CARA) 

amended certain provisions of CAPTA that relate to substance-affected 

infants (see table 1).16

 14Most infants with NAS in the United States are treated in a hospital setting, often in the 

neonatal intensive care unit. GAO-18-32.

15CAPTA, as amended by CARA, does state that plans of safe care must address the 

health and substance use disorder needs of the infants and the affected caregiver. 

16Pub. L. No. 114-198, 130 Stat. 695.
Page 6 GAO-18-196 Substance-Affected Infants

Table 1: Child Abuse Prevention and Treatment Act (CAPTA) Provisions Pertaining to Substance-Affected Infants Before and 

After 2016 Amendments

Topics

CAPTA prior to Comprehensive Addiction and 

Recovery Act of 2016 (CARA) amendments CAPTA after CARA amendments

Notification States were required to have in their state plans an 

assurance that the state has in effect and is enforcing a 

state law or program that includes policies and procedures 

relating to “infants born and identified as being affected by 

illegal [emphasis added] substance abuse or withdrawal 

symptoms resulting from prenatal drug exposure” and for 

health care providers involved in the delivery and care of 

substance-affected infants to notify the child protective 

services system of the occurrence of such condition in 

such infants. 

Changed the term “illegal substance abuse” to 

“substance abuse.”

a

Plans of Safe Care As part of their state law or program, states were required 

to develop plans of safe care for infants born and identified 

as being affected by illegal substance abuse or withdrawal 

symptoms, or a Fetal Alcohol Spectrum Disorder.

Required that plans of safe care address the 

health and substance use disorder needs of 

infants affected by substance abuse and their 

families or caregivers. 

State Monitoring Not addressed Required states to monitor plans of safe care to 

determine whether and how local entities are 

making referrals and delivering appropriate 

services to the infant and affected family or 

caregiver. 

HHS Guidance / 

Technical 

Assistance 

Not addressed Required the Secretary of Health and Human 

Services (the Secretary) to maintain and 

disseminate information about best practices 

related to plans of safe care for infants born and 

identified as being affected by substance abuse 

or withdrawal symptoms or a Fetal Alcohol 

Spectrum Disorder.

State Reporting States were required to annually provide, to the maximum 

extent practicable, a data report to the Secretary that 

includes specified information made in response to 

referrals of child abuse and neglect, as well as preventive 

services provided to families, among other things.

Added a requirement that states report the 

following information:

The number of infants identified as substanceaffected

The number of such infants for whom a plan of 

safe care was developed

The number of such infants for whom a referral 

was made for appropriate services, including 

services for the affected family or caregiver.b

HHS Monitoring Not addressed Required the Secretary of Health and Human 

Services to monitor state policies and 

procedures on addressing the needs of 

substance-affected infants, including the 

provision of plans of safe care. 

Source: GAO review of CAPTA, as amended by CARA. | GAO-18-196

a

According to HHS guidance, states’ policies and procedures should address the needs of infants 

born affected by both illegal and legal substance abuse.

b

HHS intends to collect this data through the National Child Abuse and Neglect Data System.
Page 7 GAO-18-196 Substance-Affected Infants

In addition to provisions related to substance-affected infants, CAPTA 

also requires governors to provide an assurance to the Secretary of HHS 

that they have provisions or procedures for certain individuals to report 

known and suspected instances of child abuse and neglect, which are 

generally referred to as mandated reporter laws.17 All states have statutes 

identifying persons who are required to report suspected child 

maltreatment to an appropriate agency, such as child protective services, 

a law enforcement agency, or a state’s toll-free child abuse reporting 

hotline, according to a 2016 HHS report.18 Mandatory reporters often 

include social workers; teachers, principals, and other school personnel; 

physicians, nurses, and other health care workers; and counselors, 

therapists, and other mental health professionals. The circumstances 

under which a mandatory reporter must make a report vary from state to 

state, according to HHS. Typically, a report must be made when the 

reporter, in his or her official capacity, suspects or has reason to believe 

that a child has been abused or neglected. State laws require mandatory 

reporters to report the facts and circumstances that led them to suspect 

that a child has been abused or neglected; they do not have the burden of 

providing proof that abuse or neglect has occurred.19

CPS, a division within state and local social services, is generally the 

agency that conducts an initial assessment or investigation of reports of 

child abuse and neglect. It also offers services to families and children 

where maltreatment has occurred or is likely to occur. Typically, when 

CPS agencies receive a notification about suspected child abuse, 

including a substance-affected infant, social workers review the referral to 

determine if it should be accepted for investigation.20 During an 

 1742 U.S.C. § 5106a(b)(2)(B)(i).

18Child Welfare Information Gateway, Mandatory reporters of child abuse and neglect

(Washington, D.C.: U.S. Department of Health and Human Services, Children’s Bureau, 

2016).

19Child Welfare Information Gateway, Mandatory reporters of child abuse and neglect.

20For example, according to Kentucky’s Reporting Child Abuse and Neglect Handbook, a 

notification may be refused if a specific act of abuse, neglect or dependency is not 

alleged, such as a generalized concern for the welfare of the child that does not state 

specific allegations reflecting child abuse or neglect. Examples are a child who is 

improperly dressed, but the clothing deficiency does not result in harm to the child; a child 

who is provided nutritious food irregularly or insufficiently, but the health of the child is not 

impaired; or hygiene, that although not optimal, does not adversely affect the well-being of 

the child.

CPS Notification and 

Screening Process
Page 8 GAO-18-196 Substance-Affected Infants

investigation, social workers determine, among other things, the nature, 

extent, and cause of abuse or neglect, and identify the person 

responsible for the maltreatment. An investigation may include the 

following: a visit to the hospital and/or infant’s home; observation of the 

infant; risk and safety assessments; evaluation of the home environment; 

background checks, including criminal record checks of adults that reside 

with the family; as well as mental health evaluations.

If social workers determine that there is enough evidence to suggest that 

an infant is at risk for harm or neglect, or that abuse or neglect occurred, 

the case is substantiated. Once a case is substantiated, CPS develops a 

case plan with the family outlining objectives and tasks for the family. 

Among other things, CPS may refer the family to services in the 

community, such as early intervention services, parenting classes, and 

substance abuse treatment. Generally, CPS attempts to strengthen the 

family and alleviate the problems which led to maltreatment. If the case is 

not substantiated, but there is genuine concern about the child’s situation 

and the family may benefit from services in the community, the case may 

be closed and/or the family may be referred for voluntary services (see 

figure 1).21

 21There are also instances in which the agency may screen in or accept a report, but not 

investigate it or make a determination that it is substantiated or not, and still offer services. 

In these instances, CPS may decide to use a differential response. Differential response is 

a CPS practice that generally involves two “tracks” or paths of response to reports of child 

abuse and neglect: traditional investigation for higher-risk cases and assessments or 

alternative responses for low- to moderate-risk cases.
Page 9 GAO-18-196 Substance-Affected Infants

Figure 1: Typical Child Protective Services Notification and Investigation Process

Note: This figure is for illustrative purposes only as there may be variation among state procedures. 

GAO did not evaluate individual state laws or procedures in preparing this figure.
Page 10 GAO-18-196 Substance-Affected Infants

Prenatal maternal opioid use has increased considerably in recent years. 

This increase has contributed to a significant rise in the rate of NAS. 

According to a recent study, the rate of NAS has increased from 1.2 per 

1,000 hospital births in 2000 to 5.8 per 1,000 hospital births in 2012, 

reaching a total of 21,732 infants diagnosed with NAS.22

NAS occurs with considerable variability. According to a recent HHS 

report, various studies indicate that anywhere from 55 to 94 percent of 

infants exposed to opioids in-utero exhibit some degree of symptoms.23

Typically, infants with NAS develop symptoms within 72 hours of birth, but 

may develop symptoms within the first 2 weeks of life, including after 

hospital discharge. For the purpose of this report, infants exposed to 

opioids ingested by mothers in utero are considered substance-exposed, 

and those born negatively affected by exposure or experiencing 

withdrawal symptoms are considered substance-affected. According to 

experts, NAS is considered an expected and treatable result of women’s 

prenatal opioid use.

Opioid exposure during pregnancy may occur for the following reasons:

• Women receiving pain medication with a prescription under the care 

of a physician. Medications can include fentanyl and oxycodone.

• Women under the care of a physician and undergoing treatment for 

an opioid use disorder with medications, such as methadone or 

buprenorphine. This type of treatment is generally referred to as 

medication-assisted treatment (MAT).

• Women misusing opioid pain medications with or without a 

prescription (such as using without a prescription, using a different 

dosage than prescribed, or continuing to use a drug when no longer 

needed for pain).

• Women using or abusing illicit opioid, such as heroin.

 22GAO-18-32.

23See Substance Abuse and Mental Health Services Administration (SAMHSA), 

Protecting Our Infants Act: Report to Congress (May 2017).

Neonatal Abstinence 

Syndrome and Prenatal 

Drug Use
Page 11 GAO-18-196 Substance-Affected Infants

In response to our survey, 42 states reported that state policies and 

procedures require health care providers to notify CPS about substanceaffected infants.24 Some states reported that they explicitly require health 

care providers to notify CPS of substance-affected infants. For example, 

Wisconsin reported that under its state law if tests indicate that infants 

have controlled substances or controlled substance analogs in their bodily 

fluids, the health care provider shall report the occurrence of that 

condition to CPS. 25,26 Others reported that the requirement is met by their 

states’ mandated reporter law—whereby people in certain positions, 

including health care providers, are required to notify CPS about 

substance-affected infants, similar to the manner in which other 

mandatory reporters, like school teachers, day care personnel, and social 

workers are required to report other instances of child abuse and neglect. 

For example, Kentucky statute requires that “any person who knows or 

has reasonable cause to believe that a child is dependent, neglected, or 

abused shall immediately” make a report to the police or CPS. The 

statutory definition for an abused or neglected child in Kentucky includes 

situations where a child’s health or welfare is harmed or threatened with 

harm because of parental incapacity due to alcohol and other drug abuse.

 24GAO did not assess states’ compliance with CAPTA requirements. In response to 

survey questions about policies and procedures they have regarding substance-affected 

infants, states sometimes responded with information on state laws. GAO did not verify 

the accuracy of specific statutory references in states’ responses nor did we conduct an 

exhaustive examination of state laws in general.

25Controlled substances are generally regulated by the government based on their 

medical use, potential for abuse, and safety or dependence liability.

26Under Wisconsin law, a controlled substance analog is a substance which has a 

substantially similar chemical structure to that of a controlled substance.

Most States Reported 

Having Policies About 

Notification and 

Investigation of 

Substance-Affected 

Infants

State Policies Generally 

Require or Encourage 

Health Care Providers to 

Notify Child Protective 

Services of SubstanceAffected Infants
Page 12 GAO-18-196 Substance-Affected Infants

Of the 42 states that require health care providers to notify CPS of 

substance-affected infants, 21 reported that notification is required for 

infants affected by both illegal and legal use of opioids. For example, in 

Massachusetts health care providers are required to notify CPS orally 

and, in writing within 48 hours, about substance-affected infants 

physically dependent on drugs, even if the drugs were legally obtained 

and the mother is under the care of a prescribing medical professional. 

Sixteen of the 42 states reported that health care providers are required 

to notify CPS of infants affected only by the illegal use of opioids, and five 

of the 42 states reported that they did not know if health care providers 

were required to notify CPS of infants affected by the illegal and legal use 

of opioids.

The other eight states reported that although they did not have policies 

and procedures that require health care providers to notify CPS about 

substance-affected infants, they have laws or policies that encourage

notification. Specifically, in written responses to our survey:

• Two states reported that under their state mandated reporter laws 

health care providers are encouraged, but not required, to notify CPS 

about substance-affected infants.

• Four states reported that they are working to amend their states’

policies and procedures to require that health care providers refer 

substance-affected infants to CPS.

• Another state reported that it encourages the notification from health 

care providers, but has not sought legislation to require health care 

providers to report substance-affected infants to CPS because of 

concerns that any laws that criminalize prenatal substance use would 

further deter substance-using pregnant women from seeking prenatal 

care. The state’s law requires all hospital personnel who suspect 

abuse and neglect or observe conditions that are likely to result in 

abuse or neglect to notify CPS.

• One state reported that all persons, including health care providers, 

are required to report child abuse and neglect, but reporting depends 

on whether a hospital’s policy indicates substance abuse is child 

abuse or neglect. Further, the state CPS director reported 

collaboration with the health care community on reporting substance 

exposed infants to its child abuse hotline.

Although one state reported in our survey that it does not require or 

encourage health care providers to notify CPS about substance-affected 

infants, in an interview, state officials explained that its policy requires that 
Page 13 GAO-18-196 Substance-Affected Infants

health care providers notify CPS if, through an assessment, they 

conclude that infants are at risk for abuse and neglect. Under the state’s 

law, health care providers in each county are required to assess the 

needs of mothers and substance-affected infants using a protocol 

established by county health departments, CPS agencies, and hospitals. 

State officials told us that under the state’s law, the birth of a substanceaffected infant is not in and of itself a sufficient basis for reporting child 

abuse or neglect.

In addition to having policies and procedures regarding the reporting of 

substance-affected infants, in written responses to our survey some 

states reported providing training and guidance to support the efforts of 

health care providers to notify CPS about these infants. Three states 

reported that they offer mandatory reporter training to inform health care 

providers that they are obligated to notify CPS about substance-affected 

infants.27 Another state reported that its Department of Human Services 

developed a guide for mandated reporters that discusses what needs to 

be reported and where to make reports. Also, one state reported that it 

sent a formal letter to its state hospital association about how to report 

substance-affected infants to CPS. This state also sent a memo to its 

CPS county directors instructing them to contact their local health care 

providers on the importance of reporting substance-affected infants to 

CPS and the process for doing so. In addition, during our Massachusetts 

site visit, officials shared with us a memo that was sent to mandated 

reporters, community partners, and other stakeholders that offered 

guidance on when to file a report about substance-exposed infants. 

Further, local CPS staff at one Massachusetts field office told us that 

upon request they provide mandated reporter training to health care 

providers.28

Despite these policies, procedures, and guidance, in written responses to 

our survey, a few states reported concerns about requiring health care 

providers to notify CPS about substance-affected infants and the 

definition of substance-affected. All of the hospitals that we visited have 

 27These states reported this information in response to an open-ended survey question. 

28A state audit of a Massachusetts medical center found that 1 out of 456 substanceexposed infants born at the center, during the audit period, was not reported to CPS and 

an additional 79 were not sent within the required 48-hour timeframe. Commonwealth of 

Massachusetts Office of the State Auditor, Review of Mandated Reports of Children Born 

with a Physical Dependence on an Addictive Drug at the UMass Memorial Medical Center, 

Inc. (June 29, 2017).
Page 14 GAO-18-196 Substance-Affected Infants

policies consistent with their state’s law that require that health care 

providers, primarily hospital social workers, to notify CPS about 

substance-affected infants. However, one state reported that some 

medical personnel have been reluctant to report some infants that are 

positive for illegal and legal substances due to fears of mothers being 

arrested. Another state reported that stakeholders are concerned that 

having to notify CPS about substance-affected infants will have a chilling 

effect on the willingness of pregnant women who use substances to be

honest with providers and seek the help and support they need and 

deserve. According to one state, there is often an inherent resistance to 

contacting CPS in these cases as health care providers tend to view child 

welfare involvement as punitive rather than a potential resource for the 

family.29

In addition, three states reported in written responses to our survey 

challenges understanding how to define terms, such as substanceaffected, under CAPTA. For example, the Pennsylvania CPS director 

expressed concerns during our site visit, suggesting that CAPTA raises 

many unanswered questions, such as (1) if “affected by substances”

means at-risk of being or physically affected by substances, (2) what 

policies relating to substance-affected infants should look like and 

include, and (3) whether “affected by substances” should include women 

who are under the care of health care or treatment providers and taking 

their medications as prescribed. A Kentucky public health official told us 

that a drug test, or whether the infant is affected by legal or illegal 

substances, should not be the sole factor in determining CPS’

involvement with a family. Rather, a holistic view of the family, whether 

the substance prohibits the mother’s ability to care for her child, and any 

risk factors present that places the infant at risk should also be 

considered. According to officials, an infant that is exposed to 

substances, but has not been affected by the substance, can still be at 

risk for child abuse and neglect.

 29As we previously reported, the stigma faced by pregnant women with opioid use 

disorders is a challenge in addressing NAS. Among other things, stigma may cause the 

women to fear punitive effects, such as losing custody of their children or losing their jobs. 

GAO-18-32.
Page 15 GAO-18-196 Substance-Affected Infants

In response to our survey, 46 states reported that they have policies and 

procedures for deciding which notifications about substance-affected 

infants are accepted for investigation. Seventeen of those states reported 

that all notifications of substance-affected infants are accepted for 

investigation, regardless of the circumstances. The remaining 29 states 

reported that they apply specific criteria to determine if children who 

present as substance-affected are accepted for investigation by CPS.

• Several states reported in written responses to our survey that they 

base their criteria for accepting notifications on the infant’s safety. For 

these states, drug exposure does not by itself indicate that an infant’s 

safety is at risk. For example, one state explained that in determining 

a child’s safety risk, staff evaluate a number of factors including the 

history of the family; the family’s presentation at the birthing hospital 

(appearance of chaotic behavior, suspected intoxication of adults, lack 

of appropriate concern or bonding with the infant); the presentation of 

the infant’s physical condition; the results of any testing of parent or 

child (blood, urine, etc.); discrepancies identified in the parent’s 

representation of their substance use or substance use treatment; and 

any other concerns noted by the reporting source.

• Other states reported that their criteria for accepting notifications for 

investigation are based on the degree or type of drug exposure in 

question. For example, one state reported that its policy directs CPS 

agencies to accept notifications for investigation when a parent has 

used illegal substances or non-medical use of prescribed medication

during the last trimester of pregnancy. Another state reported that it 

will accept notifications for investigation if the infant is born with a 

positive toxicology or is experiencing drug withdrawal, or if the mother 

tests positive for substances.

• A few states reported using both risk to the safety of infants as well as 

degree or type of drug as their criteria for accepting notifications. For 

example, one state reported that it considers factors, such as the type 

of drug, the parent’s ability to care for the child, addiction history, and 

the parent’s readiness and preparation to care for the infant.

In follow-up correspondences with states that reported that they do not 

have policies and procedures to decide whether to accept for 

States Reported Having 

Policies That Guide 

Decisions About 

Investigating SubstanceAffected Infants and Their 

Families
Page 16 GAO-18-196 Substance-Affected Infants

investigation notices about substance-affected infants, one state reported 

that decisions are made on a case-by-case basis.30

A few states reported that after receiving notifications about substanceaffected infants, CPS agencies may decide to opt out of investigating 

some families, referred to as “screening out” families. For example, in 

Massachusetts, CPS can “screen out” referrals of mothers if the only 

substance affecting the infants was used by the mothers as prescribed by 

their physician. In these instances, when CPS in Massachusetts is 

notified by the hospital about an infant, the screener gathers information 

from the caller and consults with a supervisor to determine whether the 

referral should be accepted for investigation or screened out. If the 

mother is on methadone, for example, but is involved with services and is 

in a treatment plan, CPS verifies with medical or other qualified providers 

that the mother used the drug as part of substance abuse or medical 

treatment as authorized. Additionally, CPS confirms that there are no 

other concerns of child abuse and/or neglect. If CPS officials in 

Massachusetts are unable to collect all the information that they need to 

screen out families, for example when a mother does not sign a release 

allowing CPS officials to speak with her health care providers, 

notifications about substance-affected infants are accepted for 

investigation.

 30Four states did not respond to our follow-up correspondences.
Page 17 GAO-18-196 Substance-Affected Infants

In response to our survey, 49 states reported that their CPS agency has 

policies to develop a plan to ensure the safety and well-being of 

substance-affected infants who meet the state’s criteria for investigation. 

Two states reported that CPS staff are not required to develop such a 

plan, even if a notification is accepted for an investigation or an 

assessment. For purposes of this report, we are defining a plan of safe 

care as a plan to ensure the safety and well-being of the infant.31 States’

approaches to identifying children and families who will receive a plan of 

safe care generally fall into two categories:

• 38 states reported that CPS is required to develop a plan of safe care 

for all notifications of substance-affected infants that are accepted for 

investigation, including those that are not substantiated.32

• 11 states reported that CPS staff are required to develop a plan of 

safe care only in those instances where an investigation substantiates 

the notification or uncovers an unmet need or present or emerging 

danger. For example, local Pennsylvania CPS officials told us that 

they only develop plans when there is a safety threat or other concern 

about the infant.

 31GAO did not assess states’ compliance with CAPTA requirements, including the 

requirement for states to provide a plan of safe care for substance-affected infants and 

their caregivers.

32Under guidance provided by HHS, an investigation is not substantiated when there is 

not sufficient evidence under state law or policy to conclude that the child has been 

abused or neglected, or is at risk of being abused or neglected.

Most States Reported 

Having Requirements 

to Develop Plans of 

Safe Care, but 

Officials We 

Interviewed Reported 

Challenges Meeting 

the Needs of All 

Families

States Reported That CPS 

Agencies Develop Plans 

to Primarily Address 

Infants’ Immediate Safety 

and Medical Needs and 

Caregivers’ Substance 

Use
Page 18 GAO-18-196 Substance-Affected Infants

Most states reported that after a notification of a substance-affected infant 

is accepted for investigation, CPS always conducts a needs assessment 

for the infant and caregivers.33 For example, one local CPS office that we 

visited told us that social workers assess risk to and safety of infants, their 

function (development, age appropriate behavior, etc.), and environment. 

In addition, workers assess the caregiver’s ability to parent and 

employment status, as well as housing. The assessments conducted as 

part of the investigation inform the development of plans of safe care, as 

well as decisions about the removal of infants from the home.

Among the 49 states that reported that plans of safe care are developed 

for all or some substance-affected infants, 47 reported that these plans 

either always or sometimes address infants’ safety needs.34 Plans also 

address other needs, such as infants’ immediate medical and longer-term 

developmental needs, as well as caregiver’s substance use treatment 

needs. See figure 2 for the number of states whose plans of safe care 

address various issues facing the infant and parent.

 33Thirty-eight of the 49 states that responded to this question reported that CPS always 

conducts a needs assessment for the infant. Forty of the 50 states that responded to a 

separate question reported that CPS always conducts a needs assessment for the 

caregiver. 

34Two states did not provide a response regarding whether their plans of safe care 

address infants’ safety needs.
Page 19 GAO-18-196 Substance-Affected Infants

Figure 2: Number of States That Reported Their Plans of Safe Care Address Infants and Caregivers Needs

Notes: GAO did not assess states’ compliance with CAPTA requirements, including the requirement

for states to provide a plan of safe care for substance-affected infants and their caregivers. The 

number of states that provided a response regarding the various issues their plans address varied. 

Total may not add up to 49. This figure does not include the number of states that reported that their 

plans of safe care do not address the various issues, as well as the number of states that reported 

that they do not know whether their plans address the various issues.

In written responses to our survey and during our site visits, officials 

reported that plans of safe care and referrals for services included in the 

plans are individualized based on the infant and family’s needs. For 

example, Massachusetts state CPS officials told us that plans of safe 

care are developed for each family based on the information that staff 

collect from the safety, risk, and family assessments, as well as 

information collected from individuals who may have knowledge that 

would inform the family assessments, such as medical and treatment 

providers, and family members. Kentucky state CPS officials told us that 

the local organizations and service providers that they collaborate with to 

develop the plan of safe care also vary based on the family’s needs. For 

example, Kentucky will only collaborate with substance use treatment 

providers to develop the plan of safe care when families have substance 

use disorders.

Similarly, during our site visits, officials from two states told us that the 

decision to place an infant in foster care is based on the individualized 

needs of the infant and caregiver. For example, Massachusetts state 

officials told us that their decision to remove a baby from the home 

depends on a myriad of factors and is determined on a case-by-case 

basis. Officials explained that if a mother is discharged from the hospital 
Page 20 GAO-18-196 Substance-Affected Infants

and begins using drugs again and does not have adequate supports in 

place to care for her baby, CPS may decide to place the infant in foster 

care. However, if a mother has existing support systems in place to 

mitigate safety risks, CPS may decide to keep the baby in the home.

In our survey, all 51 states reported that their agencies either always or 

sometimes refer parents or caregivers to substance use treatment 

programs, and most states reported that they always or sometimes refer 

parents or caregivers to parenting classes or programs (49), and other 

supportive services (49).35 CPS officials in each of the three states that 

we visited told us that their plans of safe care include referrals to address 

not only the immediate needs of the infants, but also the needs of the 

parent or caregiver. For example, officials from a local Kentucky CPS 

agency told us that staff refer mothers of substance-exposed infants to a 

program called Sobriety Treatment and Recovery Team (START). 

START is comprised of a social worker and a peer support mentor who 

has at least 3 years of sobriety, previous involvement with CPS, and was 

successfully able to regain or keep custody of her own children. 

According to officials, the START program has been able to provide 

participants with quick access to substance use disorder treatment.

Officials from a Massachusetts local CPS agency told us that one of the 

services that they provide to parents of substance-affected infants is a 

parent aide who can help monitor how the parent is caring for the infant, 

such as administering the infant’s medications appropriately and ensuring 

the parent is not abusing the infant’s drugs. In addition, a parent aide can 

provide emotional support and help parents adjust after the infant is 

discharged from the hospital. Kentucky officials noted the effect that a 

healthy caregiver has on the outcome of the infant and emphasized that a 

baby cannot be healthy if the mother is not. Kentucky CPS officials said 

that they have found that the earlier caregivers enter treatment, the better 

the outcomes are for mothers and babies. According to Kentucky officials, 

parents who participate in the START program are less likely to have their 

child placed in foster care.

 35One state did not provide a response regarding whether they refer the family/caregiver 

to parenting classes or programs. 
Page 21 GAO-18-196 Substance-Affected Infants

Officials from the states that we visited told us that developing and 

monitoring plans of safe care under CAPTA’s new requirements for 

infants affected by their mother’s legal use of prescribed medications, as 

well as plans for these infants’ caregivers, present challenges. 

Specifically, officials reported concerns about increased caseloads, 

particularly if they are required to provide plans and services for infants at 

low risk of abuse or neglect, the content of plans, and confidentiality 

restrictions.

Thirty-one of 50 states reported on our survey that staffing or resource 

limitations was very or extremely challenging, and CPS officials across 

the 3 states we visited said that the opioid epidemic has directly 

contributed to increased caseloads.36 According to a local Kentucky CPS 

office, the number of babies that met criteria for being accepted for 

investigation has increased about 55 percent from 2011 to 2016, while 

the number of staff has remained the same.37 Similarly, hospitals reported 

being impacted by this challenge. For example, staff at four hospitals we 

visited told us that they have delayed discharging infants from the hospital 

because CPS social workers did not identify caregivers to whom infants 

may be released or make plans for infants in a timely manner. In addition, 

staff from three hospitals told us that some CPS workers are difficult to 

contact and not especially responsive to their questions. One hospital 

social worker told us that she is concerned that the changes to CAPTA 

that require notifying CPS of all substance-affected newborns will 

inundate the agencies with cases.

Officials from two of the three states we visited anticipated that providing 

services to infants affected by the legal use of prescribed medications, 

but not likely to be at risk for child abuse and neglect, will result in an 

increase in the number of families referred to CPS. This, in turn, will 

require a plan of safe care and further strain limited resources. Twentyfive states reported in our survey that the plan they develop for 

substance-affected infants is the same as for other children in CPS care, 

suggesting that states devote the same level of resources to these infants 

as other cases.

 36One state did not provide a response to this question. 

37Kentucky reported on our survey that notifications of substance-affected infants are only 

accepted for an investigation if they meet certain criteria.

CPS Officials Reported 

Challenges Involving 

Caseloads, Developing 

Plans, and Confidentiality 

Restrictions

Increased Caseloads
Page 22 GAO-18-196 Substance-Affected Infants

The states we visited interpret CAPTA to require that plans of safe care 

be developed for all substance-affected infants who are referred to CPS, 

including those who may not meet usual criteria to be accepted for an 

investigation. Some state officials we interviewed questioned whether the 

new CAPTA requirements would allow for the best use of limited 

resources. For example, one senior state CPS official questioned whether 

it would be a good use of resources to develop plans of safe care for 

mothers in substance use disorder treatment or mothers using opioid 

medications due to chronic pain. A local CPS official we interviewed 

stated that drug exposure, in and of itself, is not necessarily a safety risk, 

and CPS should not intervene with families who are not at risk for child 

abuse or neglect. Instead, hospitals or treatment providers should 

intervene and refer families who do not meet criteria for CPS involvement, 

but could benefit from additional supports, to voluntary services. Kentucky 

public health officials told us that the period after a woman gives birth is a 

critical time for families as mothers may be stressed, sleep-deprived, 

exhausted, and may have other children in the home. This period may be 

especially challenging for mothers with substance use disorders, if 

adequate supports are not in place. According to officials women are 

typically covered for substance use treatment during pregnancy; however, 

this coverage ends roughly 60 days after the baby is born.

In written responses to our survey, some states reported that they would 

rely on other agencies to develop plans of safe care. Similarly, in order to 

manage limited CPS resources, officials from two of the three states that 

we visited said they are considering having hospitals or other agencies 

assume responsibility for developing plans of safe care when there is no 

evidence of abuse or neglect and there appears to be minimal risk to the 

safety and well-being of the infant. Kentucky officials told us that they 

envision that CPS will be responsible for developing a plan of safe care 

for notifications that are accepted for investigation, while hospitals, or 

another agency, will be responsible for developing plans of safe care for 

referrals that are screened out by CPS. According to CPS state officials, 

the plan of safe care for the infant and the family can be part of the 

discharge plan prior to the family leaving the hospital. However, officials 

reported that obtaining cooperation from other agencies may be difficult.

Some state officials reported being concerned that other agencies may 

not feel obligated to develop these plans, in part, because CAPTA 

provides funding to child welfare, and other agencies may therefore 

believe that child welfare should be responsible for developing the plan of 

safe care.
Page 23 GAO-18-196 Substance-Affected Infants

CPS officials we interviewed in two of our site visit states, as well as one 

state we followed up with, told us that they were unsure of whether their 

current plans will meet new CAPTA requirements because CAPTA does 

not define a plan of safe care. For example, Massachusetts officials said 

that their plans include everything that a family might need to ensure the 

safety of the child, including resources to ensure stabilization and 

reunification of a family, but they are not sure whether the plans meet 

new CAPTA requirements, in part because they are not familiar with the 

term “plan of safe care.” An official in another state was also unsure about 

whether his state’s “safety plans” would meet CAPTA requirements. 

According to the official, safety plans may include a treatment plan for 

mothers, and referral services, such as early intervention for the child. In 

practice, plans of safe care generally address gaps that place an infant at 

risk for harm or neglect. However, state officials we interviewed reported 

being unsure about what a plan of safe care should look like for families 

where these gaps do not exist. Also, in a written response to our survey, 

one state expressed uncertainty about CPS’ role if required to work with 

infants who do not typically receive CPS services. For example, a 

Pennsylvania official said that it is unclear what types of interventions 

child welfare should conduct with families of infants exposed to legal 

substances, such as medications prescribed by doctors, when the 

caregivers are taking their medications correctly.

Similarly, officials also questioned whether a plan would be necessary, 

and what the plan would entail, for caregivers who are already addressing 

their substance use disorder and taking steps to ensure their infant’s

safety. Officials from a local Kentucky CPS office described a case in 

which a mother was participating in medication-assisted treatment, had 

attended counseling three times per week throughout her pregnancy, and 

was continuing treatment in the postpartum period. Through CPS’

investigation, the agency found that the case was not substantiated, in 

part, because there were no additional services that CPS could connect 

her with that she was not already receiving.

Officials across the three states we visited also said that state and federal 

drug and alcohol confidentiality restrictions may challenge their ability to 

monitor plans of safe care. To monitor plans of safe care, CPS staff may 

need access to confidential information in order to know how caregivers 

are progressing in treatment, particularly now that these plans must 

address the substance use disorder needs of the caregiver. However, 

federal law restricts the disclosure and use of alcohol and drug patient 

Determining What to Include in 

the Plan of Safe Care

Confidentiality Restrictions
Page 24 GAO-18-196 Substance-Affected Infants

records maintained in connection with the performance of any federalassisted alcohol and drug abuse program.38 Generally, confidential 

information may be disclosed in accordance with the prior written consent 

of the patient.39 State and local CPS staff we interviewed said that strict 

confidentiality requirements make it challenging for drug and alcohol 

treatment providers to share information about mothers and infants. A 

CPS state director from Pennsylvania said that treatment providers are 

often reluctant to provide CPS case workers with information or updates 

on a mother’s treatment, which prevents child welfare workers from fully 

understanding how mothers are progressing with their treatment and the 

extent to which those in treatment are adhering to prescribed directions 

as outlined by treatment providers.

In addition, one official from a state we visited said state statutes 

regarding sharing of drug and alcohol treatment information may be more 

restrictive than the federal statute. Some states have developed ways to 

obtain confidential information about mothers in substance use disorder 

treatment. For example, officials from one local CPS office told us that in 

instances when they have to develop a long-term plan of safe care for 

families, they have mothers sign a release of information form in order to 

obtain updates about her treatment adherence from the medicationassisted treatment provider. Similarly, a local Massachusetts CPS office 

told us that typically staff obtain releases from mothers so that they can 

verify whether mothers are actively participating in their treatment and 

that there are no records of relapse.

 3842 U.S.C. § 290dd-2(a). Under HHS regulations implementing this provision, restrictions 

on disclosure do not apply to the reporting under state law of incidents of suspected child 

abuse and neglect, among other things. 42 C.F.R. § 2.12(c)(6).

3942 U.S.C. § 290dd-2(b)(1).
Page 25 GAO-18-196 Substance-Affected Infants

In HHS’ role to assist states in the delivery of child welfare services, two 

agencies—ACF and the Substance Abuse and Mental Health Services 

Administration (SAMHSA)—provided technical assistance to states 

through the National Center on Substance Abuse and Child Welfare 

(NCSACW). In addition, in ACF’s role to administer and monitor states’

implementation of CAPTA, the agency has provided some guidance to 

states on the provisions pertaining to substance-affected infants and has 

begun its monitoring responsibilities.

ACF and SAMHSA, which leads public health efforts to reduce the impact 

of substance abuse and mental illness, established the NCSACW in 

2002.40 The NCSACW provides technical assistance to states, and has 

issued publications and hosted forums to help states develop policies and 

procedures around issues affecting substance-affected infants. The 

technical assistance has focused on a broad range of issues, including 

collaboration among service providers, and plans of safe care. With 

respect to collaboration, NCSACW has issued several studies that 

identify opportunities for strengthening interagency efforts to prevent, 

intervene, identify, and treat prenatal substance exposure. The NCSACW 

collaboration guides encourage states to involve CPS agencies with 

medical providers in an interagency collaborative setting, thereby 

facilitating the process for CPS agencies to be notified of substanceaffected infants. Regarding plans of safe care, NCSACW has provided 

technical assistance and best practices to states around development of 

 40HHS contracts with a vendor for the administration of the NCSACW. In a recent re-bid of 

the contract, Children and Family Futures was the recipient selected to continue the 

administration of the NCSACW.

Although HHS Has 

Provided Technical 

Assistance and 

Guidance to Assist 

States’ Efforts to 

Implement CAPTA, 

States Want More 

Help

HHS Provided Technical 

Assistance Through a 

Resource Center and ACF 

Issued Formal Guidance 

and Began Its Oversight 

Efforts

Technical Assistance
Page 26 GAO-18-196 Substance-Affected Infants

these plans. For example, in one state it has facilitated discussion groups 

to help the state develop a model plan.

From calendar year 2011 to 2016, NCSACW processed approximately 

600 requests from state CPS agencies for short-term technical assistance 

related to improving care for substance-affected infants and their families. 

This short-term technical assistance included activities such as 

responding to telephone inquiries, mailing information, identifying needed 

resources, and making referrals. The NCSACW has also provided indepth assistance to 16 states to strengthen collaboration and linkages 

across child welfare, addiction treatment, medical communities, early care 

and education systems, and family courts to improve outcomes for 

substance-affected infants and their families. Through this in-depth 

assistance, NCSACW identified areas for improvement in states, 

including a lack of clarity regarding compliance with CAPTA requirements 

(such as identification, notification, and developing plans of safe care) 

and the need for state models to comply with CAPTA requirements to 

develop plans of safe care. In one state, the project overview report 

indicated that a next step for the in-depth technical assistance is to 

continue development of the plan of safe care model and ensure 

practices and protocols are in place across systems to meet CAPTA 

requirements. The report indicated that this will include ongoing work with 

hospitals to ensure consistent identification of infants with prenatal 

exposure and notifications to CPS.

Although18 states reported in our survey that technical assistance from 

the NCSACW was very or extremely helpful, 11 reported that it was 

moderately helpful, 7 reported that it was slightly helpful, and 1 reported 

that it was not at all helpful. Eleven states reported that they were not 

familiar with this assistance.

Since July 2016, when the most recent amendments to CAPTA were 

enacted, ACF has issued one information memorandum and two program 

instructions to states about provisions relating to substance-affected 

infants. According to an ACF official, information memoranda share 

information with states, while program instructions provide interpretations 

of the law and inform states of actions they must take. ACF issued an 

August 2016 information memorandum informing states of the 2016 

amendments to CAPTA. The August 2016 information memorandum also 

provided states with best practices, drawing on an NCSACW guide on 

collaboration for developing multi-systemic approaches to assist child 

welfare, medical, substance use disorder treatment, and other systems to 

support families affected by opioid use disorders.

Guidance
Page 27 GAO-18-196 Substance-Affected Infants

In January 2017, ACF issued a program instruction which provided 

guidance to states on implementing the 2016 amendments to CAPTA 

made by CARA and informed states of the flexibilities that they have 

under the law. Particularly, the guidance noted that:

• “CAPTA does not define ‘substance abuse’ or ‘withdrawal symptoms 

resulting from prenatal drug exposure.’ We recognize that by deleting 

the term ‘illegal’ as applied to substance abuse affecting infants, the 

amendment potentially expands the population of infants and families 

subject to the provision [that states have policies and procedures in 

place to address their needs]. States have flexibility to define the 

phrase, ‘infants born and identified as being affected by substance 

abuse or withdrawal symptoms resulting from prenatal drug 

exposure,’ so long as the state’s policies and procedures address the 

needs of infants born affected by both legal (e.g., prescribed drugs) 

and illegal substance abuse.”

• “While CAPTA does not specifically define a ‘plan of safe care,’ CARA 

amended the CAPTA state plan requirement . . . to require that a plan 

of safe care address the health and substance use disorder treatment 

needs of the infant and affected family or caregiver.”

• “CAPTA does not specify which agency or entity must develop the 

plan of safe care; therefore the state may determine which agency will 

develop the plans. We understand that in most instances the state 

already has identified the responsible agency in its procedures. When 

the state reviews and modifies its policies and procedures to 

incorporate the new safe care plan requirements in CARA, the state 

may wish to revisit its procedures regarding which agency develops 

the plan of safe care, including any role for agencies collaborating 

with CPS in caring for the infant and family.”

In addition, in April 2017, ACF issued a program instruction on reporting 

requirements, including changes in those requirements brought about by 

the 2016 amendments to CAPTA.

ACF conducted limited monitoring of states prior to the amendments 

passed in 2016. According to ACF officials, if presented with evidence of 

potential deficiencies, the agency would attempt to learn more about the 

state’s activities. In one instance, ACF reviewed South Carolina’s policies 

and found them to not be in compliance with the notification and safe care 

plan requirements of CAPTA. It directed the state to develop a program 

improvement plan to bring it into full compliance, which South Carolina 

submitted in April 2016. In a recent progress report (February–April 

Monitoring
Page 28 GAO-18-196 Substance-Affected Infants

2017), South Carolina reported that it was focused on updating statutes, 

developing policies and procedures, training child protective service 

workers, and building relations with health care providers.

In response to the 2016 amendments to CAPTA that added the 

requirement for HHS to monitor state policies and procedures to address 

the needs of substance-affected infants, ACF officials told us that staff in 

regional offices will review states’ annual reports, submitted in June 2017.

In its program instruction describing the reporting requirements, ACF 

asked each state to submit a new Governor’s Assurance, as well as a 

narrative explaining what they have done in response to the 

amendments. Specifically, ACF asked states to provide information on 

any changes that were made in state laws, policies, or procedures related 

to identifying and referring infants affected by substance abuse to CPS as 

a result of prenatal drug exposure. It also requested updates on states’

policies and procedures regarding the development of plans of safe care; 

a description of how states have developed systems to monitor plans of 

safe care; and a description of any outreach or coordination efforts the 

states have taken to implement the amendments, among other things. 

According to ACF officials, as of October 1, 2017, some states have 

provided information and a Governor’s Assurance demonstrating 

compliance with the amended provisions and some states have been 

placed on Program Improvement Plans, but the agency does not yet have 

information on the status of all states. An ACF official explained that, in 

their annual reports, some states either acknowledged that they are trying 

to get legislation enacted to bring them into compliance with the law and it 

has failed, or that they are not in compliance, for example, because they 

were limiting their policies to those infants affected only by illegal 

substances.

In addition, in May 2017, ACF issued a technical bulletin informing states 

of the new data collection requirements that resulted from the 2016 

amendments to CAPTA. ACF stated that it intends to collect data required 

by the amendments to CAPTA through the National Child Abuse and 

Neglect Data System, beginning with states’ submission of fiscal year 

2018 data. This system is maintained by ACF and contains data from 

states about children who have been abused or neglected. ACF issued a 

Federal Register notice about the proposed data elements and requested 

comments on the accuracy and quality of the proposed data collection, 
Page 29 GAO-18-196 Substance-Affected Infants

among other things;41 the comment period closed in July 2017. In the 

Federal Register notice, ACF notes that the 2016 amendments to CAPTA 

require it to collect information from state CPS agencies on the number of 

notifications from health care providers that are accepted for investigation 

or screened out. Further, of those infants screened in, ACF is required to 

collect data on the number of safe care plans developed for substanceaffected infants as well as the number of infants for whom a referral was 

made for appropriate services, including services for the affected family or 

caregiver. In the Federal Register notice, ACF proposed to collect this 

information using a combination of existing and new data from states.

Thirty-two states reported in our survey that they already collect data on 

the incidence of substance-affected and/or substance-exposed infants; 15 

of those 32 states also collect data on the incidence of NAS. Further, 18 

states reported that they collect data on the number of notifications health 

care providers make to CPS. Of those states, 8 reported that they collect 

specific data on notifications related to infants diagnosed with NAS.

 41Proposed Information Collection Activity; Comment Request, 82 Fed. Reg. 22,143 (May 

12, 2017).
Page 30 GAO-18-196 Substance-Affected Infants

Most states reported in our survey that additional guidance and 

assistance would be extremely or very helpful (see figure 3). For 

example, 38 states reported that additional guidance on requirements for 

health care providers to notify CPS of substance-affected infants would 

be extremely or very helpful. Similarly, 37 states reported that additional 

guidance on developing, implementing, and monitoring plans to ensure 

the safety and well-being of substance-affected infants would be 

extremely or very helpful.

Figure 3: Number of States That Reported a Need for Additional Guidance and Assistance from HHS in Addressing the Needs 

of Substance-Affected Infants and Their Families

Note: This figure does not include the number of states that reported that additional guidance and 

assistance would not be helpful or they did not know if the type of guidance or assistance would be 

helpful.

In written responses to our survey, states suggested ideas for additional 

guidance, training, and technical assistance to help them address the 

needs of substance-affected infants. States’ suggestions ranged from 

assisting in the development of substance abuse training curriculum for 

staff to video conferences with other states to share information about 

States Reported the Need 

for Additional Guidance 

and Assistance from HHS 

to Address Implementation 

Challenges
Page 31 GAO-18-196 Substance-Affected Infants

implementing CAPTA. A few states suggested that the guidance ACF has 

provided to date is not clear and reported grappling with the meaning of 

terms such as “affected” and “legal vs. illegal” substances, and two states 

requested “concrete guidance” and “specificity.” A few other states 

suggested that it would be helpful to obtain additional information about 

meeting the requirements of plans of safe care within the constraints of 

state and federal confidentiality laws, technical assistance on what plans 

of safe care look like, and a format for a plan of safe care.

ACF officials told us that states have flexibility with implementing the law 

and the agency does not anticipate issuing additional written guidance on 

the amendments to CAPTA made by CARA. ACF officials explained, in 

October 2017, that they were finalizing their review of the plans that 

states were required to submit. These plans are expected to include 

details on how the states are addressing the CAPTA requirements. While 

ACF could not provide the number, officials reported that some of the 

state plans submitted to date did not meet the requirements and those 

states have been asked to develop program improvement plans. They 

expect states to work with the ACF regional offices, which will provide or 

facilitate technical assistance to states on their implementation of the 

provisions, as needed. In addition to the review of state plans, ACF 

officials explained that regional officials may learn about states’ needs for 

technical assistance through meetings or informational exchanges.

Finally, the NCSACW is expected to review and prepare a summary of 

CAPTA state plans, current state statutes and policies and procedures 

relating to amended CAPTA requirements. In addition, according to ACF, 

NCSACW will continue to offer technical assistance on the development 

and implementation of plans of safe care to states. Technical assistance 

may include responding to requests for information, disseminating written 

materials and resources, and conducting webinars/conference calls. 

Further, ACF reported that some states will receive more in-depth 

technical assistance, albeit in some instances on a time-limited basis. 

Undertaking these actions can enhance states’ understanding of CAPTA 

requirements and better address known challenges such as the ones 

described in this report. However, more specific guidance from HHS on 

the issues which states have expressed confusion can assist them in 

better understanding CAPTA requirements and providing more effective 

protections and services for the children and families most in need.
Page 32 GAO-18-196 Substance-Affected Infants

The opioid epidemic has generated a significant increase in the number 

of substance-affected infants born and diagnosed with NAS. These 

vulnerable infants may be at risk for child abuse and neglect if adequate 

supports and services are not available to ensure their safety. CAPTA 

requires states to have policies and procedures to address the needs of 

these infants and their families, including mothers with a substance use 

disorder. However, states have experienced challenges implementing 

new CAPTA requirements. Many states reported in our survey that they 

are not completely adhering to the law. This is reflected in ACF’s review 

of state plans, some of which are resulting in program improvement 

plans. States cite challenges that stem, in part, from ACF’s lack of 

specificity in providing guidance on implementing CAPTA requirements. 

Specifically, states report that ACF has not provided clear guidance about 

which substance-affected infants health care providers are required to 

notify CPS about, as well what a plan of safe care is and for whom it 

should be developed. Given the challenges that states reported facing in 

implementing the provisions, a majority reported wanting more help from 

ACF, such as trainings and teleconferences with other states, to help 

overcome their challenges. Additional guidance and assistance from HHS 

would help states better understand what they need to do to develop 

policies and procedures that meet the needs of children and families 

affected by substance use.

The Secretary of HHS should direct ACF to provide additional guidance 

and technical assistance to states to address known challenges and 

enhance their understanding of CAPTA requirements, including the 

requirements for health care providers to notify CPS of substanceaffected infants and the development of a plan of safe care for these 

infants.

We provided a draft of this report to HHS for review and comment. HHS’s 

comments are reproduced in appendix I. HHS also provided technical 

comments, which we incorporated into our report where appropriate.

HHS did not concur with our recommendation. HHS stated that:

• in January 2017, ACF clarified in guidance several of the issues 

raised in the report, including the population of infants and families 

covered by the provision and the state flexibility inherent in 

Conclusions

Recommendation for 

Executive Action

Agency Comments 

and Our Evaluation
Page 33 GAO-18-196 Substance-Affected Infants

determining which infants are “affected by” substance abuse, and the 

terminology used in the federal law of what a “plan of safe care” is;

• ACF believes it is necessary to allow states the flexibility to meet the 

requirements in the context of their state CPS program;

• several of the challenges that the GAO notes are not specific to 

CAPTA compliance with the safe care plan and notification 

requirements; and

• it does see the value in continuing to provide technical assistance to 

states to address known challenges and to enhance their 

understanding of CAPTA requirements. 

With respect to HHS’ January 2017 guidance, state officials reported in 

our survey and during site visits that they found some terms unclear and 

were uncertain about what is required of them. In written responses to our 

survey, states reported challenges understanding how to define 

substance-affected under CAPTA. In addition, as we note in our report, 

the guidance about plans of safe care described the following: “While 

CAPTA does not specifically define a ‘plan of safe care,’ CARA amended 

the CAPTA state plan requirement . . . to require that a plan of safe care 

address the health and substance use disorder treatment needs of the 

infant and affected family or caregiver.” States reported in our survey and 

in follow-up discussions that this lack of specificity remained an ongoing 

challenge for them. For example, as we discuss in our report, one state 

that we followed up with in August 2017 was still unsure about whether its 

safety plans would meet CAPTA requirements for plans of safe care. In 

addition, as of October 2017, HHS confirmed that some state plans did 

not meet CAPTA requirements and that the states were asked to develop 

program improvement plans. Accordingly, a key ongoing challenge was 

not addressed by the January guidance.

Regarding allowing states flexibility to meet CAPTA requirements, we 

acknowledge in our report that HHS said that states have flexibility. 

However, in our survey and site visits, states indicated that they would 

find it helpful for HHS to provide them with greater specificity around 

terms, including the degree of flexibility they are allowed. States added 

that this would include parameters within which they can develop policies 

and procedures that meet CAPTA requirements. We continue to believe 

that additional guidance addressing these concerns would benefit states 

and could be provided without imposing additional mandates.
Page 34 GAO-18-196 Substance-Affected Infants

Concerning HHS’ third point that some of the issues raised in the report 

are not specific to CAPTA, the states we visited interpret CAPTA to 

require that plans of safe care be developed for all substance-affected 

infants who are referred to CPS. During our discussions with states and in 

responses to our survey, state officials did not delineate which federal 

requirement impacted their approach to serving children and families. As 

stated in our conclusion, vulnerable infants may be at risk for child abuse 

and neglect if adequate supports and services are not available to ensure 

their safety. 

Lastly, HHS indicated that it will continue to provide technical assistance 

to states and fund demonstration sites to establish or enhance 

collaboration across community agencies and courts. Although continuing 

to provide technical assistance to states should be beneficial, our findings 

demonstrate that additional guidance is also needed. For example, 38 

states reported that additional guidance on requirements for health care 

providers to notify CPS of substance-affected infants would be extremely 

or very helpful. Similarly, 37 states reported that additional guidance on 

developing, implementing, and monitoring plans to ensure the safety and 

well-being of substance-affected infants would be extremely or very 

helpful.

Overall, given the results of our review, we continue to believe our 

recommendation is warranted. Effective implementation of our 

recommendation should help states better implement protections for 

children.

As agreed with your office, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies of this report to the 

appropriate congressional committees and the Secretary of Health and 

Human Services. In addition, the report is available at no charge on the 

GAO website at http://www.gao.gov.
Page 35 GAO-18-196 Substance-Affected Infants

If you or your staff have any questions about this report, please contact 

me at (202) 512-7215 or larink@gao.gov. Contact points for our Offices of 

Congressional Relations and Public Affairs may be found on the last page 

of this report. GAO staff who made key contributions to this report are 

listed in appendix II.

Sincerely yours,

Kathryn Larin, Director

Education, Workforce, and Income Security Issues
Appendix I: Comments from the Department of 

Health and Human Services

Page 36 GAO-18-196 Substance-Affected Infants

Appendix I: Comments from the Department 

of Health and Human Services
Appendix I: Comments from the Department of 

Health and Human Services

Page 37 GAO-18-196 Substance-Affected Infants
Appendix I: Comments from the Department of 

Health and Human Services

Page 38 GAO-18-196 Substance-Affected Infants
Appendix I: Comments from the Department of 

Health and Human Services

Page 39 GAO-18-196 Substance-Affected Infants
Appendix II: GAO Contact and Staff 

Acknowledgments

Page 40 GAO-18-196 Substance-Affected Infants

Kathryn A. Larin, (202) 512-7215 or larink@gao.gov.

In addition to the contact above, Sara Schibanoff Kelly (Assistant 

Director), Ramona L. Burton (Analyst-in-Charge), Kay E. Brown, Hannah 

Dodd, Ada Nwadugbo, and Srinidhi Vijaykumar made key contributions to 

this report. Also contributing to this report were Sandra L. Baxter, James 

Bennett, Gina Hoover, Jessica Orr, Rhiannon Patterson, Jean McSween, 

and James Rebbe.

Appendix II: GAO Contact and Staff 

Acknowledgments

GAO Contact

Staff 

Acknowledgments

(100957)
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