CONCLUSION

The only significant difference between States with child welfare laws addressing
prenatal substance exposure and States without such laws is the way they investigate
prenatal substance exposure cases. It appears that the major impact of these laws has
been to lay the groundwork for developing special procedures and improving
coordination.

There appears to be little agreement among States about whether prenatal substance
exposure should be considered child abuse or neglect. States considering amending
their child welfare laws to include prenatal substance exposure would be wise to
review the expectations and experiences of States with such laws before deciding how
to proceed.

In the last 2 years, most of the prenatal substance exposure legislation has involved
prevention, treatment, and education initiatives rather than changes in child welfare
laws. States may be emphasizing early intervention and education programs designed
to prevent this problem from ever becoming a child welfare concern.

14


depth. This lack of consistency was true between States as well as within the same
State, and regardless of whether or not a specific State law existed. The differing
degrees of variation among the 43° hospitals contacted in 1990 is illustrated below.

> written protocols: 16 hospitals had written protocols and 20 did not. Seven did
not respond.

> grounds for testing: 30 of 42 responding hospitals tested if there were medical
complications at birth, 26 if the mother had no prenatal care, and 24 if the
mother had a history of substance abuse. One hospital tested all newborns.

> who is tested: 34 tested mother and baby, 8 tested the baby only, and 1 tested
only the mother.

> need for mother’s informed consent: 31 of 42 responding hospitals did not
need the mother’s consent to test herself or her baby; 3 others required her
consent. Eight needed the mother’s consent to test her, but not to test the
baby.

> substances included in the test: 10 hospitals screened for all drugs, including
alcohol; 9 others screened for all drugs except alcohol. Of the remaining 24, all
screened for cocaine, 15 for amphetamines, and 8 for alcohol.

Even in Minnesota, where the law requires physicians who suspect prenatal substance
exposure to test mother and infant, testing practices varied in four hospitals contacted.

Willingness of Child Welfare Agencies to Receive Reports

Child welfare agencies in 43 States accepted reports based solely on prenatal
substance exposure during our 1990 data collection. This total included all 9 States
which had laws at that time and 34 States without laws. Six of these 34 States left the
decision to accept reports to each county’s discretion.

States differed in the types of substances (illegal drugs, prescription drugs, and
alcohol) they accepted for reporting. All 43 States that accepted reports took prenatal
illegal drug exposure cases. Thirty-six of the 43 States also accepted alcohol reports
and 20 accepted reports for prescription drug exposure.

The remaining eight States reported they did not accept prenatal substance exposure
reports unless other suspected abuse and neglect issues were present. These included
risk of physical harm and mother’s inability to care for the child. Five of the eight

5For some categories, one hospital respondent was unable to definitively report the
hospital’s policy. Therefore, the total number of responding hospitals in those
categories is 42.


As used in this section and section 232.77, "medically relevant test" means a test that
produces reliable results of exposure to cocaine, heroin, amphetamine,
methamphetamine, or other illegal drugs, or combinations or derivatives thereof,
including a drug urine screen test.

Photographs, X-rays, and Medically Relevant Tests
IOWA CODE ANN. s. 232.77

(2) Ifa health care practitioner discovers in a child under one year of age physical
or behavioral symptoms of the effects of exposure to cocaine, heroin,
amphetamine, methamphetamine, or other illegal drugs, or combinations of
derivatives thereof, which were not prescribed by a health practitioner, or if the
health practitioner has determined through examination of the natural mother
of the child that the child was exposed in utero, the health practitioner may
perform or cause to be performed a medically relevant test, as defined in
section 232.73, on the child. The practitioner shall report any positive results of
such a test on the child to the department, unless the natural mother has shown
good faith in seeking appropriate care and treatment. The department shall
begin an investigation pursuant to section 232.71 upon receipt of such a report.
The positive result shall constitute a showing of probable cause under section
232.71, subsection 3, but shall not be used in any criminal prosecution of the
natural mother of the child, and shall not represent grounds for a determination
of child abuse.

MASSACHUSETTS
Definition of Abuse and Neglect: Reporting Law
MASS. GEN. LAWS ANN. ch. 119 s. 51A

Any physician, medical intern, hospital personnel engaged in the examination, care or
treatment of persons, medical examiner, psychologist, emergency medical technician,
dentist, nurse, chiropractor, podiatrist, osteopath, public or private school teacher,
educational administrator, guidance or family counselor, day care worker or any
person paid to care for or work with a child in any public or private facility, or home
or program funded by the commonwealth or licensed pursuant to the provisions of
chapter twenty-eight A. which provides day care or residential services to children or
which provides the services of child care resource and referral agencies, voucher
management agencies, family day care systems and child care food programs,
probation officer, clerk/magistrate of the district courts, social worker, foster parent,
firefighter or policemen, who, in his professional capacity shall have reasonable cause
to believe that a child under the age of eighteen years is suffering serious physical or
emotional injury resulting from abuse inflicted upon him including sexual abuse, or
from neglect, including malnutrition, or who is determined to be physically dependent
upon an addictive drug at birth, shall immediately report such condition to the
department by oral communication and by making a written report within forty-eight
hours after such oral communication; provided, however, that whenever such person

A-4


> Child welfare agencies in States with such laws are more likely to investigate
reports than child welfare agencies in States without these laws.

> Women have been prosecuted both in States with these laws and in States
without them. The decision to prosecute rests with local prosecuting attorneys.

> While there is no agreement on what works best, most respondents believe that
prosecution is not an effective deterrent.

> State legislative focus may be shifting from changing child welfare laws to
providing prevention, education, and treatment services.

CONCLUSION

The only significant difference between States with child welfare laws addressing
prenatal substance exposure and States without such laws is the way they investigate
prenatal substance exposure cases. It appears that the major impact of these laws has
been to lay the groundwork for developing special procedures and improving
coordination.

There appears to be little agreement among States about whether prenatal substance
exposure should be considered child abuse or neglect. States considering amending
their child welfare laws to include prenatal substance exposure would be wise to
review the expectations and experiences of States with such laws before deciding how
to proceed.

In the last 2 years, most of the prenatal substance exposure legislation has involved
prevention, treatment, and education initiatives rather than changes in child welfare
laws. States may be emphasizing early intervention and education programs designed
to prevent this problem from ever becoming a child welfare concern.


APPENDIX

STATE CHILD WELFARE LAWS
ADDRESSING PRENATAL SUBSTANCE EXPOSURE

CALIFORNIA
PERINATAL SUBSTANCE ABUSE SERVICES ACT

SECTION 1. (i) Urine testing to identify the presence of drugs in newborns and their
mothers, which is used extensively as a tool for identifying and reporting suspected
child abuse or neglect to child protective agencies, does not provide information that is
adequate to determine either the level of risk to the newborn or the ability of the
mother to provide adequate care for her child. This testing does not provide data
which would be helpful for prevention and early intervention, nor does it identify
exposure of infants to alcohol. The standard of accuracy of these tests is highly
variable among different laboratories and technicians.

DIVISION 9.7
Chapter 1. General Provisions

SEC. 10901. (a) It is the intent of the Legislature, in enacting this division, to do all of
the following:

(2) Encourage the development of a comprehensive delivery system of services to the
mother, child, and family.

(b) It is further the intent of the Legislature, that the goals of that delivery system
shall be to do all the following:

(1) Develop policies which recognize that the incidence of substance exposed
infants and maternal substance abuse is fundamentally a health problem which
is driven by addictive behavior, and that a substantially expanded substance
abuse treatment, health care, public health nursing, and social services support
system is required to deal with the problem effectively.

Chapter 2. Definitions
SEC. 10915. "Substance exposed infant" means any infant from birth to age three

exposed, during the prenatal period through its mother’s substance abuse or
dependence.


MISSOURI
An Act Relating to the Protection of Certain Children
1991 Mo. SB 190

Section 7

1. Notwithstanding the physician-patient privilege, any physician or health care
provider may refer to the department of health families in which children may have
been exposed to a controlled substance listed in section 195.017, RSMo, schedules I,
II, and III, or alcohol as evidenced by:

(1) Medical documentation of signs and symptoms consistent with controlled
substances or alcohol exposure in the child at birth; or

(2) Results of a confirmed toxicology test for controlled substances
performed at birth on the mother or the child; and

(3) | Awritten assessment made or approved by a physician, health care
provider, or by the division of family services which documents the child
as being at risk of abuse and neglect.

Section 8

1. The department of social services shall provide protective services for children that
meet the criteria established in section 7 of this act. In addition the department of
social services may provide preventive services for children that meet the criteria
established in section 7 of this act.

NEVADA
Protective Services and Custody
NEV. STAT. s. 432B.330

Circumstances under which a child may or may not be in need of protection.
(1) A child is in need of protection if:

(b) He is suffering from congenital drug addiction or the fetal alcohol syndrome,
because of the faults or habits of a person responsible for his welfare;


For the purpose of this paragraph, "controlled substance" means any drug
controlled in Schedule I or Schedule II of s. 893.03.

ILLINOIS
Definition of Abuse and Neglect: Reporting Law
ILL. ANN. STAT. ch. 23, s. 2053

"Neglected child" means any child
who is a newborn infant whose blood or urine contains any amount of a
controlled substance as defined in subsection (f) of Section 102 of the Illinois
Controlled Substances Act or a metabolite thereof, with the exception of a
controlled substance or metabolite thereof whose presence in the newborn
infant is the result of medical treatment administered to the mother or the
newborn infant.

INDIANA
Definition of Abuse and Neglect: Court Code
IND. CODE ANN. s. 31-6-4-3.1

A child is a child in need of services if:
(1) _ the child is born with fetal alcohol syndrome or an addiction to a controlled
substance or a legend drug;

or (2) the child:

(C) is at a substantial risk of a life threatening condition; that arises or is substantially
aggravated because the child’s mother was addicted to alcohol, a controlled substance,
or a legend drug during pregnancy; and needs care, treatment, or rehabilitation that
the child is not receiving, or that is unlikely to be provided or accepted without the
coercive intervention of the court.

IOWA
Immunity From Liability
IOWA CODE ANN. s. 232.73

A person participating in good faith in the making of a report, or photographs, or
X-rays, or in performance of a medically relevant test pursuant to this chapter, or
aiding and assisting in an investigation of a child abuse report pursuant to section
232.71, shall have immunity from any liability, civil or criminal, which might otherwise
be incurred or imposed. The person shall have the same immunity with respect to
participation in good faith in any judicial proceeding resulting from the report or
relating to the subject matter of the report.


(43 of 55, 49 of 58) were strongly against prosecution followed by legal professionals
(38 of 55) and hospital staff (35 of 54).

However, several prosecuting attorneys made a distinction between effectiveness and
appropriateness. Although they believed that prosecution did not deter pregnant
women from using drugs, they felt it was the appropriate response to a crime. One
assistant district attorney related that he would never say he filed criminal petitions in
these cases to rehabilitate; he did it strictly for punishment.

The greatest concern reported was that instead of helping to bring substance abusing
women and their children into the child welfare and health care system, prosecution
would frighten them away. According to some, fear of prosecution would not stop a
pregnant woman from using drugs. Instead, it could cause her to have an abortion, go
underground, not seek treatment, or not give birth in a hospital. One child welfare
worker characterized it this way, "Prosecution doesn’t impact substance abuse. It has
potential to push them underground."

Even though three-quarters of the respondents did not favor prosecution, several
indicated they could see its value if used to get women into treatment.

STATE LEGISLATIVE FOCUS MAY BE SHIFTING FROM CHANGING CHILD
WELFARE LAWS TO PROVIDING PREVENTION, EDUCATION, AND
TREATMENT SERVICES.

After our initial data collection, we performed a legislative follow-up to see if any
additional legislation had been enacted or implemented in 1990 or 1991. We found
that prenatal substance exposure is a topic of continuing concern at the State level.

Twenty-three States had enacted or implemented legislation concerning prenatal
substance exposure. However, only three of them (California, Missouri, Wisconsin)
implemented laws involving child welfare or testing.

The majority of new legislation targeted prevention, treatment, and education rather
than child welfare as a way of addressing prenatal substance exposure. States seem to
be focusing on a front-end proactive response to the issue.

State legislation ranged from specific funding bills to comprehensive laws covering a
wide range of services. Half of the States (12) each implemented one law; the other
half (11) each passed several laws. Some highlights:

> Six States enacted comprehensive programs including identification,
intervention, and treatment services. For example, Louisiana enacted a plan to
assure the availability of appropriate treatment, develop residential treatment
programs specifically designed for substance abusing women and their children,
increase public awareness, train providers, and encourage the medical
community to identify and refer pregnant abusers to treatment programs.

12


OVERVIEW OF CHILD WELFARE
REPORTING PROCESS

Child welfare agencies differ in the way they handle allegations of prenatal substance
exposure. The identification and acceptance of substance exposed infants into the
child welfare system depends upon State child welfare laws and policies, health care
practitioners’ knowledge of prenatal substance exposure, and community awareness.
Although prenatal substance exposure cases are handled differently throughout the
nation, the States’ child welfare processes contain similar components.

BASIS FOR REPORT OF PRENATAL SUBSTANCE EXPOSURE

Prenatal substance exposure cases are reported to child welfare agencies based on
drug test results or suspicion of exposure. Reporters of prenatal substance exposure
are most often health care practitioners, relatives, and neighbors. However, anyone
may make a report.

Testing infants for drugs is the primary means of identifying prenatal substance
exposure. Whether a test is performed depends mainly on the judgment of health
care practitioners and hospital policies. Infants may be reported to child welfare
agencies if the reporter suspects that prenatal substance exposure has occurred.
Suspicion may be based on physical symptoms evident in mother or baby. Suspicion
may also arise from a knowledge of the mother’s behavior or lifestyle.

RECEIPT OF REPORT BY CHILD WELFARE AGENCY

Reports of prenatal substance exposure are received by either a central or a local
agency. Some States have central registries which receive reports and forward them to
local agencies. In other States, each locality receives allegations directly.

Once a report reaches the local agency, it is screened according to pre-established
criteria. The criteria may vary from State to State, as each agency develops guidelines
in accordance with State law and policy. Reports which meet these criteria are
accepted and forwarded to the appropriate personnel.

Once a case is accepted it may be prioritized by the local agency. Prioritization allows
the most dangerous cases to be swiftly investigated. Cases are prioritized according to
the level of risk for the child. The cases are ranked from high priority to low priority
and are investigated in this order. Therefore, the acceptance of an allegation does not
always ensure that the case will be investigated timely. In areas with large numbers of
reports, some cases are never investigated.


INTRODUCTION

PURPOSE

This report examines how specific prenatal substance exposure provisions in State
child welfare laws affects the handling of these cases.

BACKGROUND

An alcohol or drug exposed infant is born every 90 seconds in the United States.!
However, prenatal exposure of infants to drugs and alcohol is not a new phenomenon.
For decades, children have been born with medical complications caused by their
mothers’ use of harmful substances during pregnancy. Yet, recent dramatic increases
in the number of substance exposed infants and their burden on child welfare systems
have focused attention on this growing problem.

In 1990, the Office of Inspector General (OIG) issued a report on the impact of
cocaine exposed infants on child welfare agencies ("Crack Babies" OEI 03-89-01540).
The study revealed that States vary in the way they handle cases of prenatal substance
exposure. It appeared that the child welfare statutes’ definitions of child abuse and
neglect determined the course of action taken in each State.

Little nationwide information is available. However, a 1990 report by the American
Bar Association deals with coordinating the responses of the legal, medical, and
protective services systems in handling cases of drug exposed infants and their
families.

This inspection was conducted in response to a request from the Office of Human
Development Services, whose programs are now part of the Administration for
Children and Families. In this report, we refer to States that explicitly mention
substance exposed newborns in their child welfare statutes as "States with laws."
States without specific references are referred to as "States without laws."

METHODOLOGY

During 1990, we reviewed current child welfare laws from all 50 States and the District
of Columbia (hereafter referred to as a State) to determine if they made specific

1§chipper, William, Testimony before the U.S. House of Representatives, Select
Committee on Narcotics Abuse and Control, July 30, 1991.

2ABA Center on Children and the Law, ABA Young Lawyers Division, Drug
Exposed Infants and Their Families: Coordinating Responses of the Legal, Medical and
Child Protection System (Washington, DC: American Bar Association, 1990).


TABLE OF CONTENTS

EXECUTIVE SUMMARY ........ 6... cece eee eee eect teen e teen eeeeee i
INTRODUCTION ...... 2... eee eeeeeee ee tenet eee eee eens 1
OVERVIEW OF CHILD WELFARE REPORTING PROCESS ..........-... 4
FINDINGS
State laws 2... oe ccc eee eee tener e erent eens 6
Testing and reporting ... 2... 6... eee eee ere teeter e ete teee 7
Investigations 2.2... eee eee eee ete e teens 9
Prosecution ©... 0... eee cece eee ee ee eee eter ee ete tanes 10
Views on effectiveness .. 2... 0... cece cee eee erent tenet eeeees 11
Shifting legislative focus ... 2.0... cece ee eee eee eee eees 12
CONCLUSION ... 2... 2c eee eee eee e enna 14

APPENDIX: State Laws ........ 00: cece eee eee eee reece eee e eee e eens A-1


Thirteen States focused on treatment initiatives for pregnant substance abusers
and addicted mothers with children. States created new treatment programs or
provided priority access to existing treatment facilities.

Ten States required State agencies, health care providers, and educators to
disseminate information about the effects of substance abuse during pregnancy.
One of these States, Missouri, enacted legislation requiring licensed physicians
providing prenatal care to counsel patients on the perinatal effects of substance
abuse. The law further requires that patients sign a written statement certifying
that the counseling has been received.

Seven States established programs to provide prenatal substance exposure
training and information to health care, social services, and education providers.

Seven State laws created task forces or special committees to collect data and
provide recommendations on the prenatal substance exposure problem.

Five States passed legislation requiring licensed alcoholic beverage vendors to
post signs or provide information on the effects of alcohol and chemical
dependency on pregnancy. Three States passed laws requiring this information
to be distributed with marriage licenses.

13


substance exposure cases. They included prosecuting and defense attorneys,
legislators, and civil liberties advocates.

Legislative Follow-up

Our initial data collection was performed from June to December of 1990. In order
to provide current information on legislative initiatives, we have also reviewed pending
and enacted State legislation through January 1, 1992. The maternal and child health
legislation was provided by the Intergovernmental Health Policy Project at George
Washington University. The Project published a compendium of State substance
abuse laws entitled 1991 State Substance Abuse Laws.


so required to report is a member of the staff of a medical or other public or private
institution, school or facility, he shall immediately either notify the department or
notify the person in charge of such institution, school or facility, or that person’s
designated agent, whereupon such person in charge or his said agent shall then
become responsible to make the report in the manner required by this section.

MINNESOTA
Definition of Abuse and Neglect: Reporting Law
MINN. STAT. s. 626.556

Subdivision 2. Definitions

"Neglect" includes prenatal exposure to a controlled substance, as defined in section
253B.02, subdivision 2, used by the mother for a nonmedical purpose, as evidenced by
withdrawal symptoms in the child at birth, results of a toxicology test performed on the
mother at delivery or the child at birth, or medical effect or developmental delays
during the child’s first year of life that medically indicate prenatal exposure to a
controlled substance.

MINN. STAT. s. 626.5561

Subdivision 1. Reports Required

A person mandated to report under section 626.556, subdivision 3, shall immediately
report to the local welfare agency if the person knows or has reason to believe that a
woman is pregnant and has used a controlled substance for a nonmedical purpose
during the pregnancy. Any person may make a voluntary report if the person knows
or has reason to believe that a woman is pregnant and has used a controlled substance
for a nonmedical purpose during the pregnancy. An oral report shall be made
immediately by telephone or otherwise. An oral report made by a person required to
report shall be followed within 72 hours, exclusive of weekends and holidays, by a
report in writing to the local welfare agency. Any report shall be of sufficient content
to identify the pregnant woman, the nature and extent of the use, if known, and the
name and address of the reporter.

Subdivision 2. Local Welfare Agency

If the report alleges a pregnant woman’s use of a controlled substance for a
nonmedical purpose, the local welfare agency shall immediately conduct an
appropriate assessment and offer services indicated under the circumstances. Services
offered may include, but are not limited to, a referral for chemical dependency
assessment, a referral for chemical dependency treatment if recommended, and a
referral for prenatal care. The local welfare agency may also take any appropriate
action under section 253B, including seeking an emergency admission under section
253B.05. The local welfare agency shall seek an emergency admission under section
253B.05 if the pregnant woman refuses recommended voluntary services or fails
recommended treatment.


Department of Health and Human Services

OFFICE OF
INSPECTOR GENERAL

PRENATAL SUBSTANCE EXPOSURE:
STATE CHILD WELFARE LAWS
AND PROCEDURES

Ices.»

“y
a Richard P. Kusserow
F (4 INSPECTOR GENERAL

OE1-03-90-02000



FINDINGS

TWELVE STATES HAVE CHILD WELFARE LAWS ADDRESSING PRENATAL
SUBSTANCE EXPOSURE.

At the time of our data collection, child welfare laws which make specific reference to
prenatal substance exposure had been implemented in Florida, Illinois, Indiana, Iowa,
Massachusetts, Minnesota, Nevada, Oklahoma, and Utah. These laws vary in
definitions used, toxicology testing criteria,* and reporting requirements.

Three additional States (California, Missouri, Wisconsin) implemented laws involving
prenatal substance exposure and child welfare issues after our initial data collection.

As shown below, seven State laws contain definitions of substance exposed infants, as
abused, neglected, harmed, or in need of services. Three mention testing, and eight
contain specific reporting provisions.

PRENATAL SUBSTANCE EXPOSURE PROVISIONS
IN STATE CHILD WELFARE LAWS

STATE DEFINITION | TESTING | REPORTING
CALIFORNIA x
FLORIDA x Xx
ILLINOIS x x
INDIANA x

IOWA | x x
MASSACHUSETTS x
| MINNESOTA Xx x x
MISSOURI x

| NEVADA x

OKLAHOMA x

UTAH x
WISCONSIN x x

4A toxicology test is a blood or urine test for drugs and/or alcohol.


INVESTIGATION OF REPORT BY CHILD WELFARE AGENCY

If an allegation is accepted and the child is considered to be at risk of abuse, the case
is assigned to a caseworker and investigated.

The caseworker talks with all parties involved. This may include family, health care
practitioners, neighbors, friends, and other social service agencies. The caseworker
also prepares a risk assessment for each case. Caseworkers use risk assessments as a
tool to define the level of risk to the child.

The caseworker then reviews the case and determines the appropriateness and safety
of the home environment. If the child is in an environment considered to be
inappropriate, further steps are taken to ensure the safety of the child.


reference to prenatal substance exposure. We also gathered preliminary information
concerning State policies and court procedures from current literature.

We interviewed a total of 229 respondents, including child welfare administrators and
caseworkers, hospital medical and social services staff, and attorneys.

National Telephone Survey

We performed telephone interviews with State child welfare administrators in every
State. Respondents were asked to describe State procedures for handling prenatal
substance exposure cases and to assess the effectiveness of their State policies in
identifying and protecting substance exposed infants.

In-depth State Review

We selected 12 States for more in-depth review. Child welfare laws in six of these
States specifically addressed prenatal substance exposure (FL, IL, MA, MN, NV, OK).
Laws in the remaining six States did not (CA? KY, MI, NJ, NY, SC). About half of
all American children live in these 12 States.

We chose a targeted sample of States. Several States were included at the request of
the Office of Human Development Services. The remaining States were selected
depending on when their laws or policies were implemented, the comprehensiveness of
their laws and policies, whether other States were using them as models, and

whether localities in the State were prosecuting women for substance abusing
behavior.

We selected two sites per State to minimize local biases and to review local
differences in implementing State laws and policies. When possible, we chose one
urban and one non-urban site. In seven States, the interviews were done on-site. For
two States, we did a mix of on-site and telephone interviews; in the remaining three
States we conducted telephone interviews.

In each of the 12 States, we interviewed child welfare agency staff, hospital medical
and social services staff, and attorneys. In addition to the State child welfare
administrators, we interviewed 61 child welfare agency workers in the 12 States.

These respondents were most often selected based on suggestions from State and local
child welfare administrators. Our review included 55 hospital respondents.

Depending on the hospital administration practices, we spoke with either physicians or
social service staff who were knowledgeable about the hospital’s response to prenatal
substance exposure cases. We interviewed 58 attorneys who had handled prenatal

3California’s prenatal substance exposure law took effect January 1, 1991, after we
finished data collection.


Chapter 4. State Administration
SEC. 3. Section 11165.13 is added to the Penal Code, to read:

For purposes of this article, a positive toxicology screen at the time of the delivery of
an infant is not in and of itself a sufficient basis for reporting child abuse or neglect.
However, any indication of maternal substance abuse shall lead to an assessment of
the needs of the mother and child pursuant to Section 10922 of the Health and Safety
Code. If other factors are present that indicate risk to a child, then a report shall be
made. The report shall be made only to county welfare departments and not to law
enforcement agencies.

FLORIDA
Definition of Abuse and Neglect: Reporting Law
FLA. STAT. ANN. s. 415.503

(3) "Child abuse or neglect" means harm or threatened harm to a child’s physical
or mental health or welfare by the acts or omissions of the parent, adult
household member, or other person responsible for the child’s welfare, or, for
purposes of reporting requirements, by any person.

(9) "Harm" to a child’s health or welfare can occur when the parent or other
person responsible for the child’s welfare:

(a) _Inflicts, or allows to be inflicted, upon the child physical or mental injury. Such
injury includes, but is not limited to:

(2) Physical dependency of a newborn infant upon any drug controlled in Schedule
I of s. 893.03, upon any drug controlled in Schedule II of s. 893.03 with the
exception of drugs administered in conjunction with a detoxification program as
defined in s. 397.021, or upon drugs administered in conjunction with medically-
approved treatment procedures; provided that no parent of such a newborn
infant shall be subject to criminal investigation solely on the basis of such
infant’s drug dependency;

(g) Exposes a child from birth to 5 years of age to drugs. Exposure to drugs is
established by a preponderance of evidence that the mother used a controlled
substance during pregnancy or that the parent or parents demonstrate
continued chronic and severe use of a controlled substance and as a result of
such exposure the child exhibits any of the following:

1 Abnormal growth.

2. Abnormal neurological patterns.
3. Abnormal behavior problems.

4. Abnormal cognitive development.


OKLAHOMA
Definition of Abuse and Neglect: Court Code
OKLA. STAT. ANN. tit. 10, s. 1101

(4) "Deprived child’ means a child who is for any reason destitute, homeless, or
abandoned ... or who is a child in need of special care and treatment because
of his physical or mental condition including a child born in a condition of
dependence on a controlled dangerous substance, and his parents, legal
guardian, or other custodian is unable or willfully fails to provide said special
care and treatment ...

Reporting Law
OKLA. STAT. ANN. tit. 21, s. 846

(A) _ ...Every physician or surgeon, including doctors of medicine, licensed
osteopathic physicians, residents and interns, or any other health care
professional attending the birth of a child who appears to be a child born in a
condition of dependence on a controlled substance shall promptly report the
matter to the county office of the Department of Human Services in the county
in which such birth occurred.

UTAH
Reporting Law
UTAH STAT. s. 62A-4-504

Fetal alcohol syndrome and drug dependency - Reporting requirements.
When any person, including a licensee under the Medical Practice Act or the
Nurse Practice Act, attends the birth of a child or cares for a child, and
determines that the child, at the time of the birth, has fetal alcohol syndrome or
fetal drug dependency, he shall report that determination to the division as
soon as possible.

UTAH STAT. s. 62A-4-509

Investigation by division - Temporary protective custody.
The division shall make a thorough investigation upon receiving either an oral
or written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug
dependency when there is reasonable cause to suspect a situation of abuse,
neglect, fetal alcohol syndrome, or fetal drug dependency. The primary
purpose of that investigation shall be protection of the child.


EXECUTIVE SUMMARY

PURPOSE

This report examines how specific prenatal substance exposure! provisions in State
child welfare laws affect the handling of these cases.

BACKGROUND

An alcohol or drug exposed infant is born every 90 seconds in the United States. The
recent increase in the number of substance exposed infants has focused attention on
the problem of prenatal substance exposure.

States handle prenatal substance exposure in different ways. These include adding
specific prenatal substance exposure provisions to child welfare laws, establishing
testing and reporting requirements, and prosecuting women. The different approaches
have affected State child welfare, medical, and legal systems to varying degrees.

The Office of Human Development Services, whose programs are now in the
Administration for Children and Families, asked us to examine whether States with
prenatal substance exposure provisions in their child welfare laws handle such cases
differently than States without specific provisions. In this report, we refer to these
States as "States with laws" and "States without laws."

METHODOLOGY

In 1990, we reviewed child welfare laws from all 50 States and the District of
Columbia. We also gathered information on State prenatal substance exposure
procedures through telephone discussions with a child welfare official in each State.

We selected 12 States for in-depth review. Six were States with laws (FL, IL, MA,
MN, NV, OK) and six were States without laws (CA, KY, MI, NJ, NY, SC). We
interviewed 229 respondents, including child welfare administrators and staff, hospital
medical and social services staff, and attorneys.

FINDINGS
> Twelve States have child welfare laws addressing prenatal substance exposure.
> Such laws have little effect on hospital testing practices or the willingness of

child welfare agencies to receive reports of prenatal substance exposure.

MSubstance exposure" means exposure to illegal drugs, legal drugs, and alcohol.


States referred infants to local health departments for services. Services included
visiting home nurses and high risk infant programs.

CHILD WELFARE AGENCIES IN STATES WITH SUCH LAWS ARE MORE
LIKELY TO INVESTIGATE REPORTS THAN CHILD WELFARE AGENCIES IN
STATES WITHOUT THESE LAWS.

Report acceptance by child welfare agencies does not necessarily lead to an
investigation. While 43 States accepted prenatal substance exposure reports in 1990,
only 30 investigated them based solely on prenatal substance exposure. This included
all 9 States with laws at that time and 21 States without laws.

According to respondents, the remaining 13 States investigated only when other
suspected abuse and neglect factors were present. As mentioned previously, these
factors included risk of physical harm, mother’s inability to care for the child, and also
physical drug withdrawal symptoms in the infant.

The 30 States used several indicators as sufficient grounds to initiate an investigation
involving prenatal substance exposure. As shown below, 30 States investigated reports
based on a positive toxicology screen. Eighteen States also investigated based on
suspicion of substance exposure. A mother’s admission of substance abuse during
pregnancy could trigger an investigation in 14 States.

INDICATIONS ACCEPTED TO INITIATE AN

INVESTIGATION
STATES WITH STATES TOTAL
LAWSs* WITHOUT LAWS
N=9 N=42 N=51

INVESTIGATE

REPORTS** 9 21 30
Positive Toxicology 9 | 21 30
Suspicion 6 12 18
Self Admission | 5 9 14

* Three States implemented child welfare or testing laws after we finished data collection. In this chart, they are
considered States without laws.
** States may accept more than one indicator as sufficient grounds to investigate.


> In Florida, county prosecutors charged several women with delivering drugs to
a minor. Florida county prosecutors worked directly with hospitals or police
departments to identify women whose infants were born drug dependent.

> In Massachusetts, one woman was charged with distributing a controlled
substance to a minor. The State’s drug trafficking law for distributing cocaine
to a minor carries a minimum 3-year State prison sentence.

» A county prosecutor in Michigan charged two women with delivering drugs in
an amount less than 50 grams. These charges are normally associated with
drug dealers. The crime is a felony in Michigan carrying sentences of 1 to 20
years.

Other criminal charges used include criminal neglect, drug possession, and involuntary
manslaughter.

> At least 30 women in 2 South Carolina counties were charged with criminal
neglect, distributing drugs to a minor, or drug possession. Their infants tested
positive for substance exposure at birth.

> An Illinois woman was charged with involuntary manslaughter when her child
died 2 days after birth. The infant’s death was allegedly caused by the mother’s
cocaine use during pregnancy.

The goal of prosecution is to get women into treatment, according to some local
prosecutors. The rise in substance exposure cases has led them to take action.

> One Florida county developed a diversionary program that allowed criminal
delivery charges to be dropped if women successfully complete treatment.

> A South Carolina county required women who tested positive during pregnancy
to enter drug treatment. A woman who failed to attend would be arrested.

WHILE THERE IS NO AGREEMENT ON WHAT WORKS BEST, MOST
RESPONDENTS BELIEVE THAT PROSECUTION IS NOT AN EFFECTIVE
DETERRENT.

Opinions were evenly divided on the effectiveness of the various approaches at the
time of our 1990 data collection. Slightly more than half of respondents in States with
laws (56 of 101) felt their laws were effective in addressing prenatal substance
exposure. Slightly fewer than half (57 of 117) of respondents in States without laws
judged their present approach effective.

Most respondents (165 of 222 who expressed an opinion) considered prosecution
ineffective, unfair, or inappropriate. Child welfare administrators and staff

11


Department of Health and Human Services

OFFICE OF
INSPECTOR GENERAL

PRENATAL SUBSTANCE EXPOSURE:
STATE CHILD WELFARE LAWS
AND PROCEDURES

VICES.
Richard P. Kusserow
5 C INSPECTOR GENERAL

MAY 1992



Subdivision 4. Controlled Substances
For purposes of this section and section 626.5562, "controlled substance" means a
controlled substance listed in section 253B.02, subdivision 2.

MINN. STAT. s. 626.5562

Subdivision 1. Test: Report.

A physician shall administer a toxicology test to a pregnant woman under the
physician’s care or to a woman under the physician’s care within eight hours after
delivery to determine whether there is evidence that she has ingested a controlled
substance, if the woman has obstetrical complications that are a medical indication of
possible use of a controlled substance for a nonmedical purpose. If the test results are
positive, the physician shall report the results under section 626.5561. A negative test
result does not eliminate the obligation to report under section 626.5561, if other
evidence gives the physician reason to believe the patient has used a controlled
substance for a nonmedical purpose.

Subdivision 2. Newborns.

A physician shall administer to each newborn infant born under the physician’s care a
toxicology test to determine whether there is evidence of prenatal exposure to a
controlled substance, if the physician has reason to believe, based on a medical
assessment of the mother or the infant, that the mother used the controlled substance
for a nonmedical purpose during the pregnancy. If the test results are positive, the
physician shall report the results as neglect under section 626.556. A negative result
does not eliminate the obligation to report under section 626.556 if other medical
evidence of prenatal exposure to a controlled substance is present.

Subdivision 4. Immunity from Liability.

Any physician or other medical personnel administering a toxicology test to determine
the presence of a controlled substance in a pregnant woman, in a woman eight hours
after delivery, or in a child at birth or during the first month of life is immune from
civil or criminal liability arising from administration of the test, if the physician
ordering the test believes in good faith that the test is required under this section and
the test is administered in accordance with an established protocol and reasonable
medical practice.

Subdivision 5. Reliability of Tests.

A positive test result reported under this section must be obtained from a
confirmatory test performed by a drug testing laboratory which meets the
requirements of section 181.953, and must be performed according to the
requirements for performance of confirmatory tests imposed by the licensing,
accreditation, or certification program listed in section 181.953, subdivision 1, in which
the laboratory participates.


OFFICE OF INSPECTOR GENERAL

The mission of the Office of Inspector General (OIG), as mandated by Public Law 95-452, as
amended, is to protect the integrity of the Department of Health and Human Services’ (HHS)
programs as well as the health and welfare of beneficiaries served by those programs. This
statutory mission is carried out through a nationwide network of audits, investigations, and
inspections conducted by three OIG operating components: the Office of Audit Services, the
Office of Investigations, and the Office of Evaluation and Inspections. The OIG also informs
the Secretary of HHS of program and management problems and recommends courses to
correct them.

OFFICE OF AUDIT SERVICES

The OIG’s Office of Audit Services (OAS) provides all auditing services for HHS, either by
conducting audits with its own audit resources or by overseeing audit work done by others.
Audits examine the performance of HHS programs and/or its grantees and contractors in
carrying out their respective responsibilities and are intended to provide independent
assessments of HHS programs and operations in order to reduce waste, abuse, and
mismanagement and to promote economy and efficiency throughout the Department.

OFFICE OF INVESTIGATIONS

The OIG’s Office of Investigations (OI) conducts criminal, civil, and administrative
investigations of allegations of wrongdoing in HHS programs or to HHS beneficiaries and of
unjust enrichment by providers. The investigative efforts of OI lead to criminal convictions,
administrative sanctions, or civil money penalties. The OI also oversees State Medicaid fraud
control units which investigate and prosecute fraud and patient abuse in the Medicaid program.

OFFICE OF EVALUATION AND INSPECTIONS

The OIG’s Office of Evaluation and Inspections (OEI) conducts short-term management and
program evaluations (called inspections) that focus on issues of concern to the Department,
the Congress, and the public. The findings and recommendations contained in these inspection
reports generate rapid, accurate, and up-to-date information on the efficiency, vulnerability,
and effectiveness of departmental programs.

This report was prepared under the direction of Joy Quill, the Regional Inspector General for
the Office of Evaluation and Inspections, and Robert A. Vito, Deputy Regional Inspector
General, Office of Evaluation and Inspections, Region III. Participating in this project were
the following people:

REGION HEADQUARTERS
Linda Ragone, Lead Analyst Alan Levine

Joseph Goodyear

Lois Lehmann

John Farley
Cynthia Hansford


WISCONSIN
Testing Infants for Controlled Substances
WIS. STAT. s. 146.0255

(1) Definition. In this section, "controlled substance" has the meaning given in s.
161.01(4)

(2) Testing. Any hospital employee who provides health care, social worker or foster
care intake worker may refer an infant to a physician for testing of the infant’s bodily
fluids for controlled substances if the hospital employee who provides health care,
social worker or foster care intake worker suspects that the infant has controlled
substances in the infant’s bodily fluids because of the mother’s ingestion of controlled
substances while she was pregnant with the infant. The physician may test the infant
to ascertain whether or not the infant has controlled substances in the infant’s bodily
fluids, if the parent or guardian consents to the testing and if the physician determines
that there is a serious risk that there are controlled substances in the infant’s bodily
fluids because of the mother’s ingestion of controlled substances while she was
pregnant with the infant. If the results of the test indicate that the infant does have
controlled substances in the infant’s bodily fluids, the physician shall make a report
under s. 46.238.

(3) Test results. The physician who performs a test under sub. 2 shall provide the
infant’s parents or guardians with all of the following information:

(a) A statement of explanation concerning the test that was performed, the
date of performance of the test and the test results.

(b) A statement of explanation that the test results must be disclosed to a
county department under s. 46.215, 46.22 or 46.23 in accordance with s.
46.238 if the test results are positive.


Definitions

Legal definitions vary. Illinois, for example, considers a child to be "neglected" if a
toxicology test at birth is positive. Missouri law requires the social services department
to "provide protective services" to a substance exposed infant referred to the health
department by a physician; and Nevada defines a substance exposed newborn as a
child "in need of protection."

Testing and Reporting

The three States that mention both testing and reporting in their laws have very
different requirements.

> Minnesota law requires a physician who suspects prenatal substance exposure
to do toxicology tests on infants and pregnant women. If test results are
positive, the physician must report to a child welfare agency. Even if test
results are negative, a physician who suspects substance abuse is expected to
report.

> Wisconsin law allows a physician to perform a toxicology test on an infant with
the consent of a parent or guardian. If the test is positive, the physician must
make a report.

> Towa physicians have much more leeway. The law leaves the testing decision to
the judgment of the health care professional. If the physician decides to test
and the results are positive, the physician must report to a child welfare agency
unless the mother "has shown good faith in seeking appropriate care and
treatment."

Laws in five other States, while silent on testing, require physicians to report prenatal
substance exposure or fetal dependency cases to child welfare authorities. However,

one State law dictates when not to report substance exposure cases.

> California’s comprehensive perinatal services act includes a section directing
that a positive toxicology screen is not in and of itself a sufficient basis for
reporting child abuse and neglect.

See the appendix for the full text of pertinent sections of the 12 State laws.

STATE LAWS HAVE LITTLE EFFECT ON HOSPITAL TESTING PRACTICES
OR THE WILLINGNESS OF CHILD WELFARE AGENCIES TO RECEIVE
REPORTS OF PRENATAL SUBSTANCE EXPOSURE.

Hospital Testing

We found no overall consistency in hospital testing practices in the 12 States studied in


Special Approaches for Handling Cases

States with laws were more likely than States without laws to have special procedures
or approaches for handling prenatal substance exposure cases. Six of the 9 States with
laws and about one-fifth of States without laws (8 of 42) had special procedures in
1990. We found two basic types of approaches in States with laws:

> Increased coordination among service agencies

: In Florida and Minnesota, local agencies used multidisciplinary teams of
child welfare workers, chemical dependency specialists, and public health
nurses to handle prenatal substance exposure cases.

- In Illinois, four Departments (Public Aid, Alcoholism and Substance
Abuse, Children and Family Services, and Public Health) coordinated
outreach and case management to provide drug treatment, health care,
and social services.

> Special child welfare agency procedures

- In Massachusetts, the child welfare agency had developed resources,
clarified expectations for child welfare staff, and increased public
awareness about what types of cases should be reported.

- One Nevada county had developed an assessment and referral guide
which covers investigation, case assessment, services, and court
involvement.

Some respondents in States without laws expressed concern about the lack of specific,
uniform guidelines for handling prenatal substance exposure cases. However, in
Oregon, a State without a law, special guidelines have been developed for hospital
identification, reporting, child protective assessment, and information for parents.

WOMEN HAVE BEEN PROSECUTED BOTH IN STATES WITH THESE LAWS
AND IN STATES WITHOUT THEM. THE DECISION TO PROSECUTE RESTS
WITH LOCAL PROSECUTING ATTORNEYS.

Women have been charged criminally in States with laws as well as in States without
laws. Delivery of drugs to a minor is the most frequent charge. In our 12 State
sample, 3 States with laws (FL, MA, and NV) and 2 States without laws (MI and SC)
have used this charge when infants tested positive for controlled substances. The
prosecuting attorneys reasoned that drugs were delivered to the infant through the
umbilical cord during the brief period immediately after birth, before the umbilical
cord was cut.

10