Dear Ms. Walter and Members of the Board of Social Services:

This comment is submitted on behalf of the American Civil Liberties Union (“ACLU”) of Virginia, regarding amendments to regulation 22 VAC 40-705 in response to legislative changes made in 2017.

The ACLU of Virginia is a non-profit legal advocacy organization with 42,000 members in Virginia. The ACLU of Virginia is dedicated to protecting civil rights and civil liberties, including the rights of pregnant and parenting people. We oppose laws that punish people who decide to become and remain pregnant despite an underlying substance use disorder or other medical condition. The ACLU of Virginia’s supports treatment—not punishment—for people with substance use disorders.. 

The ACLU of Virginia submits the following recommendations for the Board to consider when promulgating regulations to implement Chapter 458 of the 2017 Acts of the General Assembly. The following recommendations are based, in part, on our participation in the SEI Workgroup that investigated barriers to treatment for substance-exposed infants and their mothers.

Provide evidence-based definitions clarifying reporting requirements under Virginia Code § 63.2-1509(B).

As of July 2017, health care providers are required under Virginia Code § 63.2-1509(B) to report to CPS infants born “affected by substance abuse or experiencing withdrawal symptoms resulting from in utero drug exposure.” This new reporting criteria and terminology, taken directly from the federal Child Abuse Prevention and Treatment Act (CAPTA) and added to the Virginia Code to ensure Virginia’s continued eligibility for CAPTA grant funding, is undefined under Virginia law.

CAPTA does not define “affected by substance abuse,” and there is no federal case law interpreting this language. The U.S. Dept. of Health and Human Services (“HHS”), Administration for Children and Families,  administers programs under CAPTA. HHS distinguishes between substance use and “substance use disorders,” the term now used by most medical experts in lieu of “substance abuse.” A “substance use disorder” is defined as “[a] pattern of substance use that leads to significant impairment or distress, reflected by one or more of the following: failure to fulfill major obligations at work or home; continued use in spite of physical hazards; trouble with the law, and interpersonal or social problems.” See U.S. Dep’t of Health and Human Svs., Protecting Children in Families Affected by Substance Use Disorders at 11 (2009), https://goo.gl/V8ebWH. Under this definition, not every newborn exposed to substances in utero will be “affected by substance abuse.”

Overly broad reporting schemes based on an infant’s exposure to a substance in utero discourage pregnant people from seeking prenatal care and create barriers to open communication between pregnant people and their physicians. See American College of Obstetricians and Gynecologists, Comm. Op. 473 (Jan. 2011). Adequate prenatal care is critical to healthy pregnancy outcomes. A reporting scheme that puts barriers between pregnant people and health care is counterproductive, inappropriate, and inconsistent with the goals of CAPTA.

The ACLU of Virginia accordingly recommends that the Board promulgate regulations clarifying that only newborns who are actually affected or harmed by a parent’s diagnosed substance use disorder should be considered for reporting to CPS. HHS guidance provides that states have the 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 (not merely exposed to) legal (e.g., prescribed drugs) and/or illegal substance abuse. See U.S. Dep’t of Health & Human Svs., CAPTA Program Instruction (Jan. 17, 2017), https://goo.gl/xE9VP7. We also encourage the Board to follow HHS recommendations by consulting with pediatricians and other health care professionals as it reviews the Department’s existing policies, establishes new definitions related to substance affected infants, and develops reporting and identification criteria for infants "experiencing withdrawal symptoms resulting from in utero drug exposure." Id.

Distinguish reports made pursuant to Virginia Code §? 63.2-1509(B) from complaints of suspected child abuse or neglect.

We urge the Board to follow HHS guidance by consulting with physicians—including board certified obstetricians, pediatricians, and neonatologists—as well as experts in public health and addiction medicine to develop evidence-based procedures for determining whether a report submitted pursuant to Virginia Code § 63.2-1509(B) constitutes a valid complaint of suspected child abuse and neglect for purposes of Virginia Code § 63.2-1508. See U.S. Dep’t of Health & Human Svs. Children’s Bureau, Child Welfare Policy Manual at 2.1F Q1 (2017), https://goo.gl/y6UvM9 (explaining that a reporting requirement “need not be in the form of a report of suspected child abuse or neglect. It is ultimately the responsibility of CPS staff to assess the level of risk to the child and other children in the family and determine whether the circumstance constitutes child abuse or neglect under State law.”). The purpose of CAPTA grant funding is to help states create programs and services to assist newborns affected by substance use disorders and their families, not to create a punitive legal scheme that requires CPS involvement in situations that pose no risk to an infant's health and safety. 

Respectfully submitted by,

ACLU of Virginia