The amendments to Virginia Code Section 63.2 in 2017 Va. Acts. Ch. 428 were enacted with the stated goal of ensuring Virginia’s continued compliance with the federal Child Abuse Prevention and Treatment Act (CAPTA), and the NOIRA has now directed the Board of Social Services to promulgate regulations to implement those changes. National Advocates for Pregnant Women requests the Board consider the following recommendations, as we believe the proposed changes to Virginia law could lead to increased reports of suspected child neglect which are not required by CAPTA, and can severely harm families. Such actions would be inconsistent with Virginia’s commitment to providing treatment rather than punishment to people with substance use disorders.

National Advocates for Pregnant Women (NAPW) is a non-profit legal advocacy organization dedicated to ensuring the rights, health, and dignity of pregnant and parenting women and their children. We submit these recommendations because of our experience with expansions of child welfare reporting requirements in other states and concerns about the negative impact on women and families. Like those who supported these amendments, we firmly believe that treatment, not punishment, is the most effective way of ensuring healthy pregnancy outcomes for pregnant women with substance use disorders.

Provide medically accepted definitions and clear guidelines for the reporting of suspected child neglect. The Virginia code now requires medical providers to report families to social services for suspected child neglect where a newborn baby has been identified as “affected by substance abuse” or “experiencing withdrawal symptoms resulting from in utero drug exposure.” CAPTA itself does not provide a definition for “affected by substance abuse,” and there is no federal case law interpreting the language. In guidance to child protective services workers, the U.S. Dept. of Health and Human Services, Administration for Children and Families, which is responsible for administering programs under CAPTA, distinguishes between substance use and “substance use disorders”, the term now used by most medical experts in lieu of “substance abuse,” recognizing its increasing acceptance in public health and child welfare fields. 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. This definition clearly indicates that all substance-exposed newborns cannot be characterized as “affected by substance abuse.”

Therefore, NAPW recommends the promulgated regulations make clear that universal reporting of all substance exposed newborns is not required. Rather, only newborns who are  truly affected or actually harmed related to a parent’s diagnosed substance use disorder should be considered for reporting.  

Virginia law now also requires the reporting of infants experiencing withdrawal symptoms as a result of in utero drug exposure, without an explicit exclusion for legally prescribed treatment. This should not be interpreted to mean that using medications while pregnant, including medication assisted treatment for an opioid dependency (e.g. methadone or buprenorphine – the standard of care for pregnant women with SUD), is evidence of child neglect or abuse, particularly in light of the of the fact that federal law regarding block grants for treatment programs (including those providing medication assisted treatment) require the programs to prioritize access for pregnant women. See 42 U.S.C. §300x-27 (2016). Further, reporting women as suspected child abusers for receiving medication will only deter pregnant women from receiving needed healthcare. Certainly, Virginia does not intend to punish women who seek to improve their own health and receive medication and advice from doctors by reporting them for suspected child abuse or neglect based on their following that medical advice.

As such, we recommend the promulgated regulations clarify that “in utero drug exposure” does not include pregnant women who are receiving medication assisted treatments.

Distinguish between reports to social services and allegations of child neglect and abuse.

The Virginia code has been amended to include the language within CAPTA, and to meet its requirements for states to have “policies and procedures (including appropriate referrals to child protection service systems”) to address the needs of certain infants. However, nothing in the federal law requires such a report to child protective services to take the form of an allegation of suspected child neglect, nor does the law create a federal definition of child neglect or abuse. Legislatively connecting substance use during pregnancy to civil child abuse or neglect, in general, is wrong and harmful to children and their parents. There is a lack of research supporting this assumption, and there is much evidence that involvement with or fear of a child welfare intervention deters pregnant women from obtaining care and consultation with doctors. These issues are addressed in the American College of Obstetricians and Gynecologists’ committee opinion Number 473 (January 2011) of the College’s Committee on Health Care for Underserved Women, which also states that “[s]eeking obstetric-gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing.” In fact, the purpose of these federal funds is to assist states in the creation of programs and services designed to assist the identified newborns and their families. Nothing in the law requires the assistance to come in the form of a punitive legal action.

Therefore, NAPW recommends the promulgated regulations distinguish between reports of suspected child neglect or abuse and reports meant only to address the needs and promote the health of substance exposed newborns and their families.

CAPTA related funding can be used in a myriad of ways to offer services and support to families after a baby has been identified in such a report, if services are necessary and appropriate, outside of the context of a punitive child neglect investigation.  NAPW urges the Board to consider promulgating regulations that address the health and welfare of children, without further stigmatizing substance use disorders or deterring women from receiving necessary healthcare. 

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