The Child Abuse Prevention and Treatment Act (CAPTA), the foundational child-protection legislation in the United States, has been revised more than 20 times since its original passage in 1974. For nearly 30 years, CAPTA didn’t cover infants who had been exposed to drugs or alcohol in utero, until revisions in the early 2000s and 2010s required states to notify Child Protective Services (CPS) and develop “plans of safe care” for infants who were “born affected” by illegal substances or were diagnosed with fetal alcohol spectrum disorder or drug withdrawal. These policies, which were outlined in a few short paragraphs and initially not accompanied by additional funding, were largely ignored until the opioid crisis garnered public and congressional attention, which resulted in the 2016 Comprehensive Addiction and Recovery Act (CARA). CARA clarified that plans of safe care should focus on the needs of both caregivers and infants, and it further expanded CAPTA to cover infants affected by legal drugs, such as prescription opioids. 1
The latest CAPTA reauthorization bill, which includes additional funding and would again change the way affected families are treated, was introduced in the Senate in May 2021. 2 Given the recent flurry of CAPTA-related activity, we believe it’s an important time to assess to what extent — and for whom — the law is working when it comes to substance-exposed infants and their families.
Placing infants in foster care can be necessary to ensure their safety. There is general agreement that it should be avoided when at all possible, however, since placement may be traumatic for the infant and can contribute to an increased risk of relapse for parents with substance use disorder (SUD). Although CAPTA doesn’t explicitly aim to reduce rates of foster care placement, some of its newer provisions (e.g., policies related to connecting parents with SUD treatment) have been associated with reductions in placement rates. 3 But even with these provisions, the number of infants and young children removed from their families because of parental substance use has increased over the past decade, 4 which suggests that additional changes to CAPTA are needed to better support families.
Evaluating the effects of CAPTA on children and families requires looking not only at foster care data, but also at the pathway to securing CAPTA-required plans of safe care, which begins with hospitals notifying CPS about prenatal substance exposure. Examining this pathway can be complicated, however, since the National Child Abuse and Neglect Data System (NCANDS) doesn’t allow states to report cases of substance exposure outright. Instead, NCANDS instructs states to report three factors that together signal exposure: “medical personnel” as the reporter, “neglect” as the type of alleged maltreatment, and “alcohol use — child” or “drug use — child” as risk factors.
To examine whether states are using this complex definition for reporting, we compared rates of hospital-derived child-maltreatment reports at birth for any reason, regardless of risk factors, to rates of hospital reports that align with the NANCDS definition of a substance-exposed infant and found substantial differences (see graph ). For example, Tennessee — a state at the epicenter of the opioid crisis — received hospital reports for 31 infants per 1000 births in 2019, but virtually zero using the NCANDS definition for prenatal substance exposure. Similarly, West Virginia, the state with the highest rate of infants diagnosed with opioid withdrawal, 5 received child-maltreatment reports for 115 infants per 1000 births, but less than 2 per 1000 using the NCANDS definition.
Reports to State Child Protective Services by State within 14 Days after Birth, Overall and by Report Type, 2019.
Our analysis points to the challenges involved in recognizing infants covered under CAPTA. To receive CAPTA-related services, eligible families must first be identified. Imprecise terms have been an obstacle to implementing plans of safe care, however. CAPTA’s use of the vague term “affected by” may be intentional to permit state flexibility in identifying eligible infants, but the term is also confusing and has no defined clinical meaning. Furthermore, the specific inclusion of infants diagnosed with withdrawal or fetal alcohol spectrum disorder is somewhat arbitrary and relies on accurate clinical diagnosis, which can be challenging. Newborn drug withdrawal, for example, occurs in only some substance-exposed infants and isn’t by itself an indicator of maltreatment or subsequent maltreatment risk. Similarly, fetal alcohol spectrum disorder is difficult to diagnose and isn’t readily apparent during the neonatal period.
The Senate reauthorization bill addresses some of these issues by modifying the language describing covered infants from those “affected by substance abuse or withdrawal symptoms, or a Fetal Alcohol Spectrum Disorder” to those “affected by substance use disorder, including alcohol use disorder.” Shifting from the use of infant diagnoses to the use of parental diagnoses focuses on the population in need of CAPTA’s wraparound services and connection to treatment. Still, if the Senate language is adopted, we think it will be important for the Biden administration to provide clear guidance to states to minimize confusion surrounding the continued use of the term “affected by” and to ensure that the people most in need of services receive them.
The Senate bill is clear about its aim of “supporting . . . rather than penalizing” families, and it highlights the importance of equitable family assessment and reexaming existing state laws that are punitive. Although prenatal identification of families covered under CAPTA because of parental substance use is necessary to ensure connection to treatment, it may also subject families to punitive systems marked by systemic racism. Research has found racial disparities in the receipt of SUD treatment and, once a child is in foster care, disparities in the length of out-of-home placement and in the likelihood of being reunified with parents. 4 These concerns are further exacerbated by state laws criminalizing substance use during pregnancy. For the reauthorization to achieve its goal of supporting families, we believe states should eliminate criminal-justice approaches to substance use in pregnancy and adopt an equity-driven process for identifying families in need of services using evidence-based assessment. The Biden administration could support these aims by providing clear guidance on the negative health effects of punitive policies and on the implementation of culturally responsive, strengths-oriented family assessment.
In addition to mandating separate systems for CAPTA-required notifications of infants born affected by SUD and child-maltreatment reports to CPS, the reauthorization bill includes several key provisions that support a broad public health response to prenatal substance exposure, rather than a response strictly focused on child protection. For example, it replaces the term “plans of safe care,” which families have considered threatening, with “family care plans”; it seeks to identify and engage eligible pregnant people; and it requires states to choose a lead agency — potentially one independent of the state’s CPS agency — to over-see implementation. Although these revisions are important, most states will need to develop and implement new processes related to notification, data collection, and the creation of family care plans. Because few states have fully implemented the 2016 requirements, updating policies, practices, and data systems throughout the country to conform with the new changes — and thus permit proper identification of covered infants — will require substantial investment, technical assistance, and monitoring. In addition to working with CPS agencies, the Biden administration could leverage prevention and public health systems and funding streams to achieve the policy’s objectives.
The Senate’s CAPTA reauthorization bill takes important steps toward adopting a public health approach to substance-exposed infants. If the bill is passed, it will be important for the administration to ensure that its public health provisions are implemented, particularly given CAPTA’s historically slow implementation and the punitive policies in many states. In addition to the reauthorization’s important updates, sustained funding by means of appropriations as well as intensive, cross-system technical assistance for states and federal agencies will be required. To advance CAPTA’s goals, we believe implementation should begin with standardized clinical guidance on what it means for infants to be “affected by” parental SUD, evidence-based assessment to identify family strengths and the needs of infants and parents, and updated state and federal data-collection systems to ensure early, nonpunitive engagement and accurate monitoring.
Disclosure forms provided by the authors are available at NEJM.org.
Margaret H. Lloyd Sieger, University of Connecticut School of Social Work, Hartford.
Rebecca Rebbe, University of Southern California Suzanne Dworak-Peck School of Social Work, Los Angeles.
Stephen W. Patrick, Vanderbilt Center for Child Health Policy and the Departments of Pediatrics and Health Policy, Division of Neonatology, Vanderbilt University Medical Center, Nashville.
1. Administration for Children and Families. Program instruction: guidance on amendments made to the Child Abuse Prevention and Treatment Act (CAPTA) by Public Law 114–198, the Comprehensive Addiction and Recovery Act of 2016 . January 17, 2017. (https://www.acf.hhs.gov/sites/default/files/documents/cb/pi1702.pdf).
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