Pregnancy and Alcohol: Reporting Requirements

(Period Covered: 1/1/2003 through 1/1/2012)

This policy topic covers laws addressing requirements to report indicators or evidence, such as results from screening or toxicological testing of women or babies, of alcohol use or abuse by women during pregnancy.  

Scientific research has established that alcohol consumption during pregnancy is associated with adverse health consequences.  Fetal Alcohol Spectrum Disorders (FASD) is the term used to describe the range of birth defects caused by maternal alcohol consumption during pregnancy.  FASD are considered the most common nonhereditary cause of mental retardation.  Included in Fetal Alcohol Spectrum Disorders is the diagnosis often referred to as Fetal Alcohol Syndrome (FAS), which is the most severe form of FASD. It is characterized by facial defects, growth deficiencies, and central nervous system dysfunction.  Also included in FASD are other types of alcohol-induced mental impairments that are just as serious, if not more so, than in children with FAS.  The term "alcohol-related neurodevelopmental disorder" (ARND) has been developed to describe such impairments. Prenatally exposed children can also have other alcohol-related physical abnormalities of the skeleton and certain organ systems; these are known as alcohol-related birth defects (ARBD). (National Institute on Alcohol Abuse and Alcoholism, June 2000; Warren and Foudin, 2001; SAMHSA, 2004).

State and Federal governments have established various policies in response to the risks associated with drinking during pregnancy. This section of APIS addresses State and Federal laws concerning requirements to report suspicion or evidence of alcohol use or abuse by women during pregnancy. Evidence may consist of results from screening and/or toxicological testing of pregnant women or toxicological testing of babies after birth. Jurisdictions with reporting requirements differ with respect to whether reporting is mandatory or discretionary.  Jurisdictions also vary based on who must report and the purpose of reporting. With respect to the latter, some jurisdictions require reporting for data-gathering purposes. Others use the information to refer women for assessment and treatment of alcohol problems or to refer cases to child welfare agencies for determination of the best interests of children born to women who used or abused alcohol during pregnancy.

Explanatory Notes and Limitations Specifically Applicable to Pregnancy and Alcohol: Reporting Requirements

1. APIS collects legal provisions that either specifically refer to FASD or issues related to prenatal alcohol exposure or refer to a condition that reasonably may be interpreted as referring to FASD or prenatal alcohol exposure (e.g., "prenatal substance abuse," "prenatal legal drug abuse") or to a condition that reasonably may be interpreted as referring to alcohol abuse (e.g., "substance abuse," "use of legal drugs," "addictive drug," "drug of abuse").
    
2. APIS does not collect provisions that refer only to "controlled substances" or those that exclude alcohol.
    
3. APIS does not include laws requiring or allowing child welfare agencies to report a child's diagnosis of fetal alcohol syndrome to foster care or other out-of-home care providers.
    
4. APIS does not code legal provisions that impose no affirmative duty to report a woman who uses alcohol during pregnancy or a child with fetal alcohol syndrome but nevertheless impose a duty on relevant governmental agencies or personnel to conduct an investigation into a woman's alcohol use or abuse if a report is received. These provisions are noted in the Row Notes or Jurisdiction Notes for jurisdictions that have such provisions.
    
5. With respect to the Data Gathering variables (presented for both Mandatory and Discretionary provisions), a check mark is used for States that require or allow collection of data on alcohol consumption or abuse during pregnancy for inclusion in aggregate statistical datasets. A checkmark is not given for provisions that allow or require data collection for other purposes (e.g., reports of individual data for the purpose of referring individual women to social services or to criminal or civil legal proceedings).

Explanatory Notes and Limitations Applicable to All APIS Policy Topics 

1. State law may permit local jurisdictions to impose requirements in addition to those mandated by State law. Alternatively, State law may prohibit local legislation on this topic, thereby preempting local powers. APIS does not document policies established by local governments. 
    
2. In addition to statutes and regulations, judicial decisions (case law) also may affect alcohol-related policies. APIS does not review case law except to determine whether judicial decisions have invalidated statutes or regulations that would otherwise affect the data presented in the comparison tables. 
    
3. APIS reviews published administrative regulations. However, administrative decisions or directives that are not included in a State's published regulatory codes may have an impact on implementation. This possibility has not been addressed by the APIS research. 
    
4. Statutes and regulations cited in tables on this policy topic may have been amended or repealed after the specific date or time period specified by the site user's search criteria. 
    
5. A comprehensive understanding of the data presented in the comparison tables for this policy topic requires examination of the applicable Row Notes and Jurisdiction Notes, which can be accessed from the body of the table via links in the Jurisdiction column. 

(Policies in effect on: 1/1/2012)

Two Federal statutes related to data and information gathering on fetal alcohol syndrome have been identified by APIS.  Each of the statutes requires reports about rates of fetal alcohol syndrome and/or plans for reduction of incidents of FAS by the fifty States and the District of Columbia.  The reports must be submitted either to Congress or the President of the United States.

In addition, on December 20, 2010, the President signed a third law, which reauthorized and amended the Child Abuse Prevention and Treatment Act (CAPTA), codified at 42 U.S.C. ch. 67, subchapters I, III, V.  The law provides federal grant money to improve State child protection services.  Under the new law, States that seek CAPTA funding are now required to submit a plan that contains requirements relating to health care workers’ duty to report to child welfare agencies infants born with Fetal Alcohol Spectrum Disorders for purposes of referral for assessment and/or treatment.

Relevant portions of these statutes appear below.

FEDERAL CITATIONS AND RELEVANT TEXT EXCERPTS  

1. Abel, E.L., and Kruger, M. Physician attitudes concerning legal coercion of pregnant alcohol and drug abusers. American Journal of Obstetrics & Gynecology 186(4): 768-772, 2002.
    
2. Floyd, R.L., Ebrahim, S., Tsai, J., O'Connor, M., and Sokol, R. Strategies to reduce alcohol-exposed pregnancies. Maternal and Child Health Journal 10(5):149-151, 2006.
    
3. Golden, J. Message in a Bottle: The Making of Fetal Alcohol Syndrome. Cambridge: Harvard University Press, 2005.
    
4. Jessup, M.A., Humphreys, J.C., Brindis, C.D., and Lee, K. A. Extrinsic Barriers to Substance Abuse Treatment Among Pregnant Drug Dependent Women. Journal of Drug Issues 33(2):285-304, 2003.
    
5. Jones, K.L., and Streissguth, A.P. Special issue introduction: Fetal alcohol syndrome and fetal alcohol spectrum disorders: A brief history. Journal of Psychiatry & Law 38(4):373-382, 2010.
    
6. Lester, B.M., Andreozzi, L., and Appiah, L. Substance Use During Pregnancy: Time for Policy to Catch Up with Research. Harm Reduction Journal 1(5), 2004.
    
7. Roberts, S.C., and Nuru-Jeter, A. Women’s Perspectives on Screening for Alcohol and Drug Use in Prenatal Care. Women’s Health Issues 20(3):193-200, 2010.
    
8. Roberts, S.C., and Pies, C. Complex Calculations: How Drug Use During Pregnancy Becomes a Barrier to Prenatal Care. Maternal and Child Health Journal 15(3): 333-41, 2011.
    
9. Substance Abuse and Mental Health Services Administration, Center for Excellence. Fetal Alcohol Spectrum Disorders (FASD). Accessed August 9, 2012 at: http://fasdcenter.samhsa.gov/.
    
10. Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Substance Use Among Women During Pregnancy and Following Childbirth. Rockville, MD: The National Survey on Drug Use and Health Report, 2009.
     
11. Thomas, S., Rickert, L., and Cannon, C. The meaning, status, and future of reproductive autonomy: The case of alcohol use during pregnancy. UCLA Women’s Law Journal 15:1-46, 2006.
     
12. Young, N.K., Gardner, S., Otero, C., Dennis, K., Chang, R., Earle, K., and Amatetti, S. Substance-Exposed Infants: State Responses to the Problem. Rockville, MD: Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, 2008.