After six years of effort, SB20-028 Substance Use Disorder Recovery passed and has been sent to the Governor. The bill contains a crucial statute change that supports recovery for caregivers with substance use disorders (SUDs) while also ensuring children’s safety. 

The new statute language:

• de-emphasizes the focus on a test,
• removes the references to the federal schedule of substances,
• elevates impacts to the child as the main consideration and
• advances a two-generation approach to keep parents and their children together during treatment. 

Leading up to a Change: State and Federal Context

Prior to the COVID-19 pandemic, the national opioid epidemic had been declared a public health emergency. Communities and families across Colorado felt the effects of the opioid crisis, as well as the effects of other substances being used and misused across our state. Though the total number of new child welfare cases in Colorado had declined over the last few years, the number of cases involving drug use by a parent had increased. Furthermore, neonatal abstinence syndrome (NAS) – when a newborn experiences withdrawal symptoms as a result of being exposed to a substance in utero – increased by 120% in Colorado from 2011 to 2016.

In 2008 the Colorado Substance Exposed Newborns (SEN) Steering Committee was created to address the emerging needs around prenatal substance exposure in the state. Supported by Illuminate Colorado, as a subcommittee of the Substance Abuse Trend and Response Task Force, the SEN Steering Committee envisions a Colorado that equitably serves all families through prevention and reduction of substance use during pregnancy and provides multi-generational support for families to thrive.

Approaches to prenatal substance exposure response also began to shift at a federal level as in 2016. Congress amended the Child Abuse Prevention and Treatment Act (CAPTA) to require states to create Plans of Safe Care to address not only the needs of infants identified as affected by substance use, but also the health, service, and SUD treatment needs of the affected family or caregiver. Through partnership, guidance and cross-system collaboration with birth hospitals across Colorado, toxicology experts, the Colorado Division of Child Welfare and additional stakeholders began to identify a complex and multi-faceted gap in service delivery. 

The Multi-Faceted, Multi-System Problem

Using a two-generation approach by keeping mothers and their children together during treatment improves physical and psychological outcomes and prevents additional state costs down the line. Substance use disorders in women often co-occur with mental health issues, trauma, sexual violence, and/or intimate partner violence, and thus must be supported in ways that factor in the broader context. Fear, stigma, and other barriers can prevent pregnant people from accessing the services they need for their own and their families’ well-being. 

There is not a consistent standard in Colorado for verbal screening or chemical testing for substance use during pregnancy as a part of prenatal care. Colorado hospitals have varying practices in place for identification at time of birth. Definitions of child abuse and neglect related to prenatal substance exposure are interpreted differently between counties. This means that what one county sees as a substantiated case of child abuse and neglect, another county could respond to differently. This variation is particularly important when considering how a finding of child abuse can affect future employment opportunities and may impact child placement and custody decisions. Without a consistent standard to guide toxicology testing and the child welfare response, there is room for discrimination in who is tested, and therefore reported, while potentially leaving other vulnerable infants sent home without support. 

Most recent evidence shows that parents are integral to the care of infants with NAS. New strategies to assess and treat NAS such as the Eat, Sleep, Console (ESC) Assessment and increased family engagement in care support skin-to-skin contact with parent(s), rooming in with parent, on-demand human milk feeding/breastfeeding, coordinating care with feeding times, as well as involvement, education, and empowerment of parents during the hospitalization. Separating infants from their parents does not allow for this care.

Under previous statute (§ 19-1-103(1)(a)(VII) & 19-3-102 (1)(g)), if an infant tested positive at birth for exposure to a schedule I or II controlled substance, the parent may have received a substantiation of child abuse based on the positive test alone. While a toxicology test may communicate an important piece of information, it does not provide a full picture of impact on a child, weigh all safety and risk considerations present, or acknowledge if the birth parent was receiving medication-assisted treatment during pregnancy. Furthermore, results have limitations depending on collection, timing, storage and testing methods. Referencing the criminal code in Colorado civil statute reinforced the notion of the child welfare system as punitive–which may drive families and parents away from supportive systems and resources due to fear. Fear of the child welfare system or criminal justice system may create a disincentive for a pregnant person with a substance use disorder from receiving prenatal care or seeking SUD treatment, both of which have strong evidence around improving birth outcomes for both parent and child.

Cross-Sector Stakeholder Process

As outlined above, numerous complexities arose with Colorado’s child abuse and neglect definitions related to prenatal substance exposure, including but not limited to: opportunity for fear, stigma, and discrimination, narrow assessments of families’ strengths and needs, delayed incorporation of newest evidence-based best practice, challenges and inconsistencies across county child welfare practice, and need for implementation of federal guidance, all leading to the momentum and political will for robust stakeholder engagement.

Since 2013, stakeholder conversations have occurred nearly every year about revisions to Colorado’s child abuse and neglect definitions regarding prenatal substance exposure. While stakeholders came from varying sectors, fields, and perspectives, they shared a desire for Colorado families to have the support they need to thrive. After multiple years of stakeholder meetings, the group arrived on language that would align Colorado statute more closely to federal statute as revised by the Comprehensive Addiction and Recovery Act of 2016. Through collaboration with the state legislature’s Opioid and Other Substance Use Disorders Interim Study Committee, the language was included in the Committee’s package of bills and ultimately passed with bipartisan support during the 2020 legislative session.

How the Bill Positively Impacts Colorado Families

SB20-028 supports substance use disorder recovery of parents and caregivers by:

• Addressing the ways fear and stigma prevent pregnant people from accessing services.
• Ensuring families are assessed holistically .
• Supporting attachment and bonding within the birth parent/infant dyad.
• Incorporating shifts in clinical practices for neonatal abstinence syndrome.
• Acknowledging the limitations of toxicology testing related to prenatal substance exposure.
• Aligning state and federal statute.

The statute change allows for the context of the situation, home environment, child care/supervision, support systems, attachment, and a family’s risk and protective factors to all be considered. Based on the holistic assessment, child welfare can still become involved, however a finding of child abuse or neglect will not automatically be required. Maternal and child outcomes are better when their needs are addressed in a dyad, and this acknowledgement can reduce apprehension and barriers to receiving services. Whenever safe, families should remain together, and services should simultaneously address both the needs of the parents/caregivers and the needs of the child. 

On the Horizon

Although the bill has passed, there is more work to be done. The increased stress associated with the current pandemic, unemployment, and decreased personal and community support is predicted to exasperate substance use. As outlined in CAPTA, states must develop and implement monitoring systems of referrals to and delivery of appropriate services for infants and caregivers affected by substance use. In order to increase consistency in cross-system implementation and practice, a multidisciplinary group of hospital-based staff, child welfare professionals, and other service providers formed to create the Plans of Safe Care Work Group of the SEN Steering Committee. The revised statute will work in conjunction with the rollout of Plans of Safe Care across the state. 

The next step for implementation of the bill is for Colorado Department of Human Services to issue an operational memo to all counties notifying them of the need to adhere to the revised statute. To participate in the rule-making subcommittee and/or to learn more about Plans of Safe Care, please contact Colorado’s Substance Exposed Newborn Specialist.

Illuminate looks forward to the positive impact SB20-028 will have on Colorado families.