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Pregnancy and Alcohol: Priority Treatment

Laws mandating priority access to public and private substance abuse treatment for pregnant and postpartum women who abuse alcohol.



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Expander Policy Description

(Period Covered: 1/1/2003 through 1/1/2016)

This policy topic covers laws mandating priority access to public and private substance abuse treatment for pregnant and postpartum women who abuse alcohol.  

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. Among these are various arrangements to increase access to substance abuse treatment  by pregnant and postpartum women. Such arrangements include State-run treatment services, funding for private providers, and  mandates that such women receive a priority for available treatment.  This section of APIS addresses statutes and regulations mandating priority access to substance abuse treatment for pregnant and postpartum women who abuse alcohol. Other  measures designed to facilitate access to treatment by pregnant and post-partum women are beyond the current scope of APIS.

Expander Explanatory Notes and Limitations for Pregnancy and Alcohol: Priority Treatment

Explanatory Notes and Limitations Specifically Applicable to Pregnancy and Alcohol: Priority Treatment

  1. Confidentiality of all types of medical records may be assured in Federal and State statutory, regulatory, and constitutional provisions separate from statutes and regulations related to priority access to treatment. APIS has coded only those confidentiality mandates that appear in connection with priority access to treatment provisions.
     
  2. APIS coding within the category "women with minor children" was based strictly on the wording of each individual statute and regulation for which this category is applicable. APIS did not make inferences that the mention of one subcategory of the variable (e.g. pregnant women, postpartum women, women with minor children) included any other subcategories.

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. For more information on the preemption doctrine, see the About Alcohol Policy page. 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. If a conflict exists between a statute and a regulation addressing the same legal issue, APIS coding relies on the statute. 
     
  6. 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. 

Expander Federal Law for Pregnancy and Alcohol: Priority Treatment

(Policies in effect on: 1/1/2016)

Our research identified Federal statutes and regulations that provide formula grants to States for substance abuse prevention and treatment. The grants include specific directives mandating priority services to pregnant women, including the minimum proportion of the grant allocation that must be used for these types of services.

It is important to note that the Federal formula grant funding to the States is passed through to counties; it is only facilities within counties that accept formula grant money that are required by Federal law to provide priority treatment to pregnant women. In addition, some States have enacted separate statutes and regulations mandating priority treatment to pregnant women in their States that supplement the Federal mandates. The specifics of those State statutes and regulations vary with regard to those who are mandated to provide priority treatment to pregnant women. These provisions are the focus of this APIS policy topic.

Federal provisions are excerpted below. The State provisions are available in the tabs for Data on a Specific Date and Changes Over Time, as well as the Timeline of Changes, Maps and Charts, and Variables tabs.

 

FEDERAL CITATIONS AND RELEVANT TEXT EXCERPTS

 
42 U.S.C. § 300x–21
United States Code
Title 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 6A - PUBLIC HEALTH SERVICE
SUBCHAPTER XVII - BLOCK GRANTS
Part B - Block Grants Regarding Mental Health and Substance Abuse
Subpart ii - block grants for prevention and treatment of substance abuse
§ 300x–21. Formula grants to States
 
(a) In general
 
For the purpose described in subsection (b) of this section, the Secretary, acting through the Center for Substance Abuse Treatment, shall make an allotment each fiscal year for each State in an amount determined in accordance with section 300x–33 of this title. The Secretary shall make a grant to the State of the allotment made for the State for the fiscal year if the State submits to the Secretary an application in accordance with section 300x–32 of this title.
 
(b) Authorized activities
 
A funding agreement for a grant under subsection (a) of this section is that, subject to section 300x–31 of this title, the State involved will expend the grant only for the purpose of planning, carrying out, and evaluating activities to prevent and treat substance abuse and for related activities authorized in section 300x–24 of this title.
 
 
42 U.S.C. § 300x–22
United States Code
Title 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 6A - PUBLIC HEALTH SERVICE
SUBCHAPTER XVII - BLOCK GRANTS
Part B - Block Grants Regarding Mental Health and Substance Abuse
Subpart ii - block grants for prevention and treatment of substance abuse
§ 300x–22. Certain allocations
 
* * *
 
(b) Allocations regarding women
 
(1) In general
 
Subject to paragraph (2), a funding agreement for a grant under section 300x–21 of this title for a fiscal year is that—
 
(A) in the case of a grant for fiscal year 1993, the State involved will expend not less than 5 percent of the grant to increase (relative to fiscal year 1992) the availability of treatment services designed for pregnant women and women with dependent children (either by establishing new programs or expanding the capacity of existing programs);
 
(B) in the case of a grant for fiscal year 1994, the State will expend not less than 5 percent of the grant to so increase (relative to fiscal year 1993) the availability of such services for such women; and
 
(C) in the case of a grant for any subsequent fiscal year, the State will expend for such services for such women not less than an amount equal to the amount expended by the State for fiscal year 1994.
 
(2) Waiver
 
(A) Upon the request of a State, the Secretary may provide to the State a waiver of all or part of the requirement established in paragraph (1) if the Secretary determines that the State is providing an adequate level of treatments services for women described in such paragraph, as indicated by a comparison of the number of such women seeking the services with the availability in the State of the services.
 
* * *
 
(C) Any waiver provided by the Secretary under subparagraph (A) shall be applicable only to the fiscal year involved.
 
(3) Childcare and prenatal care
 
A funding agreement for a grant under section 300x–21 of this title for a State is that each entity providing treatment services with amounts reserved under paragraph (1) by the State will, directly or through arrangements with other public or nonprofit private entities, make available prenatal care to women receiving such services and, while the women are receiving the services, childcare.
 
 
42 U.S.C. § 300x–27
United States Code
Title 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 6A - PUBLIC HEALTH SERVICE
SUBCHAPTER XVII - BLOCK GRANTS
Part B - Block Grants Regarding Mental Health and Substance Abuse
Subpart ii - block grants for prevention and treatment of substance abuse
§ 300x–27. Treatment services for pregnant women
 
(a) In general
 
A funding agreement for a grant under section 300x–21 of this title is that the State involved—
 
(1) will ensure that each pregnant woman in the State who seeks or is referred for and would benefit from such services is given preference in admissions to treatment facilities receiving funds pursuant to the grant; and
 
(2) will, in carrying out paragraph (1), publicize the availability to such women of services from the facilities and the fact that the women receive such preference.
 
(b) Referrals regarding States
 
A funding agreement for a grant under section 300x–21 of this title is that, in carrying out subsection (a)(1) of this section—
 
(1) the State involved will require that, in the event that a treatment facility has insufficient capacity to provide treatment services to any woman described in such subsection who seeks the services from the facility, the facility refer the woman to the State; and
 
(2) the State, in the case of each woman for whom a referral under paragraph (1) is made to the State—
 
(A) will refer the woman to a treatment facility that has the capacity to provide treatment services to the woman; or
 
(B) will, if no treatment facility has the capacity to admit the woman, make interim services available to the woman not later than 48 hours after the women 1 seeks the treatment services.
 
 
42 U.S.C. § 300x–31
United States Code
Title 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 6A - PUBLIC HEALTH SERVICE
SUBCHAPTER XVII - BLOCK GRANTS
Part B - Block Grants Regarding Mental Health and Substance Abuse
Subpart ii - block grants for prevention and treatment of substance abuse
§ 300x–31. Restrictions on expenditure of grant
 
(a) In general
 
(1) Certain restrictions
 
A funding agreement for a grant under section 300x–21 of this title is that the State involved will not expend the grant—
 
(A) to provide inpatient hospital services, except as provided in subsection (b) of this section;
 
(B) to make cash payments to intended recipients of health services;
 
(C) to purchase or improve land, purchase, construct, or permanently improve (other than minor remodeling) any building or other facility, or purchase major medical equipment;
 
(D) to satisfy any requirement for the expenditure of non-Federal funds as a condition for the receipt of Federal funds;
 
(E) to provide financial assistance to any entity other than a public or nonprofit private entity; or
 
(F) to carry out any program prohibited by section 300ee–5 of this title.
 
(2) Limitation on administrative expenses
 
A funding agreement for a grant under section 300x–21 of this title is that the State involved will not expend more than 5 percent of the grant to pay the costs of administering the grant.
 
(3) Limitation regarding penal and correctional institutions
 
A funding agreement for a State for a grant under section 300x–21 of this title is that, in expending the grant for the purpose of providing treatment services in penal or correctional institutions of the State, the State will not expend more than an amount equal to the amount expended for such purpose by the State from the grant made under section 300x–1a 1 of this title to the State for fiscal year 1991 (as section 300x–1a 1 of this title was in effect for such fiscal year).
 
(b) Exception regarding inpatient hospital services
 
(1) Medical necessity as precondition
 
With respect to compliance with the agreement made under subsection (a) of this section, a State may expend a grant under section 300x–21 of this title to provide inpatient hospital services as treatment for substance abuse only if it has been determined, in accordance with guidelines issued by the Secretary, that such treatment is a medical necessity for the individual involved, and that the individual cannot be effectively treated in a community-based, nonhospital, residential program of treatment.
 
* * *
 
(4) Matching funds
 
The Secretary may grant a waiver under paragraph (1) only if the State agrees, with respect to the costs to be incurred by the State in carrying out the purpose of the waiver, to make available non-Federal contributions in cash toward such costs in an amount equal to not less than $1 for each $1 of Federal funds provided under section 300x–21 of this title.
 
* * *
 
 
42 U.S.C. § 300x–34
United States Code
Title 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 6A - PUBLIC HEALTH SERVICE
SUBCHAPTER XVII - BLOCK GRANTS
Part B - Block Grants Regarding Mental Health and Substance Abuse
Subpart ii - block grants for prevention and treatment of substance abuse
§ 300x–34. Definitions
 
For purposes of this subpart:
 
(1) The term “authorized activities”, subject to section 300x–31 of this title, means the activities described in section 300x–21(b) of this title.
 
(2) The term “funding agreement”, with respect to a grant under section 300x–21 of this title to a State, means that the Secretary may make such a grant only if the State makes the agreement involved.
 
(3) The term “prevention activities”, subject to section 300x–31 of this title, means activities to prevent substance abuse.
 
(4) The term “substance abuse” means the abuse of alcohol or other drugs.
 
(5) The term “treatment activities” means treatment services and, subject to section 300x–31 of this title, authorized activities that are related to treatment services.
 
(6) The term “treatment facility” means an entity that provides treatment services.
 
(7) The term “treatment services”, subject to section 300x–31 of this title, means treatment for substance abuse.
 
 
42 U.S.C. § 300x–53
United States Code
Title 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 6A - PUBLIC HEALTH SERVICE
SUBCHAPTER XVII - BLOCK GRANTS
Part B - Block Grants Regarding Mental Health and Substance Abuse
Subpart iii - general provisions
§ 300x–53. Additional requirements
 
* * *
 
(b) Patient records
 
The Secretary may make a grant under section 300x or 300x–21 of this title only if the State involved has in effect a system to protect from inappropriate disclosure patient records maintained by the State in connection with an activity funded under the program involved or by any entity which is receiving amounts from the grant.
 
 
45 C.F.R. § 96.131
Code of Federal Regulations
Title 45 - PUBLIC WELFARE
Subtitle A. Department of Health and Human Services
Subchapter A. General Administration
Part 96. Block Grants
Subpart L. Substance Abuse Prevention and Treatment Block Grant
§ 96.131. Treatment services for pregnant women
 
(a) The State is required to, in accordance with this section, ensure that each pregnant woman in the State who seeks or is referred for and would benefit from such services is given preference in admissions to treatment facilities receiving funds pursuant to the grant. In carrying out this section, the State shall require all entities that serve women and who receive such funds to provide preference to pregnant women. Programs which serve an injecting drug abuse population and who receive Block Grant funds shall give preference to treatment as follows:
 
(1) Pregnant injecting drug users;
 
(2) Pregnant substance abusers;
 
(3) Injecting drug users; and
 
(4) All others.
 
(b) The State will, in carrying out this provision publicize the availability to such women of services from the facilities and the fact that pregnant women receive such preference. This may be done by means of street outreach programs, ongoing public service announcements (radio/television), regular advertisements in local/regional print media, posters placed in targeted areas, and frequent notification of availability of such treatment distributed to the network of community based organizations, health care providers, and social service agencies.
 
(c) The State shall in carrying out paragraph (a) of this section require that, in the event that a treatment facility has insufficient capacity to provide treatment services to any such pregnant woman who seeks the services from the facility, the facility refer the woman to the State. This may be accomplished by establishing a capacity management program, utilizing a toll-free number, an automated reporting system and/or other mechanisms to ensure that pregnant women in need of such services are referred as appropriate. The State shall maintain a continually updated system to identify treatment capacity for any such pregnant women and will establish a mechanism for matching the women in need of such services with a treatment facility that has the capacity to treat the woman.
 
(d) The State, in the case of each pregnant woman for whom a referral under paragraph (a) of this section is made to the State—
 
(1) will refer the woman to a treatment facility that has the capacity to provide treatment services to the woman; or
 
(2) will, if no treatment facility has the capacity to admit the woman, make available interim services, including a referral for prenatal care, available to the woman not later than 48 hours after the woman seeks the treatment services.
 
(e) Procedures for the implementation of this section shall be developed in consultation with the State Medical Director for Substance Abuse Services.
 
(f) The State shall develop effective strategies for monitoring programs compliance with this section. States shall report under the requirements of § 96.122(g) on the specific strategies to be used to identify compliance problems and corrective actions to be taken to address those problems.
 
 

 

Source for all citations on this page: FDsys, the Federal Digital System of the U.S. Government Printing Office (GPO).
Excerpts from the United States Code are current as of 2015. Excerpts from the Code of Federal Regulations are current as of 2016.  Excerpts from Public Laws of Congress are current as of the year of enactment.
The GPO’s Public Domain/Copyright Notice is available under the Policies heading at
http://www.gpo.gov/help/index.html .

 

Expander Selected References for Pregnancy and Alcohol: Priority Treatment

  1. Drabble L, Thomas S, O’Connor L, and Roberts SM. State responses to alcohol use and pregnancy: Findings from the Alcohol Policy Information System. Journal of Social Work Practice in the Addictions, 14(2):191-206, 2014.
     
  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. 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):373-38, 2010.
     
  5. 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.
     
  6. Substance Abuse and Mental Health Services Administration, Center for Excellence. Fetal Alcohol Spectrum Disorders (FASD). Accessed August 9, 2012 at: http://fasdcenter.samhsa.gov/.
     
  7. 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.
     
  8. Thomas, S., Cannon, C., and French, J. (2015). The effects of state alcohol and pregnancy policies on women’s health and healthy pregnancies. Journal of Women, Politics & Policy 36(1), 68-94. DOI:10.1080/1554477X.2015.985153. Retrieved from http://www.tandfonline.com/doi/full/10.1080/1554477X.2015.985153 .
     
  9. 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.
     
  10. Walker, D.S., Edwards, W.E., & Herrington, C. (2016). Fetal alcohol spectrum disorders: Prevention, identification, and intervention. Nurse Practitioner, 41(8): 28-34. doi: 10.1097/01.NPR.0000488709.67444.92.
     
  11. Warren, K.R., Hewitt, B.G., and Thomas, J.D. Fetal alcohol spectrum disorders: Research challenges and opportunities. Alcohol Research & Health 34(1):4-14, 2011.
     
  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.

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