Child Welfare Policy Manual

April 24, 2014

2.1F  CAPTA, Assurances and Requirements, Infants Affected by Illegal Substance Abuse

1. Question: We understand section 106(b)(2)(B)(ii) of the Child Abuse Prevention and Treatment Act (CAPTA) to mean that health care providers must notify Child Protective Services (CPS) of all infants born and identified as affected by illegal substance abuse, withdrawal symptoms resulting from prenatal drug exposure, or a Fetal Alcohol Spectrum Disorder. We do not believe that this provision requires the health care provider to refer such children and families to CPS as a report of suspected child abuse or neglect. Is this interpretation accurate?

Answer: Yes, this interpretation is accurate. CAPTA requires that the health care provider must notify CPS of all infants born and identified as affected by illegal substance abuse, withdrawal symptoms resulting from prenatal drug exposure, or a Fetal Alcohol Spectrum Disorder. Such notification 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. There may be Federal confidentiality restrictions for the State to consider when implementing this CAPTA requirement.

2. Question: If drug-exposure is not defined as child abuse or neglect in the State's reporting statute, are health care providers still required to "notify" child protective services under section 106(b)(2)(B)(ii) of the Child Abuse Prevention and Treatment Act (CAPTA)?

Answer: Yes. The State is required to have policies and procedures to implement section 106(b)(2)(B)(ii) of CAPTA regardless of how child abuse and neglect is defined in the State. Health care providers must notify CPS of all infants born and identified as affected by illegal substance abuse, withdrawal symptoms resulting from prenatal drug exposure, or a Fetal Alcohol Spectrum Disorder. There may be Federal confidentiality restrictions for the State to consider when implementing this CAPTA provision.

3. Question: The Child Abuse Prevention and Treatment Act (CAPTA) provision at section 106(b)(2)(A)(ii) requires States to adopt policies and procedures to address the needs of infants identified as being affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure. Does this requirement include an infant who is affected by prenatal exposure to alcohol?

Answer: No. The inclusion of an infant?s prenatal exposure to alcohol was considered but excluded from the requirement by Congress. Specifically, the House bill included "fetal alcohol syndrome" in the provision, but the Senate bill did not. Rather, the original Senate language which does not mention prenatal exposure to alcohol was finally adopted in conference and enacted into law. The Senate Report (S. Rpt. 108-12) notes: "While the committee felt constrained, because of limited ability to detect and diagnose it at birth, not to include prenatal exposure to alcohol in this requirement, the Committee remains concerned about the affects [sic] of alcohol on infants and a possible later diagnosis of fetal alcohol syndrome."

The Senate Report further stated that "[t]he committee wants to be clear that it is not intending to pre-empt State law regarding what constitutes child abuse or requirements for prosecution, nor does the committee intend to signal that States should no longer investigate cases involving prenatal exposure to alcohol." Therefore, although the inclusion of infants who are born with prenatal exposure to alcohol is not required by the CAPTA provision, neither is it prohibited.

  • Source/Date: 05/02/06
  • Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(A)(ii)