Outline of Report Incorporating Task Force Goals 2/18/10

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SENATE MEMORIAL 19

ASSESS AND IMPROVE ACCESS TO SUBSTANCE ABUSE TREATMENT AND PRENATAL CARE FOR PREGNANT WOMEN WITH SUBSTANCE ABUSE PROBLEMS

FINAL REPORT

Printed November 2010

Table of Contents

Senate Memorial 19 Task Force Members Page 3

Executive Summary Page 4

Introduction Page 6

A Public Health Approach to Substance Abuse and Addiction Page 8

Demographics of Women in New Mexico Page 14

Substance Use in Pregnancy Page 17

Evidence for Treating Substance Use in Pregnancy Page 19

Evidence Regarding Effects on Babies Page 20

Professional Organization Opinion Page 22

Assessment of Current Services and Policies in New Mexico Page 23

Summary of Current Substance Abuse Treatment Services in New Mexico Page 30

Update from the 2004 Continuum of Women’s Services Report Page 37

Access to Supportive Services in New Mexico Page 39

Estimates of Prevalence of Substance Affected Infants in New Mexico Page 40

Women in the Criminal Justice System in New Mexico Page 42

Qualitative Data from Focus Groups with Women, March 2010 Page 46

Related Task Forces and Work Groups Page 47

Establishing Best Practices Page 51

Five Component Health Model Page 55

New Mexico Comprehensive State Plan for Improving Services to

Substance Abusing Pregnant Women and their Families Page 56

Appendix A: Senate Memorial 19 (Lopez, 2009) Page 74

Appendix B: SM 19 Task Force Goals Page 79

Appendix C: SM 19 Task Force Meeting and Work Schedule Page 80

Appendix D: Example of Informed Consent for Prenatal and Intrapartum

Toxicology Testing Page 81

Appendix E: ICD-9 Codes Used for Hospital Discharge Data Analysis Page 83

References Page 84

Senate Memorial 19 Task Force Members

Alexis Avery, NM Department of Health, Public Health Division

Susannah Burke, PB&J Family Services Executive Director

Nicholas Dagones, Children Youth and Families Department, Region 5 Manager

Deborah DePalo, District Attorney Association

Alexandra Freedman Smith, Women’s Justice Project

Joan Gibson, Ethicist

Sarah Gopman, Physician, UNM Department of Family and Community Medicine

Sheila Lewis, Women’s Justice Project and Drug Policy Alliance

Bobbie Lightle, NM Human Services Department, Behavioral Health Services Division Women’s Services Coordinator

Susan Loubet, NM Women’s Agenda

Pam Martin, Optum Health

Karen Meador, NM Human Services Department, Behavioral Health Collaborative

Julie Roberts, Drug Policy Alliance

Giovanna Rossi Pressley, NM Governor’s Office of Women’s Health (co-chair)

Bruce Trigg, Physician, NM Department of Health

Angie Vachio, Women’s Justice Project (co-chair)

Carolina Yahne, Psychologist and Motivational Interviewing Trainer

Technical Consultants

Karen Hermans Mooney, Colorado Department of Human Services, Division of Behavioral Health, Manager of Women’s Substance Use Disorder Programs

Lynn Paltrow, Executive Director/Founder National Advocates for Pregnant Women

Staff

Erin Lunde, Health Policy Fellow, NM Governor’s Office of Women’s Health

Andrea Lopez (8/09 – 12/09) Health Policy Fellow, NM Governor’s Office of Women’s Health

Executive Summary:

The Senate Memorial 19 Taskforce (SM19) was created by the New Mexico Legislature in 2009 to assess and improve access to substance abuse treatment and prenatal care for pregnant women with substance abuse problems. The SM19 taskforce is composed of a diverse range of stakeholders and included input from the Substance Abuse and Mental Health Services Administration (SAMHSA) with technical assistance from two out-of-state experts in the field. The SM19 Taskforce met monthly between September 2009 and August 2010 and performed an extensive review of the literature, an evaluation of data on substance abuse in New Mexico, a review of state laws, systems of care and organizational policies, held focus groups and consulted with experts. This represents the final report of the Taskforce’s findings.

Substance use, abuse and dependency are common in the U.S. though are typically framed as moral and criminal issues rather than public health problems. U.S. policy has over-emphasized supply-reduction methods and criminal justice approaches to substance abuse despite ample evidence that substance abuse treatment is both efficacious and cost-saving. Currently only 10% of the approximately 22 million Americans with a current alcohol or substance abuse problem receive treatment, yet the number of people incarcerated for drug crimes continues to rise. Compared to incarceration, substance abuse treatment costs 4 – 14 times less and is more effective at preventing substance abuse relapse.

Despite ample data that men and women substance abusers differ, substance abuse treatment has traditionally been developed with male substance users in mind. Only recently have programs begun to offer gender-sensitive and gender-specific treatment for women. These treatment programs have been shown to be more effective for women than traditional treatment programs. Though there are guidelines available to assist states in the development of gender treatment standards, New Mexico has yet to develop or implement standards for gender-sensitive treatment.

Additionally, a large number of children born in New Mexico to substance using women are referred to the Children, Youth, and Families Department (CYFD) without other evidence of potential for child abuse or neglect. New Mexico law does not define substance use in pregnancy as child abuse nor does federal law require reporting of all substance exposed infants. Not only do these unnecessary referrals increase the workload of already-burdened CYFD caseworkers, they create great fear among substance using pregnant women that is a major deterrent to seeking prenatal care.

The SM19 Taskforce developed a comprehensive state plan for improving policies and systems relating to substance abuse in pregnancy. Specifically, the plan calls for reducing unnecessary referrals to CYFD and increasing home visitation; increasing access to quality substance abuse treatment, prenatal care and family planning for women; increasing access to supportive services; increasing treatment over incarceration for non-violent drug-related crimes; changing attitudes about substance use; increasing research and data collection; and, creating an Oversight and Implementation Task Force to follow up on these recommendations.

I. Reduce Unnecessary Referrals to CYFD and Increase Home Visitation

• Create legislation mandating that drug testing of pregnant women follow statewide workplace standards including written consent

• Clarify in CYFD state plan that substance-exposed infants be referred to home visitation program rather than child protection.

II. Increase Access to Quality Substance Abuse Treatment, Prenatal Care and Family Planning for Women

• Develop and implement gender sensitive treatment standards and rules for New Mexico

• Develop a state-owned centralized referral system for pregnant and parenting women seeking substance abuse treatment in New Mexico

• Prohibit discrimination against pregnant women in accessing substance abuse treatment.

• Increase access to opiate replacement therapy for pregnant and postpartum women and their partners

• Increase Medicaid coverage postpartum for family planning and substance abuse treatment.

III. Increase Access to Supportive Services

• Increase access to case management for substance abusing women and their families by requiring assessment of case management needs and referral to core service agencies.

• Increase the accessibility to public housing for pregnant and parenting women with a history of substance abuse and/or incarceration.

IV. Increase Treatment over Incarceration for Drug-Related Crimes

• Create a taskforce to evaluate and recommend alternatives to incarceration for drug offenses and more gender-sensitive probation and parole policies

V. Change Attitudes about Substance Use

• Educate healthcare and social service providers about the differences between use, abuse and dependence, frame addiction as a public health problem and reduce misinformation about substance use in pregnancy.

• Launch a social marketing campaign to educate the public about the availability and effectiveness of substance abuse treatment

VI. Increase Research and Data Collection

• Improve data collection on substance abusing women by county to enable the State to track numbers of referrals, women completing treatment, and follow-up

• Improve data collection on women in the criminal justice system and their families.

• Improve statewide prevalence estimates of numbers of pregnant substance abusing women by changing PRAMS surveillance questions and collecting toxicology screening results of newborns in New Mexico

VII. Administrative Recommendations

• Create by legislative memorial or executive order an Implementation and Oversight Taskforce to continue the work of the SM19 taskforce into the next 5 years.

Introduction:

Senate Memorial 19 (see Appendix A) asks the New Mexico Women’s Health Office to create a taskforce to assess and improve access to substance abuse treatment and prenatal care for pregnant women with substance abuse problems. The SM 19 taskforce was charged with developing a comprehensive plan for the state to address the needs of pregnant and postpartum women with substance abuse problems and the well-being of their children and families. In the passage of SM 19, the New Mexico legislature recognized that substance abuse in pregnancy is a complex problem requiring a continuum of prenatal and postnatal services. It also acknowledged that incarceration carries many social and financial costs that outweigh the costs of specialized treatment and prenatal services. SM 19 acknowledges that many women with substance abuse problems may avoid seeking care due to fear of arrest, prosecution and loss of parental rights.

In the past 30 years, the U.S. has seen an 800% increase in the incarceration of women and has the highest incarceration rate worldwide.[i],[ii] Incarcerations of women for drug violations account for 40% of all women in prison currently. An additional 1/3 of women are incarcerated for non-violent property crimes which are often motivated by drug use. Additionally, at least 2/3 of women in state or federal prisons are mothers.[iii] The New Mexico legislature recognizes that incarceration is not an effective method of substance abuse treatment, and thus in SM 19 calls for a comprehensive plan for New Mexico that moves away from prosecution and towards high quality, specialized treatment services for women.

SM 19 calls for an assessment of current needs and gaps in services with recommendations to eliminate them. In addition, the SM 19 task force is charged with identifying and prioritizing short and long-term goals and to assign responsible agencies and agents for the implementation of each goal.

SM 19 directs the Women’s Health Office to create and coordinate a task force with diverse membership including experts in the fields of ethics, law, perinatal medicine, behavioral health treatment and social services. In addition, SM 19 specifically calls for representation from the department of health, the interagency behavioral health care purchasing collaborative, the drug policy alliance, the women’s justice project, and at least one woman who has recovered from perinatal substance abuse. The federal center for substance abuse treatment, the Substance Abuse and Mental Health Services Administration (SAMHSA) was identified as a resource that should be utilized in the creation of the state plan and in the development of treatment guidelines.

As directed by SM 19, the Women’s Health Office organized the first meeting of the SM 19 Taskforce on Sept 17, 2009. Pursuant to the requests set forth in SM 19, an interim report was presented in November, 2009 to Legislative Health and Human Services Interim Committee. This document is the final report, completed as requested by November 2010, and will be submitted to the interim committees for Legislative Health and Human Services, Courts and Corrections, and Legislative Finance Committee.

Also as directed by SM 19, the Women’s Health Office sought assistance from SAMHSA throughout the process that led to this final report. Melissa Rael, Senior Program Management Officer for SAMHSA presented at the September 2009 task force meeting to provide background on the federal Substance Abuse Prevention and Treatment (SAPT) block grant under which New Mexico receives approximately $8.7 Million annually and is a major source of public funding for substance abuse treatment. Additionally, the SM 19 task force requested technical assistance through SAMHSA’s Center for Substance Abuse Treatment (CSAT). The Task Force received assistance from two independent consultants, funded through CSAT totaling approximately $7,500.

Lynn Paltrow from the National Advocates for Pregnant Women visited New Mexico 7/15/10 through 7/17/10 to provide in-person technical assistance. She contributed significant background materials, input on New Mexico policies and clarification of federal laws relating to substance abuse in pregnancy. She will continue to provide telephonic assistance to the Task Force as needed. From 8/11/10 to 8/12/10 Karen Hermans Mooney from the Colorado Department of Human Services, Behavioral Health Division came to New Mexico to provide in-person consultation through CSAT. Ms. Mooney is the Women’s Services Coordinator for Substance Abuse Treatment programs in Colorado and provided technical assistance related to the creation and implementation of gender standards for substance abuse treatment as well as general recommendations for improving treatment services for women in New Mexico. She will also be available as needed throughout the implementation stages of this State Plan.

A Public Health Approach to Substance Abuse and Addiction

Despite growing evidence supporting a biological basis for addictive disorders, drug addiction has not been treated as a “real” disease by the public or the medical community. Drug use and addiction are treated as moral and social problems rather than health problems. Drug users are typically stigmatized and viewed as either bad or weak-willed people who choose instant pleasure without concern for the future or the negative consequences of their behavior. Research on drug addiction and treatment indicates that this response to addiction is inappropriate and it should instead be framed similar to other chronic, progressive, relapsing diseases such as diabetes, obesity and hypertension. Even among those in the medical community who see addiction as a medical problem, it is frequently treated as an acute rather than a chronic disorder. This is evidenced by the fact that nearly half of all money spent on addiction treatment goes to acute detoxification without long-term follow-up.[iv]

The idea that addiction results from deficiencies in willpower also permeates the approach to treatment for substance use. This results in prejudice in the medical community and attitudes that relapse represents a personal failure rather than a failure of the system to recognize the chronic nature of addiction disorders. Addiction medicine experts support their assertion that addiction is a chronic disease by highlighting the similarities between the natural history and treatment strategies for addiction and other chronic diseases, especially diabetes, hypertension and asthma. Research indicates that drug use activates reward pathways in the brain that are deeply entwined with areas important for memory, emotion and motivation. With time, drug use can blunt the reward circuitry and as tolerance develops, failure to use can push the individual toward depression. Use of the drug can merely push the addicted individual back towards “normal” but no longer delivers the euphoria experienced with early use.4

“I was sexually abused by my stepfather. And then my family is just the type of family that drinks. Alcohol is a part of how I was raised. The feeling is ‘It’s ok for me to drink because it’s legal.’ But then I got to the point were I didn’t need an excuse to drink, I just wanted to drink, that’s what I did. Then it got to the point where I thought I needed it to feel better, but it was just making my life a lot worse.” – Focus Group Participant at Milagro Residential Treatment Program

In addition to having a biological basis for the disease, addiction resembles other chronic diseases in that if left untreated, it will inevitably worsen. There is also a strong inherited susceptibility to addiction disorders though no specific genes have yet been identified, similar to susceptibility to diabetes, hypertension or asthma. These diseases are also clearly exacerbated by voluntary behavior such as overeating, smoking, being sedentary, having a drink or using a drug. Given the complex interaction of behavior and biology, it is important that we take a public health approach to substance abuse, similar to the national approach to obesity and diabetes. Yet the national approach to addiction has been largely dominated by the criminal justice system rather than by medical and public health professionals.

A public health approach to a problem implies more than merely viewing substance abuse as a chronic disease. A public health approach focuses on preventing diseases, not just curing them. It also considers the health of populations over that of individuals and also considers how economic inequalities, social problems and environmental issues affect susceptibility and response to disease. This broad approach to health is based on The World Health Organization definition of health as “a state of complete physical, mental and social well-being: not merely the absence of disease or infirmity.”[v] Modern public health seeks to address determinants of health across a population rather than simply advocating for individual behavior change. By acknowledging the social determinants of health, modern public health attempts to address the root causes of disease rather than merely treating symptoms or consequences of poor health. Given the strong interactions between environmental and social factors in addiction disorders, it is important that we consider the root causes of addiction in order to truly address this complex problem. Since substance use and abuse can both stem from and cause economic problems, we must consider carefully the interplay between poverty and addiction. Though addiction itself affects all socioeconomic classes and all races, certain groups are disproportionately affected by the negative consequences of addiction such as incarceration, loss of parental rights and failure to obtain treatment.

“We know this disease is not prejudiced but who gets brought in [to jail] is. The system is not conducive to getting you better.” – Focus Group Participant at Metropolitan Detention Center

In considering the upstream risk factors for substance abuse, there is a large body of research indicating that gender matters. Women substance abusers more frequently initiate substance use as a result of traumatic life events, such as physical or sexual violence or other disruption in family life.[vi] Also, women substance abusers are often drawn into substance use by their partners or were raised in families with heavy alcohol or drug use. Women’s psychosocial characteristics associated with substance abuse are also different than those common in male substance abusers. Women are more likely to have poor self-concepts and high rates of mental health problems, specifically depression, anxiety, bipolar disorder, suicidal thoughts, eating disorders and posttraumatic stress disorder. Finally, social stigma, labeling and guilt tend to be much greater for women than men and are major barriers to women’s receiving treatment. Given the differences for using substances between men and women, it seems reasonable to conclude that substance abuse treatment should be tailored to match the unique needs of addicted men and women. Until recently, however, there was little attention paid to gender differences in addiction and most treatment programs were designed primarily with men in mind. Current research indicates that women do better in gender-sensitive treatment programs that are trauma-informed and provide ancillary support services such as childcare and transportation that address common barriers to seeking treatment that more commonly affect women.

“The problem is that you can have it all planned out but reality is out there. When you relapse and they send you right back to jail, that isn’t the answer. The first thing you need in that moment is maybe a sponsor or a preacher. Nobody’s perfect. Part of our disease is relapse, learning how to deal with relapse; currently they break your spirit.” – Focus Group Participant at Metropolitan Detention Center

Treatment for addiction is similar to that of other chronic diseases in that it can ease symptoms and lessen severity, but cannot lead to a cure. All of the chronic diseases are linked by poor treatment compliance that can be frustrating for treating physicians. Yet individuals with diabetes, hypertension and asthma are not stigmatized to the same degree as drug addicted individuals when they have a relapse or are non-compliant with treatment. With other chronic diseases when patients relapse they are usually treated with more intensive education and therapy; yet when a substance user experiences a relapse, this is not only considered a failure of the individual, but of the treatment itself. In fact, evidence shows that treatment for addiction is at least as successful as treatment for other chronic diseases. For example, only 30% of adults treated for asthma comply with their inhaler use as prescribed by their physician and 60-80% will require retreatment within a 12 month period. In contrast, abstinence-oriented addiction treatment (as opposed to medication-assisted treatment) has a 40% rate of treatment attendance and only 10-30% will require retreatment within a 12 month period.[vii]

With addiction, similar to other chronic diseases, an individual’s behaviors can have an impact on health outcomes. For example, eating fatty foods, smoking and not exercising can increase the chance of developing heart disease, but not everyone who does these things will ultimately suffer negative health outcomes. Similarly, not everyone who uses drugs will become addicted to them or suffer negative consequences as the result of use. Society and the medical community commonly confuse and inappropriately interchange the terms use, abuse and addiction when it comes to illicit substances. The American Psychological Association clearly spells out criteria for determining abuse or addiction to drugs or alcohol as opposed to simple use in the Diagnostic and Statistical Manual of Mental Disorders IV-TR (DSM-IV TR).[viii]

A diagnosis of substance abuse requires a “maladaptive pattern of substance use” including one or more of the following occurring within a 12-month period, “…failure to fulfill major role obligations at work, school or home, recurrent substance use in situations when it is physically hazardous, recurrent substance-related legal problems, or continued use despite having persistent or recurrent social or interpersonal problems...”

Abuse is therefore defined when the substance user continues to use despite illegal or unsafe consequences or the inappropriateness of the substance using experience.

A diagnosis of substance dependence or addiction requires a “maladaptive pattern of substance use” including three or more of the following, “tolerance, withdrawal, taking in larger amounts or over a longer period of time than intended, persistent desire or unsuccessful efforts to cut down or control substance use, great deal of time spent in activities necessary to obtain the substance, use the substance or recover from its effects, important social, occupational, or recreational activities are given up or reduced because of substance use, and continued use despite knowledge of having a persistent or recurrent physical or psychological problem caused or exacerbated by the substance.”

Approximately 114 million Americans will use illicit drugs in their lifetime with 35 million using in the past year. Of these, only 7 million or 20% fit DSM-IV criteria for substance abuse or dependence. The majority of this use is from marijuana with 22 million Americans using in the past year but only 4.2 million of these having marijuana abuse or dependence (19%). The next most commonly used drug is cocaine with 5.5 million annual users, of which only 1.4 million have cocaine abuse or dependence (25%). Regarding alcohol use, 122 million Americans used alcohol in the past 30 days, 54.6 million reported binge drinking in the past 30 days, but only 17.4 million had alcohol abuse or dependence (7.9 million with dependence).[ix] These statistics highlight the fact that most substance users do not become substance abusers or addicts, despite commonly-held beliefs by the public and the medical community. No addict first used drugs with the goal of becoming addicted, just like no smoker started smoking with the plan to develop lung cancer or heart disease.

The U.S. currently allocates 65% of its national drug control budget on law enforcement and interdiction efforts whereas only 23% is spent on treatment and 12% is spent on prevention efforts.[x] Despite increasing annual expenditures on drug control since the 1980’s, rates of drug use have been remarkably unchanged, drug availability has been unaffected,[xi] and drug related deaths have actually increased[xii]. Part of the problem may be that of the approximately 5 million Americans needing treatment for illicit drug abuse or dependence, less than ¼ actually receive treatment. U.S. drug policy has remained disproportionately skewed towards supply reduction and law enforcement despite evidence that treatment is substantially more effective at reducing drug consumption and related crime and violence.[xiii] Yet most people with alcohol or illicit substance abuse or dependence who are in need of treatment are not receiving it. It is important to recognize the difference in numbers of people who “need” treatment versus the “demand” for treatment. Given the large role of denial in substance abuse disorders a large percent of people with serious abuse or dependence do not themselves see the need for treatment. Therefore, some degree of coercion is often necessary to initially enter treatment either from family members, employers or the criminal justice system. Better outreach is also needed to high risk groups to help educate about the availability and effectiveness to reach those who have considered stopping use but have not yet sought out treatment.

The Center for Substance Abuse Treatment (CSAT) conducted the National Treatment Improvement Evaluation Study to estimate the cost of various forms of drug treatment compared with the cost of incarceration. They estimate the cost of regular outpatient treatment to be $1,800 per year based on $15 per day for 120 days. This type of treatment usually involves one or more group or individual sessions weekly for up to 9 hours of services per week. In contrast, intensive outpatient treatment ranges from 9 to more than 20 hours a week of structured services and has an annual cost of $2,500 including 6 months of weekly maintenance care after the initial intensive treatment. Participation in a methadone maintenance program costs about $13 per day for an average of 300 days or $3,900 annually per person. Inpatient treatment is significantly more costly with short term 30 day residential care costing about $130 per day for an annual cost of $4,000 which includes weekly outpatient group sessions for 6 months after initial treatment as this has been shown to improve outcomes. Private sector treatment programs may cost more than this and can range from $6,000 to $15,000 annually but may include up to a year of weekly maintenance group sessions or other services to prevent relapse. CSAT estimates the cost of long term residential care to be $49 per day for an average of 140 days, with annual costs of $6,800. None of these costs come anywhere near the annual cost of incarceration which CSAT estimates at $25,900 annually.[xiv] The long term effectiveness of treatment is also significantly better than incarceration for drug addicts. Only 5% of addicts in the criminal justice system not receiving treatment will remain drug-free 3 years after release. This compares to 35% of the same addicts who instead of incarceration received court-mandated drug treatment and aftercare.[xv]

Not only is treatment less expensive than imprisonment, but treatment is significantly more cost-effective in the long term compared to no treatment. Current substance abusers are among the highest cost users of medical care in the U.S. due to high rates of co-morbid medical conditions that often are not appropriately cared for until they become emergencies. Only 5-10% of the medical costs for active substance abusers are actually spent on treatment or mental health services.[xvi] When the Minnesota Department of Health instituted a consolidated treatment fund to improve access to various types of treatment for all individuals, they determined that 80% of the cost of providing treatment was offset in one year by reductions in medical and psychiatric hospitalizations, detoxification admissions and arrests.[xvii] Given that more than 70 conditions requiring hospitalization (including cancer, heart disease and HIV/AIDS) have risk factors associated with substance abuse, $1 of every $5 that Medicaid spends on hospital care can be attributable to substance abuse or a related condition.[xviii] A Philadelphia study found similar savings with an estimated savings of $8,408 in reduced health care and criminal justice costs for each individual entering outpatient treatment.16 This same study showed even greater cost benefits for outpatient methadone maintenance with an annual cost of $1,873 per person but $34,000 in savings through reduced medical costs, increased employment and reduced crime.

“I feel that the system is in the business of destroying lives to make money off of us. What it costs the state each day to put us here rather than in programs that actually help us is mind blowing.” -- Focus Group Participant at Metropolitan Detention Center

Demographics of Women in New Mexico

Before addressing the issue of substance abuse among pregnant and parenting women in New Mexico we must first consider the demographics of all women in New Mexico and how they differ from the rest of the United States. These demographics help inform us of some of the potential root causes of substance use and unique challenges facing women in this state. According to the New Mexico Office of Vital Statistics, the estimated population of New Mexico in 2007 was 2,053,922.[xix] Females made up 50.8% of the total population, but differed by age group. For age groups under age 35 there were higher percentages of males compared to females. Above age 35, however, there were more females than males (see figure below). Approximately 34% of New Mexico’s population resides in rural areas.[xx] With an average population density of 17 people per square mile, New Mexico is the 6th most sparsely populated state in the U.S.

Approximately 20% of all women in New Mexico live under the federal poverty level, which was $22,050 for a family of four in 2010. In 2007, New Mexico ranked 43rd in the country for per capita personal income. The 2007 it was $30,706, 20.5% lower than the U.S. per capita personal income of $38,615.19 Rates of poverty vary greatly by race and ethnicity. In New Mexico 25% of Hispanic women, 27% of African-American women and 37% of American Indian women live below the poverty level. In 2007, New Mexico ranked 47th among states for children under 18 living in poverty with 25.2% living at or below the federal poverty level compared to 18% nationally.19

According to the 2009 New Mexico Women’s Health Profile, wages for working women in New Mexico are significantly lower than for men. In 2007, women earned approximately 70% of men’s wages. Among full-time year-round workers, women earned 79% compared to men, and for part-time workers, women earned 86% of men’s wages. Women are much less likely than men to work full-time given their greater care-giving responsibilities for family members.[xxi]

In 2007, there were 30,605 births to mothers residing in New Mexico. This results in a birth rate of 14.9 births per 1,000 people, a rate higher than the national average of 14.2 births per 1,000.[xxii] The 2007 teen birth rate in New Mexico was 57.7 births per 1,000 teenagers aged 15-19 which is well above the national average. As of 2005, New Mexico has the highest teen pregnancy rate in the nation except for Washington, D.C., with 93 pregnancies per 1,000 teens aged 15-19. The teen pregnancy rate in New Mexico varies greatly by race/ethnicity. For Hispanic teens aged 15-19 the pregnancy rate is 127 per 1,000 and for non-Hispanic whites it is only 44 per 1,000.[xxiii] New Mexico’s unintended pregnancy rate is also higher than the national average at 58% of all pregnancies being either unwanted or mis-timed.[xxiv] More than half of births in New Mexico (51.8%) were to single mothers compared to the national average of 38.5%.22

Some of the reasons for the high rates of unintended pregnancy and teen pregnancy in New Mexico relates to insurance coverage and availability of publicly funded contraception. Thirty-one percent of reproductive aged women in New Mexico are uninsured; another 14% are on Medicaid.[xxv] For women of all ages 28% are uninsured. This is much higher than the national average of 18%, and New Mexico tied Texas in 2007 for the highest rate nationally.

For uninsured women and those on Medicaid, publicly funded family planning clinics currently provide 53% of the needed contraceptive services.[xxvi] In 2006, 95,300 New Mexican women received publicly funded contraceptive services, preventing 16,000 unintended pregnancies each year, including 7,000 abortions and 7,000 unintended births.[xxvii] Currently only about 20% of eligible women are being served by the Family Planning Medicaid program in New Mexico compared to 70% or greater in other states.[xxviii] In 2006, nearly $12 Million of combined federal and state dollars were spent on public family planning services in New Mexico.[xxix] Of this, only 11% came from state resources, the remainder was federally funded. In comparison, the national average for state contribution for family planning funding was 28%, ranking New Mexico as 40th in the Nation for state funding.

Educational attainment is both a predictor of future earning and linked to factors such as childhood poverty and teenage childbearing. In New Mexico, statewide data from public schools indicates that the 2007 female graduating class was only 56% of female 9th graders entering four years previously.21 New Mexican women living under the poverty level were three times more likely to have an incomplete high school education compared to those living above the poverty level. For New Mexican women living above the federal poverty line, nearly 60% had at least some college education. According to the Public Policy Institute of New York State, in 2003, New Mexico ranked 46th in the nation for its high school graduation rate.

Another issue that is strongly linked with substance use in women is domestic violence or history of childhood abuse. The 2005 New Mexico Survey of Violence Victimization showed that 32% of all New Mexican women will experience domestic violence in their lifetime. This compares to 15% of men in New Mexico.[xxx] An estimated 64% of domestic violence occurred in the context of current relationships, including couples that are married, living together or dating. Twenty-six percent of domestic violence occurred among former partners. Sexual assault is also an all-too common problem for women and girls in New Mexico. Approximately 25% of adult women in New Mexico report a history of sexual assault in their lifetime; 44% of these were assaults occurring in childhood, 24% as adolescents and 34% as adults.[xxxi] These rates of reported sexual assault are higher in New Mexico than the national average at 18% of females.

“I was in a DV relationship for 16 years. My ex took my kids from me 3 years ago, and that’s when I started doing drugs. I have called women’s advocacy and explained the problem. But I’m afraid of fighting for custody because now I’m in the system for using drugs. I’m afraid that he will win.” – Focus Group Participant at Metropolitan Detention Center.

New Mexico also struggles with being able to provide prenatal care to pregnant women. The general health care provider shortage throughout the state combined with high liability insurance rates for obstetric providers results in many primary care clinics offering little or no prenatal care. Geographical access is a barrier to care in sparsely populated areas of New Mexico. There are 8 counties in New Mexico with no prenatal care options for women, requiring women to travel large distances to receive the prenatal care they need.[xxxii] Barriers related to difficulty finding or accessing a prenatal provider likely contribute to the high number of women initiating prenatal care late or receiving no care at all. The Pregnancy Risk Assessment Monitoring System (PRAMS) data from 2004-05 showed that 38% of women’s who prenatal care or delivery was paid by Medicaid (or 59% of all births in NM) began prenatal care after the first trimester or had no care at all.24

Substance Use in Pregnancy

“When you’re using, you don’t think about being pregnant. You’re in denial. Plus, my body isn’t in tune when I’m doing drugs so it’s normal not to have periods.” - Pregnant Focus Group Participant at Metropolitan Detention Center

New Mexico, like many states, struggles with providing sufficient substance abuse treatment services to meet the large need. Addiction disorders are common in the adult population and affect approximately 10% of reproductive aged women and 20% of similarly aged men.[xxxiii] Addiction disorders in pregnancy present a unique challenge and public health dilemma as the rights and health needs of the pregnant, substance-abusing mother must be balanced with optimizing health outcomes for her fetus and family. Though rates of substance abuse typically decline in pregnancy, several studies estimate that as many as 4% of pregnant women continue to use alcohol and/or illicit substances throughout pregnancy.[xxxiv] New Mexico may have even higher rates as the most recent PRAMS data from 2004-05 indicated that 6% of all pregnant women surveyed used alcohol in the last 3 months of pregnancy.24 Specific data on rates of illicit substance abuse in pregnant women in New Mexico is lacking, but in other states it is approximately 3%.[xxxv] Therefore, using PRAMS estimates, of the 30,605 births to New Mexican women in 2007, approximately 1,836 would have been to women using alcohol in the last 3 months of pregnancy and 918 to women using an illicit substance in the last 3 months of pregnancy. This does not account for likely overlap between these two groups nor does it account for early pregnancy exposure to alcohol or drugs.

Substance abuse during pregnancy can lead to increased obstetric risks that can affect both maternal and child health. These health risks can be broken down into the medical conditions commonly co-occurring in substance-abusing women and those that primarily relate to the pregnancy. Some of the medical conditions linked to substance abuse include anemia, infections, depression/anxiety, diabetes and sexually transmitted infections. Obstetric complications include placental abruption, uterine infections, fetal growth restriction, fetal hypoxia and brain injury, neonatal abstinence, miscarriage, stillbirth, preterm labor and hypertensive disorders/preeclampsia.34 Rates of these co-morbid conditions and complications are higher in substance-abusing women compared to the general population, yet these women are less likely to obtain regular prenatal care due to active substance abuse, stigma and logistical barriers to care.

“Pregnancy is very different if you go in [to the doctor] using versus not using.” – Focus Group Participant, Metropolitan Detention Center

Regular prenatal care can improve birth outcomes whether or not a woman is able to stop using drugs in the short term of pregnancy.[xxxvi] Threats of exposure and loss of child custody deter women from seeking prenatal care and what little appropriate drug treatment might be available. According to a report published by the U.S. Department of Health and Human Services, National Center on Substance Abuse and Child Welfare:

One key reason for this lack of prenatal care is fear on the part of the pregnant woman of punitive action and/or the possible loss of custody of the child as a result of her drug use. Because quality prenatal care is such a critical factor in increasing the likelihood of good birth outcomes, everything possible should be done to ensure that the physician’s office is seen as a safe and supportive resource to all pregnant women.[xxxvii]

Research by the Southern Regional Infant Mortality Project on barriers to substance abuse treatment for pregnant women found that “fear of losing their children” was the greatest deterrent to women.[xxxviii] Additional studies of drug-dependent pregnant women have found that fear of the loss of custody of their children, as well as arrest and prosecution, is a significant factor in deterring women seeking health care and disclosing drug use.[xxxix] One recent study confirmed that child welfare reporting policies constituted a major barrier to prenatal care.[xl]

“I’ve heard other women say they didn’t seek care when pregnant because they were afraid of being reported to CYFD and knew they would show up ‘dirty’ if they got drug tested.” – Focus Group Participant at Metropolitan Detention Center.

Even for those women who are not completely deterred from seeking care, fear of exposure and intervention by child welfare authorities is likely to discourage them from being truthful about drug use, corroding the formation of trust that is fundamental to any health care provider-patient relationship. Medical treatment is greatly enhanced when patients feel comfortable divulging highly personal, stigmatizing, and potentially incriminating information. Erosion of trust between doctor and patient in the context of prenatal care is recognized as potentially harmful to both the pregnant woman and fetus.[xli]

Open communication between drug-dependent pregnant women and their doctors is especially critical. Feelings of shame, fear, and low self-esteem are significant barriers to establishing the trust prerequisite to patients’ full disclosure of this medically vital information.[xlii] The exceptionally high rates of depression among drug dependent and addicted women mean that their prospect of successfully completing treatment depends greatly on forming a strong “therapeutic alliance” with care providers.[xliii]

“I was using and pregnant and afraid to tell my doctor. Once I told, every visit they would drug test me. I was lying to my family about it but I was afraid that something bad would happen to my baby. The doctors were supportive though. They talked about the side effects and drug tested me and my baby, though they didn’t offer me any treatment.” – Focus Group Participant at Metropolitan Detention Center.

Evidence for Treating Substance Abuse in Pregnancy

“With my second child I told them (my doctors) about my use. They congratulated me on being honest with them and offered me resources.” – Focus Group Participant at Metropolitan Detention Center

Treatment of alcohol and drug addiction in pregnancy requires coordinated, specialized care. Given the negative social stigma surrounding substance abuse, many women face barriers accessing any prenatal care, let alone specialized treatment for their addiction. Many substance using pregnant women fear prosecution and imprisonment as well as losing their babies to child protective services. These fears may be one of the largest reasons that active substance users are much less likely to access early prenatal care than non-users.[xliv] The combination of late onset or complete lack of prenatal care with active substance abuse compounds the obstetric risks and poor neonatal outcomes. Multiple studies indicate that preterm delivery rates are lower among active substance users who receive adequate prenatal care compared to those receiving late or no care.[xlv],[xlvi] Additional evidence supports universal screening for substance use at the first prenatal visit and subsequent assessment and treatment integrated into prenatal visits to optimize obstetric outcomes.[xlvii],[xlviii] This screening usually consists of a set of questions regarding substance use asked directly by the treating provider. There are various standardized screening questionnaires that have been designed and validated, but provider uptake has generally been low. Provider screening is crucial, however, to identify women at risk who might benefit from treatment. Women who receive substance abuse treatment early in pregnancy are more likely to stop using and have much lower rates of preterm birth, low birth weight infants and stillbirth compared with women not receiving treatment.[xlix]

In addition to the need for specialized care addressing addiction issues during pregnancy, a systems-wide approach that provides a continuum of care into the postpartum period and integrates newborn and family care is essential to improved outcomes. National data from 2002 suggests that though many women successfully limit substance use during pregnancy, a large proportion will resume use postpartum.33 This presents a public health and social problem, as the health and wellbeing of children and families are affected as well as the woman herself.

Despite the barriers getting pregnant women into substance abuse treatment, clinicians should be aware that pregnancy represents a unique opportunity to successfully introduce treatment for substance abuse disorders in a woman’s life. No woman intends to hurt her baby with ongoing substance use and a large number of women are successfully able to stop use once they learn of their pregnancy. This is evidenced by decreasing rates of alcohol, illicit substance and to a lesser-extent tobacco use from the first through third trimesters of pregnancy.[l] Women who pre-pregnancy may not have been ready to stop using substances often come to acknowledge the severity of their addiction when they are unable to stop using in pregnancy, and then become motivated to seek treatment for their addiction. Clinicians currently represent only a small proportion of referral for substance abuse treatment for pregnant women. Women are most likely to access treatment through the criminal justice system or self referral. Only approximately 10% of pregnant women are referred to treatment by their providers. This may be due to failure to disclose substance use to prenatal providers or provider failure to screen. It may also represent lack of provider knowledge with treatment options or the effectiveness of treatment in pregnancy.

Evidence Regarding Effects on Babies

“Pregnancy was a very high motivation for me to stay clean. I was worried about how she would turn out from my using. And because of the effects that she has from the withdrawing, it makes you look at it way different. It makes you think, ‘how could you do this to your baby, continuing to use?’” – Focus Group Participant at Milagro Residential Treatment Program

Since the 1980’s, sensational, inaccurate, and misleading news reports, especially about crack cocaine, have convinced many people of the necessity for significant and intrusive state responses to the problem of children exposed to illegal drugs. The belief that any amount of pre-natal exposure to an illegal drug causes a specific, identifiable harm lacks basis in scientific research.[li],[lii]

Indeed, dozens of carefully constructed studies establish that the impact of cocaine on newborns has been greatly exaggerated and that other factors are responsible for many of the ills previously associated with cocaine use – with poverty chief among them.[liii] Based on a systematic review of all studies of the effects of in utero cocaine exposure, leading researchers concluded that:

There is no convincing evidence that prenatal cocaine exposure is associated with any developmental toxicity difference in severity, scope, or kind from the sequelae of many other risk factors. [liv]

Specifically, these researchers found that prenatal exposures to tobacco and alcohol were more likely than prenatal cocaine exposure to cause physical growth retardation. There is also little or no impact of prenatal cocaine exposure on children’s scores on assessments of cognitive development, nor does cocaine exposure impact standardized language measures. In fact, the oldest group of children studied to date registered no effect from in utero cocaine exposure on any IQ scales or on academic achievement.[lv]

Furthermore there is scant scientific evidence linking prenatal cocaine exposure with such things as sudden infant death syndrome or infant mortality in general. This is in sharp contrast to the research on prenatal exposure to cigarettes. Low birth weight, sudden infant death syndrome, spontaneous abortion, premature rupture of the membranes, and abnormal placentation and stillbirth are all well established consequences associated with prenatal tobacco exposure.[lvi] Cocaine – while not benign – does not cause the frank damage found with nicotine or smoking.[lvii]

Not all illegal substances are more toxic than legal substances, whether recreational or prescribed. – Deborah Frank, MD

There is now a consensus that the widespread belief that babies exposed prenatally to cocaine faced unique and certain peril constituted an unjustified and “gross exaggeration.”[lviii]  Courts have also recognized that “the phenomena of ‘crack babies’ is essentially a myth.”[lix] 

Finally, despite the prevailing popular belief that even minimal exposure to alcohol in pregnancy places a child at immediate risk of fetal alcohol syndrome or other birth defects, the best epidemiological evidence strongly indicates otherwise. Most babies born even to the very few women who are unable to control their drinking during pregnancy are unaffected by fetal alcohol syndrome, and prospective studies find that less than five percent of such babies have fetal alcohol syndrome.[lx] This is not to dismiss the reality that fetal alcohol spectrum disorders (FASD) occur in approximately 1% of births and is the leading cause of mental retardation in the U.S. Still, the diagnosis of FASD is limited and non-specific and usually not apparent at birth. Some of the behavioral and cognitive problems seen in FASD that become apparent in childhood have multiple other causes as well and it becomes difficult to separate the effects caused by prenatal alcohol exposure versus those induced by poverty, family violence, poor nutrition, lack of a stable home environment, etc. Therefore, efforts to punish women for prenatal alcohol use when the diagnosis of “affected” children is so unclear seem misguided. Rather than report women to CYFD for prenatal alcohol use, it is likely more important to ensure adequate family supports including stable housing, food, and parenting and close developmental follow-up with early intervention.

One fetal effect of prenatal substance use that has a clearer clinical picture is neonatal abstinence syndrome in newborns exposed to opiates in utero. Any opiate used by the mother on a regular basis can induce neonatal abstinence syndrome, whether illegal (heroin or illegally-obtained prescription opiates) or legal (methadone, buprenorphine, prescription opiates). The symptoms may be mild, such as increased tone, tremor, sneezing and irritability, which can often be treated by providing general comfort measures. More moderate or severe symptoms can include poor feeding or food intolerance, diarrhea, fever, and even respiratory distress. These more severe cases of withdrawal are typically treated with low-doses of opiates that are slowly weaned over days to weeks under careful medical supervision.

Methadone, one of the mainstays for opiate replacement therapy in pregnancy for former heroin or other narcotic addicts, can create as severe withdrawal as heroin. The advantage of methadone in pregnancy is that it encourages a more stable lifestyle for the mother. She can seek routine prenatal care, reduce her risk of infectious diseases from injection drug use, and reduce the risk of maternal withdrawal in pregnancy which may trigger miscarriage, preterm labor or stillbirth. Unfortunately, the likelihood of developing moderate or severe neonatal abstinence syndrome does not correlate with maternal methadone dose, so all babies exposed to methadone or other opiates prenatally should be monitored for 96 hours after birth to ensure that they will not require treatment for withdrawal. Buprenorphine is a newer form of opiate replacement therapy that has been used safely in pregnancy. It is safer than methadone and has fewer side effects. It is also less prone to abuse on the black market than methadone. In pregnancy, it can effectively treat mothers with opiate addiction and may be associated with less neonatal abstinence syndrome than methadone. However, until data from a randomized trial becomes available, methadone remains the standard of care for opiate replacement therapy in pregnancy.

Professional Organization Opinion

In addition to many research studies that support treatment over incarceration or other punitive approaches to substance use in pregnancy, there are many professional organizations that support treating addiction in pregnancy as a disease rather than a crime. The following professional organizations and others have made policy statements criticizing the prosecution and punishment of pregnant women:

• American Academy of Pediatrics

• American College of Obstetricians and Gynecologists

• American Medical Association

• American Nurses Association

• American Psychiatric Association

• American Public Health Association

• American Society of Addiction Medicine

• Association of Maternal and Child Health Programs

• March of Dimes

• National Association for Perinatal Addiction Research and Education

• National Council on Alcoholism and Drug Dependence

The basis of the criticism is the highly recognized potential for women’s fear of prosecution to discourage them from seeking prenatal care, thus negatively impacting the health of the woman and her fetus and preventing her from getting the substance abuse treatment she requires. Threat of incarceration for drug use in pregnancy also undermines the relationship between health and social services workers and their clients. Laws requiring physicians to report substance use in pregnancy to law enforcement violates patient-doctor confidentiality and trust. The American College of Obstetricians and Gynecologists further specifies that women should not be punished for adverse perinatal outcomes. They note that “the relationship between maternal behavior and perinatal outcome is not fully understood, and punitive approaches threaten to dissuade pregnant women from seeking health care and ultimately undermine the health of pregnant women and their fetuses.”[lxi] The National Association for Perinatal Addiction Research and Education also points out the ineffectiveness of threats of criminal prosecution at deterring pregnant women from using substances. As they state, “These women are addicts who become pregnant, not pregnant women who decide to use drugs and become addicts.”[lxii]

Assessment of Current Services and Policies in New Mexico

Relevant Federal Laws

The federal government specifically does not define what constitutes child abuse or neglect but rather, leaves it up to individual states. State laws regarding child abuse and neglect vary. While no state legislature has made it a crime for a woman to be both pregnant and experience drug or alcohol problems, numerous states address the issue of drug use and pregnancy through their civil child abuse laws. The most relevant federal law that directs how states address the issue of substance use by pregnant women is the Child Abuse and Prevention Treatment Act (CAPTA). In 2003, when Congress reauthorized CAPTA, they added a provision that specifically addressed the issue of pregnant women and drug use. This provision requires that in order to be eligible for federal funding under CAPTA, states must demonstrate that they have the following in place:

1. “Policies and procedures (including appropriate referrals to child protection service systems and for other appropriate services) to address the needs of infants born and identified as affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure, including a requirement that health care providers involved in the delivery or care of such infants notify the child protective services system of the occurrence of such condition in such infants, except that such notification shall not be construed to establish a definition under Federal law of what constitutes child abuse or require prosecution for any illegal action.”

2. A plan of safe care for the infant born and identified as being affected by illegal substance abuse or withdrawal symptoms.

3. Procedures for the immediate screening, risk and safety assessment, and prompt investigation of such reports.[lxiii]

CAPTA also requires states to establish procedures to refer children younger than 3 years who have substantiated cases of child abuse or neglect to early intervention services, funded under the Individuals with Disabilities Education Act (IDEA). Also CAPTA specifically does not state that infants identified as substance affected should establish actual child abuse or neglect, but these infants can be included in the group of children who are referred for early intervention services for developmental assessments.

The CAPTA legislation explicitly does not require states to adopt policies that treat infants born and identified as being affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure, as if they have been abused or neglected under state law. Moreover, the legislation fails to define what “affected by illegal substance abuse” means.[lxiv] Without a definition, many states have developed policies that are not required by, or necessarily even in keeping with the intention of the CAPTA provisions touching on the issue of drug use and pregnant women. CAPTA does not mandate drug testing of any pregnant woman, mother or newborn.

Many states, however, have interpreted the terms “being affected by illegal substance abuse” to mean that any infant exposed to a controlled substance (“substance exposed”) must be reported to child protective services as an abused or neglected child. This has led some states to adopt policies that require hospitals to report all babies with positive toxicology tests to child welfare authorities. As a result, children who have not in any way been “affected” and children who have been exposed to substances by a mother who may have used but did not “abuse” those substances are, in some states, treated as abused and neglected children.

In addition, some hospitals mistakenly believe that in order to receive federal funding they must report all substance exposed newborns to child welfare authorities or risk losing funding because of violating CAPTA. This is not true. CAPTA is specifically directed to states and whether or not they document that they have “policies and procedures…to address the needs of infants born and identified as affected from illegal substance abuse or withdrawal symptoms from prenatal drug exposure.” CAPTA also specifies that states have a plan for promptly handling referrals of substance affected newborns.[lxv] Thus, the 2003 CAPTA provisions apply directly to states and not individual healthcare institutions and requirements for documentation apply only to states, not hospitals.

CAPTA also does not specifically define or mandate how the child protective services system should respond to such reports. Thus, response could mean providing ancillary family support services under the umbrella of CYFD without specifically meaning that a child abuse or neglect investigation must be launched. However, in many states, including New Mexico, many health care providers and child welfare workers mistakenly believe that CAPTA requires hospitals to report every “positive tox” mother and/or newborn to CYFD. Not only does this represent a misinterpretation of CAPTA, but it also has resulted in an overburdening of the CYFD system with a multitude of referrals for infants who show no evidence that they have been “affected” much less harmed by “illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure.” Moreover, reports are made despite lack of indicators of likelihood for future harm, even when it is clear that a child or family might be best protected by a referral to supportive services such as home visitation.

Summary of Relevant State Laws

“I never went to prenatal care with my third child. CPS brought this against me. My husband was treated differently because he wasn’t caring for children; the punishment was harsher for me.” – Focus Group Participant at Metropolitan Detention Center

Since the federal government does not dictate what constitutes child abuse or neglect, states have taken a spectrum of approaches to substance use by pregnant women. These policies and practices reflect varying values for parenting, addiction, treatment, foster care and apparently varying degrees of familiarity with evidence-based research regarding the effects of prenatal exposure to drugs and alcohol. 63 The particular perspective of a given state influences which agencies are involved in carrying out the state’s policies relating to substance use in pregnancy.

To date, not a single state legislature has passed a law making it a crime for a woman to be pregnant and use or be dependent on an illegal drug or alcohol. Prosecutors, however, in at least 35 states have attempted to use existing laws, such as child abuse statutes, to reach and punish drug using women who have given birth.[lxvi] According to one overview of state laws:

• “15 states consider substance abuse during pregnancy to be child abuse under civil child-welfare statutes, and 3 consider it grounds for civil commitment.

• 14 states require health care providers to report suspected prenatal drug abuse, and 4 states require them to test [without informed consent] if they suspect drug abuse.

• 19 states have either created or funded drug treatment programs specifically targeted to pregnant women, and 9 provide pregnant women with priority access to state-funded drug treatment programs.

• 4 states prohibit publicly funded drug treatment programs from discriminating against pregnant women.

• 3 states (CA, WA, HI) specifically state that prenatal drug exposure alone is not sufficient grounds for charging, or in the case of California, even reporting child abuse or neglect without additional indicators of harm or risk of harm.” [lxvii]

Some states have not only adopted a more health and social services oriented approach to policies and legislation addressing pregnant women and drug and alcohol use, but they have also developed model systems of care that seek to maximize prevention, treatment and supportive services for women and their children.

New Mexico Law

“I’m raising my husband’s 13 year old. He has multiple problems. His mom was using meth during her pregnancy and was scared to tell her doctor because she was so afraid she would be reported to CYFD. Just all out scared for the paper trail that starts at birth and never ends. If she had been honest with her doctor she might have gotten help for her addiction. She lives in a good area now; I’m not sure why CYFD is still following her case. It’s like once you’re in the system you can’t get out.” – Focus Group Participant at Metropolitan Detention Center

New Mexico law does not require drug testing any pregnant woman, new mother, or newborn; does not require reporting a pregnant woman’s drug use or positive toxicology test to child welfare authorities; and does not mandate reporting a positive drug test on newborns. The absence of such statutory mandates reflects the important medical, social science, and child welfare understanding that evidence of drug and alcohol use alone is not indicative of neglect, abuse, or maltreatment and does not provide an appropriate basis for arresting pregnant women or for routinely involving civil child welfare authorities.

The New Mexico legislature has repeatedly rejected efforts to extend the State’s criminal child abuse laws to encompass pregnant women who continue to term despite using illicit drugs or to include “fetus” in the definition of a child. Where the legislature has sought to include the fetus, it has done so expressly. In fact, when specifically addressing the issue of drug use, the legislature has consistently chosen to deal with the issue within a public health context, rather than a punitive criminal justice or child welfare context.

In 2005, the New Mexico legislature enacted the Family Support Act to demonstrate the “state’s policy of support for the family and to emphasize the responsibilities of parents and the state in the healthy development of children and the family as an institution.”[lxviii] The legislature reiterated its public health approach by rejecting criminal sanctions in a bill that would have established a pregnant woman’s drug addiction as child abuse. In refusing to enact such a law, the legislature stated that the bill “may have unintended consequences of discouraging prenatal care. New Mexico’s mandatory child abuse reporting laws applies to physicians. A drug addicted or alcoholic mother may forgo medical care during her pregnancy for fear of criminal charges.”[lxix]

Furthermore, efforts to impose criminal liability upon pregnant women for continuing to term in spite of a drug problem have been squarely rejected by New Mexico courts. In State v. Martinez, 137 P.3d 1195 (N.M. Ct. App. 2006), Cynthia Martinez gave birth to a baby who tested positive for cocaine. She was charged with felony child abuse, and pled guilty. Ms. Martinez appealed the application of the law to her and argued that the state’s child abuse laws were not intended to apply to fetuses, or the relationship between the pregnant woman and the fetus she carries. The Court of Appeals reversed the trial court’s ruling, concluding that a fetus is not a “child” for purposes of the state’s child abuse laws and rejecting the State’s attempt to use the court’s to judicially expand the law.[lxx] Finally, New Mexico courts have never determined that a fetus is a “child” for purposes of the state’s civil child abuse laws.

In 2005, the New Mexico legislature added language to the child abuse statute NMSA 1978, Section 30-6-1(F) creating an evidentiary presumption that leaving a child in a motor vehicle, building or any other premises that contains chemicals and equipment used in the manufacture of a controlled substance was prima facie evidence of child abuse. A similar provision was added in 2009 holding that evidence that a child had been knowingly and intentionally exposed to the use of methamphetamine was also prima facie evidence of abuse.

The 2005 provision was challenged in State v. Trossman and initially the Court of Appeals upheld the child abuse conviction based on evidence that the child lived with the defendant, her mother, in a house where chemicals and equipment used for methamphetamine production were found. However, in State v. Trossman, 2009 –NMSC- 034, 212 p.3d 350, the Supreme Court reversed the conviction holding that this kind of evidentiary presumption could lead a jury to believe that it was not required to find actual evidence of endangerment beyond a reasonable doubt. The Court also found that there was insufficient evidence to support Ms. Trossman’s conviction of child abuse despite clear evidence of chemicals and drug making equipment in the house and evidence to establish the child’s presence in the house. The Court warned that “[a]lthough a jury is certainly entitled to draw reasonable conclusions from the circumstantial evidence produced at trial...it must not be left to speculate in the absence of proof.”

The 2009 amendment, creating the presumption that mere presence of a child when methamphetamine is being used established abuse, was enacted while Trossman was still pending. Presumably, New Mexico courts will apply the Trossman analysis to that provision as well. Thus, the law in New Mexico remains unchanged: evidence of methamphetamine use or manufacture may be considered by a jury in determining whether a child was actually placed in danger, but a conviction for child abuse requires actual proof of endangerment. This case is yet another example of how a public health approach to address drug use by pregnant women and parents has been consistently favored by the New Mexico legislature and courts over more punitive measures.

Current Urine Drug Testing Practices

“The doctors found out [about my use] on a drug screen, looked at one another and said ‘I told you so.’ I lied and told them ‘I took Sudafed.’ I was afraid they would take my daughter when she came out because of my meth use.” – Focus Group Participant, Metropolitan Detention Center

In 1993, the U.S. Department of Health and Human Services Substance Abuse Mental Health Services Administration (SAMHSA) convened an expert consensus panel to improve drug treatment for pregnant women. The panel addressed the issue of drug testing and specifically addressed the question of whether or not pregnant women and new mothers should routinely be tested for evidence of drug use.[lxxi] While the panel recognized that certain criteria were used by some health care institutions to test some women, the panel did not recommend adopting any of these criteria as a basis for testing pregnant women nor did it endorse the routine drug testing of pregnant women.

Nevertheless, many health care institutions have adopted criteria for testing pregnant women and newborns, including hospitals in Bernalillo County, New Mexico. According to these official hospital guidelines, maternal and neonatal drugs screens should only be ordered for specific indications, but should be sent on all patients with these indications to limit prejudicial screening. The maternal indications for drug testing include a history of substance abuse in the current pregnancy, preterm labor (less than 35 weeks), placental abruption (in the absence of alternate cause such as hypertension), or behavior consistent with acute intoxication. The policy clearly states that women must consent to drug testing and have the legal right to decline. The specific neonatal indications for sending a urine or meconium drug screen include maternal history of substance abuse in this pregnancy, preterm labor (not medically-indicated preterm delivery), placental abruption (unexplained), symptoms consistent with neonatal abstinence syndrome, or unexplained neonatal depression, seizures or jitteriness. The policy further elaborates that when a neonatal indication for drug testing is present, the mother of the infant should be informed of the reasons for testing and the results, but that parents do not have the legal right to decline a medically-indicated infant drug screen.[lxxii]

In addition to creating policies around drug testing, the Bernalillo County Hospital Guidelines also advocate for open communication with the pregnant woman about substance use and results of any drug tests. They also advocate ending the practice of referring all positive drug tests to the Children, Youth, and Families Department (CYFD). They endorse a policy of considering a positive infant drug screen as important medical information, but only one piece of information about the family milieu. The policy supports a full social work assessment of the family’s ability to care for the mother and baby and referral to resources as needed. Based on the social work assessment, a referral may or may not be placed to CYFD.73

As a matter of both law and ethics, principles of informed consent require that patients be made aware of all possible consequences of the medical procedure or test, including potential legal consequences of a report to child welfare or criminal justice authorities. Failing to obtain informed consent for testing done to gather incriminating evidence may leave hospital staff individually liable in federal civil rights actions.[lxxiii]

“They drug tested both of us, [me and my daughter] including her meconium, even though I tested negative.” “I never got prenatal care for my three children after that because of my experiences with my daughter.” – Focus Group Participant at Metropolitan Detention Center

Research does indicate that implementing testing protocols can lead to racially biased testing and reporting to state authorities. Evidence-based, peer-reviewed research indicates that selective testing and reporting of pregnant women to child welfare or police results in race- and class-biased testing and reporting. For example, a study published in the New England Journal of Medicine found that while rates of illegal drug use were similar for white women and African-American women, African American women were 10 times more likely to be reported to state authorities.[lxxiv] Similar results were found in Illinois.[lxxv] A recent investigative report in California also found that testing policies were implemented in ways that resulted in significant racial disparities.[lxxvi]

While universal screening and/or testing as opposed to selective, criteria based testing would be necessary to ensure some measure of fairness, it would be extremely expensive. A 1994 cost estimate in New York concluded that it would cost New York state 26.1 million dollars a year to perform Urine Drug Screens alone and an estimated 95.9 million to include alcohol and confirmatory drug tests.[lxxvii]

The SAMHSA expert panel advised health care institutions that do conduct routine alcohol and drug testing, to do so in accordance with the standards used for urine drug testing in the workplace as proscribed by the federal workplace drug testing guidelines.[lxxviii] Notably, the federal workplace drug testing guidelines establish certain cut-off levels to establish a true positive result, require a confirmatory test, and require that the person tested have the opportunity to challenge results and have a re-test. On the other hand, pregnant women, new mothers, and newborns are generally not afforded these safeguards. As a result, there is a high incidence of false (simply wrong) or innocent (positive for a prescribed drug or over the counter medication) positives among pregnant women and newborns.[lxxix] According to the little research available, laws requiring reporting of positive drug tests on pregnant women or newborns have not led to a significant increase in the provision of meaningful drug treatment or other health services to pregnant women, mothers or children.[lxxx]

“If you go through the ER at any hospital they’ll automatically drug test you and not tell you.” – Focus Group Participant at Metropolitan Detention Center

The American Hospitals Association (AHA) recommendations concerning hospital pre-employment and employee drug testing programs also include protections that should, at a minimum, be afforded to pregnant women and all hospital patients. The AHA recommends that drug testing programs use National Institute of Drug Abuse (NIDA)-certified labs and follow NIDA’s collection and chain of custody procedures. According to the AHA, all positive lab results should be sent to a medical review officer who should give the employee the chance to provide another basis for the positive result.[lxxxi] It is likely that hospitals testing and reporting pregnant women have policies regarding workplace drug testing for job applicants and employees. Pregnant women deserve no fewer rights or guarantees of accuracy of testing and opportunities to explain than hospital employees and applicants for jobs in those hospitals.

Other than the best practices of ensuring informed consent and ensuring adequate standards for the quality of drug tests performed in the medical setting, there are no best practice guidelines for when to perform toxicology screens in pregnancy or on newborns. Though several states have attempted to create best practice testing policies, given the current lack of scientific evidence supporting selective screening policies, the effects of these states’ policies cannot be predicted. Also, unless testing pregnant women or newborns can be shown to increase access to treatment and family support services widespread implementation of testing protocols may only serve to increase punitive approaches.

Summary of Current Substance Abuse Treatment Services in New Mexico

Oversight and Coordination of Substance Abuse Treatment Services

Since July of 2009, Optum Health New Mexico has served as the Statewide Entity (SE) for the New Mexico Interagency Behavioral Health Collaborative. Optum Health is responsible for maintaining the New Mexico behavioral health provider network and managing the service delivery system including the Access to Recovery (ATR) grant (see full description page 35). Optum Health and the Interagency Behavioral Health Collaborative share a mission of improving the psychological, emotional, and spiritual health of New Mexican individuals, families and communities. The Behavioral Health Services Department (BHSD) of the NM Human Services Division (HSD) is responsible for the oversight of and administration of ATR and other behavioral health services in the state.

The Behavioral Health Collaborative was created by the New Mexico State Legislature and Governor Richardson in 2004. The legislation allowed several state agencies and resources involved in behavioral health prevention, treatment and recovery to work as one to improve mental health and substance abuse services in New Mexico. This group is cabinet-level and represents 15 separate state agencies and the Governor’s office. The vision of the Collaborative is “to be a single statewide behavioral health delivery system in which funds are managed effectively and efficiently and to create an environment in which the support of recovery and development of resiliency is expected, mental health is promoted, the adverse affects of substance abuse and mental illness are prevented or reduced, and behavioral health consumers are assisted in participating fully in the lives of their communities.”[lxxxii]

Included in the responsibilities of the Collaborative are inventorying all expenditures for mental health and substance abuse services, creating a single behavioral health care and services delivery system, paying special attention to regional, cultural, rural, frontier, urban and border issues and seeking suggestions of Native Americans. The Collaborative contracts with the single statewide entity (currently Optum Health) to monitor service capacity and utilization, make decisions regarding funds, staff, grant writing and grant administration, perform comprehensive planning, and oversee systems of care.

The Behavioral Health Services Division (BHSD) is a branch of the New Mexico Human Services Division (HSD) though previously was housed under the Department of Health (DOH). BHSD serves as the statewide authority on adult mental health and substance abuse and as such assists in addressing need, monitoring service utilization and quality and planning for the future.[lxxxiii] BHSD is currently responsible for administering the SAMHSA Substance Abuse Prevention and Treatment (SAPT) Block Grant and the Community Mental Health Services (CMHS) Block Grant. Additionally, BHSD is charged with mapping the prevalence, incidence and impact of mental illness and substance abuse across New Mexico, facilitating comprehensive service planning based on indentified need, monitoring progress in systems capacity, identifying best practices and developing fidelity and quality standards. Additionally BHSD is responsible for facilitating statewide behavioral health service and capacity, integrating comprehensive substance abuse and mental health services, functioning as the state Opioid Treatment Authority for New Mexico, and planning services for the homeless through the Projects in Assistance to Transition from Homelessness (PATH) Grant.

Summary of SAPT Block Grant

The Substance Abuse Prevention and Treatment (SAPT) Block Grants for states were established in 1993 by the federal government for the purposes of funding prevention and treatment of substance abuse which includes alcohol and other drugs. The Block Grants are administered by the Substance Abuse and Mental Health Services Administration (SAMHSA), a division of Health and Human Services.[lxxxiv] The Block Grants have specific provisions that require states to spend no less than 35% of all funds for treatment and prevention activities regarding alcohol use, 35% for treatment and prevention activities involving other drugs, 20% for primary prevention activities, and at least 5% of total funds shall be dedicated to increasing the availability of treatment services for pregnant women and women with dependent children (also known as women’s “set-aside” funds).

The SAPT Block Grant has certain requirements for programs receiving the 5% women’s set-aside funds. These requirements include that programs must treat families as a unit and admit both women and their dependent children into treatment where appropriate. Additionally, programs must provide the following services for women undergoing substance abuse treatment: primary medical and prenatal care, primary pediatric care for dependent children, child care, gender specific substance abuse treatment, therapeutic interventions for dependent children and sufficient case management services.

Additionally, the SAPT Block Grants treat pregnant women as a priority population and must be given preference in admissions to treatment facilities receiving Block Grant funds. If the treatment facility has insufficient capacity to provide treatment services to any pregnant woman who seeks services, those women must be referred to a treatment facility that has adequate capacity within 48 hours. The Block Grant mandates that the state have a capacity tracking system that tracks all open treatment slots available to pregnant women in the state. If a pregnant woman cannot be admitted to a treatment program within 48 hours of the initial referral, then she must be provided with interim services. Required interim services include at a minimum: a referral to prenatal care; education about the effects of alcohol and drugs on the fetus; education about risks of HIV, tuberculosis and risks of needle-sharing; education about methods to reduce transmission of HIV and tuberculosis to partners and the fetus; and referral to HIV and tuberculosis testing and treatment if necessary. Additionally, interim services must include the provision of supportive services that foster on-going engagement of women waiting to access services, including case management referrals, child care, housing assistance, legal aid, financial assistance and transportation as needed.

Scope of Substance Abuse Treatment Services

“My midwife in Gallup, when she found out I was using she didn’t really know what to tell me. She told me to look in the yellow book for treatment centers.” – Focus Group Participant at Milagro Residential Treatment Program

In 2009, 145 substance abuse treatment facilities in New Mexico responded to the SAMHSA National Survey of Substance Abuse Treatment Services (N-SSATS) which is conducted annually nationwide.[lxxxv] Of these 145 facilities in New Mexico, 15,315 clients were actively enrolled in treatment as of March 31, 2009. SAMHSA notes that the New Mexico survey response rate was 94.6%. Of these facilities, 69% were private non-profit, 15% were private for-profit, only 1 was run by local governments, 2.8% by state government, 2.8% by the federal government (includes 2 Veteran’s Affairs facilities, and 2 Indian Health Service facilities). An additional 10% were operated by tribal governments. Of these facilities, 34% provided exclusively substance abuse treatment services, 3% offered mental health services only, and 59% offered both. The majority, 93%, served clients with both alcohol and drug abuse problems. One hundred and twenty three facilities or 85% offered outpatient treatment services, an additional 34 or 23% offered residential services, and 5 or 3.4% offered inpatient hospital detoxification and rehabilitation services. A total of 9 facilities offered opioid treatment programs (OTPs) of which 97% of the 2,413 clients served were receiving methadone and 3% received buprenorphine.

In terms of how these facilities are funded, 39% accept Medicare, 64.8% accept Medicaid or other state-financed health insurance, 38% accept Access to Recovery (ATR) vouchers (see below), 8.3% provide services free of charge and accept no payment, 57% offer a sliding scale fee, and 73% offer treatment at no charge for clients who cannot pay. The majority, 84.8% receive funding from federal, state, county or local governments to fund their treatment programs.

Among the services reportedly offered by these treatment facilities, nearly all included screening and treatment of substance abuse and co-occurring mental health disorders. Ancillary services, which are known to be particularly important for women seeking treatment, were reported as follows:

• 96% offer transitional and aftercare services

• 79% offer case management services

• 81% offer social skills development

• 4% offer child care for clients’ children

• 57% address issues of domestic violence

• 42% offer employment counseling

• 59% offer assistance with securing housing

• 39% provide transportation assistance to treatment.

Of all the residential facilities, 7 offer residential beds for clients’ children (20%). Of the 31 residential facilities reporting on their capacity, 90% of the 622 beds were filled at the time of the survey. For the hospital inpatient facilities, 80% of the 56 beds were filled at the time of the survey. In terms of special programming for pregnant and postpartum women, 17 facilities or 11% stated that they offer these services though it is not clear which of these accept pregnant women versus only postpartum women. 55 facilities or 38% offer special programming for women. Below is a map indicating the locations of the treatment facilities in New Mexico. Of note, there are multiple counties with one or less treatment sites and the majority of facilities are located in central New Mexico near Albuquerque and Santa Fe, the two largest population centers.

To evaluate the current types of substance abuse problems being treated in New Mexico the SAMHSA Treatment Episode Data (TEDS) provides information about the demographics of individuals admitted into substance abuse treatment centers in the state each year (does not count people with ongoing treatment).[lxxxvi] The 2009 TEDS data shows that a total of 9,166 individuals were admitted into treatment, with 66% male and 33% female. The majority of admissions were in 21-30 year olds (32%), only 5.5% were under 21, 25% were 31-40, and 36% were over 40. The racial breakdown of individuals admitted for treatment was 65% white, 12.5% native American, 2% African American, ................
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