The effect of legal and hospital policies on physician response to prenatal substance exposure

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Maternal and Child Health Journal (MACI) pp945-maci-470716 July 30, 2003 14:57 Style file version June 22, 2002

Maternal and Child Health Journal, Vol. 7, No. 3, September 2003 ( C© 2003)

The Effect of Legal and Hospital Policies on PhysicianResponse to Prenatal Substance Exposure

David Mendez, PhD,1,3 Peter D. Jacobson, JD, MPH,1

Kristen M. Hassmiller, MHSA,1 and Gail L. Zellman, PhD2

Objectives: To determine the influence of a state’s legal environment and a hospital’s Prena-tal Substance Exposure (PSE) protocol on physicians’ propensity to respond when prenatalsubstance exposure is suspected. Methods: Using a sample of 1367 physicians from every stateand the District of Columbia, we formulate a set of linear models to determine the impact ofthe legal environment and hospital protocol on physicians’ response to PSE, the agreementbetween physicians’ perceptions and actual state legal environments, and physicians’ motiva-tion to act when PSE is suspected. Results: Both protocol and legal environment showed tobe significantly correlated with physicians’ propensity to take action when PSE is suspected(p < 0.05). Our analysis shows that physicians prefer a public health (patient-centered) ap-proach to more punitive measures. Conclusions: Our results suggest a policy strategy focusedfirst on enacting laws that would encourage a patient-centered approach, by developing andusing hospital protocols to implement state policy, and then on educating physicians about theactual legal environment.

KEY WORDS: prenatal substance exposure; hospital protocol; legal environment; linear regressionmodels.

INTRODUCTION

Substance exposure among pregnant women andits effects on newborns continue to generate consid-erable public policy concern. Most of this concern hasfocused on understanding the magnitude and conse-quences of such exposure (1–4), but some state leg-islatures have actively intervened to define prenatalsubstance exposure (PSE) as child abuse. More con-troversially, the Supreme Court of South Carolina re-cently upheld a criminal conviction for PSE (5). Theselaws and subsequent interventions raise a number ofethical, legal, and public policy issues: Should PSE betreated as a public health (patient-focused) issue oras a criminal matter? Should PSE be considered child

1Department of Health Management and Policy, School of PublicHealth, The University of Michigan, Ann Arbor, Michigan.

2RAND, Santa Monica, California.3Correspondnce should be addressed to David Mendez, PhD,School of Public Health, University of Michigan, 109 Observatory,Ann Arbor, Michigan 48109–2029; e-mail: [email protected].

abuse? What role should physicians and the healthcare system play in responding to PSE? What are theappropriate PSE detection and referral policies, andshould institutions be mandated to develop them?

Because most pregnant women come into con-tact with the health care system during the course oftheir pregnancy, physicians potentially could play animportant role in detecting and responding to pre-natal substance exposure. In one of the few avail-able studies of physician response to PSE, Zellmanet al. (6) conducted exploratory research in the LosAngeles area to examine physician response to PSEand the factors that constrain response. Study datarevealed many disincentives to detecting substanceexposure, including lack of institutional policies andprocedures, a sense that other issues are far more im-portant, and concerns about losing patients if PSEdetection is pursued aggressively. Further, issues suchas maternal autonomy, maternal–fetal conflict, themedical versus criminal view of addiction, autonomyand confidentiality of the doctor–patient relationship

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188 Mendez, Jacobson, Hassmiller, and Zellman

make this subject quite difficult for physicians. Yetthe decisions that physicians make—to ignore theirsuspicions or to respond to them through a series ofactions that may include screening tests, referrals, andchild abuse reports—are critical to the perceptions ofthe prevalence of PSE and to the individual womenand infants whose lives may be affected by medical in-tervention or its absence. A key policy question con-cerns whether such disincentives or other individualproclivities or policy options influence physicians’ de-cisions about responding to PSE.

The general purpose of the current study is to ex-amine whether two important policy levers—a statelegal environment that compels a physician to re-port suspicions of PSE and the existence of a hospitalprotocol for identifying PSE—increase the likelihoodthat physicians will act on their suspicions. We also dis-cuss the most effective policy approaches for involv-ing the health care system in preventing or mitigatingthe adverse consequences of maternal substance usebased on our findings.

Conceptual Framework

A key aspect of the prenatal substance expo-sure policy context is the state’s legal environment.The policy and legislative environment in the UnitedStates regarding PSE continues to evolve, as indicatedby the recent criminal conviction for PSE in SouthCarolina noted above. Many state legislatures haveattempted to deal with PSE. In general, the legis-lation can be divided into three broad approaches:a patient-centered approach (focusing on education,treatment, and counseling); civil sanctions (declar-ing maternal substance use to be child abuse); andcriminal sanctions. According to a recent survey, thepatient-centered approach is yielding to more puni-tive state intervention (7), although only a few crimi-nal prosecutions have actually been brought.

Another potentially important aspect of the pol-icy context involves institutional guidelines for physi-cian behavior around PSE, specifically an institutionalprotocol, which specifies guidelines for the detectionand management of suspected PSE. While the exis-tence of a protocol may be important in influencingphysician response, the way in which a protocol is im-plemented as well as its content and auspices may alsobear importantly on physician response (8).

The following figure depicts a proposed hypo-thetical model by which physicians’ actions to respondto prenatal substance exposure are influenced by thestate legal environment and a hospital PSE protocol,

Fig. 1. Conceptual framework.

where OLE =Objective Legal Environment, PLE =Perceived Legal Environment, HP=Hospital Proto-col, Motivations= Factors that may affect physicians’response to PSE, and Actions = Actions to respondto PSE.

This framework proposes that a physician’s like-lihood of acting on a suspicion of prenatal substanceabuse is influenced by the existence of a hospital pro-tocol and by the legal environment in the state. Con-sistent with prior research (9), it is not assumed thatphysicians have an accurate notion of the existenceor content of the key aspects of the PSE legal envi-ronment, and so their actions are more likely to beinfluenced by what physicians perceive these factorsto be. In other words, we hypothesize that physiciansmay indeed by influenced by what they believe theyare expected to do (the protocol and perceived legalenvironment), but we also postulate that in the case oflegal environment, their perceptions may not matchreality. Regarding hospital protocol, we assume thatphysicians are aware of the protocol that exists in thehospital where they practice. As such, we make nodistinction between actual (objective) and perceivedhospital protocol. On the conceptual framework, wealso recognize a set of professional motivations thatmay influence physicians’ response to PSE.

Specific Aims of the Study

The goals of the study are to investigate some ofthe relationships suggested by the conceptual frame-work described above, to understand what motivatesphysicians to act when they do suspect PSE, and thepolicy implications of each. Regarding the concep-tual framework, we seek 1) to investigate the impactof a hospital protocol and perceived legal environ-ment on physicians’ response to PSE; 2) to under-stand the agreement between actual and perceived

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Physician Response to PSE 189

legal environments; 3) to understand the link betweenactual legal environment and the existence of a hos-pital protocol; and 4) to assess physician motivationson responses to PSE.

METHODS

Data

The data presented in this paper derive from alarger, national study on prenatal substance expo-sure, which involves four components: a mail surveyof practicing obstetricians and pediatricians who seenewborns; a survey of hospital staff working in thehospitals in which surveyed physicians practice; ananalysis of state legal environments in all 50 states andthe District of Columbia; and the coding and anal-ysis of prenatal substance exposure protocols fromsurveyed hospitals (9). For this paper, the analysis isdriven by data from the physician survey and the anal-ysis of state legal environments.

Physician Survey

We drew a sample of 3200 physicians, from ev-ery state and the District of Columbia, who identi-fied their primary specialty as obstetrics or pediatricsin the American Medical Association (AMA) Mas-terfile of Physicians, which identifies physicians, in-cluding both AMA and non-AMA members, by pri-mary practice specialty. Physicians are captured in theAMA files as they receive licenses, maintain mem-bership in specialty societies, and respond to AMAquestionnaires. Physicians born prior to 1924 were ex-cluded a priori. To improve the representativeness ofthe sample, we stratified within medical specialty bystate.

Two slightly different versions of a 25-item PSEsurvey were mailed in summer 1995—one for obste-tricians and one for pediatricians. Each survey packetcontained a $10 incentive payment. Sixty-three per-cent of sampled physicians returned the survey. Aboutone-third of these checked a box indicating that theydid not currently deliver babies (obstetricians) ornever examined newborns under 24 hours old (pe-diatricians), and returned a blank form as instructed.Thus, our sample is limited to practicing obstetriciansand to pediatricians who see newborns on at leastsome occasions. Excluding the ineligible physicians,as described above, we obtained a sample of 1367physicians–620 obstetricians and 747 pediatricians.

Analysis of State (Objective) Legal Environments

To characterize the states’ legal environments,our research team analyzed state statutes, relevant liti-gation, and relevant state Attorney General opinionsto determine whether and how each state has dealtwith PSE (analysis includes the District of Columbia).We included in the state legal environment whetherthe legislature has made any response to PSE, andif so, the nature of that response. In each state’sstatutes, we looked for specific reference to prenatalsubstance exposure in definitions of child abuse; re-porting requirements for physicians/providers; otherphysician/provider responsibilities (such as counsel-ing, education, or referral); mandatory or prioritydrug treatment for pregnant women; and other stateactivities (i.e., prevalence surveys). We then exam-ined relevant litigation, reviewing cases interpretingthe state’s definition of child abuse and cases consider-ing PSE in custody decisions. In addition, we reviewedrelevant state Attorney General opinions and legisla-tive analyses from the U.S. Department of Health andHuman Services’ (HHS) Inspector General and fromthe National Association for Perinatal Addiction Re-search and Education.

On the basis of our view, we determined thatstates’ legal environments could be categorized alongseveral dimensions, including the presence or absenceof legislation or case law on PSE, whether PSE fallsunder child abuse mandates, whether states requiretoxicology screens, and whether states require pri-ority access to drug treatment facilities for pregnantwomen. Finally, states differ in whether they pursue apatient-centered model (focusing on treatment, coun-seling, and prevalence studies) or a punitive approach(focusing on criminal sanctions) and what role physi-cians are expected to play in maternal substance use.For the purposes of this analysis, we characterized thestates according to the existence (n = 31) or absence(n = 20) of legislation on PSE.

Analysis

The Impact of Hospital Protocol and Perceived LegalEnvironment on Physician Action

Independent Variables. To address the impact ofa hospital protocol on physician action, the existenceof a protocol was obtained from the following ques-tion in the physician survey: “Is there a protocolfor identification and/or management of substance

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use/exposure in pregnant women/neonates in the hos-pital where most patients in your practice were born?”If the physician indicated that there was a protocol foreither pregnant women only, neonates only, or both,they were coded ‘Yes.” Otherwise, they were coded“No” if not, or “DK” if they responded that they didnot know. According to the physicians’ answers, 52%of the sample responses to the existence of a hospitalprotocol were coded as “Yes,” while 27% and 21%were coded as “No” and “DK,” respectively.

Perceived legal environment was similarly de-rived from the physician survey. Physicians wereasked a series of six questions, of the form: “Arephysicians in your state legally obligated to make achild maltreatment report when their suspicions ofprenatal substance exposure are based on [each ofsix categories of evidence]?” The categories of evi-dence were: maternal signs and symptoms; neonatesigns and symptoms; mother’s drug use or drug usehistory; other risk factors, e.g., lack of prenatal care;mother toxicology results; and infant toxicology re-sults. All sub-questions were collapsed into a singleitem as follows: “Yes” (there is a legal requirement),if any of the sub-questions corresponding to the orig-inal design was answered as “Yes.” It was coded as“No” (there is no legal requirement) if at least one ofthe responses to the six sub-questions is a “No,” andnone of the remaining sub-questions received an af-firmative answer. Finally, the collapsed question wascoded as “DK” (don’t know if a legal environmentexists) if all the original sub-questions were answeredas “don’t know” exclusively. Based on physicians’ an-swers, 47% of the sample responses to the existence ofa legal environment were coded as “Yes,” while 19%and 34% were coded as “No” and “DK” respectively.

Dependent Variables. To assess physicians’ pro-clivity to act, physicians were asked on the physi-cian sample: “If you suspected that a pregnant pa-tient was using substances, how likely would you beto [take each of the ten stated actions]?” Loosely, wedivided the 10 specific actions into two major groups:those by which the physician works with the patientthrough counseling and delivery of information to ad-dress the substance abuse problem (we term them“patient-centered” actions); and those by which thephysician acts in a more coercive manner to stopthe patient’s behavior (we name those “punitive” ac-tions). The specific actions that we included in the“patient-centered” group are: ignore your suspicionsout of concern that the patient might discontinue care;provide the patient with information about prenatalsubstance use; recommend HIV testing; discuss treat-

ment program referrals with the patient; and establisha nonuse contract with the patient. The actions that wecharacterized as “punitive” include: get a substanceuse history; discuss your suspicions with the neonate’sdoctor; run a tox screen; report the patient to a site-based resource, e.g. hospital, social worker; and makea child abuse report.

Physicians were asked to rate each possible re-sponse along a 4-point scale ranging from very likely(response= 1) to very unlikely (response= 4). Thesecodes were then reversed for this analysis so thathigher numbers reflect greater likelihood of takingaction.

Estimation Models. The proposed linkage amongthe existence of protocol, the perceived legal envi-ronment, and physicians’ action was investigated vialinear regression models. The general form of the re-gression models is shown below:

Yk = β0 +Hospital Protocol︷︸︸︷

β1HPy + β2HPdk

+Legal Environment︷︸︸︷

β3PLEy + β4PLEdk+Interaction︷︸︸︷

β5(HPy)(PLEy)

+Terms︷︸︸︷

β6(HPy)(PLEdk)+ β7(HPdk)(PLEy)

+︷︸︸︷β8(HPdk)(PLEdk) [k= 1, . . . , 10] (1)

where, HPy is an indicator variable that is coded 1 if ahospital protocol exists, and 0 otherwise. In the samemanner, HPdk is an indicator variable set equal to 1if a physician answered that he or she did not knowwhether a protocol to address prenatal substance ex-posure existed in the hospital where he/she works.Similarly, PLEy is an indicator equal to 1 if there existsa perceived legal environment which compels physi-cians to act when PSE is suspected, as defined above.PLEdk is an indicator variable equal to 1 if the physi-cian does not know whether a legal environment ex-ists. The model also accounts for the possible inter-action between hospital protocol and perceived legalenvironment. For example, a physician reporting ahospital protocol and no perceived legal environmentwould have HPy = 1, HPdk = 0, PLEy = 0, PLEdk =0, and all interactions set equal to zero.

The case of no hospital protocol and no perceivedlegal environment is used as reference; as such, themodel parameters correspond to the differential ef-fect of hospital protocol and law (and their interac-tion) with respect to the situation that consists of theabsence of both. A linear regression was run for each

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of the 10 dependent variables corresponding to eachpossible physician actions detailed above.

Agreement Between Objective Legal Environmentand Perceived Legal Environment

Variables. OLE is defined based on the analysisof state legal environments described above. The pos-sible values for OLE are 1 if the state has a legal envi-ronment, either mandatory reporting or some otherpatient-centered response (n = 31) and 0 otherwise(n = 20). PLE is defined above.

Analysis. The correlation between the variablesOLE and PLE is investigated by calculating samplePearson correlation coefficients.

Link Between Objective Legal Environment andHospital Protocol

Variables. The OLE variable is the same as thatused in the correlation analysis above. Existence of aprotocol is represented by an indicator variable that iscoded 1 if the protocol exists, and 0 otherwise. As indi-cated previously, 52% of the physicians in the samplereported the existence of a hospital protocol.

Analysis. The correlation between OLE and P isinvestigated by calculating sample Pearson correla-tion coefficients.

Physician Motivation

Variables. Variables used to address this aim in-clude physicians’ propensity to take the 10 specifiedactions as described above. Additionally, the physi-cian survey included the question: “How importantwere the following (seven) factors in your decision(s)to act on your suspicions?” We loosely divided themotivation factors into two groups: those factors thatare “patient-oriented” concerns, and those that are“externally-imposed.” In the former group, we in-cluded: “Protect fetus/prevent fetal problems”; “Helppatient see seriousness of problem”; “Stop substanceuse”; and “Get help for patient.” In the “externally-imposed” motives category we included: “Legal re-quirement to report”; “Reporting policy or protocolwhere I work”; and “Fear of lawsuit if not reported.”Responses were along a 4-point scale ranging fromvery important (response = 1) to not at all impor-tant (response = 4). For this study, these values werereversed such that higher responses indicate greaterimportance.

Analysis. Sample Pearson correlation coeffi-cients are calculated between each of the 10 physi-cian action variables and each of the 7 motivationvariables.

RESULTS

The Impact of Hospital Protocol and PerceivedLegal Environment on Physician Action

Our results show that the policy environment—expressed through a hospital protocol, perceived le-gal environment, or both—does influence physicianpropensity to act on suspected prenatal substance ex-posure. They also indicate that physicians are inclinedto act in response to suspected PSE in some manner,regardless of their policy environment.

On Table I, under the heading “UnadjustedPropensity to Act,” we present the raw means of thevariables that record physicians’ propensity to takeaction when PSE is suspected. The unadjusted meansrange from 1.19 (Ignore suspicions) to 3.85 (Run a toxscreen), and most of them fall between 3 and 4, indi-cating that for most of the categories described under“physician actions,” the sample respondents wherebetween “somewhat likely” and “very likely” to re-act when suspecting PSE. It is interesting to note thatthe unadjusted mean for “Make a child abuse report”is 2.29, implying that in general, the physicians whoresponded to the survey are between “somewhat un-likely” and “somewhat likely” to employ this punitivemeasure.

We could not make a distinction between thosephysicians who answered that there was no legal re-quirement to report suspected PSE and that there wasno hospital protocol, and those who said they did notknow whether both existed or not. None of the co-efficients corresponding to a “don’t know” about HPor PLE in the full regression model (including inter-action terms that contained “don’t know” responses)were statistically significant at p ≤ 0.05.

To assess the impact of the two policy environ-ments (PLE and/or HP), the unadjusted propensityto act scores were modified to create adjusted scoresbased on the regression coefficients that were signif-icant at p ≤ 0.05 indicating predicted propensity toact when PSE is suspected. The physicians’ reactionto suspected PSE, adjusted for the existence of hos-pital protocol and/or a perceived legal environment,is recorded in columns 3, 4, 5, and 6 in Table I, withcolumn 3 indicating propensity to act among those

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Table I. Estimated Physician Propensity to Respond to PSE Under Different Policy Environments

Propensity to act adjusted bypolicy environmentb

UnadjustedDecision variable propensity to acta None Protocol PLE Both

Ignore suspicions 1.19 1.19 1.19 1.19 1.19Inform patient about PSE 3.45 3.23 3.52 3.23 3.52Recommend HIV testing 3.47 3.34 3.58 3.34 3.58Discuss treatment with patient 3.62 3.32 3.65 3.64 3.65Establish nonuse contract with patient 2.38 2.00 2.42 2.00 2.42Get a substance use history 3.81 3.71 3.84 3.71 3.84Discuss with neonate’s mother’s doctor 3.61 3.61 3.61 3.61 3.61Run a tox screen 3.85 3.72 3.84 3.82 3.94Report patient to site-based resource 3.49 3.22 3.43 3.42 3.63Make a child abuse report 2.29 2.11 1.72 2.66 2.66aAll figures range from 1 (low) to 4 (high).bFor the adjusted figures, any change from none is significant at the 5% level.

physicians who do not believe that a report is re-quired or that a hospital protocol exists. For example,the average propensity of running a tox screen in theabsence of both protocol and PLE is 3.72. When aprotocol exists, this propensity increases to 3.84 (im-plying a statistically significant coefficient on protocolin this regression). Further, in the tox screen case, nostatistically significant interaction between protocoland PLE was found, therefore the average propen-sity when both a protocol and PLE exist reflects thepurely additive effects of protocol and PLE alone. Inthe case of physicians’ propensity to ignore suspicions,the average propensity to act is the same in each case,indicating that none of the coefficients representingpolicy interventions were statistically significant at the5% level (full data results are available from the au-thors upon request).

Derived from the data presented in Table I,Table II indicates the significant percentage changein physicians’ propensity to act on PSE suspicions inthe specified policy environments compared to theresponse of physicians who perceived that neither aprotocol nor a legal reporting mandate exists.

Table II. Percentage Increase in Physicians’ Propensity to ActWhen PSE is Suspected as a Function of Protocol and PLE

Decision variable Protocol PLE Both

Ignore suspicions 0 0 0Inform patient about PSE 9.0 0 9.0Recommend HIV testing 7.2 0 7.2Discuss treatment with patient 9.9 9.6 9.9Establish nonuse contract with patient 21.0 0 21.0Get a substance use history 3.5 0 3.5Discuss with neonate’s doctor 0 0 0Run a tox screen 3.2 2.7 5.9Report patient to site-based resource 6.5 6.2 12.7Make a child abuse report −18.5 26.1 26.1

Most notably, physicians who report a hospitalprotocol but no perceived legal environment are 9.9%more likely to discuss treatment with the patient (apatient-centered approach), 21.0% more likely to es-tablish a nonuse contract with the patient (anotherpatient-centered approach), and 18.5% less likely tomake a child abuse report (a punitive approach) thanphysicians who report neither a protocol nor a PLE.

Physicians reporting a legal environment (but noprotocol) are 9.6% more likely to discuss treatmentwith the patient and 26.1% more likely to make achild abuse report than physicians in the comparisongroup.

Note that regarding the action of making a childabuse report, an important interaction effect existsbetween the two policy factors. As seen in Table I,when physicians perceive the existence of both a pro-tocol and a reporting mandate for PSE, the effect ofthe legal environment overwhelms the effect of a pro-tocol, and leads to an increased likelihood of makinga child abuse report that is equal in magnitude to theeffect of a perceived child abuse-reporting mandatealone.

Agreement Between Objective Legal Environmentand Perceived Legal Environment

We found a significant, but low correlation be-tween OLE and PLE, which suggests that physiciansdo not have accurate knowledge of the legal environ-ment in their respective states. The estimated Pearsoncorrelation coefficient for variables PLEy and OLE is0.194, significant at the 5% level.

We also assessed whether physicians’ propensityto act is related to their OLE (Mandatory Reporting,

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Some State Action, and No State Action) throughsimple regression analysis. Our results indicate thatphysicians did not respond differentially based on theOLE (results not shown).

Relationship Between Objective Legal Environmentand Hospital Protocol

There is a significant link between OLE and theexistence of a hospital protocol, but it appears to berather weak. The estimated Pearson correlation coef-ficient for variables HPy and OLE is 0.136, significantat the 5% level.

Physician Motivation

In the final part of the analysis, we attempted tounderstand physicians’ professional motivations foracting on their suspicions of PSE by analyzing thecorrelations between the 10 physician action variablesand the 7 motivation variables described in the Meth-ods section. The unadjusted sample mean scores forthe action variables are shown in Table I, column 2,and were already discussed. The sample mean scoresfor the motivation variables are shown in Table III.The scores range from 1.93 (fear of a lawsuit) to 3.83(get help for patient).

The correlations between action and motivationvariables are summarized in Table IV. The table showsthe value of all correlations that are significant at the5% level.

Although most of the correlations are quite low,relatively significant correlations are found betweenphysicians’ propensity to take patient-centered actionoverall and specific motivations of protecting the fe-tus, helping the patient realize the seriousness of theproblem, stopping substance abuse, and getting helpfor the patient—which are patient-oriented motiva-

Table III. Sample Means for Physicians’ Reported Motivations toAct When PSE is Suspected

Physicians’ motivation Sample meana

Protect fetus/prevent fetal problems 3.76Help patient see seriousness of problem 3.62Stop substance use 3.40Get help for patient 3.83Legal requirement to report 2.63Reporting policy or protocol at workplace 2.59Fear of lawsuit if not reported 1.93aAll figures range from 1 (low) to 4 (high).

tions. Punitive actions are also correlated with patient-oriented motivations, but such links are weaker thanthose in the former group.

Externally-imposed motivations (legal require-ment to report, reporting policy at workplace, andfear of lawsuit if not reported) are mostly correlatedwith punitive actions. Motivation by a protocol is mosthighly correlated with running a tox screen, report-ing the patient to a site-based resource, and making achild abuse report—actions that are punitive in thatthey involve the collection of potentially revealing ev-idence or the disclosure of the patient’s substance useto third parties. Motivation by PLE seems to be mosthighly correlated to the same three actions, and thecorrelation with making a child abuse report is quitestrong (0.39). Fear of lawsuit does correlate substan-tially with making a child abuse report (0.20).

DISCUSSION

Our results indicate that physicians are inclinedto act in response to suspected PSE in some man-ner, regardless of their policy environment, and theiractions are fairly evenly distributed between puni-tive and patient-centered approaches (Table I). Ourresults also show that both a perceived legal envi-ronment and a hospital protocol do influence physi-cians’ behavior regarding PSE. However, the exis-tence of a hospital protocol influences more broadlychanges in physicians’ response to PSE than a statelegal mandate. As can be seen in Table II, with twoexceptions (“Ignore suspicions” and “Discuss withneonate’s doctor”), all actions categories were im-pacted by the existence of a legal environment, whileonly four actions categories were influenced by theexistence of a legal environment. Further, a hospitalprotocol, except for the case of making a child abusereport, promotes larger changes in patient-centeredthan in punitive actions. In general, the existence ofa legal environment promotes changes on a subset ofpunitive actions, the exception being “Discuss treat-ment with patient,” as can be seen in Table II.

From Table IV, our results show that patient-centered actions are motivated by patient-orientedconcerns, while reporting behavior and other puni-tive actions are more strongly related to externally-imposed compliance concerns. It is interesting to notethat physicians seem unwilling to directly admit theinfluence of any external factors or compliance con-cerns in their decision making, including the existenceof a protocol (even though such factors have in factbeen shown to influence physician actions).

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Because of the rather weak link between theobjective and the perceived legal environment, ourfindings suggest that physicians are not knowledge-able about the legal mandate in their state regard-ing PSE, so they can only act on their percep-tions. The message that laws regarding PSE existapparently does not reliably reach physicians, al-though our findings indicate that physician behav-ior would be influenced by them if the message werereceived.

Although weak, we also found a significant linkbetween the existence of state laws and hospital pro-tocols regarding PSE, thus suggesting that having astate legal mandate concerning PSE might influencethe creation of hospital protocols.

Taken together, these results suggest a policystrategy focused first on enacting laws that would stim-ulate a patient-centered approach by developing andusing hospital protocols to implement state policy andthen on educating physicians about the actual legalenvironment around PSE. Although the latter maybe easier than the former, we emphasize the use ofprotocols to increase a physician’s propensity to de-tect substance use and take a patient-focused actionin response. Detection efforts are a first crucial stepin getting help for substance-using women and theirchildren.

Limitations of the Study

Although we believe that our findings and con-clusions are robust, some limitations on our studymust be mentioned. First, in order to carry out ouranalysis, in several occasions we had to lump diverseresponses and categories into a single variable, thuslosing resolution. For example, the existence of a statelegal environment was analyzed as a Yes/No variable,while, in reality, the states laws show different levels ofpunitive actions concerning PSE, which might affectdifferentially physicians’ response.

Additionally, the subject of prenatal substanceexposure is a very complex one. In this study wehave focused on specific policy levers and responseactions. As a result, our conceptual framework makesno attempt to encompass every factor pertainingto PSE.

Finally, the generalizability of our results is lim-ited by the accuracy of the study sample and therapidly changing policy environment in which PSEis immersed.

Policy Responses

State Legislation

Despite the recent tendency for states to shiftfrom a patient-focused approach to more punitive ap-proaches, our results suggest that physicians are morelikely to respond to PSE by counseling and warn-ing patients and by recommending drug treatment(i.e., a patient-focused approach) than by making achild abuse report or referral for criminal prosecu-tion, irrespective of the existence of a protocol orany legal reporting mandate. According to our sur-vey results, an important motivation for a patient-centered approach is that physicians believe that theseresponses are helpful to patients, as opposed to puni-tive measure, which physicians perceived as externallyimposed. This suggests that policymakers are likelyto engender greater physician support and coopera-tion with a patient-centered approach than with morepunitive policies.

Thus, state legislators should shift their strategyaway from a punitive approach toward a patient-centered approach. States can accomplish this in twoways. First, legislation can define PSE as evidence ofchild abuse with a mandate to state child welfare agen-cies that patient-centered interventions, including re-ferral for treatment, must be implemented before afinding of child maltreatment can be made. Second,the state should mandate the development and imple-mentation of hospital PSE protocols, which we discussfurther in the next section. The use of protocols is es-pecially important given our finding that the objectivelegal environment made no difference in a physician’slikely response to suspected PSE.

Protocol Development and Implementation

Our results indicate that the existence of a hos-pital protocol is associated with greater inclinationto act in response to suspected PSE. Unfortunately,only half (52%) of the physicians surveyed reportedthat there is a protocol covering some aspect of PSE,while 27% reported no protocol, and 21% did notknow. However, further analysis of these protocolsindicates that they are not as clear and informative asthey might be (8). Even more than changing the state’slegal environment, the development and implemen-tation of protocols presents an opportunity for thehealth care system to develop a coherent approach to

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PSE. There is an emerging consensus that protocolscan be effective mechanisms through which medicalpractice variation may be diminished, quality of careenhanced, and the cost of care contained (10). Proto-cols also help hospital staff overcome the many disin-centives that they may perceive to pursuing suspectedPSE. Protocols also present opportunities for hospitalmanagement, staff, and physicians to develop consen-sus on how to identify, treat, manage, and refer preg-nant or maternal substance users and their fetuses orinfants. In this sense, a PSE protocol sends dual mes-sages of concern for maternal and fetal health andpossibilities for help.

Several barriers to the effective use of protocolsmust be addressed by policymakers. To date, clinicalpractice guidelines have been difficult to implementfor a variety of reasons. Our results suggest that PSEprotocols may be even more difficult to implementbecause of beliefs that prenatal exposure rarely oc-curs; staff can be trusted to respond in an appropriateprofessional manner; the lack of available treatmentfacilities for referral; and concerns about patient–physician relationships (6).

To surmount these barriers, as recommendedabove, state legislatures should mandate the use ofPSE protocols in all hospitals with a labor and deliv-ery service. This can be achieved by mandating theappropriate state agency to develop a model proto-col to be enforced by county child welfare agencies,or by delegating the county agencies to work with lo-cal hospitals to design them. In either event, it willbe important to include staff training on the proto-cols and compliance monitoring of them as part of themandate.

Education

Given that only 52% of physicians report a pro-tocol and the absence of a strong correlation be-tween actual and perceived legal environment, weconclude that there is not a strong policy message tophysicians concerning response expectations for PSE.Since physicians are more likely to be aware of theexistence of a protocol than to accurately understandtheir state’s legal environment, better mechanisms forcommunicating the state’s legal environment wouldenhance the probability of a response.

Legislatures in every state have created a clearsignal to physicians about what is expected of themwhen child maltreatment is suspected through man-

dated child abuse reporting laws. These laws requirephysicians and other professionals likely to come intocontact with children to make reports to Child Pro-tective Services or to law enforcement. As yet, thereis no equivalent legislative policy message with re-gard to PSE, despite the fact that PSE shares manyattributes with child maltreatment. Since it appearsthat physicians act in response to the perceived legalenvironment, policymakers should deal with PSE byfirst educating physicians about the state’s objectivelegal environment.

ACKNOWLEDGMENTS

Support for this paper was provided by the grantno. 5R01DA07373 from the National Institute of DrugAbuse. We appreciate the excellent computing assis-tance from Angela Miu at RAND, and comments ona previous draft from RAND colleague Robert Bell,PhD.

We also would like to thank two anonymous ref-erees and the Journal’s Editor for very helpful com-ments and criticisms on previous drafts of this paper.

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https://www.researchgate.net/publication/13700108_National_Survey_of_the_States_Policies_and_Practices_Regarding_Drug-Using_Pregnant_Women?el=1_x_8&enrichId=rgreq-d6294a2e-63fb-444c-ab56-4e84b13ee4b7&enrichSource=Y292ZXJQYWdlOzkwODEzMTY7QVM6MTE0NTQzMjgzOTM3MjgwQDE0MDQzMjA2NTUzMTE=



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The effect of legal and hospital policies on physician response to prenatal substance exposure

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