This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Fri, Mar 3, 2023 at 6:07 PM by lpoole.
Representative Candice B. Pierucci proposes the following substitute bill:


1     
PREGNANT AND POSTPARTUM INMATE AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Candice B. Pierucci

5     
Senate Sponsor: Stephanie Pitcher

6     

7     LONG TITLE
8     General Description:
9          This bill amends requirements relating to pregnant and postpartum inmates.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     specifies that if the Department of Corrections creates a nursery, the nursery is
14     subject to rules established by the Department of Health and Human Services;
15          ▸     establishes the Correctional Postnatal and Early Childhood Advisory Board (board);
16          ▸     provides that the Department of Health and Human Services shall, after consulting
17     with the board, make rules governing any nursery established by the Department of
18     Corrections;
19          ▸     modifies requirements relating to the use of restraints on a pregnant inmate;
20          ▸     requires access to postpartum care and certain social services for an inmate who has
21     recently given birth;
22          ▸     includes a sunset date; and
23          ▸     makes technical changes.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          None
28     Utah Code Sections Affected:
29     AMENDS:
30          17-22-8, as last amended by Laws of Utah 2022, Chapter 123
31          63I-1-226, as last amended by Laws of Utah 2022, Chapters 194, 206, 224, 253, 255,
32     347, and 451
33          64-13-46, as enacted by Laws of Utah 2019, Chapter 385
34     ENACTS:
35          26B-1-401, Utah Code Annotated 1953
36          63I-1-264, Utah Code Annotated 1953
37          64-13-46.5, Utah Code Annotated 1953
38     

39     Be it enacted by the Legislature of the state of Utah:
40          Section 1. Section 17-22-8 is amended to read:
41          17-22-8. Care of prisoners -- Funding of services -- Private contractor.
42          (1) Except as provided in Subsection (5), a sheriff shall:
43          (a) receive each individual committed to jail by competent authority;
44          (b) provide each prisoner with necessary food, clothing, and bedding in the manner
45     prescribed by the county legislative body;
46          (c) provide each prisoner medical care when:
47          (i) the prisoner's symptoms evidence a serious disease or injury;
48          (ii) the prisoner's disease or injury is curable or may be substantially alleviated; and
49          (iii) the potential for harm to the person by reason of delay or the denial of medical
50     care would be substantial; and
51          (d) provide each prisoner, as part of the intake process, with the option of continuing
52     any of the following medically prescribed methods of contraception:
53          (i) an oral contraceptive;
54          (ii) an injectable contraceptive;
55          (iii) a patch;
56          (iv) a vaginal ring; or
57          (v) an intrauterine device, if the prisoner was prescribed the intrauterine device because
58     the prisoner experiences serious and persistent adverse effects when using the methods of
59     contraception described in Subsections (1)(d)(i) and (ii).
60          (2) A sheriff may provide the generic form of a contraceptive described in Subsection
61     (1)(d)(i) or (ii).
62          (3) A sheriff shall follow the provisions of Section 64-13-46 if a prisoner is pregnant
63     [and gives birth] or in postpartum recovery, including the reporting requirements in Subsection
64     64-13-45(2)(c).
65          (4) (a) Except as provided in Subsection (4)(b), the expense incurred in providing the
66     services required by this section to prisoners shall be paid from the county treasury, except as
67     provided in Section 17-22-10.
68          (b) The expense incurred in providing the services described in Subsection (1)(d) to
69     prisoners shall be paid by the Department of Health and Human Services.
70          (5) If the county executive contracts with a private contractor to provide the services
71     required by this section, the sheriff shall provide only those services required of the sheriff by
72     the contract between the county and the private contractor.
73          Section 2. Section 26B-1-401 is enacted to read:
74          26B-1-401. Correctional Postnatal and Early Childhood Advisory Board -- Duties
75     -- Rulemaking.
76          (1) As used in this part:
77          (a) "Advisory board" means the Correctional Postnatal and Early Childhood Advisory
78     Board.
79          (b) "Incarcerated mother" means the same as that term is defined in Section
80     64-13-46.5.
81          (2) The advisory board shall consist of the following members:
82          (a) two individuals from the Department of Corrections, appointed by the executive
83     director of the Department of Corrections;
84          (b) one individual appointed by the Board of Pardons and Parole; and
85          (c) six individuals appointed by the executive director of the department, including:
86          (i) two individuals from the department with experience in child care licensing;
87          (ii) two pediatric healthcare providers;
88          (iii) one individual with expertise in early childhood development; and
89          (iv) one individual with experience advocating for incarcerated women.
90          (3) (a) Except as provided in Subsection (3)(b), a member of the advisory board shall
91     be appointed for a four-year term.
92          (b) A member that is appointed to complete an unexpired term may complete the
93     unexpired term and serve a subsequent four-year term.
94          (c) Appointments and reappointments may be staggered so that one-fourth of the
95     advisory board changes each year.
96          (d) The advisory board shall annually elect a chair and co-chair of the board from
97     among the members of the board to serve a two-year term.
98          (4) The advisory board shall meet at least bi-annually, or more frequently as
99     determined by the executive director, the chair, or three or more members of the advisory
100     board.
101          (5) A majority of the board constitutes a quorum and a vote of the majority of the
102     members present constitutes an action of the advisory board.
103          (6) A member of the advisory board may not receive compensation or benefits for the
104     member's service, but may receive per diem and travel expenses as allowed in:
105          (a) Section 63A-3-106;
106          (b) Section 63A-3-107; and
107          (c) rules made by the Division of Finance in accordance with Sections 63A-3-106 and
108     63A-3-107.
109          (7) The advisory board shall:
110          (a) review research regarding childhood development and best practices for infants
111     placed in a nursery located within a secure correctional environment;
112          (b) as part of the advisory board's review of research under Subsection (7)(a), study the
113     benefits of having a nursery for infants and incarcerated mothers located within a secure
114     correctional environment and the benefits of placing an infant or incarcerated mother in a
115     diversion program removed from a secure correctional environment;
116          (c) study the costs of implementing a diversion program for infants and incarcerated
117     mothers removed from a secure correctional environment;
118          (d) create a provisional plan for implementing a diversion program for infants and
119     incarcerated mothers removed from a secure correctional environment; and
120          (e) advise and make recommendations to the department regarding rules and policies
121     for any nursery established by the Department of Corrections to provide space for incarcerated
122     mothers and infants.
123          (8) The advisory board, upon request from the Department of Corrections, may:
124          (a) after considering the specific circumstances of an infant and the infant's
125     incarcerated mother, extend the age that qualifies the infant for a nursery under Subsection
126     64-13-46.5(2) up to 24 months old if:
127          (i) the extension is in the best interest of the infant; and
128          (ii) without the extension the infant would be separated from the incarcerated mother
129     while the incarcerated mother remains in the correctional facility; or
130          (b) allow an incarcerated mother who has committed a violent felony to be provided
131     space in a nursery if it is in the best interest of the incarcerated mother's infant.
132          (9) On or before November 30, 2024, the advisory board shall provide a report of the
133     advisory board's research and study under Subsections (7)(a) through (d), including any
134     proposed legislation, to:
135          (a) the Law Enforcement and Criminal Justice Interim Committee; and
136          (b) the Executive Offices and Criminal Justice Appropriations Subcommittee.
137          (10) The department shall:
138          (a) after receiving recommendations from the advisory board under Subsection (7)(e),
139     adopt rules, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for
140     certification of a nursery established in a secure correctional environment that address:
141          (i) the safety of the nursery for infants and incarcerated mothers;
142          (ii) the childhood development needs of the infants in the nursery;
143          (iii) the specific medical needs of the infants and incarcerated mothers in the nursery;
144          (iv) the appropriate needs of the incarcerated mothers in the nursery; and
145          (v) any other requirements recommended by the advisory board that the department
146     deems necessary for the nursery; and
147          (b) certify that any nursery established by the Ŝ→ [department] Department of
147a     Corrections ←Ŝ is in compliance with the
148     rules established under this section before the nursery begins operations.
149          (11) The department may make rules in accordance with Title 63G, Chapter 3, Utah
150     Administrative Rulemaking Act, regarding corrective action, including closure of a nursery
151     established by the Department of Corrections, if the Department of Corrections fails to comply
152     with the rules established under this section.
153          Section 3. Section 63I-1-226 is amended to read:
154          63I-1-226. Repeal dates: Title 26 through 26B.
155          (1) Section 26-1-7.5, which creates the Utah Health Advisory Council, is repealed July
156     1, 2025.
157          (2) Section 26-1-40 is repealed July 1, 2022.
158          (3) Section 26-1-41 is repealed July 1, 2026.
159          (4) Section 26-1-43 is repealed December 31, 2025.
160          (5) Section 26-7-10 is repealed July 1, 2025.
161          (6) Subsection 26-7-11(5), regarding reports to the Legislature, is repealed July 1,
162     2028.
163          (7) Section 26-7-14 is repealed December 31, 2027.
164          (8) Section 26-8a-603 is repealed July 1, 2027.
165          (9) Title 26, Chapter 9f, Utah Digital Health Service Commission Act, is repealed July
166     1, 2025.
167          (10) Subsection 26-10-6(5), which creates the Newborn Hearing Screening Committee,
168     is repealed July 1, 2026.
169          (11) Section 26-10b-106, which creates the Primary Care Grant Committee, is repealed
170     July 1, 2025.
171          (12) Subsection 26-15c-104(3), relating to a limitation on the number of
172     microenterprise home kitchen permits that may be issued, is repealed July 1, 2022.
173          (13) Subsection 26-18-2.6(9), which addresses reimbursement for dental hygienists, is
174     repealed July 1, 2028.
175          (14) Section 26-18-27 is repealed July 1, 2025.
176          (15) Section 26-18-28 is repealed June 30, 2027.
177          (16) Title 26, Chapter 18, Part 2, Drug Utilization Review Board, is repealed July 1,
178     2027.
179          (17) Subsection 26-18-418(2), the language that states "and the Behavioral Health
180     Crisis Response Commission created in Section 63C-18-202" is repealed July 1, 2023.
181          (18) Section 26-33a-117 is repealed December 31, 2023.
182          (19) Title 26, Chapter 33a, Utah Health Data Authority Act, is repealed July 1, 2024.
183          (20) Title 26, Chapter 36b, Inpatient Hospital Assessment Act, is repealed July 1,
184     2024.
185          (21) Title 26, Chapter 36c, Medicaid Expansion Hospital Assessment Act, is repealed
186     July 1, 2024.
187          (22) Title 26, Chapter 36d, Hospital Provider Assessment Act, is repealed July 1, 2024.
188          (23) Section 26-39-201, which creates the Residential Child Care Licensing Advisory
189     Committee, is repealed July 1, 2024.
190          (24) Section 26-39-405, Drinking water quality in child care centers, is repealed July 1,
191     2027.
192          (25) Section 26-40-104, which creates the Utah Children's Health Insurance Program
193     Advisory Council, is repealed July 1, 2025.
194          (26) Section 26-50-202, which creates the Traumatic Brain Injury Advisory
195     Committee, is repealed July 1, 2025.
196          (27) Title 26, Chapter 54, Spinal Cord and Brain Injury Rehabilitation Fund and
197     Pediatric Neuro-Rehabilitation Fund, is repealed January 1, 2025.
198          (28) Title 26, Chapter 66, Early Childhood Utah Advisory Council, is repealed July 1,
199     2026.
200          (29) Title 26, Chapter 68, COVID-19 Vaccine Restrictions Act, is repealed July 1,
201     2024.
202          (30) Section 26-69-406 is repealed July 1, 2025.
203          (31) Subsection 26B-1-204(2)(i), related to the Residential Child Care Licensing
204     Advisory Committee, is repealed July 1, 2024.
205          (32) Subsection 26B-1-204(2)(k), related to the Primary Care Grant Committee, is
206     repealed July 1, 2025.
207          (33) Section 26B-1-401, regarding the Correctional Postnatal and Early Childhood
208     Advisory Board, is repealed July 1, 2026.
209          Section 4. Section 63I-1-264 is enacted to read:
210          63I-1-264. Repeal dates: Title 64.
211          Section 64-13-46.5, Correctional Facility Nursery, is repealed July 1, 2026.
212          Section 5. Section 64-13-46 is amended to read:
213          64-13-46. Pregnant inmates.
214          (1) As used in this section:
215          (a) "Postpartum recovery" means, as determined by the pregnant inmate's physician,
216     the period immediately following delivery, including the entire period the inmate is in the
217     hospital or health care facility after birth.
218          (b) "Restraints" means any physical restraint or mechanical device used to control the
219     movement of an inmate's body or limbs, including flex cuffs, soft restraints, shackles, or a
220     convex shield.
221          (c) (i) "Shackles" means metal restraints, including leg irons, belly chains, or a security
222     or tether chain.
223          (ii) "Shackles" does not include hard metal handcuffs.
224          [(1) If] (2) Subject to Subsections (3) and (4), if the staff of a correctional facility
225     knows or has reason to believe that an inmate is pregnant or is in postpartum recovery, the staff
226     shall, when restraining the inmate[, shall] at any time or location, use the least restrictive
227     restraints necessary to ensure the safety and security of the inmate and others. [This
228     requirement shall continue during postpartum recovery and any transport to or from a
229     correctional facility.]
230          [(2) The staff of a correctional facility]
231          (3) A correctional staff member may not use restraints on an inmate during the third
232     trimester of pregnancy, labor [and], or childbirth unless a correctional staff member makes an
233     individualized determination that there are compelling grounds to believe that the inmate
234     presents:
235          (a) an immediate and serious risk of harm to [herself] the inmate, the inmate's infant,
236     medical staff, correctional staff, or the public; or
237          (b) a substantial risk of escape that cannot reasonably be reduced by the use of other
238     existing means.
239          [(3)] (4) Notwithstanding Subsection [(1) or (2)] (3), under no circumstances may
240     shackles, leg restraints, or waist restraints be used on an inmate during the third trimester of
241     pregnancy, labor [and], childbirth, or postpartum recovery [while in a medical facility].
242          [(4)] (5) Correctional staff present during labor or childbirth shall:
243          (a) be stationed in a location that offers the maximum privacy to the inmate, while
244     taking into consideration safety and security concerns; and
245          (b) be female, if practicable.
246          [(5) If restraints are authorized under Subsection (1) or (2)]
247          (6) If a correctional staff member authorizes restraints under Subsection (2) or (3), the
248     correctional staff member shall make a written record of the [decision] authorization and use of
249     the restraints [shall be made] that includes:
250          (a) an explanation of the grounds for the correctional staff member's [determination]
251     authorization on the use of restraints;
252          [(b) the circumstances that necessitated the use of restraints;]
253          [(c)] (b) the type of restraints that were used; and
254          [(d)] (c) the length of time the restraints were used.
255          [(6)] (7) The record [created] described in Subsection [(5)] (6):
256          (a) shall be retained by the correctional facility for five years;
257          (b) shall be available for public inspection with individually identifying information
258     redacted; and
259          (c) may not be considered a medical record under state or federal law.
260          (8) For a minimum of 48 hours after an inmate has given birth, a correctional facility
261     shall, if directed by the inmate's physician, allow the infant to remain with the inmate at the
262     health care facility.
263          (9) A correctional facility shall provide:
264          (a) an inmate who is pregnant, or who has given birth within the past six weeks, access
265     to a social worker to help the inmate:
266          (i) arrange childcare;
267          (ii) establish a reunification plan; and
268          (iii) establish a substance abuse treatment plan, if needed; and
269          (b) an inmate in postpartum recovery access to postpartum care for up to 12 weeks as
270     determined by the inmate's physician.
271          [(7) As used in this section:]
272          [(a) "Postpartum recovery" means, as determined by her physician, the period
273     immediately following delivery, including the entire period a woman is in the hospital or
274     medical facility after birth.]
275          [(b) "Restraints" means any physical restraint or mechanical device used to control the
276     movement of an inmate's body or limbs, including flex cuffs, soft restraints, shackles, or a
277     convex shield.]
278          [(c) "Shackles" means metal or iron restraints and includes hard metal handcuffs, leg
279     irons, belly chains, or a security or tether chain.]
280          Section 6. Section 64-13-46.5 is enacted to read:
281          64-13-46.5. Correctional facility nursery.
282          (1) As used in this section:
283          (a) "Incarcerated mother" means an inmate who gives birth after entering the
284     department's custody.
285          (b) "Violent felony" means the same as that term is defined in Section 76-3-203.5.
286          (2) If, using existing appropriations, the department creates a nursery in a correctional
287     facility to provide space for incarcerated mothers and infants, the department may not:
288          (a) subject to Subsection (4)(a)(i), provide space in a nursery for an infant 19 months
289     old or older;
290          (b) begin or continue operating the nursery unless the Department of Health and
291     Human Services certifies that the nursery is in compliance with the rules established under
292     Section 26B-1-401; or
293          (c) subject to Subsection (4)(a)(ii), provide space in a nursery established by the
294     department for an incarcerated mother who has been convicted of, or has charges pending for, a
295     violent felony, including attempt, solicitation, or conspiracy to commit the violent felony.
296          (3) If the department establishes a nursery under Subsection (2), the department shall
297     ensure that at least one administrator of the nursery has experience or training in early
298     childhood development.
299          (4) The department may:
300          (a) in accordance with Section 26B-1-401, request that the Correctional Postnatal and
301     Early Childhood Advisory Board authorize:
302          (i) an infant who is 24 months old or younger to remain in a nursery; or
303          (ii) an incarcerated mother who has committed a violent felony to be provided space in
304     a nursery; and
305          (b) make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
306     Rulemaking Act, regarding the eligibility requirements for an incarcerated mother to enter any
307     nursery established by the department.