H.B. 429
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: S. Larson 6
6 02-09-23 11:50 AM 6
H.B. 429
1 PREGNANT AND POSTPARTUM I NMATE AMENDMENTS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Candice B. Pierucci
5 Senate Sponsor: ____________
6
7LONG TITLE
8General Description:
9 This bill amends requirements relating to pregnant inmates.
10Highlighted Provisions:
11 This bill:
12 <defines terms;
13 <codifies the existing prison nursery as the Incarcerated Mothers and Infants Program
14(program);
15 <establishes the Incarcerated Mothers and Infants Program Advisory Board (board);
16 <provides that the Department of Health and Human Services shall, after consulting
17with the board, make rules governing the program;
18 <modifies requirements relating to the use of restraints on a pregnant inmate;
19 <requires access to postpartum care and certain social services for an inmate who has
20recently given birth;
21 <includes a sunset date; and
22 <makes technical changes.
23Money Appropriated in this Bill:
24 None
25Other Special Clauses:
26 None
27Utah Code Sections Affected:
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28AMENDS:
29 17-22-8, as last amended by Laws of Utah 2022, Chapter 123
30 63I-1-223, as last amended by Laws of Utah 2020, Chapters 154, 232
31 64-13-46, as enacted by Laws of Utah 2019, Chapter 385
32ENACTS:
33 26B-1-401, Utah Code Annotated 1953
34 63I-1-264, Utah Code Annotated 1953
35 64-13-46.5, Utah Code Annotated 1953
36
37Be it enacted by the Legislature of the state of Utah:
38 Section 1. Section 17-22-8 is amended to read:
39 17-22-8. Care of prisoners -- Funding of services -- Private contractor.
40 (1) Except as provided in Subsection (5), a sheriff shall:
41 (a) receive each individual committed to jail by competent authority;
42 (b) provide each prisoner with necessary food, clothing, and bedding in the manner
43prescribed by the county legislative body;
44 (c) provide each prisoner medical care when:
45 (i) the prisoner's symptoms evidence a serious disease or injury;
46 (ii) the prisoner's disease or injury is curable or may be substantially alleviated; and
47 (iii) the potential for harm to the person by reason of delay or the denial of medical
48care would be substantial; and
49 (d) provide each prisoner, as part of the intake process, with the option of continuing
50any of the following medically prescribed methods of contraception:
51 (i) an oral contraceptive;
52 (ii) an injectable contraceptive;
53 (iii) a patch;
54 (iv) a vaginal ring; or
55 (v) an intrauterine device, if the prisoner was prescribed the intrauterine device because
56the prisoner experiences serious and persistent adverse effects when using the methods of
57contraception described in Subsections (1)(d)(i) and (ii).
58 (2) A sheriff may provide the generic form of a contraceptive described in Subsection 02-09-23 11:50 AM H.B. 429
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59(1)(d)(i) or (ii).
60 (3) A sheriff shall follow the provisions of Section 64-13-46 if a prisoner is pregnant
61[and gives birth] or in postpartum recovery, including the reporting requirements in Subsection
6264-13-45(2)(c).
63 (4) (a) Except as provided in Subsection (4)(b), the expense incurred in providing the
64services required by this section to prisoners shall be paid from the county treasury, except as
65provided in Section 17-22-10.
66 (b) The expense incurred in providing the services described in Subsection (1)(d) to
67prisoners shall be paid by the Department of Health and Human Services.
68 (5) If the county executive contracts with a private contractor to provide the services
69required by this section, the sheriff shall provide only those services required of the sheriff by
70the contract between the county and the private contractor.
71 Section 2. Section 26B-1-401 is enacted to read:
72 26B-1-401. Incarcerated Mothers and Infants Program Advisory Board -- Duties
73-- Rulemaking.
74 (1) As used in this part:
75 (a) "Advisory board" means the Incarcerated Mothers and Infants Program Advisory
76Board.
77 (b) "Incarcerated mother" means the same as that term is defined in Section
7864-13-46.5.
79 (c) "Program" means the Incarcerated Mothers and Infants Program created under
80Section 64-13-46.5.
81 (2) The Incarcerated Mothers and Infants Program Advisory Board shall consist of the
82following members:
83 (a) two individuals from the Department of Corrections, appointed by the executive
84director of the Department of Corrections;
85 (b) one individual appointed by the Board of Pardons and Parole; and
86 (c) six individuals appointed by the executive director of the department, including:
87 (i) two individuals from the department with experience in child care licensing;
88 (ii) two pediatric healthcare providers;
89 (iii) one individual with expertise in early childhood development; and H.B. 429 02-09-23 11:50 AM
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90 (iv) one individual with experience advocating for incarcerated women.
91 (3) (a) Except as provided in (3)(b), a member of the advisory board shall be appointed
92for a four-year term.
93 (b) A member that is appointed to complete an unexpired term may complete the
94unexpired term and serve a subsequent four-year term.
95 (c) Appointments and reappointments may be staggered so that one-fourth of the
96advisory board changes each year.
97 (d) The advisory board shall annually elect a chair and co-chair of the board from
98among the members of the board to serve a two-year term.
99 (4) The advisory board shall meet at least bi-annually, or more frequently as
100determined by the executive director, the chair, or three or more members of the advisory
101board.
102 (5) A majority of the board constitutes a quorum and a vote of the majority of the
103members present constitutes an action of the advisory board.
104 (6) A member of the advisory board may not receive compensation or benefits for the
105member's service, but may receive per diem and travel expenses as allowed in:
106 (a) Section 63A-3-106;
107 (b) Section 63A-3-107; and
108 (c) rules made by the Division of Finance in accordance with Sections 63A-3-106 and
10963A-3-107.
110 (7) The advisory board shall:
111 (a) review research regarding childhood development and best practices for infants
112placed in a nursery located within a secure correctional environment;
113 (b) as part of the advisory board's review of research under Subsection (7)(a), study the
114benefits of having a nursery for infants and incarcerated mothers located within a secure
115correctional environment and the benefits of placing an infant or incarcerated mother in a
116diversion program removed from a secure correctional environment;
117 (c) study the costs of implementing a diversion program for infants and incarcerated
118mothers removed from a secure correctional environment;
119 (d) create a provisional plan for implementing a diversion program for infants and
120incarcerated mothers removed from a secure correctional environment; and 02-09-23 11:50 AM H.B. 429
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121 (e) advise and make recommendations to the department regarding the rules and
122policies the department shall establish under Subsection (10) for the Incarcerated Mothers and
123Infants Program that address:
124 (i) the safety of the program for infants and incarcerated mothers;
125 (ii) the childhood development needs of the infants in the program;
126 (iii) the specific medical needs of the infants and incarcerated mothers in the program;
127 (iv) the appropriate needs of the incarcerated mothers in the program; and
128 (v) other requirements the advisory board deems necessary for the success and safety of
129the program.
130 (8) The advisory board may, upon request from the Department of Corrections, extend
131the age that qualifies an infant for the program under Subsection 64-13-46.5(2)(a) from 18
132months old or younger to 24 months old or younger if:
133 (a) the extension is in the best interest of the infant; and
134 (b) without the extension the infant would be separated from the incarcerated mother
135while the incarcerated mother remains in the correctional facility.
136 (9) On or before November 30, 2024, the advisory board shall provide a report of the
137advisory board's research and study under Subsections (7)(a) through (d), including any
138proposed legislation, to:
139 (a) the Law Enforcement and Criminal Justice Interim Committee; and
140 (b) the Executive Offices and Criminal Justice Appropriations Subcommittee.
141 (10) The department, after receiving recommendations from the Incarcerated Mothers
142and Infants Program Advisory Board under Subsection (7)(c), shall adopt rules, in accordance
143with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that the Department of
144Corrections shall follow in implementing the Incarcerated Mothers and Infants Program.
145 (11) The rules established under Subsection (10) shall require the program to:
146 (a) have materials needed for proper childhood development for infants in the program;
147 (b) meet basic safety requirements for the infants and incarcerated mothers in the
148program; and
149 (c) meet any other requirements recommended by the advisory board that the
150department deems necessary for the program.
151 (12) The department may make rules under Subsection (10) regarding corrective H.B. 429 02-09-23 11:50 AM
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152action, including suspension or closure of the program, if the Department of Corrections fails
153to comply with the rules established under this section.
154 Section 3. Section 63I-1-223 is amended to read:
155 63I-1-223. Repeal dates: Titles 23 through 23B.
156 (1) Section 23-14-2.5, which creates the Wildlife Board Nominating Committee, is
157repealed July 1, 2023.
158 (2) Section 23-14-2.6, which creates regional advisory councils for the Wildlife Board,
159is repealed July 1, 2023.
160 (3) Section 26B-1-401, regarding the Incarcerated Mothers and Infants Program
161Advisory Board, is repealed July 1, 2026.
162 Section 4. Section 63I-1-264 is enacted to read:
163 63I-1-264. Repeal dates: Title 64.
164 Section 64-13-46.5, regarding the Incarcerated Mothers and Infants Program, is
165repealed July 1, 2026.
166 Section 5. Section 64-13-46 is amended to read:
167 64-13-46. Pregnant inmates.
168 (1) As used in this section:
169 (a) "Postpartum recovery" means, as determined by the pregnant inmate's physician,
170the period immediately following delivery, including the entire period the inmate is in the
171hospital or health care facility after birth.
172 (b) "Restraints" means any physical restraint or mechanical device used to control the
173movement of an inmate's body or limbs, including flex cuffs, soft restraints, shackles, or a
174convex shield.
175 (c) (i) "Shackles" means metal restraints, including leg irons, belly chains, or a security
176or tether chain.
177 (ii) "Shackles" does not include hard metal handcuffs.
178 [(1)] (2) [If] Subject to Subsections (3) and (4), if the staff of a correctional facility
179knows or has reason to believe that an inmate is pregnant or is in postpartum recovery, the staff
180shall, when restraining the inmate[, shall] at any time or location, use the least restrictive
181restraints necessary to ensure the safety and security of the inmate and others. [This
182requirement shall continue during postpartum recovery and any transport to or from a 02-09-23 11:50 AM H.B. 429
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183correctional facility.]
184 [(2)] (3) [The staff of a correctional facility] A correctional staff member may not use
185restraints on an inmate during the third trimester of pregnancy, labor [and], or childbirth unless
186a correctional staff member makes an individualized determination that there are compelling
187grounds to believe that the inmate presents:
188 (a) an immediate and serious risk of harm to [herself] the inmate, the inmate's infant,
189medical staff, correctional staff, or the public; or
190 (b) a substantial risk of escape that cannot reasonably be reduced by the use of other
191existing means.
192 [(3)] (4) Notwithstanding Subsection [(1) or (2)] (3), under no circumstances may
193shackles, leg restraints, or waist restraints be used on an inmate during the third trimester of
194pregnancy, labor [and], childbirth, or postpartum recovery [while in a medical facility].
195 [(4)] (5) Correctional staff present during labor or childbirth shall:
196 (a) be stationed in a location that offers the maximum privacy to the inmate, while
197taking into consideration safety and security concerns; and
198 (b) be female, if practicable.
199 [(5)] (6) [If restraints are authorized under Subsection (1) or (2)] If a correctional staff
200member authorizes restraints under Subsection (2) or (3), the correctional staff member shall
201make a written record of the [decision] authorization and use of the restraints [shall be made]
202that includes:
203 (a) an explanation of the grounds for the correctional staff member's [determination]
204authorization on the use of restraints;
205 [(b) the circumstances that necessitated the use of restraints;]
206 [(c)] (b) the type of restraints that were used; and
207 [(d)] (c) the length of time the restraints were used.
208 [(6)] (7) The record [created] described in Subsection [(5)] (6):
209 (a) shall be retained by the correctional facility for five years;
210 (b) shall be available for public inspection with individually identifying information
211redacted; and
212 (c) may not be considered a medical record under state or federal law.
213 (8) For a minimum of 48 hours after an inmate has given birth, a correctional facility H.B. 429 02-09-23 11:50 AM
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214shall, if directed by the inmate's physician, allow the infant to remain with the inmate at the
215health care facility.
216 (9) A correctional facility shall provide:
217 (a) an inmate who is pregnant, or who has given birth within the past six weeks, access
218to a social worker to help the inmate:
219 (i) arrange childcare;
220 (ii) establish a reunification plan; and
221 (iii) establish a substance abuse treatment plan, if needed; and
222 (b) an inmate in postpartum recovery access to postpartum care for up to 12 weeks as
223determined by the inmate's physician.
224 [(7) As used in this section:]
225 [(a) "Postpartum recovery" means, as determined by her physician, the period
226immediately following delivery, including the entire period a woman is in the hospital or
227medical facility after birth.]
228 [(b) "Restraints" means any physical restraint or mechanical device used to control the
229movement of an inmate's body or limbs, including flex cuffs, soft restraints, shackles, or a
230convex shield.]
231 [(c) "Shackles" means metal or iron restraints and includes hard metal handcuffs, leg
232irons, belly chains, or a security or tether chain.]
233 Section 6. Section 64-13-46.5 is enacted to read:
234 64-13-46.5. Incarcerated Mothers and Infants Program.
235 (1) As used in this section:
236 (a) "Incarcerated mother" means an inmate who gives birth after entering the
237department's custody.
238 (b) "Program" means the Incarcerated Mothers and Infants Program created under this
239section.
240 (c) "Violent felony" means the same as that term is defined in Section 76-3-203.5.
241 (2) There is created within the department the Incarcerated Mothers and Infants
242Program that shall:
243 (a) subject to Subsection (3), provide space for incarcerated mothers and infants 18
244months old or younger in a facility managed by the department; and 02-09-23 11:50 AM H.B. 429
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245 (b) comply with the requirements established under Section 26B-1-401 by the
246Department of Health and Human Services.
247 (3) The department may, in accordance with Subsection 26B-1-401(8), request
248permission from the Incarcerated Mothers and Infants Program Advisory Board to provide
249space in the program for an infant who is 24 months old or younger.
250 (4) The Department of Health and Human Services shall certify the program is in
251compliance with the rules established under Section 26B-1-401 before the program begins
252operations.
253 (5) On or before July 1, 2024, the department shall ensure that at least one
254administrator of the program has experience or training in early childhood development.
255 (6) An incarcerated mother is not eligible for the program if the incarcerated mother
256has been convicted of, or has charges pending for, a violent felony, including attempt,
257solicitation, or conspiracy to commit the violent felony.
258 (7) The department may make rules, in accordance with Title 63G, Chapter 3, Utah
259Administrative Rulemaking Act, regarding the eligibility requirements for an incarcerated
260mother to enter the program.