1st Sub. H.B. 429
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: S. Larson 6
6 02-14-23 6:41 PM 6
H.B. 429
1st Sub. (Buff)
Representative Candice B. Pierucci proposes the following substitute bill:
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 and postpartum inmates.
10Highlighted Provisions:
11 This bill:
12 <defines terms;
13 <allows the Department of Corrections to create a nursery subject to rules established
14by 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
17with the board, make rules governing any nursery established by the Department of
18Corrections;
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
21recently given birth;
22 <includes a sunset date; and
23 <makes technical changes.
24Money Appropriated in this Bill:
25 None
*HB0429S01* 1st Sub. (Buff) H.B. 429 02-14-23 6:41 PM
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26Other Special Clauses:
27 None
28Utah Code Sections Affected:
29AMENDS:
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,
32347, and 451
33 64-13-46, as enacted by Laws of Utah 2019, Chapter 385
34ENACTS:
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
39Be 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
45prescribed 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
50care would be substantial; and
51 (d) provide each prisoner, as part of the intake process, with the option of continuing
52any 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 02-14-23 6:41 PM 1st Sub. (Buff) H.B. 429
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57 (v) an intrauterine device, if the prisoner was prescribed the intrauterine device because
58the prisoner experiences serious and persistent adverse effects when using the methods of
59contraception 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
6464-13-45(2)(c).
65 (4) (a) Except as provided in Subsection (4)(b), the expense incurred in providing the
66services required by this section to prisoners shall be paid from the county treasury, except as
67provided in Section 17-22-10.
68 (b) The expense incurred in providing the services described in Subsection (1)(d) to
69prisoners 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
71required by this section, the sheriff shall provide only those services required of the sheriff by
72the 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
78Board.
79 (b) "Incarcerated mother" means the same as that term is defined in Section
8064-13-46.5.
81 (2) The advisory board shall consist of the following members:
82 (a) two individuals from the Department of Corrections, appointed by the executive
83director 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; 1st Sub. (Buff) H.B. 429 02-14-23 6:41 PM
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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
91be appointed for a four-year term.
92 (b) A member that is appointed to complete an unexpired term may complete the
93unexpired term and serve a subsequent four-year term.
94 (c) Appointments and reappointments may be staggered so that one-fourth of the
95advisory board changes each year.
96 (d) The advisory board shall annually elect a chair and co-chair of the board from
97among 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
99determined by the executive director, the chair, or three or more members of the advisory
100board.
101 (5) A majority of the board constitutes a quorum and a vote of the majority of the
102members present constitutes an action of the advisory board.
103 (6) A member of the advisory board may not receive compensation or benefits for the
104member'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
10863A-3-107.
109 (7) The advisory board shall:
110 (a) review research regarding childhood development and best practices for infants
111placed 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
113benefits of having a nursery for infants and incarcerated mothers located within a secure
114correctional environment and the benefits of placing an infant or incarcerated mother in a
115diversion program removed from a secure correctional environment;
116 (c) study the costs of implementing a diversion program for infants and incarcerated
117mothers removed from a secure correctional environment;
118 (d) create a provisional plan for implementing a diversion program for infants and 02-14-23 6:41 PM 1st Sub. (Buff) H.B. 429
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119incarcerated mothers removed from a secure correctional environment; and
120 (e) advise and make recommendations to the department regarding rules and policies
121for any nursery established by the Department of Corrections to provide space for incarcerated
122mothers and infants.
123 (8) The advisory board may, upon request from the Department of Corrections,
124consider the specific circumstances of an infant and the infant's incarcerated mother and extend
125the age that qualifies the infant for a nursery under Subsection 64-13-46.5(2) from 18 months
126old or younger to 24 months old or younger if:
127 (a) the extension is in the best interest of the infant; and
128 (b) without the extension the infant would be separated from the incarcerated mother
129while the incarcerated mother remains in the correctional facility.
130 (9) On or before November 30, 2024, the advisory board shall provide a report of the
131advisory board's research and study under Subsections (7)(a) through (d), including any
132proposed legislation, to:
133 (a) the Law Enforcement and Criminal Justice Interim Committee; and
134 (b) the Executive Offices and Criminal Justice Appropriations Subcommittee.
135 (10) The department shall:
136 (a) after receiving recommendations from the advisory board under Subsection (7)(e),
137adopt rules, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for
138certification of a nursery established in a secure correctional environment that address:
139 (i) the safety of the nursery for infants and incarcerated mothers;
140 (ii) the childhood development needs of the infants in the nursery;
141 (iii) the specific medical needs of the infants and incarcerated mothers in the nursery;
142 (iv) the appropriate needs of the incarcerated mothers in the nursery; and
143 (v) any other requirements recommended by the advisory board that the department
144deems necessary for the nursery; and
145 (b) certify that any nursery established by the department is in compliance with the
146rules established under this section before the nursery begins operations.
147 (11) The department may make rules in accordance with Title 63G, Chapter 3, Utah
148Administrative Rulemaking Act, regarding corrective action, including closure of a nursery
149established by the Department of Corrections, if the Department of Corrections fails to comply 1st Sub. (Buff) H.B. 429 02-14-23 6:41 PM
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150with the rules established under this section.
151 Section 3. Section 63I-1-226 is amended to read:
152 63I-1-226. Repeal dates: Title 26 through 26B.
153 (1) Section 26-1-7.5, which creates the Utah Health Advisory Council, is repealed July
1541, 2025.
155 (2) Section 26-1-40 is repealed July 1, 2022.
156 (3) Section 26-1-41 is repealed July 1, 2026.
157 (4) Section 26-1-43 is repealed December 31, 2025.
158 (5) Section 26-7-10 is repealed July 1, 2025.
159 (6) Subsection 26-7-11(5), regarding reports to the Legislature, is repealed July 1,
1602028.
161 (7) Section 26-7-14 is repealed December 31, 2027.
162 (8) Section 26-8a-603 is repealed July 1, 2027.
163 (9) Title 26, Chapter 9f, Utah Digital Health Service Commission Act, is repealed July
1641, 2025.
165 (10) Subsection 26-10-6(5), which creates the Newborn Hearing Screening Committee,
166is repealed July 1, 2026.
167 (11) Section 26-10b-106, which creates the Primary Care Grant Committee, is repealed
168July 1, 2025.
169 (12) Subsection 26-15c-104(3), relating to a limitation on the number of
170microenterprise home kitchen permits that may be issued, is repealed July 1, 2022.
171 (13) Subsection 26-18-2.6(9), which addresses reimbursement for dental hygienists, is
172repealed July 1, 2028.
173 (14) Section 26-18-27 is repealed July 1, 2025.
174 (15) Section 26-18-28 is repealed June 30, 2027.
175 (16) Title 26, Chapter 18, Part 2, Drug Utilization Review Board, is repealed July 1,
1762027.
177 (17) Subsection 26-18-418(2), the language that states "and the Behavioral Health
178Crisis Response Commission created in Section 63C-18-202" is repealed July 1, 2023.
179 (18) Section 26-33a-117 is repealed December 31, 2023.
180 (19) Title 26, Chapter 33a, Utah Health Data Authority Act, is repealed July 1, 2024. 02-14-23 6:41 PM 1st Sub. (Buff) H.B. 429
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181 (20) Title 26, Chapter 36b, Inpatient Hospital Assessment Act, is repealed July 1,
1822024.
183 (21) Title 26, Chapter 36c, Medicaid Expansion Hospital Assessment Act, is repealed
184July 1, 2024.
185 (22) Title 26, Chapter 36d, Hospital Provider Assessment Act, is repealed July 1, 2024.
186 (23) Section 26-39-201, which creates the Residential Child Care Licensing Advisory
187Committee, is repealed July 1, 2024.
188 (24) Section 26-39-405, Drinking water quality in child care centers, is repealed July 1,
1892027.
190 (25) Section 26-40-104, which creates the Utah Children's Health Insurance Program
191Advisory Council, is repealed July 1, 2025.
192 (26) Section 26-50-202, which creates the Traumatic Brain Injury Advisory
193Committee, is repealed July 1, 2025.
194 (27) Title 26, Chapter 54, Spinal Cord and Brain Injury Rehabilitation Fund and
195Pediatric Neuro-Rehabilitation Fund, is repealed January 1, 2025.
196 (28) Title 26, Chapter 66, Early Childhood Utah Advisory Council, is repealed July 1,
1972026.
198 (29) Title 26, Chapter 68, COVID-19 Vaccine Restrictions Act, is repealed July 1,
1992024.
200 (30) Section 26-69-406 is repealed July 1, 2025.
201 (31) Subsection 26B-1-204(2)(i), related to the Residential Child Care Licensing
202Advisory Committee, is repealed July 1, 2024.
203 (32) Subsection 26B-1-204(2)(k), related to the Primary Care Grant Committee, is
204repealed July 1, 2025.
205 (33) Section 26B-1-401, regarding the Correctional Postnatal and Early Childhood
206Advisory Board, is repealed July 1, 2026.
207 Section 4. Section 63I-1-264 is enacted to read:
208 63I-1-264. Repeal dates: Title 64.
209 Section 64-13-46.5, Correctional Facility Nursery, is repealed July 1, 2026.
210 Section 5. Section 64-13-46 is amended to read:
211 64-13-46. Pregnant inmates. 1st Sub. (Buff) H.B. 429 02-14-23 6:41 PM
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212 (1) As used in this section:
213 (a) "Postpartum recovery" means, as determined by the pregnant inmate's physician,
214the period immediately following delivery, including the entire period the inmate is in the
215hospital or health care facility after birth.
216 (b) "Restraints" means any physical restraint or mechanical device used to control the
217movement of an inmate's body or limbs, including flex cuffs, soft restraints, shackles, or a
218convex shield.
219 (c) (i) "Shackles" means metal restraints, including leg irons, belly chains, or a security
220or tether chain.
221 (ii) "Shackles" does not include hard metal handcuffs.
222 [(1)] (2) [If] Subject to Subsections (3) and (4), if the staff of a correctional facility
223knows or has reason to believe that an inmate is pregnant or is in postpartum recovery, the staff
224shall, when restraining the inmate[, shall] at any time or location, use the least restrictive
225restraints necessary to ensure the safety and security of the inmate and others. [This
226requirement shall continue during postpartum recovery and any transport to or from a
227correctional facility.]
228 [(2)] (3) [The staff of a correctional facility] A correctional staff member may not use
229restraints on an inmate during the third trimester of pregnancy, labor [and], or childbirth unless
230a correctional staff member makes an individualized determination that there are compelling
231grounds to believe that the inmate presents:
232 (a) an immediate and serious risk of harm to [herself] the inmate, the inmate's infant,
233medical staff, correctional staff, or the public; or
234 (b) a substantial risk of escape that cannot reasonably be reduced by the use of other
235existing means.
236 [(3)] (4) Notwithstanding Subsection [(1) or (2)] (3), under no circumstances may
237shackles, leg restraints, or waist restraints be used on an inmate during the third trimester of
238pregnancy, labor [and], childbirth, or postpartum recovery [while in a medical facility].
239 [(4)] (5) Correctional staff present during labor or childbirth shall:
240 (a) be stationed in a location that offers the maximum privacy to the inmate, while
241taking into consideration safety and security concerns; and
242 (b) be female, if practicable. 02-14-23 6:41 PM 1st Sub. (Buff) H.B. 429
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243 [(5)] (6) [If restraints are authorized under Subsection (1) or (2)] If a correctional staff
244member authorizes restraints under Subsection (2) or (3), the correctional staff member shall
245make a written record of the [decision] authorization and use of the restraints [shall be made]
246that includes:
247 (a) an explanation of the grounds for the correctional staff member's [determination]
248authorization on the use of restraints;
249 [(b) the circumstances that necessitated the use of restraints;]
250 [(c)] (b) the type of restraints that were used; and
251 [(d)] (c) the length of time the restraints were used.
252 [(6)] (7) The record [created] described in Subsection [(5)] (6):
253 (a) shall be retained by the correctional facility for five years;
254 (b) shall be available for public inspection with individually identifying information
255redacted; and
256 (c) may not be considered a medical record under state or federal law.
257 (8) For a minimum of 48 hours after an inmate has given birth, a correctional facility
258shall, if directed by the inmate's physician, allow the infant to remain with the inmate at the
259health care facility.
260 (9) A correctional facility shall provide:
261 (a) an inmate who is pregnant, or who has given birth within the past six weeks, access
262to a social worker to help the inmate:
263 (i) arrange childcare;
264 (ii) establish a reunification plan; and
265 (iii) establish a substance abuse treatment plan, if needed; and
266 (b) an inmate in postpartum recovery access to postpartum care for up to 12 weeks as
267determined by the inmate's physician.
268 [(7) As used in this section:]
269 [(a) "Postpartum recovery" means, as determined by her physician, the period
270immediately following delivery, including the entire period a woman is in the hospital or
271medical facility after birth.]
272 [(b) "Restraints" means any physical restraint or mechanical device used to control the
273movement of an inmate's body or limbs, including flex cuffs, soft restraints, shackles, or a 1st Sub. (Buff) H.B. 429 02-14-23 6:41 PM
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274convex shield.]
275 [(c) "Shackles" means metal or iron restraints and includes hard metal handcuffs, leg
276irons, belly chains, or a security or tether chain.]
277 Section 6. Section 64-13-46.5 is enacted to read:
278 64-13-46.5. Correctional facility nursery.
279 (1) As used in this section:
280 (a) "Incarcerated mother" means an inmate who gives birth after entering the
281department's custody.
282 (b) "Violent felony" means the same as that term is defined in Section 76-3-203.5.
283 (2) Subject to Subsection (3), the department may create a nursery within a correctional
284facility to provide space for incarcerated mothers and infants 18 months old or younger.
285 (3) The department may, in accordance with Subsection 26B-1-401(8), request the
286Correctional Postnatal and Early Childhood Advisory Board authorize an infant who is 24
287months old or younger to remain in a nursery.
288 (4) The Department of Health and Human Services shall certify that any nursery
289established by the department is in compliance with the rules established under Section
29026B-1-401 before the nursery begins operations.
291 (5) If the department establishes a nursery within a correctional facility, the department
292shall:
293 (a) ensure that at least one administrator of the nursery has experience or training in
294early childhood development; and
295 (b) comply with the requirements under Section 26B-1-401 created by the Department
296of Health and Human Services.
297 (6) An incarcerated mother is not eligible to be placed in a nursery established by the
298department if the incarcerated mother has been convicted of, or has charges pending for, a
299violent felony, including attempt, solicitation, or conspiracy to commit the violent felony.
300 (7) The department may make rules, in accordance with Title 63G, Chapter 3, Utah
301Administrative Rulemaking Act, regarding the eligibility requirements for an incarcerated
302mother to enter any nursery established by the department.