2 | 8 | | 1 PREGNANT AND POSTPARTUM I NMATE AMENDMENTS |
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3 | 9 | | 2 2023 GENERAL SESSION |
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4 | 10 | | 3 STATE OF UTAH |
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5 | 11 | | 4 Chief Sponsor: Candice B. Pierucci |
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6 | 12 | | 5 Senate Sponsor: Stephanie Pitcher |
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7 | 13 | | 6 |
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8 | 14 | | 7LONG TITLE |
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9 | 15 | | 8General Description: |
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10 | 16 | | 9 This bill amends requirements relating to pregnant and postpartum inmates. |
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11 | 17 | | 10Highlighted Provisions: |
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12 | 18 | | 11 This bill: |
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13 | 19 | | 12 <defines terms; |
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14 | 20 | | 13 <specifies that if the Department of Corrections creates a nursery, the nursery is |
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15 | 21 | | 14subject to rules established by the Department of Health and Human Services; |
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16 | 22 | | 15 <establishes the Correctional Postnatal and Early Childhood Advisory Board (board); |
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17 | 23 | | 16 <provides that the Department of Health and Human Services shall, after consulting |
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18 | 24 | | 17with the board, make rules governing any nursery established by the Department of |
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19 | 25 | | 18Corrections; |
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20 | 26 | | 19 <modifies requirements relating to the use of restraints on a pregnant inmate; |
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21 | 27 | | 20 <requires access to postpartum care and certain social services for an inmate who has |
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22 | 28 | | 21recently given birth; |
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23 | 29 | | 22 <includes a sunset date; and |
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24 | 30 | | 23 <makes technical changes. |
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25 | 31 | | 24Money Appropriated in this Bill: |
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26 | 32 | | 25 None |
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32 | 39 | | 30 17-22-8, as last amended by Laws of Utah 2022, Chapter 123 |
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33 | 40 | | 31 63I-1-226, as last amended by Laws of Utah 2022, Chapters 194, 206, 224, 253, 255, |
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34 | 41 | | 32347, and 451 |
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35 | 42 | | 33 64-13-46, as enacted by Laws of Utah 2019, Chapter 385 |
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36 | 43 | | 34ENACTS: |
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37 | 44 | | 35 26B-1-401, Utah Code Annotated 1953 |
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38 | 45 | | 36 63I-1-264, Utah Code Annotated 1953 |
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39 | 46 | | 37 64-13-46.5, Utah Code Annotated 1953 |
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40 | 47 | | 38 |
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41 | 48 | | 39Be it enacted by the Legislature of the state of Utah: |
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42 | 49 | | 40 Section 1. Section 17-22-8 is amended to read: |
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43 | 50 | | 41 17-22-8. Care of prisoners -- Funding of services -- Private contractor. |
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44 | 51 | | 42 (1) Except as provided in Subsection (5), a sheriff shall: |
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45 | 52 | | 43 (a) receive each individual committed to jail by competent authority; |
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46 | 53 | | 44 (b) provide each prisoner with necessary food, clothing, and bedding in the manner |
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47 | 54 | | 45prescribed by the county legislative body; |
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48 | 55 | | 46 (c) provide each prisoner medical care when: |
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49 | 56 | | 47 (i) the prisoner's symptoms evidence a serious disease or injury; |
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50 | 57 | | 48 (ii) the prisoner's disease or injury is curable or may be substantially alleviated; and |
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51 | 58 | | 49 (iii) the potential for harm to the person by reason of delay or the denial of medical |
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52 | 59 | | 50care would be substantial; and |
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53 | 60 | | 51 (d) provide each prisoner, as part of the intake process, with the option of continuing |
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54 | 61 | | 52any of the following medically prescribed methods of contraception: |
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55 | 62 | | 53 (i) an oral contraceptive; |
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56 | 63 | | 54 (ii) an injectable contraceptive; |
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57 | 64 | | 55 (iii) a patch; |
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61 | 68 | | 58the prisoner experiences serious and persistent adverse effects when using the methods of |
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62 | 69 | | 59contraception described in Subsections (1)(d)(i) and (ii). |
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63 | 70 | | 60 (2) A sheriff may provide the generic form of a contraceptive described in Subsection |
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64 | 71 | | 61(1)(d)(i) or (ii). |
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65 | 72 | | 62 (3) A sheriff shall follow the provisions of Section 64-13-46 if a prisoner is pregnant |
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66 | 73 | | 63[and gives birth] or in postpartum recovery, including the reporting requirements in Subsection |
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67 | 74 | | 6464-13-45(2)(c). |
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68 | 75 | | 65 (4) (a) Except as provided in Subsection (4)(b), the expense incurred in providing the |
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69 | 76 | | 66services required by this section to prisoners shall be paid from the county treasury, except as |
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70 | 77 | | 67provided in Section 17-22-10. |
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71 | 78 | | 68 (b) The expense incurred in providing the services described in Subsection (1)(d) to |
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72 | 79 | | 69prisoners shall be paid by the Department of Health and Human Services. |
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73 | 80 | | 70 (5) If the county executive contracts with a private contractor to provide the services |
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74 | 81 | | 71required by this section, the sheriff shall provide only those services required of the sheriff by |
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75 | 82 | | 72the contract between the county and the private contractor. |
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76 | 83 | | 73 Section 2. Section 26B-1-401 is enacted to read: |
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77 | 84 | | 74 26B-1-401. Correctional Postnatal and Early Childhood Advisory Board -- Duties |
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78 | 85 | | 75-- Rulemaking. |
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79 | 86 | | 76 (1) As used in this part: |
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80 | 87 | | 77 (a) "Advisory board" means the Correctional Postnatal and Early Childhood Advisory |
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81 | 88 | | 78Board. |
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82 | 89 | | 79 (b) "Incarcerated mother" means the same as that term is defined in Section |
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83 | 90 | | 8064-13-46.5. |
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84 | 91 | | 81 (2) The advisory board shall consist of the following members: |
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85 | 92 | | 82 (a) two individuals from the Department of Corrections, appointed by the executive |
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86 | 93 | | 83director of the Department of Corrections; |
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87 | 94 | | 84 (b) one individual appointed by the Board of Pardons and Parole; and |
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92 | 99 | | 88 (iii) one individual with expertise in early childhood development; and |
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93 | 100 | | 89 (iv) one individual with experience advocating for incarcerated women. |
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94 | 101 | | 90 (3) (a) Except as provided in Subsection (3)(b), a member of the advisory board shall |
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95 | 102 | | 91be appointed for a four-year term. |
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96 | 103 | | 92 (b) A member that is appointed to complete an unexpired term may complete the |
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97 | 104 | | 93unexpired term and serve a subsequent four-year term. |
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98 | 105 | | 94 (c) Appointments and reappointments may be staggered so that one-fourth of the |
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99 | 106 | | 95advisory board changes each year. |
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100 | 107 | | 96 (d) The advisory board shall annually elect a chair and co-chair of the board from |
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101 | 108 | | 97among the members of the board to serve a two-year term. |
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102 | 109 | | 98 (4) The advisory board shall meet at least bi-annually, or more frequently as |
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103 | 110 | | 99determined by the executive director, the chair, or three or more members of the advisory |
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104 | 111 | | 100board. |
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105 | 112 | | 101 (5) A majority of the board constitutes a quorum and a vote of the majority of the |
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106 | 113 | | 102members present constitutes an action of the advisory board. |
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107 | 114 | | 103 (6) A member of the advisory board may not receive compensation or benefits for the |
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108 | 115 | | 104member's service, but may receive per diem and travel expenses as allowed in: |
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109 | 116 | | 105 (a) Section 63A-3-106; |
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110 | 117 | | 106 (b) Section 63A-3-107; and |
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111 | 118 | | 107 (c) rules made by the Division of Finance in accordance with Sections 63A-3-106 and |
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112 | 119 | | 10863A-3-107. |
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113 | 120 | | 109 (7) The advisory board shall: |
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114 | 121 | | 110 (a) review research regarding childhood development and best practices for infants |
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115 | 122 | | 111placed in a nursery located within a secure correctional environment; |
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116 | 123 | | 112 (b) as part of the advisory board's review of research under Subsection (7)(a), study the |
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124 | 131 | | 119incarcerated mothers removed from a secure correctional environment; and |
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125 | 132 | | 120 (e) advise and make recommendations to the department regarding rules and policies |
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126 | 133 | | 121for any nursery established by the Department of Corrections to provide space for incarcerated |
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127 | 134 | | 122mothers and infants. |
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128 | 135 | | 123 (8) The advisory board, upon request from the Department of Corrections, may: |
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129 | 136 | | 124 (a) after considering the specific circumstances of an infant and the infant's |
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130 | 137 | | 125incarcerated mother, extend the age that qualifies the infant for a nursery under Subsection |
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131 | 138 | | 12664-13-46.5(2) up to 24 months old if: |
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132 | 139 | | 127 (i) the extension is in the best interest of the infant; and |
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133 | 140 | | 128 (ii) without the extension the infant would be separated from the incarcerated mother |
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134 | 141 | | 129while the incarcerated mother remains in the correctional facility; or |
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135 | 142 | | 130 (b) allow an incarcerated mother who has committed a violent felony to be provided |
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136 | 143 | | 131space in a nursery if it is in the best interest of the incarcerated mother's infant. |
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137 | 144 | | 132 (9) On or before November 30, 2024, the advisory board shall provide a report of the |
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138 | 145 | | 133advisory board's research and study under Subsections (7)(a) through (d), including any |
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139 | 146 | | 134proposed legislation, to: |
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140 | 147 | | 135 (a) the Law Enforcement and Criminal Justice Interim Committee; and |
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141 | 148 | | 136 (b) the Executive Offices and Criminal Justice Appropriations Subcommittee. |
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142 | 149 | | 137 (10) The department shall: |
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143 | 150 | | 138 (a) after receiving recommendations from the advisory board under Subsection (7)(e), |
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144 | 151 | | 139adopt rules, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for |
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145 | 152 | | 140certification of a nursery established in a secure correctional environment that address: |
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153 | | - | 147 (b) certify that any nursery established by the Department of Corrections is in |
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154 | | - | 148compliance with the rules established under this section before the nursery begins operations. |
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155 | | - | 149 (11) The department may make rules in accordance with Title 63G, Chapter 3, Utah |
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| 159 | + | 147 (b) certify that any nursery established by the Öº [department] Department of |
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| 160 | + | 147aCorrections »Ö is in compliance with the |
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| 161 | + | 148rules established under this section before the nursery begins operations. |
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| 162 | + | 149 (11) The department may make rules in accordance with Title 63G, Chapter 3, Utah 2nd Sub. (Gray) H.B. 429 02-23-23 9:06 AM |
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| 163 | + | - 6 - |
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156 | 164 | | 150Administrative Rulemaking Act, regarding corrective action, including closure of a nursery |
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157 | 165 | | 151established by the Department of Corrections, if the Department of Corrections fails to comply |
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158 | 166 | | 152with the rules established under this section. |
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159 | 167 | | 153 Section 3. Section 63I-1-226 is amended to read: |
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160 | 168 | | 154 63I-1-226. Repeal dates: Title 26 through 26B. |
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161 | 169 | | 155 (1) Section 26-1-7.5, which creates the Utah Health Advisory Council, is repealed July |
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162 | 170 | | 1561, 2025. |
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163 | 171 | | 157 (2) Section 26-1-40 is repealed July 1, 2022. |
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164 | 172 | | 158 (3) Section 26-1-41 is repealed July 1, 2026. |
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165 | 173 | | 159 (4) Section 26-1-43 is repealed December 31, 2025. |
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166 | 174 | | 160 (5) Section 26-7-10 is repealed July 1, 2025. |
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167 | 175 | | 161 (6) Subsection 26-7-11(5), regarding reports to the Legislature, is repealed July 1, |
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168 | 176 | | 1622028. |
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169 | 177 | | 163 (7) Section 26-7-14 is repealed December 31, 2027. |
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170 | 178 | | 164 (8) Section 26-8a-603 is repealed July 1, 2027. |
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171 | 179 | | 165 (9) Title 26, Chapter 9f, Utah Digital Health Service Commission Act, is repealed July |
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172 | 180 | | 1661, 2025. |
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173 | 181 | | 167 (10) Subsection 26-10-6(5), which creates the Newborn Hearing Screening Committee, |
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174 | 182 | | 168is repealed July 1, 2026. |
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177 | 184 | | 170July 1, 2025. |
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178 | 185 | | 171 (12) Subsection 26-15c-104(3), relating to a limitation on the number of |
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179 | 186 | | 172microenterprise home kitchen permits that may be issued, is repealed July 1, 2022. |
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180 | 187 | | 173 (13) Subsection 26-18-2.6(9), which addresses reimbursement for dental hygienists, is |
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181 | 188 | | 174repealed July 1, 2028. |
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182 | 189 | | 175 (14) Section 26-18-27 is repealed July 1, 2025. |
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183 | 190 | | 176 (15) Section 26-18-28 is repealed June 30, 2027. |
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184 | 191 | | 177 (16) Title 26, Chapter 18, Part 2, Drug Utilization Review Board, is repealed July 1, |
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185 | 192 | | 1782027. |
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186 | 193 | | 179 (17) Subsection 26-18-418(2), the language that states "and the Behavioral Health |
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188 | 196 | | 181 (18) Section 26-33a-117 is repealed December 31, 2023. |
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189 | 197 | | 182 (19) Title 26, Chapter 33a, Utah Health Data Authority Act, is repealed July 1, 2024. |
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190 | 198 | | 183 (20) Title 26, Chapter 36b, Inpatient Hospital Assessment Act, is repealed July 1, |
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191 | 199 | | 1842024. |
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192 | 200 | | 185 (21) Title 26, Chapter 36c, Medicaid Expansion Hospital Assessment Act, is repealed |
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193 | 201 | | 186July 1, 2024. |
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194 | 202 | | 187 (22) Title 26, Chapter 36d, Hospital Provider Assessment Act, is repealed July 1, 2024. |
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195 | 203 | | 188 (23) Section 26-39-201, which creates the Residential Child Care Licensing Advisory |
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196 | 204 | | 189Committee, is repealed July 1, 2024. |
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197 | 205 | | 190 (24) Section 26-39-405, Drinking water quality in child care centers, is repealed July 1, |
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198 | 206 | | 1912027. |
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199 | 207 | | 192 (25) Section 26-40-104, which creates the Utah Children's Health Insurance Program |
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200 | 208 | | 193Advisory Council, is repealed July 1, 2025. |
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201 | 209 | | 194 (26) Section 26-50-202, which creates the Traumatic Brain Injury Advisory |
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202 | 210 | | 195Committee, is repealed July 1, 2025. |
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203 | 211 | | 196 (27) Title 26, Chapter 54, Spinal Cord and Brain Injury Rehabilitation Fund and |
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206 | 213 | | 198 (28) Title 26, Chapter 66, Early Childhood Utah Advisory Council, is repealed July 1, |
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207 | 214 | | 1992026. |
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208 | 215 | | 200 (29) Title 26, Chapter 68, COVID-19 Vaccine Restrictions Act, is repealed July 1, |
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209 | 216 | | 2012024. |
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210 | 217 | | 202 (30) Section 26-69-406 is repealed July 1, 2025. |
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211 | 218 | | 203 (31) Subsection 26B-1-204(2)(i), related to the Residential Child Care Licensing |
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212 | 219 | | 204Advisory Committee, is repealed July 1, 2024. |
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213 | 220 | | 205 (32) Subsection 26B-1-204(2)(k), related to the Primary Care Grant Committee, is |
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214 | 221 | | 206repealed July 1, 2025. |
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215 | 222 | | 207 (33) Section 26B-1-401, regarding the Correctional Postnatal and Early Childhood |
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216 | 223 | | 208Advisory Board, is repealed July 1, 2026. |
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217 | 224 | | 209 Section 4. Section 63I-1-264 is enacted to read: |
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218 | 225 | | 210 63I-1-264. Repeal dates: Title 64. |
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220 | 228 | | 212 Section 5. Section 64-13-46 is amended to read: |
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221 | 229 | | 213 64-13-46. Pregnant inmates. |
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222 | 230 | | 214 (1) As used in this section: |
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223 | 231 | | 215 (a) "Postpartum recovery" means, as determined by the pregnant inmate's physician, |
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224 | 232 | | 216the period immediately following delivery, including the entire period the inmate is in the |
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225 | 233 | | 217hospital or health care facility after birth. |
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226 | 234 | | 218 (b) "Restraints" means any physical restraint or mechanical device used to control the |
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227 | 235 | | 219movement of an inmate's body or limbs, including flex cuffs, soft restraints, shackles, or a |
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228 | 236 | | 220convex shield. |
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229 | 237 | | 221 (c) (i) "Shackles" means metal restraints, including leg irons, belly chains, or a security |
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230 | 238 | | 222or tether chain. |
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231 | 239 | | 223 (ii) "Shackles" does not include hard metal handcuffs. |
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232 | 240 | | 224 [(1) If] (2) Subject to Subsections (3) and (4), if the staff of a correctional facility |
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235 | 242 | | 226shall, when restraining the inmate[, shall] at any time or location, use the least restrictive |
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236 | 243 | | 227restraints necessary to ensure the safety and security of the inmate and others. [This |
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237 | 244 | | 228requirement shall continue during postpartum recovery and any transport to or from a |
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238 | 245 | | 229correctional facility.] |
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239 | 246 | | 230 [(2) The staff of a correctional facility] |
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240 | 247 | | 231 (3) A correctional staff member may not use restraints on an inmate during the third |
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241 | 248 | | 232trimester of pregnancy, labor [and], or childbirth unless a correctional staff member makes an |
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242 | 249 | | 233individualized determination that there are compelling grounds to believe that the inmate |
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243 | 250 | | 234presents: |
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244 | 251 | | 235 (a) an immediate and serious risk of harm to [herself] the inmate, the inmate's infant, |
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245 | 252 | | 236medical staff, correctional staff, or the public; or |
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246 | 253 | | 237 (b) a substantial risk of escape that cannot reasonably be reduced by the use of other |
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247 | 254 | | 238existing means. |
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248 | 255 | | 239 [(3)] (4) Notwithstanding Subsection [(1) or (2)] (3), under no circumstances may |
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249 | 256 | | 240shackles, leg restraints, or waist restraints be used on an inmate during the third trimester of |
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250 | 257 | | 241pregnancy, labor [and], childbirth, or postpartum recovery [while in a medical facility]. |
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252 | 260 | | 243 (a) be stationed in a location that offers the maximum privacy to the inmate, while |
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253 | 261 | | 244taking into consideration safety and security concerns; and |
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254 | 262 | | 245 (b) be female, if practicable. |
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255 | 263 | | 246 [(5) If restraints are authorized under Subsection (1) or (2)] |
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256 | 264 | | 247 (6) If a correctional staff member authorizes restraints under Subsection (2) or (3), the |
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257 | 265 | | 248correctional staff member shall make a written record of the [decision] authorization and use of |
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258 | 266 | | 249the restraints [shall be made] that includes: |
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259 | 267 | | 250 (a) an explanation of the grounds for the correctional staff member's [determination] |
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260 | 268 | | 251authorization on the use of restraints; |
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261 | 269 | | 252 [(b) the circumstances that necessitated the use of restraints;] |
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264 | 271 | | 254 [(d)] (c) the length of time the restraints were used. |
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265 | 272 | | 255 [(6)] (7) The record [created] described in Subsection [(5)] (6): |
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266 | 273 | | 256 (a) shall be retained by the correctional facility for five years; |
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267 | 274 | | 257 (b) shall be available for public inspection with individually identifying information |
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268 | 275 | | 258redacted; and |
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269 | 276 | | 259 (c) may not be considered a medical record under state or federal law. |
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270 | 277 | | 260 (8) For a minimum of 48 hours after an inmate has given birth, a correctional facility |
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271 | 278 | | 261shall, if directed by the inmate's physician, allow the infant to remain with the inmate at the |
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272 | 279 | | 262health care facility. |
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273 | 280 | | 263 (9) A correctional facility shall provide: |
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274 | 281 | | 264 (a) an inmate who is pregnant, or who has given birth within the past six weeks, access |
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275 | 282 | | 265to a social worker to help the inmate: |
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276 | 283 | | 266 (i) arrange childcare; |
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277 | 284 | | 267 (ii) establish a reunification plan; and |
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278 | 285 | | 268 (iii) establish a substance abuse treatment plan, if needed; and |
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279 | 286 | | 269 (b) an inmate in postpartum recovery access to postpartum care for up to 12 weeks as |
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280 | 287 | | 270determined by the inmate's physician. |
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281 | 288 | | 271 [(7) As used in this section:] |
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282 | 289 | | 272 [(a) "Postpartum recovery" means, as determined by her physician, the period |
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284 | 292 | | 274medical facility after birth.] |
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285 | 293 | | 275 [(b) "Restraints" means any physical restraint or mechanical device used to control the |
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286 | 294 | | 276movement of an inmate's body or limbs, including flex cuffs, soft restraints, shackles, or a |
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287 | 295 | | 277convex shield.] |
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288 | 296 | | 278 [(c) "Shackles" means metal or iron restraints and includes hard metal handcuffs, leg |
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289 | 297 | | 279irons, belly chains, or a security or tether chain.] |
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290 | 298 | | 280 Section 6. Section 64-13-46.5 is enacted to read: |
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293 | 300 | | 282 (1) As used in this section: |
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294 | 301 | | 283 (a) "Incarcerated mother" means an inmate who gives birth after entering the |
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295 | 302 | | 284department's custody. |
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296 | 303 | | 285 (b) "Violent felony" means the same as that term is defined in Section 76-3-203.5. |
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297 | 304 | | 286 (2) If, using existing appropriations, the department creates a nursery in a correctional |
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298 | 305 | | 287facility to provide space for incarcerated mothers and infants, the department may not: |
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299 | 306 | | 288 (a) subject to Subsection (4)(a)(i), provide space in a nursery for an infant 19 months |
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300 | 307 | | 289old or older; |
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301 | 308 | | 290 (b) begin or continue operating the nursery unless the Department of Health and |
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302 | 309 | | 291Human Services certifies that the nursery is in compliance with the rules established under |
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303 | 310 | | 292Section 26B-1-401; or |
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304 | 311 | | 293 (c) subject to Subsection (4)(a)(ii), provide space in a nursery established by the |
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305 | 312 | | 294department for an incarcerated mother who has been convicted of, or has charges pending for, a |
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306 | 313 | | 295violent felony, including attempt, solicitation, or conspiracy to commit the violent felony. |
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307 | 314 | | 296 (3) If the department establishes a nursery under Subsection (2), the department shall |
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308 | 315 | | 297ensure that at least one administrator of the nursery has experience or training in early |
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309 | 316 | | 298childhood development. |
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310 | 317 | | 299 (4) The department may: |
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311 | 318 | | 300 (a) in accordance with Section 26B-1-401, request that the Correctional Postnatal and |
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312 | 319 | | 301Early Childhood Advisory Board authorize: |
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313 | 320 | | 302 (i) an infant who is 24 months old or younger to remain in a nursery; or |
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314 | 321 | | 303 (ii) an incarcerated mother who has committed a violent felony to be provided space in |
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