Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act

IIB 116TH CONGRESS 2D SESSION H. R. 7718 IN THE SENATE OF THE UNITED STATES OCTOBER 19, 2020 Received; read twice and referred to the Committee on the Judiciary AN ACT To address the health needs of incarcerated women related to pregnancy and childbirth, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 2 HR 7718 RFS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Protecting the Health 2 and Wellness of Babies and Pregnant Women in Custody 3 Act’’. 4 SEC. 2. DATA COLLECTION. 5 (a) IN GENERAL.—Beginning not later than 1 year 6 after the date of the enactment of this Act, pursuant to 7 the authority under section 302 of the Omnibus Crime 8 Control and Safe Streets Act of 1968 (34 U.S.C. 10132), 9 the Director of the Bureau of Justice Statistics shall in- 10 clude in the National Prisoner Statistics Program and An- 11 nual Survey of Jails statistics relating to the health needs 12 of incarcerated pregnant women in the criminal justice 13 system at the Federal, State, tribal, and local levels, in- 14 cluding— 15 (1) demographic and other information about 16 incarcerated women who are pregnant, in labor, or 17 in postpartum recovery, including the race, ethnicity, 18 and age of the pregnant woman; 19 (2) the provision of pregnancy care and services 20 provided for such women, including— 21 (A) whether prenatal, delivery, and post- 22 delivery check-up visits were scheduled and pro- 23 vided; 24 (B) whether a social worker, psychologist, 25 doula or other support person, or pregnancy or 26 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 3 HR 7718 RFS parenting program was offered and provided 1 during pregnancy and delivery; 2 (C) whether a nursery or residential pro- 3 gram to keep mothers and infants together 4 post-delivery was offered and whether such a 5 nursery or residential program was provided; 6 (D) the number of days the mother stayed 7 in the hospital post-delivery; 8 (E) the number of days the infant re- 9 mained with the mother post-delivery; and 10 (F) the number of days the infant re- 11 mained in the hospital after the mother was 12 discharged; 13 (3) the location of the nearest hospital with a 14 licensed obstetrician-gynecologist in proximity to 15 where the inmate is housed and the length of travel 16 required to transport the inmate; 17 (4) whether a written policy or protocol is in 18 place to respond to unexpected childbirth, labor, de- 19 liveries, and medical complications related to the 20 pregnancies of incarcerated pregnant women and for 21 incarcerated pregnant women experiencing labor or 22 medical complications related to pregnancy outside 23 of a hospital; 24 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 4 HR 7718 RFS (5) the number of incarcerated women who are 1 determined by a health care professional to have a 2 high-risk pregnancy; 3 (6) the total number of incarcerated pregnant 4 women and the number of incarcerated women who 5 became pregnant while incarcerated; 6 (7) the number of incidents in which an incar- 7 cerated woman who is pregnant, in labor, or in 8 postpartum recovery is placed in restrictive housing, 9 the reason for such restriction or placement, and the 10 circumstances under which each incident occurred, 11 including the duration of time in restrictive housing, 12 during— 13 (A) pregnancy; 14 (B) labor; 15 (C) delivery; 16 (D) postpartum recovery; and 17 (E) the 6-month period after delivery; and 18 (8) the disposition of the custody of the infant 19 post-delivery. 20 (b) PERSONALLY IDENTIFIABLE INFORMATION.— 21 Data collected under this paragraph may not contain any 22 personally identifiable information of any incarcerated 23 pregnant woman. 24 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 5 HR 7718 RFS SEC. 3. CARE FOR FEDERALLY INCARCERATED WOMEN RE- 1 LATED TO PREGNANCY AND CHILDBIRTH. 2 (a) IN GENERAL.—The Director of the Bureau of 3 Prisons shall ensure that appropriate services and pro- 4 grams are provided to women in custody, to address the 5 health and safety needs of such women related to preg- 6 nancy and childbirth. The warden of each Bureau of Pris- 7 ons facility that houses women shall ensure that these 8 services and programs are implemented for women in cus- 9 tody at that facility. 10 (b) SERVICES AND PROGRAMS PROVIDED.—The Di- 11 rector of the Bureau of Prisons shall ensure that the fol- 12 lowing services and programs are available to women in 13 custody: 14 (1) ACCESS TO COMPLETE APPROPRIATE 15 HEALTH SERVICES FOR THE LIFE CYCLE OF 16 WOMEN.—The Director of the Bureau of Prisons 17 shall provide to each woman in custody who is of re- 18 productive age pregnancy testing, contraception, and 19 testing for sexually transmitted diseases and provide 20 each woman with the option to decline such services. 21 (2) COMPLIANCE WITH PROTOCOLS RELATING 22 TO HEALTH OF A PREGNANT WOMAN.—On confirma- 23 tion of the pregnancy of a woman in custody by clin- 24 ical diagnostics and assessment, the chief health 25 care professional of a Bureau of Prisons facility that 26 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 6 HR 7718 RFS houses women shall ensure that a summary of all 1 appropriate protocols directly pertaining to the safe- 2 ty and well-being of the woman are provided to the 3 woman and that such protocols are complied with, 4 including an assessment of undue safety risks and 5 necessary changes to accommodate the woman where 6 and when appropriate, as it relates to— 7 (A) housing or transfer to a lower bunk for 8 safety reasons; 9 (B) appropriate bedding or clothing to re- 10 spond to a woman’s changing physical require- 11 ments and the temperature in housing units; 12 (C) regular access to water and bathrooms; 13 (D) a diet that complies with the nutri- 14 tional standards established by the Secretary of 15 Agriculture and the Secretary of Health and 16 Human Services in the Dietary Guidelines for 17 Americans report published pursuant to section 18 301 of the National Nutrition Monitoring and 19 Related Research Act of 1990 (7 U.S.C. 20 5341(a)(3)), and that includes— 21 (i) any appropriate dietary supple- 22 ment, including prenatal vitamins; 23 (ii) timely and regular nutritious 24 meals; 25 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 7 HR 7718 RFS (iii) additional caloric content in 1 meals provided; 2 (iv) a prohibition on withholding food 3 from an incarcerated pregnant woman or 4 serving any food that is used as a punish- 5 ment, including nutraloaf or any food simi- 6 lar to nutraloaf that is not considered a 7 nutritious meal; and 8 (v) such other modifications to the 9 diet of the woman as the Director of the 10 Bureau of Prisons determines to be nec- 11 essary after consultation with the Sec- 12 retary of Health and Human Services and 13 consideration of such recommendations as 14 the Secretary may provide; 15 (E) modified recreation and transpor- 16 tation, in accordance with standards within the 17 obstetrical and gynecological care community, 18 to prevent overexertion or prolonged periods of 19 inactivity; and 20 (F) such other changes to living conditions 21 as the Director of the Bureau of Prisons may 22 require after consultation with the Secretary of 23 Health and Human Services and consideration 24 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 8 HR 7718 RFS of such recommendations as the Secretary may 1 provide. 2 (3) EDUCATION AND SUPPORT SERVICES.— 3 (A) PREGNANCY IN CUSTODY.—In the case 4 of a woman who is pregnant at intake or who 5 becomes pregnant while in custody, that woman 6 shall, at intake or not later than 48 hours after 7 pregnancy is confirmed, as appropriate, receive 8 prenatal education, counseling, and birth sup- 9 port services provided by a provider trained to 10 provide such services, including— 11 (i) information about the parental 12 rights of the woman, including the right to 13 place the child in kinship care, and notice 14 of the rights of the child; 15 (ii) information about family preserva- 16 tion support services that are available to 17 the woman; 18 (iii) information about the nutritional 19 standards referred to in paragraph (2)(D); 20 (iv) information pertaining to the 21 health and safety risks of pregnancy, child- 22 birth, and parenting, including postpartum 23 depression; 24 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 9 HR 7718 RFS (v) information on breastfeeding, lac- 1 tation, and breast health; 2 (vi) appropriate educational materials, 3 resources, and services related to preg- 4 nancy, childbirth, and parenting; 5 (vii) information and notification serv- 6 ices for incarcerated parents regarding the 7 risk of debt repayment obligations associ- 8 ated with their child’s participation in so- 9 cial welfare programs, including assistance 10 under any State program funded under 11 part A of title IV of the Social Security 12 Act (42 U.S.C. 601 et seq.) or benefits 13 under the supplemental nutrition assist- 14 ance program, as defined in section 3 of 15 the Food and Nutrition Act of 2008 (7 16 U.S.C. 2012), or any State program car- 17 ried out under that Act; and 18 (viii) information from the Office of 19 Child Support Enforcement of the Depart- 20 ment of Health and Human Services re- 21 garding seeking or modifying child support 22 while incarcerated, including how to par- 23 ticipate in the Bureau of Prison’s Inmate 24 Financial Responsibility Program under 25 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 10 HR 7718 RFS subpart B of title 28, Code of Federal 1 Regulations (or any successor program). 2 (B) BIRTH WHILE IN CUSTODY OR PRIOR 3 TO CUSTODY.—In the case of a woman who 4 gave birth in custody or who experienced any 5 other pregnancy outcome during the 6-month 6 period immediately preceding intake, that 7 woman shall receive counseling provided by a li- 8 censed or certified provider trained to provide 9 such services, including— 10 (i) information about the parental 11 rights of the woman, including the right to 12 place the child in kinship care, and notice 13 of the rights of the child; and 14 (ii) information about family preserva- 15 tion support services that are available to 16 the woman. 17 (4) TESTING.—Not later than 1 day after an 18 incarcerated woman notifies an employee of the Bu- 19 reau of Prisons that the woman may be pregnant, 20 a Bureau of Prisons healthcare care professional 21 shall administer a pregnancy test to determine 22 whether the woman is pregnant. 23 (5) EVALUATIONS.—Each woman in custody 24 who is pregnant or whose pregnancy results in a 25 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 11 HR 7718 RFS birth or any other pregnancy outcome during the 6- 1 month period immediately preceding intake or any 2 time in custody thereafter shall be evaluated not 3 later than 4 days after intake or confirmation of 4 pregnancy through evidence-based screening and as- 5 sessment for substance use disorders or mental 6 health conditions, including postpartum depression 7 or depression related to a pregnancy outcome or 8 early child care. Screening shall include identifica- 9 tion of any of the following risk factors: 10 (A) An existing mental or physical health 11 condition or substance use disorder. 12 (B) Being underweight or overweight. 13 (C) Multiple births or a previous still birth. 14 (D) A history of preeclampsia. 15 (E) A previous Caesarean section. 16 (F) A previous miscarriage. 17 (G) Being older than 35 or younger than 18 15. 19 (H) Being diagnosed with the human im- 20 munodeficiency virus, hepatitis, diabetes, or hy- 21 pertension. 22 (I) Such other risk factors as the chief 23 health care professional of a Bureau of Prisons 24 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 12 HR 7718 RFS facility that houses women may determine to be 1 appropriate. 2 (6) UNEXPECTED BIRTHS RULEMAKING.—Not 3 later than 180 days after the date of enactment of 4 this Act, the Attorney General shall make rules es- 5 tablishing procedures for responding to unexpected 6 childbirth deliveries, labor complications, and med- 7 ical complications related to pregnancy if a woman 8 in custody is unable to access a hospital in a timely 9 manner. 10 (7) TREATMENT.—In the case of any woman in 11 custody who, after an evaluation under paragraph 12 (4), is diagnosed as having a substance use disorder 13 or a mental health disorder, that woman shall be en- 14 titled to treatment in accordance with the following: 15 (A) Treatment shall include participation 16 in a support group, including a 12-step pro- 17 gram, such as Alcoholics Anonymous, Narcotics 18 Anonymous, and Cocaine Anonymous or a com- 19 parable nonreligious program. 20 (B) Treatment may include psychosocial 21 interventions and medication. 22 (C) In the case that adequate treatment 23 cannot be provided to a woman in custody in a 24 Bureau of Prisons facility, the Director of the 25 VerDate Sep 11 2014 01:17 Oct 20, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H7718.RFS H7718 pamtmann on DSKBC07HB2PROD with BILLS 13 HR 7718 RFS Bureau of Prisons shall transfer the woman to 1 a residential reentry program that offers such 2 treatment pursuant to section 508 of the Public 3 Health Service Act (42 U.S.C. 290bb–1). 4 (D) To the extent practicable, treatment 5 for substance use disorders provided pursuant 6 to this section shall be conducted in a licensed 7 hospital. 8 SEC. 4. USE OF RESTRICTIVE HOUSING AND RESTRAINTS 9 ON INCARCERATED PREGNANT WOMEN DUR- 10 ING PREGNAN [Text truncated for display. Full text available on Congress.gov.]