2023 Pennsylvania Consolidated & Unconsolidated Statutes
Act 47 - PRISONS AND PAROLE CODE (61 PA.C.S.) - OMNIBUS AMENDMENTS
Session of 2023
No. 2023-47
HB 900
AN ACT
Amending Title 61 (Prisons and Parole) of the Pennsylvania Consolidated Statutes, in general administration, further providing for State recording system for application of restraints to pregnant prisoners or detainees; in county correctional institutions, further providing for county recording system for application of restraints to pregnant prisoners or detainees; providing for Department of Human Services facilities; and, in miscellaneous provisions, further providing for healthy birth for incarcerated women and providing for restrictive housing prohibited for pregnant or postpartum incarcerated individuals and detainees, for cavity search and inspection restrictions, for training and education requirement, for feminine hygiene and incontinence products and for postpartum recovery.
The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
Section 1. Sections 1104 and 1758 heading, (a) and (b) of Title 61 of the Pennsylvania Consolidated Statutes are amended to read:
§ 1104. State recording system [for application of restraints] relating to pregnant [prisoners] and postpartum incarcerated individuals or detainees.
(a) General rule.--[A correctional institution as defined by section 5905(e) (relating to healthy birth for incarcerated women) shall report each restraint applied to a pregnant prisoner or detainee. The report must be in writing and must note the number of restraints. Individual, separate written findings for each restraint must accompany the report. This shall include reports from the following:] A correctional institution shall, in writing, report each restraint applied to a pregnant, laboring or postpartum individual in the correctional institution's custody, as well as any instance where a pregnant, laboring or postpartum individual is placed in restrictive housing. The report shall note the number and type of restraints or, in the case of restrictive housing, the length of time the individual was placed in restrictive housing. The provisions of this subsection shall apply to any person tasked with transporting or housing incarcerated individuals or detainees. Reports shall be made as follows:
(1) A correctional institution that is not operated, supervised or licensed by the Department of [Public Welfare] Human Services pursuant to the act of June 13, 1967 (P.L.31, No.21), known as the [Public Welfare] Human Services Code, shall make the report to the secretary.
(2) A correctional institution that is operated, supervised or licensed by the Department of [Public Welfare] Human Services pursuant to the [Public Welfare] Human Services Code shall make the report to the Secretary of [Public Welfare] Human Services.
(b) Contents of [written findings.--Written findings] report.--Reports of each restraint or placement of a pregnant, laboring or postpartum individual in restrictive housing as required under subsection (a) must include the following:
[(1) the circumstances that led to the determination that the prisoner or detainee represented a substantial risk of imminent flight; or
(2) the circumstances that led to the determination that other extraordinary medical or security circumstances dictated the prisoner or detainee be restrained to ensure the safety and security of the prisoner or detainee, the staff of the correctional institution or medical facility, other prisoners or detainees or the public.]
(2.1) The circumstances that led to the determination that:
(i) the pregnant, laboring or postpartum individual represented a substantial risk of imminent flight; or
(ii) other extraordinary medical or security circumstances dictated that the pregnant, laboring or postpartum individual be restrained or placed in restrictive housing to ensure the safety and security of the pregnant, laboring or postpartum individual, the staff of the correctional institution or medical facility, other incarcerated individuals or detainees or the public.
(3) The date and time restraints were applied or the restrictive housing placement occurred and the length of time the pregnant, laboring or postpartum individual was kept in restraints or restrictive housing.
(4) The badge number or identification number of the following:
(i) The custodian or staff member who applied the restraints or placed the individual into restrictive housing.
(ii) Any superior officers approving or advising the application of restraints or placement in restrictive housing.
(5) The number and type of restraints used or the location and description of the restrictive housing.
(6) Any visible injury of the pregnant, laboring or postpartum individual resulting from placement in the restraints that is documented by the correctional institution.
(c) Staff presence during labor.--Other than licensed medical professionals, only female staff shall be present in the room during the examination, labor or delivery of the pregnant incarcerated individual. If male staff, other than licensed medical professionals, remain present during the examination, labor or delivery of the pregnant incarcerated individual, that information and the reasons for the presence shall be reported to the department or the Department of Human Services, as applicable.
(d) Availability of reports.--The nonidentifying data contained in the written reports submitted to the department or the Department of Human Services shall be posted on the department's or the Department of Human Services' publicly accessible Internet website annually. No identifying information, such as names or dates of birth, shall be posted.
(e) Failure to submit report.--If a correctional institution fails to submit a report under this section within 30 days after the end of the fiscal year, the department or the Department of Human Services, as applicable, shall obtain a certification, to be created by the department or the Department of Human Services, as applicable, from the correctional institution verifying that the correctional institution had zero instances of use of restraints, placement in restrictive housing or male staff presence, other than licensed medical professionals, during medical examinations or appointments of pregnant incarcerated individuals under the provisions of this section.
(f) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:
"Correctional institution." As defined in section 5905(e)(relating to healthy birth for incarcerated women).
"Postpartum." The eight-week period, or longer as determined by the health care professional responsible for the health and safety of the incarcerated individual or detainee, following childbirth.
"Restraints." Any physical or mechanical device used to restrict or control the movement of an incarcerated individual's body, limbs or both.
"Restrictive housing." Placement in an area or group of cells designated to house individuals assigned to disciplinary or administrative custody in which out-of-cell time is limited to less than two hours per day.
"Staff." An individual who is employed or contracted by a correctional institution, the department or the Department of Human Services.
§ 1758. County recording system for [application of restraints to pregnant prisoners] pregnant and postpartum incarcerated individuals or detainees.
(a) General rule.--[The application of restraints to a pregnant prisoner or detainee occurring pursuant to section 5905 (relating to healthy birth for incarcerated women) shall constitute an incident that qualifies as an extraordinary occurrence that must be reported to the department in the County Extraordinary Occurrence Monthly Report.] Each of the following shall constitute an incident that qualifies as an extraordinary occurrence that must be reported to the department in the County Extraordinary Occurrence Monthly Report in accordance with sections 5905 (relating to healthy birth for incarcerated women) and 5905.1 (relating to restrictive housing prohibited for pregnant or postpartum incarcerated individuals and detainees):
(1) The application of restraints or placement in restrictive housing for a pregnant or postpartum incarcerated individual or detainee.
(2) An invasive body cavity search of a pregnant or postpartum incarcerated individual or detainee or inspection of a female incarcerated individual or detainee in a state of undress.
(3) The presence of male staff during labor or delivery of the pregnant incarcerated individual or detainee.
(b) Information to be included in County Extraordinary Occurrence Monthly Report.--
[(1) Any and all incidents where the application of restraints to a pregnant prisoner or detainee pursuant to section 5905 occurred must be included in the County Extraordinary Occurrence Monthly Report that is submitted to the department. An indication of the incidents must be noted on the designated report form or other available approved method, if applicable, and individual, separate written findings must accompany the form for each incident that occurred.
(2) Written findings of each incident as required under paragraph (1) must include the following:
(i) the circumstances that led to the determination that the prisoner or detainee represented a substantial risk of imminent flight; or
(ii) the circumstances that led to the determination that other extraordinary medical or security circumstances dictated the prisoner or detainee be restrained to ensure the safety and security of the prisoner or detainee, the staff of the correctional institution or medical facility, other prisoners or detainees or the public.]
(3) The report for application of restraints or placement in restrictive housing for a pregnant or postpartum incarcerated individual or detainee shall require the following information:
(i) The circumstances that led to the determination that:
(A) the incarcerated individual or detainee represented a substantial risk of imminent flight; or
(B) other extraordinary medical or security circumstances dictated that the incarcerated individual or detainee be restrained or placed in restrictive housing to ensure the safety and security of the incarcerated individual or detainee, the staff of the correctional institution or medical facility, other incarcerated individuals or detainees or the public.
(ii) The date and time restraints were applied or the restrictive housing placement occurred and the length of time the incarcerated individual or detainee was kept in restraints or restrictive housing.
(iii) The badge number or identification number of the following:
(A) The custodian or staff member who applied the restraints or placed the individual into restrictive housing.
(B) Any superior officers approving or advising the application of restraints or placement in restrictive housing.
(iv) The number and type of restraints used or the location and description of the restrictive housing.
(v) Any visible injury of the incarcerated individual or detainee resulting from placement in the restraints that is documented by the correctional institution.
(4) The report for an invasive body cavity search of a pregnant or postpartum incarcerated individual or detainee or inspection of a female incarcerated individual or detainee in a state of undress shall contain the following information:
(i) The justification for performing a cavity search or male staff inspection of a female incarcerated individual or detainee in a state of undress.
(ii) The identification of any contraband that was found on the incarcerated individual or detainee.
(5) The report for the presence of male staff during labor or delivery of the pregnant incarcerated individual or detainee shall include the reasons for the presence of male staff.
(6) The nonidentifying data contained in the written reports submitted to the department or the Department of Human Services shall be posted annually on the publicly accessible Internet website of the department or the Department of Human Services. No identifying information, such as names or dates of birth, shall be posted.
(7) If a correctional institution fails to submit a report under this section within 30 days after the end of the fiscal year, the department or the Department of Human Services, as applicable, shall obtain a certification, to be created by the department or the Department of Human Services, as applicable, from the correctional institution verifying that the institution had zero instances of use of restraints, placement in restrictive housing or male staff presence, other than licensed medical professionals, during medical examinations or appointments of pregnant incarcerated individuals under the provisions of this section.
* * *
Section 2. Title 61 is amended by adding a chapter to read:
CHAPTER 57
DEPARTMENT OF HUMAN SERVICES FACILITIES
Sec.
5701. Definitions.
5702. Seclusion prohibited for pregnant or postpartum child.
5703. Body cavity search and inspection restrictions.
5704. Training and education requirement.
5705. (Reserved).
5706. Menstrual hygiene and incontinence products.
5707. Postpartum recovery.
5708. Reports relating to pregnant or postpartum child.
§ 5701. Definitions.
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
"Body cavity search." An invasive search of a child conducted by staff in search of contraband, excluding the nose, ears and mouth.
"Child." As follows:
(1) An individual who resides in an entity licensed or operated by the department and meets one of the following conditions:
(i) Is under 18 years of age.
(ii) Is under 21 years of age and committed an act of delinquency before reaching 18 years of age and remains under the jurisdiction of the juvenile court.
(iii) Was adjudicated dependent before reaching 18 years of age and while engaged in instruction or treatment, requests the court to retain jurisdiction until the instruction or treatment is completed, but a child may not remain in a course of instruction or treatment past 21 years of age.
(iv) Has an intellectual disability, a mental illness or a serious emotional disturbance, with a transfer plan to move to an adult setting by 21 years of age.
(2) The term does not include a child in foster care as provided in 42 U.S.C. Ch. 7 Subch. IV (relating to grants to states for aid and services to needy families with children and for child-welfare services).
"Department." The Department of Human Services of the Commonwealth.
"Facility." Except as exempted by regulation, a premise or part of a premise serving children who are adjudicated either dependent or delinquent and meeting one of the following conditions:
(1) Operated for a portion of a 24-hour day in which alternative education, intervention or support programs are provided to one or more children to prevent a child's placement in a more restrictive setting or to facilitate the child's reunification with the child's family.
(2) Operated in a 24-hour living setting in which care is provided for one or more children who are not relatives of the facility operator.
"Health care professional." An individual who is licensed, certified or otherwise authorized or permitted by the laws of this Commonwealth to administer health care in the ordinary course of business or in the practice of a profession.
"Menstrual hygiene products." As follows:
(1) Products relating to bodily functions that are used during menstruation.
(2) The term includes tampons and sanitary pads.
"Postpartum." An eight-week period or a longer period as determined by the health care professional responsible for the health and safety of the child following childbirth.
"Restraints." Any physical or mechanical device used to restrict or control the movement of a child's body or limbs or both.
"Seclusion." As follows:
(1) The removal of a resident from the resident's immediate environment and restricting the resident alone in a room or area.
(2) The term does not include an occasion when:
(i) An employee of a facility remains in the seclusion area with the resident.
(ii) A resident is voluntarily restricted to an area or room.
(iii) All residents are required to be in their rooms or another room or area as part of the program schedule.
"Staff." An individual who is employed by a facility.
"State of undress." A state where a child is partially or fully naked, either in the shower, toilet areas, a medical examination room or while a body cavity search is being conducted.
"Substantial risk of imminent flight." A showing of real and considerable risk of escaping by a child from a facility.
"Trauma-informed care." A strengths-based approach to service delivery and organizational structure that:
(1) Realizes the widespread impact of trauma, including historical trauma.
(2) Understands potential paths to recovery.
(3) Recognizes the signs and symptoms of trauma in a child, parent, legal guardian, staff or another involved in the system.
(4) Responds by fully integrating knowledge about trauma into policies, procedures, practices and relationships.
(5) Seeks to actively prevent retraumatization.
§ 5702. Seclusion prohibited for pregnant or postpartum child.
(a) General rule.--Except as provided under subsection (c), a pregnant or postpartum child may not be involuntarily placed in seclusion in any facility in this Commonwealth.
(b) Alternative discipline.--Forms of discipline for a pregnant or postpartum child shall be limited to sanctions, including restrictions on telephone usage or visitation or other common forms of alternative discipline used in the United States.
(c) Exceptions.--A pregnant or postpartum child may be placed in seclusion only as a temporary response to behavior that poses a serious and immediate risk of physical harm to the pregnant or postpartum child, another child, the unborn child of the pregnant child or staff. The following apply:
(1) The decision to place a pregnant or postpartum child in seclusion under this subsection must be approved by the individual in charge of the facility.
(2) The rationale for the decision to use seclusion must be documented as required by section 5708 (relating to reports relating to pregnant or postpartum child).
(3) No period of seclusion in excess of seven days may be approved.
(d) Bed assignments.--The facility may not assign a pregnant child to any bed that is elevated more than three feet from the floor of the facility.
§ 5703. Body cavity search and inspection restrictions.
(a) Body cavity search and inspection restrictions.--To the greatest extent possible:
(1) Only a health care professional shall conduct an invasive body cavity search of a pregnant child.
(2) If a search is required, staff shall accommodate the child's stated preference regarding the gender of the staff to be present in the room during the search except in cases of exigent circumstances as determined by the facility director or designee.
(b) Documentation requirement.--If a health care professional is required to perform an invasive body cavity search on a pregnant child, or the child's stated preference regarding the gender of the staff present in the room during a search while the child is in a state of undress is not met, staff shall submit a written report to the individual in charge of the facility within 72 hours following the body cavity search or inspection. The report under this subsection shall:
(1) Include the justification for performing the body cavity search or failing to honor the child's stated preference regarding the gender of the staff performing the inspection.
(2) Note if any contraband was found on the child.
(3) Be sent to the department.
§ 5704. Training and education requirement.
(a) Facility staff training.--The facility shall provide or arrange a training program for staff who have contact with a pregnant, laboring or postpartum child. The training program shall be related to the physical and mental health of the pregnant or postpartum child and unborn baby, including:
(1) The general care of a pregnant child.
(2) The impact of restraints on a pregnant child and unborn baby.
(3) The impact of being placed in seclusion on a pregnant child.
(4) The impact of invasive searches on a pregnant child.
(5) Any other pertinent information the department finds appropriate or necessary.
(b) Facility staff training exceptions.--If the facility prohibits the placement of a pregnant child as a matter of policy, the facility may submit a written exemption reporting that there is no risk of staff interacting with a pregnant child housed in the facility. The following apply:
(1) The exemption under this subsection shall apply only to the facility, not the individual staff of the facility.
(2) All facility staff that come in contact with a pregnant child shall complete the training under this section.
(3) If facility staff work at more than one institution, the staff must receive the required training at the nonexempt facility.
(c) Education programming for a pregnant child.--The facility shall develop and provide educational programming for a pregnant or postpartum child. The educational programming shall be related to:
(1) Medical screenings related to reproductive and overall health, including preventive screenings.
(2) Prenatal care.
(3) Pregnancy-specific hygiene.
(4) The impact of alcohol and drugs on the unborn baby.
(5) General health of the unborn baby.
(6) Any other pertinent information the department finds appropriate or necessary.
(d) Trauma-informed care.--
(1) The individual in charge of a facility shall, as necessary, ensure that the facility provides quality trauma-informed care to a child.
(2) Trauma-informed care for a child shall begin immediately upon the child's intake and assessment at a facility.
(3) Facility staff shall have no fewer than four hours of professional training related to trauma-informed care, which shall include the following:
(i) Training to identify a child with trauma.
(ii) Training on how and when to refer a child to the proper health care professionals, including preventive health care and mental health care.
(iii) Training on how to interact with and empower a child who has experienced trauma.
§ 5705. (Reserved).
§ 5706. Menstrual hygiene and incontinence products.
(a) Issuance of menstrual hygiene products.--
(1) A facility shall supply menstrual hygiene products each month to a child who is menstruating at no cost to the child regardless of financial means.
(2) A child may not be required to show proof of need or to undergo a medical examination or obtain a medical permit, authorization or diagnosis to receive the products under subsections (b) and (c).
(b) Menstrual hygiene products provided.--A choice of at least two sizes or absorbencies of sanitary pads and tampons shall be available to a child who is menstruating in a facility or if requested from medical staff.
(c) Issuance of hygiene products related to bladder control and incontinence.--A supply of products for bladder control and incontinence, including adult diapers and protective undergarments, shall be provided to a child, including a postpartum child, who requires the products each month at no cost to the child, regardless of financial means.
§ 5707. Postpartum recovery.
(a) Restraints during postpartum recovery.--No restraints shall be used on any child who has given birth within the last 30 days and is in postpartum recovery, unless the department has a reasonable belief that the child will harm the child, the child's newborn or another individual or pose a substantial risk of imminent flight. If restraints are used, the staff ordering the use of restraints on a child while in postpartum recovery shall submit a written report to the individual in charge of the facility within 72 hours following the use of the restraints, containing the justification for restraining the child during postpartum recovery. The report shall also be sent to the department.
(b) Postdelivery bonding period.--Subject to hospital policy, following the delivery of a newborn, the department shall permit the newborn to remain with the child at the hospital for 72 hours unless a health care professional has a reasonable belief that the newborn remaining with the child poses a health or safety risk to the newborn.
(c) Nutritional and hygiene products.--During the 72-hour period under subsection (b), the department shall make available the necessary nutritional and hygiene products to care for the newborn.
§ 5708. Reports relating to pregnant or postpartum child.
(a) Requirement.--A facility shall, in writing, report to the department on each restraint applied to a pregnant, laboring or postpartum child in the facility's custody. The following apply:
(1) The report shall note the number and type of restraints.
(2) The provisions of this subsection shall apply to any person tasked with transporting or housing a pregnant or postpartum child.
(b) Contents of report.--Reports of each restraint or placement of a child as required under subsection (a) must include the following:
(1) The circumstances that led to the determination that the child represented a substantial risk of imminent flight.
(2) The circumstances that led to the determination that other extraordinary medical or security circumstances dictated that the child be restrained to ensure the safety and security of the child, the staff of the facility or medical facility, another child or the public.
(3) The date and time restraints were applied and the length of time the child was kept in restraints.
(4) The number and type of restraints used.
(5) Any physical effects on the child or the unborn baby of a child resulting from placement in the restraints.
(c) Staff presence during labor.--If staff presence is required, staff shall accommodate the child's stated preference regarding the gender of the staff to be present in the room during the examination, labor or delivery of the pregnant child, except in cases of exigent circumstances as determined by the facility director or designee.
(d) Availability of reports.--The nonidentifying data contained in the reports submitted to the department shall be posted on the department's publicly accessible Internet website annually. No identifying information, such as names or dates of birth, shall be posted.
Section 3. Section 5905 of Title 61 is amended to read:
§ 5905. Healthy birth for incarcerated women.
(a) Duties of correctional institution.--Consistent with established policy and practice, it shall be the duty and responsibility of the correctional institution to provide adequate personnel to monitor the pregnant [prisoner] incarcerated individual or detainee during transport to and from the medical facility and during her stay at the medical facility.
(b) Restraint of pregnant [prisoners] incarcerated individuals and detainees.--
(1) Unless provided in paragraph (2), a correctional institution shall not apply restraints, including handcuffs, to [a prisoner] an incarcerated individual or detainee known to be pregnant during any stage of labor[, any pregnancy-related medical distress, any period of delivery,] or any period of postpartum as defined in [subsection (e) or transport to a medical facility as a result of any of the preceding conditions or transport to a medical facility after the beginning of the second trimester of pregnancy.] section 1104(f) (relating to State recording system relating to pregnant and postpartum incarcerated individuals or detainees).
(2) Paragraph (1) shall not bar reasonable restraint provided the correctional institution staff assigned to the [prisoner] incarcerated individual or detainee makes an individualized determination that the [prisoner] incarcerated individual or detainee presents a substantial risk of imminent flight or some other extraordinary medical or security circumstance dictates that the [prisoner] incarcerated individual or detainee be restrained to ensure the safety and security of the [prisoner] incarcerated individual or detainee, the staff of the correctional institution or medical facility, other [prisoners] incarcerated individuals or detainees or the public. The assigned correctional institution staff shall report the incident to the correctional institution in a reasonable amount of time after the restraint occurs. [If the assigned correctional institution staff is not employed by the correctional institution, then the assigned correctional institution staff] In the case of any use of restraints on a pregnant or postpartum incarcerated individual by an individual or entity that is not employed by the correctional institution but is transporting the pregnant or postpartum incarcerated individual on behalf of the correctional institution, the individual or entity shall report the restraint to the correctional institution in a reasonable amount of time after the incident occurs. The reporting requirement shall not apply to a law enforcement agency unless the law enforcement agency is transporting pregnant or postpartum incarcerated individuals on behalf of the correctional institution.
(3) If restraint is applied under paragraph (2), at no time shall the [prisoner] incarcerated individual or detainee be left unattended by a correctional institution staff with the ability to release the restraint should a release become medically necessary.
(4) When a restraint is permitted under this section, a correctional institution shall use the least restrictive restraint necessary when the facility has actual or constructive knowledge that [a prisoner] an incarcerated individual or detainee is in the second or third trimester of pregnancy.
(c) Restraints.--The following shall apply to [a prisoner] an incarcerated individual or detainee who has been restrained under this subsection:
(1) The correctional institution staff accompanying the [prisoner] incarcerated individual or detainee shall [immediately] promptly remove all restraints upon request of a doctor, nurse or other health care professional.
(2) Leg or waist restraints shall not be used on any [prisoner] incarcerated individual or detainee who is in labor.
(3) The type of restraint applied and the application of the restraint shall be done in the least restrictive manner possible.
[(d) Annual report.--No later than August 1 of each year, the secretary and the Secretary of Public Welfare shall each submit to the Governor's Office a written report containing information regarding the use of restraints on any pregnant prisoner or detainee during the preceding fiscal year specifically identifying and enumerating the circumstances that led to the determination that the prisoner or detainee fell under the exception in subsection (b)(2). The secretary shall report on pregnant prisoners or detainees in the custody of correctional institutions operated, supervised or licensed by the department. The Secretary of Public Welfare shall report on pregnant prisoners or detainees in the custody of correctional institutions operated, supervised or licensed by the Department of Public Welfare pursuant to the act of June 13, 1967 (P.L.31, No.21), known as the Public Welfare Code. The reports shall not contain any identifying information of any prisoner or detainee. The reports shall be posted on the Governor's Internet website and shall be made available for public inspection at the offices of the department and the Department of Public Welfare, respectively.]
(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:
"Correctional institution." Any entity under the authority of the state or any county or municipality that has the power to detain and restrain a person under the laws of this Commonwealth.
"Detainee." Includes any person detained under the immigration laws of the United States at any correctional facility.
["Labor." The period of time before a birth during which contractions are of sufficient frequency, intensity and duration to bring about effacement and progressive dilation of the cervix. The determination of when labor has commenced shall rest solely with the medical providers of the prisoner or detainee.
"Postpartum." The period following delivery before a prisoner or detainee has been discharged from a medical facility.
"Prisoner." Any person incarcerated or detained in any correctional institution who is accused of, convicted of, sentenced for or adjudicated delinquent for violations of criminal law or the terms and conditions of parole, probation, pretrial release or a diversionary program.]
"Incarcerated individual." An individual incarcerated or detained in a correctional institution who is accused of, convicted of, sentenced for or adjudicated delinquent for violations of criminal law or the terms and conditions of parole, probation, pretrial release or a diversionary program.
"Restraint." Any physical hold or mechanical device used to control the movement of [a prisoner's] an incarcerated individual's or detainee's body [and] or limbs[, including, but not limited to, shackles, flex cuffs, soft restraints, hard metal handcuffs, a black box, Chubb cuffs, leg irons, belly chains, a security (tether) chain or a convex shield] or both.
Section 4. Title 61 is amended by adding sections to read:
§ 5905.1. Restrictive housing prohibited for pregnant or postpartum incarcerated individuals and detainees.
(a) Restrictive housing prohibited.--Except as provided under subsection (c), a pregnant or postpartum incarcerated individual or detainee may not be involuntarily placed in restrictive housing in any correctional institution in this Commonwealth.
(b) Alternative discipline.--Forms of discipline for pregnant and postpartum incarcerated individuals or detainees shall be limited to sanctions, including restrictions on telephone usage or visitation or other common forms of alternative discipline used in the United States.
(c) Exceptions.--A pregnant or postpartum incarcerated individual or detainee may be placed in restrictive housing only as a temporary response to behavior that poses a serious and immediate risk of physical harm to the pregnant or postpartum incarcerated individual or detainee, another incarcerated individual or detainee, the unborn child of the pregnant incarcerated individual or detainee or staff. The following shall apply:
(1) The decision to place a pregnant or postpartum incarcerated individual or detainee in restrictive housing under this subsection must be approved by the chief administrator.
(2) The rationale for the decision under this subsection must be documented as required by section 1104 (relating to State recording system relating to pregnant and postpartum incarcerated individuals or detainees).
(3) No period of restrictive housing shall exceed seven days without additional approval and documented rationale, as required by section 1104, of the chief administrator. There shall be a minimum of 24 hours between each restrictive placement absent extraordinary circumstances.
(d) Bed assignments.--The correctional institution may not assign a pregnant incarcerated individual or detainee to any bed that is elevated more than three feet from the floor of the facility.
(e) Definition.--As used in this section, the term "postpartum" means the eight-week period, or longer as determined by the health care professional responsible for the health and safety of the incarcerated individual or detainee, following childbirth.
§ 5908. Cavity search and inspection restrictions.
(a) Cavity search and inspection restrictions.--To the greatest extent possible:
(1) No staff other than a licensed health care professional shall conduct an invasive body cavity search of a pregnant or postpartum incarcerated individual or detainee.
(2) A correctional institution shall limit searches by male staff, other than medically licensed professional male staff, if a female incarcerated individual or detainee is in a state of undress.
(b) Documentation requirement.--If staff is required to perform an invasive body cavity search on a pregnant or postpartum incarcerated individual or detainee, or male staff, other than medically licensed professional male staff, is required to conduct a search on a female incarcerated individual or detainee in a state of undress, a written report shall be submitted to the correctional institution within 72 hours following the cavity search or inspection. The report under this subsection shall:
(1) include the justification for performing the cavity search or male staff inspection as required in this subsection;
(2) document and identify any contraband that was found on the incarcerated individual or detainee; and
(3) be sent to the department or the Department of Human Services, as applicable.
(c) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:
"Body cavity search." An invasive search of incarcerated individuals or detainees, conducted by staff in search of contraband, excluding the nose, ears and mouth.
"Staff." An individual, including contracted staff, who is employed by a correctional institution, the department or the Department of Human Services, excluding any licensed medical professional.
"State of undress." A state where an incarcerated or detained female is partially or fully naked, either in the shower, toilet areas, a medical examination room or while a body cavity search is being conducted.
§ 5909. Training and education requirement.
(a) Correctional institution staff training.--The department and the Department of Human Services shall jointly develop and provide correctional institutions with a training program for staff who have contact with a pregnant, laboring or postpartum incarcerated individual or detainee. The training program shall be related to the physical and mental health of the pregnant or postpartum incarcerated individual or detainee and unborn child, including:
(1) The general care of a pregnant individual.
(2) The impact of restraints on a pregnant individual and unborn child.
(3) The impact of being placed in restrictive housing on a pregnant individual.
(4) The impact of invasive searches on a pregnant individual.
(5) Any other pertinent information the department or the Department of Human Services finds appropriate or necessary.
(b) Correctional institution staff training exceptions.--If the correctional institution or county correctional institution prohibits the placement of pregnant individuals as a matter of policy, that institution may submit a written exemption reporting that there is no risk of staff interacting with pregnant individuals housed in the institution. The exemption under this subsection shall apply only to the correctional institution, not the individual staff of the institution. All correctional institution staff that come in contact with pregnant incarcerated individuals shall complete the training under this section. If correctional institution staff work at more than one institution, the staff must receive the required training at the nonexempt institution.
(c) Education programming for pregnant incarcerated individuals.--The department and the Department of Human Services shall jointly develop and provide correctional institutions and county correctional institutions with educational programming for pregnant or postpartum incarcerated individuals or detainees. The educational programming shall be related to:
(1) Medical screenings related to female reproductive and overall health, including preventive screenings.
(2) Prenatal care.
(3) Pregnancy-specific hygiene.
(4) The impact of alcohol and drugs on the unborn child.
(5) General health of the child.
(6) Any other pertinent information the department or the Department of Human Services finds appropriate or necessary.
(d) Trauma-informed care.--
(1) The chief administrator shall, as the chief administrator deems necessary, ensure that the correctional institution provides to incarcerated individuals and detainees quality trauma-informed care.
(2) Trauma-informed care for an individual shall begin immediately upon the individual's intake and assessment at a correctional institution.
(3) Correctional staff shall receive professional training, approved by the Department of Human Services, relating to trauma-informed care, which shall include the following:
(i) Training to identify individuals with trauma.
(ii) Training on how and when to refer individuals to the proper health care professionals, including preventive health care and mental health care.
(iii) Training on how to interact with and empower incarcerated individuals who have experienced trauma.
(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:
"Postpartum." The eight-week period, or longer as determined by the health care professional responsible for the health and safety of the incarcerated individual or detainee, following childbirth.
"Trauma-informed care." An organizational structure and treatment framework that involves recognizing, understanding and responding to the effects of trauma.
§ 5910. Feminine hygiene and incontinence products.
(a) Issuance of feminine hygiene products relating to menstruation.--A supply of feminine hygiene products shall be provided to all incarcerated individuals and detainees who are menstruating in a correctional institution each month at no cost to the incarcerated individuals and detainees, regardless of financial means. Incarcerated individuals and detainees shall not be required to show proof of need or to undergo a medical examination or obtain a medical permit, authorization or diagnosis to receive the products under subsection (b).
(b) Feminine hygiene products provided.--A choice of at least two sizes or absorbencies of sanitary pads shall be distributed to all incarcerated individuals and detainees who are menstruating in a correctional institution or if requested from medical staff.
(c) Feminine hygiene products to be requested.--A choice of at least two sizes of tampons shall be distributed to incarcerated individuals and detainees who request a tampon from medical staff.
(d) Issuance of feminine hygiene products relating to bladder control and incontinence.--A supply of products for bladder control and incontinence shall be provided to incarcerated individuals and detainees, including geriatric incarcerated individuals and postpartum incarcerated individuals, who require such products each month at no cost to incarcerated individuals and detainees, regardless of financial means.
(e) Bladder control and incontinence products distribution.--Adult diapers or protective undergarments shall be distributed to incarcerated individuals who require them.
(f) Rules and regulations.--The correctional institution shall promulgate rules necessary to implement and enforce the provisions of this section.
(g) Definition.--As used in this section, the term "feminine hygiene products" means products that women use during menstruation. The term includes tampons and sanitary napkins.
§ 5911. Postpartum recovery.
(a) Restraints during postpartum recovery.--No restraints shall be used on any incarcerated individual or detainee who has given birth within the last 30 days and is in postpartum recovery, unless the department or the Department of Human Services, as applicable, has a reasonable belief that the incarcerated individual or detainee will harm themselves, their newborn or another individual or pose a substantial risk of imminent flight. If restraints are used, the facility employee ordering the use of restraints on an incarcerated individual or detainee while in postpartum recovery shall submit a written report to the chief administrator of the facility within 72 hours following the use of the restraints, containing the justification for restraining the incarcerated individual or detainee during postpartum recovery. The report shall also be sent to the department or the Department of Human Services, as applicable.
(b) Postdelivery bonding period.--Following the delivery of a newborn and subject to hospital policies, including length of stay, the department or the Department of Human Services shall permit the child to remain with the mother at the hospital for up to 72 hours unless there is a reasonable belief that the child remaining with the mother presents a health or safety risk to the child.
(c) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:
"Postpartum." The eight-week period, or longer as determined by the health care professional responsible for the health and safety of the incarcerated individual or detainee, following childbirth.
"Substantial risk of imminent flight." A showing of real and considerable risk of escaping by the incarcerated individual.
Section 5. This act shall take effect in 180 days.
APPROVED--The 14th day of December, A.D. 2023.
JOSH SHAPIRO
