PRINTER'S NO. 4391
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2875
Session of
2020
INTRODUCED BY CEPHAS, JONES, T. DAVIS, SOLOMON, KINSEY,
HANBIDGE, SCHLOSSBERG, HILL-EVANS, McCLINTON, McNEILL,
SANCHEZ, MADDEN, HOWARD AND GREEN, SEPTEMBER 17, 2020
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 17, 2020
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; and, in
miscellaneous provisions, providing for restrictive housing
prohibited for pregnant or postpartum inmates and detainees,
for cavity search and inspection restrictions, for training
and education requirement, for family consideration in
placement and visitation, for feminine hygiene and
incontinence products and for postpartum recovery.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 1104 of Title 61 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 1104. State recording system for application of restraints
and restrictive housing to pregnant [prisoners] and
postpartum inmates 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
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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 of
restraints or, in the case of restrictive housing, the length of
time the individual was placed in restrictive housing.
Individual, separate written findings for each restraint and
placement of an individual in restrictive housing must accompany
the report. The provisions of this subsection shall apply to
county constables, police, sheriffs and other law enforcement
personnel. The report shall include reports from the following:
(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 of each
restraint or placement of an incarcerated or detained individual
in restrictive housing as required under subsection (a) must
include the following:
(1) [the] The circumstances that led to the
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determination that the [prisoner] inmate or detainee
represented a substantial risk of imminent flight[; or]. For
the purpose of this paragraph, substantial risk of imminent
flight shall be established by a showing of real and
considerable risk of escaping by the incarcerated individual
with the intent to avoid continued incarceration. An
individual's history of escape attempts and flight to avoid
continued incarceration may be relevant to the determination,
but history alone cannot meet the requirement.
(2) [the] The circumstances that led to the
determination that other extraordinary medical or security
circumstances dictated the [prisoner] inmate or detainee be
restrained to ensure the safety and security of the
[prisoner] inmate or detainee, the staff of the correctional
institution or medical facility, other [prisoners] inmates 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 incarcerated or detained individual was kept in
restraints or restrictive housing.
(4) The badge number or identification number of the
custodian or staff member that applied the restraints or
placed the individual into restrictive housing.
(5) The number of restraints used.
(6) Any physical or mental effects on the incarcerated
or detained individual or the unborn child of an incarcerated
or detained individual resulting from placement in the
restraints or restrictive housing as reported by a medical
professional or self-reported by the incarcerated or detained
individual.
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(7) Instances of restraints being used for transport to
or from a correctional institution. If restraints are applied
to a pregnant or postpartum individual or detainee en route
between facilities, the law enforcement or staff assigned to
escort the individual must report the use to the receiving
institution, including the badge number or identification
number of the law enforcement or staff assigned to escort the
individual. The receiving institution must then file a
written report pursuant to this subsection.
(c) Staff presence during labor.-- Only female staff shall be
present in the room during the examination, labor or delivery of
the pregnant incarcerated individual. A privacy curtain shall be
drawn between the pregnant or laboring incarcerated individual
and the female staff.
(d) Report required.--If staff remain present during the
examination, labor or delivery of the pregnant incarcerated
individual, staff shall provide the following information to the
Secretary of Human Services and the Pennsylvania Commission on
Crime and Delinquency:
(1) The badge number or identification number of the
staff who remained in the room during the medical procedure
or appointment.
(2) The duration during which the staff remained
present.
(e) Availability of written findings.--The non-identifying
data contained in the written reports submitted to the Secretary
of Human Services shall be posted on the Governor's publicly
accessible Internet website annually. No identifying
information, such as names or dates of birth, shall be posted.
(f) Failure to comply with written findings.--If a
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correctional institution fails to submit a report under this
section by the end of the fiscal year, the Secretary of Human
Services shall obtain a certification, to be created by the
Secretary of Human Services, from the correctional institution
verifying that the institution had zero instances of use of
restraints, placement in restrictive housing or male staff
presence during medical examinations or appointments of pregnant
incarcerated individuals under the provisions of this section.
The Secretary shall share all reports with the Pennsylvania
Commission on Crime and Delinquency.
(g) 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).
"Department." The Department of Corrections.
"Incarcerated individuals." Individuals who are incarcerated
in a correctional facility in this Commonwealth. The term
includes detainees, inmates and prisoners.
"Licensed medical professional." An individual licensed to
practice medicine in this Commonwealth.
"Postpartum recovery." The eight-week period, or longer as
determined by the healthcare professional responsible for the
health and safety of the incarcerated or detained person,
following childbirth.
"Restraints." Any physical or mechanical device used to
restrict or control the movement of a prisoner's body, limbs or
both.
"Restrictive housing." Any type of detention that involves
removal from the general incarcerated population for purposes of
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discipline or administrative purpose.
"Staff." An individual who is employed by a correctional
facility or the department.
Section 2. Title 61 is amended by adding sections to read:
§ 5905.1. Restrictive housing prohibited for pregnant or
postpartum inmates and detainees.
(a) Restrictive housing prohibited.--A pregnant or
postpartum incarcerated or detained individual may not be
involuntarily placed in restrictive housing in any correctional
institution in this Commonwealth except as provided in
subsection (e). Pregnant or postpartum incarcerated or detained
individuals who violate the rules and regulations of a
correctional institution shall be issued an informal resolution
of misconduct.
(b) Alternative discipline.--Forms of discipline for
pregnant and postpartum incarcerated or detained individuals
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) Hearing.--An informal hearing with a meaningful
opportunity for the pregnant or postpartum incarcerated or
detained individual to be heard shall be conducted within 24
hours of any violation of the correctional institution's rules
or regulations under subsection (a), if the privileges of a
pregnant or postpartum incarcerated or detained individual are
restricted.
(d) Conduct of hearing.--No individual involved in the
incident that is the subject of the hearing may conduct the
hearing. Nothing in this subsection shall waive any right of the
pregnant or postpartum incarcerated or detained individual to a
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formal hearing.
(e) Exceptions.--A pregnant or postpartum incarcerated or
detained individual 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 or detained individual, another incarcerated or
detained individual or the unborn child of the pregnant
incarcerated or detained individual. The following shall apply:
(1) The decision to place a pregnant or postpartum
incarcerated or detained individual in restrictive housing
under this subsection must be approved by the warden or
individual in charge of the correctional institution and a
licensed medical professional.
(2) The rationale for the decision under this subsection
must be documented as required by section 1104 (relating to
State recording system for application of restraints and
restrictive housing to pregnant and postpartum inmates or
detainees).
(3) No period of restrictive housing in excess of seven
days may be approved unless a documented assessment of the
pregnant or postpartum incarcerated or detained individual by
a licensed medical professional finds good cause for
extending the time spent in restrictive housing and is
approved by the warden or individual in charge of the
facility. A copy of the assessment under this paragraph shall
be placed in the inmate's or detainee's medical file and
history file with 24 hours of the placement of the pregnant
or postpartum incarcerated or detained individual in
restrictive housing under this subsection.
§ 5908. Cavity search and inspection restrictions.
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(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 incarcerated individual or detainee.
(2) A correctional institution shall limit inspections
by male staff where a female incarcerated individual or
detainee is in a state of undress.
(b) Documentation requirement.--If staff is required to
perform an invasive cavity search on a pregnant incarcerated
individual or detainee, or male staff is required to conduct an
inspection 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;
(2) note if any contraband was found on the incarcerated
individual or detainee; and
(3) be sent to the Pennsylvania Commission on Crime and
Delinquency.
(c) Bed assignments.--The department may not assign a
pregnant incarcerated individual to any bed that is elevated
more than three feet from the floor of the facility.
(d) 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 or
detained individuals, conducted by staff in search of
contraband.
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"Staff." An individual, including contracted staff, who is
employed by a correctional facility or the department.
"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) Correction institution staff training.--The department
and the Department of Human Services shall jointly develop and
provide both correctional institutions and county correctional
institutions with a training program for staff who have contact
with a pregnant, laboring or postpartum incarcerated or detained
individual. The training program shall be related to the
physical and mental health of the pregnant or postpartum
incarcerated or detained individual 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
law, that institution may submit a written exemption reporting
that there is no risk of staff interacting with pregnant
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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 must 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
non-exempt institution.
(c) Education programming for pregnant incarcerated
individuals.--The department and the Department of Human
Services shall jointly develop and provide both correctional
institutions and county correctional institutions with
educational programming for pregnant or postpartum incarcerated
or detained individuals. 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) Parenting skills.
(5) The impact of alcohol and drugs on the unborn child.
(6) General health of the child.
(7) Any other pertinent information the department or
the Department of Human Services finds appropriate or
necessary.
(d) Trauma-informed care.--The following shall apply:
(1) The warden of a correctional institution shall
ensure that the correctional institution provides to all
incarcerated individuals and detainees quality trauma-
informed care as specified by the Substance Abuse and Mental
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Health Services Administration of the United States
Department of Health and Human Services.
(2) Trauma-informed care for an individual shall begin
immediately upon the individual's intake and assessment at a
correctional institution.
(3) Correctional staff training.--Correctional staff
must have no fewer than four hours of professional training
related to trauma-informed care, which must include, but not
be limited to, the following:
(i) Training to identify individuals with trauma.
(ii) Training on how and when to refer individual to
the proper health care professionals, including, but not
limited to, 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 term "trauma-
informed care" means an organizational structure and treatment
framework that involves recognizing, understanding and
responding to the effects of trauma.
§ 5910. Family consideration in placement and visitation.
(a) Visitation.--The department shall authorize visitation
by a minor dependent child, with the minimum following
requirements:
(1) A minor dependent child under 18 years of age must
be able to visit the dependent child's primary caregiver at
least two days per week.
(2) No restriction on the number of minor dependent
children under 18 years of age that may be permitted
visitation privileges may be enforced.
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(3) Contact visits for primary caregivers with low-
security or minimum-security classifications shall be
authorized.
(b) Exception.--Former primary caregivers who have been
deemed unsafe or ineligible for visitation through the
department shall be exempt from the requirements of this section
until deemed safe or eligible for visitation by the department.
(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:
"Former primary caregiver." The former legal guardian of a
dependent minor or individual who provided a significant portion
of the emotional or financial support to a minor dependent
child.
"Minor dependent child." An individual under 18 years of age
who the incarcerated individual was the former primary caregiver
of and who is proven to be related to the incarcerated or
detained individual by the facility.
§ 5911. Feminine hygiene and incontinence products.
(a) Issuance of feminine hygiene products related 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 this section.
(b) Feminine hygiene products provided.--The following
products shall be distributed to all incarcerated individuals
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and detainees who are menstruating in a correctional
institution:
(1) a choice of at least two sizes or absorbencies of
sanitary pads; and
(2) a choice of at least two sizes of tampons.
(c) Issuance of feminine hygiene products related 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.
(d) Bladder control and incontinence products
distribution.--Adult diapers or protective undergarments shall
be distributed to incarcerated individuals who require them.
(e) Rules and regulations.--The correctional institution
shall promulgate rules necessary to implement and enforce the
provisions of this section.
(f) 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.
§ 5912. Postpartum recovery.
(a) Restraints during postpartum recovery.--No restraints
shall be used on any incarcerated or detained individual who has
given birth within the last 30 days and is in postpartum
recovery, unless the department has a reasonable belief that the
incarcerated or detained individual 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 or detained
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individual while in postpartum recovery shall submit a written
report to the warden of the facility within 72 hours following
the use of the restraints, containing the justification for
restraining the incarcerated or detained individual during
postpartum recovery. The report shall also be sent to the
Pennsylvania Commission on Crime and Delinquency.
(b) Post-delivery bonding period.--Following the delivery of
a newborn, the department shall permit the child to remain with
the mother for 72 hours unless a licensed medical or mental
health professional has a reasonable belief that the newborn
child remaining with the mother poses a health or safety risk to
the newborn child.
(c) Nutritional and hygiene products.--During the 72-hour
period under subsection (b), the department shall make available
the necessary nutritional and hygiene products, including
diapers, to care for the newborn.
(d) Definition.--As used in this section, the term
"substantial risk of imminent flight" means a showing of real
and considerable risk of escaping by the incarcerated individual
with the intent to avoid continued incarceration. An
individual's history of escape attempts and flight to avoid
continued incarceration may be relevant to the determination,
but history alone cannot meet the requirement.
Section 3. This act shall apply to an entity under the
authority of the Commonwealth or any county or municipality that
has the power to detain and restrain an individual under the
laws of this Commonwealth, including, but not limited to State
correctional institutions, county correctional institutions,
juvenile detention facilities, police departments, constable's
offices, sheriff's offices and private entities performing
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contracts for the Commonwealth or a county or municipality of
the Commonwealth.
Section 4. This act shall take effect in 60 days.
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