PRINTER'S NO. 2142
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1419
Session of
2021
INTRODUCED BY JONES, CEPHAS, T. DAVIS, MIZGORSKI, SHUSTERMAN,
DALEY, KINSEY, KRAJEWSKI, McNEILL, RYAN, HILL-EVANS,
HOHENSTEIN, FREEMAN, INNAMORATO, ISAACSON, MALAGARI, SANCHEZ,
SIMS, GUZMAN, WEBSTER, LEE, HOWARD, BROOKS, WARREN, SOLOMON,
D. MILLER, KINKEAD, HANBIDGE, YOUNG, KIM, N. NELSON, HELM,
SCHWEYER, FITZGERALD, KEEFER, BOBACK, PENNYCUICK, OTTEN,
BULLOCK, GUENST, A. BROWN, FIEDLER, McCLINTON, GILLEN, FLOOD,
KENYATTA, SCHMITT, BURGOS, PARKER AND MERSKI,
SEPTEMBER 21, 2021
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 21, 2021
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:
ยง 1104. State recording system [for application of restraints]
relating to pregnant [prisoners] and postpartum
inmates or detainees.
(a) General rule.--[A correctional institution as defined by
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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 or detained
individuals. 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] report.--[Written
findings] Reports of each restraint or placement of an
incarcerated or detained individual in restrictive housing as
required under subsection (a) must include the following:
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(1) [the] The circumstances that led to the
determination that the [prisoner] inmate or detainee
represented a substantial risk of imminent flight[; or].
(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
following:
(i) The custodian or staff member that 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.
(6) Any physical 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.
(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. If male staff remain
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present during the examination, labor or delivery of the
pregnant incarcerated individual, that information 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 or 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 by 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 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 or detained person, following
childbirth.
"Restraints." Any physical or mechanical device used to
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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
discipline or administrative purpose.
"Staff." An individual who is employed by a correctional
institution, the department or the Department of Human Services.
Section 2. Title 61 is amended by adding sections to read:
ยง 5905.1. Restrictive housing prohibited for pregnant or
postpartum inmates and detainees.
(a) Restrictive housing prohibited.--Except as provided
under subsection (c), a pregnant or postpartum incarcerated or
detained individual 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 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) 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, the unborn child of the pregnant
incarcerated or detained individual or staff. The following
shall apply:
(1) The decision to place a pregnant or postpartum
incarcerated or detained individual in restrictive housing
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under this subsection must be approved by the warden or
individual in charge of the correctional institution.
(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
inmates or detainees).
(3) No period of restrictive housing in excess of seven
days may be approved.
(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 or detained person,
following childbirth.
ยง 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 incarcerated individual or detainee.
(2) A correctional institution shall limit searches 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 a
search on a female incarcerated individual or detainee in a
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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 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 or
detained individuals, conducted by staff in search of
contraband.
"Staff." An individual, including contracted staff, who is
employed by a correctional institution, the department or the
Department of Human Services.
"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.
ยง 5909. Training and education requirement.
(a) Correctional institution staff training.--The department
and the Department of Human Services shall jointly develop and
provide both 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
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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
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
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
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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.--The following shall apply:
(1) The warden of a correctional institution shall, as
the warden 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 training.--Correctional staff
shall have no fewer than four hours of professional training
related to trauma-informed care, which shall include, but not
be limited to, 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, 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 following
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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 or detained person, following
childbirth.
"Trauma-informed care." An organizational structure and
treatment framework that involves recognizing, understanding and
responding to the effects of trauma.
ยง 5910. Family consideration in placement and visitation.
(a) Visitation.--The department and the Department of Human
Services shall authorize visitation by a minor dependent child,
with the minimum following requirements:
(1) A minor dependent child under 18 years of age shall
be able to visit the minor dependent child's parent with
primary physical custody 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, subject to the
facility's space, staffing and administrative capacity to
accommodate the number of visitors present.
(3) Contact visits for a parent with primary physical
custody with low-security or minimum-security classifications
shall be authorized.
(b) Exceptions.--Visitation rights shall not be authorized
under subsection (a):
(1) For parents who have been deemed unsafe or
ineligible for visitation through the department or the
Department of Human Services until deemed safe or eligible
for visitation by the department or the Department of Human
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Services.
(2) In instances where the minor dependent child was the
victim of a criminal offense under 18 Pa.C.S. (relating to
crimes and offenses) resulting in the incarceration or
detention of the parent.
(3) If the parent voluntarily enrolled in a detention
program which prohibits visitation.
(c) Primary physical custody.--For purposes of this section,
an incarcerated or detained individual must prove that the
individual had physical custody of the minor dependent child for
the majority of time to be considered a parent with primary
physical custody.
(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:
"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.
ยง 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 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 subsection (b).
(b) Feminine hygiene products provided.--A choice of at
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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 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.
(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.
ยง 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 or the Department of Human
Services, as applicable, has a reasonable belief that the
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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
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
department or the Department of Human Services, as applicable.
(b) Post-delivery bonding period.--Subject to hospital
policy, following the delivery of a newborn, the department or
the Department of Human Services, as applicable, shall permit
the child to remain with the mother at the hospital for 72 hours
unless a licensed medical professional 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 or the Department of
Human Services, as applicable, shall make available the
necessary nutritional and hygiene products to care for the
newborn.
(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:
"Licensed medical professional." An individual licensed to
practice medicine in this Commonwealth.
"Postpartum recovery." The eight-week period, or longer as
determined by the health care professional responsible for the
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health and safety of the incarcerated or detained person,
following childbirth.
"Substantial risk of imminent flight." 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
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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