H.R. 6878 — what changed

changed This Act may be cited as the “Protecting the Health and Wellness of Babies and Pregnant “Pregnant Women Act of 2022”.in Custody Act”.

added In this Act:

removed “4322. Use of restraints and restrictive housing on incarcerated women during the period of pregnancy, labor, and postpartum recovery prohibited and to improve pregnancy care for women in Federal prisons

removed “(a) Prohibition—Except as provided in subsection (b), beginning on the date on which pregnancy is confirmed by a health care professional and ending not earlier than 12 weeks after delivery, an incarcerated woman in the custody of the Bureau of Prisons, or in the custody of the United States Marshals Service pursuant to section 4086, shall not be placed in restraints or held in restrictive housing.

removed “(b) Exceptions

removed “(1) Use of restraints—The prohibition under subsection (a) shall not apply if the senior Bureau of Prisons official or United States Marshals Service official overseeing women’s health and services and a health care professional responsible for the health and safety of the incarcerated woman determines that the use of restraints is appropriate for the medical safety of the woman, and the health care professional reviews such determination not later than every 6 hours after such use is initially approved until such use is terminated.

removed “(2) Situational use—The individualized determination described under paragraph (1) shall only apply to a specific situation and must be reaffirmed through the same process to use restraints again in any future situation involving the same woman.

removed “(3) Access to care—Immediately upon the cessation of the use of restraints or restrictive housing as outlined in this subsection, the Director of the Bureau of Prisons or the United States Marshal Service shall provide the incarcerated woman with immediate access to physical and mental health assessments and all recommended treatment.

removed “(4) Response to behavioral risks in the Bureau of Prisons

removed “(A) Restrictive housing—The prohibition under subsection (a) relating to restrictive housing shall not apply if the Director of the Bureau of Prisons or a senior Bureau of Prisons official overseeing women’s health and services, in consultation with senior officials in health services, makes an individualized determination that restrictive housing is required as a temporary response to behavior that poses a serious and immediate risk of physical harm.

removed “(B) Review—The official who makes a determination under subparagraph (A) shall review such determination every 4 hours for the purpose of removing an incarcerated woman as quickly as feasible from restrictive housing.

removed “(C) Restrictive housing plan—The official who makes a determination under subparagraph (A) shall develop an individualized plan to move an incarcerated woman to less restrictive housing within a reasonable amount of time, not to exceed 2 days.

removed “(D) Monitoring—An incarcerated woman who is placed in restrictive housing pursuant to this paragraph shall be—

removed “(i) monitored every hour;

removed “(ii) placed in a location visible to correctional officers; and

removed “(iii) prohibited from being placed in solitary confinement if the incarcerated woman is in her third trimester.

removed “(c) Reports

removed “(1) Report to the director and health care professional after the use of restraints—If an official identified in subsection (b)(1) or a correctional officer uses restraints on an incarcerated woman under subsection (b), that official (or an officer or marshal designated by that official) or correctional officer shall submit, not later than 30 days after placing the woman in restraints, to the Director of the Bureau of Prisons or the Director of the U.S. Marshal Service, as applicable, a written report which describes the facts and circumstances surrounding the use of restraints, and includes each of the following:

removed “(A) A description of all attempts to use alternative interventions and sanctions before the restraints were used.

removed “(B) A description of the circumstances that led to the use of restraints.

removed “(C) Strategies the facility is putting in place to identify more appropriate alternative interventions should a similar situation arise again.

removed “(2) Report to Congress—Beginning on the date that is 6 months after the date of enactment of the Protecting the Health and Wellness of Babies and Pregnant Women Act of 2022, and every 6 months thereafter for a period of 10 years, the Attorney General shall submit to the Committees on the Judiciary of the House of Representatives and the Senate a report on—

removed “(A) the reasoning upon which the determination to use restraints was made;

removed “(B) the details of the use of restraints, including the type of restraints used and length of time during which restraints were used; and

removed “(C) any resulting physical effects on the prisoner observed by or known to the corrections official or United States Marshal, as applicable.

removed “(3) Report to the director and health care professional after placement in restrictive housing—If an official identified in subsection (b)(3), correctional officer, or United States Marshal places or causes an incarcerated woman to be placed in restrictive housing under such subsection, that official, correctional officer, or United States Marshal shall submit, not later than 30 days after placing or causing the placement of the incarcerated woman in restrictive housing, to the Director of the Bureau of Prisons or the Director of the United States Marshals Service, as applicable, and to the health care professional responsible for the health and safety of the woman, a written report which describes the facts and circumstances surrounding the restrictive housing placement, and includes the following:

removed “(A) The reasoning upon which the determination for the placement was made.

removed “(B) The details of the placement, including length of time of placement and how frequently and how many times the determination was made subsequent to the initial determination to continue the restrictive housing placement.

removed “(C) A description of all attempts to use alternative interventions and sanctions before the restrictive housing was used.

removed “(D) Any resulting physical effects on the woman observed by or reported by the health care professional responsible for the health and safety of the woman.

removed “(E) Strategies the facility is putting in place to identify more appropriate alternative interventions should a similar situation arise again.

removed “(4) Report to Congress—Beginning on the date that is 6 months after the date of enactment of the Protecting the Health and Wellness of Babies and Pregnant Women Act of 2022, and every 6 months thereafter for a period of 10 years, the Attorney General shall submit to the Committees on the Judiciary of the House of Representatives and the Senate a report on the information described in paragraph (3).

removed “(d) Notice—Not later than 24 hours after the confirmation of an incarcerated woman’s pregnancy by a health care professional, that woman shall be notified, orally and in writing, by an appropriate health care professional, correctional officer, or United States Marshal, as applicable—

removed “(1) of the restrictions on the use of restraints and restrictive housing placements under this section;

removed “(2) of the incarcerated woman’s right to make a confidential report of a violation of restrictions on the use of restraints or restrictive housing placement; and

removed “(3) that the facility staff have been advised of all rights of the incarcerated woman under subsection (a).

removed “(e) Violation reporting process—Not later than 180 days after the date of enactment of this Act, the Director of the Bureau of Prisons and the Director of the United States Marshals Service shall establish processes through which an incarcerated person may report a violation of this section.

removed “(f) Notification of rights—The warden of the Bureau of Prisons facility where a pregnant woman is in custody shall notify necessary facility staff of the pregnancy and of the incarcerated pregnant woman's rights under subsection (a).

removed “(g) Retaliation—It shall be unlawful for any Bureau of Prisons or United States Marshal Service employee to retaliate against an incarcerated person for reporting under the provisions of subsection (e) a violation of subsection (a).

removed “(h) Education—Not later than 90 days after the date of enactment of the Protecting the Health and Wellness of Babies and Pregnant Women Act of 2022, the Director of the Bureau of Prisons and the Director of the United States Marshals Service shall each develop education guidelines regarding the physical and mental health needs of incarcerated pregnant women, and the use of restraints and restrictive housing placements on incarcerated women during the period of pregnancy, labor, and postpartum recovery, and shall incorporate such guidelines into appropriate education programs.

removed “(i) Definition—In this section:

removed “(1) Restraints—The term restraints means any physical or mechanical device used to control the movement of an incarcerated pregnant woman’s body, limbs, or both.

removed “(2) Restrictive housing—The term restrictive housing means any type of detention that involves—

removed “(A) removal from the general inmate population, whether voluntary or involuntary;

removed “(B) placement in a locked room or cell, whether alone or with another inmate; and

removed “(C) inability to leave the room or cell for the vast majority of the day.”

changed “4051. Treatment “4322. Use of restrictive housing on incarcerated pregnant womenwomen during the period of pregnancy, labor, and postpartum recovery prohibited

changed “(a) High-Risk Prohibition—Except as provided in subsection (b), during the period beginning on the date on which pregnancy is confirmed by a health care—The Director care professional and ending not earlier than 12 weeks after delivery, an incarcerated woman in the custody of the Bureau of Prisons Prisons, or in the custody of the United States Marshals Service pursuant to section 4086, shall ensure that each incarcerated pregnant woman receives health care appropriate for a high-risk pregnancy, including obstetrical and gynecological care, during pregnancy and post-partum recovery.not be held in restrictive housing.

changed “(b) High-Risk pregnanciesExceptions

changed “(1) In general—The Restrictive housing—Subject to paragraph (4), the prohibition under subsection (a) relating to restrictive housing shall not apply if the Director of the Bureau of Prisons shall transfer any incarcerated woman, who is determined by or a senior Bureau of Prisons official overseeing women’s health care professional to have a high-risk pregnancy and who agrees to be transferred, to a Residential Reentry Center services, in consultation with adequate senior officials in health care during her pregnancy services, makes an individualized determination that restrictive housing is required as a temporary response to behavior that poses a serious and post-partum recovery.immediate risk of physical harm.

changed “(2) Priority—The Residential Reentry Center to which an incarcerated pregnant woman is transferred pursuant to paragraph (1) shall be in Review—The official who makes a geographical location that is close to determination under subparagraph (A) shall review such determination daily for the family members purpose of the incarcerated pregnant woman. In the case that a Residential Reentry Center is unavailable, the removing an incarcerated pregnant woman shall be transferred to alternative housing, including housing with a family member.as quickly as feasible from restrictive housing.

changed “(3) Transportation—To transport an incarcerated pregnant woman to Restrictive housing plan—The official who makes a Residential Reentry Center, the Director of the Bureau of Prisons determination under subparagraph (A) shall provide develop an individualized plan to the move an incarcerated woman to less restrictive housing within a mode reasonable amount of transportation that has been approved by the woman’s health care professional, at no expense to the woman.time.

changed “(4) Monitoring—In the case that an Prohibition on solitary confinement—An incarcerated pregnant woman transferred to alternative who is placed in restrictive housing pursuant to under this section is monitored electronically, an ankle monitor subsection may not be used on placed in solitary confinement if the woman, unless there incarcerated woman is no feasible alternative for monitoring the woman.in her third trimester.

changed “(5) Service of sentence—Any time accrued at a Residential Reentry Center or alternative housing as a result of a transfer made pursuant to this section shall be credited toward service of the incarcerated pregnant woman’s sentence.“(c) Reports

changed “(6) Credit for pretrial custody—In “(1) Report to directors and health care professional after placement in restrictive housing—Not later than 30 days after the case of date on which an incarcerated pregnant woman, any time accrued woman is placed in pretrial custody restrictive housing under subsection (b), the applicable official identified in subsection (b)(1), correctional officer, or United States Marshal shall be credited toward service submit to the Director of the woman’s sentence.Bureau of Prisons or the Director of the United States Marshals Service, as applicable, and to the health care professional responsible for the health and safety of the woman, a written report which describes the facts and circumstances surrounding the restrictive housing placement, and includes the following:

changed “(c) Definitions—In this section:“(A) The reasoning upon which the determination for the placement was made.

changed “(1) Family member—The term family member means any individual related by blood or affinity whose close association with the incarcerated pregnant woman is the equivalent “(B) The details of a family relationship, the placement, including a parent, sibling, child, or individual standing in loco parentis.length of time of placement and how frequently and how many times the determination was made subsequent to the initial determination to continue the restrictive housing placement.

changed “(2) Residential Reentry Center—The term Residential Reentry Center means a Bureau “(C) A description of Prisons contracted residential reentry center.all attempts to use alternative interventions and sanctions before the restrictive housing was used.

changed “(3) Health “(D) Any resulting physical effects on the woman observed by or reported by the health care professionalprofessional responsible for the health and safety of the woman.

changed “(A) In general—The term health care professional means—“(E) Strategies the facility is putting in place to identify more appropriate alternative interventions should a similar situation arise again.

changed “(i) “(2) Report to congress—Not later than 180 days after the date of enactment of the Pregnant Women in Custody Act, and every 180 days thereafter for a doctor period of medicine or osteopathy who is authorized 10 years, the Attorney General shall submit to practice medicine or surgery by the State Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the placement of incarcerated women in restrictive housing under subsection (b), which shall include the doctor practices;information described in paragraph (1).

changed “(ii) any physician’s assistant or nurse practitioner who is supervised “(d) Notice—Not later than 24 hours after the confirmation of the pregnancy of an incarcerated woman by a doctor of medicine or osteopathy described health care professional, that woman shall be notified, orally and in clause (i); orwriting, by an appropriate health care professional, correctional officer, or United States Marshal, as applicable—

changed “(iii) any other person determined by “(1) of the Secretary to be capable restrictions on the use of providing health care services.restrictive housing placements under this section;

changed “(B) Other health care services—A person is capable “(2) of providing health care services if the person is—right of the incarcerated woman to make a confidential report of a violation of restrictions on the use of restrictive housing placement; and

changed “(i) a podiatrist, dentist, clinical psychologist, optometrist, or chiropractor (limited to treatment consisting “(3) that the facility staff have been advised of manual manipulation all rights of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined incarcerated woman under State law;subsection (a).

changed “(ii) a nurse practitioner, nurse-midwife, clinical social worker, or physician’s assistant who is authorized to practice under State law “(e) Violation reporting process—Not later than 180 days after the date of enactment of the Pregnant Women in Custody Act, the Director of the Bureau of Prisons and who is performing within the scope Director of their practice as defined under State law; andthe United States Marshals Service shall establish processes through which an incarcerated person may report a violation of this section.

changed “(iii) any health care professional from whom an employer or the employer's group health plan's benefits manager will accept certification “(f) Notification of rights—The warden of the existence Bureau of a serious health condition to substantiate Prisons facility where a claim for benefits.pregnant woman is in custody shall notify necessary facility staff of the pregnancy and of the rights of the incarcerated pregnant woman under subsection (a).

changed “(C) Authorized to practice in the State—The term authorized to practice in the State means that a professional must “(g) Retaliation—It shall be authorized to diagnose and treat physical unlawful for any Bureau of Prisons or mental health conditions United States Marshals Service employee to retaliate against an incarcerated person for reporting under the laws processes established under subsection (e) a violation of the State in which the professional practices and where the facility is located.subsection (a).

changed “(4) High-risk pregnancy—The term high-risk pregnancy means, with respect to an incarcerated woman, that “(h) Education—Not later than 90 days after the pregnancy threatens date of enactment of the health or life Pregnant Women in Custody Act, the Director of the woman or pregnancy, as determined by a health care professional.Bureau of Prisons and the Director of the United States Marshals Service shall each—

changed “(5) Post-partum recovery—The term post-partum recovery means “(1) develop education guidelines regarding the 3-month period beginning on physical and mental health needs of incarcerated pregnant women, and the date use of restrictive housing placements on which an incarcerated pregnant woman gives birth.”women during the period of pregnancy, labor, and postpartum recovery; and

added “(2) incorporate such guidelines into appropriate education programs.

added “(i) Definition—In this section, the term “restrictive housing” means any type of detention that involves—

added “(1) removal from the general inmate population, whether voluntary or involuntary;

added “(2) placement in a locked room or cell, whether alone or with another inmate; and

added “(3) inability to leave the room or cell for the vast majority of the day.”

added “4052. Treatment of incarcerated pregnant women

added “(a) High-Risk pregnancy health care—The Director of the Bureau of Prisons shall ensure that each incarcerated pregnant woman receives an evaluation to determine if the pregnancy is high-risk and, if so, receives healthcare appropriate for a high-risk pregnancy, including obstetrical and gynecological care, during pregnancy and postpartum recovery.

added “(b) High-Risk pregnancies

added “(1) In general—The Director of the Bureau of Prisons shall transfer to a Residential Reentry Center with adequate health care during her pregnancy and postpartum recovery any incarcerated woman who—

added “(A) is determined by a health care professional to have a high-risk pregnancy; and

added “(B) agrees to be transferred.

added “(2) Priority—The Residential Reentry Center to which an incarcerated pregnant woman is transferred under paragraph (1) shall, to the extent practicable, be in a geographical location that is close to the family members of the incarcerated pregnant woman.

added “(3) Transportation—To transport an incarcerated pregnant woman to a Residential Reentry Center, the Director of the Bureau of Prisons shall provide to the woman a mode of transportation that a healthcare professional has determined to be safe for transporting the pregnant woman.

added “(4) Service of sentence—Any time accrued at a Residential Reentry Center or alternative housing as a result of a transfer made under this section shall be credited toward service of the incarcerated pregnant woman’s sentence.

added “(c) Definitions—In this section:

added “(1) Health care professional—The term “health care professional” means—

added “(A) a doctor of medicine or osteopathy who is authorized to diagnose and treat physical or mental health conditions under the laws of the State in which the doctor practices and where the facility is located;

added “(B) any physician’s assistant or nurse practitioner who is supervised by a doctor of medicine or osteopathy described in subparagraph (A); or

added “(C) any other person determined by the Director of the Bureau of Prisons to be capable of providing health care services.

added “(2) High-risk pregnancy—The term “high-risk pregnancy” means, with respect to an incarcerated woman, that the pregnancy threatens the health or life of the woman or pregnancy, as determined by a health care professional.

added “(3) Postpartum recovery—The term “postpartum recovery” means the 3-month period beginning on the date on which an incarcerated pregnant woman gives birth, or longer as determined by a health care professional following delivery, and shall include the entire period that the incarcerated pregnant woman is in the hospital or infirmary.

added “(4) Residential reentry center—The term “Residential Reentry Center” means a Bureau of Prisons contracted residential reentry center.”

removed Section 7 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997e) is amended—

changed In this Act:The Director of the Federal Bureau of Prisons shall make publicly available on the website of the Federal Bureau of Prisons on an annual basis the following information:

changed The Comptroller General of the United States shall conduct a study of services and protections provided for pregnant incarcerated women in local and State correctional settings, including policies on obstetrical and gynecological care, education on nutrition, health and safety risks associated with pregnancy, mental health and substance use treatment, access to prenatal and post-delivery support services and programs, the use of restraints and restrictive housing placement, and the extent to which the intent of such policies are fulfilled.including—

changed Part E The budgetary effects of this Act, for the Omnibus Crime Control and Safe Streets Act purpose of 1968 (34 U.S.C. 10151 et seq.) is amended complying with the Statutory Pay-As-You-Go-Act of 2010, shall be determined by adding at reference to the end latest statement titled “Budgetary Effects of PAYGO Legislation” for this Act, submitted for printing in the following:Congressional Record by the Chairman of the Senate Budget Committee, provided that such statement has been submitted prior to the vote on passage.

removed “4 Women in custody

removed “531. Pregnant women in custody grant program

removed “(a) Establishment—The Attorney General may make grants to eligible entities that have established a program to promote the health needs of incarcerated pregnant women in the criminal justice system at the State, tribal, and local levels or have declared their intent to establish such a program. Eligible entities shall—

removed “(1) promote the safety and wellness of pregnant women in custody;

removed “(2) provide services for obstetrical and gynecological care, for women in custody;

removed “(3) facilitate resources and support services for nutrition and physical and mental health, for women in custody;

removed “(4) establish and maintain policies that are substantially similar to the limitations imposed under section 4322 of title 18, United States Code, limiting the use of restraints on pregnant women in custody; and

removed “(5) maintain, establish, or build post-delivery lactation and nursery care or residential programs to keep the infant with the mother and to promote and facilitate bonding skills for incarcerated pregnant women and women with dependent children.

removed “(b) Grant period—A grant awarded under this section shall be for a period of not more than 5 years.

removed “(c) Eligible entity—An entity is eligible for a grant under this section if the entity is—

removed “(1) a State or territory department of corrections;

removed “(2) a tribal entity that operates a correctional facility; or

removed “(3) a unit of local government that operates a prison or jail that houses women; or

removed “(4) a locally-based nonprofit organization, that has partnered with a State or unit of local government that operates a correctional facility, with expertise in providing health services to incarcerated pregnant women.

removed “(d) Application—To receive a grant under this section, an eligible entity shall submit an application to the Attorney General at such time, in such manner, and containing such information as the Attorney General may require, including a detailed description of the need for the grant and an account of the number of individuals the grantee expects to benefit from the grant.

removed “(e) Administrative costs—Not more than 5 percent of a grant awarded under this section may be used for costs incurred to administer such grant.

removed “(f) Construction costs—Notwithstanding any other provision of this Act, no funds provided under this section may be used, directly or indirectly, for construction projects, other than new construction or upgrade to a facility used to provide lactation, nursery, obstetrical, or gynecological services.

removed “(g) Priority funding for States that provide programs and services for incarcerated women related to pregnancy and childbirth—In determining the amount provided to a State or unit of local government under this section, the Attorney General shall give priority to States or units of local government that have enacted laws or policies and implemented services or pilot programs for incarcerated pregnant women aimed at enhancing the safety and wellness of pregnant women in custody, including providing services for obstetrical and gynecological care, resources and support services for nutrition and physical and mental health, and post-delivery lactation and nursery care or residential programs to keep the infant with the mother and to promote and facilitate bonding skills for incarcerated pregnant women and women with dependent children.

removed “(h) Subgrant priority—A State that receives a grant under this section shall prioritize subgrants to a unit of local government within the State that has established a pilot program that enhances safety and wellness of pregnant women in custody.

removed “(i) Federal share

removed “(1) In general—The Federal share of a grant under this section may not exceed 75 percent of the total costs of the projects described in the grant application.

removed “(2) Waiver—The requirement of paragraph (1) may be waived by the Assistant Attorney General upon a determination that the financial circumstances affecting the applicant warrant a finding that such a waiver is equitable.

removed “(j) Compliance and redirection of funds

removed “(1) In general—Not later than 1 year after an eligible entity receives a grant under this section, such entity shall implement a policy that is substantially similar to the policy under section 3 of Protecting the Health and Wellness of Babies and Pregnant Women Act of 2022.

removed “(2) Extension—The Attorney General may provide a 120-day extension to an eligible entity that is making good faith efforts to collect the information required under paragraph (1).

removed “(k) Authorization of appropriations—There are authorized to be appropriated to carry out this section, to remain available until expended—

removed “(1) for fiscal year 2023, $5,000,000;

removed “(2) for fiscal year 2024, $5,000,000;

removed “(3) for fiscal year 2025, $5,000,000;

removed “(4) for fiscal year 2026, $6,000,000; and

removed “(5) for fiscal year 2027, $6,000,000.

removed “(l) Funds To be supplemental—To receive a grant under this section, the eligible entity shall certify to the Attorney General that the amounts received under the grant shall be used to supplement, not supplant, non-Federal funds that would otherwise be available for programs or services in the prison where funds will be used.

removed “(m) Unobligated and unspent funds—Funds made available pursuant to this section that remain unobligated for a period of 6 months after the end of the fiscal year for which the funds have been appropriated shall be awarded to other recipients of this grant.

removed “(n) Civil rights obligation—A recipient of a grant under this section shall be subject to the nondiscrimination requirement under section 40002(b)(13) of the Violence Against Women Act of 1994 (34 U.S.C. 12291(b)(13)).

removed “(o) Definitions—In this section, the term in custody means, with respect to an individual, that the individual is under the supervision of a Federal, State, tribal, or local correctional facility, including pretrial and contract facilities, and juvenile or medical or mental health facilities.”