H. B. 4531
(By Delegates Brown, Miley, Hatfield, Guthrie,
Lawrence, Poore and Caputo )
[Introduced
February 18, 2010
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §25-1-16 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto a new
section, designated §31-20-30a; and to amend and reenact §49-
5E-6 of said code, all related to mandating that shackling of
pregnant women who are incarcerated is not allowed except in
extraordinary circumstances.
Be it enacted by the Legislature of West Virginia:
That §25-1-16 of the Code of West Virginia, 1931, as amended
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §31-20-30a; and that §49-5E-6 of
said code be amended and reenacted, all to read as follows:
CHAPTER 25. DIVISION OF CORRECTIONS.
ARTICLE 1. ORGANIZATION, INSTITUTIONS AND CORRECTIONS MANAGEMENT.
§25-1-16. Transfer of inmates of state institutions or facilities.
The State Commissioner of Corrections Public Institutions
shall have authority to cause the transfer of any patient or inmate
from any correctional state institution or facility to any other state or federal institution or facility which is better fitted for
the care or treatment of such patient or inmate, or for other good
cause or reason.
Whenever an inmate committed to the custody of corrections a
convict in a state prison becomes mentally ill and his or her needs
cannot be properly met within the correctional facility, the warden
commissioner shall proceed in accordance with section thirty-one,
article five, chapter twenty-eight of this code.
Whenever an inmate committed to the custody of corrections a
convict in a state prison needs medical attention, other than
mental health care, not available at said prison, the warden or
administrator superintendent of said prison correctional facility
shall immediately notify the Commissioner of Corrections Public
Institutions, who, after proper investigation, shall cause the
transfer of said convict inmate to a hospital within the State of
West Virginia properly equipped to render the medical attention
necessary. Such a convict, inmate while receiving treatment in
said hospital, shall be under an appropriate level of supervision
guard at all times and shall forthwith be returned to his or her
correctional facility prison upon release from said hospital. his
recovery.
In providing or arranging for the necessary medical and other
care and treatment of a pregnant inmate in a correctional facility,
the warden or administrator of the correctional facility shall take
reasonable measures to assure that pregnant inmates will not be restrained after reaching the second trimester of pregnancy until
the end of the pregnancy: Provided, That if the inmate, based upon
her classification, discipline history, or other factors deemed
relevant by the warden or administrator poses a threat of escape,
or to the safety of herself, the public, staff or the unborn child,
the inmate may be restrained in a manner reasonably necessary:
Provided, however, That prior to directing the application of
restraints, the warden or administrator shall consult with an
appropriate health care professional to assure that the manner of
restraint will not pose an unreasonable risk of harm to the inmate
or the unborn child.
CHAPTER 31. CORPORATIONS.
ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY.
§31-20-30a. Mechanical restraints during pregnancy.
In providing or arranging for the necessary medical and other
care and treatment of inmates committed to the Regional Jail
Authority's custody, the authority shall assure that pregnant
inmates will not be restrained after reaching the second trimester
of pregnancy until the end of the pregnancy: Provided, That if the
inmate, based upon her classification, discipline history, or other
factors deemed relevant by the authority poses a threat of escape,
or to the safety of herself, the public, staff or the unborn child,
the inmate may be restrained in a manner reasonably necessary. Provided, however, That prior to directing the application of
restraints, the director shall consult with an appropriate health
care professional to assure that the manner of restraint will not
pose an unreasonable risk of harm to the inmate or the unborn
child.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5E. DIVISION OF JUVENILE SERVICES.
§49-5E-6. Medical and other treatment of juveniles in custody of
the division; coordination of care and claims
processing and administration by the department;
authorization of certain cooperative agreements.
(a) Notwithstanding any other provision of law to the
contrary, the director, or his or her designee, is hereby
authorized to consent to the medical or other treatment of any
juvenile in the legal or physical custody of the director or the
division.
(b) In providing or arranging for the necessary medical and
other care and treatment of juveniles committed to the division's
custody, the director shall utilize service providers who provide
the same or similar services to juveniles under existing contracts
with the Department of Health and Human Resources. In order to
obtain the most advantageous reimbursement rates, to capitalize on
an economy of scale and to avoid duplicative systems and
procedures, the department shall administer and process all claims for medical or other treatment of juveniles committed to the
division's custody.
(c) In providing or arranging for the necessary medical and
other care and treatment of juveniles committed to the division's
custody, the director shall assure that pregnant inmates will not
be restrained after reaching the second trimester of pregnancy
until the end of the pregnancy: Provided, That if the inmate,
based upon her classification, discipline history or other factors
deemed relevant by the director poses a threat of escape, or to the
safety of herself, the public, staff, or the unborn child, the
inmate may be restrained in a manner reasonably necessary:
Provided, however, That prior to directing the application of
restraints, the director shall consult with an appropriate health
care professional to assure that the manner of restraint will not
pose an unreasonable risk of harm to the inmate or the unborn
child.
(c) (d) For purposes of implementing the mandates of this
section, the director is hereby authorized and directed to enter
into any necessary agreements with the Department of Health and
Human Resources. Any such agreement shall specify, at a minimum,
for the direct and incidental costs associated with such care and
treatment to be paid by the Division of Juvenile Services.
NOTE: The purpose of this bill is to mandate that shackling of
pregnant women who are incarcerated is not allowed except in extraordinary circumstances.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§31-20-30a is new; therefore, it has been completely
underscored.