Title of Regulation: 6VAC15-40. Minimum Standards for Jails and Lockups (adding 6VAC15-40-985).

Statutory Authority: §§ 53.1-5, 53.1-68, and 53.1-131 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 27, 2013.

Agency Contact: Jim Bruce, Agency Regulatory Coordinator, Department of Corrections, P.O. Box 26963, Richmond, VA 23261-6963, telephone (804) 674-3303 ext. 1130, FAX (804) 674-3017, or email james.bruce@vadoc.virginia.gov.

Basis: Section 53.1-5 of the Code of Virginia authorizes the Board of Corrections to make, adopt, and promulgate such rules and regulations as may be necessary to carry out the provisions of Title 53.1 of the Code of Virginia and other laws of the Commonwealth pertaining to local, regional, and community correctional facilities. Section 53.1-68 of the Code of Virginia requires the board to prescribe regulations governing the administration and operation of local correctional facilities.

Purpose: The current regulations do not prescribe any special considerations for restraint of offenders known to be pregnant while under the control of local jails and lockups. The proposed changes will specify the type of restraint devices to be used, how the restraint devices may be applied, the circumstances under which the restraints may be used, and reporting requirements for use of restraints on offenders known to be pregnant. The regulations are intended to protect the health and well-being of pregnant jail inmates and their fetuses.

Substance: The proposed regulations require an inmate known to be pregnant to be restrained in the least restrictive manner appropriate to the inmate's situation and perceived flight and security risk. Handcuffs applied to the front of the inmate are the only restraints to be used for transportation outside the secure perimeter. No restraints are to be used during labor and delivery. Inmates in postpartum recovery and when in a medical facility for treatment unrelated to labor and delivery will be restrained in the least restrictive method necessary. An individualized determination must be made to exceed these restraints, and all use of additional restraints shall be reported. Facility staff is required to annually review policy related to restraint of pregnant inmates.

Issues: There has been a wave of public concern related to restraint of pregnant offenders as evidenced by legislation introduced in the 2011 and 2012 General Assembly sessions and a coalition of various organizations and agencies that support statutes and regulation on this subject.

This regulation offers the advantage of protecting the health and well-being of pregnant jail inmates and their fetuses by standardizing the requirements for restraints for pregnant inmates while imposing minimal additional requirements on jail operations. There are no known disadvantages to the public or agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Corrections proposes to establish in the regulations procedures pertaining to the use of restraints on pregnant inmates in jails and lockups.

Result of Analysis. No significant costs or benefits are expected from the proposed changes.

Estimated Economic Impact. The proposed changes establish procedures in regulations that address the use of restraints on offenders known to be pregnant during transportation outside the secure perimeter, during labor and delivery, postpartum recovery, and for medical treatment unrelated to labor and delivery. The proposed changes also require staff to annually review policy related to restraining pregnant inmates.

According to the Department of Corrections (DOC), the proposed procedures are already followed in practice based on facility policies. Thus, no significant economic impact is expected from the proposed regulations. Also, DOC plans to incorporate the proposed annual review requirement into its periodic training requirement and does not expect any additional costs for its implementation. While no significant direct economic impact is expected, the proposed language may improve the clarity and accessibility of the rules followed in practice.

Businesses and Entities Affected. The proposed regulations apply to 68 jails and lockups. Less than 150 inmates in jails and lockups are estimated to be pregnant at any given time. The number of staff in jails and lockups is about 9,600, but not all will be required to be trained in the use of restraints.

Localities Particularly Affected. The proposed regulations are not expected to affect any locality more than others.

Projected Impact on Employment. No significant impact on employment is expected.

Effects on the Use and Value of Private Property. No significant effect on the use and value of private property is expected.

Small Businesses: Costs and Other Effects. The proposed changes are not anticipated to create any costs or other effects on small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No adverse impact on small businesses is expected.

Real Estate Development Costs. No effect on real estate development costs is expected.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Corrections concurs with the analysis prepared by the Department of Planning and Budget regarding 6VAC15-40, Minimum Standards for Jails and Lockups.

Summary:

The proposed amendments establish procedures pertaining to the use of restraints on pregnant inmates during transportation outside the secure perimeter, during labor and delivery, during postpartum recovery, and when receiving treatment unrelated to labor and delivery. The regulations (i) include criteria and reporting requirements for use of more restrictive restraints and (ii) require staff to annually review policy related to restraining pregnant inmates.

6VAC15-40-985. Restraint of pregnant offenders.

A. This subsection is intended to apply to the transportation outside the secure perimeter such that inmates known to be pregnant shall be handcuffed only in front, unless an individualized determination is made that the inmate is a flight risk or danger to herself or others, or the totality of the circumstances creates a serious security risk.

1. If an individualized determination has been made, then such inmate will be restrained in the least restrictive method necessary for outside transport. Waist chains/belts shall not be used.

2. If it is deemed more restrictive restraints are needed during transport, security staff shall notify a supervisor as soon as reasonably possible and a use of force report indicating the reason for the use of restraints and type of restraints shall be submitted to a supervisor no later than the conclusion of the shift for review and justification.

B. No restraints will be used during labor and delivery unless an individualized determination has been made that the inmate is a flight risk or danger to herself or others, or the totality of the circumstances creates a serious security risk.

C. This subsection is intended to apply to labor and delivery such that if there is an individualized determination that restraints are needed, the least restrictive alternative will be used in consultation with the medical professional, but restraints shall be immediately removed upon the request of any doctor, nurse, or other health professional treating the inmate if the restraints present a threat to the health or life of the inmate or child. Waist chains/belts shall not be used.

D. If it is deemed more restrictive restraints are needed during labor and delivery, security staff shall notify a supervisor as soon as reasonably practical and a use of force report indicating the reason for the use of restraints and type of restraints shall be submitted to a supervisor no later than the conclusion of the shift for review and justification.

E. This subsection is intended to apply during postpartum recovery while the inmate is in the hospital such that after an individualized determination, an inmate shall be restrained in the least restrictive method (i.e., one ankle restraint or one arm restraint) that will allow for the mother's safe handling of her infant and mother-infant bonding, except where necessary when the inmate is a flight risk or danger to herself or others, or the totality of the circumstances creates a serious security risk. If it is deemed restraints more restrictive than one ankle restraint or one arm restraint are needed, security staff shall notify a supervisor as soon as reasonably practical and a use of force report indicating the reason for the use of restraints and type of restraints shall be submitted to a supervisor no later than the conclusion of the shift for review and justification.

F. All staff shall annually review policy related to restraining pregnant inmates.

G. This subsection is intended to apply to inmates known to be pregnant who are in a facility for medical treatment unrelated to labor and delivery. Such inmates will be restrained in the least restrictive method necessary in consultation with the medical professional. Waist chains/belts shall not be used.