HB1398: HB1398 Georgia Child Care Alternatives, Resources, and Education Act; Trixtian's Law; enact

26 LC 60 0323S The House Committee on Judiciary, Non-Civil offers the following substitute to HB 1398: A BILL TO BE ENTITLED AN ACT To amend Article 2 of Chapter 4 of Title 17 of the Official Cod e of Georgia Annotated,1 relating to arrest by law enforcement officers generally, so as to revise provisions relating2 to the arrests of pregnant women; to provide that women who have been arrested are offered3 pregnancy testing within a certain time of detention; to provid e limitations on the use and4 disclosure of such information; to provide for bond; to provide for bond limitations; to amend5 Article 1 of Chapter 1 of Title 42 of the Official Code of Geor gia Annotated, relating to6 inmate policies, so as to revise provisions relating to the tre atment during incarceration of7 pregnant and postpartum women; to provide for definitions; to establish certain sentencing8 requirements for pregnant and postpartum women; to provide for reporting; to provide for9 limitations on the use and disclosure of certain medical information; to provide for related10 matters; to provide for short titles; to repeal conflicting laws; and for other purposes.11 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:12 H. B. 1398 (SUB) - 1 - 26 LC 60 0323S PART I13 SECTION 1-1.14 This Act shall be known and may be cited as the ''Georgia Child Care Alternatives,15 Resources, and Education Act." This Act may also be known and may also be cited as16 "Trixtian's Law.''17 SECTION 1-2.18 Article 2 of Chapter 4 of Title 17 of the Official Code of Geor gia Annotated, relating to19 arrest by law enforcement officers generally, is amended by revising Code Section 17-4-26,20 relating to duty to bring persons arrested before judicial offi cer within 72 hours, notice to21 accused of time and place of commitment hearing, and effect of failure to notify, as follows:22 "17-4-26.23 (a) Every law enforcement officer arresting under a warrant shall exercise reasonable24 diligence in bringing the person arrested before the judicial officer authorized to examine,25 commit, or receive bail and in any event to present the person arrested before a committing26 judicial officer within 72 hours after arrest. The accused shall be notified as to when and27 where the commitment hearing is to be held. An arrested person who is not notified before28 the hearing of the time and place of the commitment hearing shall be released.29 (b)(1) Every woman arrested who is not released on bond within 72 hours of arrest shall30 be provided a urine pregnancy test, unless declined by the woman. The results of such31 test shall be used exclusively for determining appropriate healthcare and for the purposes32 set forth in paragraph (2) of this subsection; provided, howeve r, that such results shall33 only be disclosed for such purposes upon the woman's written consent and in compliance34 with any applicable state and federal laws regarding privacy, including, but not limited35 to, the provisions of the federal Health Insurance Portability and Accountability Act of36 1996, P.L. 104-191.37 H. B. 1398 (SUB) - 2 - 26 LC 60 0323S (2) If any urine pregnancy test yields a verified positive res ult, the judicial officer38 authorized to examine, commit, or receive bail shall consider s uch result as a factor in39 determining bail; provided, however, that bail shall not exceed the amount of $100.00,40 unless the woman poses a significant threat or danger to any pe rson or to the public41 welfare."42 PART II43 SECTION 2-1.44 Article 1 of Chapter 1 of Title 42 of the Official Code of Geor gia Annotated, relating to45 inmate policies, is amended by revising Code Section 42-1-11.3, relating to treatment of46 pregnant and postpartum female inmates, as follows:47 "42-1-11.3.48 (a) As used in this Code section, the term:49 (1) 'Custodian' means warden, sheriff, jailer, deputy sheriff, police officer, or any other50 law enforcement officer.51 (2) 'Immediate postpartum period' means the six-week period following childbirth unless52 extended by a physician due to complications.53 (3) 'Officer in charge' means the individual who is responsible for the supervision of a54 penal institution.55 (4) 'Penal institution' means any place of confinement for juvenile or adult individuals56 accused of, convicted of, or adjudicated for violating a law of this state or an ordinance57 of a political subdivision of this state.58 (5) 'Postpartum woman' means a woman who is within 12 months after giving birth to59 a child, regardless of the outcome of such birth.60 (6) 'Pregnant woman' means a woman whose pregnancy has been verif ied by a61 pregnancy test or through a medical examination conducted by a physician.62 H. B. 1398 (SUB) - 3 - 26 LC 60 0323S (7) 'Supervision officer' shall have the same meaning as the t erm 'probation officer' as63 set forth in Code Section 15-11-2, 'community supervision officer' as set forth in Code64 Section 42-3-1, 'private probation officer' as set forth in Cod e Section 42-8-100, or65 'probation officer' as set forth in Code Section 42-8-100.66 (6)(8) 'Woman' means a juvenile or an adult human female who is confined in a penal67 institution.68 (b) A pregnant woman shall not be required to squat or cough d uring a strip search69 conducted by a custodian during the second or third trimester of pregnancy.70 (c) A pregnant woman shall not be required to undergo any vagi nal examination unless71 prescribed and performed by a licensed health care healthcare professional.72 (d)(1) Except as otherwise provided in this subsection and not withstanding Code73 Section 42-5-58, a custodian shall not use handcuffs, waist sha ckles, leg irons, or74 restraints of any kind on a pregnant woman who is in the second or third trimester of75 pregnancy, in labor, or in delivery, or on a woman in the immediate postpartum period.76 (2) A woman who is in the immediate postpartum period may only be restrained using77 wrist handcuffs with her wrists held in front of her body and only if there are compelling78 grounds to believe that such woman presents:79 (A) An immediate and serious threat of harm to herself, staff, or others; or80 (B) A substantial flight risk and cannot be reasonably contained by other means.81 (3) If a custodian uses wrist handcuffs on a woman who is in the immediate postpartum82 period under an exception provided in paragraph (2) of this subsection, the circumstances83 for and details of such exception shall be documented within tw o days of the incident. 84 Such information shall include the nature of the circumstances and the length of time of85 such use of restraints. The documentation shall be reviewed by the officer in charge and86 retained by the penal institution for reporting purposes.87 (4) Nothing in this subsection shall prohibit the use of medical restraints by a licensed88 health care healthcare professional to ensure the medical safety of a pregnant woman.89 H. B. 1398 (SUB) - 4 - 26 LC 60 0323S (e) A pregnant woman or woman who is in the immediate postpartum period shall not be90 placed in solitary confinement, in administrative segregation, or for medical observation91 in a solitary confinement setting; provided, however, that this shall not prevent the92 placement of such woman in a cell or hospital room by herself.93 (f) At the time of sentencing a pregnant woman or postpartum w oman, the court shall94 consider such pregnant or postpartum status as a mitigating fac tor in determining such95 sentence.96 (g)(1) At the time of sentencing a pregnant woman, if the cour t's sentence includes a97 term of imprisonment and the court has determined that such pregnant woman poses no98 significant threat or danger to any person or to the public wel fare, the court shall defer99 such term of imprisonment until at least 12 weeks after the birth of the pregnant woman's100 child. During such period of deferral, the court shall allow t he pregnant woman to be101 supervised on probation for the length of her pregnancy and for at least 12 weeks but up102 to 12 months after the birth of her child, after which the woman shall surrender herself103 to the Department of Corrections, as ordered by the court. In addition to any terms and104 conditions of probation imposed by the court pursuant to Code Section 42-8-35, the court105 shall impose as a condition of probation that the pregnant woman make good faith efforts106 to maintain perinatal healthcare, treatment, and assessments an d to participate in107 education and resource programs to the extent such programs are available in her108 community or through the Department of Human Services, and prov ide monthly109 verification of such participation to her supervision officer. The court shall allow such110 term of probation to be served without the payment of any fines, fees, and restitution and111 shall allow supervision to be conducted by phone or other elect ronic communications. 112 The pregnant woman shall report the loss of her pregnancy for a ny reason to her113 supervision officer within seven calendar days of such loss.114 (2) If a pregnant woman serving a term of probation fails to s urrender herself to the115 Department of Corrections in accordance with paragraph (1) of t his subsection, such116 H. B. 1398 (SUB) - 5 - 26 LC 60 0323S pregnant woman may be prosecuted for a violation of Code Section 16-10-52 for willful117 failure to surrender.118 (3) The court's jurisdiction during any term of probation orde red pursuant to119 paragraph (1) of subsection (b) of this Code section shall be the same as set forth in Code120 Section 15-11-608 or 42-8-34, as applicable.121 (4) Any time spent on probation by a pregnant woman shall be credited to the sentence122 or disposition imposed.123 (h) Commencing January 1, 2027, and annually thereafter, each penal institution shall124 report to the Department of Public Health:125 (1) The total number of women who were incarcerated;126 (2) The total number of pregnant women who were incarcerated; and127 (3) The total number of women who declined urine pregnancy tes ting under128 paragraph (b)(2) of Code Section 17-4-26.129 (i) The report provided pursuant to subsection (h) of this Code section shall exclude any130 information that could reasonably lead to the identification of any individual woman and131 shall comply with the provisions of the federal Health Insuranc e Portability and132 Accountability Act of 1996, P.L. 104-191.133 (j)(1) Any medical information, including, but not limited to, pregnancy testing and134 prenatal or postpartum healthcare information, provided by, or with the consent of, a135 pregnant woman or postpartum woman pursuant to this Code sectio n or Code136 Section 17-4-26 shall only be disclosed for the purposes of car rying out the provisions137 of this Code section and in compliance with any applicable stat e and federal laws138 regarding privacy, including, but not limited to, the provision s of the federal Health139 Insurance Portability and Accountability Act of 1996, P.L. 104-191.140 (2) On and after January 1, 2027, in no event shall any medical information, including,141 but not limited to, pregnancy testing and prenatal or postpartum healthcare information,142 provided by, or with the consent of, a pregnant woman or postpa rtum woman to a143 H. B. 1398 (SUB) - 6 - 26 LC 60 0323S supervision officer or custodian pursuant to this Code section or Code Section 17-4-26144 be admissible for the purpose of establishing criminal liabilit y, except where such145 information is obtained independently through other lawful means.146 (f)(k) It is the intent of the General Assembly that a pregnant woman who is temporarily147 held in a county jail pending transfer to a state penal institu tion be transferred as148 expeditiously as possible. The Department of Corrections and a sheriff overseeing a149 county jail in which a pregnant woman is incarcerated shall make all reasonable efforts to150 facilitate such transfer. This subsection shall not apply to a pregnant woman who has been151 sentenced to a county jail by a judge."152 PART III153 SECTION 3-1.154 All laws and parts of laws in conflict with this Act are repealed.155 H. B. 1398 (SUB) - 7 -