BOP Program Statement 5200.09 § 7

§551.20 Purpose and scope.

The Bureau of Prisons provides an inmate with medical and social services

related to birth control, pregnancy, child placement, and abortion. The Warden

shall ensure compliance with the applicable law regarding these matters.

Pregnant females in Bureau custody represent a small population with a significant service need.

The Bureau of Prisons provides programs to females, develops procedures for identifying

pregnant females, and specifies any special precautions that apply to them.

§551.21 Birth control.

Medical staff shall provide an inmate with advice and consultation about methods

for birth control and, where medically appropriate, prescribe and provide

methods for birth control.

Medical staff shall provide interested inmates information pertaining to appropriate methods for

birth control. The medical indication and appropriateness of prescribing birth control in a

correctional environment ordinarily is limited to hormone replacement therapy. Refer to the

Program Statement Patient Care for more information.

For inmates in or transferring to Residential Reentry Centers, on home confinement, or otherwise

in a community setting while under Bureau supervision, birth control may be available under the

terms of the Program Statement Patient Care.

§551.22 Pregnancy.

(a) The Warden shall ensure that each pregnant inmate is provided medical, case

management, and counseling services.

(b) In order to ensure proper medical and social services, the inmate shall inform

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the institution medical staff as soon as she suspects she is pregnant.

(c) Medical staff shall arrange for the childbirth to take place at a hospital outside

the institution.

Medical staff screen for pregnancy during intake, physical, and any contacts where this is

appropriate. Upon learning of the inmate’s pregnancy either by self-report or clinical diagnostics

and assessment, the inmate is immediately notified (within 48-hours after confirmation of

pregnancy) of the restraint restrictions as well as how to report any perceived staff misuse of

restraints.

The First Step Act of 2018, Section 301 (codified at 18 U.S.C. § 4322):

(a) PROHIBITION.—Except as provided in subsection (b), beginning on the date on which

pregnancy is confirmed by a healthcare professional, and ending at the conclusion of postpartum

recovery, a prisoner 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.

(b) EXCEPTIONS.—

(1) IN GENERAL.—The prohibition under subsection (a) shall not apply if—

(A) an appropriate corrections official, or a United States marshal, as applicable, makes a

determination that the prisoner—

(i) is an immediate and credible flight risk that cannot reasonably be prevented by

other means; or

(ii) poses an immediate and serious threat of harm to herself or others that cannot

reasonably be prevented by other means; or

(B) a healthcare professional responsible for the health and safety of the prisoner

determines that the use of restraints is appropriate for the medical safety of the prisoner.

(2) LEAST RESTRICTIVE RESTRAINTS.—In the case that restraints are used pursuant to an

exception under paragraph (1), only the least restrictive restraints necessary to prevent the harm

or risk of escape described in paragraph (1) may be used.

(3) APPLICATION.—

(A) IN GENERAL.—The exceptions under paragraph (1) may not be applied—

(i) to place restraints around the ankles, legs, or waist of a prisoner;

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(ii) to restrain a prisoner’s hands behind her back;

(iii) to restrain a prisoner using 4-point restraints; or

(iv) to attach a prisoner to another prisoner.

(B) MEDICAL REQUEST.—Notwithstanding paragraph (1), upon the request of a

healthcare professional who is responsible for the health and safety of a prisoner, a

corrections official or United States marshal, as applicable, shall refrain from using

restraints on the prisoner or shall remove restraints used on the prisoner.

(c) REPORTS.—

(1) REPORT TO THE DIRECTOR AND HEALTHCARE PROFESSIONAL.—If a

corrections official or United States marshal uses restraints on a prisoner under subsection

(b)(1), that official or marshal shall submit, not later than 30 days after placing the prisoner in

restraints, to the Director of the Bureau of Prisons or the Director of the United States

Marshals Service, as applicable, and to the healthcare professional responsible for the health

and safety of the prisoner, a written report that describes the facts and circumstances

surrounding the use of restraints, and includes—

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

(B) the details of the use of restraints, including the type of restraints used and length of

time during which restraints were used; and

(C) any resulting physical effects on the prisoner observed by or known to the corrections

official or United States marshal, as applicable.

(2) SUPPLEMENTAL REPORT TO THE DIRECTOR.—Upon receipt of a report under

paragraph (1), the healthcare professional responsible for the health and safety of the prisoner

may submit to the Director such information as the healthcare professional determines is

relevant to the use of restraints on the prisoner.

(d) NOTICE.—Not later than 48 hours after the confirmation of a prisoner’s pregnancy by a

healthcare professional, that prisoner shall be notified by an appropriate healthcare professional,

corrections official, or United States marshal, as applicable, of the restrictions on the use of

restraints under this section.

(e) VIOLATION REPORTING PROCESS.—The Director of the Bureau of Prisons, in

consultation with the Director of the United States Marshals Service, shall establish a process

through which a prisoner may report a violation of this section.

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(f) TRAINING.—

(1) IN GENERAL.—The Director of the Bureau of Prisons and the Director of the United States

Marshals Service shall each develop training guidelines regarding the use of restraints on female

prisoners during the period of pregnancy, labor, and postpartum recovery, and shall incorporate

such guidelines into appropriate training programs. Such training guidelines shall include—

(A) how to identify certain symptoms of pregnancy that require immediate referral to a

healthcare professional;

(B) circumstances under which the exceptions under subsection (b) would apply;

(C) in the case that an exception under subsection (b) applies, how to apply restraints in a

way that does not harm the prisoner, the fetus, or the neonate;

(D) the information required to be reported under subsection (c); and

(E) the right of a healthcare professional to request that restraints not be used, and the

requirement under subsection (b)(3)(B) to comply with such a request.

(2) DEVELOPMENT OF GUIDELINES.—In developing the guidelines required by paragraph

(1), the Directors shall each consult with healthcare professionals with expertise in caring for

women during the period of pregnancy and postpartum recovery.

(g) DEFINITIONS.—For purposes of this section:

(1) POSTPARTUM RECOVERY. —The term ‘postpartum recovery’ means the 12 -week

period, or longer as determined by the healthcare professional responsible for the health and

safety of the prisoner, following delivery, and shall include the entire period that the prisoner is

in the hospital or infirmary.

(2) PRISONER.—The term ‘prisoner’ means a person who has been sentenced to a term of

imprisonment pursuant to a conviction for a Federal criminal offense, or a person in the custody

of the Bureau of Prisons, including a person in a Bureau of Prisons contracted facility.

(3) RESTRAINTS.—The term ‘restraints’ means any physical or mechanical device used to

control the movement of a prisoner’s body, limbs, or both.

Section 301 of the First Step Act mandates inmates in the custody of the Bureau shall not be

placed in restraints, beginning on the date on which the pregnancy is confirmed by a healthcare

professional, and ending at the conclusion of the postpartum recovery, which is the 12 week

period after birth (or longer as determined by a health care professional). This prohibition shall

not apply if an appropriate corrections official (under routine operations the Warden unless an

immediate use of force is required) determines the inmate:

• is an immediate and credible flight risk that cannot be prevented by other means;

• poses an immediate and serious threat of harm to herself or others that cannot be

reasonably prevented by other means;

• or if a healthcare professional for the health and safety of the inmate determines that the

use restraints is appropriate for the medical safety of the inmate.

If restraints are used, under one of the exceptions listed above, only the least restrictive restraints

necessary to prevent harm or escape may be used. Under these exceptions, restraints may not be

placed around the ankles, legs or waist of the inmate; may not restrain the inmate’s hands behind

her back; and may not restrain the inmate using 4-point restraints or restraining inmates to one

another.

If restraints are used on a pregnant inmate, the individual involved is required to submit a memo

to the Warden who will submit a report (not later than 30 days after placing the prisoner in

restraints), to the Director describing the reasons for their use, the details of their use (including

the date, type of restraints used and the length of time), and any observable effects of their use.

The restraint of a pregnant inmate must be reported by the Warden to the Assistant Directors of

Correctional Programs Division and Health Services Division as well as the Administrator of the

Women and Special Populations Branch, Central Office.

A PRE-NATAL MDS code will be loaded in SENTRY within one calendar day by the Health

Services staff member responsible for entering all medical duty status (MDS) assignments (See

Attachment A). This code is replaced with a POSTPARTUM MDS code when the inmate is in

postpartum recovery, which is the 12-week period after birth, or longer as determined by the

healthcare professional. Medical staff immediately notify the Case Manager and the Social

Worker as well as all other institution staff. In cases where there is no local Social Worker, the

Regional Social Worker is notified. The Social Worker meets with the inmate to discuss options

for child placement, abortion, and programming. Health Services staff document this contact

and the inmate’s notification of residential parenting program options in an electronic database

within five calendar days of the meeting. Additional MDS codes related to residential parenting

placement referrals will be entered as soon as a determination for placement is made.

§551.23 Abortion.

(a) The inmate has the responsibility to decide either to have an abortion or to

bear the child.

(b) The Warden shall offer to provide each pregnant inmate with medical,

religious, and social counseling to aid her in making the decision whether to

carry the pregnancy to full term or to have an elective abortion. If an inmate

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chooses to have an abortion, she shall sign a statement to that effect. The inmate

shall sign a written statement acknowledging that she has been provided the

opportunity for the counseling and information called for in this policy.

When medical, religious, and social counseling sessions are completed, each staff member

involved documents the session in a memorandum to the inmate’s Central File.

A copy of each request for an elective abortion and the supporting documentation from the

medical, religious, and social counseling sessions is sent for information purposes to the Medical

Director’s attention.

(c) Upon receipt of the inmate’s written statements required by paragraph (b) of

this section, ordinarily submitted through the unit manager, the Clinical Director

shall arrange for an abortion to take place.

The Bureau assumes all costs (to include escort and transportation of the inmate to an outside

facility) associated with the abortion procedure only when the life of the mother would be

endangered if the fetus is carried to term, or in the case of rape or incest.

In all other cases, non-Bureau funds must be used to pay for any the abortion procedure, or else

the planned abortion may not be performed. In all cases, however, whether the Bureau pays for

the abortion or not, the Bureau may expend funds to escort the inmate to a facility outside the

institution to receive the procedure. Escorted trips or furloughs may be contemplated to arrange

for the abortion. All expenses, including transportation and escort costs, are assumed by the

inmate, the inmate’s family, or other appropriate non-federal government funded sources

approved by the Warden.

If an inmate is furlough eligible, the Warden may allow an inmate furlough. Refer to the Program

Statement Inmate Furloughs for more information. If the inmate is not furlough eligible, the

necessary funds must be deposited to the inmate’s trust fund account prior to the trip for the

procedure. Funds paid by the inmate for purposes of the escorted trip are then drawn, payable to

the Treasury of the United States. Unexpended funds are returned to the inmate’s trust fund

account following completion of the trip. Refer to the Program Statement Escorted Trips for

more information.

The Regional Counsel shall be consulted if there are questions concerning the interpretation of

laws and regulations.

Pursuant to Section 103 of the Department of Justice Appropriations Bill for Fiscal Year 1996

(Public Law 104-134), the Bureau may not use appropriated funds to require any person to

perform or facilitate the performance of an abortion. Staff who wish to have no involvement in

facilitating the performance of abortions must advise their supervisor of this fact. Supervisors

must not order a staff member’s involvement in facilitating this procedure.

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§551.24 Child placement.

(a) The Warden may not permit the inmate’s new born child to return to the

institution except in accordance with the Bureau of Prisons policy governing

visiting.

(b) Child placement is the inmate’s responsibility. The Warden shall provide

opportunities for counseling by institution staff and community social agencies

to aid the inmate with placement.

(c) The institution staff shall work closely with community agencies and persons

to ensure the child is appropriately placed. The staff shall give notice to the

responsible community agency of the inmate’s plan for her child. Child welfare

workers may come to the institution in appropriate cases to interview and

counsel an inmate.

Social work staff must establish a liaison with the welfare agency or its equivalent and ensures

the Bureau receives advance notice of the intended child placement to allow sufficient time for

their investigation of potential home sites for the child.

Social Workers also meet with the inmate to provide information regarding Bureau programs for

pregnant females. These programs include Mothers and Infants Together (MINT) and the

Residential Parenting Program (RPP). The social worker documents this informational contact

in the Electronic Medical Record and notifies the Women and Special Populations Branch

Administrator, Regional Social Worker, and institution Clinical Director of any inmate wishing

to participate in either program.

Administrative discretion is used in deciding to pay for immediate post-natal care of an inmate’s

child while in custody when the Bureau finds itself responsible for the cost by default (no other

resources can be compelled to pay). It is reasonable that the Bureau provides for the child’s

medical expenses for the first three days after routine vaginal birth or up to seven days for a

Caesarean section.

Prior to the birth, the mother must make arrangements for a custodian to take care of the child.

At this time, the CEO ensures the person or agency taking custody of the child is also asked to be

responsible for medical care costs beyond three days after birth. (Note: This may be extended by

the Regional Director for an additional seven days for extenuating circumstances on a case-by-case basis.) The person(s) receiving custody of the child should sign a Statement of

Responsibility for medical care costs, clearly indicating that the signing party accepts financial

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responsibility. Unit management advises the inmate to obtain the statement while the inmate is

still in the institution. Unit management will then forward copies to the Health Services

Administrator (HSA) for placement in the HSA’s outside hospitalization file, and to the Business

Office.