Legal and Regulatory 🤰

HOW

ALL jail staff should be knowledgeable and trained on how to comply with legal requirements related to pregnant individuals and those with OUD in custody. These legal considerations should also be incorporated into official jail policies for pregnant individuals and should explicitly state what NOT to do.

See MOMCARE Policies and Procedures for more details.

Action Items

1. Research and document your state’s laws regarding mandated availability of OUD treatment, use of restraints in pregnancy, and abortion, as well as PREA standards that apply to pregnancy.
2. Compare what the law states to what is in your official jail policy and protocol. Add content to your policy that explicitly states the law.
3. Ensure all jail staff are aware of the laws in your state regarding the use of restraints in pregnancy, abortion, OUD treatment, and PREA. Cover this material in in-service learning or team meetings and consider posting visuals around your facility as a reminder.
4. If the law is not followed, call it out and discuss what support and/or resources need to be put into place for adherence.
5. These laws are changing rapidly! Review laws at least once every 6 months. Consult others if you are unsure of how to interpret the law.

WHY 

No jail wants to be sued for negligence or mistreating the people in their custody, especially pregnant individuals. Lawsuits are not only costly, but they bring negative attention to correctional facilities; they may lead to a change in leadership, practices, potential funding, or consent decrees. Thus, jails should not only be aware of the legal concerns for housing pregnant patients with OUD, but also of how to make sure their practices comply with laws and standards of care.

Denying access to MOUD in custody: The legality of denying qualifying people in custody access to MOUD has been challenged in court as being unconstitutional under the Eighth Amendment’s prohibition on cruel and unusual punishment and as a violation of federal civil rights laws, including the Americans Disabilities Act. Increasingly, lawsuits or laws in several states are establishing a legal requirement that jails must provide evidence-based substance use disorder treatment in correctional facilities. Examples of litigation prompting state and local correctional facilities to provide MOUD.

🤰Non-use of restraints for pregnant, birthing, and postpartum patients in custody: Due to medical risks, custody restraints should not be used during pregnancy, childbirth, and the postpartum period (see  MOMCARE Labor and Birth). Most states have enacted laws that prohibit restraints during labor, and many of these laws also prohibit restraints at other points in pregnancy, transport, and the postpartum period. These laws may apply when taking a pregnant patient to an OTP for a daily methadone dose, for instance.

Under NO circumstances should a pregnant patient be handcuffed behind their back or around their belly and ankles. If the individual has attempted to escape or hurt others, the least invasive handcuffs should be used in front. NO birthing patient should be restrained in any way during childbirth under any circumstances (medical restraints are addressed by hospital policies). Several correctional facilities have been sued for violating the law and applying restraints to patients in labor (for instance, in Arizona, Maine, New Jersey, and North Carolina).

🤰PREA (Prison Rape Elimination Act): When a pregnant, birthing, or postpartum patient is undergoing a vaginal exam or is actively giving birth, a male custody officer cannot be present. Doing so would violate PREA Standard § 115.15, which restricts staff of the opposite gender from viewing an incarcerated person’s genitals.

Other legal and regulatory considerations include:

• DEA regulations on methadone dispensing: SAMHSA, in conjunction with the DEA, has recently updated the final rules of 42 CFR Part 8 regarding dispensing Methadone:

If the jail registers as a hospital or clinic, they can dispense methadone on-site as treatment for OUD to patients who have another primary medical diagnosis besides OUD.  For pregnant patients, pregnancy counts as a primary diagnosis! Here’s how your jail can register as a hospital or clinic. For more details, see MOMCARE MOUD Delivery Models.

Before this, methadone could only be dispensed or administered by a licensed Opioid Treatment Provider (OTP). If you would prefer to use an OTP, arrangements can be made to provide methadone to patients in jail. Jails can also become a license OTP.

• DEA 3-day regulations: Physicians are allowed to administer (not prescribe) one day’s worth of “narcotic medication” (methadone or buprenorphine), for up to 3 consecutive days, to treat withdrawal symptoms or maintenance treatment while treatment referral arrangements are being made. Learn how jails can use the 3-day rule to provide methadone and buprenorphine.

• DEA buprenorphine “x-waiver”: Providers are no longer required to obtain an X-waiver to prescribe buprenorphine. Any provider with a standard DEA registration number can prescribe buprenorphine. There are no longer limits to the amount of patients a provider can treat with buprenorphine. Please visit the SAMHSA website for more details on these regulation changes.

• 🤰Contractions and childbirth: Jails have been sued in cases where pregnant patients have given birth in their jail cells, after requesting to be taken to the hospital for labor. Make sure to train your medical and custody staff on the basics of when to transport a pregnant patient who might be in labor—and should you have a low threshold to transport someone! (see MOMCARE Labor and Birth)

• 🤰Abortion: Since the 2022 Supreme Court Decision Dobbs v. Jackson Women’s Health Organization, many states have passed laws banning or severely restricting abortion. Some of these laws have language that allows for the prosecution of people involved in causing harm to a fetus. It is not clear what this means for jail staff if there is an adverse pregnancy outcome in jail, such as when a pregnant patient in jail goes through opioid withdrawal and has a miscarriage. All the more reason to avoid opioid withdrawal for pregnant patients in your jail.
  • Use this MOMCARE 1-pager, Abortion in Custody: FAQs for Correctional Staff, to educate correctional staff on why someone might seek an abortion and what jail staff need to know if someone requests and obtains an abortion in custody. 

• SAMHSA Rules on Methadone in Correctional Settings
  • Updated final rules of 42 CFR Part 8
  • FAQs on the updated SAMHSA methadone rules
  • Register as a hospital or clinic
• Buprenorphine waiver elimination
• Over Jailed and Undertreated: How the Failure to Provide Treatment for Substance Use in Prisons and Jails Fuels the Overdose Epidemic – ACLU
  • What is Driving Reform? Lawsuits (p.12)
• Abortion in Custody: FAQs for Correctional Staff
• 🤰 Restraint Use 
  • Anti-shackling in pregnancy resource table and map – Provides anti-shackling legislation with an interactive map displaying the current anti-shackling laws for each state that prohibit the use of custody restraints during labor, delivery, and other points in pregnancy.
  • OJP Best Practices in the Use of Restraints with Pregnant Women Under Correctional Custody 
  • Nonuse of Restraints for Pregnant and Postpartum Incarcerated Individuals (2020) – National Commission on Correctional Health Care position statement on the nonuse of restraints for pregnant and postpartum individuals in custody.