In accordance with Chapter 625, Acts of Assembly, 2024 Session, the Virginia Department of Criminal Justice Services (DCJS), in collaboration with the Virginia Department of Behavioral Health and Developmental Services (DBHDS) and the Virginia Department of Health (VDH), convened a workgroup to study and make recommendations related to prioritizing treatment for incarcerated women who are pregnant and in need of substance abuse treatment. DCJS presented information to the workgroup from federal sources and other states, healthcare professional associations, and current Virginia laws, regulations, and standards related to treatment for pregnant women and individuals with a substance use disorder (SUD).

Based on these reviews, the workgroup developed the following recommendations. Most of these recommendations will require additional funding.

1) Revise Virginia Board of Local and Regional Jails (BOLRJ) Minimum Standards to include:

a. When, at the admission screening, a female responds affirmatively to the pregnancy inquiry, a pregnancy test shall be made available as soon as possible but no later than within 72 hours of booking. Thereafter, pregnancy tests shall be made available to individuals at assessment, within 14 days of admission, or as directed by a medical authority.

b. Pregnant individuals shall be assessed for potential alcohol and/or substance use within 72 working hours (three business days) of admission screening, initial confirmation of pregnancy, or earlier as deemed necessary by the medical authority, and necessary treatments shall be made available. Additionally, documented efforts shall be made to refer pregnant individuals to a licensed obstetric provider (OBGYN, Nurse Practitioner, or midwife) for initiation of care as soon as possible but no later than within 72 working hours (three business days) of assessment, initial confirmation of pregnancy, or earlier as deemed necessary by the medical authority.

2) Adopt the following “best practices" statement regarding treatment for pregnant women with a SUD: “All pregnant women in carceral settings should be offered and have access to evidence-based substance use disorder evaluation and treatment."

3) To the extent possible, pregnant individuals should be diverted from incarceration and instead placed in appropriate community programs that recognize their unique treatment needs. This could be done through approaches such as family dockets, programs through local community services boards, and other treatment-oriented programs. Judges and other stakeholders will need to be educated about these alternative options.

4) Provide training to correctional facility administrators and staff on the special needs of pregnant individuals. In addition to an awareness to provide appropriate medical and psychological treatment, correctional facilities need to remain aware of the legal rights afforded incarcerated individuals.

5) Avoid the use of language that stigmatizes pregnant individuals, include those with lived experience in decision-making regarding this population, and address the need for trauma-informed responses when working with this population.

6) Facilities should develop a discharge plan to address pregnancy and postpartum needs following release. These services should include connection to an OBGYN provider, substance use disorder treatment, and Medication Assisted Treatment, if applicable. These plans should also be extended to the pretrial population. These plans should be developed prior to release to ensure “wrap around" services that prevent gaps from occurring in the period immediately following release. Providing such wrap-around services would reduce the risk of post-release relapse and overdose.

7) Provide access to Medication Assisted Treatment for a minimum of one-year postpartum (regardless of how the pregnancy ends). Providing such treatment will assist with postpartum depression and reduce the risk of post-release relapse and overdose.

8) Examine the feasibility of increasing Virginia’s number of Social Security Act 1115 waiver applications to allow pregnant individuals to access Medicaid while incarcerated. Current federal law generally prohibits incarcerated individuals from receiving Medicaid assistance. However, 1115 waivers give states additional flexibility to design and improve their programs, and to demonstrate and evaluate state-specific policy approaches to better serving Medicaid populations.

9) Examine the feasibility of the Commonwealth assuming financial responsibility for all pregnant individuals (including postpartum services) whether in Virginia Department of Corrections (VADOC) facilities or in local or regional facilities regardless of state responsible or local responsible status.

10) Increase training and support to local and regional jails on how to identify funding opportunities and better enable them to apply for grant funding to provide services to individuals under their custody.

11) A separate study should be conducted to develop recommended treatment standards for juvenile pregnant individuals with SUD that are confined in state or local facilities.

12) Virginia should collect more complete data concerning the prevalence of pregnant individuals with a SUD who are incarcerated to include:

a. Establish a mandatory process for identifying, counting, and tracking the number of incarcerated individuals who are pregnant and in need of substance use disorder treatment, to include the demographics of this population.

b. Conduct a study of how pregnant individuals are perceived and treated at different steps in the justice system – by law enforcement, prosecution, the judiciary, corrections, and post-release.

c. Develop a statewide inventory of services that are available to pregnant individuals in the justice system and examine the effects of these services on outcomes to determine best practices.