Please note that Standards referenced throughout this FAQ often apply to multiple sets of PREA Standards. Along with different standard numbers, the different sets of standards use different terminology to refer to the population they house including “inmate,” “detainee,” and “resident.” When referencing a standard that applies equally to all facilities covered under PREA, the language in the question and answer will, unless specified, refer to the Adult Prisons & Jails standard numbers and use the term “inmate” to refer generally to the populations in those facilities. The FAQ search functionality uses the standard numbering from the Adult Prisons and Jails, regardless of the specific setting. When a standard is selected, the search will identify all FAQs related to that standard across all standard settings.

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May 10, 2021
Q:

What is meant by the term “objective screening instrument” in PREA Standard 115.41?

A:

PREA Standard 115.41 requires facilities to assess all inmates “for their risk of being sexually abused by other inmates or sexually abusive toward other inmates” and such assessments shall be conducted using an objective screening instrument.” (emphasis added).

The Department made clear in the PREA Notice of Final Rule that the “standard provides that the agency shall attempt to ascertain specific information about the [resident, inmate, or detainee] and that the agency develop an objective, rather than subjective, process for using that information…” See 77 Fed. Reg. 37106, 37154 (June 20, 2012) (emphasis added). Objective screening instruments have been used in corrections and other disciplines for decades in order to create uniformity, accuracy, and transparency in internal decision-making processes.1 Such instruments lead to a presumptive determination of risk, and are “point-additive,” “decision-tree,” or “software-based algorithm.” 

While a PREA-compliant objective screening instrument must consider various enumerated factors, the Department of Justice made clear that the standards do not “mandate the weight to be assigned to any of the enumerated factors in making placement and classification decisions.” See 77 Fed. Reg. 37106, 37154 (June 20, 2012). The standards require the following factors to be included in the objective risk-screening determinations for risk of victimization:  (1) Whether the inmate has a mental, physical, or developmental disability; (2) The age of the inmate; (3) The physical build of the inmate; (4) Whether the inmate has previously been incarcerated; (5) Whether the inmate’s criminal history is exclusively nonviolent; (6) Whether the inmate has prior convictions for sex offenses against an adult or child; (7) Whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming; (8) Whether the inmate has previously experienced sexual victimization; (9) The inmate’s own perception of vulnerability; and (10) Whether the inmate is detained solely for civil immigration purposes. See 28 C.F.R. § 115.41(d).

In addition, an objective screening instrument must consider: “prior acts of sexual abuse, prior convictions for violent offenses, and history of prior institutional violence or sexual abuse, as known to the agency, in assessing inmates for risk of being sexually abusive.” See 28 C.F.R. § 115.41(e).  

Additional Considerations for PREA-Compliant Objective Screening Instruments 

Objective screening instruments are “rules-based” and include the following essential features:

  1. Developing and implementing a uniform list of risk factors and assigning reasonable weights for each risk factor based on available evidence and reasonably informed assumptions.2  
  2. Assigning objective outcome thresholds based on the totality of weighted risk factors (weighted inputs lead to presumptive outcome determinations). 
  3. Using a uniform process to obtain information on the applicability of each risk factor to individual inmates.
  4. Making an objective risk determination based on the aggregate of the inmate’s individual weighted risk factors.3   

Agencies may include additional relevant factors in their screening instrument(s) based on the availability of additional known risk factors as they become available. For example, additional risk factors may be identified based on agency- and facility-specific sexual abuse incident data. The Bureau of Justice Statistics also publishes data on individual-level characteristics associated with a heightened risk of victimization that an agency may use to identify additional risk factors or inform the weight to be assigned to individual risk factors. Agencies may use one screening instrument to assess both risk of sexual abusiveness and victimization or use separate instruments. It is important to know that an inmate may be both at heightened risk of victimization and abusiveness. 

While objective screening instruments are designed to arrive at an objectively presumptive outcome, an agency may override the presumptive outcome based on unusual or unanticipated circumstances. However, override determinations are often subjective and should be limited. Overrides greater than 15-20 percent may transform an objective system into a largely subjective system. In cases where agencies override a large percentage of objective determinations, the agency should consider reassessing their screening instrument and individual factor weightings to accommodate the reasons many determinations are being overturned.

Agencies should attempt to tailor their objective screening instruments to the unique characteristics (e.g., specialized populations, inmate demographics, program type) of their various facility types. For example, the factor weighting appropriate for a minimum-security prison may create considerable over-screening in a sex-offender treatment facility. Similarly, agencies should also periodically reassess their screening instrument over time, as the nature of their facility populations may shift. The goal of an objective classification system is to, in an any given confined population, identify the most vulnerable and most predatory inmates, and keep those inmates separate. See 28 C.F.R. § 115.42(a). If an objective screening instrument identifies 100 percent or zero percent of a population as vulnerable; or conversely predatory; the system may not accomplish this goal.


1 See, e.g., James Austin, Ph.D., Objective Jail Classification Systems, National Institute of Corrections (Feb. 1998) https://www.michigan.gov/documents/corrections/Objective_Jail_Classification_Systems_-_A_Guide_for_Jail_Administrators_294757_7.pdf; Jack Alexander Ph.D., Handbook for Evaluating Objective Prison Classification Systems, National Institute of Corrections (June 1992) https://www.ncjrs.gov/pdffiles1/Digitization/139891NCJRS.pdf#:~:text=Objective%20classification%20systems%20are%20those%20in%20which%20classification,the%20instrument%20to%20inmates%20in%20a%20systematic%20manner; David Steinhart, Juvenile Detention Alternatives Initiative, Annie E. Casey Foundation (2006); https://www.aecf.org/m/resourcedoc/aecf-juveniledetentionriskassessment1-2006.pdf#page=4; Keith Cooprider, Pretrial Risk Assessment and Case Classification: A Case Study Control, Federal probation Journal (Vol. 73, No. 1) https://www.uscourts.gov/sites/default/files/73_1_2_0.pdf (“the practice of objective risk assessment is a basic principle of the Evidence-Based Practice (EBP) initiative…”).  

The Bureau of Justice Statistics periodically publishes PREA-related data collection reports, among other things, identifying victim-characteristic correlation to victimization: https://www.bjs.gov/index.cfm?ty=tp&tid=20

“Validation” is another positive, yet costly, feature of an objective system.  The Department chose not to include a validation requirement in its standards. See e.g., 77 Fed. Reg. 37106, 37151 (June 20, 2012); https://www.prearesourcecenter.org/node/3246.

Standard: 115.41
Categories: Screening
Feb 06, 2020
Q:

Are rape crisis centers or other victim service providers appropriate entities to serve as external reporting entities, pursuant to PREA Standard 51(b)?

A:

Generally, no. PREA Standard 51(b) provides that: “The agency shall also provide at least one way for inmates to report abuse or harassment to a public or private entity or office that is not part of the agency, and that is able to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials, allowing the inmate to remain anonymous upon request.” The purpose of this provision is to provide inmates with a way to report sexual abuse or harassment to someone outside of the corrections agency. The focus of this standard is on reporting of sexual abuse and sexual harassment, not on providing support to victims. 

Rape crisis centers and other victim service providers have a mission of providing support and services to victims. Under federal law, if such centers and providers are funded at least in part, either as a direct recipient or as a subrecipient, by the Violence Against Women Act (VAWA, 34 U.S.C. 12291(b)(2)), the Family Violence Prevention and Services Act (FVPSA, 42 U.S.C. 10406(c)(5)), or the Victims of Crime Act Victim Assistance Program (VOCA Assistance, 28 C.F.R. § 94.115), they are required to keep identifying information about victims confidential. The only limited exceptions to this requirement are when the victim signs an informed, written, time-limited release, or when release is required by a legal (court or statutory) mandate. This requirement to keep confidential identifying information about victims conflicts with the requirement of PREA Standard 51(b) to be able to immediately forward reports of sexual abuse and sexual harassment to agency officials. 

Although the federal funding/grant restrictions identified above do allow for anonymous reporting, the restrictions do not permit the provider to immediately forward all information about an allegation (including the inmate’s identity) to agency officials in cases where the inmate does not request anonymity. In order to immediately forward all information about an allegation (including the inmate’s identity) to agency officials in cases where the inmate does not request anonymity, the provider would need an immediate written release, which is unlikely to be feasible in the confinement facility context.

Most rape crisis centers and victim service providers receive federal FVPSA, VAWA, and/or VOCA Assistance funds. Many victim services providers may not realize that they are receiving these federal funding streams, because these programs are funded by formula grants that are awarded to local programs by states or territories. Even for those rape crisis centers and victim service providers that are not federally funded, there are often state confidentiality or privilege laws that apply. For more information about the VAWA confidentiality provision, see https://www.justice.gov/ovw/page/file/1006896/download.   

It is very unlikely that a rape crisis center or other victim service provider will be able to carry out the requirements of PREA Standard 51(b) without violating state or federal laws.

Standard: 115.51
Categories: Contracting, Contract Services, Compliance
Feb 06, 2020
Q:

What is the difference between “anonymous” reporting as used in PREA Standard 115.51(b), “confidential” as used in PREA Standard 115.53, and “privately report” as used in PREA Standard 115.51(d)?

A:

PREA Standard 51(b) requires agencies to “provide at least one way for inmates to report abuse or harassment to a public or private entity or office that is not part of the agency, and that is able to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials, allowing the inmate to remain anonymous upon request.” The term “anonymous” as used here means that the inmate must have the ability (at the inmate’s request) to keep his or her identity protected from disclosure to agency and facility personnel. However, the external reporting entity must be able to immediately forward the substance of the allegation back to agency officials. Also, when the inmate does not affirmatively request anonymity, the external reporting entity must be able to immediately report the entirety of the allegation back to agency officials. See also, https://www.prearesourcecenter.org/node/3285.

PREA Standard 115.53(a) requires facilities to “provide inmates with access to outside victim advocates for emotional support services related to sexual abuse…” and “shall enable reasonable communication between inmates and these organizations and agencies, in as confidential manner as possible.” The Department of Justice acknowledges that a limited number of agency and facility officials may need to know the identity of the inmate utilizing these services. For example, when these services are provided in-person through the inmate visitation process, certain facility personnel will need to know the nature of the visits. However, in these instances, staff should protect this information from internal dissemination to the greatest extent possible. In addition, it is almost always possible for facilities to maintain complete confidentiality with respect to the substance of communications between the inmate and the outside emotional support service provider. In addition, PREA Standard 115.53(b) requires facilities to “inform inmates, prior to giving them access, of the extent to which such communications will be monitored and the extent to which reports of abuse will be forwarded to authorities in accordance with mandatory reporting laws.”

PREA Standard 115.51(d) requires agencies to “provide a method for staff to privately report sexual abuse and sexual harassment of inmates.” The term “privately report” as used here requires that staff must have an avenue to make a report in a manner that other staff (without a need-to-know) are not made aware of such a report.

As stated in the PREA Notice of Final Rule: “In requiring agencies to provide a method for staff to report sexual abuse and sexual harassment ‘privately,’ the Department means that agencies must enable staff to report abuse or harassment directly to an investigator, administrator, or other agency entity without the knowledge of the staff member’s direct colleagues or immediate supervisor.” In addition, “[a] private reporting mechanism may provide a level of comfort to staff who are concerned about retaliation, especially where the staff member reports misconduct committed by a colleague.” See 77 Fed. Reg. 37157 (June 20, 2012).        

Standard: 115.51, 115.53
Categories: Compliance
Feb 03, 2020
Q:

What inmate education and information must be available to inmates before an external reporting mechanism may be considered compliant with PREA Standard 115.51(b) and PREA Standard 115.33?

A:

PREA Standard 115.33(a) requires that “[d]uring the intake process, inmates shall receive information explaining…how to report incidents or suspicions of sexual abuse or sexual harassment.” PREA Standard 115.33(f) requires that agencies “ensure that key information is continuously and readily available or visible to inmates through posters, inmate handbooks, or other written formats.”

One item that is generally considered to be “key information” is the ability of inmates to “to report abuse or harassment to a public or private entity or office that is not part of the agency, and that is able to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials, allowing inmates to remain anonymous upon request.” See PREA Standard 115.51(b).

Pursuant to these Standards, the general requirements include:

  • Clear and accurate information about which reporting mechanisms satisfy the external reporting requirement;
  • Information must be readily accessible to inmates and available from multiple sources (e.g. signs, admission and orientation materials, etc.);
  • Information must be consistent among the multiple sources; and
  • How to utilize the reporting mechanisms, if the inmate wishes to remain anonymous.

By contrast, the following three examples illustrate scenarios that are not consistent with these standards:

  1. The facility informs inmates only that they “may report sexual abuse or sexual harassment by: (1) telling any staff member, (2) filing a grievance, (3) sending a note to the PREA Compliance Manager, or (4) contacting the PREA hotline at 555-555-5555.” 

This does not satisfy PREA Standard 115.33 or PREA Standard 115.51(b) because the facility does not indicate which avenue, if any, is the external reporting entity. While an inmate could “guess” that the PREA hotline is an external reporting entity, it is at least equally likely that the PREA hotline is an internal agency contact. In addition, there is no indication of how the inmate may request anonymity.

  1. The facility informs inmates only that they “may report sexual abuse or sexual harassment to the State OIG, an external entity, by calling the PREA hotline at #55. Inmates may request anonymity – that their identity will not be provided to agency personal.” However, inmates are required to enter their identification number prior to gaining access to any call, and facility signage above the phones indicates that “all calls are subject to monitoring and recording by facility staff.”

This does not satisfy PREA Standards 115.33 or PREA Standard 115.51(b) because inmates are provided with conflicting information, and there is no reasonable basis to believe that the State OIG permits anonymity.

  1. The facility provides all inmates with a handbook at intake that, among other things, informs them that they “may report sexual abuse or sexual harassment by writing to the State OIG, an external reporting entity, at 555 Maple Lane, Capital, State 55555. To do so, inmates must request a prepaid envelope from their Unit Manager. All outgoing mail is subject to inspection by staff. Mail will not be accepted without the inmate’s name and identification number on the envelope.”

This does not satisfy PREA Standard 115.33 or PREA Standard 115.51(b) because there is no information informing inmates about their ability, or how, to request anonymity. In addition, the procedures listed in the handbook would lead most inmates to believe that their report could not be anonymous.

It is important to note that some agencies change their mechanism for inmates to make external reports pursuant to PREA Standard 51(b) over the course of time. When this happens, agencies should ensure that older signage, handbooks, and other educational materials are updated appropriately. It is not uncommon for facilities to maintain legacy information for inmates describing two or more different external reporting mechanisms, even while some of those mechanisms no longer exist. The presence of conflicting and outdated information for inmates on this issue creates confusion and diminishes the effectiveness of this important reporting avenue, and could potentially lead a PREA auditor to find noncompliance.

Finally, inmate education materials and staff training often provide conflated and confusing information regarding how inmates may access the external reporting entity pursuant to PREA Standard 115.51(b), and how to access outside confidential support services pursuant to PREA Standard 115.53. These standards serve different purposes, and each has distinct requirements (e.g., anonymity versus confidentiality). In addition, confidential emotional support service providers are typically not appropriate entities to serve as the external reporting entity. Accordingly, it is important that educational materials make clear the purpose and mechanisms for each of these services, so they are not conflated.

Standard: 115.33, 115.51
Categories: Inmate Education
Feb 03, 2020
Q:

What is the difference between the post-incident victim advocacy required in PREA Standard 115.21, and the outside confidential support services required in PREA Standard 115.53?

A:

PREA Standard 115.21(e) requires agencies to provide a victim advocate to, when requested by the victim, “accompany and support the victim through the forensic medical examination process and investigatory interviews and shall provide emotional support, crisis intervention, information, and referrals.” If a rape crisis center is not available to provide this service, the agency must provide a qualified staff member of a community-based organization, or a qualified agency staff member. The purpose of the standard is to provide victims with in-person advocacy and support during the forensic medical exam and investigatory interview. This is comparable with services that are generally available to victims in the community when they seek forensic exams or report sexual assaults. 

PREA Standard 115.53, by contrast, focuses on longer-term or ongoing counseling and support for victims, which could be provided by phone or mail, or offered in person. This standard is also intended to provide victims with a way to reach out to a provider to request support. Specifically, this standard requires the facility to:

  1. Provide victims with mailing addresses and phone numbers (including toll-free hotlines where available) for victim advocacy or rape crisis organizations, and enable communication between inmates and victim service providers in “as confidential a manner as possible;”
  2. Inform inmates of the extent to which their communications with victim service providers will be monitored, and the extent to which reports of sexual abuse will be forwarded to authorities, in accordance with mandatory reporting laws; and
  3. Attempt to enter into agreements with victim service providers to provide inmates with confidential sexual abuse support services.

One example of how facilities and agencies have met these requirements is by signing an agreement with a local rape crisis center to respond to hotline calls and provide advocates on-site at certain dates/times. On-site advocates can meet with individual victims and facilitate support groups. The focus of this on-site work is helping victims to recover from the longer-term trauma and emotional impact related to being a victim of sexual abuse.

While the victim advocacy requirements of PREA Standard 115.21 are generally triggered after an inmate makes a report of sexual abuse within a facility, agencies are required to provide all inmates with access to outside confidential support services under PREA Standard 115.53, whether or not they make allegations of sexual abuse.

Standard: 115.21, 115.53
Categories: Compliance
Oct 31, 2019
Q:

What does “confinement” mean in the context of PREA and juvenile facilities?

A:

The term “Juvenile facility” is defined in the PREA standards as “a facility primarily used for the confinement of juveniles pursuant to the juvenile justice system or criminal justice system.” See PREA standard 115.5. Emphasis added. The term “confinement” is broad in scope. 

The Department of Justice (DOJ) interprets the term “confinement” in the PREA juvenile facilities context to include placement of a juvenile, either directly or as a condition of disposition or sentencing, in a residential (overnight) facility, pursuant to delinquency or criminal justice involvement, where the juvenile may face a juvenile justice or criminal justice consequence or sanction for unauthorized departure from the facility.[1] 

The PREA standards include explicit coverage for facilities providing rehabilitation and treatment services. For example, “community confinement facilities” include facilities that provide services such as a “community treatment center… [a] mental health facility, [an] alcohol or drug rehabilitation center, [facilities that provide] vocational training, treatment, and educational programs…” See PREA standard 115.5. When a facility meets the definition of both a “community confinement facility” and “juvenile facility,” the “juvenile facility” standards apply. See related FAQ.

The PREA standards also explicitly include coverage for facilities that are not “secure.” The juvenile facility standards apply to facilities falling under the broad definition of “juvenile facility.” By contrast, the term “secure juvenile facility” is a narrower subset of all “juvenile facilities,” and applies in both hardware-secure and staff-secure settings. See PREA standard 115.5. The standards place two additional requirements on “secure juvenile facilities,” including a minimum staffing ratio requirement, and a requirement for unannounced supervisory rounds. See PREA standards 115.313(c)&(e). The juvenile facility standards also include explicit references to traditionally non-secure facilities, such as “group homes,” if such homes otherwise qualify under the definition. See PREA standard 115.315(d).[2]

The PREA statute defines a “prison” to include, among other things, “any juvenile facility used for the custody or care of juvenile inmates.” See 34 U.S.C. s. 30309(7)(b). Emphasis added. The inclusion of the phrase “or care” suggests an acknowledgment that states identify a variety of purposes for confining juveniles within the spectrum of delinquency interventions, including rehabilitation and treatment.

Federal courts routinely find and uphold determinations that placements of youth pursuant to juvenile justice and criminal justice systems in treatment and rehabilitation facilities to fall within the meaning of “confinement,” for purposes of applying federal sentencing guidelines.[3]


[1]                By contrast, DOJ has explicitly exempted traditional foster care from coverage under the PREA standards, even when used exclusively to house justice-involved youth. See the related FAQ.

[2]                “In facilities (such as group homes) that do not contain discrete housing units, staff of the opposite gender shall be required to announce their presence when entering an area where residents are likely to be showering, performing bodily functions, or changing clothing.”

[3]           See U.S. v. Hanley, 906 F.2d 1116 (6th Cir., June 28, 1990) (delinquency related commitment to Michigan Department of Social Services, and placement in Shiloh Family Home considered prior “confinement”); U.S. v. Kirby, 893 F.2d 867 (6th Cir., Jan. 16, 1990) (custodial commitment to Kentucky Cabinet for Human Resources for seven months considered “imprisonment,” federal law applies to determination); U.S. v. McNeal, 175 Fed. Appx. 546 (3rd Cir. Apr. 11, 2006) (delinquency related commitment to Abraxas Leadership Development Program considered “confinement,” and a sentence to a juvenile detention institution, or to the custody of a state agency, where a juvenile is not free to leave for more than 60 days, was sentenced to “confinement”); U.S. v. Davis, 929 F.2d 930 (3rd Cir., Apr. 2, 1991) (indeterminate sentence to Glen Mills School “where he was not free to leave” was sentenced to “confinement”); U.S. v. Williams, 891 F.2d 212 (9th Cir., Dec. 6, 1989) (“juveniles who are sentenced to juvenile hall are not free to leave…although the purpose of juvenile sentencing is rehabilitative rather than strictly punitive, the effect is nonetheless to deprive the juvenile of liberty…[W]e find that commitment to juvenile hall is a form of confinement.”).

 

Standard: 115.5
Categories: Definitions, Youthful Inmates
Aug 02, 2019
Q:

Does a juvenile facility’s receipt of, or eligibility to receive, Medicaid funding administered by the United States Department of Health and Human Services impact the determination of whether or not the facility is covered under the PREA standards?

A:

No. Applicability of the PREA standards is determined exclusively by whether a facility meets the definition of one of the five covered facility types defined in the standards: Prisons, Jails, Lockups, Juvenile Facilities, and Community Confinement Facilities.

The term “Juvenile facility” is defined in the PREA standards as “a facility primarily used for the confinement of juveniles pursuant to the juvenile justice system or criminal justice system.” (See 28 C.F.R. § 115.5.)

Standard: 115.5
Categories: Youthful Inmates
Aug 02, 2019
Q:

Is a public agency that contracts with another public or private agency for the confinement of inmates, detainees, or residents out of compliance with Standard 115.12/112/212/312 if the contracted facility is determined to be noncompliant with one or more provisions of the PREA Standards by either its required triennial audit, or by the contracting agency’s contract monitoring?

A:

PREA standards 115.12, 115.112, 115.212, and 115.312 require that new or renewed contracts for the placement of inmates include both a requirement to comply with PREA, and that the contracting agency conduct contract monitoring “to ensure that the contractor is complying with the PREA Standards.”

On February 19, 2014, during the first half of the first auditing year, the Department of Justice (DOJ) provided guidance that (at the time of issue) contracted facilities needed not “be immediately and perfectly compliant with the Standards,” in order for the contracting agency to be considered in full compliance. Rather, DOJ determined that it was sufficient for the contracted facility to “be actively and effectively working toward achieving compliance with all the Standards” and that the contracting agency fully document the progress toward full compliance. This guidance was not intended to provide an avenue for noncompliant contracted facilities to be utilized by agencies in perpetuity.

As such, as of August 20, 2022,[1] contracting agencies shall ensure that any facility that has been contractually required to comply with PREA for at least 36 months has achieved full compliance with the PREA standards, and will maintain compliance as a condition for continued use of such facility by the contracting agency.

For a discussion regarding the contract monitoring obligations of a contracting agency, click here.

Revised August 2, 2019. Original posting date February 19, 2014.

 


[1]                By way of reference, the Justice for All Reauthorization Act of 2016 provides generally that as of 2022, state agencies will no longer be able to utilize the “assurance” option to avoid losing a portion of certain federal grant funds. See Public Law No: 114-324.

Standard: 115.12
Categories: Contracting
Aug 02, 2019
Q:

What determines whether a facility is “primarily used for” a particular purpose under the PREA standards?

A:

The simplest way to make this determination is to determine whether, over a period of one year, the facility holds more people for that purpose than for any other purpose.

For facilities whose populations vary significantly from year to year, agencies may require some predictability for three-year PREA audit cycle planning and scheduling purposes.  In such cases, agencies may rely on the facility’s historical “primary use” calculation over the prior three-year period. Agencies may make this calculation based on: (1) the annual calculation for the prior three-year period (e.g., the primary use in two or more years of the prior three-year period), or (2) the aggregated average daily population use over the entirety of the prior three-year period.

For facilities that have been open fewer than three years, the agency may rely on the “primary use” of a facility since the facility opened.

Revised August 2, 2019. Original posting date July 9, 2013.

Standard: 115.5
Categories: Covered Facilities, Definitions
Aug 02, 2019
Q:

Standards 115.41(f) and 115.241(f) require that the facility “reassess the inmate’s/resident’s risk of victimization or abusiveness based on any additional, relevant information received by the facility since the intake process” and that it do so no more than 30 days after intake. The question is whether this standard subsection requires that EVERY inmate be reassessed within 30 days of arrival at the facility to determine whether any relevant new information exists; OR, alternatively, whether it requires that some process be in place to capture new information that arrives at the facility within 30 days and, when new information arrives, it prompts a reassessment?

A:

The standard requires both. First, there is a general and continuing obligation to conduct a screening reassessment whenever warranted upon receipt of additional relevant information. Specifically, standard 115.41(g) requires that “[a]n inmate’s risk level shall be reassessed when warranted due to a referral, request, incident of sexual abuse, or receipt of additional information that bears on the inmate’s risk of sexual victimization or abusiveness.” This continuing obligation extends through the duration of the inmate’s incarceration.

By contrast, the standards also require an affirmative reassessment within a set time period, but no later than 30 days of intake. Specifically, standard 115.41(f) requires that “[w]ithin a set time period, not to exceed 30 days from the inmate’s arrival at the facility, the facility will reassess the inmate’s risk of victimization or abusiveness based upon any additional, relevant information received by the facility since the intake screening” (emphasis added).

While standard 115.41(f) requires an affirmative reassessment within 30 days, the reassessment need not “start from scratch.” For example, as noted in the PREA Notice of Final Rule, a facility may generally rely upon information previously gathered, so long as the reassessment “captures any changes in risk factors that may have occurred subsequent to the facility’s prior gathering of information regarding that inmate.”

While a facility may (and should) have a system in place for capturing additional or new information from a variety of sources (e.g., mental health assessment, disciplinary history, or allegations of relevant threats or victimization), the 30-day affirmative reassessment requires, at a minimum, that screening staff consult available sources (including the inmate) to determine whether any previously unknown triggering event or information has become available and to document such review. In short, as opposed to the “passive” requirements under standards 115.41(g), standard 115.41(f) requires screening staff to affirmatively “look and inquire.”

Some risk factors are subject to change within the first 30-days after intake and may only be determined by making affirmative inquiry of the inmate.  For example, the “inmate’s own perception of vulnerability” can only be known by the inmate. See standard 115.41(d)(9). In addition, the inmate may have experienced unreported sexual victimization during this time period. See standard 115.41(d)(8). Accordingly, all 30-day reassessment requires consultation with the inmate.

As noted in the PREA Notice of Final Rule, “[t]he final standard requires that inmates who remain in custody undergo a more extensive classification process [within 30 days].” This requirement recognizes that information relevant to the risk and classification needs will become available as staff interview, assess, and observe the inmate, and as the facility receives information from other agencies and sources.

Revised August 2, 2019. Original posting date June 20, 2014.

 

Standard: 115.41
Categories: Screening