Through a cooperative agreement between BJA and Impact Justice

Frequently Asked Questions

The final Department of Justice PREA Standards became effective on August 20, 2012. The Department will have more information forthcoming about compliance and monitoring of the standards, and that information will be available on this FAQ page.

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.

When selecting filters below, you may select multiple categories or standard numbers by holding “Ctrl” (or “Command” for Macs) before making a selection. Press “Clear” to begin a new search.

The “Expand All” link will reveal all FAQ search results. To print the results, use the "Print Selection" button, which expands all of them automatically in the printed document. If you want to see all unfiltered results, use the "Clear" button to remove previous selections.

 

 

Search FAQs

May 09, 2017
Q:

Facility-to-facility notifications of an allegation of abuse that occurred at an inmate’s prior facility pursuant to Standard 115.63(a) must be made to “the head of the facility or appropriate office of the agency where the alleged abuse occurred.” What constitutes “an appropriate office at the agency?”

A:

Standard 115.63(a) does not define what an “appropriate office” would be in this context. The intent of the standard is to urge facility heads to send the notification to an individual or office that will ensure the prior facility takes immediate steps to investigate the allegation appropriately and promptly. While the Department declines to provide an exhaustive list of individuals and offices that may be appropriate recipients of the allegation, notifications made to the facility head, the facility’s PREA Compliance Manager, the agency’s PREA Coordinator, and the Office of the Agency Head would be presumptively valid recipients.

For more information about Standard 115.63(a) and who must make the notification of an incident of sexual abuse that took place at a prior facility, please click here.

Standard Numbers: 115.63
Categories: Information Sharing
May 09, 2017
Q:

Does Standard 115.63(a) require that notification of an incident of sexual abuse that took place at a prior facility be made directly from the head of the facility receiving the allegation, or can some other designated person make the notification?

A:

The notification must, at a minimum, be: (1) Made at the direction of the facility head, and (2) Appear to a third party to have originated with the facility head. For example, the facility head could instruct his or her administrative assistant to send the notification on the facility head’s letterhead and with the facility head’s signature, or to send the notification from the facility head’s email address. By contrast, the facility’s PREA Compliance Manager could not send the notification from his or her email address and merely copy the facility head.

The intent of the standard is to ensure that the person receiving the report of sexual abuse at the prior facility understands the seriousness and gravity of the allegation, and that the communication originated at the highest level of the reporting facility. For more information about Standard 115.63(a) and who should receive the report of sexual abuse at the prior facility, please click here.

Standard Numbers: 115.63
Categories: Information Sharing
May 09, 2017
Q:

What are the implications for a secure juvenile facility that gets audited and meets full compliance prior to October 1, 2017, but was not audited on Standard 115.313(c) and does not meet the staffing ratio requirement after October 1, 2017? What information does the governor need about compliance with Standard 115.313(c) to certify the state’s or territory’s compliance?

A:

As required under Standard 115.313(c), “…Any facility that, as of the date of publication of this final rule, is not already obligated by law, regulation, or judicial consent decree to maintain the staffing ratios set forth in this paragraph shall have until October 1, 2017, to achieve compliance.” Thus, for many or most juvenile facilities, the juvenile staffing ratio requirement will not take effect until October 1, 2017, just over a month into Audit Year 2 of PREA Audit Cycle 2, which begins on August 20, 2017 and ends on August 19, 2018. Therefore, compliance with the juvenile staffing ratio will first impact each governor’s certification determination for Audit Year 2 of Audit Cycle 2, which will be due to the Department on

October 15, 2018. In order for a governor to submit a certification of full compliance with the PREA Standards for Audit Year 2 of Cycle 2, all facilities under the operational control of the executive branch, including facilities operated by private entities on behalf of the state’s or territory’s executive branch, must be in full compliance with all of the PREA Standards by August 19, 2018, which will include full compliance with Standard 115.313.

For example, in a given state or territory, some juvenile facilities may have been audited during Audit Year 1 of Audit Cycle 2 (August 20, 2016 – August 19, 2017), prior to the effective date of the juvenile staffing ratio requirement on October 1, 2017, and been found in full compliance. If these facilities have not yet implemented the juvenile staffing ratio requirement under Standard 115.313(c) by the end of Audit Year 2 of Audit Cycle 2 on August 19, 2018, these facilities would have met their auditing obligations under Standard 115.401. However, they would not be considered fully compliant with the PREA Standards because of their lack of compliance with the staffing ratio requirement in Standard 115.313(c).

For more information regarding the sources of information that governors should consider when making a PREA certification determination, please click here.

Standard Numbers: 115.13, 115.401
Categories: Compliance, Governor's Certification, Staffing Ratio
Apr 20, 2017
Q:

Do the PREA Standards require an agency to post final PREA audit reports on its website?

A:

Yes.

PREA Standard 115.403(f) states, “The agency shall ensure that the auditor’s final report is published on the agency’s Web site if it has one, or is otherwise made readily available to the public.” Therefore, if an agency website exists, all final audit reports must be published on it. Publishing final audit reports on an agency website does not preclude the agency from making the report available by other additional means if it chooses to do so. 

If an agency does not have a website, the PREA Standards require that the agency make all final PREA audit reports readily available to the public by other means (unless and until an agency website becomes operational).

Standard Numbers: 115.403
Categories: Auditing, Audit Process
Jan 30, 2017
Q:

How do I find out more about the Department of Justice grant programs that will be impacted if my governor does not submit a certification of compliance or an assurance?

A:

The DOJ offices operating these grant programs have each released FAQs regarding the impact of PREA on their programs. Click the links below to access the corresponding grant program FAQ:

Bureau of Justice Assistance Edward Byrne Memorial Justice Assistance Grants (JAG) FAQ

Office of Juvenile Justice and Delinquency Prevention's Title II Part B Formula Grants FAQ

Revised January 30, 2017 and April 19, 2016. Original posting date June 3, 2015.

Standard Numbers: 115.501
Categories: Governor's Certification, Penalty
Dec 02, 2016
Q:

What does “separate” mean in the context of the screening standards, which require that agencies shall use screening information to inform housing and programming decisions “with the goal of keeping separate those inmate/residents at high risk of being sexually victimized from those at high risk of being sexually abusive”?

A:

The PREA standards require agencies to obtain and assess information from and about inmates and residents in order to identify individuals who are at a heightened risk of being sexually victimized while in confinement, and those who are at a heightened risk of being sexually abusive while in confinement. The adult prison and jail standards and the community confinement standards specifically require that such screening information be used “with the goal of keeping separate” those inmate/residents at high risk of being sexually victimized from those at high risk of being sexually abusive.” See Standards 115.42(a) and 115.242(a). The meaning of the term “separate” is generally informed by the unique facts and circumstances of a facility, but the goal should be to keep those inmates as separate as reasonably possible

For example, facilities that are comprised of a single dormitory housing unit would be unable to house the two risk categories of inmates in separate housing units. In such a case, inmates at high risk of being abusive and abused should generally be bunked at opposite sides of the dormitory. Additionally, potentially vulnerable inmates should be bunked in areas more likely to receive additional staff supervision.

Similarly, in facilities with a single housing unit, but multi-person cells (two or more inmates per cell), vulnerable inmates should be kept in separate cells from potentially abusive inmates.

By contrast, facilities with multiple housing units provide far more options for keeping vulnerable and abusive inmates separate. In such cases, agencies should generally keep vulnerable inmates in separate housing units from inmates at risk for abusiveness. In cases where there are many housing units (e.g., more than ten), auditors will require compelling justification for any commingling within a housing unit.

In programming, education, and work areas, the goal should also be to keep such inmates separate. The Department of Justice recognizes that such separations may not always be feasible outside of housing units. In those cases, agencies should, at a minimum, prohibit unsupervised contact between vulnerable and potentially abusive inmates. Even supervised contact between these categories of inmates should be accompanied by heightened supervision and safeguards against sexual abuse and sexual harassment.

Standard Numbers: 115.42
Categories: Placement Decisions, Screening
Dec 02, 2016
Q:

Can you please clarify the parameters of conducting a search of a transgender or intersex inmate/resident?

A:

An agency cannot search or physically examine transgender or intersex inmates/residents/detainees for the sole purpose of determining their genital status. As noted in PREA Standards 115.15(d), 115.115(d), 115.215(d), and 115.315(d), if an inmate’s, resident's or detainee's genital status is unknown, an agency can determine it through conversations with the inmate/resident/detainee, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner. Additionally, agencies must provide training to security staff in how to conduct cross-gender pat-down searches and searches of transgender and intersex inmates/residents/detainees. See Standards 115.15, 115.115, 115.215, and 115.315. Security staff must conduct these searches in a professional and respectful manner; in the least intrusive manner possible, and consistent with security needs. Id.

Operationally, four options are in current practice for searches of transgender or intersex inmates/residents/detainees: 1) searches conducted only by medical staff; 2) pat searches of adult inmates conducted by female staff only, especially given there is no prohibition on the pat searches female staff can perform (except in juvenile facilities); 3) asking inmates/residents/detainees to identify the gender of staff with whom they would feel most comfortable conducting the search, and 4) searches conducted in accordance with the inmate’s gender identity.

Revised December 2, 2016. Original posting date February 7, 2013

Standard Numbers: 115.15
Categories: LGBTI Inmates/Residents/Detainees/Staff, Searches
Oct 21, 2016
Q:

Does standard § 115.41 (§ 115.241, § 115.341) require facilities to affirmatively inquire of the inmates/residents about their lesbian, gay, bisexual, transgender, or intersex (LGBTI) status, in addition to making a subjective determination about perceived status?

A:

Yes. In adult facilities, Standards 115.41 and § 115.241 require that “[a]ll inmates/residents shall be assessed during an intake screening and upon transfer to another facility for their risk of being sexually abused by other inmates/residents or sexually abusive toward other inmates/residents.” The inmate/resident screening shall consider, at a minimum, and among several other factors “[w]hether the inmate/resident is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming.” See 28 C.F.R. § 115.41(d)(7) and § 115.241(d)(7).

Similarly, in juvenile facilities, Standard 115.341 requires that the agency shall conduct a risk screening that “attempt[s] to ascertain information about… [among other factors,] any gender nonconforming appearance or manner or identification as lesbian, gay, bisexual, transgender, or intersex, and whether the resident may therefore be vulnerable to sexual abuse.”  See 28 C.F.R. § 115.341(c)(2).

For both adult and juvenile facilities, the enumerated factors require both an objective (is) and a subjective (is perceived to be) determination. The objective determination requires that an inmate/resident be affirmatively afforded an opportunity to self-identify as LGBTI, if the inmate/resident chooses to do so. In addition, staff should consider any other relevant knowledge or information regarding inmates’/residents’ LGBTI status. The subjective component—whether an inmate/resident appears gender nonconforming—necessarily requires a determination based on the perception of the screening staff. 

Perception is important because if the screener perceives that an inmate/resident might be considered LGBTI and/or gender nonconforming, then other inmates/residents (and staff) may have the same perception. Specifically, gender nonconformity is usually something that can be determined by staff, though that perception is not to be substituted for an inmate’s/resident’s own self-identification. Please note: an affirmative response does not require any specific course of action based on this one factor. It is one piece of information that should be evaluated in conjunction with the other factors listed in the PREA standards concerning the overall assessment of the inmate/resident. Inmates/residents may feel reluctant to provide screening staff with information regarding their identification as LGBTI due to, among other possible reasons, a fear that disclosure of such information may make the inmate/resident more vulnerable to sexual or physical abuse, or harassment. Accordingly, the standards require the agency to implement appropriate controls on the dissemination of screening information within the facility and to protect sensitive information. See 28 C.F.R. § 115.41(i), § 115.241(i), and § 115.341(e).While agencies are required to ask the inmate/resident if he or she chooses to identify as gay, lesbian, bisexual, transgender, and/or intersex, it is clear that the agency may not compel the inmate/resident to answer. Specifically, the adult facility standards provide that inmates may not be disciplined for refusing to answer (or for not disclosing) certain enumerated factors, including whether they identify as LGBTI. See 28 C.F.R. § 115.41(h) and § 115.241(h).  While there is no specific corollary in the juvenile facility standards, it would be counterproductive and harmful to punish young residents for refusing to provide this sensitive information.

The standards require that inmates/residents be assessed for these and other risk factors “during an intake screening within 72 hours1 of arrival at the facility, using an objective screening instrument.” See 28 C.F.R. §§ 115.41(a)-(c), §§ 115.241(a)-(c), and §§ 115.341(a)-(c). The standards further require that the agency use the information from the intake risk screening to inform housing, bed, work, education, and program assignments. See 28 C.F.R. § 115.42(a), § 115.242(a), and § 115.342(a). However, the standards do not mandate exactly when, where, how, or who should conduct the intake screening. If a particular facility determines that some or all sensitive screening inquiries should be asked by medical personnel or in an interview separate from the larger intake screening process, the facility administration may choose to structure the intake screening in an alternate manner that provides for appropriate privacy and candor. So long as the intake screening is conducted using an objective screening instrument, includes all of the required information, is completed within 72 hours, and is used to inform the inmate’s/resident’s risk status, facilities have the discretion regarding the most appropriate setting and screening personnel for asking inmates/residents sensitive screening questions.

The Department of Justice (DOJ) recognizes that some agencies may be hesitant (for any number of reasons) to affirmatively ask inmates/juvenile residents whether they identify as LGBTI. However, as indicated in the PREA Notice of Final Rule, DOJ remains of the view that appropriately trained intake staff should be competent to ask inmates/residents sensitive questions in a professional and effective manner. Both the adult facility and juvenile facility standards require agencies to train staff on “[h]ow to communicate effectively and professionally with inmates/residents, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming inmates…” See 28 C.F.R. § 115.31(a)(9), § 115.231(a)(9), and § 115.331(a)(9).  Effective and professional communication requires a basic understanding of sexual orientation, gender identity, gender expression, and how sex is assigned at birth. It also requires staff to be aware of their own gaps in knowledge and cultural beliefs, and how these factors may impact the ability to conduct effective interviews and assessments. An effective training will encourage open dialogue with staff, so that these issues can be addressed in a respectful and nonjudgmental manner, with a focus on encouraging behaviors that support staff members’ ability to meet their professional responsibilities. In addition, recognizing the sensitive nature of these issues with juvenile populations, the juvenile facility standards requires that “[s]uch training… be tailored to the unique needs and attributes of residents of juvenile facilities…” See 28 C.F.R. § 115.331(b).

The following webinars may be helpful:

Asking Adults and Juveniles About Their Sexual Orientation: Practical Considerations for the PREA Screening Standards 

Understanding LGBTI Inmates and Residents 


The adult prison and jail standards and the adult community confinement standards require such screening to take place “ordinarily” within 72 hours, while the juvenile facility standards require that the screening take place within 72 hours.

 

Revised October 21, 2016. Original posting date June 19, 2014.

Standard Numbers: 115.41
Categories: LGBTI Inmates/Residents/Detainees/Staff, Screening
Sep 27, 2016
Q:

Does the case-by-case determination required by Standard 115.42(c) in making housing and programmatic placements for transgender and intersex inmates need to take place within a particular timeframe?

A:

Standard 115.42(c) does not have an explicit timeframe requirement by which to make an initial case-by-case determination. However, at a minimum, determinations should be made in accordance with the timeframes required for the initial screening for risk of victimization and abusiveness in Standard 115.41(b) (ordinarily within 72 hours of arrival), the screening reassessment in Standard 115.41(f) (reassessment within 30 days of arrival), and the ongoing reassessment in Standard 115.401(f) (when “triggering events” occur). Standard 11.42(a) requires all information obtained during screenings and reassessments to inform housing and programming decisions. In all stages of the risk screening process for transgender and intersex inmates, individualized housing and placement decisions must be made based on consideration of all information available at the points in time identified above.

In addition, Standard 115.42(d) requires placement decisions to be reassessed during the twice-yearly progress reviews for transgender and intersex inmates. More frequent reviews based upon the needs of individual inmates are encouraged as a best practice.

Standard Numbers: 115.42
Categories: LGBTI Inmates/Residents/Detainees/Staff, Placement Decisions, Screening
Aug 15, 2016
Q:

Should an auditor’s final report reflect deficiencies that were found in the interim report and actions taken to correct them during the corrective action period?

A:

Starting on August 20, 2016, which is the first day of the first year of the second three year audit cycle, auditors are required to submit a report to the audited agency within 45 days of completion of an on-site audit.  It is expected that if an auditor determines that a facility does not meet one or more of the standards, this report will be considered an “interim report,” triggering a 180-day corrective action period, and the auditor will include in the report recommendations for any required corrective action and shall jointly develop with the agency a corrective action plan to achieve compliance. The auditor is required to “take necessary and appropriate steps to verify implementation of the corrective action, such as reviewing updated policies and procedures or re-inspecting portions of a facility.”  At the completion of the corrective action period, the auditor has 30 days to issue a “final report” with final determinations.  Section 115.404 (d) states that, “After the 180-day corrective action period ends, the auditor shall issue a final determination as to whether the facility has achieved compliance with those standards requiring corrective action.”  The final report, which is a public document that the agency is required to post on its web site or otherwise make publicly available, should include a summary of the actions taken during the corrective action period to achieve compliance.

Revised August 15, 2016. Original posting date April 23, 2014

Standard Numbers: 115.403, 115.404
Categories: Auditing, Audit Process, Information Sharing