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.  Since then, DOJ, which was responsible for promulgating the final Standards, has provided interpretive guidance in the form of Frequently Asked Questions (FAQs) to address questions of first impression when they raise issues that are broadly relevant to the application and interpretation of the Standards. On this page, you will find all FAQs issued by DOJ to date. DOJ will continue to meet and resolve questions of first impression and the guidance it develops will be posted as it becomes available.

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

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 Numbers: 115.5
Categories: Youthful Inmates
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 Numbers: 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 Numbers: 115.41
Categories: Screening
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 Numbers: 115.12
Categories: Contracting
Mar 20, 2019
Q:

For purposes of ensuring that employees and contractors have received required background checks and PREA training, how should agencies determine whether an individual “may have contact with” inmates/residents/detainees?

A:

An individual may have contact with inmates/residents/detainees if, within the scope of that person’s official or unofficial duties or privileges, it is reasonably foreseeable that the person will have physical, visual, or auditory contact with a confined person over any period of time.

An individual may, at one point in time, not fall into the category above. However, a change in that person’s job duties, privileges, or policies and procedures may result in him or her having contact with inmates, residents, or detainees. If such a change occurs, the requirements for background checks and PREA training become immediately applicable to that individual.

“Contact” for purposes of the standards described below may include being in the same enclosure with an inmate/resident/detainee (e.g., dayroom, cell, courtyard, hallway, clinic, intake, etc.), being able to visually observe an inmate/resident/detainee (e.g., via live video feeds, one-way or two-way glass, etc.), or converse with an inmate/resident/detainee (e.g., through talking or shouting, via intercom, etc.).

 

Relevant PREA Standards

The PREA standards prohibit agencies from hiring or promoting anyone “who may have contact with inmates [or] enlist the services of any contractor who may have contact with inmates” if the individual has committed certain disqualifying acts. See standard 115.17(a)/117(a)/217(a)/317(a). In addition, the PREA standards require agencies to “consider any incidents of sexual harassment in determining whether to hire or promote anyone, or enlist the services of any contractor, who may have contact with inmates.” See standard 115.17(b)/117(b)/217(b)/317(b).

The PREA standards require agencies to conduct a “criminal background records check” and “contact prior institutional employers” before hiring new employees “who may have contact with inmates” and conduct a criminal background records check before enlisting the services of any contractor who may have contact with inmates.” See standard 115.17(c-d)/117(c-d)/217(c-d)/317(c-d). Agencies are also required to “either conduct criminal background records checks at least every five years of current employees and contractors who may have contact with inmates or have in place a system for otherwise capturing such information for current employees.” See standard 115.17(e)/117(e)/217(e)/317(e). In addition, agencies must inquire of “all applicants and employees who may have contact with inmates directly about” [enumerated proscribed conduct] in the course of certain triggering events. See standard 115.17(f)/117(f)/217(f)/317(f).

The PREA standards require agencies to “train all employees who may have contact with inmates” about certain enumerated topics related to sexual safety and to provide periodic “refresher training” and “refresher information.” See standard 115.31/131/231/331.  The PREA standards also require agencies to “ensure that all volunteers and contractors who have contact with inmates” to receive training on certain enumerated topics.”  See standard 115.32/132/232/332.

Standard Numbers: 115.17, 115.31, 115.32
Categories: Background Checks, Definitions, Training
Nov 14, 2018
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 November 14, 2018, January 30, 2017, and April 19, 2016. Original posting date June 3, 2015.

Standard Numbers: 115.501
Categories: Governor's Certification, Penalty
Jul 20, 2018
Q:

Are there criminal records background check and training requirements for individuals who have regular contact with inmates, residents, or detainees, and who provide recurring services to the agency, or on behalf of the agency?  Such services are provided inside facilities pursuant to an informal arrangement, agreement, or understanding, rather than a written, formal contract or agreement.

A:

In instances where services are provided to a PREA-covered confinement facility by another entity or individual on a recurring basis, the individuals providing those services are subject to the criminal records background check and training requirements of standards 115.17 (115.117/ 115.217/115.317) and 115.32 (115.132/115.232/115.332).

Examples of such services include, but are not limited to, the following: the provision of vocational training, counseling, general education classes, reentry planning guidance, medical or dental treatment, and/or mental/behavioral health treatment. In some cases, these services are provided pursuant to state or local law. Generally, however, they are provided under a memorandum of understanding or an intergovernmental or interagency agreement. In keeping with the Department of Justice’s broad interpretation of the term “contract” for purposes of providing interpretive guidance on the PREA standards, the individuals providing these services are required to receive training equivalent to that provided to individuals providing services under a formal contract.

July 20, 2018 Update: Some practitioners have misconstrued this guidance to mean that agency staff, contractors, and volunteers are only required to submit to an agency criminal records background check and applicable agency-required training if they have regular and recurring contracts with inmates, residents, and detainees. Instead, this guidance is intended to make a distinction between employees, contractors, and volunteers as unambiguously defined in the standards on the one hand, and service providers who have no formal direct relationship with the confining agency on the other hand.  In the former situation, these requirements apply to any person “who may have contact” with inmates. In the latter situation (covered by this FAQ), service providers having no formal or direct relationship with an agency must be subject to criminal background checks and training requirements only if they have regular or recurring contacts with inmates inside the facility.

Revised July 20, 2018 and September 28, 2015. Original posting date December 2, 2014

Standard Numbers: 115.17, 115.32
Categories: Background Checks, Contract Services, Training
Jul 20, 2018
Q:

If prior objective risk screenings under PREA Standard 115.41 (or other information known to an agency) indicate that an inmate has previously experienced sexual victimization, how should screening staff approach the issue during subsequent screenings and reassessments, so as to be sensitive to the potential for retraumatizing the inmate?

A:

PREA Standard 115.41 requires facilities to screen inmates for risk of sexual victimization or sexual predation during intake at a facility and upon transfer to another facility. Risk screening reassessments are required within “a set time period, not to exceed 30 days from the inmate’s arrival at the facility,” and when warranted due to certain events listed in the Standard. One of the factors that must be taken into consideration during risk determinations is “[w]hether the inmate has previously experienced sexual victimization.” See PREA Standard 115.41(d)(8).

While facilities are required to consider prior sexual victimization during each risk screening, the Standards do not specify any particular manner in which to make such an inquiry, nor do they require that the question be posed in the same manner every time. If an inmate has already reported a history of prior sexual victimization during a previous risk screening by the agency or facility, screening staff could ask during subsequent screenings if the inmate has “previously experienced sexual victimization” that he or she has not already reported to the confining agency or facility. Screening staff must include sexual victimization reported during prior risk screenings, as well as any previously undisclosed sexual victimization, in the risk screening tool.   

This process avoids requiring an inmate to repeatedly report the details of a traumatic event, while: (1) providing the inmate an opportunity to disclose an incident of victimization that occurred after the prior risk screening; and (2) providing the inmate an opportunity to disclose an incident that the inmate did not feel comfortable reporting during prior risk screenings.

Standard Numbers: 115.41
Categories: Screening
Jun 20, 2018
Q:

In secure juvenile facilities, must security staff be present during medical and mental health assessments and consultations for purposes of meeting the minimum staffing ratio requirements? Also, must security staff be present during clinical group therapy sessions?

A:

If the medical or mental health assessment, consultation, or group therapy session is conducted by a medical practitioner or mental health practitioner and such services require, pursuant to that practitioner’s license or certification, patient-practitioner confidentiality, then security staff need not be present during these services. The absence of security staff during the provision of these services will not be considered a violation of the minimum staffing ratio requirement in PREA Standard 115.313(c). However, the PREA Standards also do not prohibit the presence of security staff.

Who counts as a medical practitioner, a mental health practitioner, and security staff pursuant to the PREA Juvenile Facility Standards?

Medical Practitioner is defined as a “health professional who, by virtue of education, credentials, and experience, is permitted by law to evaluate and care for patients within the scope of his or her professional practice.” See PREA Standard 115.5. Examples of such practitioners may include L.P.N., R.N., B.S.N., P.A., N.P., M.D., etc.

Mental Health Practitioner is defined as a mental health professional who, by virtue of education, credentials, and experience, is permitted by law to evaluate and care for patients within the scope of his or her professional practice.” See PREA Standard 115.5. Examples of such practitioners may include L.C.S.W., LPC, Psy.D., etc.

Security Staff is defined as “employees primarily responsible for the supervision and control of… residents in housing units, recreational areas, dining areas, and other program areas of the facility.” See PREA Standard 115.5. In another FAQ, the Department of Justice explains that certain additional categories of staff not typically thought of as “security staff” may also be included in the minimum staffing ratios under certain conditions.

See https://www.prearesourcecenter.org/node/3254. For the Department of Justice’s FAQ on how auditors evaluate compliance with the minimum staffing ratios, see https://www.prearesourcecenter.org/node/5414.

Standard Numbers: 115.5, 115.13
Categories: Definitions, Staffing Ratio
May 18, 2018
Q:

Do the PREA Standards require that the terminology and/or definitions that a correctional agency uses in policies, lesson plans, educational materials, and other documentation for terms defined by the PREA Standards, including “sexual abuse” and “sexual harassment,” match precisely the definitions in Standard 115.5 and Standard 115.6? 

A:

No. Agencies need not use the precise verbiage of the definitions specified in the PREA Standards when using those terms in policies, lesson plans, educational materials, or other documentation relevant to the PREA Standards. So long as, when referencing a term defined in Standard 115.5 and Standard 115.6, the agency documentation and definitions accurately and completely reflect all of the information contained in the PREA Standard definitions, the agency need not quote the definitions in Standard 115.5 and Standard 115.6 verbatim.

Agencies should be mindful to use respectful and appropriate language, and avoid terminology that could be viewed as offensive, outdated, or a slur. The importance of appropriate and professional language should be conveyed through PREA training and educational materials.

Finally, if agencies choose to deviate from the definitions of “sexual abuse” and “sexual harassment” laid out in PREA Standard 115.6, they should take care not to minimize the weight of these terms with lesser terms such as “sexual misconduct,” “undue familiarity,” or “official misconduct.” If state law uses such lesser terms in prohibiting conduct that is defined as “sexual abuse” or “sexual harassment” by the PREA Standards, the criminal code may be cited, specifically noting the underlying conduct constitutes a violation of the PREA Standards. For example: “The offense conduct for a criminal violation of ‘undue familiarity’ also constitutes ‘sexual abuse’ under the PREA Standards.”

Standard Numbers: 115.5, 115.6
Categories: Definitions