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

Dec 16, 2015
Q:

Within what timeframe must an agency post a copy of the final report of an audit of one of its facilities on its website, if it has one, or otherwise make the report available, to be compliant with standard 115.403(f)?

A:

90 days after the auditor issues the final audit report, the agency must publish the final report on its website if it has one, or otherwise must make it readily available to the public. This requirement applies regardless of whether the agency is appealing the results of the final audit report.

Appeals must be lodged within 90 days of the auditor’s final determination. See standard 115.405(a). In cases where the agency is appealing the results of a final report, when the agency publishes the final report on its website if it has one or otherwise makes it readily available to the public, the agency may note that it is being contested and under appeal.

Standard Numbers: 115.403
Categories: Auditing, Audit Process
Nov 18, 2015
Q:

What are the agency’s reporting obligations under standard 115.361(e) in cases where a juvenile is an emancipated youth?

A:

Agencies should follow their local and/or state laws related to emancipated youths when determining to whom notifications of allegations of sexual abuse or sexual harassment must be made in instances where alleged victims are such youths. For example, if a guardian ad litem has been appointed to represent an emancipated youth and that individual is still active in that youth’s case when an allegation of sexual abuse or sexual harassment is made, it may be necessary for a report to be made to the guardian ad litem.

Standard Numbers: 115.61
Categories: Compliance, Definitions
Oct 26, 2015
Q:

In order to comply with standard 115.41(a) & (b), are there any circumstances when an inmate might be held at a facility for a short period of time, but longer than 72-hours, or transferred to another facility within the same agency after spending a short period of time at the first facility, and a PREA screening or re-screening would not be required?

A:

No. An initial PREA screening must be conducted during all intake screenings, which should ordinarily occur within 72 hours, and upon transfer to another facility. However, according to the preamble of the PREA standards Notice of Final Rule, a facility “is free to rely on information previously gathered with regard to a returning inmate” if the facility ensures “that its assessment captures any changes in risk factors that may have occurred subsequent to the facility’s prior gathering of information regarding that inmate.” See Vol. 77, Federal Register, No. 119, p. 37150.

Standard Numbers: 115.41
Categories: Screening
Oct 26, 2015
Q:

How must agencies “distribute publicly” information on how third-parties can report allegations of sexual abuse and sexual harassment, in accordance with standard 115.54?

A:

Standard 115.54 states, “The agency shall establish a method to receive third-party reports of sexual abuse and sexual harassment and shall distribute publicly information on how to report sexual abuse and sexual harassment on behalf of an inmate.” (emphasis added)

The preamble of the PREA standards Notice of Final Rule states, “[t]he agency may, in its discretion, make such information [about third-party reporting] readily available through a website, posting at the facility, printed pamphlets, and other appropriate means.” See Vol. 77, Federal Register, No. 119, p. 37163. Generally, agencies are posting information about the third-party reporting process on their websites.

Implicit in standard 115.54 is the requirement that the public can reasonably access the information on how to make a report of sexual abuse or sexual harassment on behalf of an inmate. It is not sufficient for an agency to be willing and able to receive such reports. Further, it is not sufficient for the public to have the general ability to utilize generalized agency contact information (such as a main contact number) to make such a report. Rather, the specific methods to make such reports must be readily available and reasonably conspicuous to the public.

Standard Numbers: 115.54
Categories: Compliance, Definitions
Sep 29, 2015
Q:

Does the provision in standard 115.17(f) that requires the agency to ask employees who may have contact with inmates directly about previous misconduct described in paragraph (a) of the standard, “in any interview or written self-evaluation conducted as part of reviews of current employees,” still apply if the agency does not interview nor provide employees with an opportunity to self-evaluate as part of their review process?  And, if so, does an ongoing affirmative duty to report said misconduct as an employee of the agency satisfy this requirement?

A:

Standard 115.17(f) states, “The agency shall ask all applicants and employees who may have contact with inmates directly about previous misconduct described in paragraph (a) of this section in written applications or interviews for hiring or promotions and in any interviews or written self-evaluations conducted as part of reviews of current employees. The agency shall also impose upon employees a continuing affirmative duty to disclose any such misconduct.”

If the agency does not use written applications, written self-evaluations, or conduct interviews under the circumstances indicated in standard 115.17(f), it has no obligation under this standard to begin these practices. However, the agency does have the obligation to establish a continual affirmative duty to disclose misconduct. The agency must impose on employees the affirmative duty to report any misconduct described in standard 115.17(a) [i.e., paragraph (a) of the standard] at any time that it occurs.

Standard Numbers: 115.17
Categories: Compliance
Sep 29, 2015
Q:

Do the prohibitions in the PREA standards against cross-gender pat searches of female inmates, and male and female juvenile residents; cross-gender strip and visual body cavity searches; and cross-gender viewing of inmates’, residents’, and detainees’ breasts, buttocks, and genitalia extend to confinement facility staff who are supervising inmates, residents, or detainees (referred to inmates in the answer below) outside of confinement facilities?

A:

Yes. In general, confinement facility staff who supervise inmates outside of facilities are required to comply with the PREA standards, and the opposite gender prohibitions identified in this question apply to such staff.

However, nothing in the standards prohibits male staff members from supervising female inmates, or female staff from supervising male inmates. The standards only make clear that agencies, “enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia [except in exigent circumstances or pursuant to routine cell checks].” See 28 C.F.R. § 115.15(a) and (b).

The Department of Justice has received specific questions regarding prohibitions related to the supervision of female inmates who are pregnant and undergoing related medical procedures in external hospital settings. Male staff members may supervise such inmates. However, male staff are not permitted under the PREA standards to observe disrobed female inmates undergoing procedures during which they can view females’ breasts, buttocks, or genitalia. In such cases, accommodations could be made – through the use of privacy screens, curtains, or other, similar measures – that allow female inmates to receive medical care while male facility staff members remain in near proximity and carry out their supervisory responsibilities effectively, without viewing females’ breasts, buttocks, or genitalia.

In addition, absent exigent circumstances, male staff members are not permitted under the standards to conduct cross-gender pat searches,1 or cross-gender strip and visual body cavity searches outside of facilities. An exigent circumstance is defined in the standards as, “any set of temporary and unforeseen circumstances that require immediate action in order to combat a threat to the security or institutional order of a facility.” See 28 C.F.R. § 115.5.


1This cross-gender pat down prohibition for male staff members applies as of August 20, 2015, or August 20, 2017 for facilities whose rated capacity does not exceed 50 inmates.

Standard Numbers: 115.15
Categories: Searches, Cross-Gender Supervision
Sep 28, 2015
Q:

Are clergy employed by, or who volunteer in, a correctional facility bound by the mandatory staff reporting provision in standard 115.61(a)?  Is there any protection for confidential communication with clergy, and is there any special consideration for confidentiality within confessional communication?

A:

In general, staff clergy in confinement facilities are required to report “immediately and according to agency policy any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual harassment that occurred in a facility, whether or not it is part of the agency; retaliation against inmates or staff who reported such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation.” See 28 C.F.R. § 115.61(a).

However, state and local law, and certain religious doctrine include specific requirements for making mandatory and discretionary reports of abuse and, by contrast, requiring that certain inmate-clergy communication remain confidential. Accordingly, certain religious communications between inmates and clergy (e.g., confessionals) may be exempted from the reporting requirements under this standard if the staff clergy is prohibited by law or doctrine from making such a report.

If, by contrast, clergy are not prohibited by law or doctrine to report such information to the facility, then the clergy is required to report under this standard. In such case, clergy should inform a counseled inmate of the clergy’s duty to report, and the limitations of confidentiality, at the initiation of services.

Additionally, agencies implementing the PREA staff reporting requirements under standard 115.61 should do so in a manner consistent with the federal Religious Land Use and Institutionalized Persons Act, the Religious Freedom Restoration Act, and other appropriate authorities.

Standard Numbers: 115.61
Categories: Compliance, Definitions, Information Sharing
Sep 28, 2015
Q:

Do the PREA standards require that agencies conduct criminal records background checks on, and provide PREA-related contractor or volunteer training for, public defenders, other attorneys, interns working with public defenders or other attorneys, or law students practicing as attorneys under a practice agreement, pursuant to legal representation, before they may enter a confinement facility?

A:

No. Standard 115.17 (115.117/115.217/115.317) requires generally that agencies perform a criminal background records check (and in the case of juvenile facilities, consult applicable child abuse registries) before enlisting the services of any contractor. In addition, agencies are required to provide PREA-related training to contractors and volunteers pursuant to standard 115.32 (115.132/115.232/115.332).

Legal counsel are not contractors enlisted by the agency. Therefore, the listed standards do not apply to them.

Revised September 28, 2015. Original posting date October 22, 2014.

Standard Numbers: 115.17, 115.32
Categories: Training, Non-Facility Staff, Background Checks
Sep 28, 2015
Q:

Are teachers and other education workers in a PREA-covered facility subject to the criminal background records check of standard 115.17 (115.117/115.217/115.317), or the employee and contractor training requirements of standards 115.31 (115.131/115.231/ 115.331) and 115.32 (115.132/115.232/115.332)?

A:

Education workers who are employees of the confining agency are subject to the criminal background records check requirements of standard 115.17 (115.117/115.217/115.317) and are subject to the employee training requirements of standard 115.31 (115.131/115.231/115.331).

Education workers who are not employees of the confining agency but who provide services in a PREA-covered facility on a recurring basis are considered contractors of the agency, notwithstanding the absence of a formal written contract between the education staff or the educational agency and the confining agency.

The Department has consistently indicated that, for purposes of the PREA Standards, it intends to construe the term “contract” broadly to include, among other things, formal or informal arrangements, intergovernmental services agreements, and other types of agreements to provide services to the agency. Accordingly, non-employee education staff are subject to the criminal background records check requirements of standard 115.17 (115.117/ 115.217/ 115.317) and are subject to the contractor training requirements of standard 115.32 (115.132/ 115.232/ 115.332).

If, however, a teacher or other education worker is not an employee of the confining agency and does not provide services on a recurring basis in the facility (for instance, a guest speaker or a one-time instructor who does not have unsupervised contact with inmates/residents/detainees), the PREA Standards referenced above do not require a criminal background records check or PREA training.

Revised September 28, 2015. Original posting date September 23, 2014.

Standard Numbers: 115.17, 115.31, 115.32
Categories: Definitions, Training, Non-Facility Staff
Sep 28, 2015
Q:

Many corrections agencies, particularly community confinement agencies, place their inmates or residents in employment settings off-site.  In many cases, there is no explicit contractual arrangement between the correctional agency and the employer.  However, these employers have significant contact with inmates or residents.  In some cases, inmates or residents are sent to other correctional facilities during the day to work.  Are there any circumstances in which off-site supervisors would be subject to either the criminal background records check requirements of standard 115.17 (115.117/115.217/115.317) or the contractor training requirements of standard 115.32 (115.132/115.232/115.332)?

A:

In interpreting the standards requiring training and background checks for non-facility staff who have significant contact with inmates or residents, it is appropriate to limit those requirements to individuals who provide services on the facility campus.  Inmates or residents who go off-site for work, programming, or other services often are under the supervision of facility staff while off-site.  In other cases, the inmates or residents have unsupervised access to the community while off-site, such as in a work-release program.  In either of these situations, inmates or residents should have the opportunity to report or seek assistance with regard to any off-site abuse or violations, either when the inmate or resident is out in the community or when the inmate or resident returns to the facility.  Moreover, requiring background checks and training for all off-site providers or employers could severely limit the inmates’ or residents’ access to these programs.

Revised September 28, 2015. Original posting date July 3, 2014.

Standard Numbers: 115.17, 115.32
Categories: Non-Facility Staff, Background Checks