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

Sep 28, 2015
Q:

Under what circumstances would medical and mental health care providers who provide services to inmates or residents off-site (only) be subject to the criminal background records check requirements of standard 115.17 (115.117/115.217/115.317), the contractor training requirements under standard 115.32 (115.132/115.232/115.332), and/or the specialized training requirements for medical and mental health care providers in standard 115.35 (115.232/115.332)?  Must a formal contract for services exist for these requirements to be triggered?  Are the specialized training requirements ever triggered in the case of off-site medical or mental health providers, for instance, when there is no health care available at the facility and so all health care is provided off-site?

A:

Medical and mental health care providers who provide services to inmates or residents off-site (only) are not subject to the criminal background records check requirements in standard 115.17 (115.117/115.217/115.317), the contractor training requirements under standard 115.32 (115.132/115.232/115.332), and/or the specialized training requirements for medical and mental health care providers in standard 115.35 (115.235/115.335).  Generally, inmates and residents are taken off-site for medical or mental health care when the required services are not available at the correctional facility.  In many rural or isolated locations, the facility’s access to medical and mental health specialists, even off-site, is very limited.  As such, requiring facilities to only utilize off-site medical or mental health providers who have complied with the PREA background check and training requirements could impede inmate access to necessary medical and mental health care.  When inmates or residents are taken off-site for medical or mental health care, they are generally transported and supervised by correctional staff, though they should have private contact with the medical or mental health provider during an examination or therapy session.  Should an off-site medical or mental health provider engage in inappropriate or abusive behavior towards an inmate, the inmate will have the opportunity to report the incident upon leaving the provider’s office.

Revised September 28, 2015. Original posting date June 20, 2014.

Standard Numbers: 115.17, 115.32, 115.35
Categories: Non-Facility Staff, Background Checks
Jun 03, 2015
Q:

What is the distinction between a facility that is under the operational control of the state’s executive branch via a contract, and therefore subject to the governor’s certification or assurance, and a facility with which the state contracts for beds, and is therefore subject to the requirements of standard 115.12 but not deemed to be under the governor’s operational control?

A:

A facility operated by a private organization “on behalf of an agency” is generally controlled by the parent confining agency.  Typically, such a facility has a dedicated (or primarily dedicated) inmate population in the legal custody of the parent agency.  In addition, such facilities generally operate within the confines of the parent agency’s policies, procedures, and practices.  Such facilities are usually owned by (or controlled by) the parent agency.  The parent agency typically contracts with private correctional entities to operate the facilities for finite and/or renewable durations.

By contrast, a mere “contract for the confinement of inmates” between a public agency and a private (or another public) agency pursuant to standard 115.12 is generally an arrangement to confine inmates for a fixed or variable fee or on a per diem basis.  This arrangement is typically considered a rental of bed space for holding inmates.  Contracted facilities in this category will often rent bed space or confine inmates from multiple external public agencies.  While the contract may impose a number of requirements or standards on the contracted agency, it is generally a much lower level of operational control than a facility “operated on behalf of” the contracting agency as described in the paragraph above.

It should be noted that, pursuant to standard 115.12, any new contract or contract renewal must include the contracted entity’s obligation to comply with PREA and to allow for appropriate contract monitoring.

See also related FAQs in the 115.12 and Contracting categories.

Standard Numbers: 115.12, 115.501
Categories: Contracting, Covered Facilities, Definitions, Governor's Certification
Jun 02, 2015
Q:What constitutes “repeated” to satisfy the definition of “Sexual harassment”?
A:

Sexual harassment includes—

(1) Repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one inmate, detainee, or resident directed toward another; and

(2) Repeated verbal comments or gestures of a sexual nature to an inmate, detainee, or resident by a staff member, contractor, or volunteer, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.

"Repeated,” in the context of this provision, means more than one incident. Please note that the seriousness of the conduct should be taken into account in determining the appropriate commensurate response by the agency or facility. Serious misconduct along these lines, even if committed once, should still be addressed by the agency or facility.

Standard Numbers: 115.6
Categories: Definitions
Jun 02, 2015
Q:

How can the PREA Resource Center help?

A:

The PREA Resource Center (PRC) is designed to offer assistance to state and local agencies working to address sexual abuse in their confinement facilities, adult and juvenile. One of our primary purposes is to help with implementation of the standards, but we have a broader mission to help address the issue of prison rape by providing a forum for exchanging ideas and sharing examples of innovation and emerging best practices. The PREA Essentials page is a great starting place for reviewing the standards, including common issues and resources specific to various standard sections. The PRC website offers a full library with research and tools to help agencies learn about the issue and to learn about strategies for preventing, detecting, and responding to sexual abuse in confinement. In addition, the library contains tools to help agencies develop PREA policies and implement the standards. To search the library, click here. The PRC library also contains links to resources for survivors.

The PRC offers training and technical assistance in a variety of forms. We host webinars on topics relevant to standards implementation and addressing sexual abuse in confinement in general. You can find a listing of webinars and other upcoming and archived events here. Where there is need, the PRC responds to individual requests for technical assistance from agencies and facilities. To learn more about our training and technical assistance, click here.

Standard Numbers:
Categories: Compliance
Jun 02, 2015
Q:

What are the PREA standards and when are they effective?

A:

The Prison Rape Elimination Act (PREA) was passed in 2003. The law created the National Prison Rape Elimination Commission (NPREC) and charged it with developing standards for the elimination of sexual abuse in confinement. The law required the Department of Justice (DOJ) to review the NPREC standards, make revisions as necessary, and pass the final standards into law.

The final rule was published in the federal register on June 20, 2012, and became effective on August 20, 2012. Certain standards do not go into effect until a later date. The standard that governs external audits provides that the first audit cycle begins on August 20, 2013, and, to be in compliance, that jurisdictions must have at least one third of their facilities audited within the subsequent 12-month period ending August 20, 2014. The restrictions on cross-gender pat-down searches of female inmates in prisons, jails, and community confinement facilities (115.15(b) and 115.215(b)) went into effect on August 20, 2015, for facilities whose rated capacity is 50 or more inmates, and do not go into effect until August 21, 2017, for facilities whose rated capacity does not exceed 50. The standard on minimum staffing ratios in secure juvenile facilities (115.313(c)) does not go into effect until October 1, 2017, unless the facility is already obligated by law, regulation, or judicial consent decree to maintain the minimum staffing ratios set forth in that standard.

Standard Numbers: 115.15, 115.13
Categories: Final Rule, Act
Mar 25, 2015
Q:

Can the standard 115.11/311 requirement that an agency with more than one facility designate a PREA Compliance Manager for each facility be met by the designation of regional PREA Compliance Managers who have responsibility for more than one facility, or must each facility designate its own individual PREA Compliance Manager who has no corresponding responsibilities at another facility?

A:

Each facility must designate its own PREA Compliance Manager “with sufficient time and authority to coordinate the facility’s efforts to comply with the PREA standards.” See standard 115.11(c)/311(c). Both the PREA standards and the explanatory text in the Notice of Final Rule (NFR) make clear that the PREA Compliance Manager should be a facility-based individual. For example, the NFR provides that “the final standard requires each facility in a multi-facility agency to have its own PREA compliance manager.” See 77 Fed. Reg. 37106, 37117 (emphasis added).

The Department is aware of some agencies that have created “regional” compliance managers for the purpose of overseeing and/or implementing the PREA standards for multiple facilities. These regional managers do not satisfy the requirement that each facility have its own PREA Compliance Manager. However, it does not violate the standards for an agency to create regional managers with responsibility for PREA implementation, so long as each agency also has an appropriate PREA Coordinator, and each facility has its own PREA Compliance Manager. Indeed, in many large agencies, the creation of a regional manager with PREA implementation responsibilities may assist agencies in the efficient implementation of the standards agency wide.

Standard Numbers: 115.11
Categories: Compliance, Definitions
Mar 25, 2015
Q:

Does the use of a virtual scanner by an opposite-gender staff person violate the prohibition against cross-gender viewing and/or cross-gender strip searches?

A:

Section 115.15(a) states, “The facility shall not conduct cross-gender strip searches or cross-gender visual body cavity searches (meaning a search of the anal or genital opening) except in exigent circumstances or when performed by medical practitioners.” The regulations define “strip search” as “a search that requires a person to remove or arrange some or all clothing so as to permit a visual inspection of the person’s breasts, buttocks, or genitalia.” See standard 115.5. The standards also state, “The facility shall implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender reviewing their breasts, buttocks, or genitalia, except in exigent circumstances.” See standard 115.15(d).

Whether or not a virtual scanner or other electronic search complies with this provision will depend on the technology involved. For example, some technologies provide images similar to an x-ray, with no discernable body contours. Other technologies only provide an image representing a human form, with no actual body images. The cross-gender use of these technologies complies with the PREA standards.

Other technologies can be more detailed and will provide outlines of breasts, buttocks, or genitalia. Cross-gender use of these technologies by non-medical staff would not comply with the PREA standards, unless used with privacy filters that can blur body contours. If used by cross-gender staff during exigent circumstances without the appropriate filters, the search must be documented under standard 115.15(c).

Standard Numbers: 115.15
Categories: Searches, Cross-Gender Supervision
Mar 18, 2015
Q:

When does the obligation under standard 115.283(g) to provide ongoing treatment to a victim of sexual abuse in confinement at no cost to the victim end? Specifically, if a resident of a community confinement facility reports having been sexually abused while in confinement (prison, jail, or in the community confinement facility itself) and requires ongoing medical or mental health care, does the obligation to provide it at no cost to the victim extend beyond the victim’s residence in a community confinement facility? And do the same guidelines apply to prisons and jails under standard 115.83 and juvenile facilities under standard 115.383?

A:

The financial obligation of the community confinement agency/facility to provide ongoing treatment to a victim of sexual abuse in confinement ends with the release of the resident from the facility, even if that victim is still under post-release supervision (i.e., probation or parole). The same guideline applies to prisons and jails under standard 115.83 and juvenile facilities under standard 115.383. That is, the financial obligation of a prison, jail, or juvenile facility to provide ongoing treatment to a victim of sexual abuse in confinement ends with the release of the inmate or resident from the facility.

At a minimum, agencies/facilities must provide, as appropriate, treatment plans and, when necessary, referrals for continued care to sexual abuse victims upon their release from custody, including, but not limited to, mental health treatment plans and mental health practitioner referrals. Agencies/facilities are encouraged to provide sexual abuse victims released from custody with additional referrals to community-based services, including, but not limited to, local victim assistance and compensation programs and health insurance advocates who can assist sexual abuse victims with obtaining Medicaid or other forms of health insurance.

Standard Numbers: 115.83
Categories: Definitions
Mar 18, 2015
Q:

What is the scope of the requirement in standard 115.401(j)? To what extent can and will this provision be enforced?

A:

Relevant Standard:
(j) The auditor shall retain and preserve all documentation (including, e.g., video tapes and interview notes) relied upon in making audit determinations. Such documentation shall be provided to the Department of Justice upon request.

Existing FAQ:
How long must the documents that auditors relied on for making audit determinations be retained? These documents must be retained for 12 months following the deadline for any agency audit appeal. Because audit appeals must be lodged within 90 days of the auditor’s final report, auditors must retain these documents for 15 months following the issuance of the final audit report. Longer document retention may be required in particular instances if so requested by the US Department of Justice.

This standard clearly establishes that it is the auditor who is responsible for retaining and preserving all documentation relied upon in making audit determinations. This includes both documentation relied upon in finding that a facility does not comply with a standard, as well as documentation relied upon in finding that a facility does meet or exceed a standard. If an auditor fails to comply with this provision, the auditor will be subject to actions that bear on the auditor’s continued DOJ certification status (e.g., retraining, restrictions on a certification, decertification, or denial of application for recertification).

The Department of Justice is in the process of finalizing an Online PREA Audit Instrument that agencies and auditors may choose to utilize for securely retaining the documents and information that could be used to satisfy the auditor’s document retention pursuant to standard 115.401(j). The following guidance is provisional and subject to change once the Online PREA Audit Instrument becomes available and fully functional:

An auditor “retains and preserves” all documentation when: 1) the auditor has the continued ability to identify and access the documentation for 15 months following the issuance of the final audit report; and 2) the auditor can, upon request, provide the documentation to the Department of Justice or direct that the documentation be provided to the Department of Justice.

Auditors will typically review and evaluate documentation in two separate circumstances: 1) off-site, before conducting an audit (and potentially post-audit, if needed) and 2) on-site, during an audit. Each circumstance is discussed separately below.

A. Documents that an auditor receives off-site, either before or after an audit.

The PREA Compliance Audit Instrument Checklist of Policies/Procedures and Other Documents lists many documents and categories of documents that an auditor may request and receive from the facility or agency pre-audit. This checklist is not exhaustive. The PREA standards clearly state that an auditor “shall be permitted to request and receive copies of any relevant documents (including electronically stored information).” 28 C.F.R. § 115.401(i).

An auditor may also receive pre-audit documents from other sources, including inmates or community members. This category of documents is straightforward: An auditor must retain and preserve any documents that the auditor has physically or electronically received outside of an on-site audit for the 15-month retention period referenced above.

An auditor currently has the following options for preserving this documentation:

paper copies or other physical format (e.g., video);

any electronic format in the auditor’s physical control (e.g., documents scanned to a computer, thumb drive, or disc); and

any secure electronic format that is accessible to the auditor (e.g., the forthcoming Online PREA Audit Instrument or other secure cloud-based storage).

In selecting a combination of one or more of the formats enumerated above, an auditor must ensure that he or she will be able to readily identify and access all documentation as needed for 15 months after the issuance of the final audit report, and be able to provide it upon request by the Department of Justice.

B. Documents that an auditor receives or reviews on-site, during an audit.

The PREA Compliance Audit Instrument Checklist of Policies/Procedures and Other Documents also lists many documents and categories of documents that an auditor will review during the on-site audit. To the extent practicable, auditors are encouraged to employ one or more of the methods listed above in A.1-3 to retain and preserve much of the on-site documentation for the 15-month retention period. However, some documentation may be extremely burdensome to physically copy or scan. An auditor may consider contracting with the agency or facility, whereby the agency or facility maintains physical possession of the documentation but allows the auditor continued access to the documentation, if needed, and the agency or facility also agrees to allow the documentation to be provided to the Department of Justice, if the Department requests the documents pursuant to standard 115.401(j).

This latter option raises several issues:

The auditor must have the ability to identify the documentation. As an initial matter, then, the auditor must take and maintain scrupulous notes regarding which documentation he or she reviewed during the audit. For example, the auditor could note “training files of every employee hired during the year 201X” or list the actual names of each employee whose training file the auditor reviewed. By contrast, a note of “reviewed 15 training files” would not be sufficient to identify the underlying documentation.

Once the auditor has ensured that his or her notes sufficiently identify the documentation, the auditor must ensure that, for the entire retention period, he or she has the continued ability to identify the documentation. That is, the auditor must understand the facility or agency’s record-keeping system so that the auditor could readily identify, find, and retrieve the documentation for up to 15 months after submission of the final audit report.

Once the auditor has ensured preliminary and continued identification of the documents, the auditor must ensure that he or she will have continued access to the identified documents during the 15-month retention period. The auditor may choose to ensure his or her continued access to the documentation by adding a clause to the auditing contract requiring the agency to provide the on-site documentation to the auditor and the Department of Justice upon written request with reasonable notice during the 15-month retention period.

Finally, the auditor must ensure that he or she can provide the documentation to the Department of Justice upon request, either personally or by directing the agency or facility to do so within the 15-month retention period. Again, the auditor may accomplish this by adding a contract clause stating that the agency or facility agrees to provide the identified documentation to either the auditor or the Department of Justice.

It is important to note that, regardless of any contractual relationship the auditor may enter into with an agency or facility, it is the auditor who retains ultimate responsibility for his or her compliance with this standard. If an auditor fails to retain and preserve all relevant documentation for the 15-month retention period, or fails to provide the documentation to the Department of Justice upon request, he or she will face actions that could bear on the auditor’s continued DOJ certification status.

Standard Numbers: 115.401
Categories: Auditing, Audit Process, Information Sharing
Mar 18, 2015
Q:

How long must an agency and facility be in compliance with a particular standard or provision before an auditor should find that a facility meets a standard?

A:

A demonstrated record of sustained compliance with a standard during the one-year period preceding the audit will be sufficient to demonstrate audit compliance. Shorter periods of compliance may or may not result in an auditor’s finding of meets or exceeds a standard subject to the guidance below.

In general, auditors will need to see that compliance with a particular standard has become “institutionalized” at the facility. That is to say that a “quick fix” on the day of an on-site tour should almost never be sufficient for the auditor to find compliance. A short period of compliance during an otherwise sustained period of noncompliance should generally result in a finding of “does not meet standard.” By contrast, a discrete period of noncompliance during a period of otherwise sustained compliance should not, by itself, result in a finding of “does not meet standard.” The length of time required to demonstrate sustained compliance will depend upon the requirements of the individual provision being assessed. In any event, the auditor should be provided with sufficient evidence that the facility’s technical and short-term compliance has been “institutionalized” at the facility.

The following is an example of institutionalization: If a facility or an auditor determines that a new external reporting mechanism is required to comply with standard 115.51(b), the mere creation of a satisfactory avenue for external reporting will effect several other standard requirements. The auditor may determine that the new external reporting mechanism should be included in the written policies outlining the agency’s approach to preventing, detecting, and responding to sexual abuse. See 28 C.F.R. § 115.11(a). The auditor may determine that employees, contractors, and volunteers need to be trained on the new reporting mechanism. See 28 C.F.R. §§ 115.31 and 115.32. This will generally require modification, approval, and implementation of the training curriculum. Inmates must receive information on the new reporting mechanism during intake and as part of the 30-day comprehensive inmate education. See 28 C.F.R. § 115.33. The auditor may determine that the inmate education curriculum must be modified, approved, and implemented before these requirements are satisfied. Further, because existing inmates had not been previously provided with comprehensive inmate education setting forth an appropriate avenue for external reporting, all inmates must be informed of the new reporting mechanism. See 28 C.F.R. § 115.33(c). If the new external reporting mechanism also serves as the avenue for the facility to receive third-party reports, then the new reporting mechanism must be reflected on the publicly distributed information pursuant to standard 115.54.

It is important to note that, while a facility corrective action period may last for up to 180 days following the auditor’s issuance of the interim audit report, some corrective action will not require the full 180 days to complete and verify. Indeed, minor or technical violations with the standards may be remedied prior to the 30-day deadline for the auditor to issue the interim audit report—if, unlike the example provided above, the standard at issue does not implicate other related standards.

The standards require that each facility be audited at least once during the three-year audit cycle. See 28 C.F.R. § 115.401(a). Further, the standards require an auditor to review, at a minimum, a sampling of relevant documents and information for the most recent one-year period. See 28 C.F.R. § 115.401(g). Prior to the start of the first audit cycle, the Department of Justice issued the following guidance on this question:

DOJ recognizes that audits conducted toward the beginning of the first audit cycle, which began August 20, 2013, will take into consideration the fact that facilities will have spent a significant period of time institutionalizing the standards. By contrast, a short period of compliance during the end of the audit review period (meaning closer to August 2014 or thereafter) would not be sufficient to achieve compliance. DOJ is working with the PRC to define specific measures auditors will use to assess compliance. Additional information will be forthcoming soon. See Existing FAQ.

This revised and expanded FAQ includes the “additional information” referenced in that previously issued FAQ.

Standard Numbers: 115.401
Categories: Auditing, Compliance