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

Nov 27, 2013
Q:

In determining whether to certify that my State is in "full compliance" with the National PREA Standards, how do I determine which facilities are "under the operational control of the State's executive branch"?

A:

The National PREA Standards state that “The Governor’s certification [of full compliance with the PREA standards] shall apply to all facilities in the State under the operational control of the State’s executive branch, including facilities operated by private entities on behalf of the State’s executive branch.” 28 C.F.R. § 115.501(b). A “facility” is defined as “a place, institution, building (or part thereof), set of buildings, structure, or an area (whether or not enclosing a building or set of buildings) that is used by an agency for the confinement of individuals.” Id. at standard 115.5. Some standards apply specifically at the facility level, while others apply at the agency level.

The definition of facility includes local detention and correctional facilities as well as State correctional facilities; however, not all facilities within a State are subject to the Governor’s certification. The Governor’s certification does not encompass those facilities outside the operational control of the governor; namely, those facilities that are under the operational control of counties, cities, or other municipalities, or privately-operated facilities not operated on behalf of the State’s executive branch.

The term “operational control” is not defined in the National PREA Standards. The determination of whether a facility is under the operational control of the executive branch is left to a governor’s discretion, subject to the following guidance.

Generally, there are several factors that may be taken into consideration in determining whether a facility is under the “operational control” of the executive branch:

Does the executive branch have the ability to mandate PREA compliance without judicial intervention?

Is the State a unified correctional system?

Does the State agency contract with a facility to confine inmates/residents on behalf of the State agency, other than inmates being temporarily held for transfer to, or release from, a State facility?

The above list is not exhaustive but it covers the majority of the situations that Governors may face in determining whether a facility or contractual arrangement is subject to the Governor’s certification.

Please note that the standards require that any public agency that contracts for the confinement of its inmates with private agencies or other entities, including other government agencies, (1) include in any new contract or contract renewal the entity’s obligation to adopt and comply with the PREA standards, and (2) provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards. 28 C.F.R. §§ 115.12, 115.112, 115.212, 115.312. A State confinement agency that fails to comply with these requirements is, by the terms of the standards, not PREA compliant.

Standard Numbers: 115.501
Categories: Governor's Certification, Definitions
Jul 11, 2013
Q:Does the Health Insurance Portability and Accountability Act (HIPAA) limit the ability of medical professionals to report information to a facility related to sexual abuse of an inmate? Does HIPAA limit an agency’s ability to disclose medical information to a PREA auditor?
A:

No. The HIPAA regulations expressly allow medical providers to provide to a facility with lawful custody of an inmate any information necessary for (among other things) “[t]he health and safety of such individual or other inmates” or “[t]he administration and maintenance of the safety, security, and good order of the correctional institution.” 45 C.F.R. § 164.512(k)(5)(i).

Disclosures made pursuant to a PREA audit are also permissible under HIPAA pursuant to the regulatory exception for “health oversight activities.” 45 C.F.R. § 164.512(d). The HIPAA regulations allow disclosure to “a health oversight agency for oversight activities authorized by law, including audits,” where necessary for appropriate oversight of (among other things) “[e]ntities subject to government regulatory programs for which health information is necessary for determining compliance with program standards” or “[e]ntities subject to civil rights laws for which health information is necessary for determining compliance.” 45 C.F.R. § 164.512(d)(1). The HIPAA regulations define “health oversight agency” to include any person or entity operating under the authority of a public agency who is legally authorized “to oversee . . . government programs in which health information is necessary to determine eligibility or compliance, or to enforce civil rights laws for which health information is relevant.” 45 C.F.R. § 164.501. Because a PREA auditor qualifies as a health oversight agency, and the auditor’s work qualifies as a health oversight activity, HIPAA poses no bar to the disclosure of relevant information to the auditor. Although information may be disclosed to a certified PREA auditor, any public report or statement released by the PREA auditor must not include protected health information.

Standard Numbers: 115.401
Categories: Auditing
Jul 09, 2013
Q:If a facility meets the definition of “lockup” but only holds juveniles, do the juvenile facility standards apply, or do the lockup standards apply?
A:

The lockup standards apply.

Standard Numbers: 115.5
Categories: Covered Facilities, Final Rule, Definitions
Jul 09, 2013
Q:Who counts as “security staff” for purposes of the minimum staffing ratio Standard for secure juvenile facilities?
A:

The Standards provide, inter alia, that [e]ach secure juvenile facility shall maintain staff ratios of a minimum of 1:8 during resident waking hours and 1:16 during resident sleeping hours, except during limited and discreet exigent circumstances…” 28 C.F.R. § 115.313(c). Only security staff shall be included in these ratios. Id.

The Standards define “security staff” 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. 28 C.F.R. § 115.5. This definition is intended to approximate the manner in which the term “direct-care staff” is typically used by many juvenile facilities.

Typically, only direct-care staff will count in the minimum mandatory ratios. Direct-care staff supervisors may generally be counted within the minimum ratios to the extent they are presently assigned to primarily or exclusively supervise residents.

Other persons whose duties involve supervision and control of residents for a portion of the day may count towards these ratios while they are actively supervising and controlling residents, assuming that they have received appropriate training. Appropriate training generally includes training on the supervision and control of delinquent youth including, among other things, verbal de-escalation techniques, age-appropriate defensive tactics, and crisis intervention.

For example, a teacher who has received appropriate training may be included in the ratio during the time in which he or she is leading a class, as opposed to preparing a lesson plan. Similarly, a warden or other facility management official will count toward the ratio during the periods of the day when he or she is supervising residents rather than engaging in administrative activities.

Social workers, case managers, clinical staff, and administrative support staff will generally not count toward the minimum staffing ratios, except in circumstances in which they are supervising or controlling a group of residents, and only then if they have received appropriate training.

Contractors and volunteers (who have received a criminal records background check) may count to the extent that their responsibilities and training otherwise qualify.

Standard Numbers: 115.13
Categories: Definitions, Staffing Ratio
Jul 09, 2013
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. 

Standard Numbers: 115.5
Categories: Covered Facilities, Definitions
Jul 09, 2013
Q:

Are foster homes that contract with juvenile justice agencies (as opposed to institutional residential placements) covered by the PREA standards? 

A:

Foster homes are not covered by the standards.

Standard Numbers: 115.5
Categories: Covered Facilities, Final Rule, Definitions
Jul 09, 2013
Q:Are facilities that exclusively house civilly-committed sex offenders (who have been convicted, served their prison sentence, and are deemed to be too dangerous to release to the community) covered by the PREA standards?
A:

No. Civilly-committed individuals are not considered inmates, residents, or detainees for purposes of determining whether a particular facility is covered under the standards.

Standard Numbers: 115.5
Categories: Covered Facilities, Final Rule, Definitions
Jul 09, 2013
Q:

Do the PREA standards apply to adult psychiatric forensic mental health care facilities or hospitals operated by non-correctional agencies where individuals have been committed following a court finding of not guilty by reason of insanity or where they are held pending competency restoration?

A:

No. An adult hospital or mental health care facility that is not operated by a correctional agency (or under the authority of a correctional agency) is not covered under the PREA Standards. This is true even if the hospital or mental health care facility houses some portion of residents pursuant to the criminal justice system.  

Standard Numbers:
Categories: Covered Facilities, Final Rule, Definitions
Jul 09, 2013
Q:

What is the threshold number of criminal justice residents in a community facility to implicate the community confinement standards?

A:

A community facility that is not primarily used for the confinement of residents in the adult criminal justice system is not covered by the community confinement facility standards.

Standard Numbers: 115.5
Categories: Covered Facilities, Definitions, Final Rule
Jul 09, 2013
Q:Is reciprocal auditing conducted by employees of two confinement agencies permissible?
A:

An auditor who is employed by one correctional agency may not conduct an audit of another correctional agency if an auditor employed at the time by the latter agency has concluded an audit of the former agency within the prior twelve months.

Standard Numbers: 115.402
Categories: Auditing, Audit Process