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.
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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?
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.
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.
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
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?
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.
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?
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.
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)?
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.
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)?
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.
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?
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.
Under what circumstances may former sex offenders, as identified in PREA standards 115.17(a)/117(a)/217(a)/317(a), be hired or contracted with by a confining agency when that former offender is utilized in programs to aid in rehabilitative programming for inmates, detainees, or residents?
The prohibition against hiring, promoting, or contracting with individuals who have a history of sexually abusive conduct is intended to serve the important public safety goal of protecting inmates from individuals who are likely to have a heightened risk of committing future acts of sexual abuse. Given the unique nature of the correctional setting, and the vulnerability of some individuals in the inmate population, the hiring/contracting limitation generally provides an appropriate protection for inmates.
Promoting effective policies to aid former prisoners in reentering society is also important public policy. The Attorney General has directed Department components involved in proposing new and revising or updating existing regulations or policy guidance to consider whether the regulation or guidance could impose a barrier to successful reentry. If so, the components must also consider whether the regulation or guidance can be more narrowly tailored, without impeding public safety or other legitimate government interests.
Pursuant to the Attorney General’s directive, the Department hereby provides the following policy guidance regarding the interpretation and scope of the hiring, promoting, and contracting provisions of sections 115.17(a)/115.117(a)/115.217(a)/115.317(a) to remove potential impediments to successful reentry, without jeopardizing public safety for inmates in correctional settings:
An agency may hire or contract with an individual who would otherwise be prevented from such employment or contracting without violating the standards only if the agency head or designee1: (1) determines that the individual does not pose a safety threat, based on considerations such as the length of time that has passed since the activity described in standard 115.17(a)(1)-(3), the evidence of rehabilitation on the part of the individual, or other relevant factors, and documents all relevant factors and rationale leading to the safety threat determination; (2) considers the individual to be important to the success of a specialized inmate rehabilitative program; and (3) does not permit the individual to have contact with inmates without staff supervision (e.g., circumstances where an individual would have the opportunity to potentially sexually abuse an inmate, due to the ability to privately interact with, or to supervise, inmates). For example, a presentation by an ex-offender, to a group of inmates, under constant in-person supervision, would be acceptable under this section, so long as the above requirements have been met.
1 The designee may not hold a position lower than a facility head.