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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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?
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.
Is comparing the total number of security staff with the total number of residents in a secure juvenile facility an acceptable way to calculate whether the facility is complying with the minimum staffing ratios required by PREA Standard 115.313(c)?
No. Standard 115.313(c) states: “Each 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 discrete exigent circumstances, which shall be fully documented. Only security staff shall be included in these ratios. Any facility that, as of the date of publication of this final rule, is not already obligated by law, regulation, or judicial consent decree to maintain the staffing ratios set forth in this paragraph shall have until October 1, 2017, to achieve compliance.” For additional information regarding who may be counted as security staff, see this FAQ: www.prearesourcecenter.org/node/3254.
Because the minimum staffing ratios enumerated in Standard 115.313(c) apply to the supervision of every juvenile resident in a facility, compliance will depend on the location of each resident, or group of residents, and the location of security staff at any given time. In order to calculate whether a facility is complying with the required staffing ratios, it is necessary to:
- Determine how juvenile residents are housed and programmed within the facility;
- Examine how security staff members are deployed throughout the facility;
- Review historical juvenile resident placement and staffing deployment; and
- Observe actual supervision practices in the facility.
The following hypothetical example, focused on juvenile facility “Alpha,” illustrates why comparing the total number of security staff with the total number of residents in a secure facility is not an acceptable way to calculate whether a facility is complying with the minimum staffing ratios required by PREA Standard 115.313(c), and demonstrates how compliance with the required ratios depends on the location of residents and security staff in a facility at any given time.
Juvenile facility “Alpha” currently has 80 residents and 10 security staff on duty during non-sleeping hours.
- On Alpha facility’s housing unit A, there are currently 16 residents during non-sleeping hours, and there are two security staff posted on this unit actively supervising the 16 residents, creating a ratio of 1:8.
- On Alpha facility’s housing unit B, there are currently 14 residents during non-sleeping hours, and there are two security staff posted on this unit actively supervising the 14 residents, creating a ratio of 1:7.
- On Alpha facility’s housing unit C, there are currently 18 residents during non-sleeping hours, and there are two security staff posted on this unit actively supervising the 18 residents, creating a ratio of 1:9. For 30 minutes during each 8-hour shift during non-sleeping hours, a roaming security staff member enters housing unit C and actively supervises the 18 juveniles, along with the two security staff members who are already posted there. This briefly creates a ratio of 1:6.
Although juvenile facility Alpha has 80 residents and 10 security staff during non-sleeping hours, it is not in compliance with Standard 115.313(c) because of the staffing ratio on housing unit C during non-sleeping hours. Although the roaming security staff member briefly increases the ratio to 1:6 on unit C, this unit has a 1:9 ratio when the roaming staff is not present.
The hypothetical example above also illustrates that juvenile facilities which comply with the required staffing ratios for short periods of time are not in compliance with Standard 115.313(c). Compliance with this standard must be “institutionalized” throughout the facility over a sustained period of time. For more information regarding what institutionalized means, see this FAQ: www.prearesourcecenter.org/node/3217.
Security staff members supervising juvenile residents via remote video monitoring do not count in the minimum ratio requirements. Video monitoring and/or control room staff typically cannot hear residents, promptly respond to cries for help, are typically responsible for monitoring countless youth in multiple locations, and often have a myriad of other duties such as controlling movement and answering telephones. However, security staff members in security cages may count, if these staff are dedicated to supervising juvenile residents in a single unit, have a meaningful line of sight into the unit without the assistance of technology (e.g., video monitors), can hear the residents, and are able to respond immediately to any emergencies.
Relevant Definitions from the PREA Standards
Standard 115.5 defines “secure juvenile facility” as a facility “in which the movements and activities of individual residents may be restricted or subject to control through the use of physical barriers or intensive staff supervision. A facility that allows residents with access to the community to achieve treatment or correctional objectives, such as through educational or employment programs, typically will not be considered to be a secure juvenile facility.”
Standard 115.5 defines “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.”
PREA Standard 115.5 defines “exigent circumstances” as meaning “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.”
What are the implications for a secure juvenile facility that gets audited and meets full compliance prior to October 1, 2017, but was not audited on Standard 115.313(c) and does not meet the staffing ratio requirement after October 1, 2017? What information does the governor need about compliance with Standard 115.313(c) to certify the state’s or territory’s compliance?
As required under Standard 115.313(c), “…Any facility that, as of the date of publication of this final rule, is not already obligated by law, regulation, or judicial consent decree to maintain the staffing ratios set forth in this paragraph shall have until October 1, 2017, to achieve compliance.” Thus, for many or most juvenile facilities, the juvenile staffing ratio requirement will not take effect until October 1, 2017, just over a month into Audit Year 2 of PREA Audit Cycle 2, which begins on August 20, 2017 and ends on August 19, 2018. Therefore, compliance with the juvenile staffing ratio will first impact each governor’s certification determination for Audit Year 2 of Audit Cycle 2, which will be due to the Department on
October 15, 2018. In order for a governor to submit a certification of full compliance with the PREA Standards for Audit Year 2 of Cycle 2, all facilities under the operational control of the executive branch, including facilities operated by private entities on behalf of the state’s or territory’s executive branch, must be in full compliance with all of the PREA Standards by August 19, 2018, which will include full compliance with Standard 115.313.
For example, in a given state or territory, some juvenile facilities may have been audited during Audit Year 1 of Audit Cycle 2 (August 20, 2016 – August 19, 2017), prior to the effective date of the juvenile staffing ratio requirement on October 1, 2017, and been found in full compliance. If these facilities have not yet implemented the juvenile staffing ratio requirement under Standard 115.313(c) by the end of Audit Year 2 of Audit Cycle 2 on August 19, 2018, these facilities would have met their auditing obligations under Standard 115.401. However, they would not be considered fully compliant with the PREA Standards because of their lack of compliance with the staffing ratio requirement in Standard 115.313(c).
For more information regarding the sources of information that governors should consider when making a PREA certification determination, please click here.
What are the PREA standards and when are they effective?
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.
Is it ever appropriate for auditors to require the installation of cameras as part of a corrective action plan?
No, with respect to adult confinement facilities. Generally, no, with respect to juvenile facilities. In juvenile facilities that include specific camera coverage in their staffing plan, the absence of such camera coverage may appropriately provide the basis for an auditor to either insist on the camera requirements in their staffing plan or require that the staffing plan be amended. Note that there are different requirements regarding the deployment of video monitoring technology among the four sets of standards.
Prisons, Jails, Lockups, and Community Confinement Facilities
In adult facilities (adult prisons and jails; lockups; and community confinement facilities), the standards require facilities to develop and document staffing plans that provide for “adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse.” See 28 C.F.R. §§ 115.13(a), 113(a), and 213(a). These standards require that facilities consider several enumerated factors in the development of the staffing plan, including, among other things, the physical layout of the facility. See also 28 C.F.R. §§ 115.13(a)(5) (“including ‘blind spots’”). In adult facilities, agencies are required to make “best efforts” to comply with the staffing plan and/or to “document and justify” deviations from it.
The adult standards also require agencies to reassess the adequacy of the “facility’s deployment of video monitoring systems and other monitoring technologies…[w]henever necessary, but no less frequently than once each year…” See 28 C.F.R. §§ 115.13(c), 113(c), and 213(c).
Finally, the adult standards require agencies “[w]hen installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology…to consider how such technology may enhance the agency’s ability to protect inmates from sexual abuse.” See 28 C.F.R. §§ 115.18(b), 118(b), and 218(b).
Within this context, agencies have considerable discretion regarding how best to allocate resources devoted toward developing and implementing their staffing plans. For example, in developing an adequate staffing plan, an agency may choose to emphasize higher staffing levels rather than comprehensive video monitoring. Indeed, best practices suggest that video monitoring is not an adequate substitute for sufficient numbers of staff. In any event, so long as the above requirements are complied with (e.g., make best efforts to comply, document and justify deviations, and consider how technology may enhance protections), then the failure to incorporate or add video monitoring technology does not cause a facility to be out of compliance with the standards. Accordingly, it is not appropriate for an auditor to specifically require the addition of video cameras as a condition of finding compliance.
Unlike the adult facility standards, the juvenile facility standards require agencies to “implement…a staffing plan that provides…where applicable, video monitoring, to protect residents against sexual abuse.” See 28 C.F.R. § 115.313(a). The staffing plan must take into consideration, among other things, “the facility’s physical plant (including ‘blind spots’ or areas where staff or residents may be isolated)…” Further, the juvenile facility standards provide that the agency “shall comply with the staffing plan except during limited and discrete exigent circumstances, and shall fully document deviations from the plan during such circumstances.” See 28 C.F.R. § 115.313(b) (emphasis added).
By contrast, while adult facility standards require agencies to develop an adequate staffing plan, and to make best efforts and/or to document and justify deviations, the juvenile facility standards require agencies to comply with the staffing plan, absent exigent circumstances.
However, as discussed above with respect to the development of the staffing plan, agencies have considerable discretion regarding how best to allocate resources devoted toward developing and implementing their staffing plans. In developing an adequate staffing plan, an agency may choose to emphasize higher staffing levels rather than comprehensive video monitoring. For example, where an auditor or an agency identifies a “blind spot” that imposes considerable danger of the occurrence of sexual abuse, an agency may choose to reallocate existing staff or add staff to the area in question, rather than to install a new video camera in the area.
Accordingly, so long as the above requirements are met, the absence of a particular video monitoring system or camera would not preclude agency compliance with this standard, and it would be inappropriate for an auditor to specifically insist on the installation of a video camera (as opposed to other enhanced protective measures) in order to find compliance. However, if the staffing plan developed pursuant to this standard requires specific camera coverage, and that coverage is either not provided or inoperable, then it may be appropriate for the auditor to insist on agencies either complying with the staffing plan (absent exigent circumstances) or amending their staffing plan.
Please note the requirements for a periodic staffing plan reassessment and for consideration of the effect of video monitoring technology when installing or enhancing systems is substantively the same between adult and juvenile facilities. See 28 C.F.R. § 115.313(d) and 318(b).
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.
The PREA standards do not mandate specific minimum staffing ratios for adult and non-secure juvenile settings. Instead, the PREA rule provides guidance on how agencies can determine adequate staffing levels to protect inmates, residents, and detainees from sexual abuse. For prisons, jails, and juvenile facilities, the standards require that agencies consider 1) generally accepted practices; 2) judicial findings of inadequacy; 3) findings of inadequacy from federal investigative agencies; 4) findings of inadequacy from internal or external oversight bodies; 5) all components of the facility’s physical plant (including “blind spots,” or areas where staff or residents may be isolated); 6) composition of the inmate/resident population; 7) number and placement of supervisory staff; 8) number and types of programs occurring on a particular shift; 9) applicable state or local laws, regulations, or standards; 10) prevalence of substantiated and unsubstantiated incidents of sexual abuse; and 11) any other relevant factors. 28 C.F.R. §§ 115.13(a) and 115.313(a). The lockup and community confinement standards provide a similar, albeit abbreviated, list of factors.
In secure juvenile facilities, DOJ defined minimum staffing ratios under PREA Standard 115.313 (c) as 1:8 during resident waking hours and 1:16 during resident sleeping hours. Agencies may depart from these minimum ratios during limited and discrete exigent circumstances, which are fully documented for audit purposes. Id. DOJ noted that many states and localities, as a matter of law or policy, already have minimum staffing ratios in juvenile settings; some state and local facilities exceed the minimum staffing ratios proscribed in the PREA standards and are strongly encouraged to maintain those ratios. In order to provide agencies with sufficient time to readjust staffing levels and, if necessary, request additional funding, the standard provides that any facility that is not already obligated by law, regulation, or judicial consent decree to maintain the required minimum staffing ratios has until October 1, 2017, to achieve compliance. Id.
Only security staff are included in the minimum staffing ratio requirement. The PREA standards define security staff as “employees primarily responsible for the supervision and control of inmates, detainees, or residents in housing units, recreational areas, dining areas, and other program areas of the facility.” 28 C.F.R. 115.5 (definitions).