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 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.
Do employees who have contact with inmates need to be trained pursuant to standard 115.31 prior to being placed in positions that put them in contact with inmates?
Standard 115.31 outlines the topics on which all employees who have contact with inmates must be trained. All employees must receive training on these topics prior to having contact with inmates, except in very rare circumstances where a slight delay may be reasonable and the employee will not have unsupervised contact with inmates until the required training occurs. If, for example, a new employee who has not yet been trained finds himself or herself in a first-responder situation after a sexual assault has occurred, the consequences for the victim and for the investigation could be very serious and possibly beyond remedy. If the new employee does not know how to preserve physical evidence and finds himself or herself in a situation where there is physical evidence of a sexual assault, that evidence could be irrevocably lost because of the individual’s lack of training.
The Department does, however, recognize that in some agencies and facilities, comprehensive PREA training that goes beyond the basic training required in standard 115.31 may be conducted periodically and, as a result, agencies and facilities would have to leave open positions vacant for long periods of time if they waited to fill them until new staff members participated in comprehensive PREA training. The Department recognizes that open positions that are left vacant for long periods of time may have a negative impact on facility safety and security.
In light of these challenges, the Department has determined that while training on the specific topics outlined in standard 115.31 must occur before new staff members have contact with inmates (except as outlined above), agencies and facilities can implement effective ways to ensure that such training occurs, so that vacant positions are not left open for long periods of time. For example, agencies and facilities may offer pre-service orientation training that focuses on a host of issues critical to interacting with inmates and supporting safety and security in confinement settings, including all of the topics identified in standard 115.31. While more comprehensive, in-depth training may be provided later, the pre-service training must cover all of the topics identified in standard 115.31, including providing new staff members with a clear understanding of their roles and responsibilities related to preventing, detecting, and responding to sexual abuse in the confinement settings. Such pre-service orientation training can be reinforced and enhanced by on-the-job training, where experienced and knowledgeable staff members partner and work with new hires to educate them further about the topics in standard 115.31. More comprehensive PREA training then could be provided at the next opportunity, but no later than the time required under standard 115.31(c).