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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Standard 115.52 (d)(1) states: “The agency shall issue a final agency decision on the merits of any portion of a grievance alleging sexual abuse within 90 days of the initial filing of the grievance.” If the agency has a grievance appeals process with one or more levels of appeal following an initial decision on the grievance, what stage of that process constitutes a “final agency decision?”
The “final agency decision” must be issued at the highest level of appeal available to the inmate who has filed the grievance, and it must be issued within 90 days of the initial filing of the grievance, not counting the time the inmate takes to prepare an appeal at any level. (See Standard 115.52 (d)(2), which states: “Computation of the 90-day time period shall not include time consumed by inmates in preparing any administrative appeal.”) The purpose of Standard 115.52 (d)(1) and (d)(2) is to ensure that inmates can “exhaust” administrative remedies within a timeframe that reasonably allows them to move through the grievance process without missing a state or federal statute of limitations.
Standard 115.52 (d)(3) states: “The agency may claim an extension of time to respond, of up to 70 days, if the normal time period for response is insufficient to make an appropriate decision. The agency shall notify the inmate in writing of any such extension and provide a date by which a decision will be made.”
PREA Standard 115.52 (a) states: “An agency shall be exempt from this Standard if it does not have administrative procedures to address inmate grievances regarding sexual abuse.” What does an agency need to demonstrate in order to qualify for this exemption, if it has an inmate grievance process?
An agency that has an inmate grievance process or any other administrative remedies process is only exempt from Standard 115.52 if it can demonstrate that as a matter of written agency policy, grievances related to sexual abuse or allegations of sexual abuse (i.e., allegations of sexual abuse, a fear of sexual abuse, or allegations of mishandling of an incident of sexual abuse) are immediately converted to investigations that are outside of the agency’s administrative remedies process, and are not considered by the agency to be grievances.
In order to be exempt from compliance with Standard 115.52, it must be clear in written agency policy that the agency does not have an administrative procedure for inmates to exhaust, with regard to incidents or allegations of sexual abuse (i.e., allegations of sexual abuse, a fear of sexual abuse, or allegations of mishandling of an incident of sexual abuse). If the agency does not have a written policy that is consistent with what is described in this FAQ, the agency is not exempt from the requirements in Standard 115.52.
If the agency is exempt from Standard 115.52, inmates must be provided notice that grievances related to sexual abuse or allegations of sexual abuse (i.e., allegations of sexual abuse, a fear of sexual abuse, or allegations of mishandling of an incident of sexual abuse) are immediately converted to investigations that are outside of the agency’s administrative remedies process and are not considered by the agency to be grievances. This notice to inmates can be provided in a number of ways, including in inmate handbooks and other written resources and notices to which inmates have regular access, and during the inmate education required by Standard 115.33, which states:
(a) During the intake process, inmates shall receive information explaining the agency’s zero-tolerance policy regarding sexual abuse and sexual harassment and how to report incidents or suspicions of sexual abuse or sexual harassment.
(b) Within 30 days of intake, the agency shall provide comprehensive education to inmates either in person or through video regarding their rights to be free from sexual abuse and sexual harassment and to be free from retaliation for reporting such incidents, and regarding agency policies and procedures for responding to such incidents.
(c) Current inmates who have not received such education shall be educated within one year of the effective date of the PREA Standards and shall receive education upon transfer to a different facility to the extent that the policies and procedures of the inmate’s new facility differ from those of the previous facility.
(d) The agency shall provide inmate education in formats accessible to all inmates, including those who are limited English proficient, deaf, visually impaired, or otherwise disabled, as well as to inmates who have limited reading skills.
(e) The agency shall maintain documentation of inmate participation in these education sessions.
(f) In addition to providing such education, the agency shall ensure that key information is continuously and readily available or visible to inmates through posters, inmate handbooks, or other written formats.
PREA Standard 115.52 (a) and (b) use the language “grievances regarding sexual abuse” or “grievances regarding an allegation of sexual abuse.” What constitutes a grievance “regarding” sexual abuse or an allegation of sexual abuse?
For Standard 115.52 (a) and (b), a grievance regarding an incident or allegation of sexual abuse is any grievance that is about a potential or past incident, or allegation, of sexual abuse. A grievance that alleges a fear of imminent sexual abuse, a grievance that alleges an incident of sexual abuse, or a grievance that alleges the mishandling of a report of sexual abuse are all grievances “regarding allegations of sexual abuse.”