Is a public agency that contracts with another public or private agency for the confinement of inmates, detainees, or residents out of compliance with Standard 115.12/112/212/312 if the contracted facility is determined to be noncompliant with one or more provisions of the PREA Standards by either its required triennial audit, or by the contracting agency’s contract monitoring?
PREA standards 115.12, 115.112, 115.212, and 115.312 require that new or renewed contracts for the placement of inmates include both a requirement to comply with PREA, and that the contracting agency conduct contract monitoring “to ensure that the contractor is complying with the PREA Standards.”
On February 19, 2014, during the first half of the first auditing year, the Department of Justice (DOJ) provided guidance that (at the time of issue) contracted facilities needed not “be immediately and perfectly compliant with the Standards,” in order for the contracting agency to be considered in full compliance. Rather, DOJ determined that it was sufficient for the contracted facility to “be actively and effectively working toward achieving compliance with all the Standards” and that the contracting agency fully document the progress toward full compliance. This guidance was not intended to provide an avenue for noncompliant contracted facilities to be utilized by agencies in perpetuity.
As such, as of August 20, 2022, contracting agencies shall ensure that any facility that has been contractually required to comply with PREA for at least 36 months has achieved full compliance with the PREA standards, and will maintain compliance as a condition for continued use of such facility by the contracting agency.
For a discussion regarding the contract monitoring obligations of a contracting agency, click here.
Revised August 2, 2019. Original posting date February 19, 2014.
 By way of reference, the Justice for All Reauthorization Act of 2016 provides generally that as of 2022, state agencies will no longer be able to utilize the “assurance” option to avoid losing a portion of certain federal grant funds. See Public Law No: 114-324.