On September 20, 2017, from 12:30-2 pm ET/9:30-11 am PT, the PRC hosted a Webinar presentation from the U.S. Department of Justice PREA Management Office.
This Webinar is designed to highlight key information contained in the newly released PREA Auditor Handbook, and will help facilities and agencies know what to expect from audits and from the auditors with whom they contract. The Webinar covers topics such as:
- Contracting for a PREA audit: Types of auditing arrangements, what should and should not be included in an audit contract, and rules regarding auditor compensation.
- PREA Audit Process: The PREA audit process from start to finish, what to expect during each phase of the PREA audit, core activities undertaken by and responsibilities of the auditor, and requirements regarding auditor access to facility/agency documentation and physical plant.
- Planning for corrective action: How to plan for corrective action and ensure that contracts for PREA audits allow for and support corrective action periods.
- Audit oversight: The consequences for auditors who fail to meet the requirements of their DOJ PREA auditor certification, and how to report complaints or concerns about auditor conduct.
A PDF of the slides used for the webinar can be found here.
Questions and Answers
Please note that this transcript was lightly edited following the webinar to enhance its comprehensiveness and readability.
Q: If a building firm wanted a PREA auditor to review a building's design plan for compliance with Standard 115.318(a) & (b), would an audit report need to be submitted to the PREA Resource Center addressing that particular standard?
A: No, this would fall into the category of technical assistance (TA), and NOT a PREA audit. But the person performing this TA could not subsequently perform an audit of a facility by the same agency within three years, pursuant to 115.402(c) & (d).
Q: Could you explain what will be different this audit cycle? The letter to the governors indicated that if a facility achieved compliance during Audit Cycle 1 that the same facility may not achieve compliance during Audit Cycle 2. Does that mean that practices that were previously approved may not be accepted this time?
A: We have received a great deal of information to suggest that some auditors in the first audit cycle were not following required audit methodology, were not conducting comprehensive audits, had misunderstandings about what compliance with the PREA Standards requires, and/or were not holding agencies and facilities accountable for specific provisions that did not meet compliance. The Department has gone to great lengths to remedy these problems through auditor accountability mechanisms, enhanced auditor training, and the finalization of the PREA Auditor Handbook, which explains the Department of Justice’s requirements and expectations for certified auditors. Accordingly, we expect that PREA audits during this cycle may often be more comprehensive and exacting than in the past, which may result in the need for increased corrective action.
Q: If a facility does not have a population that is considered a targeted interview (i.e. no transgender inmates in custody), should auditors interview more random inmates in order to meet that minimum number of inmate interviews?
A: In this case, auditors should first attempt to conduct interviews with inmates from other targeted populations to make up the difference, but if there are not sufficient additional targeted inmates to interview, the remaining difference may be filled with random inmate interviews. A facility indicating that they lack certain categories of inmates "could" be a red flag that the agency is not performing adequate screening and tracking to identify those inmate populations.
For additional information, this topic is addressed on p.48 of the PREA Auditor Handbook under the heading, How to meet the minimum threshold for targeted inmate interviews. The PREA Auditor Handbook can be accessed on the PREA Resource Center website, here: www.prearesourcecenter.org/node/5341.
Q: To follow up, if noncompliance was identified in an interim report and corrective action was taken and accepted resulting in a final compliant report, is it possible that the previously accepted corrective action will be found noncompliant this Audit Cycle?
A: It is possible, yes. Each audit is a "zero-based" audit and in each audit cycle, auditors are required to look at compliance with every provision of every standard. If the prior corrective action did not adequately remedy the prior area of noncompliance, then an auditor is obligated to find that provision out of compliance with the standard in a subsequent audit.
Q: What if your facility does not have 12 "random" staff left after staff who have designated roles are interviewed?
A: In that case, the auditor should do the most interviews possible and then indicate the reasoning behind the lower number of interviews in the methodology portion of the PREA audit report (and in the reporting forms that are submitted to the PREA Resource Center).
Q: If your administration houses transgender inmates in single cell housing or only with other transgender inmates would this be PREA-compliant?
A: Housing units (as that term is defined by FAQ) may not make an eligibility requirement that requires LGBTI status as a condition of placement. There is an extensive FAQ on this issue. Please click here to view the FAQ.
Q: Now that there has been a complete 3-year audit cycle, will there be any opportunity for feedback from correctional facilities on the PREA Standards? For example, is there any consideration to revise the standard on cross-gender viewing to exempt security staff and recognize our correctional staff as professionals in the same manner medical staff are considered professionals?
A: There are no current plans to open the PREA standards for additional public comment periods and revisions. However, like any federal regulation, there are avenues to re-open this process. The Department of Justice considers correctional staff as skilled professionals who serve a critical function in professional correctional practices in keeping both inmates and staff safe, and in providing adequate conditions of confinement.
Q: You stated that corrective action can occur while an auditor is onsite and/or during the interim report (phase 3). Could someone break this down a bit further? I imagine you couldn't go to a final report that you would document the issue, concerns and corrective action taken and site corrective action taken (as agreed upon) and then verify corrective action has been institutionalized/operationalized after interim report was issued?
A: Pursuant to Standard 115.404(d), auditors are required to identify and explain all corrective action taken during any phase of the audit in the final audit report (whether pre-onsite, onsite, during the 45-day reporting period following the onsite audit, or afterward). Adequate corrective action for a deficiency will rarely if ever be fully possible while the auditor is still onsite. There is an FAQ that speaks to this issue, which can be accessed here: www.prearesourcecenter.org/node/3217.
Q: Would an agency be told if their auditor was reviewed as not conducting in-depth audits?
A: At this time, the auditor oversight and disciplinary process for individual auditors is not publicly available. However, agencies and facilities are strongly encouraged to check their auditor’s certification status by reviewing the list of certified auditors on the PREA Resource Center website, available here: www.prearesourcecenter.org/audit/list-of-certified-auditors. The PREA Resource Center also makes available a list of formerly certified auditors here www.prearesourcecenter.org/audit/formerly-certified-auditors.
It should be noted that this oversight process would never change prior facility final audit findings of compliance to a finding of noncompliance (or vice versa). It should also be noted that, where the PREA Management Office (PMO) identifies trends of audit deficiencies for specific PREA standards or provisions of standards, the PMO attempts to provide general information to agencies and auditors about these deficiencies.
If facilities or agencies have concerns about the conduct of a given Department of Justice-certified PREA auditor, they may contact the PMO at PREACompliance@usdoj.gov, or submit an Auditor Feedback Form at: https://www.prearesourcecenter.org/audit/auditor-feedback-form.
Q: In cross-gender viewing during a planned and/or unplanned Use of Force, would having a person of the opposite gender to video the incident be against PREA guidelines? Knowing that the offender will be nude at some point during the video.
A: Absent the strict exception for "exigent circumstances" as defined in 115.5, opposite gender staff should not be in a position to view naked inmates during a use of force (especially a planned use of force). Click here for an FAQ that provides more guidance.
Q: If a facility allows transgender inmates to choose what gender staff will search them (both pat searches and strip searches), is it correct that then the prohibition on cross-gender searches would not apply since it would be the transgender inmate's choice?
A: The standards do not define what the term "cross gender" means in terms of transgender or intersex inmates. But searching of transgender or intersex inmates in accordance with their preferences is certainly an acceptable process. Click here for an FAQ that provides more guidance.
The following question was received after the live event.
Q: Can the assistants who are not PREA Certified Auditors conduct the inmate interviews on behalf of the PREA Certified Auditor?
A: The Department of Justice PREA Working Group issued guidance on December 5, 2013, stating:
PREA auditors may employ staff to provide assistance, including conducting interviews, but the DOJ-certified auditor is ultimately responsible for the final audit. In addition, the certified auditor is required to be present for, and supervise, the entirety of the on-site portion of the audit; to be the counterparty in an agency’s contractual engagement for the conduct of the audit; and to sign and certify the interim and final audit reports. Failure to adequately supervise such support staff could have consequences for the responsible auditor, up to and including decertification by the Department of Justice.
This guidance can also be found on the PREA Resource Center website, here: www.prearesourcecenter.org/node/3222.