Frequently Asked Questions

No. The HIPAA regulations expressly allow medical providers to provide to a facility with lawful custody of an inmate any information necessary for (among other things) “[t]he health and safety of such individual or other inmates” or “[t]he administration and maintenance of the safety, security, and good order of the correctional institution.” 45 C.F.R. § 164.512(k)(5)(i).

Disclosures made pursuant to a PREA audit are also permissible under HIPAA pursuant to the regulatory exception for “health oversight activities.” 45 C.F.R. § 164.512(d). The HIPAA regulations allow disclosure to “a health oversight agency for oversight activities authorized by law, including audits,” where necessary for appropriate oversight of (among other things) “[e]ntities subject to government regulatory programs for which health information is necessary for determining compliance with program standards” or “[e]ntities subject to civil rights laws for which health information is necessary for determining compliance.” 45 C.F.R. § 164.512(d)(1). The HIPAA regulations define “health oversight agency” to include any person or entity operating under the authority of a public agency who is legally authorized “to oversee . . . government programs in which health information is necessary to determine eligibility or compliance, or to enforce civil rights laws for which health information is relevant.” 45 C.F.R. § 164.501. Because a PREA auditor qualifies as a health oversight agency, and the auditor’s work qualifies as a health oversight activity, HIPAA poses no bar to the disclosure of relevant information to the auditor. Although information may be disclosed to a certified PREA auditor, any public report or statement released by the PREA auditor must not include protected health information.

Foster homes are not covered by the standards.

A community facility that is not primarily used for the confinement of residents in the adult criminal justice system is not covered by the community confinement facility standards.

The lockup standards apply.

No. An adult hospital or mental health care facility that is not operated by a correctional agency (or under the authority of a correctional agency) is not covered under the PREA Standards. This is true even if the hospital or mental health care facility houses some portion of residents pursuant to the criminal justice system.  

In years when the contract facility is audited, review of the audit report will meet the monitoring requirements. In other years, monitoring may be done in the same manner the agency verifies compliance with other contract terms, which may vary (e.g. on-site agency staff, inspections, documentation, etc.). Whatever monitoring method used should provide the agency assurances that the contractor is complying with the PREA standards.

No. A facility for juveniles that is not primarily used for the confinement of youth in the juvenile justice system is not covered by the PREA standards.

No. Civilly-committed individuals are not considered inmates, residents, or detainees for purposes of determining whether a particular facility is covered under the standards.

An auditor who is employed by one correctional agency may not conduct an audit of another correctional agency if an auditor employed at the time by the latter agency has concluded an audit of the former agency within the prior twelve months.

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.