PREA Resources

The PREA Resource Center has added a response to the FAQ section regarding the definitions of programs which would be considered under the operational control of the Executive Branch of Government.

http://www.prearesourcecenter.org/faq

We have received several questions from private providers about whether a facility that provides community-based services would need to comply with the PREA Standards.

This response will focus on two separate perspectives. First, the PREA Standards provide some clarity insights within the explanatory notes of the preamble.

"Juvenile facility. For clarifying purposes, the final rule adds language to make clear that a juvenile facility is one that is primarily used to confine juveniles "pursuant to the juvenile justice system or criminal justice system." A facility that confines juveniles pursuant to a social services system, or for medical purposes, is beyond the scope of these regulations, regardless of whether it is administered or licensed by a Federal, State, or local government or a private organization on behalf of such government.

One commenter suggested amending the definition of juvenile facility to clarify that it includes all youth confined in juvenile facilities, not just those who are accused of, or have been adjudicated for committing, a delinquent act or criminal offense. The commenter noted that, as a result of shortages in residential mental health facilities, juvenile facilities may temporarily hold youth who are not accused of delinquent or criminal acts, while waiting for bed space to open up in residential mental health facilities. The Department has not made this change, because such youth are already covered to the extent that they are housed in a facility that primarily confines juveniles pursuant to the juvenile justice system or criminal justice system.

A State juvenile agency requested that the standards exempt community-based facilities that are not "physically restricting" and that serve juvenile delinquents as well as non-delinquent youth. The Department has not made this change. As stated above, the definition of juvenile facility includes any facility "primarily used for the confinement of juveniles pursuant to the juvenile justice system or criminal justice system." If a non-secure residential facility fits this definition, it will fall within the scope of the standards, even if it also holds some non-delinquent youth. Youth who are legally obligated to return to a facility in the evening are at risk of sexual abuse and therefore warrant protection under these standards. Furthermore, where a facility is primarily used to confine juvenile delinquents, it would be illogical to exempt from coverage those facilities that happen to confine some non-delinquent youth as well."

It is our recommendation that any facility that is on the fence about whether they should complete the PREA Audit, should seek the advice from their legal counsel. While the costs of the audit are high, this must be weighed against the potential risks associated with deciding not to audit. It is not our position to offer any legal opinion or guidance to any facility, rather we are offering support.

The first activity should be to complete an internal audit to determine whether the facility's juvenile justice population served has exceeded the 50% threshold over the past 12 months.

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