Facility guidance on virtual PREA audits during the COVID-19 pandemic

Does the COVID-19 pandemic affect your agency’s Prison Rape Elimination Act-related efforts? This question is especially important for agencies that are mandated to remain compliant with PREA auditing standards.

According to a recent article published by the PREA Management Office (PMO), the U.S. Department of Justice (DOJ) has received multiple requests for guidance on whether it would be permissible for DOJ-certified PREA auditors to conduct any components of the onsite portion of the audit remotely. The onsite phase of a PREA audit consists of three core components: site review, interviews, and documentation selection and review.

Due to the impact of the COVID-19 pandemic on travel and limited access to some confinement facilities. The PMO has determined that interviews with supervisory staff and the documentation review components of the PREA audit can be conducted remotely.

What about auditors who have already conducted or are in the process of conducting, any portion of the onsite audit remotely?

The PRC has noted that PREA audits completed prior to November 30, 2020, are not impacted. However, auditors who are currently conducting, or who have already contracted to conduct one or more remote audits in the future, that contradict the requirements outlined by the PREA Resource Center (PRC) should contact the PMO immediately at PREACompliance@usdoj.gov.

In order to preserve the integrity of the PREA audit process, the guidance provided by the PMO restricts the ability of auditors to conduct certain components of the onsite phase of the audit remotely. Auditors are encouraged to exercise extreme caution in determining whether or not it is safe to conduct an onsite audit at a facility/agency.

The health and safety of auditors, agency/facility staff, and inmates are paramount. The PMO anticipates the current outbreak may necessitate continuing auditing delays and recognizes that this may impact an agency’s ability to uphold requirements of the PREA Standards. The PMO will attempt to minimize any adverse consequences to facilities, DOJ-certified auditors, or others who may be unable to comply in a timely fashion with PREA requirements because of efforts to address, manage, and mitigate the effects of COVID-19, to the extent permissible under statutory and regulatory requirements.

Site review

The PMO notes that DOJ-certified PREA auditors are not permitted to conduct the site review portion of the onsite audit remotely, as it does not comport with the requirements in the PREA Standards, PREA Auditor Handbook (Handbook), and Audit Instrument.

PREA Standard 115.401(h) states, “The auditor shall have access to, and shall observe, all areas of the audited facilities.” As described in the handbook, in order to meet the requirements of this standard, the site review portion of the onsite audit must include a thorough examination of the entire facility. The primary purpose of the onsite phase of the PREA audit is to personally assess, the day-to-day practices used by facility staff. This review of day-to-day practices requires active engagement by the auditor with critical facility functions, such as observing intake and risk screenings, listening for cross-gender announcements, testing the working conditions of telephones, kiosks, and other reporting devices, accessing reporting entities, and discerning supervision practices.

A remote site review would introduce significant barriers to meeting 115.401(h) requirements. Such barriers include but are not limited to the following:

• Ensuring the auditor has true, unfettered access to, and is able to observe all areas of the facility being audited.
• Unreliable or inadequate Wi-Fi coverage at the facility.
• Concerns regarding the privacy and security of videoconferencing platforms, particularly related to video streaming of housing units or other areas of the facility where inmates may be in a state of undress.
• The ability of auditors to objectively test and meaningfully engage with critical facility functions, such as testing the phone system to determine whether inmates can access reporting hotlines, or observing intake and screening protocols.

Because of these barriers, it is not feasible for an auditor to objectively assess and make compliance determinations of a facility’s practices without being physically onsite for the review. If an auditor is unable to conduct a thorough in-person examination of the facility, as well as the day-to-day practices of facility staff, the agency will be unable to sufficiently bear the burden of demonstrating compliance with the standards.

Interviews with inmates

The PMO has noted that DOJ-certified PREA auditors are not permitted to conduct virtual interviews with inmates, either by phone or by video, as this does not comport with the requirements in the handbook and audit instrument.

The PREA standards governing interviews with inmates are as follows:

• 115.401(k) – “The auditor shall interview a representative sample of inmates, residents, and detainees, and of staff, supervisors, and administrators.”
• 115.401(m) – “The auditor shall be permitted to conduct private interviews with inmates, residents, and detainees.

The interview process is among the most important, and most challenging, elements of a PREA audit. During the interview, it is critical that inmates have an opportunity to speak privately with an auditor. By conducting private, one-on-one interviews with inmates in person, auditors provide a safe space where inmates can freely discuss their experiences at the facility on sensitive issues related to sexual safety. If privacy cannot be assured, then Standard 115.401(m) cannot be satisfied.

Auditors conducting virtual interviews would introduce significant barriers to meeting the requirements described above. Such barriers include but not limited to the following:

• An auditor conducting a virtual interview would not be able to guarantee that the interview is private. For example, whether anyone else is in the room with the inmate, or in hearing distance, or if the phone or video feed is being recorded.
• Inmates may not believe that a virtual interview is private, or is not being recorded. This could have a chilling effect on interviewee participation or disclosure, which implicates the reliability of an auditor’s compliance determinations.
• Virtual interviews make it more difficult to build rapport, establish trust, read body language, and assist inmates who may experience distress as a result of participating in an interview.

Interviews with staff

PREA Standard 115.401(k) mandates that auditors “interview a representative sample of staff, supervisors, and administrators.” Although the standards do not explicitly require privacy during staff interviews, it is critical that auditors are able to provide a safe space where staff can freely discuss their experiences at the facility with sensitive issues related to sexual safety.

Supervisory and administrative staff, because of their positions of authority and access to private locations such as private offices, are typically more likely to speak privately and freely to auditors than non-supervisory and non-administrative staff. As a result, DOJ-certified PREA auditors are permitted to conduct virtual interviews, including by both phone and/or video, of supervisors and administrators, as well as certain specialized staff explicitly named in the handbook.

Auditors are not permitted to conduct non-supervisory and non-administrative staff interviews remotely, either by phone or by video, as line staff may likely be unable to speak privately and freely to auditors when compared to supervisory and administrative staff.

To make accurate compliance determinations, auditors should ensure that all staff are able to speak privately and freely and confirm that no one pressured them to consent or to refuse to be interviewed, or coached them on what to say during the interview.

Documentation review

Auditors are permitted and encouraged to collect documentation and review it remotely. Auditors must follow the relevant PREA Standards (including 115.401(f), 115.401(g), 115.401(i), and 115.401(l)), and should carefully review the Auditor Compliance Tool and the Checklist of Documentation to confirm that they have reviewed all relevant documentation for each audit. Even remotely, auditors are required to select documents for review, and must not rely on the facility or agency to make these selections.

The Online Audit System provides a secure, electronic platform for auditors to collect and review sensitive audit documentation, including audit documentation that contains Personally Identifying Information (PII) or Personal Health Information (PHI), provided by audited facilities and agencies. The Online Audit System keeps all important documents in one place without risking loss, theft, or intercepted communications.

Sources

• PREA Resource Center
• PREA Management Office (BJA)
• SAFEta.org