What is PREA?
Congress passed the Prison Rape Elimination Act in 2003 in order to address the often overlooked crime of rape in federal, state, and local prisons and to analyze the incident and effect of prison rape in order to provide information, resources, recommendations, and funding to protect individuals from the crime.
PREA also established the National Prison Rape Elimination Commission (NPREC) to study prison rape and recommend to the Attorney General national standards for the reduction of prison rape. The Attorney General was then directed to publish a final rule adopting national standards for the detection, prevention, reduction, and punishment of prison rape.
What is VAWA 2013?
Congress passed the Violence Against Women Reauthorization Act in 2013 to reauthorize the Violence Against Women Act (VAWA) of 1994, which mainly addresses violence against women and vulnerable populations. Within the legislation was language that amended PREA to apply its provisions to HHS facilities that maintain custody of unaccompanied children (UC). Specifically, VAWA 2013 directs HHS to consider the recommendations of the NPREC and to adopt national standards for the detection, prevention, reduction, and punishment of rape and sexual assault in facilities that maintain custody of UC. In accordance with VAWA 2013, HHS is now publishing national standards in this IFR.
Who does the Interim Final Rule (IFR) apply to?
The IFR applies to all ORR care provider facilities that house unaccompanied children with the exception of secure care provider facilities and individual foster care homes. Because all ORR secure care provider facilities are juvenile delinquency facilities, ORR directs its secure care provider facilities to follow the Department of Justice (DOJ) national standards to prevent, detect, and respond to prison rape. Individual foster family homes are not subject to the IFR, but the care provider facility where a UC may receive education and other services during the day are subject to this rule.
Does the IFR supersede state laws and regulations?
No. All ORR care provider facilities, including secure care provider facilities and individual foster care homes, are subject to all applicable state and local laws, regulations, and licensing requirements. For care provider facilities subject to the IFR, the IFR is not meant to supersede state and local laws, regulations, and licensing requirements but to enhance and build upon them.
What are the major provisions of the IFR?
The IFR sets out standards for ORR care providers to follow in order to prevent, detect, and respond to both sexual abuse and sexual harassment. The standards are divided into the 11 categories used by the NPREC to discuss and evaluate prison rape prevention and elimination recommendations. The 11 categories are: prevention planning, responsive planning, training and education, assessment for risk of sexual victimization and abusiveness, reporting, official response following a UC report, ORR incident monitoring and evaluation, interventions and discipline, medical and mental care, data collection and review, and audits and corrective actions.
When must care provider facilities be in compliance?
All ORR care provider facilities housing unaccompanied children must be in full compliance with the IFR within six months of its publication date.
What happens if an ORR care provider facility fails to comply with the standards?
All care provider facilities subject to the IFR will be audited at least once within the first three years of the publication of the IFR and every three years thereafter. An independent auditor will conduct this audit of the care provider facility to determine if it is in compliance with the IFR. ORR staff will monitor and evaluate all care provider facilities on a more frequent basis to ensure care provider facilities are following ORR policies and procedures, which will implement the IFR, as well as the IFR itself.
If a care provider facility is not compliant with the IFR, the auditor and ORR will issue corrective actions, and the care provider facility will have an opportunity to become compliant or respond to the corrective action either within 90 days under an audit or 30 days under an ORR corrective action. If the care provider facility continues to remain non-compliant, ORR will have discretion to issue sanctions up to and including termination of the care provider facility’s grant or contract.
If a care provider facility fails to report an incident to ORR or to other appropriate authorities and ORR learns of this failure, ORR will immediately issue a corrective action and determine if further action is necessary in light of the care provider facility’s actions.