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[Federal Register: February 3, 2011 (Volume 76, Number 23)] [Proposed Rules] [Page 6247-6302] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr03fe11-20] [[Page 6247]] Vol. 76 Thursday, No. 23 February 3, 2011 Part III Department of Justice ----------------------------------------------------------------------- 28 CFR Part 115 National Standards To Prevent, Detect, and Respond to Prison Rape; Proposed Rule [[Page 6248]] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE 28 CFR Part 115 [Docket No. OAG-131; AG Order No. 3244-2011] RIN 1105-AB34 National Standards To Prevent, Detect, and Respond to Prison Rape AGENCY: Department of Justice. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Department of Justice (Department) has under review national standards for combating sexual abuse in confinement settings that were prepared by the National Prison Rape Elimination Commission (Commission) pursuant to the Prison Rape Elimination Act of 2003 (PREA) and recommended by the Commission to the Attorney General. On March 10, 2010, the Department published an Advance Notice of Proposed Rulemaking (ANPRM) to solicit public input on the Commission's proposed national standards and to receive information useful to the Department in publishing a final rule adopting national standards for the detection, prevention, reduction, and punishment of prison rape, as mandated by PREA. The Department is now publishing this Notice of Proposed Rulemaking to propose such national standards for comment and to respond to the public comments received on the ANPRM. DATES: Written comments must be postmarked on or before April 4, 2011, and electronic comments must be sent on or before midnight Eastern time April 4, 2011. ADDRESSES: To ensure proper handling of comments, please reference ``Docket No. OAG-131'' on all written and electronic correspondence. Written comments being sent via regular or express mail should be sent to Robert Hinchman, Senior Counsel, Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue, NW., Room 4252, Washington, DC 20530. Comments may also be sent electronically through http:// www.regulations.gov using the electronic comment form provided on that site. An electronic copy of this document is also available at the http://www.regulations.gov Web site. The Department will accept attachments to electronic comments in Microsoft Word, WordPerfect, Adobe PDF, or Excel file formats only. The Department will not accept any file formats other than those specifically listed here. Please note that the Department is requesting that electronic comments be submitted before midnight Eastern Time on the day the comment period closes because http://www.regulations.gov terminates the public's ability to submit comments at midnight Eastern Time on the day the comment period closes. Commenters in time zones other than Eastern Time may want to consider this so that their electronic comments are received. All comments sent via regular or express mail will be considered timely if postmarked on the day the comment period closes. FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue, NW., Room 4252, Washington, DC 20530; telephone: (202) 514-8059. This is not a toll-free number. SUPPLEMENTARY INFORMATION: I. Posting of Public Comments Please note that all comments received are considered part of the public record and made available for public inspection online at http:/ /www.regulations.gov and in the Department's public docket. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. You are not required to submit personal identifying information in order to comment on this rule. Nevertheless, if you still want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket. Personal identifying information and confidential business information identified and located as set forth above will be redacted and the comment, in redacted form, will be posted online and placed in the Department's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph. II. Background The Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. 15601 et seq., requires the Attorney General to promulgate regulations that adopt national standards for the detection, prevention, reduction, and punishment of prison rape. PREA established the National Prison Rape Elimination Commission (Commission) to carry out a comprehensive legal and factual study of the penological, physical, mental, medical, social, and economic impacts of prison rape in the United States, and to recommend national standards to the Attorney General and to the Secretary of Health and Human Services. The Commission released its recommended national standards in a report dated June 23, 2009, and subsequently disbanded, pursuant to the statute. The Commission's report and recommended national standards are available at http:// www.ncjrs.gov/pdffiles1/226680.pdf. The Commission set forth four sets of recommended national standards for eliminating prison rape and other forms of sexual abuse. Each set is applicable to one of the following four confinement settings: (1) Adult prisons and jails; (2) juvenile facilities; (3) community corrections facilities; and (4) lockups (i.e., temporary holding facilities). The Commission recommended that its standards apply to Federal, State, and local correctional and detention facilities (excluding facilities operated by the Department of Defense and the Bureau of Indian Affairs). In addition to the standards themselves, the Commission prepared assessment checklists, designed as tools to provide agencies and facilities with examples of how to meet the standards' requirements; glossaries of key terms; and discussion sections providing explanations for the rationale of the standards and, in some cases, guidance for achieving compliance. These are available at http://www.ncjrs.gov/pdffiles1/226682.pdf (adult prisons and jails), http://www.ncjrs.gov/pdffiles1/226684.pdf (juvenile facilities), http:/ /www.ncjrs.gov/pdffiles1/226683.pdf (community corrections), and http:/ /www.ncjrs.gov/pdffiles1/226685.pdf (lockups). [[Page 6249]] Pursuant to PREA, the final rule adopting national standards ``shall be based upon the independent judgment of the Attorney General, after giving due consideration to the recommended national standards provided by the Commission * * * and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider.'' 42 U.S.C. 15607(a)(2). PREA expressly mandates that the Department shall not establish a national standard ``that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities.'' 42 U.S.C. 15607(a)(3). The Department ``may, however, provide a list of improvements for consideration by correctional facilities.'' 42 U.S.C. 15607(a)(3). The Attorney General established a PREA Working Group, chaired by the Office of the Deputy Attorney General, to review each of the Commission's proposed standards and to help him prepare a draft final rule. The Working Group includes representatives from a wide range of Department components, including the Access to Justice Initiative, the Bureau of Prisons (including the National Institute of Corrections), the Civil Rights Division, the Executive Office for United States Attorneys, the Office of Legal Policy, the Office of Legislative Affairs, the Office of Justice Programs (including the Bureau of Justice Assistance, the Bureau of Justice Statistics (BJS), the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime), the Office on Violence Against Women, and the United States Marshals Service. The Working Group conducted an in-depth review of the standards proposed by the Commission. As part of that process, the Working Group conducted a number of listening sessions in January and February 2010, at which a wide variety of individuals and groups provided preliminary input prior to the start of the regulatory process. Participants included representatives of State and local prisons and jails, juvenile facilities, community corrections programs, lockups, State and local sexual abuse associations and service providers, national advocacy groups, survivors of prison rape, and members of the Commission. The Department also consulted with the Department of Homeland Security's Office for Civil Rights and Civil Liberties and with U.S. Immigration and Customs Enforcement (ICE). Because PREA prohibits the Department from establishing a national standard that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities, the Working Group carefully examined the potential cost implications of the standards proposed by the Commission. As part of that process, the Department commissioned an independent contractor to perform a cost analysis of the Commission's proposed standards, which was received on June 18, 2010. The Department has also worked to address those recommendations put forth by the Commission that require action outside of the context of PREA to accomplish. For example, the Department is in the process of developing a companion to the 2004 ``National Protocol for Sexual Assault Medical Forensic Examinations'' that will be customized to the conditions of confinement. In addition, via a separate rulemaking process, the Department intends to propose removing the current ban on Victims of Crime Act funding for treatment and rehabilitation services for incarcerated victims of sexual abuse. III. The Department's Prior Request for Comments On March 10, 2010 (75 FR 11077), the Department published an Advance Notice of Proposed Rulemaking (ANPRM) soliciting public input on the Commission's proposed national standards. Approximately 650 comments were received on the ANPRM, including comments from current or formerly incarcerated individuals, county sheriffs, State departments of correction, private citizens, professional organizations, social service providers, and advocacy organizations concerned with issues of prison rape, sexual violence, discrimination, and juvenile justice. The Department of Justice appreciates the interest and insight reflected in the many submissions and communications and has considered them carefully. In general, the commenters supported the broad goals of PREA and the overall intent of the Commission's recommendations. Some commenters, particularly those whose responsibilities involve the care and custody of inmates or juvenile residents, expressed concern that the Commission's recommended national standards implementing PREA would impose unduly burdensome costs on already tight State and local government budgets. Other commenters, particularly advocacy groups concerned with protecting the health and safety of inmates and juvenile residents, expressed concern that the Commission's standards did not go far enough, and, therefore, would not fully achieve PREA's goals. In preparing its proposed standards, the Department carefully considered each and every comment, keeping in mind both the goal of the statute and its mandate not to impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities. The following section includes additional discussion of comments relevant to particular standards. IV. Overview of PREA National Standards Rape and sexual abuse are reprehensible, destructive, and illegal in any setting. Such acts are particularly damaging in the correctional environment, where the power dynamic is heavily skewed against victims and recourse is often limited. Until recently, however, this has been widely viewed as an inevitable aspect of imprisonment within the United States. This view is not only incorrect but incompatible with American values. Based on the Department's analysis of data compiled by BJS, approximately 200,000 adult prisoners and jail inmates suffered some form of sexual abuse while incarcerated during 2008. See BJS, Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09 (Aug. 2010).\1\ This suggests 4.4% of the prison population and 3.1% of the jail population within the United States suffered sexual abuse during that year.\2\ In some prisons, nearly 9% of the population reported abuse within that time; in some jails the corresponding rate approached 8%.\3\ --------------------------------------------------------------------------- \1\ This total includes the cross-sectional number covered in BJS surveys plus the number of estimated victims released in the twelve months prior to the survey. For methodology, see Initial Regulatory Impact Analysis (IRIA) at 9, available at http:// www.ojp.usdoj.gov/programs/pdfs/prea_nprm_iria.pdf. \2\ See id. at 6. \3\ See id. at 8. --------------------------------------------------------------------------- In juvenile facilities, the numbers are similarly troubling. At least 17,100 adjudicated or committed youth (amounting to some 12% of the total population in juvenile detention facilities) reported having suffered sexual abuse within 12 months of arriving at their facility, with rates as high as 36% in specific facilities. See BJS, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09 (Jan. 2010), at 1, 4.\4\ These numbers [[Page 6250]] indicate that improvements can and must be made. --------------------------------------------------------------------------- \4\ This total includes the cross-sectional number covered in BJS surveys plus the number of estimated victims released in the twelve months prior to the survey. It includes adjudicated/committed youth only. For methodology, see IRIA at 9. --------------------------------------------------------------------------- Neither the Commission nor the Department began its work on a blank slate. Many correctional administrators have developed and implemented policies and practices to more effectively prevent and respond to prison rape. The Department applauds these efforts, and views them as an excellent first step. However, a national effort is needed to accomplish PREA's goals. Protection from sexual abuse should not depend on where an individual is incarcerated: It must be universal. The Commission recommended standards to the Department after several years of investigating the prevalence and nature of sexual abuse in incarceration settings and exploring correctional best practices in addressing it. The Department has built on the Commission's work and has adopted the overall structure of its standards as well as a significant majority of its specific recommendations. The Department's proposed rule echoes the Commission's recommendations in devising four sets of standards tailored to specific types of confinement facilities. Each set consists of the same eleven categories used by the Commission: Prevention planning, responsive planning, training and education, screening for risk of sexual victimization and abusiveness, reporting, official response following an inmate report, investigations, discipline, medical and mental care, data collection and review, and audits. The scope and content of the Department's standards do differ substantially from the Commission's proposals in a variety of areas. After careful consideration, the Department has made revisions to each of the Commission's recommended standards. At all times, the Department has weighed the logistical and financial feasibility of each standard against its benefits. The Department has found invaluable the comments received on the ANPRM, and expects that comments in response to this proposed rule will provide further insights. Definitions. Sections 115.5 and 115.6 provide definitions for key terms. The Department has largely relied on the Commission's definitions in the Glossary sections that accompanied the Commission's four sets of standards, but has made a variety of adjustments and has eliminated definitions for various terms that either do not appear in the Department's proposed standards or whose meaning is sufficiently clear so as not to need defining. In addition, the Department has included definitions in some of the standards themselves. Below is an explanation for key definitions modified or added by the Department: Community confinement facility. The Commission recommended a set of standards for community corrections, which it defined as follows: ``Supervision of individuals, whether adults or juveniles, in a community setting as a condition of incarceration, pretrial release, probation, parole, or post-release supervision. These settings would include day and evening reporting centers.'' The Department believes that to the extent this definition includes supervision of individuals in a non-residential setting, it exceeds the scope of PREA's definitions of jail and prison, which include only ``confinement facilit[ies].'' 42 U.S.C. 15609(3), (7). Accordingly, the proposed rule does not reference community corrections, but instead refers to ``community confinement facilities.'' The proposed rule defines this term nearly identically to the definition provided in regulations promulgated by the Department to govern the Federal Bureau of Prisons. See 28 CFR 570.20(a). The term includes a range of facilities in which offenders or defendants reside as part of a term of imprisonment or as a condition of pre-trial release or post-release supervision, while pursuing employment, education, or other facility-approved programs during non-residential hours. A similar definition appears in Federal Sentencing Guideline 5F1.1 and, incorporated by reference, in 18 U.S.C. 3621(g)(2). Employee, contractor, volunteer, and staff. The proposed rule clarifies these terms to conform more closely to their traditional definitions--e.g., employees are only those persons who work directly for the agency or facility. The term ``staff'' is used interchangeably with ``employees.'' Inmate, detainee, and resident. The proposed standards use these three terms to refer to persons confined in the four types of covered facilities. The proposed standards for prisons and jails refer to persons incarcerated or detained therein as ``inmates.'' For simplicity, the proposed standards for lockups refer to all persons detained therein as ``detainees,'' including persons who have already been adjudicated. The proposed standards for juvenile facilities and for community confinement facilities refer to all persons housed therein as ``residents.'' Jail and prison. Although the Commission did not define these terms, the Department believes that definitions are necessary, especially because the Department's proposed standards modify the Commission's recommended standards in certain respects to distinguish requirements applicable to jails from requirements applicable to prisons. The definitions provided in the proposed rule generally track the prevailing definitions of jails and prisons, based upon the primary use of each facility. If a majority of a facility's inmates are awaiting adjudication of criminal charges, serving a sentence of one year or less, or awaiting post-adjudication transfer to a different facility, then the facility is categorized as a jail, regardless of how the facility may label itself. As discussed in greater depth below, these terms do not encompass facilities that are primarily used for the civil detention of aliens pending removal from the United States. Question 1: The Department solicits comments regarding the application of this definition to those States that operate ``unified systems''--i.e., States with direct authority over all adult correctional facilities, as opposed to the more common practice of jails being operated by counties, cities, or other municipalities. States that operate unified systems may be less likely to adhere to the traditional distinctions between prisons and jails, and may operate facilities that are essentially a mixture of the two. Do the respective definitions of jail and prison, and the manner in which the terms are used in the proposed standards, adequately cover facilities in States with unified systems? If not, how should the definitions or standards be modified? Juvenile and juvenile facility. The proposed rule defines ``juvenile'' as a person under the age of 18, unless defined otherwise under State law, and defines ``juvenile facility'' as a facility primarily used for the confinement of juveniles. Both definitions are new; the Commission did not define these terms. Lockup. With small clarifying modifications, the proposed rule adopts the Commission's definition of lockup, which includes temporary holding facilities under the control of a law enforcement, court, or custodial officer. Sexual abuse and related terms. In its ANPRM, the Department queried whether the standards should refer to ``rape'' or to ``sexual abuse.'' Most commenters suggested that the Department refer to ``sexual abuse.'' All advocacy groups that responded to this question recommended using ``sexual abuse,'' and correctional agencies were split on the question. Proponents of the term sexual abuse noted that it captures a broader range of sexual victimization than rape, and noted that PREA defines rape expansively, see 42 U.S.C. 15609(9)-(12), to include a range of actions that more closely resembles the [[Page 6251]] Commission's proposed definition of sexual abuse rather than the traditional definition of rape. For example, PREA includes ``sexual fondling'' in its definition of rape, see 42 U.S.C. 15609(9), (11), even though that term is typically associated with sexual abuse rather than with rape. Proponents of the term rape argued that referring to sexual abuse more accurately captures the intent of the statute and the scope of behavior that the regulations should address. The Department's proposed standards use the term sexual abuse, which the Department believes is a more accurate term to describe the behaviors that Congress aimed to eliminate. However, the proposed definition of sexual abuse removes sexual harassment from its scope. Several correctional agencies commented that including sexual harassment within the scope of sexual abuse would greatly expand the obligations of correctional agencies and would require responsive actions not commensurate to the harm caused by sexual harassment. The Department agrees, but has rejected the recommendation of some commenters that sexual harassment be removed entirely from the scope of the standards. Although PREA does not reference sexual harassment, it authorizes the Commission, and by extension the Attorney General, to propose standards relating to ``such other matters as may reasonably be related to the detection, prevention, reduction, and punishment of prison rape.'' 42 U.S.C. 15606(e)(2)(M). The Department believes that it is appropriate that certain standards reference sexual harassment in order to combat what may be a precursor to sexual abuse. With the exception of the omission of sexual harassment, the Department's proposed definition of sexual abuse substantively resembles the Commission's recommended definition. The format and wording, however, have been revised to conform more closely to the definitions used by BJS in its Survey of Sexual Violence, as several commenters suggested. The Department hopes that harmonizing these definitions, to the extent possible, will provide greater clarity to correctional agencies. The proposed definition of sexual abuse excludes consensual activity between inmates, detainees, or residents, but does not exclude consensual activity with staff. The Department, like the Commission, believes that the power imbalance in correctional facilities is such that it is impossible to know if an incarcerated person truly ``consented'' to sexual activity with staff. Prevention Planning: Sections 115.11, 115.111, 115.211, 115.311, 115.12, 115.112, 115.212, 115.312, 115.13, 115.113, 115.213, 115.313, 115.14, 115.114, 115.214, 115.314, 115.15, 115.115, 115.215, 115.315, 115.16, 115.116, 115.216, 115.316, 115.17, 115.117, 115.217, and 115.317 (compare to the Commission's PP standards). Like the Commission, the Department believes it is important to establish what actions facilities are expected to take to prevent sexual abuse. Sections 115.11, 115.111, 115.211, and 115.311 (compare to the Commission's PP-1 standard), require that agencies establish a written zero-tolerance policy toward sexual abuse and harassment. The proposed standard clarifies that, in addition to mandating zero tolerance, the policy must outline the agency's approach to preventing, detecting, and responding to such conduct. This standard also mandates that agencies employ or designate an upper-level, agency-wide PREA coordinator to oversee efforts to comply with PREA standards. In all agencies that operate facilities whose total rated capacity exceeds 1,000 inmates,\5\ this agency-wide PREA coordinator must be a full-time position. Other agencies may designate this role as a part-time position or may assign its functions to an existing full-time or part-time employee. --------------------------------------------------------------------------- \5\ As noted above, the proposed standards refer to ``inmates,'' ``detainees,'' and ``residents,'' depending upon the type of confinement facility. For simplicity, the explanation of the standards refers to all persons confined within any type of facility as ``inmates'' except where specifically discussing lockups, juvenile facilities, or community confinement facilities. --------------------------------------------------------------------------- Several commenters criticized that the Commission's proposed requirement that the PREA coordinator report directly to the agency head. These commenters expressed concern about setting the position at an unreasonably high level within the agency, which could require it to become a political appointment and thus subject to frequent turnover. The Department's proposed standard requires that the position be ``upper-level'' but does not require that the coordinator report directly to the agency head. In addition, some correctional agencies expressed concern that mandating a full-time coordinator for jails that house only 500 inmates, as the Commission proposed, would impose too great a burden. The Department's proposed standard instead mandates a full-time coordinator only for agencies that operate facilities whose total rated capacity exceeds 1,000 inmates. In addition, agencies whose total capacity exceeds 1,000 inmates must also designate an existing full-time or part-time employee at each facility to serve as that facility's PREA coordinator. The intent is to tailor this requirement to the varying needs and capacities of agencies and facilities: Requiring large agencies to dedicate an employee to coordinate PREA efforts full-time, while allowing smaller agencies, and individual facilities within large agencies, to assign such duties as part of an employee's broader portfolio, thus ensuring a ``point person'' who is responsible for PREA efforts. Question 2: Should the Department modify the full-time coordinator requirement to allow additional flexibility, such as by requiring only that PREA be the coordinator's primary responsibility, or by allowing the coordinator also to work on other related issues, such as inmate safety more generally? Sections 115.12, 115.112, 115.212, and 115.312 (compare to the Commission's PP-2 standard), require that agencies that contract with private entities for the confinement of inmates include the entity's obligation to comply with the PREA standards in new contracts or contract renewals. Several agency commenters expressed concern that the Commission's proposed requirement that an agency ``monitor the entity's compliance with these standards as part of its monitoring of the entity's performance'' would impose too great a financial burden. The Department's proposed standard modifies slightly the Commission's proposal by requiring only that new contracts or renewals ``shall provide for agency contract monitoring to ensure that the contractor is complying with PREA standards.'' The revision is intended to indicate that the agency is not required to conduct audits of its contract facilities but rather must include PREA as part of its routine monitoring of compliance with contractual obligations. Question 3: Should the final rule provide greater guidance as to how agencies should conduct such monitoring? If so, what guidance should be provided? Sections 115.13, 115.113, 115.213, and 115.313 (compare to the Commission's PP-3 and PP-7 standards) govern the supervision and monitoring of inmates. The Department has combined the Commission's proposed PP-3 and PP-7 standards into one standard, in recognition that direct staff supervision and video monitoring [[Page 6252]] are two methods of achieving one goal: Reducing the opportunity for abuse to occur unseen. The Department recognizes that different agencies rely on staffing and technology to varying degrees depending upon their specific characteristics. Accordingly, the Department believes that these issues are best considered together. The Department is mindful that staffing and video-monitoring systems are both expensive. Staff salaries and benefits are typically the largest item in a correctional agency's budget, see, e.g., National Institute of Corrections, Staffing Analysis: Workbook for Jails (2d ed.) at 2, and economies of scale are difficult to obtain: Increasing staffing by 25% is likely to increase staff costs by 25%. Likewise, video-monitoring systems may be beyond the financial reach of some correctional agencies, although the costs of such systems may diminish in future years as technology advances. Various agency commenters criticized the first sentence of the Commission's PP-3 standard: ``Security staff provides the inmate supervision necessary to protect inmates from sexual abuse.'' Commenters suggested that the Commission's recommended standard did not provide appropriate guidance as to what level of supervision would be ``necessary to protect inmates from sexual abuse,'' and that it did not indicate whether compliance would be measured ex ante, by reviewing staffing levels alone, or ex post, by determining that instances of sexual abuse could have been prevented by additional staffing. The Department recognizes the importance of staffing levels in combating sexual abuse, and believes that the correctional community shares this view. See, e.g., American Correctional Association Public Correctional Policy on Offender on Offender Sexual Assault (Jan. 12, 2005) (recommending that agencies ``[m]aintain adequate and appropriate levels of staff to protect inmates against sexual assault''). Although proper supervision and monitoring cannot eliminate sexual abuse, it can play a key role in reducing opportunities for it to occur. In addition, inadequate staffing can be a contributing factor in a judicial determination that conditions of confinement violate the Constitution. See, e.g., Krein v. Norris, 309 F.3d 487, 489-92 (8th Cir. 2002); Ramos v. Lamm, 639 F.2d 559, 573-74 (10th Cir. 1980). In several of the Department's investigations of correctional facilities under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et seq., for engaging in a pattern or practice of violating inmates' Federal rights, the terms of consent decrees and settlements have included specific remedial measures aimed at improving the adequacy of staffing. At the same time, however, the Department recognizes that determining adequate staffing levels is a complicated, facility- specific enterprise. The appropriate number of staff depends upon a variety of factors, including (but not necessarily limited to) the physical layout of a facility, the security level and gender of the inmates, whether the facility houses adults or juveniles, the length of time inmates reside in the facility, the amount of programming that the facility offers, and the facility's population density (i.e., comparing the number of inmates to the number of beds or square feet). In addition, the facility's reliance on video monitoring and other technology may reduce staffing requirements, as long as the facility employs sufficient staff to monitor the video feeds or other technologies such as call buttons or sensors. The viability of technology may depend upon, among other factors, the characteristics of the incarcerated population. Administrators of juvenile facilities, for example, are typically more reluctant to rely heavily on video monitoring given the staff-intensive needs of their residents. Due to the complex interaction of these factors, the Department does not believe that it is possible to craft a formula that would set appropriate staffing levels for all populations--although the Department is aware that some States do set such levels for juvenile facilities. Nor is it likely that an auditor would be able to determine the appropriate staffing level in the limited amount of time available to conduct an audit. Relying on reported incidents of sexual abuse to determine appropriate staffing levels is also an imperfect method given the uncertainty as to whether an incident will be reported. Facilities where inmates feel comfortable reporting abuse, and where investigations are conducted effectively, may be more likely than other facilities to experience substantiated allegations of sexual abuse, even if the facility is no less safe than its counterparts. For this reason, the Department has opted not to adopt general across-the-board performance-based standards, as proposed by some commenters. Accordingly, the Department is of the view that any standard that governs supervision and monitoring must protect inmates while providing sufficient clarity as to its requirements, recognizing that the adequacy of supervision and monitoring depends on several factors that interact differently for each facility, and accounting for the costs involved in employing additional staff and in purchasing and deploying additional technology. The Department believes that, at a minimum, such a standard must impose at least three requirements. First, an agency must make an assessment of adequate staffing levels, taking into account its use, if any, of video monitoring or other technology. The fact that multiple factors bear on the adequacy of staffing and monitoring is no barrier to requiring an agency to conduct such an assessment for each of its facilities. Second, an agency must devise a plan for how to best protect inmates from sexual abuse should staffing levels fall below an adequate level. Third, an agency must reassess at least annually such adequate staffing levels, as well as the staffing levels that actually prevailed during the previous year, and must also reassess its use of video monitoring systems and other technologies. The Department assumes that most agencies already engage in similar inquiries; the purpose of mandating such inquiries within these standards is to institutionalize the practice of assessing staffing and monitoring in the context of considering how staffing and monitoring contribute to efforts to combat sexual abuse. The Department is interested in receiving comments on whether and to what extent this standard should include additional or alternative requirements, and poses various questions below designed to elicit such comments. The Department has already received comments from the former Commissioners themselves regarding possible options. Following a meeting between the Department and several of the former Commissioners on August 4, 2010, that included discussion of the Commission's PP-3 and PP-7 standards, the former Commissioners sent the Department a memorandum dated September 28, 2010, that discussed possible revisions to this standard. The former Commissioners noted the possibility of replacing the first sentence of the PP-3 standard with the following: ``Agency heads must establish in writing the staffing requirements for each shift at each facility to keep inmates safe from sexual abuse and must designate the priority posts at each facility that must be filled on each shift regardless of staff shortages or absences.'' In addition, the Commissioners noted that the PP-7 standard could be replaced with the following: ``The agency uses video monitoring systems, if available, or other appropriate technology to [[Page 6253]] supplement its sexual abuse prevention, detection, and response efforts. Because video monitoring and other appropriate technology can contribute to prevention [and] detection of sexual abuse, the agency assesses at least annually the feasibility of acquiring new or additional technology. Compliance is measured by ensuring that the facility has developed a plan for securing such technology as funds become available.'' Question 4: Should the standard require that facilities actually provide a certain level of staffing, whether determined qualitatively, such as by reference to ``adequacy,'' or quantitatively, by setting forth more concrete requirements? If so, how? Question 5: If a level such as ``adequacy'' were mandated, how would compliance be measured? Question 6: Various States have regulations that require correctional agencies to set or abide by minimum staffing requirements. To what extent, if any, should the standard take into account such State regulations? Question 7: Some States mandate specific staff-to-resident ratios for certain types of juvenile facilities. Should the standard mandate specific ratios for juvenile facilities? Question 8: If a level of staffing were mandated, should the standard allow agencies a longer time frame, such as a specified number of years, in order to reach that level? If so, what time frame would be appropriate? Question 9: Should the standard require the establishment of priority posts, and if so, how should such a requirement be structured and assessed? Question 10: To what extent can staffing deficiencies be addressed by redistributing existing staff assignments? Should the standard include additional language to encourage such redistribution? Question 11: If the Department does not mandate the provision of a certain level of staffing, are there other ways to supplement or replace the Department's proposed standard in order to foster appropriate staffing? Question 12: Should the Department mandate the use of technology to supplement sexual abuse prevention, detection, and response efforts? Question 13: Should the Department craft the standard so that compliance is measured by ensuring that the facility has developed a plan for securing technology as funds become available? Question 14: Are there other ways not mentioned above in which the Department can improve the proposed standard? The proposed standard also adds a requirement that prisons and jails with rated capacity in excess of 500 inmates develop a policy of requiring supervisors to conduct unannounced rounds. The Department believes that requiring such rounds is an appropriate measure to deter staff misconduct, in recognition of the great responsibility entrusted to correctional staff, who often perform their duties unaccompanied by colleagues. The proposed standard does not mandate how frequently such rounds must be conducted, in recognition that the frequency of unannounced rounds may be less important than the deterrent effect of knowing that such rounds may be conducted at any time. However, the Department believes that unannounced rounds should be conducted with reasonable frequency to ensure that such rounds have a sufficient deterrent effect, and solicits comments on this issue. Question 15: Should this standard mandate a minimum frequency for the conduct of such rounds, and if so, what should it be? Finally, the proposed standard omits language from the Commission's recommended PP-3 standard regarding post-incident reviews and taking corrective action. Because the language in those standards cross- references two of the Commission's recommended standards for data collection and review (DC-1 and DC-3), the Department has included comparable language in the proposed standards that correspond to the Commission's DC-1 and DC-3 standards--i.e., Sec. Sec. 115.86, 115.186, 115.286, and 115.386 (DC-1) and Sec. Sec. 115.88, 115.188, 115.288, and 115.388 (DC-3). Sections 115.14, 115.114, 115.214, and 115.314 (compare to the Commission's PP-4 standard) address the limits on cross-gender searches. The proposed standard diverges significantly from the Commission's recommendations in its PP-4 standard. The Commission proposed strict limits on cross-gender strip searches, visual body cavity searches, pat-down searches, and viewing of inmates nude or performing bodily functions. Specifically, the Commission would permit the first two only in case of emergency, and the latter two in emergencies or ``other extraordinary or unforeseen circumstances.'' The Commission recommended such restrictions in order to ``to protect the privacy and dignity of inmates and to reduce opportunities for staff- on-inmate sexual abuse.'' Standards for the Prevention, Detection, Response, and Monitoring of Sexual Abuse in Adult Prisons and Jails (``Prison/Jail Standards''), available at http://www.ncjrs.gov/ pdffiles1/226682.pdf, at 12. The Department received numerous comments on the Commission's proposed limits on cross-gender pat-down searches. A large number of agencies objected to the Commission's proposal on the ground that it would require agencies either to hire significant numbers of additional male staff or to lay off significant numbers of female staff, due to their overwhelmingly male inmate population and substantial percentage of female staff. In addition, many agencies expressed concern that the necessary adjustments to their workforce could violate Federal or State equal employment opportunities laws. Several advocacy groups, on the other hand, expressed support for the Commission's proposal. The Department recognizes that pat-down searches are critical to ensuring facility security and yet are often perceived as intrusive by inmates. Ideally, all pat-down searches would be conducted professionally and diligently by staff members of the same sex as the inmate. However, the Department is concerned about the high cost of imposing such a general requirement, and the concomitant effect on employment opportunities for women. The Department agrees with the Commission that ``cross-gender supervision, in general, can prove beneficial in certain confinement settings.'' Prison/Jail Standards at 12. Although the Commission stated that it ``in no way intends for this standard to limit employment (or post assignment) opportunities for men or women,'' id., the Department is of the view that implementing a general prohibition on cross-gender pat-down searches cannot be achieved in many correctional systems without limiting such opportunities. In sum, the Department believes that the potential benefits of eliminating cross-gender pat-down searches do not justify the costs, financial and otherwise, of imposing such a rule across the board. The proposed standard would retain the Commission's recommendation as applied to juvenile facilities, which tend to conduct pat-down searches less frequently. Indeed, many juvenile facilities already ban cross-gender pat-down searches absent exigent circumstance. In addition, the Department proposes that adult prisons, jails, and community confinement facilities not allow cross-gender pat-down searches of inmates who have previously suffered cross-gender sexual abuse while incarcerated. The Department agrees with the comment of [[Page 6254]] the New York Department of Correctional Services, which has implemented such a rule in its facilities, that allowing such an exemption is a viable and proportionate approach to protecting those inmates most likely to suffer emotional harm during cross-gender pat-downs. The proposed standard also mandates that agencies train security staff in how to conduct cross-gender pat-down searches in a professional and respectful manner, and in the least intrusive manner possible consistent with security needs. Because any pat-down search carries the potential for abuse, the Department believes that training in the proper conduct of such searches is a cost-effective approach to combating problems that might arise in either a cross-gender or same- gender pat-down search. Question 16: Should the final rule contain any additional measures regarding oversight and supervision to ensure that pat-down searches, whether cross-gender or same-gender, are conducted professionally? Agency commenters' concerns about banning cross-gender pat-down searches absent exigent circumstances did not extend to a similar rule for strip searches and visual body cavity searches. The Department's proposed standard incorporates that aspect of the Commission's standard PP-4 as drafted, with two modifications. First, the proposed standard exempts such cross-gender searches when conducted by medical practitioners: The Department believes that a medical practitioner, even of the opposite gender, is more likely to conduct such searches with appropriate sensitivity. Second, the standard would require facilities to document all such cross-gender searches, whether conducted under emergency circumstances or by medical staff under non- emergency circumstances. The Department received fewer comments on the Commission's proposed ban on cross-gender viewing of inmates who are nude or performing bodily functions. Some agencies expressed concern about being able to retrofit older facilities, while others commented that the Commission's language could preclude officers from making unannounced rounds in units where toilets are located within cells. To accommodate the latter concern, the proposed standard modifies the Commission's recommendation by exempting cross-gender viewing when incidental to routine cell checks. The Department believes that concerns about retrofitting can be accommodated by constructing privacy panels, reassigning staff, or other appropriate measures in the limited circumstances where such retrofitting is not possible. Sections 115.14, 115.114, 115.214, and 115.314 also bar examinations of transgender inmates to determine gender status unless such status is unknown and the examination is conducted in private by a medical practitioner. The Department's proposed standard adopts the Commission's restrictions, to which no commenter objected. Some commenters would impose further restrictions and ban all examinations to determine gender status, but the Department believes that a complete ban could preclude examinations where necessary to ensure the safety and security of the inmate examined and of other inmates and staff. Sections 115.15, 115.115, 115.215, and 115.315 (compare to the Commission's PP-5 standard) govern the accommodation of inmates with disabilities and inmates with limited English proficiency (LEP). As the Commission noted, ``[t]he ability of all inmates to communicate effectively and directly with staff, without having to rely on inmate interpreters, is crucial for ensuring that they are able to report sexual abuse as discreetly as possible.'' Prison/Jail Standards at 13. The Department's proposed standard, like the PP-5 standard, requires that agencies develop methods to ensure that LEP inmates and inmates with disabilities (e.g., inmates who are deaf, hard of hearing, or blind and inmates with low vision, intellectual, psychiatric, speech, and mobility disabilities) are able to report sexual abuse and sexual harassment to staff directly, and that agencies make accommodations to convey sexual abuse policies orally to inmates who have intellectual disabilities or limited reading skills or who are blind or have low vision. Unlike the Commission's proposal, the proposed standard allows for the use of inmate interpreters in exigent circumstances, recognizing that in certain circumstances such use may be unavoidable. Some commenters would require facilities to ensure that inmates with disabilities and LEP inmates be able to communicate with staff throughout the entire investigation and response process. The Department solicits feedback on this question. The Department also notes that agencies receiving Federal financial assistance are required under Federal civil rights laws to meet obligations to inmates with disabilities or who are LEP. The Department encourages all agencies to refer to the relevant statutes, regulations, and guidance when determining the extent of their obligations. The Americans with Disabilities Act (ADA) requires State and local governments to make their services, programs, and activities, accessible to individuals with all types of disabilities. See 42 U.S.C. 12132; 28 CFR 35.130, 35.149-35.151. The ADA also requires State and local governments to ensure that their communications with individuals with disabilities affecting communication (blindness, low vision, deafness, or other speech or hearing disability) are as effective as their communications with individuals without disabilities. See 28 CFR 35.160-35.164. In addition, the ADA requires each State and local government to make reasonable modifications to its policies, practices, and procedures when necessary to avoid discrimination against individuals with disabilities, unless it can demonstrate that making the modifications would fundamentally alter the nature of the relevant service, program, or activity. See 28 CFR 35.130(b)(7). These nondiscrimination obligations apply to all correctional and detention facilities operated by or on behalf of State or local governments. See Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998). Pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., and implementing regulations, all State and local agencies that receive Federal financial assistance must provide LEP persons with meaningful access to all programs and activities. See Enforcement of Title VI of the Civil Rights Act of 1964--National Origin Discrimination Against Persons with Limited English Proficiency, 65 FR 50123. Pursuant to Executive Order 13166 of August 11, 2000, each agency providing Federal financial assistance is obligated to draft Title VI guidance regarding LEP persons that is specifically tailored to the agency's recipients of Federal financial assistance. The Department's guidance for its recipients includes a discussion of LEP issues in correctional and detention settings. See Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 FR 41455. Question 17: Should the final rule include a requirement that inmates with disabilities and LEP inmates be able to communicate with staff throughout the entire investigation and response process? If such a requirement is included, how should agencies ensure communication throughout the process? [[Page 6255]] Sections 115.16, 115.116, 115.216, and 115.316 (compare to the Commission's PP-6 standard) govern hiring and promotion decisions. Like the Commission's proposal, the proposed standard would restrict agencies' ability to hire employees who previously engaged in sexual abuse. Several commenters expressed concern about the burden that would be imposed by requiring background checks on any employee being considered for promotion. The proposed standard would not mandate such checks but instead would require agencies to conduct criminal background checks of current employees at least every five years (as the Federal Bureau of Prisons currently does) or have in place a system for otherwise capturing such information for current employees. Sections 115.17, 115.117, 115.217, and 115.317 constitute a new standard requiring agencies to take into account how best to combat sexual abuse when designing or expanding facilities and when installing or updating video monitoring system or other technology. The Department believes that it is appropriate to require agencies to consider the impact of their physical and technological upgrades. Indeed, the American Correctional Association has recommended that, as a means of deterring sexual abuse, agencies should ``[p]romote effective facility design that enables direct lines of sight within housing units.'' American Correctional Association Public Correctional Policy on Offender on Offender Sexual Assault (Jan. 12, 2005). The sentence in this standard regarding technology is adopted from a suggestion made in a comment by the New York Department of Correctional Services. Response Planning: Sections 115.21, 115.121, 115.221, 115.321, 115.22, 115.222, 115.322, 115.23, 115.123, 115.223, and 115.323 (compare to the Commission's RP standards). Like the Commission, the Department believes it is important to establish standards that address how facilities are expected to respond once an incident of sexual abuse occurs. Sections 115.21, 115.121, 115.221, and 115.321 (compare to the Commission's RP-1 standard) set forth an evidence protocol to ensure all usable physical evidence is preserved for administrative or criminal proceedings. The standard makes clear that prompt exams are needed both to identify medical and mental health needs and to minimize the loss of evidence. In balancing these two interests, facilities should prioritize treating a victim's acute medical and mental health needs before collecting evidence. Like the Commission, the Department believes that its Office on Violence Against Women's National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents, a revised version of which will be published later this year, provides the best set of guidelines for conducting these exams. The proposed standard expands the Commission's recommendation by requiring access to exams not only in cases of penetration but whenever evidentiarily or medically appropriate. For example, if an inmate alleges that she was choked in the course of a sexual assault that did not result in penetration, a forensic exam might provide evidence to support or refute her contention. This standard takes into account the fact that some agencies are not responsible for investigating alleged sexual abuse within their facilities and that those agencies may not be able to dictate the conduct of investigations conducted by outside entities. In such situations, the proposed standard requires the agency to inform the investigating entity about the standard's requirements with the hope that the investigating entity will look to the standard as a best- practices guideline. In addition, the standard applies to any outside State entity or Department of Justice component that investigates such allegations. In all settings except lockups, the proposed standard requires that the agency offer all sexual abuse victims access to a person either inside or outside the facility who can provide support to the victim. Specifically, the proposed standard requires that the agency make available to the victim either a victim advocate from a community-based organization that provides services to sexual abuse victims or a ``qualified staff member,'' defined as a facility employee who has received education concerning sexual assault and forensic examination issues in general. A victim advocate or qualified staff member must be made available to accompany and support the victim through the forensic medical exam process and the investigatory process, and to provide emotional support, crisis intervention, information and referrals, as needed. This requirement is intended to ensure that victims understand the forensic exam and investigative processes and receive support and assistance at an emotionally difficult time. Several agency commenters expressed concern about the burden imposed by this requirement. The Department notes that it has revised the Commission's standard in order to clarify that an existing employee with appropriate education can fulfill this role, thus reducing the burden on the facility while ensuring support for the victim. Lockups are excluded from this requirement for three reasons. First, because lockups are leanly staffed, complying with this requirement could well require the hiring of an additional staff person. Second, there is little evidence of a significant amount of sexual abuse in lockups that would warrant such expenditure. Third, lockup inmates are highly transient, and thus in some cases, victims of sexual abuse already will have been transferred to a jail before the forensic exam is conducted. Question 18: Do the standards adequately provide support for victims of sexual abuse in lockups upon transfer to other facilities, and if not, how should the standards be modified? Sections 115.22, 115.222, and 115.322 (compare to the Commission's RP-2 standard) govern the agreements that facilities enter into with public service and community providers. The goal of the proposed standard is to allow inmates the opportunity to report instances of sexual abuse and sexual harassment to an entity outside of the agency. The Department's proposed standard exempts agencies that allow reporting to quasi-independent internal offices, such as inspectors general. In addition, the proposed standard requires that agencies maintain or attempt to enter into agreements with community service providers who can provide inmates confidential emotional support services related to sexual abuse. Some commenters argued that this standard should expressly mandate specific assistance for LEP inmates. The Department encourages agencies to make efforts to allow such inmates to partake in the services offered under this standard and solicits comments on whether such a mandate should be included. Question 19: Should this standard expressly mandate that agencies attempt to enter into memoranda of understanding that provide specific assistance for LEP inmates? The proposed standards do not include the Commission's recommendations that agencies attempt to enter into memoranda of understanding with outside investigative agencies (the Commission's RP- 3 standard) and with prosecutorial agencies (the Commission's RP-4 standard). A number of agency commenters expressed concern that these requirements would impose significant burdens, especially in State systems [[Page 6256]] where investigations and prosecutions are conducted by numerous different agencies at the county or municipal level. The Department recognizes that such memoranda of understanding have proven to be valuable for certain agencies, and encourages agencies to explore the viability of attempting to enter into such agreements. However, due to burden concerns, the Department does not believe that agencies should be required to make such efforts. Instead, Sec. Sec. 115.23, 115.123, 115.223, and 115.323 mandate that each agency must have in place policies to ensure that allegations of sexual abuse or sexual harassment are investigated by an agency with the legal authority to conduct criminal investigations. The policy must be published on the agency's Web site, and, if a separate entity is responsible for investigating criminal investigations, the Web site must delineate the responsibilities of the agency and the investigating entity. The Department's proposed standard also requires that that any State entity or Department of Justice component that conducts such investigations must have policies in place governing the conduct of such investigations. Training and Education: Sections 115.31, 115.131, 115.231, 115.331, 115.32, 115.132, 115.232, 115.332, 115.33, 115.233, 115.333, 115.34, 115.134, 115.234, 115.334, 115.35, 115.235, and 115.335 (compare to the Commission's TR standards). Like the Commission, the Department believes that training for all individuals who have contact with inmates is a key component in combating sexual abuse. Training will create awareness of the issue of sexual abuse in facilities, clarify staff responsibilities, ensure that reporting mechanisms are known to staff and populations in custody, and provide specialized information for staff with key roles in responding to sexual abuse. These standards are substantively similar to those offered by the Commission. In addition, each standard in this category requires documentation that the required training was provided and, for staff training, that the training was understood. In order to facilitate compliance, the Department has revised the Commission's recommendations to allow electronic documentation. Sections 115.31, 115.131, 115.231, and 115.331 (compare to the Commission's TR-1 standard) require that all employees who have contact with inmates receive training concerning sexual abuse in facilities, with refresher training to be provided on an annual basis thereafter. The proposed standard includes all training topics proposed by the Commission, plus training in how to avoid inappropriate relationships with inmates. In addition, the Department has added a requirement that the training be tailored to the gender of the inmates at the employee's facility, that training cover effective and professional communication with lesbian, gay, bisexual, transgender, and intersex residents, and that training in juvenile facilities be tailored to the juvenile setting. Due to the limited detention operations of lockups, Sec. 115.131, consistent with the Commission's corresponding TR-1 standard, does not specify training requirements beyond requiring that the agency train all employees and volunteers who may have contact with lockup detainees to be able to fulfill their responsibilities under agency sexual abuse prevention, detection, and response policies and procedures, and to communicate effectively and professionally with all detainees. Question 20: Should the Department further specify training requirements for lockups and if so, how? Would lockups be able to implement such training in a cost-effective manner via in-person training, videos, or Web-based seminars? Sections 115.32, 115.232, and 115.332 (compare to the Commission's TR-2 standard) require training for contractors and volunteers concerning sexual abuse. The Department agrees with the Commission that training must not be limited to employees, given that contractors and volunteers often interact with inmates on a regular, sometimes daily, basis. With regard to lockups, the Department mandates in Sec. 115.132 that attorneys, contractors, and any inmates who work in the lockup must be informed of the agency's zero-tolerance policy regarding sexual abuse. (As noted above, Sec. 115.131 governs training of lockup volunteers.) Sections 115.33, 115.233, and 115.333 (compare to the Commission's TR-3 standard) require that information about combating sexual abuse provided to individuals in custody upon intake and that comprehensive education be provided within 30 days of intake. Like the Commission, the Department believes that educating inmates concerning sexual abuse is of the utmost importance. Several agency commenters expressed concern that the Commission's recommended standard would impose a vague mandate by requiring the provision of comprehensive education to inmates within a ``reasonably brief period of time'' following intake. Agency commenters also requested clarification that such education could be provided via video. The proposed standard requires the provision of comprehensive education within 30 days of intake, and provides that such education may be provided via video. Although inmates who are incarcerated for less than 30 days might not receive such comprehensive education, all inmates will have received information upon intake. In addition, the Department has added a requirement that agencies must ensure that key information is continually and readily available or visible to inmates through posters, inmate handbooks, or other written formats. Due to the transitory nature of community confinement, the proposed standard does not mandate the provision of refresher information except upon transfer to another facility. Sections 115.34, 115.134, 115.234, and 115.334 (compare to the Commission's TR-4 standard) requires that agencies that conduct their own sexual abuse investigations provide specialized training for their investigators in conducting such investigations in confinement settings, and that any State entity or Department of Justice component that investigates sexual abuse in confinement settings do the same. Although several agency commenters questioned the need for and cost of training tailored to confinement settings, the Department believes that such training is valuable and can be provided in a cost-effective manner. Models of such training already exist, and the Department is interested in receiving feedback on how it can provide additional assistance in developing such training. Sections 115.35, 115.235, and 115.335 (compare to the Commission's TR-5 standard), require specialized training for all medical staff employed by the agency or facility. The proposed standard exempts lockups, which usually do not employ or contract for medical staff. The Commission found, and the Department agrees, that investigative and medical staff members serve vital roles in the response to sexual abuse, and the nature of their responsibilities require additional training in order to be effective. The Department further proposes that any agency medical staff who conduct forensic evaluations receive appropriate training. Screening for Risk of Sexual Victimization and Abusiveness: Sections 115.41, 115.241, 115.42, 115.242, and 115.43 (compare to the Commission's SC standards). Like the Commission, the Department believes that the proper classification of inmates [[Page 6257]] is crucial to preventing sexual abuse. Sound correctional management requires that agencies obtain information from inmates and use such information to assign inmates to housing units or specific cells in which they are likely to be safe. These proposed standards are substantively similar to those recommended by the Commission. Like the Commission's recommended standards, these standards do not apply to lockups, due to the short-term nature of lockup detention. However, the Department solicits comments on whether rudimentary screening should be mandated for lockups. Sections 115.41 and 115.241 (compare to the Commission's SC-1 standard) require that agencies conduct screenings of inmates upon intake and during an initial classification process, pursuant to an objective screening instrument. Although the intake screening need not be as rigorous, the initial classification process for each inmate must consider, at a minimum, the existence of a mental, physical, or developmental disability; age; physical build; criminal history, including prior sex offenses and previous incarceration; whether the inmate is gay, lesbian, bisexual, transgender, or intersex; previous sexual victimization; perceived vulnerability; any history of prior institutional violence or sexual abuse; and (as added by the Department) whether an inmate is detained solely on civil immigration charges. Several commenters proposed reducing or eliminating the distinctions between the Commission's proposed screening criteria for male and female inmates. The Department has developed a set of criteria that is applicable to male and female inmates alike, although agencies may determine that the criteria should be weighed differently depending upon the inmate's gender. Question 21: Recognizing that lockup detention is usually measured in hours, and that lockups often have limited placement options, should the final rule mandate rudimentary screening requirements for lockups, and if so, in what form? The proposed standard clarifies that the initial classification screening must be conducted within 30 days of an inmate's confinement. Several agency commenters expressed concern about the cost and burden of conducting detailed screening upon an inmate's entrance into a facility. By clarifying that the detailed initial classification need only be conducted within 30 days of confinement, the Department intends to allow agencies with rapid turnover to avoid conducting a full classification, while still ensuring that an inmate is screened appropriately upon intake. Agencies that house all inmates beyond 30 days must conduct an intake screening followed by a more detailed classification. Although the proposed standard does not specify the scope of the intake screening, the intent of the standard is that institutions should do what is feasible at intake to ensure that inmate can be housed safely for a short period of time pending either release or a more detailed classification. Question 22: Should the final rule provide greater guidance regarding the required scope of the intake screening, and if so, how? The Department's proposed standard differs from the Commission's recommended standard in several additional respects. First, the proposed standard clarifies the Commission's reference to ``subsequent classification reviews'' by mandating that inmates should be rescreened when warranted due to a referral, request, or incident of sexual victimization. Second, recognizing that information provided at screenings is often highly sensitive, personal, and may put an individual at risk in a correctional setting, the Department proposes that such information be subject to appropriate controls to avoid unnecessary dissemination. Third, due to the personal nature of the information, the proposed standard specifies that it must not be a disciplinary infraction to fail to provide information during this process. Fourth, although the Commission would require use of a written instrument in the classification process, the Department has not adopted this requirement in order to allow for electronic evaluations. Sections 115.42 and 115.242 (compare to the Commission's SC-2 standard) require administrators of adult prisons and jails and community confinement facilities to use the information obtained in a classification interview in order to separate individuals who are at risk of abuse from those at high risk of being sexually abusive. The proposed regulation is substantially similar to the Commission's standard with, two exceptions. First, the proposed standard does not include the Commission's recommended ban on assigning inmates to particular units solely on basis of sexual orientation or gender identity. One commenter discussed the success of the Los Angeles County Jail in housing gay male and transgender prisoners in a separate housing unit. At a subsequent meeting with officials of that jail, the Department learned that the jail officials believe that the occupants of that separate unit are significantly safer than they would be in the general jail population. While the Department is not proposing a ban on such units, it urges that any agency that might be considering the creation of such a unit make every effort to ensure that its occupants receive the same access to programming and employment as inmates in the general population. Second, the proposed standard mandates that transgender and intersex inmates, who may be especially vulnerable, receive an individualized assessment on whether the inmate should be housed in a male or female facility, to be reassessed at least twice each year to review any threats to safety experienced by the inmate. Section 115.43 governs the use of protective custody, incorporating and expanding upon the relevant portion of the Commission's SC-2 standard. Due to the importance of protective custody, the Department believes it warrants its own standard, applicable only to adult prisons and jails, as other types of facilities usually do not have protective custody assignments of this nature. The proposed standard provides that inmates at high risk of sexual victimization may be placed in involuntary segregated housing only after an assessment of all available alternatives has been made--and only until an alternative housing arrangement can be implemented. The new standard also specifically defines the assessment process, specifies required documentation, and sets a presumptive time frame of 90 days. The Department recognizes that protective custody may be necessary in a correctional setting to ensure the safety of inmates and staff. However, the Department also notes that the prospect of placement in segregated housing may deter inmates from reporting sexual abuse. The new standard attempts to balance these concerns and ensure that alternatives to involuntary protective custody are considered and documented. In addition, the proposed standard contains the Commission's recommendation that, to the extent possible, protective custody should not limit access to programming. Assessment and Placement of Residents: Sections 115.341 and 115.342 (compare to the Commission's AP standards). Like the Commission, the Department refers to the categorization process in juvenile facilities as ``assessment and placement'' rather than ``screening.'' Sections 115.341 and 115.342 (compare to the Commission's AP-1 and AP-2 standards) govern screening requirements for juveniles. These two proposed standards take into account [[Page 6258]] the different practices and procedures that apply in juvenile facilities compared to adult prisons, jails, and community confinement facilities. Section 115.341 directs facilities to assess each resident's personal history and behavior upon intake and periodically throughout a resident's confinement to reduce the risk of sexual abuse. In addition to obtaining information in conversations with the resident, facilities can review court records, case files, facility behavioral records, and other relevant documentation from the resident's files. The proposed standard adds the inmate's own perception of vulnerability to the list of topics about which the facility should attempt to ascertain information. As in the analogous adult standards, the Department has added a requirement that juveniles must be assessed and placed pursuant to an objective screening instrument, and that information obtained for this purpose be subject to appropriate controls to avoid unnecessary dissemination. Several agency commenters expressed concern about the Commission's recommendation that only medical and mental health practitioners be allowed to talk with residents to gather information about their sexual orientation or gender identity, prior sexual victimization, history of engaging in sexual abuse, mental health status, and mental or physical disabilities. The Department has not included this limitation in its proposed standard, agreeing with commenters that appropriately trained juvenile facility staff who are not medical or mental health practitioners can engage in productive conversations on these topics with residents. Section 115.342 directs the facility to use the information gathered under Sec. 115.341 to make housing, bed, program, education, and work assignments. As in the analogous adult standards, the proposed standard requires individualized assessments about whether a transgender resident should be housed with males or females. Unlike the adult standards, however, the proposed standard retains the Commission's recommended ban on housing separately residents who are lesbian, gay, bisexual, transgender, or intersex. Given the small size of the typical juvenile facility, it is unlikely that a facility would house a large enough population of such residents so as to enable a fully functioning separate unit, as in the Los Angeles County Jail. Accordingly, the Department believes that the benefit of housing such residents separately is likely outweighed by the potential for such segregation to be perceived as punishment or as akin to isolation. Section 115.342 also addresses isolation for juveniles, allowing it only as a last resort when less restrictive means are inadequate to ensure resident safety, and then only until an alternative method of ensuring safety can be established. Reporting: Sections 115.51, 115.151, 115.251, 115.351, 115.52, 115.252, 115.352, 115.53, 115.253, 115.353, 115.54, 115.154, 115.254, and 115.354 (compare to the Commission's RE standards). Like the Commission, the Department believes that reporting instances of sexual abuse is critical to deterring future acts. The Department, however, has made significant changes to some of the Commission's proposed standards in this area. Sections 115.51, 115.151, 115.251, and 115.351 (compare to the Commission's RE-1 standard) require agencies to enable inmates to privately report sexual abuse and sexual harassment and related misconduct. The Commission proposed that agencies be required to allow inmates to report abuse to an outside public entity, which would then forward reports to the facility head ``except when an inmate requests confidentiality.'' Several commenters expressed concern that a public entity would be required to ignore reports of criminal activity if an inmate requested confidentiality. The proposed standard eliminates this exception; however, the Department solicits comments on the issue. The Department notes that the Department of Defense provides a ``restricted reporting'' option that allows servicemembers to confidentially disclose the details of a sexual assault to specified Department employees or contractors and receive medical treatment and counseling, without triggering the official investigative process and, subject to certain exceptions, without requiring the notification of command officials or law enforcement. See Department of Defense Directive 6495.01, Enclosure Three; Department of Defense Instruction 6495.02. Under Department of Defense policy, such restricted reports may be made to a Sexual Assault Response Coordinator, a designated victim advocate, or healthcare personnel. Question 23: Should the final rule mandate that agencies provide inmates with the option of making a similarly restricted report to an outside public entity? To what extent, if any, would such an option conflict with applicable State or local law? The proposed standard also provides that, instead of enabling reports to an outside public entity, the agency may meet this standard by enabling reports to an office within the agency but that is operationally independent from agency leadership, such as an inspector general or ombudsperson. The proposed standard requires only that agencies make their best efforts to set up such systems, recognizing that it may not be possible for all agencies. However, an agency must endeavor diligently to establish such a system, and if it does not succeed, it must demonstrate that no suitable outside entity or internal office exists, and that it would be impractical to create an internal office to serve this role. In addition, the proposed standard mandates that agencies establish a method for staff to privately report sexual abuse and sexual harassment of inmates. Finally, the proposed standard requires that juvenile residents be provided access to tools necessary to make written reports, whether writing implements or computerized reporting. Sections 115.52, 115.252, and 115.352 (compare to the Commission's RE-2 standard) govern grievance procedures and the methods by which inmates exhaust their administrative remedies. The Commission's recommended standard would impose three requirements. First, the standard would mandate that an inmate be deemed to have exhausted administrative remedies regarding a claim of sexual abuse either when the agency makes a final decision on the merits of the report, regardless of the source, or 90 days after the report, whichever comes first. Second, the standard would mandate that the agency accept any grievance alleging sexual abuse regardless of the length of time that had passed between abuse and report. Third, the standard would provide that an inmate seeking immediate protection from imminent sexual abuse would be deemed to have exhausted administrative remedies 48 hours after notifying any agency staff member of the need for protection. The Commission justified its standard as a means of ensuring that inmates have an effective method to seek judicial redress. The Commission noted that inmates who suffer sexual abuse are often too traumatized to comply with short time limitations imposed by many grievance systems. See Prison/Jail Standards at 35. In addition, the Commission noted, filing a grievance is not the typical way to report sexual abuse, and inmates who are told that they may report via other methods may not realize that they also need to file a [[Page 6259]] grievance in order to later pursue legal remedies. See id. Numerous agency commenters registered several types of objections to the Commission's proposal. First, some commenters suggested that aspects of the Commission's proposals would violate the Prison Litigation Reform Act (PLRA), which provides in pertinent part that ``[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.'' 42 U.S.C. 1997e(a). Commenters noted that the Commission's proposal would not mandate the exhaustion of available administrative remedies such as a grievance system but rather would deem exhaustion to have occurred 90 days after sexual abuse is reported to the agency. Second, some commenters objected to the requirement that no limitations period be imposed on grieving sexual abuse, and suggested that this would allow filing of stale claims that would be difficult to investigate due to the passage of time. Third, some commenters suggested that imposing any standard in this area would encourage the filing of frivolous claims. Fourth, commenters objected to the imminent-abuse requirement on the grounds that it would not allow sufficient time for investigations, would allow inmates to define imminence, and would permit gamesmanship by inmates seeking changes to housing or facility assignments for reasons unrelated to sexual abuse. Numerous commenters from advocacy groups and legal organizations endorsed the Commission's proposal as a way to ensure that inmates are able to vindicate their rights. Some commenters suggested that the standard should also address the PLRA's requirement that no prisoner may recover for mental or emotional injury without a prior showing of physical injury, see 42 U.S.C. 1997e(e), either by deeming this requirement inapplicable to victims of sexual abuse or by deeming sexual abuse to constitute physical injury per se. The Department agrees with the Commission that a standard relating to grievance procedures would be beneficial in light of strong evidence that victims of sexual abuse are often constrained in their ability to pursue grievances, for reasons discussed by the Commission and by commenters. However, the Department believes that the Commission's recommended standard devotes insufficient attention to several policy concerns lodged by correctional agencies, regardless of whether those correctional agencies are correct that the Commission's proposal is inconsistent with the PLRA. Accordingly, the Department is proposing a standard that it believes is sensitive to legitimate agency concerns while providing inmates appropriate access to the legal process in order to obtain judicial redress where available under applicable law and to enable litigation to play a beneficial role in ensuring that agencies devote sufficient attention to combating sexual abuse. The Department's proposed standard takes into account (1) the possibility that victims of sexual abuse may need additional time to initiate the grievance process; (2) the need for a final decision from the agency, and without undue delay; (3) the fact that such victims often report such abuse outside of the grievance system, and that the appropriate agency authorities may first learn of an allegation through a staff member or other third party; and (4) the need to provide swift redress in case of emergency. At the same time, the proposed standard recognizes (1) the need to comply with the PLRA; (2) the importance of providing agencies a meaningful amount of time to investigate allegations of sexual abuse; (3) the possibility that some inmates may fabricate claims of sexual abuse; and (4) the need to ensure accountability for grievances that are filed. The proposed standard does not address the PLRA's requirement that physical injury must be shown prior to any recovery for emotional or mental injury; the Department agrees with the Commission that the actions that commenters seek with regard to this requirement would require a statutory revision and cannot be accomplished via rulemaking. Paragraph (a) of Sec. Sec. 115.52, 115.252, and 115.352 governs the amount of time that inmates have after an alleged incident of sexual abuse to file a grievance. The proposed standard sets this time at 20 days, with an additional 90 days available if an inmate provides documentation, such as from a medical or mental health provider or counselor, that filing sooner would have been impractical due to trauma, removal from the facility, or other reasons. The 20-day limit matches the limitations period used by the Federal Bureau of Prisons (BOP) for all grievances, see 28 CFR 542.14(a), and according to a recent survey is shorter than the general limitations period for grievances in 18 States, see Appendix, Brief for the Jerome N. Frank Legal Services Organization of the Yale Law School As Amicus Curiae in Support of Respondent, Woodford v. Ngo (No. 05-416) (2006). By requiring actual documentation to obtain a 90-day extension for good cause shown, the proposed standard would reduce risk of inmate gamesmanship. The extension could be granted retroactively, thus avoiding the perverse consequence of recognizing that a victim may be too traumatized to file a grievance, while at the same time requiring the victim to file an extension request that documents such trauma. Paragraph (b) of Sec. Sec. 115.52, 115.252, and 115.352 governs the amount of time that agencies have to resolve a grievance alleging sexual abuse before it is deemed to be exhausted. The goal of this paragraph is to ensure that the agency is allotted a reasonable amount of time to investigate the allegation, after which the inmate may seek judicial redress. Paragraph (b) requires that agencies take no more than 90 days to resolve grievances alleging sexual abuse, unless additional time is needed, in which case the agency may extend up to 70 additional days. Time consumed by inmates in making appeals does not count against these time limits, in order to clarify that the agency's burden of producing timely responses applies only when a response is actually pending, and to ensure that agencies that allow generous time frames for inmates to take appeals are not penalized by receiving a commensurately shorter length of time to respond to inmate filings. The 90-day limit and the 70-day extension period are consistent with current BOP procedures. BOP has a three-level grievance system: the Warden has 20 days to adjudicate the initial appeal, the Regional Director has 30 days to adjudicate an intermediate appeal, and the BOP General Counsel has 40 days to adjudicate a final appeal. See 28 CFR 542.18. BOP allows extensions at each level of 20, 30, and 20 days, respectively, if the normal time period is insufficient to make an appropriate decision. See id. The Department has not identified a broad survey that would allow comparison to State or local systems, but believes that the 90-day limit, extendable to 160 days, provides sufficient time for any agency to take appropriate steps to respond to allegations of sexual abuse prior to the initiation of a lawsuit. Paragraph (c) of Sec. Sec. 115.52, 115.252, and 115.352 requires that agencies treat third-party notifications of alleged sexual abuse as a grievance or request for informal resolution submitted on behalf of the alleged inmate victim for purposes of initiating the agency administrative remedy process. As the [[Page 6260]] Commission and some commenters have noted, it is inconsistent for an agency to assure inmates that it will investigate sexual abuse allegations made to any staff member and then defend against a lawsuit on the ground that the inmate failed to file a formal grievance with the proper facility official. As the Commission noted, ``because grievance procedures are generally not designed as the sole or primary method for reporting incidents of sexual abuse by inmates to staff, victims who do immediately report abuse to authorities may not realize they need to file a grievance as well to satisfy agency exhaustion requirements.'' Prison/Jail Standards at 35. However, the Commission's recommendation that a third-party report suffice to bypass the grievance system altogether would deny correctional agencies the ability to investigate allegations of sexual abuse prior to the filing of a lawsuit. In addition, the Commission's proposal, if adopted, could require courts to adjudicate disputes over whether and when the agency in fact received such a report that would excuse the inmate from needing to file a grievance. The proposed standard would address these concerns by requiring reports of sexual abuse to be channeled into the normal grievance system (including requests for informal resolution where required) unless the alleged victim requests otherwise. Reports from other inmates would be exempted from this requirement in order to reduce the likelihood that inmates would attempt to manipulate staff or other inmates by making false allegations. The proposed standard would permit agencies to require alleged victims to perform properly all subsequent steps in the grievance process, because at that point the rationale for third-party involvement would no longer exist. However, where the alleged victim of sexual abuse is a juvenile, the proposed standard would allow a parent or guardian to continue to file appeals on the juvenile's behalf unless the juvenile does not consent. Paragraph (d) governs procedures for dealing with emergency claims alleging imminent sexual abuse. Many State prison systems expressly provide emergency grievance procedures where imminent harm is threatened. Such procedures usually require a speedy final agency decision, and therefore a speedy exhaustion of administrative remedies. These procedures address the possibility that some inmates may have reason to fear imminent harm from another inmate or from a staff member, in which case a lengthy grievance process would be unlikely to provide adequate relief. However, the Department believes that the Commission's imminent- harm proposal is unworkable, because it would allow any inmate nearly instant court access based upon the inmate's mere assertion that sexual abuse is imminent. Under the Commission's proposal, an inmate could trigger these emergency exhaustion provisions by notifying any agency staff member, regardless of the staff member's authority to provide a remedy. Then, the inmate could automatically file suit within 48 hours, regardless of whether the claim of imminent harm has any merit. Such a regime could encourage the filing of frivolous claims in which sexual abuse is alleged as a vehicle to seek immediate judicial access in order to obtain an unrelated remedy, such as a change in housing assignment for reasons other than safety. The proposed standard would require agencies to establish emergency grievance procedures resulting in a prompt response--unless the agency determines that no emergency exists, in which case the grievance may be processed normally or returned to the inmate, as long as the agency provides a written explanation of why the grievance does not qualify as an emergency. To deter abuse, an agency could discipline an inmate for deliberately alleging false emergencies. The Department believes that this provision, modeled on procedures in place in numerous States, would serve as an adequate deterrent to the filing of frivolous or strategic claims while advancing true emergencies to the head of the queue. Question 24: Because the Department's proposed standard addressing administrative remedies differs significantly from the Commission's draft, the Department specifically encourages comments on all aspects of this proposed standard. Sections 115.53, 115.253, and 115.353 (compare to the Commission's RE-3 standard) require that agencies provide inmates access to outside victim advocacy organizations, similar to the Commission's recommended standard. Several commenters expressed concern that the Commission's proposal would allow inmates unfettered and unmonitored access to outside organizations, possibly enabling inmate abuse of such access. The proposed standard modifies the Commission's recommended language, which would require communications to be ``private, confidential, and privileged, to the extent allowable by Federal, State, and local law.'' Instead, the proposed rule requires that such communications be as confidential as possible consistent with agency security needs. The Department recognizes that allowing inmate access to outside victim advocacy organizations can greatly benefit inmates who have experienced sexual abuse yet who may be reluctant to report it to facility administrators, and notes that some agencies, such as the California Department of Corrections and Rehabilitation, have established successful pilot programs working with outside organizations. At the same time, the Department recognizes that communications with outsiders raise legitimate security concerns. The proposed standard strikes a balance by allowing confidentiality to the extent consistent with security needs. The proposed standard also retains the Commission's recommendation that juvenile facilities be specifically instructed to provide residents with access to their attorney or other legal representation and to their families, in recognition of the fact that juveniles may be especially vulnerable and unaware of their rights in confinement. The proposed standard modifies the Commission's language by mandating that juvenile facilities provide access that is reasonable (and, with respect to attorneys and other legal representation, confidential) rather than unimpeded. Sections 115.54, 115.154, 115.254, and 115.354 (compare to the Commission's RE-4 standard) requires that facilities establish a method to receive third-party reports of sexual abuse and publicly distribute information on how to report such abuse on behalf of an inmate. Elements of the Commission's RE-4 standard related to investigations are included in Sec. Sec. 115.71, 115.171, 115.271, and 115.371. Official Response Following an Inmate Report: Sections 115.61, 115.161, 115.261, 115.361, 115.62, 115.162, 115.262, 115.362, 115.63, 115.163, 115.263, 115.363, 115.64, 115.164, 115.264, 115.364, 115.65, 115.165, 115.265, 115.365, 115.66, and 115.366 (compare to the Commission's OR standards). The Department proposes six standards addressing a facility's official response following a report of sexual abuse or sexual harassment. These six proposed standards are substantively similar to the five standards proposed by the Commission. This group of standards is intended to ensure coordinated, thorough, and complete agency reactions to reports of sexual abuse. Sections 115.61, 115.161, 115.261, and 115.361 (compare to the Commission's OR-1 standard) set forth staff and agency reporting duties regarding incidents of sexual abuse. [[Page 6261]] Staff must be trained and informed about how to properly report incidents of sexual abuse while maintaining the privacy of the victim. Staff are required to immediately report (1) any knowledge, suspicion, or information regarding incidents of sexual abuse that take place in an institutional setting, (2) any retaliation against inmates or staff who report abuse, and (3) any staff neglect or violation of responsibilities that may have contributed to the abuse. The Department's proposed standard adds to the Commission's recommendations a requirement that the facility must report all allegations of sexual abuse to the facility's designated investigators, including third-party and anonymous reports. Sections 115.62, 115.162, 115.262, and 115.362 (compare to the Commission's OR-2 standard) require that after a facility receives an allegation that one of its inmates was sexually abused at another facility, it must inform that other facility within 14 days. This standard recognizes that some victims of sexual abuse may not report an incident until they are housed in another facility. Such incidents must not evade investigation merely because the victim is no longer at the facility where the abuse occurred. The proposed standard tracks the Commission's recommendation but adds the 14-day time limit in order to provide further guidance to agencies. The standard also requires that the facility receiving the information must investigate the allegation. Sections 115.63, 115.163, 115.263, and 115.363 (compare to the Commission's OR-3 standard) set forth staff first responder responsibilities. Staff need to be able to adequately counsel victims while maintaining security and control over the crime scene so any physical evidence is preserved until an investigator arrives. The proposed standard revises the Commission's recommendation by requesting, rather than instructing, victims not to take actions that could destroy physical evidence. This change is consistent with forthcoming revisions to the Office on Violence Against Women's National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents. Sections 115.64, 115.164, 115.264, and 115.364