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Setting the standard: Policy that protects your institution

In developing policies and procedures for a correctional institution, a key goal should be to have the policies reflect prevailing legal requirements and correctional professional standards to the greatest extent possible.

There are several benefits to doing so. For one thing, it is simply good professional practice to have policies that reflect the state of the art in corrections. For another, it is an element in a proactive liability risk management approach. Being proactive means thinking ahead to possible bad things that can happen, and taking steps in advance to minimize damage and to prevail if and when they do happen.

In regard to liability risk management, being proactive means anticipating possible lawsuits that might occur and then taking steps to (1) minimize the likelihood that inmates will sue, if possible; and (2) successfully defend against a lawsuit that is filed. Written policies and procedures are a key element in an overall proactive liability risk management approach in a jail or prison. Other elements include training, documentation, review of incidents, and ongoing supervision.

The national professional standards for corrections are mainly set forth in the accreditation standards of major national associations, primarily including the standards of the American Correctional Association (ACA) and, for health care issues, the National Commission on Correctional Health Care (NCCHC). Both of these are private, non-profit entities. There are other professional organizations and associations that have developed standards, but these are the main ones. Inasmuch as they are accreditation standards, they are not mandatory for any agency that is not seeking accreditation—unless a court orders adoption of certain standards. In some cases, states have required, through statutes or administrative rules, that certain national standards are to be the basis for agency practices.

How can national standards be used in developing policies and procedures?

If an agency is seeking accreditation by the ACA or the NCCHC, it is required that the agency develop policies and procedures that reflect their standards. The accrediting organization reviews these policies as part of the accreditation or re-accreditation process. In addition, the agency must demonstrate that they have met designated process or compliance indicators associated with standards, such as maintenance of certain records or documents, and data collection or other measurements. One of the reasons that many jails and prisons seek accreditation is to help improve their chances of prevailing in the event of lawsuits.

The national standards can also be used as a basis for policies and procedures for agencies that are not seeking accreditation, and doing so is a good idea.To do so takes time and effort, but the benefits, as noted, can be significant.

The first requirement is to get copies of the applicable standards. The ACA has approximately twenty manuals of accreditation standards, applicable to the various elements of corrections:  jails, prisons, juvenile detention and juvenile corrections, probation and parole, community residential facilities, and so on. (Visit the ACA Web site for more information.)

The NCCHC has separate manuals of health care standards for jails, prisons, and juvenile detention/confinement facilities. They also have a new manual of standards for mental health services in correctional facilities, including both jails and prisons. (Visit the NCCHC Web site for more information.)

The next step is to carefully review the standards to determine how they might apply to your policies and procedures — either to development of a new policy or to revision of an existing policy. You may determine, for example, that only a few of the national standards apply to your operation. Or you may determine that many of them do. You may decide to revise some of your existing policies to reflect the provisions of national standards. Determining these things is the purpose for careful review.

To illustrate, consider a policy on use of force for a jail. The applicable ACA standards for jails are contained in the manual of standards entitled Performance-Based Standards for Adult Local Detention Facilities, fourth edition (2004). The key information on this subject is contained in standard 4-ALDF-2B-01, which reads as follows:

The use of physical force is restricted to instances of justifiable self-defense, protection of others, protection of property, and prevention of escapes, and then only as a last resort and in accordance with appropriate statutory authority. In no event is physical force used as punishment.

The corresponding prison standard is contained in ACA’s Standards for Adult Correctional Institutions, fourth edition (2003). The standard is 4-4206, Use of Force, and reads as follows:

Written policy, procedure, and practice restrict the use of physical force to instances of justifiable self-defense, protection of others, protection of property, prevention of escapes, and to maintain or regain control, and then only as a last resort and in accordance with appropriate statutory authority. In no event is physical force justifiable as punishment. A written report is prepared following all uses of force and is submitted to administrative staff for review.

If the language of these ACA standards accords with your view of when use of physical force is justified, it would be a good idea to write a policy statement that reflects the provisions of the appropriate standard — that is, an indication that use of physical force is limited to the types of situations mentioned in the standard.

It would then be advisable to specifically reference the number and title of the applicable standard somewhere on the written policy, usually in a space labeled “References” or “Applicable Standards” or something similar in the header box. This would be an indicator that the contents of the agency policy on use of force reflect provisions of a prevailing national standard on that important issue. Doing so lets jail staff members know that the policy they are expected to follow is based on national standards of the profession.

This can also be important in the event of a lawsuit on use of force because it makes clear to attorneys on both sides that the use of force policy is a good one in that it incorporates provisions of prevailing professional correctional standards.

For one thing, this minimizes the chances that a plaintiff’s attorney can make a case for management being liable for "failure to direct" staff in the performance of their duties in regard to use of force. And if the issue is the substance of a policy’s contents, how can a plaintiff’s attorney argue against the contents of a national standard?

The ACA standard on use of force indicates that use of physical force is to be "in accordance with appropriate statutory authority." Therefore, to be thorough, the written policy should also specifically reference any such statutory authority. This might include state statutes or administrative rules, etc., governing use of force in a jail or prison. There should be a specific reference to these as well in the policy, such as in a space in the header box labeled “Applicable Statutes” or something similar.

Simply referencing a national standard in a policy, however, is just a starting point. It is also important to be sure that staff members are trained on the contents of the policy, including the justified uses of force as well as other cognitive issues, and on psychomotor skills necessary to implement the policy. Additionally, there must be good documentation to support the policy, including use of force reports that clearly indicate that any physical force was used for justifiable purposes. Finally, there must be ongoing supervision to ensure compliance with policy and training.

Because provision of health care of inmates is such an important issue and is often a focus of lawsuits, it is highly recommended that jail and prison managers also make an effort to reference applicable NCCHC standards in policies and procedures. The method for doing so is the same as that noted in regard to the ACA standards: get the standards, go through them carefully, determine which standards can and should apply to your practices, and incorporate the essence of the standards into the language of your policies and procedures. Then be sure to reference each applicable NCCHC standard in the written policy, usually in the header box.

For example, a key issue in every jail and prison is suicide prevention. The applicable NCCHC standard for that issue, for jails, is J-G-05, “Suicide Prevention Program.” This is from Standards for Health Services for Jails, 2008. For prisons, the applicable standard is P-G-05, from Standards for Health Services in Prisons, 2008. The jail standard simply says: The facility identifies suicidal inmates and intervenes appropriately.

A number of compliance indicators for that standard are then listed, including the key components of a suicide prevention program in any jail. These components include: training, identification of inmates who are suicide risks, referral of inmates, evaluation of inmates, treatment, housing and monitoring, communication, intervention in a suicide attempt, notification, review of incidents, and debriefing. Each of these components is discussed.

To reflect compliance with the NCCHC standard, an agency’s suicide prevention policy should include information on each of the above-listed components of a suicide prevention program. It would even be advisable to have a separate procedure for each component—for example: Procedure A: Training; Procedure B, Identification of Inmates, and so on.

Again, an advantage of this is that it puts an agency in a better position to defend actions in the event of a civil lawsuit in which an inmate's suicide is at issue. This is because it shows that the agency is aware of the prevailing national standard on a key issue and has a policy in place that reflects that standard. If staff members are then properly trained on that policy, documentation is good, and there is ongoing supervision to ensure compliance with policy and training, the chances of prevailing in the event of litigation are better. Of course, the facts of any situation significantly affect the outcome of a lawsuit, but having a good policy in place is always a significant factor in your favor.

As with all policy issues, it is critically important to continually determine that there is congruence between what written policies say and what actually happens in a jail or prison. One way of doing this is to carefully review policies at certain times — such as at designated intervals (annually, for example), and following critical incidents as part of critical incident debriefing, administrative review, etc. If there is a significant discrepancy between policy contents and actual practices, then there is a problem, even if the written policy is based on national standards. Such a discrepancy gives ammunition to plaintiff’s attorneys and makes it more difficult for defense attorneys to defend you.

In summary, there are significant benefits to knowing the national professional standards for corrections operations and to making some effort to base your policies and practices on these — whether or not your agency is accredited or seeking accreditation. It takes time to do this, but it can be worth it.

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