Vol. 79 Wednesday, 

No. 247 December 24, 2014 

Part III 

Department of Health and Human Services 

Administration for Children and Families 

45 CFR Part 411 

Standards To Prevent, Detect, and Respond to Sexual Abuse and Sexual 

Harassment Involving Unaccompanied Children; Final Rule 

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77768 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Rules and Regulations 

1This interim final rule uses the term 

‘‘unaccompanied child’’ in place of the statutory 

term ‘‘unaccompanied alien child,’’ but it retains 

the statutory meaning. An unaccompanied alien 

child is defined in Section 462(g)(2) of the 

Homeland Security Act of 2002 as a child: (1) Who 

has no lawful immigration status in the United 

States; (2) who has not reached 18 years of age; and 

(3) with respect to whom there is no parent or legal 

guardian in the United States or there is no parent 

or legal guardian in the United States available to 

provide care and physical custody. 6 U.S.C. 

279(g)(2). 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Part 411 

RIN 0970–AC61 

Standards To Prevent, Detect, and 

Respond to Sexual Abuse and Sexual 

Harassment Involving Unaccompanied 

Children 

AGENCY: Office of Refugee Resettlement 

(ORR), Administration for Children and 

Families (ACF), Department of Health 

and Human Services (HHS). 

ACTION: Interim final rule (IFR). 

SUMMARY: This IFR proposes standards 

and procedures to prevent, detect, and 

respond to sexual abuse and sexual 

harassment involving unaccompanied 

children (UCs) in ORR’s care provider 

facilities. 

DATES: This IFR is effective on 

December 24, 2014. ORR care provider 

facilities must be in compliance with 

this IFR by June 24, 2015 but encourages 

care provider facilities to be in 

compliance sooner, if possible. HHS 

will work with facilities to implement 

and enforce the standards contained in 

this rule. Comments on this IFR must be 

received on or before February 23, 2015. 

ADDRESSES: Interested persons are 

invited to submit comments to the 

Office of Refugee Resettlement, 370 

L’Enfant Promenade SW., 8th Floor 

West, Washington, DC 20024, Attention: 

Elizabeth Sohn, or electronically via the 

Internet at http://www.regulations.gov. 

If you submit a comment, please include 

your name and address, indicate the 

specific section of this document to 

which each comment applies, and give 

the reason for each comment. You may 

submit your comments and material by 

electronic means, mail, or delivery to 

the address above, but please submit 

your comments and material by only 

one means. A copy of this IFR may be 

downloaded from http://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth Sohn, Policy Analyst, Division 

of Policy, Office of Refugee 

Resettlement, Administration for 

Children and Families by email at 

UACPolicy@acf.hhs.gov or by phone at 

(202) 260–6829. Deaf and hearing 

impaired individuals may call the 

Federal Dual Party Relay Service at 1– 

800–877–8339 between 8 a.m. and 7 

p.m. Eastern Time. 

SUPPLEMENTARY INFORMATION: 

Contents 

I. Submission of Comments 

II. Executive Summary 

III. Background 

A. Department of Justice Rulemaking 

B. Application of PREA Standards to Other 

Federal Confinement Facilities 

C. The Presidential Memorandum on 

Implementing the Prison Rape 

Elimination Act 

D. Violence Against Women 

Reauthorization Act of 2013 

IV. Discussion of the Interim Final Rule 

A. ORR Standards 

B. Section by Section Discussion 

Subpart A—Coverage 

Subpart B—Prevention Planning 

Subpart C—Responsive Planning 

Subpart D—Training and Education 

Subpart E—Assessment for Risk of Sexual 

Victimization and Abusiveness 

Subpart F—Reporting 

Subpart G—Official Response Following a 

UC Report 

Subpart H—ORR Incident Monitoring and 

Evaluation 

Subpart I—Interventions and Discipline 

Subpart J—Medical and Mental Health 

Care 

Subpart K—Data Collection and Review 

Subpart L—Audits and Corrective Action 

V. Waiver of Proposed Rulemaking 

VI. Collection of Information Requirements 

VII. Regulatory Impact Analysis—Executive 

Order 12866 and 13563 

VIII. Regulatory Flexibility Analysis 

IX. Unfunded Mandates Reform Act 

X. Congressional Review 

XI. Assessment of Federal Regulation and 

Policies on Family 

XII. Executive Order 13132 

I. Submission of Comments 

Comments should be specific, address 

issues raised by the interim final rule, 

propose alternatives where appropriate, 

explain reasons for any objections or 

recommended changes, and reference 

the specific action of the interim final 

rule that is being addressed. 

Additionally, we will be interested in 

comments that indicate agreement with 

proposed policies. We will not 

acknowledge receipt of the comments 

we receive. However, we will review 

and consider all comments that are 

germane and are received during the 

comment period. We will respond to 

these comments in the preamble to the 

Final Rule. 

II. Executive Summary 

This interim final rule provides 

standards to prevent, detect, and 

respond to sexual abuse and sexual 

harassment in Department of Health and 

Human Services (HHS), Administration 

for Children and Families (ACF), Office 

of Refugee Resettlement (ORR) care 

provider facilities housing 

unaccompanied children1 (UCs). Sexual 

violence and abuse are an assault on 

human dignity and have devastating, 

lifelong mental and physical effects on 

an individual. HHS is committed to an 

absolute zero tolerance policy against 

sexual abuse and sexual harassment in 

its care provider facilities and seeks to 

ensure the safety and security of all UCs 

in its care. 

The standards set forth in this interim 

final rule build on the ORR UC Program 

policies and procedures and respond to 

section 1101(c) of the Violence Against 

Women Reauthorization Act of 2013, 

Pub. L. 113–4 (VAWA 2013). VAWA 

2013 directs the Secretary of HHS to 

issue ‘‘a final rule adopting national 

standards for the detection, prevention, 

reduction, and punishment of rape and 

sexual assault in facilities that maintain 

custody’’ of unaccompanied children. 

ORR carefully considered all 

recommendations made by the National 

Prison Rape Elimination Commission’s 

(NPREC) report in developing this rule, 

which covers the eleven categories used 

by the NPREC to discuss and evaluate 

prison rape prevention and elimination 

standards. The eleven categories 

include: prevention planning, 

responsive planning, training and 

education, assessment for risk of sexual 

victimization and abusiveness, 

reporting, official response following a 

UC report, ORR incident monitoring and 

evaluation, interventions and discipline, 

medical and mental care, data collection 

and review, and audits and corrective 

actions. HHS tailored each provision 

under these categories to the UC 

population and the nature of ORR care 

provider facilities, which differ greatly 

from typical confinement facilities and 

prisons. Most ORR care provider 

facilities are shelters, group homes, and 

residential therapeutic centers. The 

standards were modified to protect 

children and be culturally sensitive, 

given the background of most UCs. 

III. Background 

Congress passed the Prison Rape 

Elimination Act (PREA), Pub. L. 108–79, 

in July 2003 in order to address the 

often overlooked crime of rape in 

Federal, State, and local prisons and to 

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Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Rules and Regulations 77769 

2While not ‘‘binding’’ on State and local 

facilities, both the DOJ’s NPRM and the DOJ final 

rule ‘‘applies’’ to State and local facilities and 

facilities operated on their behalf. See 77 FR 37106, 

37107. 

analyze the incidence and effect of 

prison rape in order to provide 

information, resources, 

recommendations, and funding to 

protect individuals from the crime. 

Some of the key purposes of the statute 

were to ‘‘develop and implement 

national standards for the detection, 

prevention, reduction, and punishment 

of prison rape,’’ and to ‘‘increase the 

available data and information on the 

incidence of prison rape.’’ 42 U.S.C. 

15602(3)–(4). PREA defines the term 

‘‘prison’’ to mean ‘‘any confinement 

facility of a Federal, State, or local 

government, whether administered by 

such government or by a private 

organization on behalf of such 

government, and includes (A) any local 

jail or police lockup; and (B) any 

juvenile facility used for the custody or 

care of juvenile inmates.’’ 42 U.S.C. 

15609(7). The term ‘‘inmate’’ is defined 

in PREA to mean ‘‘any person 

incarcerated or detained in any facility 

who is accused of, convicted of, 

sentenced for, or adjudicated delinquent 

for, violations of criminal law or the 

terms and conditions of parole, 

probation, pretrial release, or 

diversionary program.’’ 42 U.S.C. 

15609(2). 

PREA established the National Prison 

Rape Elimination Commission (NPREC) 

to ‘‘carry out a comprehensive legal and 

factual study of the penalogical, 

physical, mental, medical, social, and 

economic impacts of prison rape in the 

United States’’ and to recommend to the 

Attorney General national standards for 

the reduction of prison rape. 42 U.S.C. 

15606. The statute directed the Attorney 

General to publish a final rule adopting 

‘‘national standards for the detection, 

prevention, reduction, and punishment 

of prison rape . . . 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)(1)–(2). 

The NPREC released its recommended 

national standards in a report (the 

NPREC report) dated June 23, 2009. The 

NPREC’s report and recommended 

national standards are available at 

http://www.ncjrs.gov/pdffiles1/

226680.pdf. The NPREC set forth four 

sets of recommended national standards 

for eliminating prison rape and other 

forms of sexual abuse. Each set applied 

to one of four confinement settings: (1) 

adult prisons and jails; (2) juvenile 

facilities; (3) community corrections 

facilities; and (4) lockups. The NPREC 

report recommended supplemental 

standards for facilities with immigration 

detainees as well as tailored standards 

for facilities with juveniles. 

A. Department of Justice Rulemaking 

In response to the NPREC report, the 

Attorney General established a PREA 

Working Group to review each of the 

NPREC’s proposed standards and to 

assist him in the rulemaking process. 

The Working Group included 

representatives from a wide range of 

DOJ components, including the Access 

to Justice Initiative, the Federal 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, 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 

NPREC, which included a number of 

listening sessions with key stakeholders. 

On March 10, 2010, DOJ published an 

Advance Notice of Proposed 

Rulemaking (ANPRM) to solicit public 

input on the NPREC’s proposed national 

standards. In general, commenters to the 

DOJ ANPRM supported the broad goals 

of PREA and the overall intent of the 

NPREC’s recommendations. 

Commenters, however, were sharply 

divided as to the merits of a number of 

standards. Some commenters, 

particularly those whose responsibilities 

involve the care and custody of inmates 

or juvenile residents, expressed concern 

that the NPREC’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 NPREC’s 

standards did not go far enough, and, 

therefore, would not fully achieve 

PREA’s goals. 

After reviewing public input on the 

ANPRM, DOJ published a Notice of 

Proposed Rulemaking (NPRM) on 

February 3, 2011 that proposed national 

PREA standards, solicited public 

comments, and posed 64 specific 

questions on the proposed standards 

and accompanying economic analysis. 

DOJ received over 1,300 comments to 

the NPRM from a broad range of 

stakeholders. Commenters provided 

general assessments of the DOJ’s efforts 

as well as specific and detailed 

recommendations regarding each 

standard. Following the NPRM’s 

comment period, DOJ issued a final rule 

setting national standards to prevent, 

detect, and respond to prison rape at 

Federal, State, and, local confinement 

facilities. 77 FR 37106 (June 20, 2012). 

The final rule reflected a considered 

analysis of the public comments and a 

rigorous assessment of the estimated 

benefits and costs of full nationwide 

compliance with the standards. 

B. Application of PREA Standards to 

Other Federal Confinement Facilities 

DOJ’s NPRM interpreted PREA as 

binding only on facilities operated by 

the Federal Bureau of Prisons and 

extended the standards to U.S. Marshals 

Service (USMS) facilities under other 

authorities of the Attorney General.2 76 

FR 6248, 6265. Numerous commentators 

criticized this interpretation of the 

statute. In light of those comments, DOJ 

re-examined whether PREA extends to 

Federal facilities beyond those operated 

by DOJ and concluded that PREA does, 

in fact, encompass any Federal 

confinement facility ‘‘whether 

administered by [the] government or by 

a private organization on behalf of such 

government.’’ 42 U.S.C. 15609(7). 

In its final rule, DOJ further 

concluded that, in general, each Federal 

department is accountable for and has 

the statutory authority to regulate the 

operations of its own facilities and, 

therefore, is best positioned to 

determine how to implement the 

Federal laws and rules that govern its 

own operations, the conduct of its own 

employees, and the safety of persons in 

its custody. 77 FR 37106, 37113. Thus, 

given each department’s various 

statutory authorities to regulate 

conditions of confinement, DOJ stated 

that Federal departments with 

confinement facilities will work with 

the Attorney General to issue rules or 

procedures consistent with PREA. 

C. The Presidential Memorandum on 

Implementing the Prison Rape 

Elimination Act 

On May 17, 2012, the President issued 

a Presidential Memorandum confirming 

the goals of PREA and directing Federal 

agencies with confinement facilities to 

propose rules or procedures necessary 

to satisfy the requirements of PREA 

within 120 days of the Memorandum. In 

the Memorandum, the President 

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established that sexual violence, against 

any victim, is an assault on human 

dignity and an affront to American 

values. The President stated that PREA 

encompasses all Federal confinement 

facilities, including those operated by 

executive departments and agencies 

other than DOJ, whether administered 

by the Federal Government or by a 

private organization on behalf of the 

Federal Government. In addition, the 

Memorandum states that each agency is 

responsible and accountable for the 

operations of its own confinement 

facilities, as each agency has extensive 

expertise regarding its own facilities, 

particularly those housing unique 

populations. Thus, each agency is best 

positioned to determine how to 

implement the Federal laws and rules 

that govern its own operations, the 

conduct of its own employees, and the 

safety of persons in its custody. To 

advance PREA’s goals, the President 

directed all agencies with Federal 

confinement facilities to work with the 

Attorney General to propose any rules 

or procedures necessary to satisfy the 

requirements of PREA. 

In response to the Presidential 

Memorandum, the Department of 

Homeland Security (DHS) issued a 

NPRM on standards to prevent, detect, 

and respond to sexual abuse and assault 

in confinement facilities in accordance 

with PREA on December 19, 2012. 77 

FR 75300. DHS issued its PREA final 

rule on March 7, 2014. 79 FR 13100. 

To implement the principles laid out 

in the Presidential Memorandum, ORR 

began drafting procedures appropriate 

for its care provider facilities. ORR 

maintains a continuum of care that 

ranges from group homes, shelters, 

therapeutic care provider facilities, and 

residential treatment centers. ORR also 

provides grants for a limited number of 

beds at State and local juvenile facilities 

to house a small population of UCs in 

secure placements. ORR refers to these 

facilities as ‘‘secure care provider 

facilities.’’ 

All non-secure ORR care provider 

facilities are subject to State and local 

licensing standards for juvenile 

residential facilities, unless they are 

operating on Federal property. All care 

provider facilities subject to State and 

local licensing standards will have 

outside entities in addition to ORR 

overseeing and regulating them. ORR 

care provider facilities are mostly group 

homes and shelters that provide a wide 

array of services. UCs move around 

freely in a supervised environment, and 

most care provider facilities do not 

maintain secure perimeters. Many care 

provider facilities are run by nonprofitgrantees and located in residential 

neighborhoods. UCs must be provided 

with a level of privacy like having 

personal clothes, personal effects, and 

privacy when changing, using the 

restroom, and showering. UCs receive 

daily educational services, weekly 

group and individual counseling, an 

individualized service plan, and many 

other services that follow accepted child 

welfare principles. HHS, with its 

expertise with child welfare issues and 

UC populations, has policies and 

procedures in place to protect the safety 

and security of UCs in accordance with 

State and local licensing standards, and 

includes many of the standards set forth 

by DOJ and DHS in their respective final 

rules. 

ORR is strongly committed to 

protecting UCs from sexual abuse and 

sexual harassment and to follow the 

principles laid out in the Presidential 

Memorandum. ORR began creating and 

implementing a comprehensive training 

for all care provider facility staff on 

preventing and responding to sexual 

abuse and sexual harassment. As ORR’s 

non-secure care provider facilities are 

not obligated to follow DOJ’s rule, ORR 

also began drafting supplemental 

policies and procedures that applied 

many of the standards set forth by the 

DOJ rule and the NPREC’s 

recommended standards modified for 

the UC population to these facilities. 

Finally, ORR directed all of its secure 

care providers to follow DOJ’s final rule, 

since these facilities are State and local 

juvenile facilities. As of May 2013, less 

than 1.5 percent of ORR’s UC total bed 

space is reserved for secure placement. 

D. Violence Against Women 

Reauthorization Act of 2013 

The Violence Against Women 

Reauthorization Act of 2013 (VAWA 

2013), Pub. L. 113–4, contained a 

provision applying PREA to custodial 

facilities operated by HHS. VAWA 2013 

requires HHS to publish a final rule 

adopting national standards to prevent, 

detect, and respond to rape and sexual 

assault. These national standards are to 

apply to all care provider facilities that 

maintain custody of UCs as defined in 

the Homeland Security Act of 2002 (6 

U.S.C. 279(g)) and give due 

consideration to the recommended 

national standards provided by the 

NPREC report. Additionally, HHS is 

required to regularly assess compliance 

with the standards adopted and include 

the results of the assessments in 

performance evaluations of care 

provider facilities. 

In response to VAWA 2013, HHS is 

proposing the following standards for 

the prevention, detection, and response 

to sexual abuse and sexual harassment 

of UCs in all ORR care provider 

facilities, except secure care providers 

and traditional foster care homes as 

described in the rule. 

IV. Discussion of the Interim Final Rule 

A. ORR Standards 

Sexual abuse and sexual harassment 

are an assault on human dignity and 

have devastating lifelong psychological 

and physical effects on an individual. 

ORR is committed to child welfare best 

practices and protecting the safety and 

security of UCs, and, therefore, has 

implemented a zero tolerance policy 

against sexual abuse and sexual 

harassment. Through the standards set 

forth below, ORR seeks to further 

articulate its expectations of care 

provider facilities to fully protect and 

prevent the sexual abuse and sexual 

harassment of UCs. 

ORR reviewed and considered all 

NPREC recommended standards and 

focused on the standards for juvenile 

facilities and supplemental standards 

for immigration detainees in creating 

this rule. ORR also recognizes that DOJ 

and DHS have done a considerable 

amount of work to develop and 

implement policies and practices for use 

in confinement facilities. Thus, ORR 

used the framework created by the 

NPREC recommendations along with 

DOJ and DHS’ respective rules in 

conjunction with its own expertise in 

child welfare issues and the UC 

population’s specific needs to create its 

standards. ORR also had to consider the 

practicability of applying the standards 

to its care provider facilities, as all care 

provider facilities are grantees, subgrantees, or contractors of ORR. ORR’s 

standards ultimately seek to include 

child welfare best practices, other best 

practice standards, and applicability to 

ORR’s continuum of care. 

B. Section by Section Discussion 

Sections 411.5 and 411.6 define key 

terms used in the standards set forth in 

this Part, including definitions related 

to sexual abuse and sexual harassment. 

Many of the definitions are the same as 

those found in the DOJ rule and the DHS 

rule. ORR also examined the definitions 

used by the NPREC and made 

adjustments for applicability to minors. 

Certain terms used by the NPREC, DOJ, 

or DHS do not appear in ORR’s 

standards, because the terms are not 

relevant to the types of care provider 

facilities utilized by ORR or the term is 

sufficiently clear that it does not require 

defining. Below is an explanation for 

key definitions modified or added by 

ORR. 

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3http://www.apa.org/pi/lgbt/resources/

guidelines.aspx. 

The standards define a ‘‘care provider 

facility,’’ which refers to any ORRfunded program that is licensed, 

certified, or accredited by an 

appropriate State or local agency to 

provide housing and services to UCs. 

Care provider facilities include a range 

of residential facilities, such as shelters, 

group homes, residential treatment 

centers, and therapeutic care provider 

facilities. Emergency care provider 

facilities are included in this definition 

but may or may not be licensed, 

certified, or accredited by an 

appropriate State or local agency. This 

licensing, certification, or accreditation 

has no bearing on the applicability of 

these rules as they are still defined as 

care provider facilities. 

‘‘Emergency’’ refers to a sudden, 

urgent, usually unexpected occurrence 

or occasion requiring immediate action. 

‘‘Emergency care provider facility’’ is 

a type of care provider facility that is 

opened to provide temporary emergency 

shelter and services for UCs during an 

influx. Emergency care provider 

facilities may or may not be licensed by 

an appropriate State or local agency. 

Because of the temporary and 

emergency nature of emergency care 

provider facilities, they are often either 

not licensed or are exempted from 

licensing requirements by State and 

local licensing agencies. Emergency care 

provider facilities may also be opened 

on Federal properties, in which case, 

the care provider facility would not be 

subject to State or local licensing 

standards. 

‘‘Gender’’ refers to the attitudes, 

feelings, and behaviors that a given 

culture associates with a person’s 

biological sex. This term is not to be 

confused with ‘‘sex,’’ which is defined 

below. The definitions for the terms 

‘‘gender,’’ ‘‘gender identity,’’ and ‘‘sex’’ 

were taken from the American 

Psychological Association’s (APA) 

Guidelines for Psychological Practice 

with Lesbian, Gay, and Bisexual Clients, 

adopted by the APA Council of 

Representatives, February 18–20, 2011.3

‘‘Gender identity’’ refers to one’s 

sense of oneself as a male, female, or 

transgender. 

‘‘Law enforcement’’ is defined in 

these standards to refer to the traditional 

use of the term, such as a police officer 

or a federal law enforcement officer. 

ORR sought to clarify that it does not 

have its own enforcement officers, so 

when ‘‘law enforcement’’ is used in the 

regulations, ORR is referring to Federal, 

State, and local law enforcement 

agencies. 

‘‘Limited English proficient’’ (LEP) 

refers to individuals for whom English 

is not the primary language and who 

may have a limited ability to read, write, 

speak, or understand English. 

A ‘‘secure care provider facility’’ 

refers to a care provider facility with a 

physically secure structure and staff 

responsible for controlling violent 

behavior. ORR contracts with and 

provides grants to State and local 

juvenile facilities to house a small 

percentage of UCs that pose a danger to 

self or others or have been charged with 

having committed a serious criminal 

offense. 

‘‘Sex’’ refers to a person’s biological 

status and is typically categorized as 

male, female, or intersex. There are a 

number of indicators of biological sex, 

including sex chromosomes, gonads, 

internal reproductive organs, and 

external genitalia. 

‘‘Sexual Assault Forensic Examiner’’ 

(SAFE) refers to a ‘‘medical 

practitioner’’ who has specialized 

forensic training in treating sexual 

assault victims and conducting forensic 

medical examinations. 

‘‘Sexual Assault Nurse Examiner’’ 

(SANE) refers to a registered nurse who 

has specialized forensic training in 

treating sexual assault victims and 

conducting forensic medical 

examinations. 

The definition for ‘‘sexual 

harassment’’ was modified to include 

harassment via phone calls, emails, 

texts, social media messages, pictures 

sent or shown, and other electronic 

communications in addition to verbal 

comments and gestures. 

‘‘Special needs’’ is defined in the rule 

as any mental and/or physical condition 

that requires special services and 

treatment by staff. 

‘‘Traditional foster care’’ refers to a 

type of care provider facility where a UC 

is placed with a family in a communitybased setting. The State or local licensed 

foster family is responsible for 

providing basic needs in addition to 

responsibilities as outlined by the State 

or local licensed child placement 

agency, State and local licensing 

regulations, and any ORR policies 

related to foster care. The UC attends 

public school and receives on-going 

case management and counseling 

services. The care provider facility 

facilitates the provision of additional 

psychiatric, psychological, or 

counseling referrals as needed. 

Traditional foster care may include 

transitional or short-term foster care as 

well as long-term foster care provider 

facilities. This type of placement is 

analogous to the domestic foster care 

system in the United States. 

The definition for an 

‘‘unaccompanied child’’ comes from 

section 462(g)(2) of the Homeland 

Security Act (Pub. L. 107–296). 

‘‘Youth care worker’’ as defined in 

this interim final rule refers to 

employees whose primary responsibility 

is for the supervision and monitoring of 

UCs at care provider facilities. Youth 

care workers are not law enforcement 

officers, but provide supervision 

analogous to supervisors at a domestic 

group home. 

Subpart A—Coverage 

Section 411.10 sets forth the 

applicability of this Part to all ORR care 

provider facilities. This Part covers the 

standards for detecting, preventing, and 

responding to sexual abuse and sexual 

harassment at care provider facilities as 

required under VAWA 2013 but 

excludes secure care provider facilities 

and traditional foster care homes. 

Secure care provider facilities are 

State and local juvenile confinement 

facilities that ORR contracts with or to 

whom ORR provides a grant to house a 

small population of UCs that pose a 

danger to self or others or have been 

charged with committing a serious 

criminal offense. ORR requires its 

secure care provider facilities to follow 

DOJ’s National Standards to Prevent, 

Detect, and Respond to Prison Rape, so 

they are not subject to this rule. 

Traditional foster care refers to 

community based foster care placements 

and services for UCs in ORR custody. 

UCs in traditional foster care reside in 

licensed foster homes, attend public 

school, and receive community-based 

services. Therefore, it is not practicable 

or necessary to extend the standards set 

forth here to traditional foster care 

homes, and they are excluded from this 

Part. UCs, however, may be placed in 

transitional foster care where they 

receive services at an ORR care provider 

facility but sleep in individual foster 

care homes at night. In these instances, 

the ORR care provider facility providing 

services to UCs during the day are 

subject to these standards but the foster 

home is not. 

The National Prison Rape Elimination 

Commission was created to make 

recommendations for confinement 

facilities where inmates do not have 

regular access to non-prison staff and 

opportunities to receive help from the 

outside community if they are sexually 

abused. UCs in foster homes, however, 

go to public schools, receive services in 

the community, and routinely interact 

with other adults outside the foster 

home who would be in a position to 

report suspected abuse or provide aid to 

the UC. All foster homes are also 

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77772 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Rules and Regulations 

licensed by State and local licensing 

authorities and are subject to licensing 

standards and reporting requirements. 

Under paragraph (b), emergency care 

provider facilities are subject to every 

section in this Part except: (1) section 

411.22(c); (2) section 411.71(b)(4); (3) 

section 411.101(b); (4) sections 

411.102(c), (d), and (e); and (5) Subpart 

L. Emergency care providers are 

typically opened during an influx of 

UCs. In these instances, emergency care 

provider facilities are quickly erected in 

order to meet the immediate shelter 

needs of UCs and include basic care 

services. The standards that exempt 

emergency care provider facilities all 

refer to data reporting, document 

retention, or audit requirements that 

cover a prolonged period of time. 

Emergency care provider facilities are 

temporary in nature and would not be 

able to provide data for prolonged 

periods of time, remain open long 

enough to retain documents, or remain 

open long enough to receive an audit. 

Instead of retaining documents for ten 

years, for example, the emergency 

capacity care provider would transfer all 

documents to ORR or another care 

provider facility when it closed. 

Generally, because emergency care 

provider facilities are opened in times of 

emergency and in a time-sensitive 

manner, it may not be possible for 

emergency care provider facilities to 

abide by the standards set forth in this 

rule immediately upon opening. 

Instead, emergency care provider 

facilities must implement the standards 

within fifteen (15) days of opening. The 

Director, however, may, using 

unreviewable discretion, also waive or 

modify a specific section for a particular 

emergency care provider facility for 

good cause, subject to an agreement in 

which the provider will be in 

compliance within the most rapid 

timeframe feasible. Good cause would 

only be found in cases where the 

temporary nature of the emergency care 

provider facility makes compliance with 

the provision impracticable or 

impossible, and the Director determines 

that the emergency care provider facility 

could not, without substantial difficulty, 

meet the provision in the absence of the 

waiver or modification. For example, it 

may be impracticable to implement 

certain provisions within fifteen (15) 

days at particular emergency care 

provider facilities and some may require 

additional time. 

Paragraph (c) states that for the 

purposes of this Part, the terms related 

to sexual abuse and sexual harassment 

refer specifically to the sexual abuse or 

sexual harassment of UCs that occur at 

an ORR care provider facility while in 

ORR care and custody. A number of UCs 

in ORR care have been sexually abused 

prior to entering ORR custody. ORR has 

clinicians and case workers on staff to 

work with UCs on these issues. For the 

purposes of the standards set forth here, 

however, incidents of past sexual abuse 

and sexual harassment or sexual abuse 

and sexual harassment that occur in any 

context outside of ORR care and custody 

are not within the scope of this 

regulation unless explicitly stated 

otherwise. 

Subpart B—Prevention Planning 

Section 411.11 covers the zero 

tolerance policy that ORR and all care 

provider facilities must have and the 

requirement that ORR and care provider 

facilities have a Prevention of Sexual 

Abuse Coordinator and a Compliance 

Manager, respectively. ORR is 

committed to a zero tolerance policy 

against sexual abuse and sexual 

harassment and will make every effort 

to ensure that UCs are safe and secure 

while in ORR care. Paragraphs (a) and 

(c) require ORR and care provider 

facilities to establish a zero tolerance 

policy toward all forms of sexual abuse 

and sexual harassment that outlines 

ORR and the care provider facility’s 

approach to preventing, detecting, and 

responding to such misconduct. ORR 

will review and approve each care 

provider facility’s written policy to 

ensure that the policies are in 

compliance with the standards set forth 

in this Part. Paragraphs (b) and (c) 

require ORR and care provider facilities 

to employ or designate an existing 

employee as a Prevention of Sexual 

Abuse (PSA) Coordinator and a 

Prevention of Sexual Abuse Compliance 

Manager, respectively. The PSA 

Compliance Manager does not need to 

be ‘‘management’’ but must have the 

time, access, and authority to question 

staff, managers, and supervisors in order 

to guide implementation of the care 

provider facility’s policies and 

procedures and effectuate change. The 

PSA Coordinator, however, must be an 

upper-level, ORR-wide position. Upperlevel refers to any position that has 

supervisory responsibilities and may 

conduct responsibilities ORR-wide. 

Section 411.12 (a), (b), and (c) require 

that all organizations that contract, 

grant, or sub-grant with ORR or a care 

provider facility that provides 

residential services to UCs must, as part 

of the contract or cooperative 

agreement, adopt and comply with the 

provisions set forth in this Part. In 

addition, all new contracts, contract 

renewals, and grants must have 

provisions that allow monitoring and 

evaluation of the contractor, grantee, or 

sub-grantee to ensure that they are 

complying with these provisions. 

Section 411.13 covers the standards 

for sufficient supervision and 

monitoring of UCs in order to prevent 

sexual abuse and sexual harassment. 

Ensuring staffing plans are sufficient 

and that the physical layout of a care 

provider facility does not place UCs at 

risk are important safeguards in 

preventing incidents of sexual abuse 

and sexual harassment. Paragraph (a) 

requires care provider facilities to 

develop, document, and make its best 

efforts to comply with a staffing plan 

that provides for adequate levels of 

staffing, and, where applicable under 

State and local licensing standards, 

video monitoring, to protect UCs from 

sexual abuse and sexual harassment. 

Staffing ratios should be as small as 

possible to allow for proper monitoring 

and supervision. All care provider 

facilities are highly encouraged to use 

video monitoring to supplement direct 

youth care worker supervision but must 

do so in accordance with State and local 

licensing standards. Paragraph (b) 

requires care provider facilities to 

consider the physical layout of the 

facility, the composition of the UC 

population, the prevalence of 

substantiated and unsubstantiated 

incidents of sexual abuse and sexual 

harassment, and any other relevant 

factors in determining adequate levels of 

supervision and determining the need 

for video monitoring. Video monitoring 

equipment, however, may not be placed 

in any bathroom, shower or bathing 

areas, or other area where UCs routinely 

undress. Care provider facilities are 

required to review the sexual abuse and 

sexual harassment incident reviews 

conducted in accordance with section 

411.101 when considering the factors 

listed in paragraph (b) of this section to 

determine adequate levels of staff 

supervision and the need for video 

monitoring. 

Many of ORR’s care provider facilities 

already have video monitoring 

capabilities; ORR understands, however, 

that such technology may not be 

financially feasible for all care provider 

facilities, nor is video monitoring 

permitted to the same extent under 

different State and local licensing 

standards. It is not possible for ORR to 

create one set of requirements for 

monitoring and supervising UCs for all 

care provider facilities but wants care 

provider facilities to make best efforts to 

meet and exceed the standards set forth. 

Paragraph (c) requires care provider 

facility staff, preferably supervisory 

staff, to conduct frequent unannounced 

rounds to monitor UCs and staff in order 

to identify and deter sexual abuse and 

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sexual harassment. Care provider 

facilities should conduct the 

unannounced rounds during all shifts, 

including both night and day shifts. 

Care provider facilities must prohibit 

staff from alerting other staff that rounds 

are occurring unless an announcement 

is related to the legitimate operational 

functions of the care provider facility. 

For example, before entering a restroom, 

staff must announce themselves to 

ensure the UC’s privacy. 

Section 411.14 governs the standards 

related to cross-gender viewing and 

searches. Generally, ORR care provider 

facilities rarely conduct pat-down 

searches. In accordance with State and 

local licensing standards, care provider 

staff are often restricted from physically 

restraining UCs except in very limited 

circumstances. ORR also discourages 

physically restraining UCs and, instead, 

encourages the use of de-escalation 

techniques. Paragraph (a) prohibits 

cross-gender pat-down searches except 

in exigent circumstances as defined in 

the definitions section. For a UC who 

identifies as transgender or intersex, the 

ORR care provider facility must ask the 

UC to identify the gender of staff with 

whom he/she would feel most 

comfortable conducting the search. 

Paragraph (b) requires care provider 

facilities to conduct all pat-down 

searches in the presence of one 

additional care provider facility staff 

member unless there are exigent 

circumstances, document any pat-down 

searches conducted, and report such 

searches to ORR in accordance with 

ORR policies and procedures. The care 

provider facility must explain in detail 

why a pat-down search was required, 

how it was conducted, who was present 

during the search, the circumstances of 

the situation, and the outcome of the 

search. Paragraph (c) prohibits all strip 

searches and visual body cavity 

searches of UCs. These types of searches 

are not necessary for the types of care 

provider facilities ORR has and are 

strictly prohibited. Paragraph (d) 

requires that care provider facilities 

allow UCs to shower, perform bodily 

functions, and change clothing without 

being viewed by any staff, except: in 

exigent circumstances; when such 

viewing is incidental to routine room 

checks; is otherwise appropriate in 

connection with a medical examination 

or medically-related monitored bowel 

movement; if a UC under age 6 needs 

assistance with such activities; if a UC 

with special needs is in need of 

assistance with such activities; or the 

UC requests and requires assistance. 

Care provider facilities may have UCs 

with special needs in their facilities 

who may not be able to perform bodily 

functions, clothe, or bathe themselves. 

In these cases, care provider facilities 

must provide a staff member of the same 

gender as the UC to assist with such 

activities. 

If the UC’s sex is unknown, paragraph 

(e) prohibits care provider facilities from 

searching or physically examining the 

UC for the sole purpose of determining 

the UC’s sex. Instead, care provider 

facility staff members should engage in 

conversations with the UC or review 

medical records. Staff must be culturally 

aware and sensitive to the UC when 

conducting such conversations. If 

necessary, care provider facilities may 

learn of a UC’s sex as part of a broader 

medical examination conducted in 

private by a medical practitioner. The 

medical examination may not be 

conducted for the sole purpose of 

determining the UC’s sex, but must be 

part of a broader medical examination 

conducted for other medical purposes. 

Paragraph (f) requires care provider 

facilities to train youth care worker staff 

in the proper procedure for conducting 

pat-down searches, including crossgender pat-down searches as well as 

searches of transgender and intersex 

UCs in a professional and respectful 

manner. Trainings should instruct youth 

care worker staff how to conduct a patdown search in the least intrusive 

manner possible and that is consistent 

with security needs and existing ORR 

policy, including consideration of youth 

care worker staff safety. 

Section 411.15 addresses the 

standards for the accommodation of UCs 

with disabilities and UCs who are 

limited English proficient. These 

standards are important for the UC 

population, as most UCs do not speak, 

read, or write English and may be 

illiterate. All care provider facilities 

have bilingual staff and are required to 

provide or access quality interpretation 

services, but it is important to take 

additional steps for UCs who do not 

speak the language of the majority of 

UCs. Paragraph (a) requires care 

provider facilities to take appropriate 

steps to ensure that UCs with 

disabilities have an equal opportunity to 

participate in or benefit from all aspects 

of the care provider’s efforts to prevent, 

detect, and respond to sexual abuse and 

sexual harassment. Disabilities include 

but are not limited to UCs who are deaf 

or hard of hearing, those who are blind 

or have low vision, or those who have 

intellectual, mental, or speech 

disabilities. Care provider facilities must 

take steps that include, when necessary 

to ensure effective communication with 

UCs who are deaf or hard of hearing, 

providing access to in-person, 

telephonic, or video interpretive 

services that enable effective, accurate, 

and impartial interpretation both 

receptively and expressively, using any 

necessary specialized vocabulary. Care 

provider facilities also must ensure that 

any written materials related to sexual 

abuse and sexual harassment are 

translated and provided in formats or 

through methods that ensure effective 

communication with UCs with 

disabilities, including UCs who have 

intellectual disabilities, limited reading 

skills, or who are blind or have low 

vision. Care provider facilities must 

ensure that all communication and 

services provided and related to the care 

provider facility’s prevention, detection, 

and response to sexual abuse and sexual 

harassment policies are available, 

understood, and accessible to all UCs. 

Paragraph (b) requires that all care 

provider facilities take appropriate steps 

to ensure that UC who are limited 

English proficient have an equal 

opportunity to participate in or benefit 

from all aspects of the care provider 

facility’s efforts to prevent, detect, and 

respond to sexual abuse and sexual 

harassment, including steps to provide 

quality in-person or telephonic 

interpretive services and quality 

translation services that enable effective, 

accurate, and impartial interpretation 

and translation, both receptively and 

expressively, using any necessary 

specialized vocabulary. Care provider 

facilities must provide services in a 

language appropriate to the UC and 

utilize qualified translators and 

translation services, as needed. All care 

provider facilities are required under 

ORR policies and procedures to have 

English and Spanish bilingual staff as 

well as access to qualified translators 

and translation services available for UC 

who speak a language other than 

English or Spanish. Upon admission to 

a care provider facility, care provider 

facility staff must assess and identify the 

language needs of each UC as part of the 

intake assessment process. Paragraph (c) 

requires care provider facilities to 

provide in-person or telephonic 

interpretation services that enable 

effective, accurate, and impartial 

interpretation by someone other than 

another UC in matters relating to 

allegations of sexual abuse and sexual 

harassment. Care provider facilities also 

must ensure that any written materials 

related to sexual abuse and sexual 

harassment, including notification, 

orientation, and instruction not 

provided by ORR, are translated either 

verbally or in written form into the 

preferred languages of UCs. Generally, 

ORR care provider facilities translate 

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into Spanish all documents provided to 

UC. If the unaccompanied child speaks 

a language other than English or 

Spanish, the document is verbally 

translated to the unaccompanied child 

using an in-person qualified translator 

or telephonic interpretation services. 

Section 411.16 covers standards for 

the hiring and promotion of care 

provider facility staff. In order to 

emphasize the importance of 

background checks for care provider 

facility staff, ORR sets forth standards 

for care provider facilities to follow 

regarding thorough background checks, 

periodically updating criminal 

background records checks, and creating 

an affirmative duty for staff to disclose 

misconduct in order to identify 

individuals who have committed, may 

have committed or are committing 

sexual misconduct. Generally, State and 

local licensing standards have strict 

requirements for background checks for 

all employees at a juvenile residential 

facility and have a list of crimes and 

offenses that bar applicants from 

employment. 

Paragraph (a) prohibits care provider 

facilities from hiring, promoting, or 

enlisting the services of any staff, 

contractor, or volunteer who may have 

contact with UCs and who has engaged 

in sexual abuse in a prison, jail, holding 

facility, community confinement 

facility, juvenile facility, other 

institution, or care provider facility; 

who has been convicted of engaging or 

attempting to engage in sexual activity 

facilitated by force, overt or implied 

threats of force, or coercion or if the 

victim did not consent or was unable to 

consent or refuse; or who has been 

civilly or administratively adjudicated 

to have engaged in such activity. 

Paragraph (b) places an affirmative duty 

on the care provider facilities to ask all 

applicants who may have contact with 

UCs considered for hire or promotion 

about previous misconduct described in 

paragraph (a) of this section. Care 

provider facilities must ask applicants 

either in written applications or during 

interviews for hiring or promotions. 

Care provider facilities also must ask 

current employees, regardless of 

whether the employee is eligible for a 

promotion, in interviews or written selfevaluations conducted as part of 

reviews of current employees about any 

misconduct described in paragraph (a). 

In addition, care provider facilities must 

impose upon all employees a continuing 

affirmative duty to disclose any such 

misconduct. Care provider facilities, 

consistent with law, must make their 

best efforts to contact all prior 

institutional employers of an applicant 

to obtain information on substantiated 

allegations of sexual abuse or sexual 

harassment or any resignation during a 

pending investigation of alleged sexual 

abuse or sexual harassment. 

Paragraph (c) requires care provider 

facilities to conduct a background 

investigation before hiring new staff 

who may have contact with UCs to 

determine whether the candidate is 

suitable for employment with minors in 

a residential setting. State and local 

licensing standards also require 

background investigations for all staff 

working at a child care facility, but the 

extent and scope of the background 

investigations differ State by State. At a 

minimum, ORR requires that 

background investigations include 

criminal background records checks, 

Child Protective Services checks, and 

periodic criminal background records 

check updates every five (5) years. The 

care provider facility should look at any 

convictions, administrative findings, or 

a history of offenses on a candidate’s 

background investigation to determine if 

a candidate would be suitable to work 

with children in a residential setting. 

Upon ORR request, the care provider 

facility must submit all background 

investigation documentation for each 

staff member and the care provider’s 

conclusions regarding the investigation. 

Paragraph (d) requires care provider 

facilities to also perform a background 

investigation for all potential 

contractors and volunteers who may 

have contact with UCs and provide 

documentation of those investigations 

and the care provider’s conclusions to 

ORR upon request. Paragraph (e) 

mandates all care provider facilities to 

conduct a criminal background records 

check at least every five years for 

current employees, contractors, and 

volunteers who may have contact with 

UCs or otherwise have a system in place 

to capture such information. Paragraph 

(f) states that material omissions by 

staff, contractors, or volunteers 

regarding such misconduct or the 

provision of materially false information 

by the applicant or staff will be grounds 

for termination or withdrawal of an offer 

of employment as appropriate. 

Paragraph (g) requires care provider 

facilities to provide information on 

substantiated allegations of sexual abuse 

or sexual harassment involving a former 

employee upon receiving a request from 

another care provider facility or 

institutional employer for whom such 

employee has applied to work, unless it 

is prohibited by law to provide such 

information. Paragraph (h) requires care 

provider facilities that contract with an 

organization to provide residential 

services and/or other services to UCs to 

require the contractor to also follow the 

requirements of this section for the 

organization and its staff. 

Section 411.17 covers the standards 

for care provider facilities when 

upgrading facilities and technologies. 

The purpose of this section is to ensure 

that care provider facilities take into 

account how physical and technological 

changes may affect a UC’s vulnerability 

to sexual abuse and sexual harassment 

and the care provider facility’s ability to 

protect the UC. Under paragraph (a), 

when a care provider facility is planning 

to design or acquire any new facility or 

make any substantial expansions or 

modifications of an existing facility, the 

care provider facility, as appropriate, 

must consider the effect of the design, 

acquisition, expansion, or modification 

on its ability to protect UCs from sexual 

abuse and sexual harassment. Under 

paragraph (b), when installing or 

updating a video monitoring system, 

electronic surveillance system, or other 

monitoring technology in a care 

provider facility, the care provider 

facility, as appropriate, must consider 

how such technology may enhance its 

ability to protect UCs from sexual abuse 

and sexual harassment. 

The NPREC recommends that 

facilities, generally, must use video 

monitoring systems and other costeffective and appropriate technology to 

supplement sexual abuse prevention, 

detection, and response efforts. ORR 

highly encourages but does not require 

care provider facilities to use video 

monitoring systems. However, ORR 

requires care provider facilities to 

consider the use of video monitoring in 

§ 411.13. ORR’s care provider facilities 

are subject to State and local licensing 

standards, which differ with regard to 

video monitoring and how it may be 

used. Most ORR care provider facilities 

already utilize video monitoring in 

some form, but it is also not financially 

feasible for all care provider facilities to 

have video monitoring systems. ORR 

care provider facilities have strong 

supervision ratios for UCs, which allows 

for proper monitoring and supervision 

even if there is no video monitoring. 

The NPREC also recommends that 

facilities assess, at least annually, the 

feasibility of and need for new or 

additional monitoring technology and 

develop a plan for securing such 

technology. ORR does not require an 

annual assessment, because video 

monitoring is not integral in care 

provider facilities to actually supervise 

UCs. Youth care worker staff ratios must 

be at or above State and local licensing 

standards for child residential facilities, 

which are very strong ratios. A typical 

State or local licensing required staffing 

ratio of adult youth care worker to UC 

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is 1:8 during the day and 1:12 at night. 

Video monitoring is also subject to State 

and local licensing standards. Although 

ORR strongly encourages all care 

provider facilities to use video 

monitoring technology and update it as 

necessary, State and local licensing 

standards and financial limitations may 

limit its use and continuous update to 

the latest technology, respectively. 

Subpart C—Responsive Planning 

Section 411.21 lists the 

responsibilities of care provider 

facilities with regard to victim 

advocacy, access to counselors, and 

forensic medical examinations. In order 

to provide crisis intervention and 

counseling services to meet the specific 

needs of sexual abuse and sexual 

harassment victims, paragraph (a) 

requires care provider facilities to 

develop procedures to best utilize 

community resources and services to 

provide expertise and support to UC 

victims. All care provider facilities must 

establish procedures to make available 

to UC victims outside victims services 

following incidents of sexual abuse and 

sexual harassment that occur within the 

care provider facility. The care provider 

facility must attempt to make available 

to the victim a victim advocate from a 

rape crisis center. If a rape crisis center 

is not available or if the UC prefers, the 

care provider facility must provide a 

licensed clinician on staff to provide 

crisis intervention and trauma services 

for the UC. However, staff members are 

not to conduct forensic examinations 

regardless of whether they are qualified 

or community-based staff members. The 

outside or internal victim advocate must 

provide, at a minimum, emotional 

support, crisis intervention, 

information, and referrals to the UC 

victim. 

When it is medically appropriate and 

necessary for evidence to be collected, 

paragraph (b) requires the care provider 

facility to arrange, with the UC’s 

consent, for an alleged UC victim to 

undergo a forensic medical examination 

as soon as possible and that is 

performed by Sexual Assault Forensic 

Examiners (SAFEs) or Sexual Assault 

Nurse Examiners (SANEs) where 

possible. If SAFEs or SANEs cannot be 

made available, the examination may be 

performed by a qualified medical 

practitioner. Care provider facility staff 

must inform UCs of the availability of 

forensic medical examinations and 

request their consent to have a forensic 

medical examination, where 

appropriate, completed as soon as 

possible after the incident. Paragraph (c) 

requires that, upon the UC victim’s 

request, the presence of his or her 

outside or internal victim advocate, 

including any available victim advocacy 

services offered at a hospital conducting 

a forensic examination, must be allowed 

to the extent possible for support during 

a forensic examination and investigatory 

interviews. Paragraph (d) requires that 

care provider facilities, to the extent 

possible, request that the investigating 

agency follow the requirements of 

paragraphs (a) through (c) of this section 

in order to provide for the needs of UCs. 

The NPREC recommends that the 

agency follow a uniform evidence 

protocol that maximizes the potential 

for obtaining usable physical evidence 

for administrative proceedings and 

criminal prosecutions. The 

recommendations go on to describe 

what to include in the protocol. Since 

ORR does not conduct administrative or 

criminal investigations, it does not 

include this recommendation. Instead, 

all allegations are referred to outside 

investigators, such as local law 

enforcement, Child Protective Services, 

and State and local licensing agencies, 

and the investigating agency collects 

any evidence as necessary. ORR does 

require in section 411.64 that first 

responders ensure that all crime scenes 

are preserved and protected until the 

appropriate authority arrives to collect 

any evidence. 

Section 411.22 sets standards to 

ensure that all allegations of sexual 

abuse and sexual harassment are 

investigated. ORR and care provider 

facilities must immediately report all 

allegations of sexual abuse and sexual 

harassment to outside investigating 

agencies as soon as an allegation is 

made. Such investigating agencies 

include local and State law 

enforcement, local and State Child 

Protective Services, and local and State 

licensing agencies. ORR and care 

provider facilities are not enforcement 

agencies and do not have the authority 

to conduct criminal investigations. 

Upon receiving an allegation, ORR will 

monitor and evaluate the care provider 

facility to ensure that ORR policies and 

procedures and relevant legal 

authorities were followed, including 

compliance with the standards set forth 

in this section, as well as any ways in 

which the facility might improve its 

practices and procedures. If the care 

provider failed to report an incident to 

the appropriate outside agencies, ORR 

will report any lapse in reporting to the 

local or State licensing agency, local or 

State Child Protective Services, and 

local or State law enforcement agency. 

If the care provider failed to report an 

incident to ORR or follow ORR policies 

and procedures, ORR will issue 

corrective actions and may terminate or 

suspend its grant or contract with the 

care provider facility for failing to 

comply with ORR requirements. ORR 

and care provider facilities do not 

conduct internal investigations 

regarding the substance of the 

allegation, because they do not want to 

interfere or influence an investigation 

by law enforcement, Child Protective 

Services, or the State or local licensing 

agency. 

Under paragraph (a), ORR and care 

provider facilities must ensure that 

every allegation of sexual abuse and 

sexual harassment is immediately 

referred to all appropriate investigating 

agencies, including law enforcement 

agencies, Child Protective Services, 

State or local licensing agencies, and to 

ORR according to ORR policies and 

procedures. All allegations must be 

referred for investigation regardless of 

how the allegation is reported or who 

makes the report, including reports from 

third-parties and anonymous reporters. 

Care provider facilities must remain 

informed of ongoing investigations and 

fully cooperate with outside 

investigators as necessary. Paragraph (b) 

requires care provider facilities to 

maintain or attempt to enter into a 

memorandum of understanding or other 

agreement with law enforcement 

agencies, with designated State or local 

Child Protective Services, and with the 

State or local licensing agency 

responsible for conducting sexual abuse 

and sexual harassment investigations, as 

appropriate. Care provider facilities are 

required to maintain a relationship with 

these agencies to ensure investigations 

are conducted and completed in a 

timely manner. Care provider facilities 

must maintain a copy of the agreement 

or documentation showing attempts to 

enter into an agreement. Paragraph (c) 

requires all care provider facilities to 

maintain documentation of all reports 

and referrals of allegations of sexual 

abuse and sexual harassment for at least 

ten years. 

Under paragraph (d), ORR will refer 

an allegation of sexual abuse to the 

Department of Justice or other 

investigating authority for further 

investigation where such reporting is in 

accordance with its policies and 

procedures and any memoranda of 

understanding. 

Under paragraph (e), allegations of 

sexual abuse that occur at emergency 

care provider facilities operated on 

Federal properties must be reported to 

the Department of Justice in accordance 

with ORR policies and procedures and 

any memoranda of understanding. 

Emergency care provider facilities 

operating on Federal properties and 

within Federal buildings may not be 

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subject to State or local licensing 

standards. 

The NPREC also recommends that 

facilities investigate all allegations of 

sexual abuse and ensure that 

investigations are carried through to 

completion, regardless of whether the 

alleged abuser or victim remains at the 

facility and regardless of whether the 

source of the allegation recants his or 

her allegation. ORR did not include this 

recommendation, because ORR does not 

conduct investigations regarding the 

substance of an allegation. Instead, as 

stated in the previous paragraphs, ORR 

requires that all care provider facilities 

refer all allegations, regardless of how 

an allegation is made or who it comes 

from, to the proper investigating 

authorities. ORR and care provider 

facilities have no control over whether 

law enforcement, Child Protective 

Services, or a State or local licensing 

agency conducts an investigation. Both 

ORR and care provider facilities, 

however, must attempt to remain 

informed of ongoing investigations and 

fully cooperate as necessary. ORR also 

will refer an allegation of sexual abuse 

to the Department of Justice or other 

investigating authority for further 

investigation where such reporting is in 

accordance with its policies and 

procedures and any memoranda of 

understanding. Additionally, ORR will 

monitor and evaluate the care provider 

facility to ensure that ORR policies and 

procedures and relevant legal 

authorities were followed, including 

compliance with the standards set forth 

in this section, as well as any ways in 

which the facility might improve its 

practices and procedures. 

The NPREC goes on to recommend 

that an agency maintain or attempt to 

enter into a written memorandum of 

understanding or other agreement with 

the authority responsible for 

prosecuting violations of criminal law 

as well as maintain documentation of 

such agreements. ORR does not include 

this standard in this rule, because ORR 

does not conduct administrative or 

criminal investigations. The 

investigating agency is in a better 

position to refer cases to prosecutors 

after completing an investigation and 

determining if there is sufficient 

evidence to refer a case to prosecuting 

authorities. 

Subpart D—Training and Education 

Section 411.31 covers the standards 

for training staff on sexual abuse and 

sexual harassment-related policies and 

procedures. Staff training is integral to 

implementing the standards in this 

Interim Final Rule and truly preventing, 

detecting, and properly responding to 

sexual abuse and sexual harassment. 

Paragraph (a) requires care provider 

facilities to train or require the training 

of all employees who may have contact 

with UCs on their responsibilities under 

these standards, including any medical 

or mental health care personnel who are 

staff members of the care provider. The 

NPREC recommends that employees 

receive training, including investigators. 

ORR does not require these trainings for 

investigators because neither ORR nor 

care provider facilities employ 

investigators. All allegations are referred 

to outside investigators. ORR will, 

however, encourage care provider 

facilities through its policies and 

procedures to make efforts to provide 

training for investigators and outside 

medical and mental health care 

practitioners not employed by care 

provider facilities. Training topics must 

include, at a minimum: the care 

provider facility’s zero tolerance 

policies for all forms of sexual abuse 

and sexual harassment; the right of UCs 

and staff to be free from sexual abuse 

and sexual harassment and from 

retaliation for reporting sexual abuse 

and sexual harassment; definitions and 

examples of prohibited and illegal 

sexual behavior; recognition of 

situations where sexual abuse or sexual 

harassment may occur; recognition of 

physical, behavioral, and emotional 

signs of sexual abuse and methods of 

preventing and responding to such 

occurrences; how to avoid inappropriate 

relationships with UCs; how to 

communicate effectively and 

professionally with UCs, including UCs 

who are lesbian, gay, bisexual, 

transgender, questioning, or intersex; 

procedures for reporting knowledge or 

suspicion of sexual abuse and sexual 

harassment as well as how to comply 

with relevant laws related to mandatory 

reporting; the requirement to limit 

reporting of sexual abuse and sexual 

harassment to personnel with a need-toknow in order to make decisions 

concerning the victim’s welfare and for 

law enforcement or investigative 

purposes; cultural sensitivity toward 

diverse understandings of acceptable 

and unacceptable sexual behavior and 

appropriate terms and concepts to use 

when discussing sex, sexual abuse, and 

sexual harassment with a culturally 

diverse population; sensitivity and 

awareness regarding past trauma that 

may have been experienced by UCs; and 

knowledge of all existing resources for 

UCs both inside and outside the care 

provider facility that provide treatment 

and counseling for trauma and legal 

advocacy for victims. Paragraph (b) 

requires that these trainings be 

completed within six months of the 

effective date of these standards, and 

care provider facilities must provide 

refresher training and information as 

appropriate. Under paragraph (c), care 

provider facilities must document that 

staff and employees who may have 

contact with UCs have completed the 

training. 

Section 411.32 discusses the 

standards for volunteer and contractor 

training on sexual abuse and sexual 

harassment-related policies and 

procedures. As stated in the previous 

section, volunteer and contractor 

training is incredibly important in 

implementing the standards in this 

Interim Final Rule. In particular, 

volunteers and contractors may not be 

familiar with standard child welfare 

practices and sexual abuse and sexual 

harassment issues, so it is important to 

provide complete and thorough training 

to any volunteer or contractor who may 

have contact with UCs. Paragraph (a) 

requires care provider facilities to 

ensure that all volunteers and 

contractors who may have contact with 

UCs are trained on their responsibilities 

under the care provider facility’s sexual 

abuse and sexual harassment 

prevention, detection, and response 

policies and procedures as well as any 

relevant Federal, State, and local laws. 

Paragraph (b) allows care provider 

facilities to decide the level and type of 

training that is provided to volunteers 

and contractors based on the services 

they provide and the level of contact 

they will have with UCs. All care 

provider facilities, however, must 

provide all volunteer and contractors 

with training on the care provider 

facility’s zero tolerance policies and 

procedures regarding sexual abuse and 

sexual harassment and inform them on 

how to report such incidents. Paragraph 

(c) requires care provider facilities to 

maintain written documentation that 

contractors and volunteers who may 

have contact with UCs have completed 

the required training. 

Section 411.33 addresses the 

requirements for educating UCs on the 

care provider facility’s zero tolerance 

policies. ORR realizes that UCs are 

minors who may not understand what 

sexual abuse or sexual harassment are, 

so educating UCs is an important 

component that is of the utmost 

importance to preventing sexual abuse 

and sexual harassment. Additionally, 

care provider facilities must ensure that 

the orientation is provided in such a 

way that the UC comprehends what he/ 

she is being told or given. 

ORR requires under paragraph (a) that 

all care provider facilities must ensure 

that during the orientation and 

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periodically thereafter UCs are notified 

and informed of the care provider 

facility’s zero tolerance policies for all 

forms of sexual abuse and sexual 

harassment in an age and culturally 

appropriate fashion and in accordance 

with section 411.15. At a minimum, the 

orientation on the care provider 

facility’s zero tolerance policy must 

include an explanation of the UC’s right 

to be free from sexual abuse and sexual 

harassment as well as the UC’s right to 

be free from retaliation for reporting 

such incidents; definitions and 

examples of UC-on-UC sexual abuse, 

staff-on-UC sexual abuse, coercive 

sexual activity, appropriate and 

inappropriate relationships, and sexual 

harassment; an explanation of the 

methods for reporting sexual abuse and 

sexual harassment, including to any 

staff member, outside entity, and to 

ORR; and an explanation of a UC’s right 

to receive treatment and counseling if 

the UC was subject to sexual abuse or 

sexual harassment. Paragraph (b) 

requires all care provider facilities to 

provide notification, orientation, and 

instruction in formats accessible to all 

UCs at a time and in a manner that is 

separate from information provided 

about their immigration cases. Although 

care provider facilities do not discuss 

immigration case details with the UC, 

and ORR is a neutral party in relation 

to a child’s removal proceedings, ORR 

wants to ensure that any discussion 

regarding a UC’s immigration status 

remains separate from the explanation 

of a care provider facility’s sexual abuse 

and sexual harassment-related policies 

and procedures. This is to avoid any 

risk that the UC will think that sexual 

harassment or sexual abuse-related 

reporting, assistance, or any other 

related activity could impact his/her 

immigration case. 

Care provider facilities under 

paragraph (c) are required to document 

all UCs’ participation in orientation and 

periodic refresher sessions that address 

the care provider facility’s zero 

tolerance policies. 

In addition to the orientation session, 

care provider facilities also must post 

information in accordance with section 

411.15 on all housing unit bulletin 

boards about who a UC can contact if he 

or she has been a victim of sexual abuse 

or sexual harassment or is believed to be 

at imminent risk of sexual abuse or 

sexual harassment under paragraph (d). 

Under paragraph (e) care provider 

facilities also must make available and 

distribute to all UCs a pamphlet in 

accordance with section 411.15 that 

contains, at a minimum, the following: 

notice of the care provider facility’s zero 

tolerance policy toward sexual abuse 

and sexual harassment; the care 

provider facility’s policies and 

procedures related to sexual abuse and 

sexual harassment; information on how 

to report an incident of sexual abuse or 

sexual harassment; the UC’s rights and 

responsibilities related to sexual abuse 

and sexual harassment; how to contact 

organizations in the community that 

provide sexual abuse and sexual 

harassment counseling and legal 

advocacy for UC victims of sexual abuse 

and sexual harassment; and how to 

contact diplomatic or consular 

personnel. UCs, upon entering a care 

provider facility and receiving an 

orientation, may not remember every 

piece of information provided, so it is 

important to post and distribute 

pamphlets to ensure UCs are always 

informed. 

The NPREC recommends that the 

pamphlet also include information on 

how to contact the Office for Civil 

Rights and Civil Liberties (OCRCL) as 

well as the Office of the Inspector 

General (OIG) at DHS. ORR does not 

include the contact information for 

OCRCL and OIG at DHS, because UCs 

are in the care and custody of HHS and 

not DHS. ORR also does not include the 

contact information for OCRCL and OIG 

at HHS, because the two offices do not 

function like their counterparts at DHS. 

OIG, for example, does not have the 

capacity to receive UC reports 24 hours 

a day in order to immediately refer any 

UC reports it receives. ORR, instead, 

provides that an outside agency may 

receive reports of sexual abuse and 

sexual harassment, and UCs may always 

contact diplomatic or consular 

personnel. In addition, UCs may always 

directly contact ORR 24-hours a day. 

The pamphlet will include contact 

information for care provider facility 

staff, ORR, the outside agency, and 

diplomatic and consular personnel. 

The NPREC also recommended that 

sexual abuse education be provided by 

a qualified individual with experience 

communicating about these issues with 

a diverse population. ORR does not 

explicitly include the requirement that 

an individual have experience 

communicating about these issues with 

a diverse population in this section, 

because all policies and services related 

to this rule must be implemented in a 

culturally-sensitive and knowledgeable 

manner that is tailored for a diverse 

population under section 411.11. In 

addition, section 411.15 requires that 

care provider facilities ensure 

meaningful access to all aspects of the 

care provider facility’s sexual abuse and 

sexual harassment policies to UCs who 

are limited English proficient. Further, 

section 411.31 requires all care provider 

facility staff who may have contact with 

UCs to receive training on, among other 

things, cultural sensitivity and 

effectively communicating with UCs 

who are LGBTQI. 

Section 411.34 covers the specialized 

training required of medical and mental 

health care staff employed or contracted 

by care provider facilities. This standard 

does not include medical and mental 

health professionals utilized in the 

community and at local hospitals not 

contracted or employed by care provider 

facilities. Under paragraph (a), all 

medical and mental health care staff 

employed or contracted by care provider 

facilities must be specially trained, at a 

minimum, on the following topics: how 

to detect and assess signs of sexual 

abuse and sexual harassment; how to 

respond effectively and professionally 

to victims of sexual abuse and sexual 

harassment; how and to whom to report 

allegations or suspicions of sexual abuse 

and sexual harassment; and how to 

preserve physical evidence of sexual 

abuse. If medical staff intend to conduct 

forensic examinations, they must 

receive specific training to conduct such 

examinations prior to conducting them. 

Care provider facilities must document 

that medical and mental health 

practitioners employed or contracted by 

the care provider facility received the 

training referenced in this section under 

paragraph (b). Paragraph (c) clarifies 

that medical and mental health 

practitioners employed or contracted by 

the care provider facility must receive 

the training outlined in this section in 

addition to the training mandated for all 

care provider facility employees under 

section 411.31 or for contractors and 

volunteers under section 411.32, 

depending on the practitioner’s status at 

the care provider facility. 

The NPREC recommends that the 

agency also provide specialized training 

for investigators conducting sexual 

abuse investigations. Because ORR 

refers all allegations to outside 

investigators, however, ORR did not 

include this standard. 

Subpart E—Assessment for Risk of 

Sexual Victimization and Abusiveness 

Section 411.41 requires care provider 

facilities to assess UCs who may be at 

risk of being sexually abused or 

harassed or abusing or harassing others. 

Under paragraph (a), within 72 hours of 

a UC’s arrival at a care provider facility, 

care provider facilities must obtain and 

use information about each UC’s 

personal history and behavior to reduce 

the risk of sexual abuse or sexual 

harassment by or upon a UC. In 

addition, care provider facilities must 

periodically reassess the UC throughout 

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a UC’s stay at the care provider facility. 

Paragraph (b) requires that the care 

provider facility’s assessment of UCs for 

risk of sexual victimization and 

abusiveness must include consideration, 

at a minimum and to the extent that the 

information is available, the following 

criteria: prior sexual victimization or 

abusiveness; any gender nonconforming 

appearance or manner or identification 

as lesbian, gay, bisexual, transgender, 

questioning, or intersex and whether the 

UC may therefore be vulnerable to 

sexual abuse or sexual harassment; any 

current charges and offense history; age; 

any mental, physical, or developmental 

disability or illness; level of emotional 

and cognitive development; physical 

size and stature; the UC’s own 

perception of vulnerability; and any 

other specific information about an 

individual UC that may indicate 

heightened needs for supervision, 

additional safety precautions, or 

separation from certain other UCs. 

Paragraph (c) states that the care 

provider facility must obtain the 

information listed in paragraph (b) of 

this section through conversations with 

the UC during the intake process and 

medical and mental health screenings; 

during classification assessments; and 

by reviewing court records, case files, 

care provider facility behavioral records, 

and other relevant documentation from 

the UC’s files. Only trained staff are 

permitted to talk with UCs to gather 

information specifically about their 

sexual orientation or gender identity, 

prior sexual victimization, history of 

engaging in sexual abuse, mental health 

status, and mental disabilities for the 

purposes of the assessment required 

under paragraph (a) of this section. Care 

provider facilities must provide UCs 

with an opportunity to discuss any 

safety concerns or sensitive issues 

privately. Under paragraph (d), care 

provider facilities must take appropriate 

steps and implement controls on the 

dissemination within the care provider 

facility of responses to questions asked 

pursuant to the standard set forth in this 

section in order to ensure that sensitive 

information is not exploited to the UC’s 

detriment by staff or other UCs. 

The NPREC also recommends that the 

facility make every reasonable effort to 

obtain institutional and criminal records 

of immigration detainees in its custody 

prior to screening for risk of 

victimization and abusiveness. It also 

recommends that screenings be 

conducted by employees who are 

culturally competent. As part of ORR’s 

placement procedures, all UCs placed in 

ORR custody must be referred by a 

federal agency. DHS provides almost all 

referrals of UCs to ORR and will provide 

any U.S. criminal records of UCs when 

referring them. Therefore, ORR did not 

include this standard, because any 

existing U.S. criminal records are 

already transferred to ORR when a UC 

is placed in its care. UCs may also have 

a criminal record in a country outside 

the U.S., but those records take time to 

collect since they come from 

INTERPOL. INTERPOL is the world’s 

largest international police organization, 

with 190 member countries. It ensures 

that police around the world have 

access to the tools and services 

necessary to do their jobs effectively, 

including access to criminal records in 

various countries. It would not be 

feasible to obtain non U.S. records 

within 72 hours as required under 

section 411.41. 

Section 411.42 explains how care 

provider facilities are required to use 

the assessment completed in section 

411.41. Paragraph (a) requires care 

provider facilities to use the information 

gathered from the assessment completed 

under section 411.41 to inform the 

assignment of UCs to housing, 

education, recreation, and other 

activities and services. Instead of 

making generalized decisions for groups 

of UCs, care provider facilities must 

make an individualized determination 

for each UC to ensure the UC’s safety 

and health. 

One-on-one supervision in ORR care 

provider facilities does not refer to the 

type of solitary confinement used by 

prisons. UCs are not forced to remain 

alone and in locked rooms. Instead, oneon-one supervision refers to direct lineof-sight supervision at all times. 

Paragraph (b) states that care provider 

facilities may not place UCs on one-onone supervision as a result of the 

assessment unless there are exigent 

circumstances that require it to keep the 

UC, other UCs, or staff safe. A UC may 

only be placed on one-on-one 

supervision until an alternative means 

of keeping all residents and staff safe 

can be arranged. A UC who is on oneon-one supervision for his/her safety 

must still receive all required services, 

including but not limited to, daily largemuscle exercise, required educational 

programming, and social services, when 

possible and reasonable under the 

circumstance. UCs on one-on-one 

supervision must receive daily visits 

from a medical practitioner or mental 

health care clinician as necessary. The 

medical practitioner or mental health 

care clinician may decide based on the 

needs of the UC that daily visit are not 

required, but he/she must continue to 

meet with the UC on a regular basis 

while the UC is on one-on-one 

supervision. UCs, however, should 

generally not be placed on one-on-one 

supervision for a period of days or 

weeks. Exigent circumstances should be 

resolved as soon as possible and once 

safety is restored, UCs should no longer 

be supervised one-on-one. 

When making assessment and 

housing assignments for a transgender 

or intersex UCs, paragraph (c) requires 

care provider facilities to consider the 

UC’s gender self-identification and an 

assessment of the effects of placement 

on the UC’s health and safety. The care 

provider facility must consult a medical 

or mental health professional as soon as 

practicable on this assessment, but the 

care provider facility should not base 

housing assignment decisions of 

transgender or intersex UCs solely on 

the identity document or physical 

anatomy of the UC. An identity 

document may include but is not 

limited to U.S. and foreign government 

documentation, such as DHS forms 

provided when a UC is referred to ORR, 

birth certificates, and other official 

documentation stating the UC’s sex. A 

UC’s self-identification of his/her 

gender and self-assessment of safety 

needs must always be taken into 

consideration unless State and local 

licensing standards require otherwise. 

Some State and local licensing 

standards have specific requirements for 

the housing of transgender or intersex 

UC. In such cases, care provider 

facilities must follow State and local 

licensing requirements. Care provider 

facilities must regularly reassess the 

housing and programming assignments 

of each transgender or intersex UCs to 

review any threats to safety experienced 

by the UC. 

The NPREC recommended that 

facilities that house both inmates and 

immigration detainees house all 

immigration detainees separately from 

other inmates in the facility. ORR did 

not include this standard, because it is 

not applicable for ORR care provider 

facilities. Immigration detainees housed 

by DHS may be placed in jails or 

lockups, which is why the NPREC 

makes this recommendation. ORR, 

however, places UCs at residential 

shelters that may also house domestic 

children, but the domestic children are 

not inmates or at the care provider 

facility because of criminal or 

delinquent acts. Domestic children at 

care provider facilities are typically 

minors in the domestic child welfare 

system and are often orphaned, 

separated from parents, or pregnant 

teens. 

ORR does have a policy for care 

provider facilities to house UCs separate 

from domestic populations, if the care 

provider facility also houses domestic 

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populations. Generally, most UCs are 

housed separately, but there are 

exceptions to this policy. For example, 

ORR allows mixing of domestic minors 

and UCs in specialized placements, 

such as at residential treatment centers. 

In these care provider facilities, there is 

a higher level of supervision and care, 

and it is not feasible to separate the two 

populations, because there are a very 

small number of UCs at these care 

provider facilities. ORR does not want 

to effectively isolate UCs in that way. 

Subpart F—Reporting 

Section 411.51 discusses care 

provider facility requirements regarding 

the ability of UCs to report sexual abuse 

and sexual harassment and any 

retaliatory actions resulting from 

reporting sexual abuse and sexual 

harassment. The ability of UCs to freely 

and immediately report sexual abuse 

and sexual harassment is essential for 

their protection and safety. ORR is 

committed to providing easily 

accessible methods for UCs to make 

reports. Paragraph (a) requires that care 

provider facilities develop policies and 

procedures for UCs to have multiple 

ways to report sexual abuse and sexual 

harassment, retaliation for reporting 

sexual abuse and sexual harassment, 

and staff neglect or violations of 

responsibilities that may have 

contributed to such incidents to the care 

provider. The care provider facility also 

must provide access to and instructions 

on how UCs can contact their consular 

official, ORR’s headquarters, and an 

outside entity to confidentially, and, if 

desired, anonymously report these 

incidents. Instructions on how to 

contact consular officials should 

include a list of phone numbers, and 

UCs must be provided access to 

telephones with free, preprogrammed 

numbers for ORR headquarters and the 

outside entity designated under section 

411.51(b). 

Under paragraph (b), care provider 

facilities also must provide and inform 

the UC of at least one way for UCs to 

report sexual abuse and sexual 

harassment to an entity or office that is 

not part of the care provider facility and 

is able to receive and immediately 

forward UC reports of sexual abuse and 

sexual harassment to ORR officials, 

allowing UCs to remain anonymous 

upon request. For example, care 

provider facilities may collaborate with 

rape crisis centers or local nonprofit 

organizations to receive UC reports of 

sexual abuse and sexual harassment that 

can be directly forwarded to law 

enforcement and ORR. The care 

provider facility must also maintain or 

attempt to enter into a memorandum of 

understanding or other agreement with 

the entity or office and maintain copies 

of agreements or documentation 

showing attempts to enter into 

agreements. The care provider facility’s 

policies and procedures under 

paragraph (c) also must include 

provisions for staff to accept reports 

made verbally, in writing, anonymously, 

and from third parties. Staff must 

promptly document any verbal reports. 

Paragraph (d) requires all allegations of 

sexual abuse and sexual harassment by 

staff or UCs to be immediately reported 

to ORR according to ORR’s policies and 

procedures. 

The NPREC recommends that 

facilities provide access to telephones 

with free, preprogrammed numbers to 

the DHS Office for Civil Rights and Civil 

Liberties (CRCL) and Office of the 

Inspector General (OIG). ORR did not 

include this requirement, because UCs 

are in the care and custody of ORR and 

not of DHS. ORR also did not include 

a requirement to provide 

preprogrammed numbers to HHS’ CRCL 

and OIG, because they do not function 

in the same manner that DHS’ offices 

do. HHS’ CRCL and OIG do not have the 

capacity to accept reports from UCs on 

a 24-hour basis. ORR, however, provides 

UCs the opportunity to report to care 

provider facilities, ORR headquarters, 

and to an outside agency. UCs will have 

access to telephones with free, 

preprogrammed numbers for ORR 

headquarters and the outside entity 

designated under section 411.51(b). 

Section 411.52 addresses 

requirements for a care provider’s 

grievance policies and procedures. The 

grievance process is another method 

through which UCs may make reports of 

sexual abuse and sexual harassment. 

Paragraph (a) requires care provider 

facilities to implement written policies 

and procedures for identifying and 

handling time-sensitive grievances that 

involve an immediate threat to UC 

health, safety, or welfare related to 

sexual abuse and sexual harassment. All 

such grievances must be reported to 

ORR and responded to immediately. 

Paragraph (b) requires care provider 

facility staff to immediately notify 

medical or emergency services 

personnel if there is a UC medical 

emergency. Paragraph (c) requires care 

provider facilities to issue a written 

decision on the grievance within five (5) 

days of receipt of the grievance. 

Paragraph (d) states that UC may obtain 

assistance from other UCs, care provider 

facility staff, family members, or legal 

representatives to prepare a grievance; 

and care provider facilities must take 

reasonable steps to expedite requests for 

assistance from these other parties. 

Under State mandatory reporting 

requirements and section 411.51(d), if a 

care provider facility staff member 

assists the UC in filing a grievance and 

gains knowledge of sexual abuse or 

sexual harassment occurring at a care 

provider, he/she must also separately 

make a report to the appropriate law 

enforcement agency, Child Protective 

Services agency, State or local licensing 

agency, and ORR. If a third-party assists 

the UC, such as a family member or 

legal representative, and he/she has 

knowledge of sexual abuse and sexual 

harassment occurring at a care provider 

facility, he/she also may file reports of 

sexual abuse and sexual harassment 

with the appropriate law enforcement 

agency, Child Protective Services 

agency, State or local licensing agency, 

and with ORR. 

The NPREC recommends a specific 

procedure for the exhaustion of 

administrative remedies. ORR did not 

include this standard, because ORR 

does not require UCs to exhaust any 

type of administrative remedy before a 

care provider facility is required to take 

action in order to protect UCs or 

respond to any allegation of sexual 

abuse and sexual harassment. Care 

provider facilities must immediately 

respond to all allegations of sexual 

abuse and sexual harassment regardless 

of how the allegation is reported and 

also immediately refer the allegation to 

outside investigating agencies. The 

previous paragraph discussing 

grievances describes how grievances are 

to be filed and promptly responded to 

by care provider facilities. It does not 

require a UC to file a grievance before 

referring an allegation for investigation. 

It is simply one way for a UC to make 

a report of sexual abuse or sexual 

harassment, and ORR requires care 

provider facilities to have policies and 

procedures to ensure grievances are 

addressed in a timely and appropriate 

manner. 

Section 411.53 requires that care 

provider facilities provide UCs access to 

outside confidential support services. 

Although ORR care provider facilities 

have case managers and clinicians that 

work with individual UCs on an 

ongoing basis, care provider facilities 

also should provide UC victims of 

sexual abuse and sexual harassment 

access to outside community resources. 

If the alleged abuser is a clinician or 

case manager at the care provider 

facility, the UC should be able to access 

outside services and counsel. Paragraph 

(a) requires care provider facilities to 

utilize available community resources 

and services to provide support for a UC 

victim in the areas of crisis intervention, 

counseling, investigation, and the 

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prosecution of sexual abuse 

perpetrators. The care provider facility 

should maintain or try to enter into 

memoranda of understanding or other 

agreements with community service 

providers for immigrant victims of 

crime and maintain copies of its 

agreements or documentation showing 

attempts to enter into agreements. If 

such resources are available, care 

provider facilities must have written 

policies and procedures that include 

these outside agencies in the care 

provider facility’s sexual abuse and 

sexual harassment prevention and 

intervention protocols under paragraph 

(b). Finally, paragraph (c) requires care 

provider facilities to make available to 

UCs information about local 

organizations that can assist UCs who 

are victims of sexual abuse and sexual 

harassment, including mailing 

addresses and telephone numbers. The 

care provider facility must allow 

reasonable communication between the 

UC and these organizations and 

agencies in a confidential manner and 

inform the UC, prior to giving him/her 

access, of the extent to which such 

communications will be confidential. 

The NPREC recommends that the 

facility also provide UC with 

unimpeded access to their attorney or 

other legal representative and their 

families. ORR has incorporated this 

recommendation in section 411.55. 

The NPREC recommends that the 

outside service provider help victims of 

sexual abuse during their transition 

from incarceration to the community. 

UCs are not incarcerated like minors in 

juvenile delinquency facilities, so this 

standard was not included. ORR, 

however, does believe it is important to 

connect special needs or at-risk UCs 

with resources in the community once 

they are released. ORR provides postrelease services for certain UCs, which 

would include UC victims of sexual 

abuse and sexual harassment, in order 

to connect UCs and UC sponsors with 

resources in their community to assist 

with any needs a UC may have. This 

service helps UCs transition into the 

community in which they are released. 

Section 411.54 requires ORR to 

establish a method to receive third-party 

reports of sexual abuse and sexual 

harassment at care provider facilities. In 

addition, ORR is required to make 

available to the public information on 

how to report sexual abuse and sexual 

harassment on behalf of a UC. This is to 

allow parents, family members, friends, 

and anyone else to make a report on 

behalf of a UC. The NPREC recommends 

that at the conclusion of the 

investigation, the facility notify in 

writing the third-party individual who 

reported the abuse and the resident 

named in the third-party report of the 

outcome of the investigation. ORR 

makes efforts to notify all UCs that are 

the suspected victims of allegations of 

sexual abuse and sexual harassment of 

the outcome of the investigation under 

section 411.72. ORR, however, does not 

notify the third-party reporter of the 

outcome of the investigation in order to 

protect both the UC and an anonymous 

third-party reporter. A third-party 

reporter may be any individual with no 

relation to the UC. In order to protect 

the privacy of the UC, ORR will notify 

the UC of the result, and the UC may 

choose whether or not to notify the 

third-party of the results of the 

investigation. ORR will also accept 

anonymous third-party reports. In order 

to maintain the anonymous status of the 

reporter, ORR cannot provide the thirdparty notification of the outcome of the 

investigation. 

Section 411.55 requires care provider 

facilities to ensure that UCs have access 

to their attorneys or other legal 

representatives and families. Paragraph 

(a) states that care provider facilities 

must provide UCs with confidential 

access to their attorney or other legal 

representative in accordance with the 

care provider’s attorney-client visitation 

rules. A care provider’s attorney-client 

visitation rules typically include time 

and place restrictions and require the 

attorney or legal representative to 

provider proper identity documentation 

prior to allowing the attorney to 

communicate with the UC. Care 

provider facilities have these rules in 

order to decrease disruptions in the 

UC’s school and services schedule and 

to protect the UC’s safety and security. 

In the event of an emergency or exigent 

circumstance, such as an incident 

involving law enforcement or the need 

to make an informed decision regarding 

medical services, for example, care 

provider facilities are required to have 

rules that allow UCs immediate access 

to attorneys, whether in-person or via 

telephone. All attorneys, however, 

should provide proper identity 

documentation as well as 

documentation, such as an 

individualized representation agreement 

demonstrating they are the UC’s 

attorney, prior to gaining access to any 

UC. The care provider’s attorney-client 

visitation rules must be approved by 

ORR to ensure the rules are reasonable 

and appropriate and include emergency 

provisions. Care provider facilities must 

also provide a confidential space for 

UCs to meet or speak on the phone 

privately with their attorneys. 

Paragraph (b) requires care provider 

facilities to allow UCs access to their 

families, including legal guardians, 

unless ORR has documentation showing 

that certain individuals should not be 

provided access because of safety 

concerns. ORR, for example, may have 

documentation that a parent has abused 

his/her child and, therefore, care 

provider facilities may restrict that 

individual’s access to the UC if the 

parent poses a safety and security 

concern for the UC. 

Subpart G—Official Response Following 

a UC Report 

Section 411.61 covers reporting 

requirements for care provider facility 

staff. ORR takes seriously the 

responsibility to report incidents of 

sexual abuse and sexual harassment. In 

addition, most staff members at care 

provider facilities are considered 

mandatory reporters under State law, 

and, therefore, must ensure they report 

all allegations, incidents, and suspicions 

of sexual abuse and sexual harassment 

to all proper authorities under State and 

local law as well as under these 

standards. Consequently, if care 

provider facility staff are found to have 

knowledge or suspicion of sexual abuse 

or sexual harassment but have not 

reported it, the staff member will be 

subject to strict sanctions or corrective 

actions, up to and including termination 

of employment. ORR will also refer such 

cases to Child Protective Services and 

State and local licensing agencies. 

In addition to State and local 

mandatory reporting requirements, 

paragraph (a) requires that all care 

provider facility staff, volunteers, and 

contractors report immediately to ORR 

according to ORR policy and procedures 

and to State or local agencies in 

accordance with mandatory reporting 

laws: Any knowledge, suspicion, or 

information regarding an incident of 

sexual abuse or sexual harassment that 

occurred while a UC was in ORR care. 

All care provider facility staff, 

volunteers, and contractors also must 

report immediately any knowledge, 

suspicion, or information regarding 

retaliation against UCs or staff who 

reported an incident of sexual abuse or 

sexual harassment or any staff neglect or 

violation of responsibilities that may 

have contributed to an incident or 

retaliation. ORR must review and 

approve the care provider’s policies and 

procedures regarding reporting 

requirements to ensure that the care 

provider facility has appropriate 

reporting procedures. Paragraph (b) 

requires care provider facility staff to 

make sexual abuse and sexual 

harassment reports in accordance with 

ORR’s policies and procedures as well 

as the care provider’s policies and 

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procedures, as approved by ORR under 

section 411.11(c). Apart from the report, 

care provider facility staff must not 

reveal any information within the care 

provider facility related to a sexual 

abuse or sexual harassment report to 

anyone other than to the extent 

necessary to provide medical and 

mental health treatment, investigation, 

notice to law enforcement, or other 

security and management decisions 

under paragraph (c). This is to ensure 

that sexual abuse and sexual harassment 

reports are kept as confidential as 

possible to ensure the safety of the UC 

and/or staff member. Care provider 

facilities, however, must comply with 

all ORR requests for information 

regarding sexual abuse and sexual 

harassment allegations. 

Paragraph (d) requires care provider 

facility staff also to report any sexual 

abuse and sexual harassment allegations 

to the designated State or local services 

agency under applicable mandatory 

reporting laws in addition to law 

enforcement and the State or local 

licensing agency. Paragraph (e) requires 

that upon receiving an allegation of 

sexual abuse or sexual harassment, the 

care provider facility head or his or her 

designee must report the allegation to 

the alleged victim’s parents or legal 

guardians, unless ORR has evidence 

showing the parents or legal guardians 

should not be notified or the victim 

does not consent to this disclosure of 

information and is 14 years of age or 

older, and ORR has determined the 

victim is able to make an independent 

decision. For example, if parental rights 

or legal guardian rights have been 

legally terminated and ORR has 

documentation of such termination, care 

provider facilities should not notify the 

UC’s parent or legal guardian whose 

rights to the UC have been terminated. 

There may also be circumstances, for 

example, where ORR has evidence that 

a parent or legal guardian has abused a 

UC in the past and currently poses a 

danger to the safety and security of the 

UC. In such cases, ORR may choose not 

to notify a UC’s parent or legal guardian 

to protect the safety of the UC. If the UC 

victim does not consent to the 

disclosure of information to his/her 

parents or legal guardians and is 14 

years of age or older and ORR has 

determined the victim is able to make 

an independent decision, ORR will not 

require parental notification. If the UC 

is under 14 years of age, ORR will notify 

the UC’s parent or legal guardian of the 

allegation as long as there is no 

evidence to show that the parents or 

legal guardian should not be notified. 

ORR, along with DOJ and DHS, consider 

UC 14 years of age and older as capable 

of making certain decisions, such as 

submitting an application for 

immigration status to the U.S. 

Citizenship and Immigration Services 

and choosing an attorney and 

completing the form for attorneys to 

officially appear as a minor’s attorney or 

accredited representative in 

immigration court. If a minor may sign 

a form to retain a legal representative, 

then ORR will allow that minor to 

choose whether to disclose information 

to that attorney. Lastly, upon receiving 

an allegation of sexual abuse or sexual 

harassment that occurred while a UC 

was in ORR care, ORR will share this 

information with the UC’s attorney of 

record within 48 hours of learning of the 

allegation under paragraph (f) unless the 

UC does not consent to the disclosure of 

information and is 14 years of age or 

older and ORR has determined the 

victim is able to make an independent 

decision. Instead of requiring the care 

provider facility to notify the juvenile 

court or the victim’s judge of record, as 

recommended by the NPREC, ORR 

requires that the care provider facility 

notify the UC’s attorney of record. UCs 

are not in juvenile court proceedings. 

The NPREC also recommends that 

medical and mental health practitioners 

be required to report sexual abuse to 

designated supervisors and officials as 

well as to the designated State or local 

services agency and must inform 

residents of their duty to report at the 

initiation of services. ORR did not 

explicitly state this here, because all 

medical and mental health practitioners 

that are on staff or are a contractor of a 

care provider facility are required to 

report sexual abuse and sexual 

harassment like any other staff member 

under this section. Unlike a typical 

prison environment where medical and 

mental health practitioners may have 

different reporting structures and 

responsibilities under PREA than prison 

staff, medical and mental health 

practitioners in ORR care provider 

facilities are required to make reports in 

the same way that all other staff make 

reports. They are subject to all the 

requirements in this rule that apply to 

care provider facility staff. The medical 

and mental health practitioner is also 

bound by his/her professional 

responsibilities as a medical provider to 

make appropriate reports and provide 

disclosures, as appropriate. ORR does 

not distinguish between staff in making 

reports. All staff are required to report 

all suspicions. 

Section 411.62 requires care provider 

facilities to protect UCs from sexual 

abuse and sexual harassment. If a care 

provider facility employee, volunteer, or 

contractor reasonably believes that a UC 

is subject to substantial risk of imminent 

sexual abuse, he or she must 

immediately take action to protect the 

UC. Taking action may include, but is 

not limited to, reporting to care provider 

facility management, contacting a youth 

care worker, physically moving the 

endangered UC, and reporting 

suspicions and risks to both care 

provider facility management and ORR. 

Section 411.63 covers topics related to 

reporting allegations to other care 

provider facilities. Paragraph (a) 

requires that a care provider facility, 

upon receiving an allegation that a UC 

was sexually abused or sexually 

harassed while at another care provider 

facility, must immediately notify ORR 

no later than 24 hours after receiving the 

allegation. ORR will then notify the care 

provider facility where the alleged 

abuse or harassment occurred. Under 

paragraph (b), the care provider facility 

whose staff received the allegation must 

document that it provided notification 

of the allegation to ORR. Under 

paragraph (c), the care provider facility 

that receives notification that an 

allegation of sexual abuse or sexual 

harassment occurred at its facility must 

ensure that the allegation is referred for 

investigation in accordance with these 

standards and State and local law. 

Paragraph (d) requires that a care 

provider facility, upon receiving an 

allegation that a UC was sexually 

abused or sexually harassed while in 

DHS custody, must immediately notify 

ORR but no later than 24 hours after 

receiving an allegation. ORR will then 

report the allegation to DHS. The care 

provider facility must document under 

paragraph (e) that it provided ORR such 

notification. 

Section 411.64 outlines what duties 

are required for staff responding to an 

allegation of sexual abuse. Paragraph (a) 

outlines the requirements for the first 

care provider staff member to respond to 

a report of sexual abuse. The care 

provider facility staff member must 

separate the alleged victim and abuser; 

preserve and protect, to the greatest 

extent possible, any crime scene until 

the appropriate authorities can take 

steps to collect any evidence; if the 

abuse occurred within a time period 

that still allows for the collection of 

physical evidence, request that the 

alleged victim not take any actions that 

could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, 

drinking, or eating; and if the abuse 

occurred within a time period that still 

allows for the collection of physical 

evidence, request that the alleged abuser 

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and/or witnesses do not take any actions 

that could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, drinking 

or eating. The care provider facility staff 

member should request that such 

actions not be taken, but the staff 

member should not physically restrain 

any UCs from taking such actions. If for 

any reason evidence cannot be collected 

in a timely fashion and the UC requests 

to use the restroom, UCs should be 

allowed to urinate and defecate as 

needed. 

Section 411.65 requires care provider 

facilities to have a coordinated response 

to all allegations of sexual abuse that is 

immediate, efficient, and thorough. 

Paragraph (a) requires care provider 

facilities to develop a written 

institutional plan to coordinate actions 

taken by staff first responders, medical 

and mental health practitioners, outside 

investigators, victim advocates, and care 

provider facility leadership in response 

to an incident of sexual abuse to ensure 

that victims receive all necessary 

immediate and ongoing medical, mental 

health, and support services and that 

investigators are able to obtain usable 

evidence. ORR must review and make 

an approval decision on the written 

institutional plan to ensure it 

adequately addresses all concerns and is 

in accordance with ORR policies and 

procedures. Paragraph (b) requires care 

provider facilities to use a coordinated, 

multidisciplinary team approach to 

respond to sexual abuse. Under 

paragraph (c), if a victim of sexual abuse 

is transferred between ORR care 

provider facilities, ORR must, as 

permitted by law, inform the receiving 

care provider facility of the incident and 

the victim’s potential need for medical 

or social services. Under paragraph (d), 

if a victim of sexual abuse is transferred 

from an ORR care provider facility to a 

non-ORR facility or sponsor, ORR must, 

as permitted by law, inform the 

receiving care provider facility or 

sponsor of the incident and the victim’s 

potential need for medical or social 

services, unless the victims requests 

otherwise. 

Section 411.66 requires that ORR and 

care provider facility staff, contractors, 

and volunteers suspected of 

perpetrating sexual abuse or sexual 

harassment be immediately removed 

from all duties that would involve or 

allow access to UCs pending the 

outcome of an investigation. 

Section 411.67 addresses protections 

against retaliation. Care provider facility 

staff, contractors, and volunteers as well 

as UCs must not retaliate against any 

person, including a UC, who reports, 

complains about, or participates in an 

investigation into an allegation of sexual 

abuse or sexual harassment. Retaliation 

is absolutely prohibited and must be 

strongly addressed. For the remainder of 

the UC’s stay in ORR custody following 

a report of sexual abuse or sexual 

harassment, ORR and the care provider 

facility must monitor to see if there may 

be possible retaliation occurring by UCs 

or care provider facility staff. If there are 

suspicions of retaliation, the care 

provider facility must address the 

retaliation and remedy the situation. For 

example, ORR and the care provider 

facility staff should monitor UC 

disciplinary reports, housing or program 

changes, negative performance reviews, 

or reassignments of staff. Care provider 

facilities must discuss any changes with 

the appropriate UC or staff member as 

part of their efforts to determine if 

retaliation is taking place, and, when 

confirmed, immediately take steps to 

protect the UC or staff member. 

Section 411.68 addresses postallegation protection of UCs and staff. 

Under paragraph (a), care provider 

facilities must ensure that UC victims of 

sexual abuse and sexual harassment are 

placed in a supportive environment that 

provides the least restrictive housing 

option possible, subject to the 

requirements of 411.42. Paragraph (b) 

requires the care provider facility to 

employ multiple protection measures to 

ensure the safety and security of UC 

victims of sexual abuse and sexual 

harassment, including but not limited 

to: Housing changes or transfers for UC 

victims and/or abusers or harassers; 

removal of alleged UC abusers or 

harassers from contact with victims; and 

emotional support services for UCs or 

staff who fear retaliation for reporting 

sexual abuse and sexual harassment or 

cooperating with investigators. Under 

paragraph (c), a UC victim may be 

placed on one-on-one supervision in 

order to protect the UC. Before taking 

the UC off of one-on-one supervision, 

the care provider facility must complete 

a re-assessment taking into 

consideration any increased 

vulnerability of the UC as a result of the 

sexual abuse or sexual harassment. The 

re-assessment must be completed as 

soon as possible and without delay so 

that the UC is not on one-on-one 

supervision longer than is absolutely 

necessary for safety and security 

reasons. The UC should continue to 

receive all services, education, and 

recreation time while on one-on-one 

supervision to the greatest extent 

possible. 

The NPREC also recommends that 

DHS never remove from the country or 

transfer to another facility immigration 

detainees who report sexual abuse 

before the investigation of that abuse is 

completed. ORR did not incorporate 

these NPREC recommendations in its 

rule, because ORR has no control over 

the removal of UCs from the United 

States. That is a decision for DHS and 

the immigration courts. With regard to 

transfers, the NPREC’s report states that 

transfers disrupt a detainee’s complaint 

lodged against a DHS facility. Outside 

agencies investigate all allegations at 

ORR care provider facilities, and 

investigations should continue to 

completion regardless of whether a UC 

is transferred or not. If the UC is 

released from ORR care and custody, 

ORR care provider facilities should 

work with the investigating agencies to 

ensure the care provider facility follows 

any procedures necessary to continue 

cooperation with investigators once the 

release occurs. If the UC has a 

protracted stay in ORR care and custody 

and the investigating agency requests 

that a UC stay in the jurisdiction, ORR 

will make best efforts not to transfer the 

child to a different care provider 

facility. Once UCs are released from 

ORR care, ORR no longer has 

jurisdiction over the UC. ORR is not an 

enforcement agency and cannot monitor 

UCs in the community, but ORR will 

request that the law enforcement agency 

local to the care provider facility advise 

the UC on how to protect him- or herself 

once he/she is released either in the 

same jurisdiction or elsewhere. In 

addition, care provider facilities, as part 

of their agreements with investigating 

authorities as required under section 

411.22, will work with investigating 

authorities to request that investigations 

not be closed simply because a UC 

leaves the jurisdiction. 

Subpart H—ORR Incident Monitoring 

and Evaluation 

Section 411.71 discusses the 

requirements of ORR incident 

monitoring and evaluation after an 

allegation of sexual abuse or sexual 

harassment is made. The NPREC has 

recommended standards regarding the 

investigative agency’s duty to 

investigate to completion all allegations 

of sexual abuse, what to include in 

criminal and administrative 

investigations, and evidence standards 

for administrative investigations. Since 

ORR does not conduct criminal or 

administrative investigations, it did not 

include these standards. Instead, ORR 

monitors and evaluates care provider 

facilities on a regular basis to ensure 

they are following ORR policies and 

procedures as well as relevant legal 

authorities in accordance with their 

cooperative agreements or contract 

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terms. In addition, if an incident occurs, 

ORR will also monitor and evaluate a 

care provider facility to determine if 

ORR policies and procedures as well as 

relevant legal authorities were followed 

and what corrective actions, if any, are 

needed. ORR does not conduct criminal 

investigations, collect evidence, or 

investigate the substance of the 

allegation. All care provider facilities, 

except emergency care provider 

facilities not licensed by a State or local 

agency, are overseen by State or local 

licensing agencies and Child Protective 

Services who are required to investigate 

such allegations. As such, ORR is 

committed to ensuring that all 

allegations of sexual abuse and sexual 

harassment are referred to outside 

investigating agencies with the authority 

to conduct investigations. Under 

paragraph (a), upon receiving an 

allegation of sexual abuse or sexual 

harassment, ORR will monitor and 

evaluate the care provider facility to 

determine if the care provider facility 

did not comply with the requirements of 

this section or ORR policies and 

procedures. Once an outside 

investigation is completed, ORR must 

review any available completed 

investigation reports to determine 

whether additional monitoring and 

evaluation activities are required. 

Paragraph (b) also requires that ORR 

develop written policies and procedures 

for incident monitoring and evaluation 

of sexual abuse and sexual harassment 

allegations, including provisions 

requiring: (1) Reviewing prior 

complaints and reports of sexual abuse 

and sexual harassment involving the 

suspected perpetrator; (2) determining 

whether actions or failures to act at the 

care provider facility contributed to the 

abuse or harassment; (3) ensuring that 

all ORR policies and procedures or 

relevant legal authorities were followed; 

and (4) retention of such reports for as 

long as the alleged abuser or harasser is 

in ORR custody or employed by ORR or 

the care provider, plus ten years. 

Paragraph (c) requires ORR to ensure 

that its incident monitoring and 

evaluation does not interfere with any 

investigation conducted by State or 

local Child Protective Services, State or 

local licensing agencies, or law 

enforcement. Paragraph (d) requires that 

when outside agencies investigate an 

allegation of sexual abuse or sexual 

harassment, the care provider facility 

and ORR must fully cooperate with 

outside investigators. 

Section 411.72 requires that ORR 

must, when feasible, notify the UC of 

the result of the investigation if the UC 

is still in ORR care and custody 

following an investigation. If a UC is no 

longer in ORR custody when 

investigation results are provided, ORR 

must attempt to notify the UC of the 

results where feasible. ORR may use the 

contact information of the person, 

organization, or entity the UC was 

released to in attempting to contact the 

UC, but ORR is not required to locate a 

UC if he/she is no longer at the address 

where he/she was released. The NPREC 

also recommends that the agency notify 

other complainants or additional parties 

that were notified of the allegation of 

the outcome of the investigation. ORR 

modified this recommendation, because 

ORR is not the investigating agency. 

ORR would not always have contact 

information about any other 

complainants and cannot notify 

reporting parties if they were made 

anonymously. ORR does not have all the 

information that an investigating agency 

would have. Instead, ORR will 

encourage the investigating agency to 

notify other complainants, or additional 

parties notified of the allegation, of the 

outcome of the investigation. 

Subpart I—Interventions and Discipline 

Section 411.81 addresses disciplinary 

sanctions for care provider facility staff 

for violations of ORR or the care 

provider facility’s sexual abuse and 

sexual harassment-related policies and 

procedures. Paragraph (a) requires care 

provider facilities to take disciplinary 

action up to and including termination 

against any staff member with a 

substantiated allegation of sexual abuse 

or sexual harassment against them or for 

violating ORR or care provider facility’s 

sexual abuse and sexual harassment 

policies and procedures. For staff who 

engaged in sexual abuse or sexual 

harassment, termination must be the 

presumptive disciplinary sanction 

under paragraph (b). In addition, all 

terminations for violations of ORR or 

care provider facility sexual abuse and 

sexual harassment policies and 

procedures, or resignations by staff who 

would have been terminated if not for 

their resignation, must be reported to 

law enforcement agencies and to any 

relevant State or local licensing bodies. 

Under paragraph (d), any staff member 

with a substantiated allegation of sexual 

abuse or sexual harassment against him/ 

her at an ORR care provider facility is 

barred from employment at any ORR 

care provider facility. 

Section 411.82 discusses corrective 

actions for contractors and volunteers 

who engaged in sexual abuse or sexual 

harassment or violated ORR or the care 

provider facilities’ sexual abuse and 

sexual harassment-related policies and 

procedures. Under paragraph (a), any 

contractor or volunteer who is the 

subject of a substantiated allegation of 

sexual abuse or sexual harassment must 

be prohibited from working or 

volunteering at the care provider facility 

and at any ORR care provider facility. 

Paragraph (b) requires the care provider 

facility to take appropriate remedial 

measures and to consider whether to 

prohibit further contact with UCs by 

contractors or volunteers who have not 

engaged in sexual abuse or sexual 

harassment but have violated other 

provisions within these standards, ORR 

sexual abuse and sexual harassment 

policies and procedures, or the care 

provider’s sexual abuse and sexual 

harassment policies and procedures. 

Section 411.83 addresses 

interventions for UCs who engage in 

sexual abuse. UCs must receive 

appropriate interventions if they engage 

in UC-on-UC sexual abuse. Decisions 

regarding which types of interventions 

to use in particular cases, including 

treatment, counseling, or educational 

programs, are made with the goal of 

promoting improved behavior by the UC 

and ensuring the safety of other UCs and 

staff. Considering the age and 

background of the UC, the appropriate 

intervention plan should be created to 

encourage and assist the UC to improve 

his/her behavior. 

The NPREC made recommendations 

regarding the imposition of disciplinary 

sanctions after a finding that a UC 

engaged in sexual abuse. ORR, however, 

did not include these recommendations, 

because care provider facilities do not 

discipline UCs in a punitive manner. 

Incidents of UC-on-UC abuse are 

referred to all investigating authorities, 

including law enforcement entities, and 

a UC who poses a danger to him- or 

herself, to others, or the community may 

also be transferred to a higher level of 

care, such as a staff-secure or secure 

care provider facility. The decision to 

transfer, however, is not determined as 

a result of a disciplinary sanction but is 

determined based on safety concerns 

and the needs of the UC, as is any lateral 

transfer or transfer to a higher level of 

care. If necessary, a UC may also be 

transferred to a therapeutic care 

provider facility or residential treatment 

center if recommended by the care 

provider’s clinician and/or psychiatric 

assessment. ORR will always ensure 

that the UC victim is protected from the 

alleged perpetrator. This may include 

but is not limited to keeping the victim 

and alleged perpetrator physically 

separate and housed in separate parts of 

the care provider facility; laterally 

transferring a UC based on the UC’s 

needs; or transferring the alleged 

perpetrator to a higher-level of care if 

he/she continues to pose a danger to 

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him- or herself, to others, or the 

community. 

Rather than imposing disciplinary 

sanctions to control UC behavior, care 

provider facilities use positive 

reinforcement via a token economy 

system. UCs receive extra privileges or 

the ability to participate in extra 

activities, such as a movie night, when 

they exhibit positive or ‘‘good’’ 

behavior. UCs may not be able to 

participate in extra activities if they do 

not exhibit good behavior, but UCs 

never have services taken away nor are 

they ever placed in isolation for 

disciplinary reasons. 

Subpart J—Medical and Mental Health 

Care 

Section 411.91 addresses medical and 

mental health assessments and histories 

of sexual abuse. Under paragraph (a), if 

the assessment pursuant to section 

411.41 indicates that a UC experienced 

prior sexual victimization or perpetrated 

sexual abuse, the care provider facility 

must ensure that the UC is immediately 

referred to a qualified medical or mental 

health practitioner for medical and/or 

mental health follow-up as appropriate. 

Care provider facility staff must also 

ensure that all UCs disclosures are 

reported in accordance with these 

standards. All UCs in ORR care 

regularly meet with care provider 

facility clinicians and case managers. If, 

however, the UC requires a higher level 

of medical or mental health care as a 

result of past sexual victimization or 

perpetrated sexual abuse, the care 

provider facility will refer the UC to 

qualified medical or mental health 

providers. After a referral for medical or 

mental health follow-up is initiated, the 

care provider facility must ensure that 

the UC receives a health evaluation no 

later than seventy-two (72) hours after 

the referral under paragraph (b). If the 

referral is for a mental health follow-up, 

the care provider facility must ensure 

that the UC receives a mental health 

evaluation no later than 72 hours after 

the referral under paragraph (c). 

Section 411.92 covers access to 

emergency medical and mental health 

services. ORR provides regular and 

emergency medical and mental health 

care for all UCs in its care at all times, 

but the following standards are set forth 

to reiterate the importance of 

immediately providing medical services 

and crisis intervention services for 

sexual abuse victims. Regular medical, 

mental health, and crisis intervention 

services provided in the normal course 

of business are reported to ORR in 

accordance with its policies and 

procedures. Likewise, any medical, 

mental health, or crisis intervention 

services provided for sexual abuse 

victims must also be timely reported to 

ORR in accordance with ORR policies 

and procedures. Paragraph (a) requires 

care provider facilities to provide UCs 

who are victims of sexual abuse that 

occurred while in ORR care timely, 

unimpeded access to emergency 

medical treatment, crisis intervention 

services, emergency contraception, and 

sexually transmitted infections 

prophylaxis, in accordance with 

professionally accepted standards of 

care, where appropriate under medical 

or mental health professional standards. 

Such services must be reported to ORR 

in accordance with ORR’s policies and 

procedures. Paragraph (b) requires care 

provider facilities to provide victims 

access to all medical treatment and 

crisis intervention services regardless of 

whether the victim names the abuser or 

cooperates with any investigation 

arising out of the incident. UCs should 

receive immediate medical and mental 

health treatment any time that it is 

needed. The NPREC’s report made 

recommendations for when no qualified 

medical or mental health practitioner 

are on duty at the time a report of recent 

abuse is made. ORR did not include 

these standards, because if there is a 

medical emergency, care provider 

facilities take UCs to the local hospital 

emergency room. Unlike juvenile 

facilities that have their own medical 

staff because residents may not leave the 

facility premises, UCs do not have to 

receive their medical services at the 

residential care provider facility. UCs 

are often taken out in the community to 

see specialists, dentists, and in the case 

of emergencies, to the emergency room. 

ORR is mindful that some potential 

and existing grantees and contractors 

may have religious or moral objections 

to providing certain kinds of services, 

including referrals (for example, for 

emergency contraception). ORR is 

committed to providing resources and 

referrals for the full range of legally 

permissible services to UCs who need 

them, helping to facilitate access to 

these options, and doing so in a timely 

fashion and in a manner that respects 

the diverse religious and cultural 

backgrounds of UCs. At the same time, 

ORR is also committed to finding ways 

for organizations to partner with us, 

even if they object to providing specific 

services on religious grounds. 

The following are ways in which 

organizations with such objections may 

be able to participate in human services 

programs. (1) Serve as sub-grantees—In 

many cases, sub-grantees do not need to 

provide every service for which the 

grantee is responsible, so long as all UCs 

served have access to all services 

required under the grant in a timely and 

respectful manner. Grantees must 

ensure that their overall program 

provides all of the required services, but 

grantees can use sub-grantees to provide 

some services. Under this arrangement, 

as long as other sub-grantees are readily 

available to provide UCs with the 

objected-to services, a sub-grantee may 

participate in the grant program while 

declining to provide services to which 

they have a religious objection. (2) 

Apply in a consortium—A second 

possibility is for faith-based 

organizations to apply in a consortium 

with one or more partners. The 

consortium would allow for a division 

of responsibility consistent with each 

organization’s principles. Again, as long 

as UCs have timely access to all 

required services, different 

organizations could divide up the 

services provided. (3) Notify grantor—In 

some circumstances, another way in 

which the grantee could ensure access 

to any program services would be for 

the grantee to notify the federal program 

office responsible for the grant if a UC, 

who has been informed of the available 

services, may qualify for or be entitled 

to any program services, including 

referrals, to which the organization has 

a religious objection. It would then be 

the federal agency’s responsibility to 

secure the provision of the needed 

services, or, if appropriate, transfer the 

case to another provider. 

For example, if a UC requested 

emergency contraception but the grantee 

that housed the UC objected to 

providing such services on religious or 

moral grounds, the grantee need only 

provide notification to ORR in 

accordance with ORR policies and 

procedures that the UC requested such 

services. The grantee is not required to 

provide further information or services 

to the UC in relation to the UC’s request. 

Once notified, ORR would then have its 

Federal staff coordinate the provision of 

such services for the UC, and the 

grantee need only allow the UC access 

to the Federal staff member in order to 

provide the services. If necessary, the 

ORR staff member would also 

coordinate transportation to and from 

the location where the services are 

provided. 

All care provider facilities must 

provide for all the requirements under 

this subpart but the provision of the 

requirements are also subject to ORR’s 

faith-based policy language described 

above. ORR will consider any 

combination of the approaches 

described above and is specifically 

requesting public comment for other 

approaches that would accomplish the 

goal of ensuring that UCs have access to 

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a full range of services while enabling 

qualified faith-based organizations to 

participate in the delivery of those 

services in a manner consistent with 

their principles. ORR is committed to 

working with all grantee and contractors 

to fulfill their requirements under this 

rule in a manner that is respectful and 

sensitive to the grantee and contractor’s 

principles and beliefs. 

Section 411.93 addresses ongoing 

medical and mental health care for 

sexual abuse and sexual harassment 

victims and abusers. ORR provides 

regular medical care and mental health 

services, as stated in the last section, but 

these standards reiterate the importance 

of close, continued care for UC victims 

of sexual abuse and sexual harassment. 

Paragraph (a) requires care provider 

facilities to offer ongoing medical and 

mental health evaluations and treatment 

to all UCs who were sexually abused or 

sexually harassed while in ORR care 

and custody. In addition, the evaluation 

and treatment of such victims must 

include, as appropriate, follow-up 

services, treatment plans, and, when 

necessary, referrals for continued care 

following their transfer to or placement 

in other care provider facilities or their 

release from ORR care and custody 

under paragraph (b). Paragraph (c) 

requires care provider facilities to 

provide victims with medical and 

mental health services consistent with 

the community level of care. 

Under paragraph (d), care provider 

facilities must ensure that female UC 

victims of sexual abuse by a male abuser 

while in ORR care and custody are 

offered pregnancy tests, as necessary. If 

pregnancy results from an instance of 

sexual abuse, the care provider facility 

must ensure that the victim receives 

timely and comprehensive information 

about all lawful pregnancy-related 

medical services and timely access to all 

lawful pregnancy-related medical 

services. Care provider facilities must 

also ensure that all UC victims of sexual 

abuse that occurred while in ORR care 

and custody are offered tests for 

sexually transmitted infections as 

medically appropriate under paragraph 

(e). Under paragraph (f), care provider 

facilities must ensure that UC victims 

are provided access to treatment 

services regardless of whether the 

victim names the abuser or cooperates 

with any investigation arising out of the 

incident. Finally, paragraph (g) requires 

care provider facilities to attempt to 

conduct a mental health evaluation of 

all known UC-on-UC abusers within 

seventy-two (72) hours of learning of 

such abuse and/or abuse history and 

offer treatment when deemed 

appropriate by mental health 

practitioners. In order for UCs to make 

informed decisions regarding medical 

services, care provider facilities should 

engage the UC in discussions with 

family members or attorneys of record 

in accordance with section 411.55 to the 

extent practicable and follow the 

appropriate State laws regarding the age 

of consent for medical procedures. As 

discussed above (see pages 71–72), 

insofar as care provider facilities may 

have religious objections to making such 

services available, the Federal 

government, consistent with its faithbased policy, is open to considering 

options whereby UC would be informed 

of available services, and the care 

provider would meet its obligations by 

notifying the grantor of requests for 

services. 

The NPREC recommends that all 

immigration detainees are counseled 

about the immigration consequences of 

a positive HIV test at the time they are 

offered HIV testing. ORR did not 

include this standard, because the 

Department of Health and Human 

Services changed its regulations in 42 

CFR part 34 to remove HIV infection 

from the list of communicable diseases 

of public health significance that would 

make foreign nationals inadmissible to 

the United States. The new rule took 

effect on January 4, 2010, so the 

NPREC’s recommended standard is no 

longer applicable. 

Subpart K—Data Collection and Review 

Section 411.101 addresses the 

requirements to conduct sexual abuse 

and sexual harassment incident reviews. 

Sexual abuse and sexual harassment 

incident reviews are internal reviews 

completed by care provider facilities 

and are separate from sexual abuse and 

sexual harassment investigations, which 

are conducted by law enforcement, the 

Child Protective Services agency, and/or 

the State or local licensing agency. The 

main purpose of sexual abuse and 

sexual harassment incident reviews is to 

determine if the care provider facility’s 

policies and procedures could be 

improved or changed in light of the 

incident or allegation. Sexual abuse and 

sexual harassment incident reviews are 

conducted at the conclusion of an 

outside investigation and should not 

interfere with any ongoing 

investigations. Under paragraph (a), care 

provider facilities must conduct a 

sexual abuse or sexual harassment 

incident review at the conclusion of 

every investigation of sexual abuse and 

sexual harassment and prepare a written 

report if the allegation was either 

substantiated or unable to be 

substantiated, but not determined to be 

unfounded. The written report must 

evaluate whether the incident review 

and/or investigation indicates that a 

change in policy or practice could better 

prevent, detect, or respond to sexual 

abuse and sexual harassment. The care 

provider facility must implement the 

recommendations for improvement or 

must document its reason for not doing 

so in a written response. Both the report 

and response must be forwarded to 

ORR’s Prevention of Sexual Abuse 

Coordinator. Care provider facilities 

must also collect accurate, uniform data 

for every reported incident of sexual 

abuse and sexual harassment using a 

standardized instrument and set of 

definitions. Under paragraph (b), on an 

annual basis, the care provider facility 

must conduct a review of all sexual 

abuse and sexual harassment 

investigations and resulting incident 

reviews to assess and improve sexual 

abuse and sexual harassment detection, 

prevention, and response efforts. The 

results and findings of the annual 

review must be provided to ORR’s 

Prevention of Sexual Abuse 

Coordinator. The NPREC 

recommendation goes into specific 

detail regarding who is required to 

review the incident and what to review. 

Instead, ORR provides a standard that 

requires the care provider facility to 

determine if any policies or practices 

should be changed and to provide 

recommendations for improvement. 

Factors that the NPREC recommends 

facilities consider, such as racial 

motivation or group dynamics are not as 

relevant for ORR care provider facilities, 

because the population of UCs at any 

given care provider facility will change 

often, as UCs are released on an average 

after 35 days. 

Section 411.102 addresses data 

collection requirements. The purpose of 

this section is to regularly gather and 

report aggregated information to detect 

patterns so that future incidents may be 

prevented at care provider facilities. 

Paragraph (a) requires that care provider 

facilities maintain all case records 

associated with claims of sexual abuse 

and sexual harassment, including 

incident reports, investigative reports, 

offender information, case disposition, 

medical and counseling evaluation 

findings, and recommendations for postrelease treatment and/or counseling in 

accordance with these standards and 

applicable Federal and State laws and 

ORR policies and procedures. Under 

paragraph (b), the PSA Compliance 

Manager, on an ongoing basis, must 

work with the care provider facility 

management and ORR to share data 

regarding effective care provider facility 

response methods to sexual abuse and 

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sexual harassment. Paragraph (c) 

requires the PSA Compliance Manager 

to prepare a report for ORR on a 

quarterly basis that compiles 

information about incidents and 

allegation of sexual abuse and sexual 

harassment as well as ongoing 

investigations and other pending cases. 

Under paragraph (d), the PSA 

Compliance Manager must annually 

aggregate incident-based sexual abuse 

and sexual harassment data in his/her 

care provider facility and provide it to 

ORR from the previous year no later 

than August 31 of the next calendar 

year. 

The NPREC also recommends that 

facilities collect additional data 

whenever the immigration detainee is 

the victim or perpetrator of an incident 

of sexual abuse in custody. The 

additional incident-based data collected 

should indicate whether the victim and/ 

or perpetrator was an immigration 

detainee, his or her status at the 

initiation of the investigation, and his or 

her status at the conclusion of the 

investigation. ORR did not include this 

standard, because UCs are not in ORR 

custody for a long period of time. UCs 

have an average length of stay of 35 days 

in ORR care, and most immigration 

cases and investigations are still 

ongoing when a release occurs. Once a 

UC is released, ORR does not track or 

have the ability to collect immigration 

information regarding the UC. 

Therefore, ORR is not able to collect the 

type of information that the NPREC 

recommends. 

Section 411.103 covers how the 

collected data should be analyzed, 

reported, and used to prevent future 

incidents. Paragraph (a) requires that 

ORR review data collected and 

aggregated pursuant to sections 411.101 

and 411.102 in order to assess and 

improve the effectiveness of its sexual 

abuse and sexual harassment 

prevention, detection, and response 

policies, practices, and training. ORR’s 

assessment should include identifying 

problem areas, taking corrective actions 

on care provider facilities on an ongoing 

basis, and preparing an annual report of 

its findings and corrective actions for 

each care provider facility as well as 

ORR as a whole. Under paragraph (b), 

ORR’s report must include a comparison 

of the current year’s data and corrective 

actions with those from prior years. In 

addition, the report must provide an 

assessment of ORR’s progress in 

preventing, detecting, and responding to 

sexual abuse and sexual harassment. 

Paragraph (c) requires that the Director 

of ORR approve ORR’s annual report on 

ORR’s UC Program as a whole and make 

the report available to the public 

through its Web site or otherwise make 

the report readily available to the 

public. Paragraph (d) allows ORR to 

redact specific material from the reports 

when appropriate for safety and security 

but must indicate the nature of the 

material redacted when releasing the 

report to the public. 

Section 411.104 addresses how data 

related to sexual abuse and sexual 

harassment should be stored, published, 

and destroyed. ORR is committed to 

protecting the safety and security of all 

UCs in its care and custody and, 

therefore, must ensure that all data 

collected related to sexual abuse and 

sexual harassment is protected. Under 

paragraph (a), ORR must ensure that 

data collected pursuant to sections 

411.101 and 411.102 is securely 

retained in accordance with Federal and 

State laws and ORR record retention 

policies. Paragraph (b) requires that 

ORR make all aggregated sexual abuse 

and sexual harassment data from ORR 

care provider facilities with which it 

provides a grant to or contracts with 

available to the public at least annually 

on its Web site consistent with existing 

ORR information disclosure policies 

and procedures. The aggregated data 

excludes data from secure care 

providers, as those care provider 

facilities must follow the Department of 

Justice’s Standards to Prevent, Detect, 

and Respond to Prison Rape and will 

report to DOJ accordingly. Information 

regarding secure care providers will be 

available from DOJ. Also excluded from 

the aggregated data is information for 

traditional foster care providers. Before 

making any type of aggregated sexual 

abuse and sexual harassment data 

publicly available, however, ORR must 

remove all personal identifiers under 

paragraph (c). Paragraph (d) requires 

that ORR maintain sexual abuse and 

sexual harassment data for at least 10 

years after the date of its initial 

collection unless Federal, State, or local 

law requires the disposal of official 

information in less than 10 years. 

Subpart L—Audits and Corrective 

Action 

Section 411.111 addresses the 

frequency and scope of audits. 

Paragraph (a) states that ORR will 

ensure that an audit of each care 

provider facility is completed within 

three years and 60 days after the 

effective date of the standards and at 

least once during each three-year period 

thereafter. ORR may, in its discretion, 

expedite the audit of a particular care 

provider facility if ORR has reason to 

believe the care provider facility is 

experiencing problems related to sexual 

abuse and sexual harassment under 

paragraph (b). Paragraph (c) requires 

that ORR develop and issue an 

instrument that is coordinated with the 

HHS Office of the Inspector General that 

will provide guidance on the conduct 

and contents of the audit. Paragraphs 

(d)–(m) describe the types of documents 

and access the auditor must be provided 

when auditing a care provider facility. 

Paragraph (n) ensures that all sensitive 

and confidential information that an 

auditor has access to be properly 

handled by the auditor, and that the 

auditor is required to safeguard such 

information. Paragraph (o) places an 

affirmative burden on the care provider 

facility to demonstrate compliance with 

the standards to the auditor. 

Section 411.112 addresses the 

qualifications required for auditors. 

Paragraph (a) requires that audits must 

be conducted by an entity or individual 

with relevant auditing or evaluation 

experience and is external to ORR. 

Under paragraphs (b) and (c), auditors 

must be certified and trained by ORR 

and cannot receive financial 

compensation from ORR other than 

compensation related to conducting an 

audit for three years prior or subsequent 

to an audit. 

Section 411.113 addresses the 

contents and findings of audits. 

Paragraph (a) requires that audits must 

include certification by the auditor that 

there are no conflicts of interest between 

the auditor and the care provider facility 

under review. Paragraphs (b)–(d) 

address the standards that care provider 

facilities must meet and the 

methodology, sampling sizes, and basis 

for the auditor’s conclusions. Under 

paragraph (e), auditors must redact 

personally identifiable UC or staff 

information from their reports but 

provide such information upon ORR 

request. Then, under paragraph (f), ORR 

will publish aggregated data on final 

audit reports on ORR’s Web site or 

otherwise make it readily available to 

the public. 

Section 411.114 discusses audit 

corrective action plans. If a care 

provider facility received a finding of 

‘‘Does Not Meet Standard’’ with one or 

more standards, a 180-day corrective 

action period is triggered under 

paragraph (a). The auditor and ORR will 

work to create a corrective action plan 

to achieve compliance, and the auditor 

must take steps to verify 

implementation of the corrective action 

plan under paragraphs (b) and (c). 

Under paragraph (d), after the 180-day 

corrective action period ends, the 

auditor must issue a final determination 

as to whether the care provider facility 

achieved compliance with those 

standards requiring corrective action. 

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Paragraph (e) requires that if the care 

provider facility does not achieve 

compliance with each standard, it may 

(at its discretion and cost) request a 

subsequent audit once it believes that it 

has achieved compliance. 

Section 411.115 addresses audit 

appeals. Paragraph (a) allows care 

provider facilities to file an appeal with 

ORR regarding any specific audit 

finding that it believes are incorrect. 

Such an appeal must be filed within 90 

days of the auditor’s final 

determination. Under paragraph (b), if 

ORR determines that the care provider 

facility has stated good cause for reevaluation, the care provider facility 

may commission a re-audit by an 

auditor mutually agreed upon by ORR 

and the care provider facility. The care 

provider facility, though, must bear the 

costs of the re-audit. Under paragraph 

(c), the findings of the re-audit are 

considered final. 

V. Waiver of Proposed Rulemaking 

HHS will ordinarily publish a notice 

of proposed rulemaking in the Federal 

Register and invite public comment on 

the proposed rule. The notice of 

proposed rulemaking includes a 

reference to the legal authority under 

which the rule is proposed and the 

terms and substances of the proposed 

rule or a description of the subjects and 

issues involved. However, under section 

553(b) of the Administrative Procedure 

Act (APA) (5 U.S.C. 551 et seq.), a 

general notice of proposed rulemaking 

is not required when an agency, for 

good cause, finds that notice and public 

comment thereon are impracticable, 

unnecessary, or contrary to the public 

interest, and incorporates a statement of 

the finding and its reasons in the rule 

issued. HHS has determined that it 

would be contrary to the public interest 

to delay finalizing the provisions of this 

regulation until a public notice and 

comment process is complete. 

HHS believes that implementing 

standards that govern the detection, 

prevention, and response to the sexual 

abuse and sexual harassment of UCs as 

soon as possible is of such importance 

that publishing a notice of proposed 

rulemaking would be contrary to the 

public interest. Section 1101(c) of the 

Violence Against Women 

Reauthorization Act (VAWA 2013) 

directs the Secretary of Health and 

Human Services to publish a final rule 

adopting national standards for the 

detection, prevention, reduction, and 

punishment of rape and sexual assault 

in facilities that maintain custody of 

UCs within 180 days of the enactment 

of VAWA 2013, which was on March 7, 

2013. In creating a 180-day deadline, 

HHS believes it was Congress’ intent for 

HHS to issue national standards as 

quickly as possible so that UCs have 

specific protections put in place to 

detect, prevent, reduce, and punish 

sexual abuse and sexual harassment. 

Once this rule is published, it will take 

up to a year to implement all standards 

at all care provider facilities. To prevent 

further delay, HHS determined that it 

should issue an interim final rule 

instead of a notice of proposed 

rulemaking in order to begin 

implementation of these standards as 

soon as possible. Issuing this regulation 

on an interim basis is necessary and in 

the public interest in order to prevent, 

detect, and respond to the sexual abuse 

and sexual harassment of UCs in ORR 

care and custody. It would be contrary 

to the public interest and to Congress’ 

intent to delay the implementation of 

this rule. 

Based on HHS’ determination that a 

delay of these rules would be contrary 

to the public interest, HHS finds good 

cause to waive the notice of proposed 

rulemaking and to issue this final rule 

on an interim basis. HHS will take and 

carefully consider public comments for 

the interim final rule and make any 

appropriate changes. HHS is providing 

a 60-day public comment period and 

will address comments received before 

the rule is finalized. We plan to finalize 

the rule within one year of 

implementation. 

VI. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995 (PRA), HHS is required to 

provide 60-day notice in the Federal 

Register and solicit public comment 

before a collection of information 

requirement is submitted to the Office of 

Management and Budget (OMB) for 

review and approval. An agency may 

not conduct or sponsor, and a person is 

not required to respond to, a collection 

of information unless it displays a 

control number assigned by OMB. 

This interim final rule with comment 

requires information collections for 

which HHS plans to seek OMB approval 

at a later date. The information 

collection requirements associated with 

this interim final rule will not take 

effect until approved by OMB. HHS will 

issue future Federal Register notices to 

seek comments on its information 

collections as required by 3506(c)(2)(A) 

of the Paperwork Reduction Act within 

one month following finalization, and 

will include the following information 

collections as described below: 

• Section 411.11(c): Care provider 

facilities must maintain culturallysensitive written policies mandating 

zero tolerance toward all forms of sexual 

abuse and sexual harassment and 

outlining the care provider facility’s 

approach to detecting, preventing, and 

responding to such conduct. The 

policies must be tailored for a diverse 

population and approved by ORR. 

• Section 411.16(b): Care provider 

facilities must solicit information from 

job applicants and employees 

considered for promotion about 

previous misconduct. If a job applicant 

previously worked at an institution, care 

provider facilities must make efforts to 

solicit information regarding previous 

misconduct related to sexual abuse and 

sexual harassment. 

• Section 411.16(c) and (d): Care 

provider facilities must produce 

background investigation results and 

documentation to ORR, upon request, 

for job applicants, volunteers, and 

contractors. 

• Section 411.16(g): Care provider 

facilities must provide information on 

substantiated allegations of sexual abuse 

or sexual harassment involving a former 

employee upon receiving a request from 

another care provider facility or 

institutional employer for whom such 

employee has applied to work. 

• Section 411.22(a)–(c): Care provider 

facilities are required to report 

allegations of sexual abuse and sexual 

harassment to ORR and all appropriate 

investigating authorities. Care provider 

facilities must maintain documentation 

of all reports and referrals of allegations 

for at least ten years. Care provider 

facilities must also maintain copies of 

all agreements or documentation 

showing attempts to enter into 

agreements with law enforcement 

agencies, State or local Child Protective 

Services, and State or local licensing 

agencies. 

• Sections 411.31(c) and 411.32(c): 

Care provider facilities must maintain 

written documentation that employees, 

contractors, and volunteers have 

completed required trainings. 

• Section 411.33(a), (c)–(e): Care 

provider facilities must disclose 

information to UCs regarding the care 

provider facility’s zero tolerance 

policies in an age and culturally 

appropriate fashion. All disclosures 

must be documented. 

• Section 411.34(b): Care provider 

facilities must maintain documentation 

that medical and mental health 

practitioners employed or contracted by 

the care provider facility received 

required trainings. 

• Section 411.51: Care provider 

facilities must provide information to 

UCs regarding methods of reporting and 

contact information to report allegations 

of sexual abuse and sexual harassment. 

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Care provider facilities must also 

maintain agreements or attempts to 

enter into agreements with entities that 

can receive and immediately forward 

UC reports. Reports made verbally must 

be documented, and all allegations must 

be reported to ORR. 

• Section 411.52(c): Care provider 

facilities must have written procedures 

for identifying and handling timesensitive grievances that involve 

immediate threats to UC health, safety, 

or welfare related to sexual abuse and 

sexual harassment, and all such 

grievances must be reported to ORR. 

• Section 411.53: Care provider 

facilities must maintain agreements or 

attempts to enter agreements with 

community service providers to provide 

legal advocacy and confidential 

emotional support services for UC 

victims of sexual abuse and sexual 

harassment. Care provider facilities 

must also have written policies and 

procedures to include outside agencies 

in the care provider facility’s sexual 

abuse and sexual harassment prevention 

and intervention protocols. Finally, care 

provider facilities must disclose 

information to UCs about these local 

organizations and the assistance they 

can provide to UC victims of sexual 

abuse and sexual harassment. 

• Section 411.54: ORR provides a 

method to receive third-party reports of 

sexual abuse and sexual harassment. 

• Section 411.61(a)–(b), (d)–(f): Care 

provider facility staff, volunteers, and 

contractors are required to report to 

ORR and third-parties any knowledge, 

suspicion, or information regarding an 

incident of sexual abuse or sexual 

harassment, retaliation, or staff neglect 

or violation of responsibilities that may 

have contributed to an incident or 

retaliation. Care provider facilities must 

disclose allegations of sexual abuse and 

sexual harassment to a victim’s parents 

or legal guardians with the UC victim’s 

consent as well as his/her attorney of 

record, if applicable. 

• Section 411.63: Care provider 

facilities that receive an allegation that 

a UC was sexually abused while at 

another care provider facility must 

immediately report the allegation to 

ORR. The care provider facility 

reporting the incident must document 

that it provided notification to ORR and 

must also report the allegation to 

appropriate investigators. 

• Sections 411.81(c) and 411.82(a): 

Care provider facilities must report to 

law enforcement any staff, contractor, or 

volunteer who has engaged in sexual 

abuse or sexual harassment. 

• Section 411.101: Care provider 

facilities are required to collect certain 

data at the conclusion of every 

investigation of sexual abuse and sexual 

harassment and, where the allegation 

was either substantiated or unable to be 

substantiated but not determined to be 

unfounded, must prepare a report. Care 

provider facilities must also conduct an 

annual review of all sexual abuse and 

sexual harassment investigations and 

provide the results and findings to ORR. 

• Section 411.102: Care provider 

facilities must maintain case records 

associated with claims of sexual abuse 

and sexual harassment and the 

Prevention of Sexual Abuse Compliance 

Manager must share data with ORR 

regarding effective care provider facility 

response methods to sexual abuse and 

sexual harassment. The PSA 

Compliance Manager must also prepare 

a report for ORR compiling information 

and aggregate incident-based sexual 

abuse and sexual harassment data. Care 

provider facilities must also provide 

information to ORR upon request. 

• Section 411.113: Audits must 

contain certain information outlined in 

this section regarding a care provider 

facility’s compliance with the standards 

set forth in this rule. 

We estimate the cost burden for these 

information collections per year will be 

approximately $900,000 for 

approximately 100 care provider 

facilities, with each care provider 

facility spending approximately 416 

hours per year to complete the 

information collections. 

VII. Regulatory Impact Analysis— 

Executive Order 12866 and 13563 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if the regulation is 

necessary, to select the regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. While there 

are some costs associated with these 

regulations, they are not economically 

significant as defined under E.O. 12866. 

However, the regulation is significant 

and has been reviewed by OMB. 

Within the IFR, the only areas with 

associated Federal costs are: hiring new 

staff or converting existing staff to 

perform functions as a Prevention of 

Sexual Abuse Compliance Manager at 

care provider facilities; training/

education, prevention planning; 

expanding reporting mechanisms; data 

collection; and conducting regular 

audits. This IFR has an approximately 

$6.21 million cost. This includes 

approximately 100 full-time staff at each 

care provider facility paid an average 

salary of $45,000 with fringe benefits at 

an average rate of 27%. The full-time 

staff will provide training/education 

and prevention planning as well as 

complete all reporting requirements and 

data collections. ORR estimates that an 

annual contract to complete audits will 

cost approximately $500,000 annually. 

This IFR will not only codify existing 

policies and procedures carried out by 

the UC Program but will also 

incorporate recommendations from the 

National Prison Rape Elimination 

Commission. This regulation will 

strengthen the protections and services 

unaccompanied children receive while 

in the care of ORR. 

VIII. Regulatory Flexibility Analysis 

The Secretary certifies under 5 U.S.C. 

605(b), as enacted by the Regulatory 

Flexibility Act (Pub. L. 96–354), that 

this rule will not result in a significant 

impact on a substantial number of small 

entities. This rule primarily affects the 

operations of the federal government, 

i.e., the Office of Refugee Resettlement’s 

(ORR) management of the care and 

custody of unaccompanied children. 

This rule is primarily intended to 

ensure that Federally-funded grantees 

protect, detect, and respond to the 

sexual abuse and sexual harassment of 

unaccompanied children in the care and 

custody of ORR as directed under 

VAWA 2013. We believe this rule 

implements the requirements of VAWA 

2013 and assists care providers to 

continue providing a safe and secure 

environment and child-centered 

services for UC. 

Specifically, as noted under the 

Collection of Information Requirements 

section of this preamble, we estimate 

the cost of implementing the new 

reporting requirements will be 

approximately $900,000 annually, 

which when applied to approximately 

100 grantees nationally, results in a cost 

per grantee of approximately $9,000. In 

developing this estimate, we assumed 

that each of the 100 grantees would 

spend a total of 416 hours to comply 

with reporting and data collection 

requirements. Much of the costs 

associated with the reporting 

requirements of this rule, however, may 

be absorbed by existing grants, as 

several of the reporting requirements are 

already required under State and local 

licensing standards and existing ORR 

policies and procedures. 

IX. Unfunded Mandates Reform Act 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 requires 

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that a covered agency prepare a 

budgetary impact statement before 

promulgating a rule that includes any 

federal mandate that may result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $141 million or more 

in any one year. The Department has 

determined that this rule would not 

impose a mandate that will result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of more than $100 

million in any one year. 

X. Congressional Review 

This regulation is not a major rule as 

defined in 5 U.S.C. Chapter 8. 

XI. Assessment of Federal Regulation 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 requires federal agencies to 

determine whether a proposed policy or 

regulation may affect family well-being. 

If the agency’s determination is 

affirmative, then the agency must 

prepare an impact assessment 

addressing criteria specified in the law. 

This regulation will not have an impact 

on family well-being as defined in this 

legislation, which asks agencies to 

assess policies with respect to whether 

the policy: strengthens or erodes family 

stability and the authority and rights of 

parents in the education, nurture, and 

supervision of their children; helps the 

family perform its functions; and 

increases or decreases disposable 

income. 

XII. Executive Order 13132 

Executive Order 13132 on federalism 

requires that federal agencies consult 

with state and local government officials 

in the development of regulatory 

policies with federalism implications. 

This rule does not have federalism 

implications for state or local 

governments as defined in the Executive 

Order. 

List of Subjects in 45 CFR Part 411 

Administrative practice and 

procedure, Child welfare, Immigration, 

Unaccompanied children, Reporting 

and recordkeeping requirements. 

Dated: December 16, 2014. 

Eskinder Negash, 

Director, Office of Refugee Resettlement. 

Dated: December 16, 2014. 

Mark H. Greenberg, 

Acting Assistant Secretary for Children and 

Families. 

Approved: December 17, 2014. 

Sylvia M. Burwell, 

Secretary. 

For the reasons discussed above, the 

Department of Health and Human 

Services adds part 411 to title 45 of the 

Code of Federal Regulations as follows: 

PART 411—STANDARDS TO 

PREVENT, DETECT, AND RESPOND 

TO SEXUAL ABUSE AND SEXUAL 

HARASSMENT INVOLVING 

UNACCOMPANIED CHILDREN 

411.5 General definitions. 

411.6 Definitions related to sexual abuse 

and sexual harassment. 

Subpart A—Coverage 

411.10 Coverage of ORR care provider 

facilities. 

Subpart B—Prevention Planning 

411.11 Zero tolerance toward sexual abuse 

and sexual harassment; Prevention of 

Sexual Abuse Coordinator and 

Compliance Manager. 

411.12 Contracting with or having a grant 

from ORR for the care of UCs. 

411.13 UC supervision and monitoring. 

411.14 Limits to cross-gender viewing and 

searches. 

411.15 Accommodating UCs with 

disabilities and UCs who are limited 

English proficient (LEP). 

411.16 Hiring and promotion decisions. 

411.17 Upgrades to facilities and 

technologies. 

Subpart C—Responsive Planning 

411.21 Victim advocacy, access to 

counselors, and forensic medical 

examinations. 

411.22 Policies to ensure investigation of 

allegations and appropriate agency 

oversight. 

Subpart D—Training and Education 

411.31 Care provider facility staff training. 

411.32 Volunteer and contractor training. 

411.33 UC education. 

411.34 Specialized training: Medical and 

mental health care staff. 

Subpart E—Assessment for Risk of Sexual 

Victimization and Abusiveness 

411.41 Assessment for risk of sexual 

victimization and abusiveness. 

411.42 Use of assessment information. 

Subpart F—Reporting 

411.51 UC reporting. 

411.52 Grievances. 

411.53 UC access to outside confidential 

support services. 

411.54 Third-party reporting. 

411.55 UC access to attorneys or other legal 

representatives and families. 

Subpart G—Official Response Following a 

UC Report 

411.61 Staff reporting duties. 

411.62 Protection duties. 

411.63 Reporting to other care provider 

facilities and DHS. 

411.64 Responder duties. 

411.65 Coordinated response. 

411.66 Protection of UCs from contact with 

alleged abusers. 

411.67 Protection against retaliation. 

411.68 Post-allegation protection. 

Subpart H—ORR Incident Monitoring and 

Evaluation 

411.71 ORR monitoring and evaluation of 

care provider facilities following an 

allegation of sexual abuse or sexual 

harassment. 

411.72 Reporting to UCs. 

Subpart I—Interventions and Discipline 

411.81 Disciplinary sanctions for staff. 

411.82 Corrective actions for contractors 

and volunteers. 

411.83 Interventions for UCs who engage in 

sexual abuse. 

Subpart J—Medical and Mental Health Care 

411.91 Medical and mental health 

assessments; history of sexual abuse. 

411.92 Access to emergency medical and 

mental health services. 

411.93 Ongoing medical and mental health 

care for sexual abuse and sexual 

harassment victims and abusers. 

Subpart K—Data Collection and Review 

411.101 Sexual abuse and sexual 

harassment incident reviews. 

411.102 Data collection. 

411.103 Data review for corrective action. 

411.104 Data storage, publication, and 

destruction. 

Subpart L—Audits and Corrective Action 

411.111 Frequency and scope of audits. 

411.112 Auditor qualifications. 

411.113 Audit contents and findings. 

411.114 Audit corrective action plan. 

411.115 Audit appeals. 

Authority: 42 U.S.C. 15607 (d). 

§ 411.5 General definitions. 

For the purposes of this part, the 

following definitions apply: 

ACF means the Administration for 

Children and Families. 

Care provider facility means any ORR 

funded program that is licensed, 

certified, or accredited by an 

appropriate State or local agency to 

provide residential or group services to 

UCs, including a program of group 

homes or facilities for children with 

special needs or staff-secure services for 

children. Emergency care provider 

facilities are included in this definition 

but may or may not be licensed, 

certified, or accredited by an 

appropriate State or local agency. 

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Contractor means a person who, or 

entity that, provides services on a 

recurring basis pursuant to a contractual 

agreement with ORR or with a care 

provider facility or has a sub-contractual 

agreement with the contractor. 

DHS means the Department of 

Homeland Security. 

DOJ means the Department of Justice. 

Director means the Director of the 

Office of Refugee Resettlement. 

Emergency means a sudden, urgent, 

usually unexpected occurrence or 

occasion requiring immediate action. 

Emergency care provider facility is a 

type of care provider facility that is 

temporarily opened to provide 

temporary emergency shelter and 

services for UCs during an influx. 

Emergency care provider facilities may 

or may not be licensed by an 

appropriate State or local agency. 

Exigent circumstances means any set 

of temporary and unforeseen 

circumstances that require immediate 

action in order to combat a threat to the 

security of a care provider facility or a 

threat to the safety and security of any 

person. 

Gender refers to the attitudes, 

feelings, and behaviors that a given 

culture associates with a person’s 

biological sex. 

Gender identity refers to one’s sense 

of oneself as male, female, or 

transgender. 

Gender nonconforming means a 

person whose appearance or manner 

does not conform to traditional societal 

gender expectations. 

HHS means the Department of Health 

and Human Services. 

Intersex means a person whose sexual 

or reproductive anatomy or 

chromosomal pattern does not seem to 

fit typical definitions of male or female. 

Intersex medical conditions are 

sometimes referred to as disorders of sex 

development. 

LGBTQI means lesbian, gay, bisexual, 

transgender, questioning, or intersex. 

Law enforcement means any local, 

State, or Federal enforcement agency 

with the authority and jurisdiction to 

investigate whether any criminal laws 

were violated. 

Limited English proficient (LEP) 

means individuals for whom English is 

not the primary language and who may 

have a limited ability to read, write, 

speak, or understand English. 

Medical practitioner means a health 

professional who, by virtue of 

education, credentials, and experience, 

is permitted by law to evaluate and care 

for patients within the scope of his or 

her professional practice. A ‘‘qualified 

medical practitioner’’ refers to a 

professional who also has successfully 

completed specialized training for 

treating sexual abuse victims. 

Mental health practitioner means a 

mental health professional who, by 

virtue of education, credentials, and 

experience, is permitted by law to 

evaluate and care for patients within the 

scope of his or her professional practice. 

A ‘‘qualified mental health practitioner’’ 

refers to a professional who also has 

successfully completed specialized 

training for treating sexual abuse 

victims. 

ORR refers to the Office of Refugee 

Resettlement. 

Pat-down search means a sliding or 

patting of the hands over the clothed 

body of an unaccompanied child by 

staff to determine whether the 

individual possesses contraband. 

Secure care provider facility is a type 

of care provider facility with a 

physically secure structure and staff 

responsible for controlling violent 

behavior. ORR uses a secure care 

provider facility as the most restrictive 

placement option for a UC who poses a 

danger to him or herself or others or has 

been charged with having committed a 

criminal offense. A secure care provider 

facility is a juvenile detention center. 

Sex refers to a person’s biological 

status and is typically categorized as 

male, female, or intersex. There are a 

number of indicators of biological sex, 

including sex chromosomes, gonads, 

internal reproductive organs, and 

external genitalia. 

Sexual Assault Forensic Examiner 

(SAFE) means a ‘‘medical practitioner’’ 

who has specialized forensic training in 

treating sexual assault victims and 

conducting forensic medical 

examinations. 

Sexual Assault Nurse Examiner 

(SANE) means a registered nurse who 

has specialized forensic training in 

treating sexual assault victims and 

conducting forensic medical 

examinations. 

Special needs means mental and/or 

physical conditions that require special 

services and treatment by staff. A UC 

may have special needs due to a 

disability as defined in section 3 of the 

Americans with Disabilities Act of 1990, 

42 U.S.C. 12102(2). 

Staff means employees or contractors 

of ORR or a care provider facility, 

including any entity that operates 

within a care provider facility. 

Strip search means a search that 

requires a person to remove or arrange 

some or all clothing so as to permit a 

visual inspection of the person’s breasts, 

buttocks, or genitalia. 

Substantiated allegation means an 

allegation that was investigated and 

determined to have occurred. 

Traditional foster care means a type 

of care provider facility where a UC is 

placed with a family in a communitybased setting. The State or locally 

licensed foster family is responsible for 

providing basic needs in addition to 

responsibilities as outlined by the State 

or local licensed child placement 

agency, State and local licensing 

regulations, and any ORR policies 

related to foster care. The UC attends 

public school and receives on-going 

case management and counseling 

services. The care provider facility 

facilitates the provision of additional 

psychiatric, psychological, or 

counseling referrals as needed. 

Traditional foster care may include 

transitional or short-term foster care as 

well as long-term foster care providers. 

Transgender means a person whose 

gender identity (i.e., internal sense of 

feeling male or female) is different from 

the person’s assigned sex at birth. 

Unaccompanied child (UC) means a 

child: 

(1) Who has no lawful immigration 

status in the United States; 

(2) Who has not attained 18 years of 

age; and 

(3) With respect to whom there is no 

parent or legal guardian in the United 

States or there is no parent or legal 

guardian in the United States available 

to provide care and physical custody. 

Unfounded allegation means an 

allegation that was investigated and 

determined not to have occurred. 

Unsubstantiated allegation means an 

allegation that was investigated and the 

investigation produced insufficient 

evidence to make a final determination 

as to whether or not the event occurred. 

Volunteer means an individual who 

donates time and effort on a recurring 

basis to enhance the activities and 

programs of ORR or the care provider 

facility. 

Youth care worker means employees 

primarily responsible for the 

supervision and monitoring of UCs in 

housing units, educational areas, 

recreational areas, dining areas, and 

other program areas of a care provider 

facility. 

§ 411.6 Definitions related to sexual abuse 

and sexual harassment. 

For the purposes of this part, the 

following definitions apply: 

Sexual abuse means— 

(1) Sexual abuse of a UC by another 

UC; and 

(2) Sexual abuse of a UC by a staff 

member, grantee, contractor, or 

volunteer. 

Sexual abuse of a UC by another UC 

includes any of the following acts, if the 

victim does not consent, is coerced into 

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such act by overt or implied threats of 

violence, or is unable to consent or 

refuse: 

(1) Contact between the penis and the 

vulva or the penis and the anus, 

including penetration, however slight; 

(2) Contact between the mouth and 

the penis, vulva, or anus; 

(3) Penetration of the anal or genital 

opening of another person, however 

slight, by a hand, finger, object, or other 

instrument; and 

(4) Any other intentional touching, 

either directly or through the clothing, 

of the genitalia, anus, groin, breast, 

inner thigh, or the buttocks of another 

person, excluding contact incidental to 

a physical altercation. 

Sexual abuse of a UC by a staff 

member, grantee, contractor, or 

volunteer includes any of the following 

acts, with or without the consent of the 

UC: 

(1) Contact between the penis and the 

vulva or the penis and the anus, 

including penetration, however slight; 

(2) Contact between the mouth and 

the penis, vulva, or anus; 

(3) Contact between the mouth and 

any body part where the staff member, 

contractor, or volunteer has the intent to 

abuse, arouse, or gratify sexual desire; 

(4) Penetration of the anal or genital 

opening, however slight, by a hand, 

finger, object, or other instrument, that 

is unrelated to official duties or where 

the staff member, grantee, contractor, or 

volunteer has the intent to abuse, 

arouse, or gratify sexual desire; 

(5) Any other intentional contact, 

either directly or through the clothing, 

of or with the genitalia, anus, groin, 

breast, inner thigh, or the buttocks, that 

is unrelated to official duties or where 

the staff member, grantee, contractor, or 

volunteer has the intent to abuse, 

arouse, or gratify sexual desire; 

(6) Any attempt, threat, or request by 

a staff member, grantee, contractor, or 

volunteer to engage in the activities 

described in paragraphs (1) through (5) 

of this definition; 

(7) Any display by a staff member, 

grantee, contractor, or volunteer of his 

or her uncovered genitalia, buttocks, or 

breast in the presence of a UC; and 

(8) Voyeurism by a staff member, 

grantee, contactor, or volunteer. 

Sexual harassment includes— 

(1) Repeated and unwelcome sexual 

advances, requests for sexual favors, or 

verbal comments, gestures, phone calls, 

emails, texts, social media messages, 

pictures sent or shown, other electronic 

communication, or actions of a 

derogatory or offensive sexual nature by 

one UC towards another; and 

(2) Repeated verbal comments, 

gestures, phone calls, emails, texts, 

social media messages, pictures sent or 

shown, or other electronic 

communication of a sexual nature to a 

UC by a staff member, grantee, 

contractor, or volunteer, including 

demeaning references to gender, 

sexually suggestive or derogatory 

comments about body or clothing, or 

obscene language or gestures. 

Voyeurism by a staff member, grantee, 

contractor, or volunteer means an 

invasion of privacy of a UC by a staff 

member, grantee, contractor, or 

volunteer for reasons unrelated to 

official duties, such as inappropriately 

viewing a UC perform bodily functions 

or bathing; requiring a UC to expose his 

or her buttocks, genitals, or breasts; or 

recording images of all or part of a UC’s 

naked body or of a UC performing 

bodily functions. 

Subpart A—Coverage 

§ 411.10 Coverage of ORR care provider 

facilities. 

(a) This part applies to all ORR care 

provider facilities except secure care 

provider facilities and traditional foster 

care homes. Secure care provider 

facilities must, instead, follow the 

Department of Justice’s National 

Standards to Prevent, Detect, and 

Respond to Prison Rape, 28 CFR part 

115. Traditional foster care homes are 

not subject to this part. 

(b) Emergency care provider facilities 

are subject to every section in this part 

except: 

(1) Section 411.22(c); 

(2) Section 411.71(b)(4); 

(3) Section 411.101(b); 

(4) Section 411.102(c), (d), and (e); 

and 

(5) Subpart L. 

(c) Emergency care provider facilities 

must implement the standards in this 

rule, excluding the standards listed 

above, within fifteen (15) days of 

opening. The Director, however, may, 

using unreviewable discretion, waive or 

modify specific sections for a particular 

emergency care provider facility for 

good cause. Good cause would only be 

found in cases where the temporary 

nature of the emergency care provider 

facility makes compliance with the 

provision impracticable or impossible, 

and the Director determines that the 

emergency care provider facility could 

not, without substantial difficulty, meet 

the provision in the absence of the 

waiver or modification. 

(d) For the purposes of this part, the 

terms related to sexual abuse and sexual 

harassment refer specifically to the 

sexual abuse or sexual harassment of a 

UC that occurs at an ORR care provider 

facility while in ORR care and custody. 

Incidents of past sexual abuse or sexual 

harassment or sexual abuse or sexual 

harassment that occurs in any other 

context other than in ORR care and 

custody are not within the scope of this 

regulation. 

Subpart B—Prevention Planning 

§ 411.11 Zero tolerance toward sexual 

abuse and sexual harassment; Prevention 

of Sexual Abuse Coordinator and 

Compliance Manager. 

(a) ORR must have a written policy 

mandating zero tolerance toward all 

forms of sexual abuse and sexual 

harassment and outlining ORR’s 

approach to preventing, detecting, and 

responding to such conduct. ORR must 

ensure that all policies and services 

related to this rule are implemented in 

a culturally-sensitive and 

knowledgeable manner that is tailored 

for a diverse population. 

(b) ORR must employ or designate an 

upper-level, ORR-wide Prevention of 

Sexual Abuse Coordinator (PSA 

Coordinator) with sufficient time and 

authority to develop, implement, and 

oversee ORR efforts to comply with 

these standards in all of its care 

provider facilities. 

(c) Care provider facilities must have 

a written policy mandating zero 

tolerance toward all forms of sexual 

abuse and sexual harassment and 

outlining the care provider facility’s 

approach to preventing, detecting, and 

responding to such conduct. The care 

provider facility also must ensure that 

all policies and services related to this 

rule are implemented in a culturallysensitive and knowledgeable manner 

that is tailored for a diverse population. 

ORR will review and approve each care 

provider facility’s written policy. 

(d) Care provider facilities must 

employ or designate a Prevention of 

Sexual Abuse Compliance Manager 

(PSA Compliance Manager) with 

sufficient time and authority to develop, 

implement, and oversee the care 

provider facility’s efforts to comply with 

the provisions set forth in this part and 

serve as a point of contact for ORR’s 

PSA Coordinator. 

§ 411.12 Contracting with or having a 

grant from ORR for the care of UCs. 

(a) When contracting with or 

providing a grant to a care provider 

facility, ORR must include in any new 

contracts, contract renewals, 

cooperative agreements, or cooperative 

agreement renewals the entity’s 

obligation to adopt and comply with 

these standards. 

(b) For organizations that contract, 

grant, or have a sub-grant with a care 

provider facility to provide residential 

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services to UCs, the organization must, 

as part of the contract or cooperative 

agreement, adopt and comply with the 

provisions set forth in this part. 

(c) All new contracts, contract 

renewals, and grants must include 

provisions for monitoring and 

evaluation to ensure that the contractor, 

grantee, or sub-grantee is complying 

with these provisions. 

§ 411.13 UC supervision and monitoring. 

(a) Care provider facilities must 

develop, document, and make their best 

effort to comply with a staffing plan that 

provides for adequate levels of staffing, 

and, where applicable under State and 

local licensing standards, video 

monitoring, to protect UCs from sexual 

abuse and sexual harassment. 

(b) In determining adequate levels of 

UC supervision and determining the 

need for video monitoring, the care 

provider facility must take into 

consideration the physical layout of the 

facility, the composition of the UC 

population, the prevalence of 

substantiated and unsubstantiated 

incidents of sexual abuse and sexual 

harassment, and any other relevant 

factors. Video monitoring equipment 

may not be placed in any bathroom, 

shower or bathing area, or other area 

where UCs routinely undress. 

(c) Care provider facilities must 

conduct frequent unannounced rounds 

to identify and deter sexual abuse and 

sexual harassment. Such rounds must 

be implemented during night as well as 

day shifts. Care provider facilities must 

prohibit staff from alerting others that 

rounds are occurring, unless such 

announcement is related to the 

legitimate operational functions of the 

care provider facility. 

§ 411.14 Limits to cross-gender viewing 

and searches. 

(a) Cross-gender pat-down searches of 

UCs must not be conducted except in 

exigent circumstances. For a UC that 

identifies as transgender or intersex, the 

ORR care provider facility must ask the 

UC to identify the gender of staff with 

whom he/she would feel most 

comfortable conducting the search. 

(b) All pat-down searches must be 

conducted in the presence of one 

additional care provider facility staff 

member unless there are exigent 

circumstances and must be documented 

and reported to ORR. 

(c) Strip searches and visual body 

cavity searches of UCs are prohibited. 

(d) Care provider facilities must 

permit UCs to shower, perform bodily 

functions, and change clothing without 

being viewed by staff, except: In exigent 

circumstances; when such viewing is 

incidental to routine room checks; is 

otherwise appropriate in connection 

with a medical examination or 

monitored bowel movement; if a UC is 

under age 6 and needs assistance with 

such activities; a UC with special needs 

is in need of assistance with such 

activities; or the UC requests and 

requires assistance. If the UC has special 

needs and requires assistance with such 

activities, the care provider facility staff 

member must be of the same gender as 

the UC when assisting with such 

activities. 

(e) Care provider facilities must not 

search or physically examine a UC for 

the sole purpose of determining the 

UC’s sex. If the UC’s sex is unknown, it 

may be determined during 

conversations with the UC, by reviewing 

medical records, or, if necessary, 

learning that information as part of a 

broader medical examination conducted 

in private by a medical practitioner. 

(f) Care provider facilities must train 

youth care worker staff in proper 

procedures for conducting pat-down 

searches, including cross-gender patdown searches and searches of 

transgender and intersex UCs. All patdown searches must be conducted in a 

professional and respectful manner, and 

in the least intrusive manner possible, 

consistent with security needs and 

existing ORR policy, including 

consideration of youth care worker staff 

safety. 

§ 411.15 Accommodating UCs with 

disabilities and UCs who are limited English 

proficient (LEP). 

(a) Care provider facilities must take 

appropriate steps to ensure that UCs 

with disabilities (including, for 

example, UCs who are deaf or hard of 

hearing, those who are blind or have 

low vision, or those who have 

intellectual, psychiatric, or speech 

disabilities) have an equal opportunity 

to participate in or benefit from all 

aspects of the care provider facility’s 

efforts to prevent, detect, and respond to 

sexual abuse and sexual harassment. 

Such steps must include, when 

necessary to ensure effective 

communication with UCs who are deaf 

or hard of hearing, providing access to 

in-person, telephonic, or video 

interpretive services that enable 

effective, accurate, and impartial 

interpretation, both receptively and 

expressively, using any necessary 

specialized vocabulary. In addition, the 

care provider facility must ensure that 

any written materials related to sexual 

abuse and sexual harassment are 

translated and provided in formats or 

through methods that ensure effective 

communication with UCs with 

disabilities, including UCs who have 

intellectual disabilities, limited reading 

skills, or who are blind or have low 

vision. 

(b) Care provider facilities must take 

appropriate steps to ensure that UCs 

who are limited English proficient have 

an equal opportunity to participate in or 

benefit from all aspects of the care 

provider facility’s efforts to prevent, 

detect, and respond to sexual abuse and 

sexual harassment, including steps to 

provide quality in-person or telephonic 

interpretive services and quality 

translation services that enable effective, 

accurate, and impartial interpretation 

and translation, both receptively and 

expressively, using any necessary 

specialized vocabulary. 

(c) In matters relating to allegations of 

sexual abuse or sexual harassment, the 

care provider facility must provide 

quality in-person or telephonic 

interpretation services that enable 

effective, accurate, and impartial 

interpretation by someone other than 

another UC. Care provider facilities also 

must ensure that any written materials 

related to sexual abuse and sexual 

harassment, including notification, 

orientation, and instruction not 

provided by ORR, are translated either 

verbally or in written form into the 

preferred languages of UCs. 

§ 411.16 Hiring and promotion decisions. 

(a) Care provider facilities are 

prohibited from hiring or promoting any 

individual who may have contact with 

UCs and must not enlist the services of 

any contractor or volunteer who may 

have contact with UCs and who engaged 

in: Sexual abuse in a prison, jail, 

holding facility, community 

confinement facility, juvenile facility, 

other institution (as defined in 42 U.S.C. 

1997), or care provider facility; who was 

convicted of engaging or attempting to 

engage in sexual activity facilitated by 

force, overt or implied threats of force, 

or coercion, or if the victim did not 

consent or was unable to consent or 

refuse; or who was civilly or 

administratively adjudicated to have 

engaged in such activity. 

(b) Care provider facilities considering 

hiring or promoting staff must ask all 

applicants who may have direct contact 

with UCs about previous misconduct 

described in paragraph (a) of this 

section in written applications or 

interviews for hiring or promotions and 

in any interviews or written selfevaluations conducted as part of 

performance evaluations of current 

employees. Care provider facilities also 

must impose upon employees a 

continuing affirmative duty to disclose 

any such misconduct, whether the 

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conduct occurs on or off duty. Care 

provider facilities, consistent with law, 

must make their best efforts to contact 

all prior institutional employers of an 

applicant for employment to obtain 

information on substantiated allegations 

of sexual abuse or sexual harassment or 

any resignation during a pending 

investigation of alleged sexual abuse or 

sexual harassment. 

(c) Prior to hiring new staff who may 

have contact with UCs, the care 

provider facility must conduct a 

background investigation to determine 

whether the candidate for hire is 

suitable for employment with minors in 

a residential setting. Upon ORR request, 

the care provider facility must submit 

all background investigation 

documentation for each staff member 

and the care provider facility’s 

conclusions. 

(d) Care provider facilities also must 

perform a background investigation 

before enlisting the services of any 

contractor or volunteer who may have 

contact with UCs. Upon ORR request, 

the care provider facility must submit 

all background investigation 

documentation for each contractor or 

volunteer and the care provider 

facility’s conclusions. 

(e) Care provider facilities must either 

conduct a criminal background records 

check at least every five years for 

current employees, contractors, and 

volunteers who may have contact with 

UCs or have in place a system for 

capturing the information contained in 

a criminal background records check for 

current employees. 

(f) Material omissions regarding such 

misconduct or the provision of 

materially false information by the 

applicant or staff will be grounds for 

termination or withdrawal of an offer of 

employment, as appropriate. 

(g) Unless prohibited by law, the care 

provider facility must provide 

information on substantiated allegations 

of sexual abuse or sexual harassment 

involving a former employee upon 

receiving a request from another care 

provider facility or institutional 

employer for whom such employee has 

applied to work. 

(h) In the event the care provider 

facility contracts with an organization to 

provide residential services and/or other 

services to UCs, the requirements of this 

section also apply to the organization 

and its staff. 

§ 411.17 Upgrades to facilities and 

technologies. 

(a) When designing or acquiring any 

new facility and in planning any 

substantial expansion or modification of 

existing facilities, the care provider 

facility, as appropriate, must consider 

the effect of the design, acquisition, 

expansion, or modification upon their 

ability to protect UCs from sexual abuse 

and sexual harassment. 

(b) When installing or updating a 

video monitoring system, electronic 

surveillance system, or other monitoring 

technology in a care provider facility, 

the care provider facility, as 

appropriate, must consider how such 

technology may enhance its ability to 

protect UCs from sexual abuse and 

sexual harassment while maintaining 

UC privacy and dignity. 

Subpart C—Responsive Planning 

§ 411.21 Victim advocacy, access to 

counselors, and forensic medical 

examinations. 

(a) Care provider facilities must 

develop procedures to best utilize 

available community resources and 

services to provide valuable expertise 

and support in the areas of crisis 

intervention and counseling to most 

appropriately address victims’ needs. 

Each care provider facility must 

establish procedures to make available 

outside victim services following 

incidents of sexual abuse and sexual 

harassment; the care provider facility 

must attempt to make available to the 

victim a victim advocate from a rape 

crisis center. If a rape crisis center is not 

available or if the UC prefers, the care 

provider facility may provide a licensed 

clinician on staff to provide crisis 

intervention and trauma services for the 

UC. The outside or internal victim 

advocate must provide emotional 

support, crisis intervention, 

information, and referrals. 

(b) Where evidentiarily or medically 

appropriate, and only with the UC’s 

consent, the care provider facility must 

arrange for an alleged victim UC to 

undergo a forensic medical examination 

as soon as possible and that is 

performed by Sexual Assault Forensic 

Examiners (SAFEs) or Sexual Assault 

Nurse Examiners (SANEs) where 

possible. If SAFEs or SANEs cannot be 

made available, the examination may be 

performed by a qualified medical 

practitioner. 

(c) As requested by a victim, the 

presence of his or her outside or internal 

victim advocate, including any available 

victim advocacy services offered at a 

hospital conducting a forensic 

examination, must be allowed to the 

extent possible for support during a 

forensic examination and investigatory 

interviews. 

(d) To the extent possible, care 

provider facilities must request that the 

investigating agency follow the 

requirements of paragraphs (a) through 

(c) of this section. 

§ 411.22 Policies to ensure investigation of 

allegations and appropriate agency 

oversight. 

(a) ORR and care provider facilities 

must ensure that each allegation of 

sexual abuse and sexual harassment, 

including a third-party or anonymous 

allegation, is immediately referred to all 

appropriate investigating authorities, 

including Child Protective Services, the 

State or local licensing agency, and law 

enforcement. Care provider facilities 

also must immediately report each 

allegation of sexual abuse and sexual 

harassment to ORR according to ORR 

policies and procedures. The care 

provider facility has an affirmative duty 

to keep abreast of the investigation(s) 

and cooperate with outside 

investigators. ORR also must remain 

informed of ongoing investigations and 

fully cooperate as necessary. 

(b) Care provider facilities must 

maintain or attempt to enter into a 

written memorandum of understanding 

or other agreement specific to 

investigations of sexual abuse and 

sexual harassment with the law 

enforcement agency, designated State or 

local Child Protective Services, and/or 

the State or local licensing agencies 

responsible for conducting sexual abuse 

and sexual harassment investigations, as 

appropriate. Care provider facilities 

must maintain a copy of the agreement 

or documentation showing attempts to 

enter into an agreement. 

(c) Care provider facilities must 

maintain documentation for at least ten 

years of all reports and referrals of 

allegations of sexual abuse and sexual 

harassment. 

(d) ORR will refer an allegation of 

sexual abuse to the Department of 

Justice or other investigating authority 

for further investigation where such 

reporting is in accordance with its 

policies and procedures and any 

memoranda of understanding. 

(e) All allegations of sexual abuse that 

occur at emergency care provider 

facilities operating on fully Federal 

properties must be reported to the 

Department of Justice in accordance 

with ORR policies and procedures and 

any memoranda of understanding. 

Subpart D—Training and Education 

§ 411.31 Care provider facility staff 

training. 

(a) Care provider facilities must train 

or require the training of all employees 

who may have contact with UCs to be 

able to fulfill their responsibilities 

under these standards, including 

training on: 

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(1) ORR and the care provider 

facility’s zero tolerance policies for all 

forms of sexual abuse and sexual 

harassment; 

(2) The right of UCs and staff to be 

free from sexual abuse and sexual 

harassment and from retaliation for 

reporting sexual abuse and sexual 

harassment; 

(3) Definitions and examples of 

prohibited and illegal sexual behavior; 

(4) Recognition of situations where 

sexual abuse or sexual harassment may 

occur; 

(5) Recognition of physical, 

behavioral, and emotional signs of 

sexual abuse and methods of preventing 

and responding to such occurrences; 

(6) How to avoid inappropriate 

relationships with UCs; 

(7) How to communicate effectively 

and professionally with UCs, including 

UCs who are lesbian, gay, bisexual, 

transgender, questioning, or intersex; 

(8) Procedures for reporting 

knowledge or suspicion of sexual abuse 

and sexual harassment as well as how 

to comply with relevant laws related to 

mandatory reporting; 

(9) The requirement to limit reporting 

of sexual abuse and sexual harassment 

to personnel with a need-to-know in 

order to make decisions concerning the 

victim’s welfare and for law 

enforcement, investigative, or 

prosecutorial purposes; 

(10) Cultural sensitivity toward 

diverse understandings of acceptable 

and unacceptable sexual behavior and 

appropriate terms and concepts to use 

when discussing sex, sexual abuse, and 

sexual harassment with a culturally 

diverse population; 

(11) Sensitivity and awareness 

regarding past trauma that may have 

been experienced by UCs; 

(12) Knowledge of all existing 

resources for UCs both inside and 

outside the care provider facility that 

provide treatment and counseling for 

trauma and legal advocacy for victims; 

and 

(13) General cultural competency and 

sensitivity to the culture and age of UC. 

(b) All current care provider facility 

staff and employees who may have 

contact with UCs must be trained within 

six months of the effective date of these 

standards, and care provider facilities 

must provide refresher information, as 

appropriate. 

(c) Care provider facilities must 

document that staff and employees who 

may have contact with UCs have 

completed the training. 

§ 411.32 Volunteer and contractor training. 

(a) Care provider facilities must 

ensure that all volunteers and 

contractors who may have contact with 

UCs are trained on their responsibilities 

under ORR and the care provider 

facility’s sexual abuse and sexual 

harassment prevention, detection, and 

response policies and procedures as 

well as any relevant Federal, State, and 

local laws. 

(b) The level and type of training 

provided to volunteers and contractors 

may be based on the services they 

provide and the level of contact they 

will have with UCs, but all volunteers 

and contractors who have contact with 

UCs must be trained on the care 

provider facility’s zero tolerance 

policies and procedures regarding 

sexual abuse and sexual harassment and 

informed how to report such incidents. 

(c) Each care provider facility must 

maintain written documentation that 

contractors and volunteers who may 

have contact with UCs have completed 

the required trainings. 

§ 411.33 UC education. 

(a) During the intake process and 

periodically thereafter, each care 

provider facility must ensure that 

during orientation or a periodic 

refresher session, UCs are notified and 

informed of the care provider facility’s 

zero tolerance policies for all forms of 

sexual abuse and sexual harassment in 

an age and culturally appropriate 

fashion and in accordance with § 411.15 

that includes, at a minimum: 

(1) An explanation of the UC’s right 

to be free from sexual abuse and sexual 

harassment as well as the UC’s right to 

be free from retaliation for reporting 

such incidents; 

(2) Definitions and examples of UCon-UC sexual abuse, staff-on-UC sexual 

abuse, coercive sexual activity, 

appropriate and inappropriate 

relationships, and sexual harassment; 

(3) An explanation of the methods for 

reporting sexual abuse and sexual 

harassment, including to any staff 

member, outside entity, and to ORR; 

(4) An explanation of a UC’s right to 

receive treatment and counseling if the 

UC was subjected to sexual abuse or 

sexual harassment; 

(b) Care provider facilities must 

provide the UC notification, orientation, 

and instruction in formats accessible to 

all UCs at a time and in a manner that 

is separate from information provided 

about their immigration cases. 

(c) Care provider facilities must 

document all UC participation in 

orientation and periodic refresher 

sessions that address the care provider 

facility’s zero tolerance policies. 

(d) Care provider facilities must post 

on all housing unit bulletin boards who 

a UC can contact if he or she is a victim 

or is believed to be at imminent risk of 

sexual abuse or sexual harassment in 

accordance with § 411.15. 

(e) Care provider facilities must make 

available and distribute a pamphlet in 

accordance with § 411.15 that contains, 

at a minimum, the following: 

(1) Notice of the care provider 

facility’s zero-tolerance policy toward 

sexual abuse and sexual harassment; 

(2) The care provider facility’s 

policies and procedures related to 

sexual abuse and sexual harassment; 

(3) Information on how to report an 

incident of sexual abuse or sexual 

harassment; 

(4) The UC’s rights and 

responsibilities related to sexual abuse 

and sexual harassment; 

(5) How to contact organizations in 

the community that provide sexual 

abuse counseling and legal advocacy for 

UC victims of sexual abuse and sexual 

harassment; 

(6) How to contact diplomatic or 

consular personnel. 

§ 411.34 Specialized training: Medical and 

mental health care staff. 

(a) All medical and mental health care 

staff employed or contracted by care 

provider facilities must be specially 

trained, at a minimum, on the following: 

(1) How to detect and assess signs of 

sexual abuse and sexual harassment; 

(2) How to respond effectively and 

professionally to victims of sexual abuse 

and sexual harassment; 

(3) How and to whom to report 

allegations or suspicions of sexual abuse 

and sexual harassment; and 

(4) How to preserve physical evidence 

of sexual abuse. If medical staff conduct 

forensic examinations, such medical 

staff must receive training to conduct 

such examinations. 

(b) Care provider facilities must 

document that medical and mental 

health practitioners employed or 

contracted by the care provider facility 

received the training referenced in this 

section. 

(c) Medical and mental health 

practitioners employed or contracted by 

the care provider facility also must 

receive the training mandated for 

employees under § 411.31 or for 

contractors and volunteers under 

§ 411.32, depending on the 

practitioner’s status at the care provider 

facility. 

Subpart E—Assessment for Risk of 

Sexual Victimization and Abusiveness 

§ 411.41 Assessment for risk of sexual 

victimization and abusiveness. 

(a) Within 72 hours of a UC’s arrival 

at a care provider facility and 

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periodically throughout a UC’s stay, the 

care provider facility must obtain and 

use information about each UC’s 

personal history and behavior using a 

standardized screening instrument to 

reduce the risk of sexual abuse or sexual 

harassment by or upon a UC. 

(b) The care provider facility must 

consider, at a minimum and to the 

extent that the information is available, 

the following criteria to assess UCs for 

risk of sexual victimization: 

(1) Prior sexual victimization or 

abusiveness; 

(2) Any gender nonconforming 

appearance or manner or Selfidentification as lesbian, gay, bisexual, 

transgender, questioning, or intersex 

and whether the resident may therefore 

be vulnerable to sexual abuse or sexual 

harassment; 

(3) Any current charges and offense 

history; 

(4) Age; 

(5) Any mental, physical, or 

developmental disability or illness; 

(6) Level of emotional and cognitive 

development; 

(7) Physical size and stature; 

(8) The UC’s own perception of 

vulnerability; and 

(9) Any other specific information 

about an individual UC that may 

indicate heightened needs for 

supervision, additional safety 

precautions, or separation from certain 

other UCs. 

(c) This information must be 

ascertained through conversations with 

the UC during the intake process and 

medical and mental health screenings; 

during classification assessments; and 

by reviewing court records, case files, 

care provider facility behavioral records, 

and other relevant documentation from 

the UC’s files. Only trained staff are 

permitted to talk with UCs to gather 

information about their sexual 

orientation or gender identity, prior 

sexual victimization, history of engaging 

in sexual abuse, mental health status, 

and mental disabilities for the purposes 

of the assessment required under 

paragraph (a) of this section. Care 

provider facilities must provide UCs an 

opportunity to discuss any safety 

concerns or sensitive issues privately. 

(d) The care provider facility must 

implement appropriate controls on the 

dissemination within the care provider 

facility of responses to questions asked 

pursuant to this standard in order to 

ensure that sensitive information is not 

exploited to the UC’s detriment by staff 

or other UCs. 

§ 411.42 Use of assessment information. 

(a) The care provider facility must use 

the information from the risk 

assessment under § 411.41 to inform 

assignment of UCs to housing, 

education, recreation, and other 

activities and services. The care 

provider facility must make 

individualized determinations about 

how to ensure the safety and health of 

each UC. 

(b) Care provider facilities may not 

place UCs on one-on-one supervision as 

a result of the assessment completed in 

§ 411.41 unless there are exigent 

circumstances that require one-on-one 

supervision to keep the UC, other UCs, 

or staff safe, and then, only until an 

alternative means of keeping all 

residents and staff safe can be arranged. 

During any period of one-on-one 

supervision, a UC may not be denied 

any required services, including but not 

limited to daily large-muscle exercise, 

required educational programming, and 

social services, as reasonable under the 

circumstances. UCs on one-on-one 

supervision must receive daily visits 

from a medical practitioner or mental 

health care clinician as necessary unless 

the medical practitioner or mental 

health care clinician determines daily 

visits are not required. The medical 

practitioner or mental health care 

clinician, however, must continue to 

meet with the UC on a regular basis 

while the UC is on one-on-one 

supervision. 

(c) When making assessment and 

housing assignments for a transgender 

or intersex UCs, the care provider 

facility must consider the UC’s gender 

self-identification and an assessment of 

the effects of a housing assignment on 

the UC’s health and safety. The care 

provider facility must consult a medical 

or mental health professional as soon as 

practicable on this assessment. The care 

provider facility must not base housing 

assignment decisions of transgender or 

intersex UCs solely on the identity 

documents or physical anatomy of the 

UC; a UC’s self-identification of his/her 

gender and self-assessment of safety 

needs must always be taken into 

consideration as well. An identity 

document may include but is not 

limited to official U.S. and foreign 

government documentation, birth 

certificates, and other official 

documentation stating the UC’s sex. The 

care provider facility’s housing 

assignment of a transgender or intersex 

UCs must be consistent with the safety 

and security considerations of the care 

provider facility, State and local 

licensing standards, and housing and 

programming assignments of each 

transgender or intersex UCs must be 

regularly reassessed to review any 

threats to safety experienced by the UC. 

Subpart F—Reporting 

§ 411.51 UC reporting. 

(a) The care provider facility must 

develop policies and procedures in 

accordance with § 411.15 to ensure that 

UCs have multiple ways to report to the 

care provider: Sexual abuse and sexual 

harassment, retaliation for reporting 

sexual abuse or sexual harassment, and 

staff neglect or violations of 

responsibilities that may have 

contributed to such incidents. The care 

provider facility also must provide 

access to and instructions on how UCs 

may contact their consular official, 

ORR’s headquarters, and an outside 

entity to report these incidents. Care 

provider facilities must provide UCs 

access to telephones with free, 

preprogrammed numbers for ORR 

headquarters and the outside entity 

designated under § 411.51(b). 

(b) The care provider facility must 

provide and inform the UC of at least 

one way for UCs to report sexual abuse 

and sexual harassment to an entity or 

office that is not part of the care 

provider facility and is able to receive 

and immediately forward UC reports of 

sexual abuse and sexual harassment to 

ORR officials, allowing UCs to remain 

anonymous upon request. The care 

provider facility must maintain or 

attempt to enter into a memorandum of 

understanding or other agreement with 

the entity or office and maintain copies 

of agreements or documentation 

showing attempts to enter into 

agreements. 

(c) The care provider facility’s 

policies and procedures must include 

provisions for staff to accept reports 

made verbally, in writing, anonymously, 

and from third parties. Staff must 

promptly document any verbal reports. 

(d) All allegations or knowledge of 

sexual abuse and sexual harassment by 

staff or UCs must be immediately 

reported to the State or local licensing 

agency, the State or local Child 

Protective Services agency, State or 

local law enforcement, and to ORR 

according to ORR’s policies and 

procedures. 

§ 411.52 Grievances. 

(a) The care provider facility must 

implement written policies and 

procedures for identifying and handling 

time-sensitive grievances that involve 

an immediate threat to UC health, 

safety, or welfare related to sexual abuse 

and sexual harassment. All such 

grievances must be reported to ORR 

according to ORR policies and 

procedures. 

(b) The care provider facility’s staff 

must bring medical emergencies to the 

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immediate attention of proper medical 

and/or emergency services personnel for 

further assessment. 

(c) The care provider facility must 

issue a written decision on the 

grievance within five days of receipt. 

(d) To prepare a grievance, a UC may 

obtain assistance from another UC, care 

provider facility staff, family members, 

or legal representatives. Care provider 

facility staff must take reasonable steps 

to expedite requests for assistance from 

these other parties. 

§ 411.53 UC access to outside confidential 

support services. 

(a) Care provider facilities must 

utilize available community resources 

and services to provide valuable 

expertise and support in the areas of 

crisis intervention, counseling, 

investigation, and the prosecution of 

sexual abuse perpetrators to most 

appropriately address a sexual abuse 

victim’s needs. The care provider 

facility must maintain or attempt to 

enter into memoranda of understanding 

or other agreements with community 

service providers, or if local providers 

are not available, with national 

organizations that provide legal 

advocacy and confidential emotional 

support services for immigrant victims 

of crime. The care provider facility must 

maintain copies of its agreements or 

documentation showing attempts to 

enter into such agreements. 

(b) Care provider facilities must have 

written policies and procedures to 

include outside agencies in the care 

provider facility’s sexual abuse and 

sexual harassment prevention and 

intervention protocols, if such resources 

are available. 

(c) Care provider facilities must make 

available to UC information about local 

organizations that can assist UCs who 

are victims of sexual abuse and sexual 

harassment, including mailing 

addresses and telephone numbers 

(including toll-free hotline numbers 

where available). If no such local 

organizations exist, the care provider 

facility must make available the same 

information about national 

organizations. The care provider facility 

must enable reasonable communication 

between UCs and these organizations 

and agencies in a confidential manner 

and inform UCs, prior to giving them 

access, of the extent to which such 

communications will be confidential. 

§ 411.54 Third-party reporting. 

ORR must establish a method to 

receive third-party reports of sexual 

abuse and sexual harassment and must 

make available to the public information 

on how to report sexual abuse and 

sexual harassment on behalf of a UC. 

§ 411.55 UC access to attorneys or other 

legal representatives and families. 

(a) Care provider facilities must 

provide UCs confidential access to their 

attorney or other legal representative in 

accordance with the care provider’s 

attorney-client visitation rules. The care 

provider’s visitation rules must include 

provisions for immediate access in the 

case of an emergency or exigent 

circumstance. The care provider’s 

attorney-client visitation rules must be 

approved by ORR to ensure the rules are 

reasonable and appropriate and include 

provisions for emergencies and exigent 

circumstances. 

(b) Care provider facilities must 

provide UCs access to their families, 

including legal guardians, unless ORR 

has documentation showing that certain 

family members or legal guardians 

should not be provided access because 

of safety concerns. 

Subpart G—Official Response 

Following a UC Report 

§ 411.61 Staff reporting duties. 

(a) All care provider facility staff, 

volunteers, and contractors must 

immediately report to ORR according to 

ORR policies and procedures and to 

State or local agencies in accordance 

with mandatory reporting laws: any 

knowledge, suspicion, or information 

regarding an incident of sexual abuse or 

sexual harassment that occurred while a 

UC was in ORR care; retaliation against 

UCs or staff who reported such an 

incident; and any staff neglect or 

violation of responsibilities that may 

have contributed to an incident or 

retaliation. ORR must review and 

approve the care provider facility’s 

policies and procedures and ensure that 

the care provider facility specifies 

appropriate reporting procedures. 

(b) Care provider facility staff 

members who become aware of alleged 

sexual abuse or sexual harassment must 

immediately follow reporting 

requirements set forth by ORR’s and the 

care provider facility’s policies and 

procedures. 

(c) Apart from such reporting, care 

provider facility staff must not reveal 

any information related to a sexual 

abuse or sexual harassment report to 

anyone within the care provider facility 

except to the extent necessary for 

medical or mental health treatment, 

investigations, notice to law 

enforcement, or other security and 

management decisions. 

(d) Care provider facility staff must 

report any sexual abuse and sexual 

harassment allegations to the designated 

State or local services agency under 

applicable mandatory reporting laws in 

addition to law enforcement and the 

State and local licensing agency. 

(e) Upon receiving an allegation of 

sexual abuse or sexual harassment that 

occurred while a UC was in ORR care, 

the care provider facility head or his or 

her designee must report the allegation 

to the alleged victim’s parents or legal 

guardians, unless ORR has evidence 

showing the parents or legal guardians 

should not be notified or the victim 

does not consent to this disclosure of 

information and is 14 years of age or 

older and ORR has determined the 

victim is able to make an independent 

decision. 

(f) Upon receiving an allegation of 

sexual abuse or sexual harassment that 

occurred while a UC was in ORR care, 

ORR will share this information with 

the UC’s attorney of record within 48 

hours of learning of the allegation 

unless the UC does not consent to this 

disclosure of information and is 14 

years of age or older and ORR has 

determined the victim is able to make 

an independent decision. 

§ 411.62 Protection duties. 

If a care provider facility employee, 

volunteer, or contractor reasonably 

believes that a UC is subject to 

substantial risk of imminent sexual 

abuse or sexual harassment, he or she 

must take immediate action to protect 

the UC. 

§ 411.63 Reporting to other care provider 

facilities and DHS. 

(a) Upon receiving an allegation that 

a UC was sexually abused or sexually 

harassed while at another care provider 

facility, the care provider facility whose 

staff received the allegation must 

immediately notify ORR, but no later 

than 24 hours after receiving the 

allegation. ORR will then notify the care 

provider facility where the alleged 

abuse or harassment occurred. 

(b) The care provider facility must 

document that it provided such 

notification to ORR. 

(c) The care provider facility that 

receives such notification, to the extent 

that such care provider facility is 

covered by this part, must ensure that 

the allegation is referred for 

investigation in accordance with these 

standards. 

(d) Upon receiving an allegation that 

a UC was sexually abused or sexually 

harassed while in DHS custody, the care 

provider facility whose staff received 

the allegation must immediately notify 

ORR, but no later than 24 hours after 

receiving an allegation. ORR will then 

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report the allegation to DHS in 

accordance with DHS policies and 

procedures. 

(e) The care provider facility must 

document that it provided such 

notification to ORR. 

§ 411.64 Responder duties. 

(a) Upon learning of an allegation that 

a UC was sexually abused while in an 

ORR care provider facility, the first care 

provider facility staff member to 

respond to the report must be required 

to: 

(1) Separate the alleged victim, 

abuser, and any witnesses; 

(2) Preserve and protect, to the 

greatest extent possible, any crime scene 

until the appropriate authorities can 

take steps to collect any evidence; 

(3) If the abuse occurred within a time 

period that still allows for the collection 

of physical evidence, request that the 

alleged victim not take any actions that 

could destroy physical evidence, 

including, as appropriate, washing, 

brush teeth, changing clothes, urinating, 

defecating, smoking, drinking, or eating; 

and 

(4) If the abuse occurred within a time 

period that still allows for the collection 

of physical evidence, request that the 

alleged abuser(s) and/or witnesses, as 

necessary, do not take any actions that 

could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, 

drinking, or eating. 

§ 411.65 Coordinated response. 

(a) Care provider facilities must 

develop a written institutional plan to 

coordinate actions taken by staff first 

responders, medical and mental health 

practitioners, outside investigators, 

victim advocates, and care provider 

facility leadership in response to an 

incident of sexual abuse to ensure that 

victims receive all necessary immediate 

and ongoing medical, mental health, 

and support services and that 

investigators are able to obtain usable 

evidence. ORR must approve the written 

institutional plan. 

(b) Care provider facilities must use a 

coordinated, multidisciplinary team 

approach to responding to sexual abuse. 

(c) If a victim of sexual abuse is 

transferred between ORR care provider 

facilities, ORR must, as permitted by 

law, inform the receiving care provider 

facility of the incident and the victim’s 

potential need for medical or social 

services. 

(d) If a victim of sexual abuse is 

transferred from an ORR care provider 

facility to a non-ORR facility or sponsor, 

ORR must, as permitted by law, inform 

the receiving facility or sponsor of the 

incident and the victim’s potential need 

for medical or social services, unless the 

victim requests otherwise. 

§ 411.66 Protection of UCs from contact 

with alleged abusers. 

ORR and care provider facility staff, 

contractors, and volunteers suspected of 

perpetrating sexual abuse or sexual 

harassment must be suspended from all 

duties that would involve or allow 

access to UCs pending the outcome of 

an investigation. 

§ 411.67 Protection against retaliation. 

Care provider facility staff, 

contractors, volunteers, and UCs must 

not retaliate against any person who 

reports, complains about, or participates 

in an investigation of alleged sexual 

abuse or sexual harassment. For the 

remainder of the UC’s stay in ORR 

custody following a report of sexual 

abuse or sexual harassment, ORR and 

the care provider facility must monitor 

to see if there are facts that may suggest 

possible retaliation by UCs or care 

provider facility staff and must 

promptly remedy any such retaliation. 

ORR and the care provider facility must 

also monitor to see if there are facts that 

may suggest possible retaliation by UCs 

or care provider facility staff against any 

staff member, contractor, or volunteer 

and must promptly remedy any such 

retaliation. Items ORR and the care 

provider facility should monitor include 

but are not limited to any UC 

disciplinary reports, housing or program 

changes, negative performance reviews, 

or reassignments of staff. Care provider 

facilities must discuss any changes with 

the appropriate UC or staff member as 

part of their efforts to determine if 

retaliation is taking place and, when 

confirmed, immediately takes steps to 

protect the UC or staff member. 

§ 411.68 Post-allegation protection. 

(a) Care provider facilities must 

ensure that UC victims of sexual abuse 

and sexual harassment are assigned to a 

supportive environment that represents 

the least restrictive housing option 

possible to keep the UC safe and secure, 

subject to the requirements of § 411.42. 

(b) The care provider facility should 

employ multiple protection measures to 

ensure the safety and security of UC 

victims of sexual abuse and sexual 

harassment, including but not limited 

to: Housing changes or transfers for UC 

victims and/or abusers or harassers; 

removal of alleged UC abusers or 

harassers from contact with victims; and 

emotional support services for UCs or 

staff who fear retaliation for reporting 

sexual abuse or sexual harassment or 

cooperating with investigations. 

(c) A UC victim may be placed on 

one-on-one supervision in order to 

protect the UC in exigent circumstances. 

Before taking the UC off of one-on-one 

supervision, the care provider facility 

must complete a re-assessment taking 

into consideration any increased 

vulnerability of the UC as a result of the 

sexual abuse or sexual harassment. The 

re-assessment must be completed as 

soon as possible and without delay so 

that the UC is not on one-on-one 

supervision longer than is absolutely 

necessary for safety and security 

reasons. 

Subpart H—ORR Incident Monitoring 

and Evaluation 

§ 411.71 ORR monitoring and evaluation of 

care provider facilities following an 

allegation of sexual abuse or sexual 

harassment. 

(a) Upon receiving an allegation of 

sexual abuse or sexual harassment that 

occurs at an ORR care provider facility, 

ORR will monitor and evaluate the care 

provider facility to ensure that the care 

provider facility complied with the 

requirements of this section or ORR 

policies and procedures. Upon 

conclusion of an outside investigation, 

ORR must review any available 

completed investigation reports to 

determine whether additional 

monitoring and evaluation activities are 

required. 

(b) ORR must develop written policies 

and procedures for incident monitoring 

and evaluation of sexual abuse and 

sexual harassment allegations, including 

provision requiring: 

(1) Reviewing prior complaints and 

reports of sexual abuse and sexual 

harassment involving the suspected 

perpetrator; 

(2) Determining whether actions or 

failures to act at the care provider 

facility contributed to the abuse or 

harassment; 

(3) Determining if any ORR policies 

and procedures or relevant legal 

authorities were broken; and 

(4) Retention of such reports for as 

long as the alleged abuser or harasser is 

in ORR custody or employed by ORR or 

the care provider facility, plus ten years. 

(c) ORR must ensure that its incident 

monitoring and evaluation does not 

interfere with any ongoing investigation 

conducted by State or local Child 

Protective Services, the State or local 

licensing agency, or law enforcement. 

(d) When outside agencies investigate 

an allegation of sexual abuse or sexual 

harassment, the care provider facility 

and ORR must cooperate with outside 

investigators. 

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77798 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Rules and Regulations 

§ 411.72 Reporting to UCs. 

Following an investigation by the 

appropriate investigating authority into 

a UC’s allegation of sexual abuse or 

sexual harassment, ORR must notify the 

UC in his/her preferred language of the 

result of the investigation if the UC is 

still in ORR care and custody and where 

feasible. If a UC has been released from 

ORR care when an investigation is 

completed, ORR should attempt to 

notify the UC. ORR may encourage the 

investigating agency to also notify other 

complainants or additional parties 

notified of the allegation of the result of 

the investigation. 

Subpart I—Interventions and Discipline 

§ 411.81 Disciplinary sanctions for staff. 

(a) Care provider facilities must take 

disciplinary action up to and including 

termination against care provider 

facility staff with a substantiated 

allegation of sexual abuse or sexual 

harassment against them or for violating 

ORR or the care provider facility’s 

sexual abuse and sexual harassment 

policies and procedures. 

(b) Termination must be the 

presumptive disciplinary sanction for 

staff who engaged in sexual abuse or 

sexual harassment. 

(c) All terminations for violations of 

ORR and/or care provider facility sexual 

abuse and sexual harassment policies 

and procedures or resignations by staff, 

who would have been terminated if not 

for their resignation, must be reported to 

law enforcement agencies and to any 

relevant State or local licensing bodies. 

(d) Any staff member with a 

substantiated allegation of sexual abuse 

or sexual harassment against him/her at 

an ORR care provider facility is barred 

from employment at any ORR care 

provider facility. 

§ 411.82 Corrective actions for contractors 

and volunteers. 

(a) Any contractor or volunteer with 

a substantiated allegation of sexual 

abuse or sexual harassment against him/ 

her must be prohibited from working or 

volunteering at the care provider facility 

and at any ORR care provider facility. 

(b) The care provider facility must 

take appropriate remedial measures and 

must consider whether to prohibit 

further contact with UCs by contractors 

or volunteers who have not engaged in 

sexual abuse or sexual harassment but 

violated other provisions within these 

standards, ORR sexual abuse and sexual 

harassment policies and procedures, or 

the care provider’s sexual abuse and 

sexual harassment policies and 

procedures. 

§ 411.83 Interventions for UCs who engage 

in sexual abuse. 

UCs must receive appropriate 

interventions if they engage in UC-onUC sexual abuse. Decisions regarding 

which types of interventions to use in 

particular cases, including treatment, 

counseling, or educational programs, are 

made with the goal of promoting 

improved behavior by the UC and 

ensuring the safety of other UCs and 

staff. Intervention decisions should take 

into account the social, sexual, 

emotional, and cognitive development 

of the UC and the UC’s mental health 

status. Incidents of UC-on-UC abuse are 

referred to all investigating authorities, 

including law enforcement entities. 

Subpart J—Medical and Mental Health 

Care 

§ 411.91 Medical and mental health 

assessments; history of sexual abuse. 

(a) If the assessment pursuant to 

§ 411.41 indicates that a UC experienced 

prior sexual victimization or perpetrated 

sexual abuse, the care provider facility 

must ensure that the UC is immediately 

referred to a qualified medical or mental 

health practitioner for medical and/or 

mental health follow-up as appropriate. 

Care provider facility staff must also 

ensure that all UCs disclosures are 

reported in accordance with these 

standards. 

(b) When a referral for medical followup is initiated, the care provider facility 

must ensure that the UC receives a 

health evaluation no later than seventytwo (72) hours after the referral. 

(c) When a referral for mental health 

follow-up is initiated, the care provider 

facility must ensure that the UC receives 

a mental health evaluation no later than 

seventy-two (72) hours after the referral. 

§ 411.92 Access to emergency medical 

and mental health services. 

(a) Care provider facilities must 

provide UC victims of sexual abuse 

timely, unimpeded access to emergency 

medical treatment, crisis intervention 

services, emergency contraception, and 

sexually transmitted infections 

prophylaxis, in accordance with 

professionally accepted standards of 

care, where appropriate under medical 

or mental health professional standards. 

(b) Care provider facilities must 

provide UC victims of sexual abuse 

access to all medical treatment and 

crisis intervention services regardless of 

whether the victim names the abuser or 

cooperates with any investigation 

arising out of the incident. 

§ 411.93 Ongoing medical and mental 

health care for sexual abuse and sexual 

harassment victims and abusers. 

(a) Care provider facilities must offer 

ongoing medical and mental health 

evaluations and treatment to all UCs 

who are victimized by sexual abuse or 

sexual harassment while in ORR care 

and custody. 

(b) The evaluation and treatment of 

such victims must include, as 

appropriate, follow-up services, 

treatment plans, and, when necessary, 

referrals for continued care following 

their transfer to or placement in other 

care provider facilities or their release 

from ORR care and custody. 

(c) The care provider facility must 

provide victims with medical and 

mental health services consistent with 

the community level of care. 

(d) Care provider facilities must 

ensure that female UC victims of sexual 

abuse by a male abuser while in ORR 

care and custody are offered pregnancy 

tests, as necessary. If pregnancy results 

from an instance of sexual abuse, care 

provider facility must ensure that the 

victim receives timely and 

comprehensive information about all 

lawful pregnancy-related medical 

services and timely access to all lawful 

pregnancy-related medical services. In 

order for UCs to make informed 

decisions regarding medical services, 

including, as appropriate, medical 

services provided under § 411.92, care 

provider facilities should engage the UC 

in discussions with family members or 

attorneys of record in accordance with 

§ 411.55 to the extent practicable and 

follow appropriate State laws regarding 

the age of consent for medical 

procedures. 

(e) Care provider facilities must 

ensure that UC victims of sexual abuse 

that occurred while in ORR care and 

custody are offered tests for sexually 

transmitted infections as medically 

appropriate. 

(f) Care provider facilities must ensure 

that UC victims are provided access to 

treatment services regardless of whether 

the victim names the abuser or 

cooperates with any investigation 

arising out of the incident. 

(g) The care provider facility must 

attempt to conduct a mental health 

evaluation of all known UC-on-UC 

abusers within seventy-two (72) hours 

of learning of such abuse and/or abuse 

history and offer treatment when 

deemed appropriate by mental health 

practitioners. 

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Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Rules and Regulations 77799 

Subpart K—Data Collection and 

Review 

§ 411.101 Sexual abuse and sexual 

harassment incident reviews. 

(a) Care provider facilities must 

conduct sexual abuse or sexual 

harassment incident reviews at the 

conclusion of every investigation of 

sexual abuse or sexual harassment and, 

where the allegation was either 

substantiated or unable to be 

substantiated but not determined to be 

unfounded, prepare a written report 

recommending whether the incident 

review and/or investigation indicates 

that a change in policy or practice could 

better prevent, detect, or respond to 

sexual abuse and sexual harassment. 

The care provider facility must 

implement the recommendations for 

improvement or must document its 

reason for not doing so in a written 

response. Both the report and response 

must be forwarded to ORR’s Prevention 

of Sexual Abuse Coordinator. Care 

provider facilities also must collect 

accurate, uniform data for every 

reported incident of sexual abuse and 

sexual harassment using a standardized 

instrument and set of definitions. 

(b) Care provider facilities must 

conduct an annual review of all sexual 

abuse and sexual harassment 

investigations and resulting incident 

reviews to assess and improve sexual 

abuse and sexual harassment detection, 

prevention, and response efforts. The 

results and findings of the annual 

review must be provided to ORR’s 

Prevention of Sexual Abuse 

Coordinator. 

§ 411.102 Data collection. 

(a) Care provider facilities must 

maintain all case records associated 

with claims of sexual abuse and sexual 

harassment, including incident reports, 

investigative reports, offender 

information, case disposition, medical 

and counseling evaluation findings, and 

recommendations for post-release 

treatment and/or counseling in 

accordance with these standards and 

applicable Federal and State laws and 

ORR policies and procedures. 

(b) On an ongoing basis, the PSA 

Compliance Manager must work with 

care provider facility management and 

ORR to share data regarding effective 

care provider facility response methods 

to sexual abuse and sexual harassment. 

(c) On a quarterly basis, the PSA 

Compliance Manager must prepare a 

report for ORR compiling information 

received about all incidents and 

allegations of sexual abuse and sexual 

harassment of UCs in the care provider 

facility during the period covered by the 

report as well as ongoing investigations 

and other pending cases. 

(d) On an annual basis, the PSA 

Compliance Manager must aggregate 

incident-based sexual abuse and sexual 

harassment data, including the number 

of reported sexual abuse and sexual 

harassment allegations determined to be 

substantiated, unsubstantiated, 

unfounded, or for which an 

investigation is ongoing. For each 

incident, information concerning the 

following also must be included: 

(1) The date, time, location, and 

nature of the incident; 

(2) The demographic background of 

the victim and perpetrator (including 

citizenship, nationality, age, and sex) 

that excludes specific identifying 

information; 

(3) The reporting timeline for the 

incident (including the name of the 

individual who reported the incident; 

the date and time the report was 

received by the care provider facility; 

and the date and time the incident was 

reported to ORR); 

(4) Any injuries sustained by the 

victim; 

(5) Post-report follow-up responses 

and action taken by the care provider 

facility (e.g., housing placement 

changes, medical examinations, mental 

health counseling); 

(6) Any interventions imposed on the 

perpetrator. 

(e) Care provider facilities must 

provide all data described in this 

section from the previous calendar year 

to ORR no later than August 31. 

§ 411.103 Data review for corrective 

action. 

(a) ORR must review data collected 

and aggregated pursuant to §§ 411.101 

and 411.102 in order to assess and 

improve the effectiveness of its sexual 

abuse and sexual harassment 

prevention, detection, and response 

policies, procedures, practices, and 

training, including: 

(1) Identifying problem areas; 

(2) Taking corrective actions on an 

ongoing basis; and 

(3) Preparing an annual report of its 

findings and corrective actions for each 

care provider facility as well as ORR as 

a whole. 

(b) Such report must include a 

comparison of the current year’s data 

and corrective actions with those from 

prior years and must provide an 

assessment of ORR’s progress in 

preventing, detecting, and responding to 

sexual abuse and sexual harassment. 

(c) The Director of ORR must approve 

ORR’s annual report on ORR’s UC 

Program as a whole and make the report 

available to the public through its Web 

site or otherwise make the report readily 

available to the public. 

(d) ORR may redact specific material 

from the reports when necessary for 

safety and security reasons but must 

indicate the nature of the material 

redacted. 

§ 411.104 Data storage, publication, and 

destruction. 

(a) ORR must ensure that data 

collected pursuant to §§ 411.101 and 

411.102 is securely retained in 

accordance with Federal and State laws 

and ORR record retention policies and 

procedures. 

(b) ORR must make all aggregated 

sexual abuse and sexual harassment 

data from ORR care provider facilities 

with which it provides a grant to or 

contracts with, excluding secure care 

providers and traditional foster care 

providers, available to the public at least 

annually on its Web site consistent with 

existing ORR information disclosure 

policies and procedures. 

(c) Before making any aggregated 

sexual abuse and sexual harassment 

data publicly available, ORR must 

remove all personally identifiable 

information. 

(d) ORR must maintain sexual abuse 

and sexual harassment data for at least 

10 years after the date of its initial 

collection unless Federal, State, or local 

law requires for the disposal of official 

information in less than 10 years. 

Subpart L—Audits and Corrective 

Action 

§ 411.111 Frequency and scope of audits. 

(a) Within three years of February 22, 

2016, each care provider facility that 

houses UCs will be audited at least 

once; and during each three-year period 

thereafter. 

(b) ORR may expedite an audit if it 

believes that a particular care provider 

facility may be experiencing problems 

related to sexual abuse or sexual 

harassment. 

(c) ORR must develop and issue an 

instrument that is coordinated with the 

HHS Office of the Inspector General that 

will provide guidance on the conduct 

and contents of the audit. 

(d) The auditor must review all 

relevant ORR-wide policies, procedures, 

reports, internal and external audits, 

and licensing requirements for each care 

provider facility type. 

(e) The audits must review, at a 

minimum, a sampling of relevant 

documents and other records and other 

information for the most recent one-year 

period. 

(f) The auditor must have access to, 

and must observe, all areas of the 

audited care provider facilities. 

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77800 Federal Register / Vol. 79, No. 247 / Wednesday, December 24, 2014 / Rules and Regulations 

(g) ORR and the care provider facility 

must provide the auditor with the 

relevant documentation to complete a 

thorough audit of the care provider 

facility. 

(h) The auditor must retain and 

preserve all documentation (including, 

e.g., videotapes and interview notes) 

relied upon in making audit 

determinations. Such documentation 

must be provided to ORR upon request. 

(i) The auditor must interview a 

representative sample of UCs and staff, 

and the care provider facility must make 

space available suitable for such 

interviews. 

(j) The auditor must review a 

sampling of any available video footage 

and other electronically available data 

that may be relevant to the provisions 

being audited. 

(k) The auditor must be permitted to 

conduct private interviews with UCs. 

(l) UCs must be permitted to send 

confidential information or 

correspondence to the auditor. 

(m) Auditors must attempt to solicit 

input from community-based or victim 

advocates who may have insight into 

relevant conditions in the care provider 

facility. 

(n) All sensitive and confidential 

information provided to auditors will 

include appropriate designations and 

limitations on further dissemination. 

Auditors must follow appropriate 

procedures for handling and 

safeguarding such information. 

(o) Care provider facilities bear the 

affirmative burden on demonstrating 

compliance with the standards to the 

auditor. 

§ 411.112 Auditor qualifications. 

(a) An audit must be conducted by an 

entity or individual with relevant 

auditing or evaluation experience and is 

external to ORR. 

(b) All auditors must be certified by 

ORR, and ORR must develop and issue 

procedures regarding the certification 

process within six months of December 

24, 2014, which must include training 

requirements. 

(c) No audit may be conducted by an 

auditor who received financial 

compensation from the care provider, 

the care provider’s agency, or ORR 

(except for compensation received for 

conducting other audits) within the 

three years prior to ORR’s retention of 

the auditor. 

(d) ORR, the care provider, or the care 

provider’s agency must not employ, 

contract with, or otherwise financially 

compensate the auditor for three years 

subsequent to ORR’s retention of the 

auditor, with the exception of 

contracting for subsequent audits. 

§ 411.113 Audit contents and findings. 

(a) Each audit must include a 

certification by the auditor that no 

conflict of interest exists with respect to 

his or her ability to conduct an audit of 

the care provider facility under review. 

(b) Audit reports must state whether 

care provider facility policies and 

procedures comply with all standards. 

(c) For each of these standards, the 

auditor must determine whether the 

audited care provider facility reaches 

one of the following findings: Exceeds 

Standard (substantially exceeds 

requirement of standard); Meets 

Standard (substantial compliance; 

complies in all material ways with the 

standard for the relevant review period); 

Does Not Meet Standard (requires 

corrective action). The audit summary 

must indicate, among other things, the 

number of provisions the care provider 

facility achieved at each grade level. 

(d) Audit reports must describe the 

methodology, sampling sizes, and basis 

for the auditor’s conclusions with regard 

to each standard provision for each 

audited care provider facility and must 

include recommendations for any 

required correction action. 

(e) Auditors must redact any 

personally identifiable information of 

UCs or staff information from their 

reports but must provide such 

information to ORR upon request. 

(f) ORR must ensure that aggregated 

data on final audit reports is published 

on ORR’s Web site, or is otherwise made 

readily available to the public. ORR 

must redact any sensitive or 

confidential information prior to 

providing such reports publicly. 

§ 411.114 Audit corrective action plan. 

(a) A finding of ‘‘Does Not Meet 

Standard’’ with one or more standards 

must trigger a 90-day corrective action 

period. 

(b) The auditor and ORR must jointly 

develop a corrective action plan to 

achieve compliance. 

(c) The auditor must take necessary 

and appropriate steps to verify 

implementation of the corrective action 

plan, such as reviewing updated 

policies and procedures or re-inspecting 

portions of a care provider facility. 

(d) After the 180-day corrective action 

period ends, the auditor must issue a 

final determination as to whether the 

care provider facility achieved 

compliance with those standards 

requiring corrective action. 

(e) If the care provider facility does 

not achieve compliance with each 

standard, it may (at its discretion and 

cost) request a subsequent audit once it 

believes that it achieved compliance. 

§ 411.115 Audit appeals. 

(a) A care provider facility may file an 

appeal with ORR regarding any specific 

audit finding that it believes to be 

incorrect. Such appeal must be filed 

within 90 days of the auditor’s final 

determination. 

(b) If ORR determines that the care 

provider facility stated good cause for 

re-evaluation, the care provider facility 

may commission a re-audit by an 

auditor mutually agreed upon by ORR 

and the care provider facility. The care 

provider facility must bear the costs of 

the re-audit. 

(c) The findings of the re-audit are 

considered final. 

[FR Doc. 2014–29984 Filed 12–19–14; 11:15 am] 

BILLING CODE 4184–01–P 

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