```

[Federal Register Volume 89, Number 229 (Wednesday, November 27, 2024)]
[Rules and Regulations]
[Pages 93498-93522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27626]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 412

RIN 0970-AD10

Investigations of Child Abuse and Neglect Rule

AGENCY: Office of Refugee Resettlement (ORR), Administration for 
Children and Families (ACF), U.S. Department of Health and Human 
Services (HHS).

ACTION: Interim final rule with comment period (IFR).

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SUMMARY: This IFR describes how ORR shall investigate and substantiate 
allegations of child abuse and neglect occurring in certain ORR care 
provider facilities, and maintain a registry of perpetrators relating 
to certain sustained allegations.

DATES: This IFR is effective December 27, 2024. Comments on this IFR 
must be received on or before January 27, 2025.

ADDRESSES: You may send comments, identified by [docket number and/or 
Regulatory Information Number (RIN)], by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include 
[docket number and/or RIN] in the subject line of the message.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking. For detailed instructions 
on submitting comments and additional information on the rulemaking 
process, see the ``Public Participation'' heading of the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Toby Biswas, Director of Policy, 
Division of Unaccompanied Children Policy, Unaccompanied Children 
Bureau, Office of Refugee Resettlement, Administration for Children and 
Families, Department of Health and Human Services, Washington, DC, 
(202) 205-4440 or [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
II. Table of Abbreviations
III. Executive Summary
IV. Background and Purpose
    A. Background and History
    B. Authority
    C. Basis and Scope of Regulatory Action
    D. Severability
V. Discussion of Elements of the Interim Final Rule
VI. Good Cause for Issuing This IFR
VII. Collection of Information Requirements
VIII. Regulatory Impact Analysis
    A. Economic Analysis
    B. Regulatory Flexibility Analysis
    C. Unfunded Mandates Reform Act
    D. Executive Order 13132: Federalism
    E. Executive Order 12988: Civil Justice Reform
IX. Assessment of Federal Regulation and Policies on Families

I. Public Participation

    ORR encourages all interested parties to participate in this 
rulemaking by submitting written comments, views, and data on any or 
all aspects of this interim final rule. ORR also invites comments that 
relate to the economic, environmental, or federalism effects that might 
result from this interim final rule. ORR will review all comments 
received, but ORR will only post comments that address the topic of the 
interim final rule. All comments ORR posts to https://www.regulations.gov will include any personal or commercial information 
you provide.

A. Submitting Comments

    Comments that will provide the most assistance to ORR will 
reference a specific portion of the interim final rule, explain the 
reason for any recommended change, and include data, information, or 
authority that support such recommended change. If you submit comments, 
please indicate the specific section of this document to which each 
comment applies and provide a reason for each suggestion or 
recommendation. You may submit your comments and materials online or by 
email, but please use only one of these means. If you submit a comment 
online via https://www.regulations.gov, it will be considered received 
when it is received at the Docket Management Facility.
    Instructions: To submit your comments online, go to https://www.regulations.gov and insert ``XXXX-XXXX-XXXX'' in the ``Search'' 
box. Click on the ``Comment Now!'' box and input your comment in the 
text box provided. Click the ``Continue'' box, and if you are satisfied 
with your comment, follow the prompts to submit it.
    For additional information, please read the ``Privacy and Security 
Notice'' that is available via the link in the footer of https://www.regulations.gov.
    ORR will consider all comments and materials received during the 
comment period and may change this rule based on your comments.

B. Viewing Comments and Documents

    Docket: To view posted comments, as well as documents mentioned in 
this preamble as being available in the docket, go to https://www.regulations.gov and insert ``XXXX-XXXX-XXXX'' in the ``Search'' 
box. Click on the ``Open Docket Folder,'' and you can click on ``View 
Comment'' or ``View All'' under the ``Comments'' section of the page. 
Individuals without internet access can make alternate arrangements for 
viewing comments and documents related to this rulemaking by contacting 
ORR through the FOR FURTHER INFORMATION CONTACT section above. You may 
sign up for email alerts on the online docket to be notified when 
comments are posted, or a final rule is published.

C. Privacy Act

    As stated in the Submitting Comments section above, please be aware 
that anyone can search the electronic form of comments received into 
any dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.).

II. Table of Abbreviations

ACF--Administration for Children and Families
ALJ--Administrative Law Judge
CAPTA--Child Abuse Prevention and Treatment Act
CWT--ORR's Child Welfare Team
DAB--HHS Departmental Appeals Board
DOJ--U.S. Department of Justice
EIF--Emergency or Influx Facility
FBI--Federal Bureau of Investigation
FSA--Flores Settlement Agreement
HHS--U.S. Department of Health and Human Services

[[Page 93499]]

HSA--Homeland Security Act of 2002
OIG--Office of the Inspector General
OMB--Office of Management and Budget
ORR--Office of Refugee Resettlement, U.S. Department of Health and 
Human Services
PCAN Team--ORR's Prevention of Child Abuse and Neglect Team
PSA IFR--Standards To Prevent, Detect, and Respond to Sexual Abuse 
and Sexual Harassment Involving Unaccompanied Children, Interim 
Final Rule
TVPRA--William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008
UC Bureau--Unaccompanied Children Bureau
VCAA--Victims of Child Abuse Act

III. Executive Summary

    This interim final rule provides standards and processes for the 
Department of Health and Human Services (HHS), Administration for 
Children and Families (ACF), Office of Refugee Resettlement (ORR), to 
apply when it conducts investigations into allegations of child abuse 
and neglect that occur in certain care provider facilities funded by 
ORR to provide residential and other services for unaccompanied 
children; \1\ describes a process for appeal and review of 
substantiated allegations; and establishes an ORR Central Registry to 
list individuals with certain findings of child abuse and neglect that 
have been substantiated and sustained after exhausting the appeal and 
review process. This rule describes how and in what circumstances ORR 
may conduct investigations, and impose certain consequences with 
respect to sustained allegations of child abuse and neglect by care 
provider facility staff, contractors or sub-grantees of the care 
provider facility, care provider facility volunteers, and other 
individuals with access to unaccompanied children in ORR care through 
contracts or grants with ORR. Specifically, the investigations and 
required consequences described in this rule shall apply in two 
circumstances: (1) where the State or local authority that would 
otherwise be responsible for such investigations will not investigate 
allegations arising at ORR care provider facilities that care for or 
propose to care for unaccompanied children; and (2) at ORR emergency or 
influx facilities (EIFs).
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    \1\ An unaccompanied child is defined as a child who has no 
lawful immigration status in the United States; has not attained 18 
years of age; and with respect to whom there is no parent or legal 
guardian in the United States, or no parent or legal guardian in the 
United States available to provide care and physical custody. See 6 
U.S.C. 279(g)(2).
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    Child abuse and neglect can have devastating lifelong mental and 
physical effects on an individual. ORR is committed to preventing and 
mitigating child abuse and neglect in its care provider facilities and 
seeks to ensure the safety, well-being, and security of all 
unaccompanied children in its care.

IV. Background and Purpose

A. Background and History

    On March 1, 2003, section 462 of the Homeland Security Act of 2002 
(HSA) transferred responsibilities for the care and placement of 
unaccompanied children from the Commissioner of the former Immigration 
and Naturalization Service to the Director of ORR. Since that time, ORR 
has provided for the day-to-day care of over 700,000 unaccompanied 
children in ORR care provider facilities that are currently 
administered through a nationwide network of providers (funded via 
cooperative agreements or contracts, or sub-awards thereof).\2\
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    \2\ Unaccompanied Children Bureau Fact Sheet. (July 5, 2024). 
Retrieved from: https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/fact-sheet.
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    As further detailed below in section IV.B., ORR oversees its care 
provider facilities through its Unaccompanied Children Bureau \3\ 
pursuant to its responsibilities under the HSA,\4\ the Trafficking 
Victims Protection Reauthorization Act of 2008 (TVPRA),\5\ the 
Unaccompanied Children (UC) Program Foundational Rule,\6\ the Flores 
Settlement Agreement (FSA) as relevant,7 8 and ORR's 
regulatory Standards To Prevent, Detect, and Respond to Sexual Abuse 
and Sexual Harassment Involving Unaccompanied Children interim final 
rule (PSA IFR).\9\
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    \3\ See Statement of Organization, Functions, and Delegations of 
Authority, 89 FR 49889 (Jun. 12, 2014) (redesignating the former 
``Unaccompanied Children Program'' as the ``Unaccompanied Children 
Bureau'').
    \4\ 6 U.S.C. 279.
    \5\ 8 U.S.C. 1232.
    \6\ 45 CFR part 410.
    \7\ Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-
4544-RJK(Px) (C.D. Cal. Jul. 17, 1997).
    \8\ As of the publication of this rule, the Flores Settlement 
Agreement (FSA) has been partially and conditionally terminated as 
to ORR, as a result of the publication of the UC Program 
Foundational Rule. See Order Re Defendants' Motion to Terminate the 
Flores Settlement Agreement as to Defendant HHS, Flores v. Garland, 
No. 2:85-cv-04544 (C.D. Cal. Jun. 28, 2024), ECF No. 1447.
    \9\ 45 CFR part 411.
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    Consistent with the HSA and TVPRA, ORR is responsible for the care, 
custody, and placement of unaccompanied children who are in Federal 
custody by reason of their immigration status.\10\ Any department or 
agency of the Federal government that has an unaccompanied child from a 
non-contiguous country in its custody is required to transfer custody 
of such child to HHS.\11\ Typically, ORR places unaccompanied children 
in care provider facilities it funds to provide these children with 
residential and other services, until the children can be safely 
released to qualified and vetted sponsors (individuals or entities to 
whom ORR releases unaccompanied children out of ORR custody, in 
accordance with ORR's sponsor suitability assessment process and 
release procedures),\12\ are repatriated to their home country, obtain 
legal status, or otherwise no longer meet the statutory definition of 
an unaccompanied child (e.g., turn 18 years old). In accordance with 
the UC Program Foundational Rule (and consistent with the FSA), ORR 
makes reasonable efforts to place unaccompanied children in State-
licensed facilities in those geographical areas where the majority of 
children are apprehended \13\--except in cases of emergency or influx, 
when ORR may utilize EIFs.\14\ EIFs are Federally contracted facilities 
that ORR may need to stand up quickly to accommodate placements for 
children that exceed its standard capacity. Consistent with ORR's UC 
Program Foundational Rule (and the FSA), EIFs are not required to be 
State-licensed.\15\
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    \10\ See 6 U.S.C. 279(b)(1)(A); 8 U.S.C. 1232(b)(1).
    \11\ See 8 U.S.C. 1232(b)(3).
    \12\ See 45 CFR 410.1001.
    \13\ 45 CFR 410.1103(e); see also FSA par. 6.
    \14\ See 45 CFR part 410, subpart I; see also FSA Exhibit 3.
    \15\ See 45 CFR 410.1001.
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    As of the publication date of this rulemaking, ORR has built a 
network of nearly 300 care provider facilities in 27 States, funded 
through cooperative agreements and grants between ORR and the care 
provider facilities. As discussed below, a significant number of ORR 
care provider facilities are in Texas, which has decided to no longer 
conduct investigations of reported abuse and neglect arising at ORR-
funded care provider facilities housing unaccompanied children.
    In addition, as of the publication date of this rulemaking, ORR 
oversees three influx care facilities, funded through contracts, that 
currently have no children in care but are ready to commence or resume 
operations within certain timeframes if needed.\16\ ORR does not 
currently have formal written agreements with the relevant State or 
local authorities to investigate reports of

[[Page 93500]]

child abuse and neglect at these facilities. If such agreements are 
executed, ORR may in its discretion elect not to exercise its 
investigative authority and instead rely on the relevant State or local 
authorities (consistent with its approach to sexual abuse as described 
at 45 CFR part 411).\17\ Nevertheless, even in these circumstances, ORR 
retains statutory authority to conduct investigations at EIFs, and in 
these situations could do so consistent with this rule. If ORR were to 
conduct its own investigation concurrently with a State or local 
authority's investigation, ORR would cooperate with such authority and 
ORR's investigation would not conflict with such investigation. 
Further, ORR would conduct its investigation in such a manner as to 
minimize potential trauma to the alleged victim (e.g., by not 
interviewing a child where the State or local authority has already 
interviewed the child for the same information).
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    \16\ ORR Influx Care Facilities for Unaccompanied Children Fact 
Sheet. (July 29, 2024). Retrieved from: https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/influx-care-facilities-fact-sheet.
    \17\ See infra Section IV.B.
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    To ensure that reports of child abuse and neglect at Texas care 
provider facilities and EIFs (as relevant) do not go uninvestigated, 
and pursuant to ORR's statutory responsibilities, on June 12, 2024, ORR 
established a Division of Unaccompanied Child Protection Investigations 
(DCPI) to, among other things, receive reports of alleged abuse or 
neglect involving unaccompanied children in ORR custody and investigate 
those claims where it has jurisdiction.\18\ DCPI began conducting 
investigations of alleged child abuse and neglect in ORR-funded care 
provider facilities in Texas as of July 2024. This interim final rule 
describes the procedures DCPI uses when it performs child welfare 
investigations of alleged child abuse and neglect at ORR care provider 
facilities; and establishes employment consequences for care provider 
facility staff and volunteers based on ORR investigation dispositions, 
including relevant due process protections for alleged perpetrators of 
abuse and neglect.
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    \18\ See 89 FR 49889, 49892.
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B. Authority

    ORR's statutory authority enables it to perform investigations of 
alleged child abuse and neglect occurring at its care provider 
facilities, and to establish disciplinary consequences, including 
employment consequences, for individuals it determines to have 
perpetrated abuse or neglect. The HSA transferred to the Director of 
ORR functions under the immigration laws of the United States with 
respect to the care of unaccompanied children that were vested by 
statute in, or performed by, the Commissioner of the Immigration and 
Naturalization Service. Pursuant to such transfer, the ORR Director is 
``responsible for,'' among other things, ``ensuring that the interests 
of the child are considered in decisions and actions relating to the 
care and custody of an [unaccompanied child],'' \19\ ``implementing 
policies with respect to the care and placement of [unaccompanied 
children],'' \20\ and ``identifying a sufficient number of qualified 
individuals, entities, and facilities to house [unaccompanied 
children].'' \21\ In addition, the HSA makes the ORR Director 
responsible for ``overseeing the infrastructure and personnel of 
facilities in which [unaccompanied children] reside,'' \22\ and 
``conducting investigations and inspections of facilities and other 
entities in which [unaccompanied children] reside, including regular 
follow-up visits to such facilities, placements, and other entities, to 
assess the continued suitability of such placements.'' \23\
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    \19\ 6 U.S.C. 279(b)(1)(B).
    \20\ 6 U.S.C. 279(b)(1)(E).
    \21\ 6 U.S.C. 279(b)(1)(F).
    \22\ 6 U.S.C. 279(b)(1)(G).
    \23\ 6 U.S.C. 279(b)(1)(L).
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    Necessarily, a fundamental aspect of ensuring that there are 
qualified individuals, entities, and care provider facilities to care 
for and house unaccompanied children is ensuring that care provider 
facility staff, contractors, or sub-grantees of the care provider 
facility, along with care provider facility volunteers and other 
individuals who have access to children in ORR care through contracts 
or grants with ORR, do not engage in abuse or neglect of children in 
ORR care; that such individuals who are alleged to have engaged in such 
abuse or neglect are reported and identified; that allegations of child 
abuse or neglect against such individuals are properly and thoroughly 
investigated; and that if the allegations are found to be substantiated 
and are sustained pursuant to an appeal and review process, actions are 
taken to ensure that such individuals are prohibited from working or 
volunteering in any way on ORR-funded grants or contracts and do not 
have contact with children in ORR custody. Thus, the rule described 
here is a crucial aspect of implementing ORR's statutory mandates under 
the HSA, which expressly delegates authority to the ORR Director to 
administer the UC Bureau.
    Pursuant to these authorities, this rule describes the 
circumstances in which ORR will investigate allegations of child abuse 
and neglect; the procedures for such investigations; and steps ORR may 
take in response to findings that individuals who work or volunteer at 
ORR-funded care provider facilities have perpetrated abuse or neglect 
against children in its custody, including due process requirements 
that would apply to such steps.
    In addition to the HSA, ORR's Interim Final Rule regarding the 
Prevention of Sexual Abuse \24\ (PSA IFR), which ORR promulgated in 
2014 pursuant to the Violence Against Women Reauthorization Act of 2013 
(VAWA),\25\ describes requirements concerning sexual abuse of 
unaccompanied children in ORR custody. Though the PSA IFR specifically 
applies to the prevention of sexual abuse of unaccompanied children, it 
describes requirements that inform this IFR regarding the prevention of 
abuse and neglect, including requirements for staff background checks; 
suspension of staff, contractors, and volunteers suspected of 
perpetrating sexual abuse or sexual harassment from all duties that 
would involve or allow access to unaccompanied children pending the 
outcome of an investigation; and requirements for restricting the 
employment of care provider facility staff against whom allegations of 
child abuse or neglect have been substantiated.\26\
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    \24\ Standards To Prevent, Detect, and Respond to Sexual Abuse 
and Sexual Harassment Involving Unaccompanied Children, 79 FR 77768 
(Dec. 24, 2014) (codified at 45 CFR part 411).
    \25\ See Public Law 113-4, 1101(d), 127 Stat. 134, 135 (2013) 
(codified at 34 U.S.C. 30307(d)) (directing the Secretary of HHS 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 unaccompanied alien 
children (as defined in section 279(g) of Title 6)'').
    \26\ See generally Standards to Prevent, Detect, and Respond to 
Sexual Assault and Sexual Harassment Involving Unaccompanied 
Children, codified at 45 CFR part 411 (PSA IFR); see also the ORR 
Policy Guide at Section 4.3.
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    The standards in the PSA IFR also require care provider facilities 
to refer allegations of sexual abuse and sexual harassment to proper 
investigating authorities (i.e., State and local law enforcement, child 
protective services, and licensing authorities), and to remain informed 
of ongoing investigations and fully cooperate with outside 
investigators as necessary.\27\ ORR notes that nothing in this rule is 
intended to replace or prohibit investigations of sexual abuse and 
sexual harassment under other civil rights laws. The PSA IFR also 
states that ORR will refer allegations to the Department of Justice

[[Page 93501]]

or other investigating authority for further investigation where such 
reporting is in accordance with its policies and procedures and any 
memoranda of understanding.\28\
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    \27\ See 45 CFR 411.22(a); 411.71(c), (d).
    \28\ See 45 CFR 411.22(d).
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    At the time the PSA IFR was published, ORR assumed that all States 
or localities would maintain their historic practices of investigating 
alleged child abuse and neglect in ORR State-licensed care provider 
facilities. Accordingly, the PSA IFR only contemplates scenarios where 
a State or local authority is the investigating authority for 
allegations of sexual abuse and harassment occurring at ORR care 
provider facilities. This rule describes a new system of ORR 
investigations and actions to be taken based on investigation findings, 
which ORR would apply, as needed, at care provider facilities as 
described at Sec.  412.100(c).
    Finally, the Victims of Child Abuse Act (VCAA) and its implementing 
regulations \29\ impose reporting requirements on ORR-contracted 
facilities (e.g., EIFs). Under the VCAA, child abuse (as defined in the 
Act) occurring at Federally-operated or contracted facilities must be 
reported to local law enforcement or child protective services agencies 
with jurisdiction to investigate reports of child abuse or to protect 
child abuse victims in the land area or facility in question, 
``provided that such agencies, if non-federal, enter into formal 
written agreements to do so. . . .'' \30\ If there is no such formal 
written agreement, the Federal Bureau of Investigation (FBI) is the 
agency designated to receive such reports.\31\ However, ORR is advised 
that the FBI's jurisdiction is limited to Federal crimes (i.e., the FBI 
cannot investigate conduct that does not rise to the level of a Federal 
crime)--and many child abuse and neglect allegations that nonetheless 
warrant investigation do not constitute Federal crimes. Upon receipt of 
such reports of child abuse, agencies designated under the VCAA--which 
can include other federal agencies or non-federal agencies that are 
designated pursuant to a formal written agreement--may conduct 
investigations of the alleged abuse and neglect. This IFR does not 
conflict with any agency duties under the VCAA. If ORR executes formal 
written agreements with relevant local authorities to investigate child 
abuse and neglect at EIFs, it reserves discretion under its statutory 
authorities to conduct its own investigations as well. In such cases, 
ORR intends under this rule that any ORR investigation will not 
conflict with investigations performed by other authorities in 
connection with the VCAA.
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    \29\ See 34 U.S.C. 20341; see also 28 CFR part 81.
    \30\ 28 CFR 81.2
    \31\ 28 CFR 81.3.
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C. Basis and Scope of Regulatory Action

1. Discontinuation of Investigations of Child Abuse and Neglect at Care 
Provider Facilities That Care for Unaccompanied Children.
    For years, ORR has relied on States or localities both to license 
its care provider facilities and to investigate any allegations of 
child abuse and neglect.\32\ Since 2021, however, three States--Texas, 
Florida, and South Carolina--have ceased licensing childcare facilities 
that serve or propose to serve unaccompanied children under grant or 
contract with ORR. As of publication of this rule, Florida and South 
Carolina continue to provide for State-based investigations of alleged 
child abuse and neglect in ORR-funded care provider facilities.\33\ In 
contrast, in connection with the State's decision to end licensing of 
care provider facilities housing unaccompanied children, the Texas 
State agency that would otherwise be responsible for such 
investigations no longer conducts them at ORR care provider facilities 
(except foster care providers).
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    \32\ See, e.g., 79 FR 77768, 77776 (``. . . 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.'').
    \33\ ORR notes that Florida continues to investigate child abuse 
and neglect in care provider facilities housing unaccompanied 
children, and ORR only operates foster family home care settings in 
South Carolina. Foster care licensing has not been impacted by South 
Carolina's action to not license residential care.
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    Pursuant to a proclamation by Texas's Governor Abbott,\34\ on July 
13, 2021, the Texas Health and Human Services Commission (HHSC) issued 
an emergency rule temporarily exempting Texas's childcare facilities 
that shelter unaccompanied children in Federal custody from Texas's 
licensing requirement.\35\ The exemption went through a series of 
renewals until, on July 22, 2022, Texas amended the emergency rule to 
make the licensure exemption ongoing.\36\
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    \34\ Proclamation by the Governor of the State of Texas. (May 
31, 2021). Available at: https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf.
    \35\ 46 Tex. Reg. 4407. (July 23, 2021). (Adopting on an 
emergency basis in Texas Administrative Code title 26 part 1, 
chapter 745, Licensing, new Sec.  745.10301 and amended Sec.  
745.115). The emergency rule--and the exemption it provides--were 
only effective for 120 days and could only be renewed for an 
additional 60 days. Available at: https://texashistory.unt.edu/ark:/67531/metapth1362781/m2/1/high_res_d/0723is.pdf.
    \36\ Texas HHS Agenda Item. (May 19, 2022). Available at: 
https://www.hhs.texas.gov/sites/default/files/documents/may-2022-ec-agenda-item-2bvi.docx.
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    ORR understands that, pursuant to this change in Texas law, neither 
Texas HHSC nor the Texas Department of Family and Protective Services 
(DFPS) currently conducts child abuse and neglect investigations in 
facilities that house unaccompanied children due to their lack of 
jurisdiction over license-exempt childcare facilities. Because DFPS is 
not investigating, substantiating, or sustaining these allegations 
pursuant to administrative reviews as appropriate, DFPS does not list 
potential sustained perpetrators in the Texas child abuse and neglect 
registry,\37\ and thus such perpetrators will not be identified as 
having committed abuse or neglect in a background check by an ORR-
funded or other provider. State and local law enforcement continue to 
investigate reported child abuse and neglect that rises to the level of 
a crime, but in many instances, actions involving abuse or neglect 
constitute civil violations, but not criminal violations. Depending on 
circumstances, this may include physical abuse, verbal/emotional abuse, 
and sexual harassment.
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    \37\ Tex. Fam. Code Sec.  261.002.
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    As discussed above, ORR has historically relied on State and local 
authorities to investigate allegations of child abuse and neglect 
arising at its care provider facilities. However, a significant gap in 
investigative capacity has resulted from Texas's decision to cease DFPS 
investigations at ORR care provider facilities. ORR was unable to 
immediately fill this gap by conducting its own investigations because 
such investigations necessitate the use of skilled and trained 
investigators, and historically ORR had not played this role.
    However, ORR took immediate and ongoing steps after determining 
that Texas planned to cease its investigations into alleged child abuse 
and neglect at ORR-funded care provider facilities housing 
unaccompanied children. Soon after it became clear that Texas DFPS was 
not going to resume its long-standing child welfare and investigative 
functions when it extended its emergency declaration in 2022, ORR began 
examining the operational feasibility, capacity, and expertise that 
would be required to permanently absorb the investigative 
responsibilities once performed by Texas DFPS. Such an endeavor 
represented an unexpected

[[Page 93502]]

and significant expansion of ORR's operations, as ORR had successfully 
relied on relevant state child welfare entities to fulfill that role 
for years up to this point. ORR's work over the past two years has 
included, but not been strictly limited to: communicating with Texas 
state officials to confirm their position regarding investigations into 
alleged child abuse and neglect at ORR care providers and attempt to 
reach a resolution with the state directly; consulting with other 
federal agencies to evaluate available options to address the lack of 
investigations and seek feedback on ORR's proposed approach; 
researching and planning how ORR would develop the necessary expertise 
and capacity to conduct investigations; developing policies and 
procedures to inform how investigations are conducted; obtaining 
administrative approval for new agency positions; creating of new 
comprehensive technical systems for recording and tracking 
investigations; and, eventually, the hiring, onboarding, and training 
of qualified investigative staff.
    In addition, while engaged in these efforts, ORR directed its care 
provider facilities in Texas to continue reporting abuse and neglect 
allegations to State child welfare agencies, State licensing agencies, 
State and local law enforcement, and where appropriate, the HHS Office 
of the Inspector General and the FBI. ORR also established a framework, 
utilizing its child welfare team or CWT (later becoming known as the 
ORR Prevention of Child Abuse and Neglect or PCAN Team) for conducting 
in-depth reviews of care provider facility responses to each individual 
allegation of abuse and neglect. In these reviews, ORR staff receive 
and review documentation concerning the allegation, assess whether 
proper interventions and reporting requirements under ORR policies and 
procedures were followed, and make recommendations for appropriate 
follow-up actions regarding the alleged victim's medical and mental 
health needs.
    While ORR's in-depth reviews have played an important role in 
filling some of the investigations-related gaps like ensuring 
compliance with reporting requirements and following up on appropriate 
interventions for staff and children, there remained a need for a 
separate entity other than the care provider facilities themselves--
that would ensure independent oversight and response--to investigate 
allegations of abuse and neglect that do not constitute criminal 
violations. Accordingly, pursuant to its statutory responsibilities to 
oversee the personnel and infrastructure of care provider facilities 
and to conduct investigations (see discussion under section IV.B. 
Authority), ORR established the Division of Unaccompanied Child 
Protection Investigations (DCPI) in June 2024.\38\ DCPI began 
conducting investigations of alleged child abuse and neglect at care 
provider facilities in Texas in July 2024.
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    \38\ See Statement of Organization, Functions, and Delegations 
of Authority, 89 FR 49889 (June 24, 2024).
---------------------------------------------------------------------------

    However, investigations without more do not fully fill the gap left 
by Texas DFPS's decision not to investigate allegations of child abuse 
and neglect, including by substantiating and sustaining such 
allegations so that perpetrators may be identified and precluded from 
working with unaccompanied children in ORR's care. The statutory 
provisions authorizing ORR to establish its investigative division do 
not specify the particular procedures ORR should follow in conducting 
investigations and taking action to protect children from individuals 
with pending or sustained allegations of sexual abuse or neglect. Thus, 
ORR has determined that in order to fully address the protection of 
children in its custody, consistent with its statutory responsibility, 
it is important to establish a mechanism to ensure that individuals 
with sustained Tier I allegations (as defined in this rule) 
investigated by DCPI are terminated from employment in ORR-funded 
programs, prevented from having contact with children in ORR programs, 
and barred from employment in any ORR-funded program in the future. To 
accomplish this goal with appropriate due process protections, ORR has 
adopted this rule.
2. Need for ORR To Investigate Child Abuse and Neglect at Emergency or 
Influx Facilities
    In addition, this rulemaking provides needed clarity with respect 
to investigations of child abuse and neglect at EIFs. Responsibility 
for investigating allegations of child abuse and neglect at EIFs is 
unique to each EIF based on a number of factors, including the 
willingness of States or local authorities to investigate child abuse 
and neglect at care provider facilities housing unaccompanied children 
or enter into a formal written agreement with ORR to do so; the unique 
size, capacity, and scope of EIFs; and the urgent timelines under which 
EIFs may be activated. Because EIFs are activated in times of influx, 
which arise based on unpredictable migration patterns, there may not be 
sufficient time to establish formal written agreements with local 
authorities to conduct child abuse and neglect investigations when ORR 
activates such facilities. For example, referrals of unaccompanied 
children to ORR increased dramatically from Federal fiscal year (FFY) 
2020 (15,381 children) to FFY 2021 (122,731 children), continued to 
increase in FFY 2022 (128,904 children), but then decreased in FFY 2023 
(118,938 children).\39\ ORR believes, as a result, that it is 
appropriate to include EIFs within the scope of this rule--to ensure 
that reports of child abuse and neglect arising at EIFs are 
consistently investigated and that ORR may take actions to protect 
unaccompanied children from those with pending or sustained 
allegations.\40\
---------------------------------------------------------------------------

    \39\ ORR Unaccompanied Children Facts and Data. (July 5, 2024). 
Retrieved from: https://www.acf.hhs.gov/orr/about/ucs/facts-and-data.
    \40\ See also infra Section VI (discussing good cause for 
issuing this IFR).
---------------------------------------------------------------------------

    ORR prefers that State and local authorities exercise their long-
standing authority under State and local laws and regulations to 
investigate allegations of child abuse and neglect and will continue to 
seek to establish agreements with States and local authorities to 
investigate child abuse and neglect at EIFs. However, as noted above, 
as of the date of publication, ORR does not currently have written 
agreements with State or local authorities to conduct child welfare 
investigations at EIFs, and as noted above, FBI investigations are 
limited to allegations that potentially rise to the level of Federal 
crimes. Further, with DCPI investigations of alleged child abuse and 
neglect underway, there is also a need to maintain an ORR central 
registry to document substantiated abuse and neglect findings based on 
its own investigations. As in States that do not to provide an 
investigative infrastructure for ORR-funded facilities housing 
unaccompanied children, both investigations and the maintenance of a 
central registry are required at EIFs--particularly where no State or 
local investigative infrastructure is available (e.g., pursuant to a 
formal written agreement with ORR).
    ORR notes that any ORR investigations into allegations of child 
abuse and neglect at EIFs under this rule would be separate from any 
other investigations that may occur by other authorities, whether 
pursuant to the VCAA or otherwise, and will not conflict with 
investigations by those other authorities.

[[Page 93503]]

3. Scope of Rulemaking
    This IFR describes the circumstances in which ORR will investigate 
and substantiate child abuse and neglect allegations. It also 
delineates further steps ORR may take upon conducting such 
investigations to protect unaccompanied children, such as ensuring that 
certain individuals against whom allegations of child abuse and neglect 
have been substantiated and upheld after an appeal and review process 
are prevented from working or volunteering in any way on ORR-funded 
grants or contracts, and that alleged perpetrators with pending 
allegations do not have continued access to children. As discussed 
below at section VI, considering ORR's recent establishment of the 
DCPI, there is good cause to issue an IFR both to describe the nature 
and scope of ORR investigations, and critically, to establish required 
consequences for certain investigative findings, with appropriate due 
process protections.
    This IFR:
     Describes the responsibilities of ORR to conduct 
investigations into allegations of child abuse and neglect of 
unaccompanied children at (1) care provider facilities located in 
States where the State agency responsible for investigating child abuse 
and neglect allegations will not investigate such allegations in ORR-
funded care provider facilities, and at (2) EIFs;
     Defines the applicable burden of proof as a preponderance 
of the evidence and describes the investigation disposition types as 
substantiated-Tier I; substantiated-Tier II; not substantiated; 
unfounded; or administratively closed;
     Describes notification requirements of the findings of 
investigations;
     Describes an appeal and review process for individuals 
with substantiated allegations of child abuse and neglect at ORR care 
provider facilities in States that will not investigate allegations of 
abuse or neglect in facilities housing unaccompanied children and at 
emergency or influx facilities;
     Creates an ORR Central Registry, and associated processes 
and sanctions, for individuals with sustained Tier I allegations of 
child abuse and neglect at EIFs and at ORR care provider facilities in 
States that will not investigate allegations of abuse or neglect in 
facilities housing unaccompanied children; and
     Describes requirements for care provider facilities to 
cooperate with investigations.

D. Severability

    The different parts of this interim final rule address distinct 
aspects of investigations of child abuse and neglect. These include: 
the investigation of allegations of child abuse and neglect occurring 
at care provider facilities that do not conduct their own 
investigations, and investigations at EIFs (Sec.  412.100); 
interventions and discipline, including an ORR Central Registry of 
perpetrators relating to certain sustained allegations (Sec.  412.101); 
the appeal and review process (Sec.  412.102); and obligations of care 
provider facilities (Sec.  412.103) in cooperating with investigations. 
To the extent any section or subsection of the rule is declared invalid 
by a court, ORR intends for all remaining sections and subsections to 
remain in effect, as they would continue to function sensibly. As an 
illustration, ORR expects that if a court were to invalidate Sec.  
412.100(c)(2), which makes the requirements of Sec.  412.100 relating 
to investigations into allegations of child abuse and neglect 
applicable to EIFs, the standards, requirements, and procedures under 
Sec.  412.100 would continue to be applicable to care provider 
facilities housing unaccompanied children in States where the State 
agency responsible for investigating child abuse and neglect 
allegations will not investigate such allegations in ORR-funded care 
provider facilities, as provided in Sec.  412.100(c)(1). Likewise, ORR 
expects that if a court were to declare that the ORR Central Registry 
as defined at Sec.  412.001 and described at Sec.  412.101(a) is 
invalid, the requirements of Sec.  412.100 relating to investigations 
into allegations of child abuse and neglect at certain facilities, and 
the obligations of care facilities delineated at Sec.  412.103 will 
remain in effect.

V. Discussion of Elements of the Interim Final Rule

Section 412.001 Definitions

    ORR, in Sec.  412.001, is codifying the definitions of terms that 
apply to this part. Many terms used in this rule are defined in other 
authorities, including statutes and ORR regulations, and this rule uses 
these terms consistently with those definitions. For example, this rule 
uses the term ``unaccompanied child'' consistently with the definition 
provided in the UC Program Foundational Rule, at 45 CFR 410.1001 (which 
is further consistent with the definition of ``unaccompanied alien 
child'' found in the Homeland Security Act (HSA), at 6 U.S.C. 
279(g)(2)). Below, ORR further explains its rationale for certain 
definitions applied in this rule.
    The definition of ``administrative closure'' describes when ORR 
determines it will not make a finding regarding an allegation of child 
abuse or neglect. Administrative closure does not imply that ORR would 
have found an allegation of abuse or neglect to be substantiated or not 
substantiated. ORR may assign an intake report for administrative 
closure if ORR determines it is not appropriate for investigation. 
Reasons for administrative closure before an investigation may include, 
but are not limited to, lack of jurisdiction to conduct an 
investigation of the allegation (e.g., if the alleged abuse or neglect 
occurred in a State where the State agency responsible for 
investigating child abuse and neglect continues to investigate such 
reports of unaccompanied children in ORR care); transfer of the report 
to another jurisdiction or agency; an allegation not rising to the 
level of child abuse or neglect; duplication of an existing report; or 
an allegation is otherwise outside the scope of this rule, as described 
at Sec.  412.100(c). ORR may also make a disposition of administrative 
closure after investigation. Reasons for administrative closure after 
an investigation may include, but are not limited to, inability to 
contact the child; insufficient information to proceed with the 
investigation; or transfer to another jurisdiction or agency. If ORR 
administratively closes an intake report or investigation, it may 
consider further investigation related to the initial allegation if new 
information becomes available.
    The definition of ``alleged perpetrator'' means a person who is 
alleged to have abused or neglected a child within the scope of this 
part as described at Sec.  412.100(a) and (c). The term encompasses 
individuals who are identified in an intake report, and subject to an 
investigation under this part, but does not include individuals who 
have been subject to an investigation which resulted in a not 
substantiated allegation, unfounded allegation, or administrative 
closure. Per the definition of child abuse and neglect set out at Sec.  
412.001, alleged perpetrators can include individuals who observed, 
permitted, or otherwise allowed a child to be mistreated and knowingly 
failed to act to protect the child. Alleged perpetrators do not become 
sustained perpetrators until all appropriate investigative steps have 
been completed and they have exhausted all administrative remedies, 
including waiving their right to appeal, as

[[Page 93504]]

applicable and as specified in Sec.  412.102(c).
    The definition of ``child abuse and neglect'' in this IFR is based 
on ORR's review of Federal laws, consultation with the Administration 
on Children, Youth, and Families, including the Children's Bureau, and 
on its experience operating the UC Bureau. For example, ORR intends 
that this definition capture the types of behaviors identified at 22 
U.S.C. 7102, 34 U.S.C. 20341, and 42 U.S.C. 5106g, Note Sec.  3, to the 
extent they describe behaviors and situations that are relevant to 
unaccompanied children for purposes of this rule. At the same time, the 
definition of ``child abuse and neglect'' and related definitions 
(e.g., medical neglect, verbal or emotional abuse) in this rule provide 
additional granularity relevant to the UC Bureau. The definitions of 
sexual abuse and sexual harassment used in this rule are the same as 
the PSA IFR at 45 CFR 411.6. ORR developed other related definitions to 
appropriately capture incidents and circumstances that raise child 
welfare concerns, and also reflect how abuse or neglect has 
historically been identified within the UC Bureau (e.g., based on 
historical significant incident reporting to ORR, input from subject 
matter experts in child welfare including ORR's CWT, Prevention of 
Sexual Abuse Team, Division of Health for Unaccompanied Children, 
Federal field specialists, and Data Analytics and Information 
Management team). For example, this IFR provides separate definitions 
distinguishing neglect and medical neglect, and child abuse from child 
neglect, in contrast to 34 U.S.C. 20341, which groups these concepts 
together. Having separate definitions in this rule also enables ORR to 
have accurate data on specific kinds of abuse or neglect that may occur 
with respect to children in its care.
    The definition of ``inappropriate sexual behavior'' refers to 
inappropriate sexual, derogatory, or offensive conduct that does not 
rise to the level of sexual abuse or sexual harassment. ORR intends 
that this term, which is also used in current ORR policies, capture 
conduct that falls outside of other relevant definitions, but still 
merits reporting and response.
    The definition of ``medical neglect'' draws in part from ORR's 
review of other Federal authorities. For example, it is meant to 
include concerns described in the definition of ``negligent treatment'' 
from 34 U.S.C. 20341(c)(7), and the definition of ``neglect'' from 42 
CFR 483.5. ORR found that these authorities described the types of 
issues from which it seeks to protect unaccompanied children in its 
custody, and, to that extent, these authorities informed the definition 
of ``medical neglect'' in this rule. ORR is providing a separate 
definition for medical neglect, distinct from other forms of neglect, 
based on its experience operating the UC Bureau, including knowledge of 
the forms of neglect historically reported within the context of the UC 
Bureau, and the importance of having sufficient granularity in data 
reporting and monitoring to appropriately capture and address the types 
of incidents and circumstances that raise child welfare concerns.
    ``Multidisciplinary team'' is defined as a group of individuals 
comprised of ORR staff, including subject matter experts. 
Multidisciplinary teams provide input to ORR's Child Welfare 
Investigators by assessing reported allegations of child abuse and 
neglect at care provider facilities and making recommendations 
regarding physical and behavioral healthcare needs of unaccompanied 
children potentially impacted by child abuse and neglect at these 
facilities. Notably, the multidisciplinary team may include, but is not 
limited to, child welfare experts, forensic interviewers, mental health 
practitioners, child development and disability practitioners, 
pediatricians and other medical experts as needed, policy advisors, 
Federal program analysts, Federal program management staff, or other 
subject matter experts. The multidisciplinary team will also focus on 
the physical and behavioral healthcare needs of unaccompanied children 
potentially impacted by, and during the course of, the investigation of 
child abuse or neglect. Importantly, this team is different from, and 
in addition to, the ORR Child Welfare Investigator. The ORR Child 
Welfare Investigator sits within the DCPI, which will have the option 
to consult with the separate multidisciplinary team as necessary and 
appropriate. ORR believes that this collaborative approach to the 
investigation will lead to a coordinated response, representing a 
variety of fields and disciplines to support unaccompanied children 
while also ensuring a more efficient and thorough investigation.
    The definition of ``not substantiated allegation'' means a 
disposition that there is not a preponderance of the evidence 
establishing that the alleged perpetrator committed child abuse or 
neglect (as defined in this section), but there is at least some 
evidence that the unaccompanied child was harmed or placed at risk of 
harm, whether or not by the alleged perpetrator. This term does not 
include administratively closed allegations. ORR notes that this 
definition differs from its definition of ``unsubstantiated 
allegation'' under the PSA IFR at 45 CFR 411.5 (``an allegation that 
was investigated and the investigation produced insufficient evidence 
to make a final determination as to whether or not the event 
occurred''). This investigation disposition, as well as the other 
defined dispositions, are further described in Sec.  412.100.
    The definition of ``physical abuse'' in this IFR aligns with the 
types of behaviors identified at 34 U.S.C. 20341 and described at 42 
U.S.C. 5106g, Note Sec.  3, to the extent that those provisions 
describe behaviors and situations that are relevant to unaccompanied 
children for the purposes of this rule. Further, the definition of 
``physical abuse'' provided in this rule includes specific non-
exhaustive examples, based on ORR's experience operating the UC Bureau 
and the forms of physical abuse historically reported, as well as 
feedback from care provider facilities that definitions with greater 
specificity better support effective reporting and monitoring.
    The definition of ``preponderance of the evidence'' describes the 
burden of proof used to substantiate allegations of child abuse and 
neglect. ORR notes that this definition is based on 42 CFR 93.219, and 
that this definition means something is more likely than not to be 
true.
    The definition of ``sexual abuse,'' has the same meaning as that 
term is defined in 45 CFR 411.6.
    The definition of ``sexual harassment,'' has the same meaning as 
that term is defined in 45 CFR 411.6. ORR notes that this definition 
indicates that prohibited conduct ``includes'' repeated actions; 
however, the definition is not intended to be exhaustive, and a single 
instance may constitute sexual harassment.
    The definition of ``sub-grantee'' is based on the definition of the 
term ``subrecipient'' from 45 CFR 75.2. ORR is using the term sub-
grantee instead of subrecipient for consistency with existing ORR 
policies and guidance.
    The definition of ``substantiated allegation-Tier I'' means a 
disposition that there is a preponderance of the evidence establishing 
that the alleged perpetrator committed child abuse or neglect, and the 
investigation indicates one or more automatic Tier I substantiating 
circumstances have been found pursuant to Sec.  412.100(e)(7) or 
substantiation at Tier I is warranted based on consideration of 
aggravating and mitigating factors pursuant to Sec.  412.100(e)(8). ORR 
notes that this

[[Page 93505]]

definition differs from its definition of ``substantiated allegation'' 
under the PSA IFR at 45 CFR 411.5 (``an allegation that was 
investigated and determined to have occurred'') to incorporate that 
ORR, as the investigating entity, is using the preponderance of 
evidence standard to establish a disposition of ``substantiated'' and 
to incorporate the consideration of automatic Tier I substantiating 
circumstances, aggravating factors, and mitigating factors.
    The definition of ``substantiated allegation-Tier II'' means a 
disposition that there is a preponderance of the evidence establishing 
that the alleged perpetrator committed child abuse or neglect, and that 
based on consideration of aggravating and mitigating factors pursuant 
to Sec.  412.100(e)(8), the evidence does not warrant a finding of 
``Substantiated Allegation-Tier I.'' ORR notes that this definition 
differs from its definition of ``substantiated allegation'' under the 
PSA IFR at 45 CFR 411.5 (``an allegation that was investigated and 
determined to have occurred'') to incorporate that ORR, as the 
investigating entity, is using the preponderance of the evidence 
standard to establish a disposition of ``substantiated'' and to 
incorporate the consideration of whether a disposition of substantiated 
allegation-Tier I is warranted, including in consideration of the 
aggravating and mitigating factors.
    The definition of ``substantiated perpetrator'' means a person 
against whom an allegation of child abuse or neglect has been 
substantiated by ORR at Tier I or Tier II, but who has not exhausted 
the applicable appeal and review process for such allegations. 
Substantiated perpetrators at both Tier I and Tier II may appeal the 
disposition made by ORR to an Administrative Law Judge (ALJ) of the HHS 
Departmental Appeals Board (DAB) pursuant to Sec.  412.102(c) and 
subsequently to the HHS Assistant Secretary for Children and Families 
pursuant to Sec.  412.102(e).
    The definition of ``sustained allegation'' means an allegation that 
was substantiated by ORR at Tier I or Tier II and that was upheld 
pursuant to the appeal and review process described in this rule or for 
which an appeal and review process was dismissed, including when the 
substantiated perpetrator waives their right to appeal by failing to 
make a timely request or by waiving those rights as specified in Sec.  
412.102(c).
    The definition of ``sustained perpetrator'' means a substantiated 
perpetrator at Tier I or Tier II whose child abuse or neglect finding 
was upheld in the appeal and review process or whose appeal and review 
process was dismissed, including due to the sustained perpetrator's 
waiver of their right to appeal by failing to timely request appeal, or 
by otherwise waiving those rights as specified at Sec.  412.102(c). 
Tier I Sustained perpetrators shall be prohibited from working in any 
way in connection with ORR-funded grants or contracts, including 
working or volunteering at any ORR care provider facility; may not have 
access to or contact with any unaccompanied child in ORR custody; will 
be added to the ORR Central Registry; and will be referred to 
appropriate law enforcement agencies. Information concerning Tier II 
sustained perpetrators will be recorded and maintained in agency 
records.
    The definition of ``unfounded allegation'' means a disposition that 
there is not a preponderance of the evidence establishing that the 
alleged perpetrator committed child abuse or neglect, and the evidence 
indicates that the unaccompanied child was not harmed or placed at risk 
of harm. ORR notes that this definition differs from its definition of 
``unfounded allegation'' under 45 CFR 411.5 (``an allegation that was 
investigated and determined not to have occurred'') to incorporate that 
ORR, as the investigating entity, is using the preponderance of 
evidence standard to establish a disposition of ``unfounded 
allegation.'' ORR also notes that records regarding unfounded 
allegations are maintained and disposed of in accordance with the 
applicable federal records management requirements.
    The definition of ``verbal or emotional abuse'' aligns with the 
definition of ``mental injury'' at 34 U.S.C. 20341 and described at 42 
U.S.C. 5106g, Note Sec.  3, to the extent that those authorities 
describe behaviors and situations that are relevant to unaccompanied 
children for the purposes of this rule. The definition also includes 
specific non-exhaustive examples, based on ORR's experience operating 
the UC Bureau and the forms of verbal and emotional abuse historically 
reported, as well as feedback from care provider facilities that 
definitions with greater specificity will better support effective 
reporting and monitoring.

Section 412.100 Investigations Into Allegations of Child Abuse and 
Neglect

    ORR describes the purpose of this IFR at Sec.  412.100(a). This 
rule establishes the standards, requirements, and procedures for 
investigations by ORR of allegations of child abuse and neglect of 
unaccompanied children in ORR custody alleged to have been committed by 
care provider facility staff, contractors or sub-grantees of the care 
provider facility, care provider facility volunteers, or other 
individuals who have access to children in ORR care through contracts 
or grants with ORR, subject to Sec.  412.100(c). ORR may also 
investigate individuals including those who are affiliated with legal 
service providers, child advocates, or other contractors engaged by ORR 
or the relevant care provider facility, to the extent allegations of 
abuse or neglect concern unaccompanied children who were in ORR custody 
at the time of the alleged incident. ORR believes these regulations 
will reduce the risk of child abuse and neglect of unaccompanied 
children in ORR care.
    Section 412.100(b) provides that the provisions of this part are 
separate and severable from one another and that if any provision is 
stayed or determined to be invalid in a final judgment by a court of 
law, the remaining provisions shall continue in effect. This provision 
is meant to be consistent with the discussion of severability provided 
in the preamble at section IV.D.
    Section 412.100(c) states that this rule applies in two 
circumstances. First, it applies to care provider facilities located in 
States where the State agency otherwise responsible for investigating 
child abuse and neglect allegations will not, as a matter of policy, 
investigate allegations of abuse or neglect concerning unaccompanied 
children at ORR-funded care provider facilities.\41\ Second, this rule 
applies to EIFs. ORR notes this regulation implements ORR's statutory 
authority to conduct investigations and inspections of care provider 
facilities and other entities in which unaccompanied children reside 
while in ORR custody, regardless of the alleged perpetrator's 
particular role or job at the care provider facility--i.e., regardless 
of whether they are employed directly by the care provider facility, 
are employed by a contractor or sub-grantee of the care provider 
facility, are caring for unaccompanied children through a cooperative 
agreement with ORR, or are volunteers at a care provider facility. 
Finally, this regulation provides ORR the authority to investigate any 
allegations of child abuse and neglect that occurred during a child's 
stay at an ORR care provider facility, even if the allegation is 
reported after the unaccompanied child has been released from ORR care 
and custody. In the event that a child is transferred to another care 
provider facility, ORR will continue to investigate any allegations of 
child abuse and neglect that occurred at the

[[Page 93506]]

care provider facility for which the allegation was submitted.
---------------------------------------------------------------------------

    \41\ As of the publication of this rule, the only such state is 
Texas.
---------------------------------------------------------------------------

    ORR believes that it is critical to ensure that allegations of 
child abuse and neglect are reported to ORR. For example, ORR's 
existing policies and procedures require care provider facilities to 
report all allegations of child abuse and neglect of an unaccompanied 
child in ORR custody to ORR and to Federal, State, and local 
authorities in accordance with any applicable Federal, State, and local 
reporting and licensing laws.\42\ Further, 45 CFR 411.61 requires care 
provider facilities to report to ORR any allegation, suspicion, 
knowledge, or information regarding an incident of sexual abuse or 
sexual harassment occurring in ORR care, along with any retaliatory 
actions resulting from reporting such incidents. The UC Program 
Foundational Rule requires at 45 CFR 410.1303(g) that all care provider 
facilities report to ORR any emergency incident, significant incident, 
or program-level event, in accordance with any applicable Federal, 
State, and local reporting laws. These existing requirements apply to 
all ORR care provider facilities. The requirements outlined in this 
rule at Sec.  412.100(d) further provide that any person may report an 
allegation of child abuse and neglect to ORR directly, to the care 
provider facility, or to a designated entity or office that is not part 
of the care provider facility. To ensure clarity and consistency, ORR 
believes it is important to outline these additional reporting 
requirements for care provider facilities subject to this rule.
---------------------------------------------------------------------------

    \42\ See, ORR Policy Guide Section 5.8.2 Significant Incidents.
---------------------------------------------------------------------------

    ORR believes that ensuring individuals can report allegations of 
child abuse and neglect without fear of retaliation is key to ensuring 
that such reports are made. Therefore, under Sec.  412.100(d), care 
provider facilities to which this part applies must have written 
policies and procedures that allow children, care provider facility 
staff, contractors or sub-grantees of the care provider facility, care 
provider facility volunteers, families of unaccompanied children, legal 
service providers, child advocates, attorneys of record, and any other 
persons to report allegations of child abuse and neglect to ORR 
directly, to the care provider facility, or to a designated entity or 
office that is not part of the care provider facility. Under Sec.  
412.100(d), the written policies and procedures must minimally address 
three topics. First, under Sec.  412.100(d)(1), the care provider 
facilities' policies and procedures must at minimum provide 
unaccompanied children and other individuals with methods for reporting 
and inform them of how they can report an allegation of child abuse and 
neglect to a designated entity or office that is not part of the care 
provider facility. Such entity or office must be able to receive 
allegations of child abuse and neglect and to immediately forward them 
to ORR, allowing unaccompanied children to remain anonymous upon 
request. Second, under Sec.  412.100(d)(2), all the methods of 
reporting must be accessible to all unaccompanied children including 
those with disabilities and those with limited English proficiency. 
This can include, for example, ensuring unaccompanied children are 
aware of, and are able to call, ORR's National Call Center.\43\ In 
order to be accessible to unaccompanied children with disabilities, the 
method of reporting must provide effective communication consistent 
with section 504 of the Rehabilitation Act of 1973. In addition, ORR 
notes that the requirements for language access for unaccompanied 
children with disabilities under the UC Program Foundational Rule must 
also be met, at 45 CFR 410.1306 and 45 CFR 410.1311 respectively. 
Third, under Sec.  412.100(d)(3), the care provider facility policies 
and procedures must include protections to prevent retaliation against 
unaccompanied children and others who report allegations of child abuse 
and neglect.
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    \43\ See ORR, Office of Refugee Resettlement National Call 
Center, https://www.acf.hhs.gov/orr/outreach-material/office-refugee-resettlement-national-call-center (date accessed Sept. 6, 
2024).
---------------------------------------------------------------------------

    At Sec.  412.100(e), ORR is establishing requirements for the 
screening and intake of reports of allegations of child abuse and 
neglect, conducting investigations, assigning dispositions to the 
allegations, and documenting investigations. When receiving reports of 
allegations of child abuse and neglect and conducting investigations, 
ORR must ensure the health and safety of unaccompanied children while 
making every effort to reduce further trauma to the alleged victim(s).
    ORR is requiring at Sec.  412.100(e)(1), that when it receives a 
report of alleged child abuse or neglect, ORR must generate an intake 
report and determine whether the report includes an allegation that, if 
found to be true, would meet the definition of child abuse and neglect 
in this part and is consistent with Sec.  412.100(a) and (c). If so, 
ORR will assign the intake report for investigation. If not, ORR will 
assign the intake report for administrative closure. ORR will assign an 
intake report for investigation where the allegation meets the 
requirements of Sec.  412.100(a) and (c); but ORR may in its discretion 
elect not to investigate an allegation at an EIF if it has a formal 
written agreement with the relevant State or local authority to perform 
such investigations. ORR may administratively close an intake report 
when it determines it is not appropriate for an investigation, which 
may include circumstances such as those described in the definition of 
administrative closure in Sec.  412.001. ORR notes that it will assign 
an intake report for investigation in accordance with the requirements 
at Sec.  412.100(e) even if the child is no longer in ORR care, as long 
as the alleged abuse or neglect occurred while the child was in ORR 
care. This could include, for example, instances in which an 
unaccompanied child reports an allegation of abuse or neglect to ORR 
after they have been released, or if the child has been transferred to 
another care provider facility. In the event that a child has been 
transferred to a new care provider facility in a State that conducts 
investigations, ORR will continue its investigation in the State in 
which the alleged child abuse or neglect occurred, as the alleged 
perpetrator may still pose a risk to other children in the care 
provider facility from which the child was transferred. ORR will 
document and assess the report to determine the timeline for assigning 
the report for investigation based on the level of risk of harm to the 
alleged victim and assign different response times based on the level 
of risk of harm. ORR will document and maintain a record of every 
allegation received at care provider facilities that fall under this 
IFR, whether it is ultimately assigned for investigation and a 
disposition rendered or assigned for administrative closure. ORR's 
decision and rationale about whether to classify the allegation as an 
intake report and assign it for investigation (or for administrative 
closure) will also be documented.
    After an intake report is assigned for investigation, under Sec.  
412.100(e)(2), ORR shall assign an ORR Child Welfare Investigator to 
make a prompt and thorough investigation of the report to obtain 
sufficient information to determine whether the allegation is 
substantiated based on a preponderance of the evidence. The 
preponderance of the evidence standard for ORR investigations shall be 
applied in determining whether the alleged perpetrator committed child 
abuse or neglect. As such, the investigation prescribed in this section 
relates to the

[[Page 93507]]

underlying allegation of abuse or neglect to a child, in addition to 
focusing on the individual perpetrator(s) involved. ORR will 
communicate its disposition to the alleged perpetrator, consistent with 
the requirements set forth at Sec.  412.100(g), specifying whether the 
investigation determined that the alleged perpetrator committed abuse 
or neglect as defined in this rule. ORR emphasizes that this child-
centered approach comports with common child welfare best practices 
seen across State systems.
    ORR is requiring, at Sec.  412.100(e)(3), that ORR shall provide 
notification that an allegation of child abuse and neglect will be 
investigated by ORR. This notification shall be provided to the alleged 
perpetrator; care provider facility; alleged victim; alleged victim's 
attorney of record (if the child has an attorney of record); and the 
alleged victim's parent(s), legal guardian(s), or sponsor(s) (as 
appropriate), unless ORR has evidence showing the parents, legal 
guardians, or sponsors should not be notified. If the alleged victim is 
14 years old or older and ORR has determined that the alleged victim is 
able to make an independent decision, the alleged victim can 
affirmatively consent to disclosure. ORR notes that this notification 
requirement to the alleged victim, their attorney of record, and their 
parents, legal guardians, or sponsors is consistent with ORR's existing 
subregulatory notification policies and the PSA IFR requirements at 45 
CFR 411.61(e) that are specific to sexual abuse and sexual harassment. 
To be clear, ORR also notes that the requirements of 45 CFR 411.61(f) 
continue to apply with respect to allegations of sexual abuse and 
harassment.
    ORR is requiring, at Sec.  412.100(e)(4), that the care provider 
facility must take immediate responsive measures to protect child 
welfare when notified that an investigation has been initiated, confirm 
the actions to ORR, and notify the alleged perpetrator, as appropriate. 
Such responsive measures may extend throughout the pendency of an 
investigation, and during the pendency of appeal and review processes, 
as necessary and applicable. ORR believes that this requirement is 
necessary to protect the safety and well-being of the unaccompanied 
children in ORR's care and custody until the allegation is either found 
to be not substantiated, unfounded, or is administratively closed. 
Additionally, ORR notes that care provider facility actions must be 
consistent with 45 CFR 411.66, which requires that any 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 unaccompanied children 
pending the outcome of an investigation.
    At Sec.  412.100(e)(5), ORR is establishing minimum standards that 
ORR shall follow when investigating allegations of child abuse and 
neglect. ORR investigations under this rule are not intended to replace 
investigations that may be performed by other relevant authorities, 
including State law enforcement or other Federal agencies, or entities 
designated under the VCAA to receive reports of child abuse. 
Accordingly, to the extent possible and appropriate, ORR is requiring 
at Sec.  412.100(e)(5)(i) that it coordinate with any local or State 
law enforcement or other Federal agencies during its investigation. ORR 
may pause or resume an investigation at its discretion, with input from 
law enforcement partners or other relevant investigatory bodies, as 
necessary. Such coordination and cooperation with outside 
investigations is consistent with similar principles described in the 
PSA IFR.\44\
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    \44\ See, e.g., 79 FR 77768, 77793; 77797.
---------------------------------------------------------------------------

    Additionally, under Sec.  412.100(e)(5)(ii), ORR shall establish, 
as necessary, a multidisciplinary team comprised of ORR staff, which 
may include, but is not limited to, child welfare experts, forensic 
interviewers, mental health practitioners, child development and 
disability practitioners, pediatricians and other medical experts as 
needed, policy advisors, Federal program analysts, Federal program 
management staff, and subject matter experts to collaborate with the 
ORR Child Welfare Investigator. Although the ORR Child Welfare 
Investigator is responsible for rendering a final disposition based on 
their investigation, the multidisciplinary team will engage a range of 
ORR staff who are subject matter experts to provide input and an 
assessment of the reported allegation of child abuse or neglect to 
assist the ORR Child Welfare Investigator's investigation. The 
multidisciplinary team will also focus on the physical and behavioral 
healthcare needs of unaccompanied children potentially impacted by, and 
during the course of, the investigation of child abuse or neglect. This 
team is different from, and in addition to, the ORR Child Welfare 
Investigator and the DCPI will have the option to consult with the 
separate multidisciplinary team as necessary and appropriate. ORR 
believes that this collaborative approach to the investigation will 
lead to a coordinated response, representing a variety of fields and 
disciplines to support unaccompanied children while also ensuring a 
more efficient and thorough investigation.
    Under Sec.  412.100(e)(5)(iii), the Child Welfare Investigator is 
required to complete certain minimum actions during an investigation. 
The Investigator should demonstrate that they have thoroughly 
investigated the allegation to obtain sufficient information for ORR to 
make a disposition. Under Sec.  412.100(e)(5)(iii)(A), ORR is requiring 
that upon receipt of the intake report, the ORR Child Welfare 
Investigator must review the intake report and the care provider 
facility's records on the alleged victim and alleged perpetrator, 
conduct a background check on the alleged perpetrator, interview the 
person who reported the allegation if this person was not interviewed 
during intake, immediately request preservation of any potential video 
and documentary evidence, and as needed, establish a plan for 
thoroughly investigating the allegation. ORR already requires 
background checks of care provider facility staff, contractors, and 
volunteers prior to hiring or before such individuals may have contact 
with unaccompanied children; \45\ but the intent of this requirement is 
to ensure that ORR has an updated background check regarding the 
alleged perpetrator. This may include an FBI fingerprint check of 
national and State criminal history repositories, a National Sex 
Offender Public website check, state child abuse and neglect registry 
checks, or other public records checks. Further, ORR recognizes the 
importance of avoiding the loss of any video and documentary evidence 
and therefore requires the ORR Child Welfare Investigator to 
immediately seek preservation of that evidence. At Sec.  
412.100(e)(5)(iii)(B), ORR is requiring the ORR Child Welfare 
Investigator to visit the care provider facility, as appropriate, to 
conduct a walkthrough of the facility and review video and documentary 
evidence. The intent of this requirement is to ensure the Investigator 
is able to review any video and documentary evidence in a timely way 
and record any observations that may be relevant to the investigation. 
Visits to the care provider facility may be unannounced, and the ORR 
Child Welfare Investigator may visit a care provider facility as often 
as necessary to complete an investigation.
---------------------------------------------------------------------------

    \45\ See 45 CFR 411.16(c), (d).
---------------------------------------------------------------------------

    Under Sec.  412.100(e)(5)(iii)(C), ORR is requiring the ORR Child 
Welfare Investigator to make reasonable efforts

[[Page 93508]]

to interview all individuals who have information relevant to the 
report of child abuse or neglect, including, but not limited to, the 
alleged perpetrator, care provider facility staff, the alleged victim, 
sponsor(s), and the parent(s) or legal guardian(s) (as appropriate) of 
the alleged victim, and any other potential witnesses. ORR recognizes 
the importance of conducting investigations in a way that minimizes the 
number of times individual children, including the alleged victim and 
those who may have relevant information, are interviewed, so as to 
mitigate potential trauma during the investigation process and to 
promote reliability of the information collected. This includes taking 
into consideration when law enforcement or other Federal entities are 
conducting an investigation of the same allegation in alignment with 
Sec.  412.100(e)(5)(i). ORR recognizes that some children, however, may 
require multiple interviews in order to feel more comfortable 
discussing allegations of child abuse and neglect, remember details, or 
overcome feelings of shame or guilt.\46\
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    \46\ Child Welfare Information Gateway. (2023). Forensic 
interviewing: A primer for child welfare professionals. U.S. 
Department of Health and Human Services, Administration for Children 
and Families, Children's Bureau. Available at: https://www.childwelfare.gov/pubs/factsheets/forensicinterviewing/.
---------------------------------------------------------------------------

    Care provider facility staff will not be compelled to address 
questions about allegations regarding either themselves or other staff, 
under threat of disciplinary actions. ORR will not use threat of 
discharge to force an employee to be interviewed.
    ORR notes that there may be circumstances where the ORR Child 
Welfare Investigator may not be able to interview all individuals who 
have information relevant to the report of child abuse or neglect. For 
example, the ORR Child Welfare Investigator may be unable to locate the 
individual after making reasonable efforts or the individual is unable 
to be interviewed due to the individual's parent, legal guardian, 
sponsor, or attorney representing the individual, refusing to permit 
the interview. ORR also notes that there may be situations in which it 
would not be appropriate for the parent, legal guardian, or sponsor to 
be interviewed (e.g., when a child 14 years old or older has not 
consented to disclosure). Additionally, the ORR Child Welfare 
Investigator may not be able to interview an alleged perpetrator if the 
perpetrator was arrested or is under investigation by a law enforcement 
agency and the interview would interfere with the investigation; or the 
alleged perpetrator is detained and the jail, prison, or other 
detention facility where the alleged perpetrator is detained will not 
permit the interview.
    At Sec.  412.100(e)(5)(iii)(D), ORR is requiring the ORR Child 
Welfare Investigator ensure that interviews conducted as part of the 
investigation are accessible for all unaccompanied children, including 
those with disabilities and those with limited English proficiency and 
are properly documented either in writing or by audio or video 
recording. In order to be accessible for unaccompanied children with 
disabilities, the interviews must provide effective communication 
consistent with section 504 of the Rehabilitation Act of 1973. In 
addition, ORR notes that the requirements for language access and the 
requirements for unaccompanied children with disabilities under the UC 
Program Foundational Rule must also be met, at 45 CFR 410.1306 and 45 
CFR 410.1311 respectively.
    At Sec.  412.100(e)(5)(iii)(F), ORR is requiring that the ORR Child 
Welfare Investigator review any available evidence in DCPI's records 
relating to past conduct of an alleged perpetrator, except allegations 
that resulted in a finding of unfounded or administrative closure. 
ORR's intent in taking these steps is to ensure that it captures 
situations that reveal patterns of behavior warranting further scrutiny 
but protects the rights of the individual as relates to prior unfounded 
or administratively closed allegations.
    At Sec.  412.100(e)(5)(iii)(F), ORR is requiring the ORR Child 
Welfare Investigator to gather relevant information as part of the 
investigation, including documents and audio or video evidence.
    Lastly, at Sec.  412.100(e)(5)(iii)(G), ORR is requiring the ORR 
Child Welfare Investigator to assess any imminent or ongoing risk of 
child abuse or neglect to the unaccompanied children at the care 
provider facility and, as appropriate, request that the care provider 
facility implement a plan to mitigate the risk and ensure the safety of 
the children. ORR's intent, in addition to investigating the underlying 
allegation, is also to assess any imminent or ongoing risks to children 
at the care provider facility following an allegation and to ensure the 
care provider facility implements safeguards to mitigate any such risks 
and ensure the safety of the children. The ORR Child Welfare 
Investigator is responsible for identifying any immediate risks to 
child welfare during the initial care provider facility visit following 
an allegation. This is not the same as determining whether the 
allegation occurred, which is done through the described investigation 
process, but rather to gain additional insight on how the allegation 
may have occurred. As appropriate, the ORR Child Welfare Investigator 
may request that the care provider facility implement a plan to 
mitigate the risk of child abuse or neglect to ensure safety of the 
unaccompanied children in ORR care at the care provider facility.
    ORR is establishing at Sec.  412.100(e)(6), that once the ORR Child 
Welfare Investigator's investigation is complete, ORR has the authority 
to render a disposition based on a preponderance of the evidence for 
each allegation. Possible dispositions include substantiated 
allegation-Tier I; substantiated allegation-Tier II; not substantiated 
allegation; unfounded; or administrative closure. If ORR determines the 
allegation is not substantiated, unfounded, or administratively closed, 
it may nevertheless consider further future investigation of the 
allegation if new information becomes available. ORR based its 
disposition types and definitions, including the relevant factors in 
Sec.  412.100(e)(7) and (8), on a variety of existing State domestic 
child welfare systems and established best practices that balance 
children's needs and safety, the nuances that can exist in each 
allegation, and the due process rights of alleged perpetrators.
    ORR notes that the first step in determining the disposition of an 
investigation is establishing whether child abuse or neglect, as 
defined under Sec.  412.001, occurred based on the available 
information. If ORR finds, based on a preponderance of the evidence, 
that child abuse or neglect occurred, the allegation is considered 
substantiated as defined in Sec.  412.001. ORR will determine whether 
each substantiated allegation is considered a substantiated allegation-
Tier I or substantiated allegation-Tier II as to the substantiated 
perpetrator, based on the circumstances described at Sec.  
412.100(e)(7) and Sec.  412.100(e)(8). ORR will make every reasonable 
effort to determine the perpetrator(s) responsible for each 
substantiated allegation of child abuse or neglect, and what role any 
other individuals involved in the abuse or neglect had, even if they 
did not perpetrate the act. An individual against whom an allegation of 
child abuse or neglect has been substantiated by ORR at Tier I or Tier 
II is considered a substantiated perpetrator, as defined in Sec.  
412.001. Under Sec.  412.001, a substantiated perpetrator at Tier I or 
Tier II may appeal ORR's disposition pursuant to the established 
appeals process in Sec.  412.102(d).

[[Page 93509]]

    ORR distinguishes an ``unfounded'' disposition from a ``not 
substantiated'' disposition based on whether there was evidence 
indicating that a child was harmed or placed at risk of harm. ORR 
believes that distinguishing these two categories in this way allows 
for a more child-centric approach to conducting investigations and 
rendering dispositions by ensuring that any situation in which a child 
is harmed or placed at risk of harm is specifically documented as such. 
While there are other existing mechanisms, including ORR's Significant 
Incident Reporting and monitoring systems, that may capture this 
information, these mechanisms do not specifically document ORR 
investigation dispositions.
    By distinguishing ``unfounded'' and ``not substantiated'' 
dispositions, ORR will be able to better monitor and track individuals, 
grantees, and contractors who may have repeated instances of 
allegations against them. Even where alleged child abuse and neglect is 
ultimately not substantiated, ORR believes documenting ``not 
substantiated'' is important for child welfare because over time such 
findings may reveal patterns of conduct requiring further scrutiny or 
action by ORR. Notably, ORR is also requiring at Sec.  
412.100(e)(5)(iii)(F) that any available evidence of past conduct in 
DCPI's records relating to the same alleged perpetrator be reviewed as 
part of the Child Welfare Investigator's investigative process, except 
for allegations that resulted in a finding of unfounded or 
administrative closure.
    Under Sec.  412.100(e)(7), a disposition of substantiated 
allegation-Tier I is automatically required where the allegation is (1) 
substantiated by a preponderance of the evidence, and (2) where certain 
enumerated factors are present. The factors warranting an automatic 
Tier I substantiated allegation are: (i) death or near death of a child 
as a result of child abuse or neglect; (ii) subjecting or exposing a 
child to sexual abuse or sexual harassment; (iii) inflicting an injury 
or creating a condition requiring a child to be hospitalized or to 
receive significant medical attention; (iv) repeated instances of 
physical abuse committed by the individual against any unaccompanied 
child in ORR care; (v) failure to take reasonable action to protect a 
child from sexual abuse or repeated instances of physical abuse under 
circumstances where the individual knew or should have known that such 
abuse was occurring; and (vi) depriving a child of necessary care 
(e.g., food, shelter, healthcare, supervision) which either caused 
serious harm or created a substantial risk of serious harm. ORR notes 
that ``individual'' in this case means the care provider facility 
staff, contractors or sub-grantees of the care provider facility, care 
provider facility volunteers, or other individuals who have access to 
children in ORR care through contracts or grants with ORR. Under Sec.  
410.100(e)(7)(iv), when repeated instances of physical abuse are 
committed by the individual, the finding of substantiated allegation-
Tier I could apply to the first incident reported if evidence is found 
which indicates a pattern of abusive behavior, injuries to a child, or 
harm. Additionally, under Sec.  410.100(e)(7)(v), the condition of an 
individual failing to take reasonable action to protect a child from 
sexual abuse or repeated instances of physical abuse would be met, for 
example, when another individual is aware of the abuse, and fails to 
take any action to stop it, and thus allows the perpetrator's abusive 
behavior to continue. Under Sec.  410.100(e)(7)(vi), the condition of 
depriving a child of necessary care which either caused serious harm or 
a substantial risk of harm includes cases of willful abandonment, 
deprivation of food, withholding of vital healthcare, forced isolation, 
and other acts or omissions of similar severity.
    If no automatic Tier I substantiating circumstances, as described 
at Sec.  412.100(e)(7), are present, Sec.  412.100(e)(8) enumerates 
aggravating and mitigating factors which will be considered in 
determining if child abuse or neglect should be substantiated at Tier I 
or II. In the absence of automatic Tier I substantiating circumstances, 
where ORR finds under a preponderance of the evidence that child abuse 
or neglect occurred, ORR will make a determination as to whether the 
allegation should be substantiated as Tier I or Tier II by weighing 
aggravating and mitigating factors together. Consideration of 
aggravating and mitigating factors will be based on the totality of the 
circumstances and in the interest of protecting child welfare. ORR 
again notes that the ``individual'' means the care provider facility 
staff, contractors or sub-grantees of the care provider facility, care 
provider facility volunteers, or other individuals who have access to 
children in ORR care through contracts or grants with ORR. Aggravating 
factors include any of the following under Sec.  412.100(e)(8)(i): (A) 
violations of ORR behavior management requirements pursuant to the UC 
Program Foundational Rule at 45 CFR 410.1304; (B) failure to comply 
with clearly established care provider facility policies, corrective 
action plans, or agreed-upon conditions; (C) the tender age, delayed 
developmental status or other vulnerability of the child; (D) any 
significant or lasting physical, psychological, or emotional harm to 
the child; (E) an attempt to inflict any significant or lasting 
physical, psychological, or emotional harm to the child; and (F) 
evidence suggesting a repetition or pattern of abuse or neglect, 
including multiple instances in which child abuse or neglect was 
substantiated at Tier I or Tier II, or not substantiated allegations if 
they demonstrate a pattern of abuse or neglect.
    Under Sec.  412.100(e)(8)(i)(A), violations of ORR behavior 
management requirements \47\ include, for example, the use of prone 
physical restraints, chemical restraints, or peer restraints for any 
reason in any care provider facility setting, especially considering 
the age and particular vulnerability of the child. ORR notes the factor 
under Sec.  412.100(e)(8)(i)(C) includes tender age as defined in ORR's 
Policy Guide which means children 12 years of age or younger. It also 
includes the alleged victim's vulnerable status (including history of 
trauma), particularly if the child is under the age of five; the 
child's developmental stage; the child's individualized needs, the 
child's disabilities, if any; and other vulnerabilities of the child. 
ORR's consideration of an attempt to inflict any significant or lasting 
physical, psychological, or emotional harm on the child under Sec.  
412.100(e)(8)(i)(E) will include whether there was an attempt to harm 
the child, even if the child does not appear to have suffered actual 
harm. Finally, to understand whether there is a repetition or pattern 
of child abuse or neglect under Sec.  412.100(e)(8)(i)(F), ORR will 
consider whether there have been multiple Tier I or Tier II allegations 
that have been sustained pursuant to this IFR, or determined to have 
occurred by other relevant authorities that indicate such a pattern. 
ORR will also consider whether there is evidence to indicate prior 
occurrences or ongoing incidents of child abuse or neglect even if it 
is the first incident investigated by ORR.
---------------------------------------------------------------------------

    \47\ See 45 CFR 410.1304.
---------------------------------------------------------------------------

    Under Sec.  412.100(e)(8)(ii), mitigating factors shall be weighed 
together with any existing aggravating factors. ORR again notes that 
the ``individual'' means the care provider facility staff, contractors 
or sub-grantees of the care provider facility, volunteers, or other 
individuals who have access to children in ORR care through contracts 
or grants with ORR. Mitigating factors include

[[Page 93510]]

any of the following: (A) remedial actions taken by the individual 
before the investigation was concluded; (B) extraordinary, situational, 
or temporary stressors that caused the individual to act in an 
uncharacteristically abusive or neglectful manner; (C) the isolated or 
aberrational nature of the child abuse or neglect; and (D) the limited, 
minor, or negligible physical, psychological, or emotional impact of 
the abuse or neglect on the child. Under Sec.  412.100(e)(8)(ii)(C), 
ORR will consider the isolated nature of the child abuse or neglect and 
that there is no evidence of a pattern. If a subsequent report yields 
additional evidence of a historical pattern or behavior, however, this 
mitigating factor would be eliminated.
    Under Sec.  412.100(f), records created, and information gathered 
or obtained during the course of an investigation are for internal 
purposes only, will not be shared or made public unless otherwise 
required or authorized by law, and may not be disclosed without prior 
ORR approval. All records will be maintained in an appropriate 
recordkeeping system with protections for the privacy and security of 
the individuals identified in the records. This provision refers to the 
entire record gathered during the course of an investigation under this 
part, in contrast to Sec.  412.101(d), which states ORR will refer 
names and other identifying information of sustained perpetrators to 
relevant State and local authorities and to relevant law enforcement 
agencies in the State in which the child abuse and neglect occurred. 
This provides ORR with discretion to disclose records, for example, to 
Federal, State, or local government authorities, or any agents of such 
authorities, that have a need for such information in order to carry 
out their responsibilities under law to protect children from child 
abuse and neglect. The provision also provides ORR with discretion to 
share relevant information with the HHS Office of the Inspector General 
(OIG) for purposes of conducting investigations in accordance with the 
Inspector General Act (IG Act) of 1978.\48\ ORR notes that Sec.  
412.100(f) applies to all records and information gathered, whether 
they pertain to an alleged perpetrator, an unaccompanied child who is 
an alleged victim or any other unaccompanied child, an individual 
making an allegation to ORR, or any other individual associated with an 
allegation, intake report, or investigation under this part. 
Safeguarding and maintaining the confidentiality of an unaccompanied 
child's case file records is critical to carrying out ORR's 
responsibilities under the HSA and the TVPRA.\49\ Additionally, 
requiring confidentiality is critical for promoting compliance with the 
requirement to report allegations of child abuse and neglect at Sec.  
412.100(d).\50\
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    \48\ See 5 U.S.C. 6(a).
    \49\ See 89 FR 34384, 34494. See also 81 FR 46682 (stating that 
ORR treats systems of records containing unaccompanied child 
information as subject to the provisions of the Privacy Act, 5 
U.S.C. 552a).
    \50\ ORR further notes that it has finalized regulations 
relating to the confidentiality of case files of unaccompanied 
children in ORR care in the Unaccompanied Children Program 
Foundational Rule. See id. at 34599 (codified at 45 CFR 
410.1303(h)).
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    ORR is establishing requirements pertaining to notification of 
dispositions at Sec.  412.100(g). At Sec.  412.100(g)(1), ORR must 
notify the alleged perpetrator of the disposition of an investigation 
in writing within five days of making the disposition. ORR must also 
notify in writing the alleged victim and their parent(s), legal 
guardian(s) (as appropriate), or sponsor(s), of the disposition within 
five days of making a disposition.
    Under Sec.  412.100(g)(2), if the disposition is substantiated at 
Tier I, the notification must state: (i) the substantiated perpetrator 
will be considered a sustained perpetrator at Tier I and their name and 
other relevant information will be placed on the ORR Central Registry 
(unless they seek an appeal of the disposition pursuant to Sec.  
412.102) and that once identified in the Central Registry, they will be 
prohibited from working or volunteering in any way on ORR-funded grants 
or contracts, and may not have access to or contact with any 
unaccompanied child in ORR custody; (ii) the reasons for the Tier I 
substantiated perpetrator's placement on the ORR Central Registry in 
terms sufficient to put the perpetrator on notice of the conduct or 
incident(s) upon which it is based; (iii) the substantiated perpetrator 
may appeal ORR's disposition pursuant to Sec.  412.102, but that if the 
Tier I substantiated perpetrator either fails to request such appeal in 
a timely manner, or upon conclusion of the appeal and subsequent 
review, if any, the disposition is upheld, the perpetrator will be 
added to the ORR Central Registry and the disposition will be reported 
to Federal, State, and local authorities as appropriate (such as 
notifying the State in which the allegation occurred when an allegation 
is sustained); and (iv) ORR's procedures for making the disposition. 
ORR believes these requirements are a key part in ensuring a Tier I 
substantiated perpetrator has adequate notification that they will be 
placed on the ORR Central Registry, the consequences of being placed on 
the Registry, and of the ability to request an appeal and subsequent 
review.
    Under Sec.  412.100(g)(3), if the disposition is a Tier II 
substantiated allegation, the notification must inform the Tier II 
substantiated perpetrator that they may appeal ORR's disposition 
pursuant to Sec.  412.102, but that if the Tier II substantiated 
perpetrator either fails to request such appeal in a timely manner, or 
upon the conclusion of the appeal and subsequent review, if any, the 
disposition is upheld, the Tier II substantiated perpetrator will be 
designated as a Tier II sustained perpetrator and ORR's disposition 
will be retained in ORR records. ORR may use these records for 
determining patterns of abuse and neglect and for informing future 
safety planning at care provider facilities. A Tier II sustained 
perpetrator will not be placed on the ORR Central Registry.

Section 412.101 Interventions and Discipline

    Under Sec.  412.101, ORR is establishing mechanisms for 
interventions and discipline related to substantiated and sustained 
allegations of child abuse and neglect as determined by ORR under Sec.  
412.100. These intervention and discipline mechanisms include 
maintenance by ORR of a ORR Central Registry of individuals with Tier I 
sustained allegations of child abuse and neglect; prohibitions on 
hiring, employing, or permitting as volunteers individuals who are 
listed in the ORR Central Registry; required disciplinary sanctions by 
ORR care provider facilities; and provisions for ORR referrals of 
substantiated allegations of child abuse and neglect to other 
government and law enforcement agencies. ORR believes that these 
enforcement mechanisms and requirements are crucial to carrying out the 
purpose of this part, as specified and described under Sec.  412.100(a) 
and (c) above.
    Section 412.101(a) describes an ORR Central Registry to list Tier I 
sustained perpetrators under this rule. Under Sec.  412.101(a)(1), for 
purposes consistent with Sec.  412.100(a) and (c), ORR will create and 
maintain an ORR Central Registry of Tier I sustained perpetrators, 
including names and other identifying information, and details 
regarding the sustained allegations. Under Sec.  412.101(a)(2), subject 
to legal requirements regarding disclosure of information (e.g., under 
Freedom of Information Act (FOIA), the Privacy Act, or the IG Act), the 
ORR Central Registry

[[Page 93511]]

will not be public-facing, nor available to persons outside of ORR, 
since its purpose is to inform employment decisions by ORR care 
provider facilities, home study providers, and post-release service 
providers by providing the names and other identifying information of 
Tier I sustained perpetrators, and for ORR to use as part of the 
screening process by care provider facilities as described in Sec.  
412.101(b).
    Section 412.101(b) sets out certain working and volunteering 
prohibitions for individuals listed in the ORR Central Registry, as 
well as requirements for checking the ORR Central Registry. ORR is 
requiring at Sec.  412.101(b)(1) that the individuals listed in the ORR 
Central Registry shall be prohibited from working or volunteering in 
any way on ORR-funded grants or contracts, and may not have access to 
or contact with any unaccompanied child in ORR custody, unless ORR 
removes such individual from the Central Registry (e.g., circumstances 
contemplated under Sec.  412.102(c)(2)(ii), addressing temporary 
removal of an individual from the Central Registry while an appeal is 
pending; Sec.  412.102(e), addressing possible reversal of a DAB 
finding by second-level review, carried out by the Assistant Secretary 
for ACF). ORR-funded grants or contracts where individuals listed in 
the ORR Central Registry will be prohibited from working or 
volunteering may cover, for example, other care provider facilities, 
ORR home study and post-release service providers, or other ORR-funded 
services that may include access to unaccompanied children. At Sec.  
412.101(b)(2), ORR is requiring that, as part of the screening process 
for hiring decisions for staff, contractors or sub-grantees, or for 
screening volunteers, all care provider facilities, home study 
providers, and post-release service providers, whether or not located 
in States that investigate child abuse and neglect allegations at ORR 
care provider facilities, must check with ORR to confirm that an 
applicant is not listed in the ORR Central Registry.
    At Sec.  412.101(b)(3), ORR sets out the requirement that all care 
provider facilities, home study providers, and post-release service 
providers, whether or not located in States that investigate child 
abuse and neglect allegations at ORR care provider facilities, must 
also check all of their personnel against the ORR Central Registry at 
least once annually. Checking applicants and current personnel against 
the ORR Central Registry is an especially important child safety 
measure for care provider facilities located in States that do not 
investigate allegations of child abuse and neglect, and thus whose 
registries will not include individuals alleged, or found through 
investigation, to have perpetrated abuse or neglect at ORR care 
provider facilities. ORR notes that the requirements at Sec.  
412.101(b) are supplementary to those in the PSA IFR at 45 CFR 411.16 
and 45 CFR 411.81.
    Under Sec.  412.101(c), care provider facilities must implement 
appropriate disciplinary or remedial measures where they or ORR find 
care provider facility staff, contractors or sub-grantees of the care 
provider facility, or care provider facility volunteers engaged in 
conduct that does not rise to the level of a Tier I substantiated 
allegation, as defined at Sec.  412.001, but nevertheless raises child 
welfare concerns.
    ORR believes that it is important to share information regarding 
sustained perpetrators with relevant State and local authorities such 
that they can take additional action as necessary to protect children 
in their jurisdictions in accordance with their legal obligations. This 
information sharing does not mean that information on the registry is 
public facing, such as other public criminal records databases. Rather, 
ORR will only share information directly with relevant entities and in 
accordance with applicable State and Federal information sharing, 
privacy, and due process protections. Accordingly, under Sec.  
412.101(d)(1), ORR will refer names and other identifying information 
of Tier I sustained perpetrators to relevant State and local 
authorities (e.g., child protective services) and to relevant law 
enforcement agencies in the State in which the sustained allegation of 
child abuse and neglect occurred. This requirement comports with 
existing requirements in the PSA IFR that all terminations for 
violations of ORR or care provider facility policies and procedures 
regarding sexual abuse and sexual harassment, 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.\51\ Additionally, if requested by a relevant State or 
local authority or relevant law enforcement agency, including an 
authority or agency outside of the State in which the Tier I sustained 
allegation occurred, ORR will confirm whether a particular individual 
is on the ORR Central Registry. Furthermore, under Sec.  412.101(d)(2), 
ORR will provide the names and other identifying information of Tier I 
sustained perpetrators to the Federal Bureau of Investigation, and HHS 
Office of the Inspector General (OIG), consistent with any applicable 
agreements. Finally, Sec.  412.101(d)(3) requires that neither ORR nor 
care provider facilities shall interfere with another State, local, or 
Federal authority or agency's investigation into allegations of child 
abuse and neglect.
---------------------------------------------------------------------------

    \51\ See 45 CFR 411.81(c).
---------------------------------------------------------------------------

Section 412.102 Appeal and Review Process

    ORR is establishing guidelines and requirements regarding the 
availability of an appeal and review process of dispositions made by 
ORR at Sec.  412.102.
    Under Sec.  412.102(a), a substantiated perpetrator, whether at 
Tier I or Tier II, may appeal the disposition made by ORR to an 
Administrative Law Judge (ALJ) in the HHS Departmental Appeals Board 
(DAB) pursuant to Sec.  412.102(c).
    ORR is requiring, at Sec.  412.102(b), that ORR shall notify 
substantiated perpetrators at Tier I or Tier II of their opportunity 
for an appeal. As stated above, all alleged perpetrators receive notice 
of the allegations against them pursuant to Sec.  412.100(e)(3). Under 
Sec.  412.102(b)(1), after completing an investigation and upon 
substantiation of any relevant allegations, ORR will send a written 
notice to the substantiated perpetrator at Tier I or Tier II, in 
accordance with Sec.  412.100(g). The notice will state that the 
relevant allegations have been substantiated and that the Tier I 
substantiated perpetrator will be placed on the ORR Central Registry 
unless they appeal the disposition by ORR and that the Tier II 
substantiated perpetrator's information will be retained as a Tier II 
sustained perpetrator in agency records. Under Sec.  412.102(b)(2), the 
written notice shall: (i) clearly describe the basis for ORR's 
disposition that substantiates the relevant allegations at Tier I or 
Tier II and shall explain the Tier I or Tier II substantiated 
perpetrator's right to appeal the disposition and the steps required to 
initiate the appeal; (ii) inform the substantiated perpetrator that 
they may appeal the disposition before an ALJ; (iii) provide the 
substantiated perpetrator at Tier I or Tier II and their attorney, if 
any, with written information and instructions describing the appeal 
process; and (iv) inform the substantiated perpetrator at Tier I or 
Tier II that if they do not appeal within 30 days of receiving the 
notice, the DAB will consider the substantiated perpetrator to have 
waived their opportunity for an appeal and any subsequent review. A 
Tier I substantiated perpetrator will be identified on the ORR Central 
Registry as a Tier I sustained perpetrator. A Tier II substantiated 
perpetrator's

[[Page 93512]]

information will be retained as a Tier II sustained perpetrator in 
agency records.
    At Sec.  412.102(c), ORR is establishing a process for 
substantiated perpetrators at Tier I or Tier II to appeal of ORR's 
disposition. Under Sec.  412.102(c)(1)(i), and as further elaborated at 
Sec.  412.102(c)(2), if the substantiated perpetrator elects to appeal 
ORR's disposition that a child abuse or neglect allegation is 
substantiated at Tier I or Tier II, they must file a written notice of 
appeal with the DAB within 30 days of receipt of the written notice of 
ORR's disposition. Under Sec.  412.102(c)(1)(ii), within 30 days of 
receiving this written notice of appeal, ORR will provide all evidence 
it used in making its disposition to the DAB. Under Sec.  
412.102(c)(1)(iii), within 30 days of receiving this written notice of 
appeal, ORR will provide to the substantiated perpetrator at Tier I or 
Tier II, and their attorney, if any, all information used in making its 
disposition, except any information that ORR determines: (A) would 
compromise the safety and well-being of a child, the reporter, or any 
other person; (B) would reveal the identity of a child who furnished 
information with the understanding that their identity would be held in 
confidence; (C) would reveal the identity of any other alleged 
perpetrator(s) involved in the same case who has an unfounded 
disposition (to protect the privacy of the alleged perpetrator with an 
unfounded disposition); or (D) is otherwise prohibited by State or 
Federal law or regulation. In the case of information being withheld, 
the substantiated perpetrator at Tier I or Tier II will be advised of 
the general nature of the information and the reasons that it is being 
withheld. Neither the substantiated perpetrator at Tier I or Tier II 
nor the care provider facility are required to provide information 
unless they would like the ALJ to consider such information as part of 
the hearing or record review, and they will not be compelled to provide 
it.
    Dismissal of appeals is covered in Sec.  412.102(c)(2). Under Sec.  
412.102(c)(2)(i), the ALJ may dismiss an appeal when the ALJ determines 
that the substantiated perpetrator waived appeal by not submitting the 
notice of appeal in a timely manner (i.e., an appeal within 30 days of 
receiving written notice of ORR's disposition) and failed to 
demonstrate good cause for the untimely request, withdraws the appeal, 
abandons the appeal, or does not have a right to ALJ review (including, 
but not limited to, situations where the case does not involve a Tier I 
or Tier II substantiated allegation). If the appeal is dismissed, the 
Tier I substantiated perpetrator will be placed on the ORR Central 
Registry as a Tier I sustained perpetrator or ORR will retain the 
information regarding the Tier II substantiated perpetrator as a Tier 
II sustained perpetrator in agency records, as applicable. 
Notwithstanding such a dismissal, under Sec.  412.102(c)(2)(ii) the DAB 
may in its discretion temporarily remove the designation of sustained 
perpetrator at Tier I or Tier II, which would result in ORR removing 
the individual who was designated as a Tier I sustained perpetrator 
from the ORR Central Registry, in situations where, for example, the 
ALJ determines that the sustained perpetrator at Tier I or Tier II has 
established good cause for exceeding the appeal timeframe. This rule 
contemplates that good cause may be established, for example, where a 
serious medical condition prevented timely filing of the notice of 
appeal.
    The appeal and review processes are described in Sec.  412.102(d) 
and (e). Under Sec.  412.102(d)(1), when a substantiated perpetrator at 
Tier I or Tier II appeals, ORR must transmit all of the evidence upon 
which ORR's disposition was based to the ALJ. Under Sec.  
412.102(d)(2), the evidentiary record must contain all documents and 
other materials, such as video or audio recordings, that were used by 
ORR in making its disposition. The ALJ may remand the case to ORR if 
the ALJ determines that the evidentiary record is insufficiently 
complete to determine whether ORR's disposition is supported by a 
preponderance of the evidence. Under Sec.  412.102(d)(3), the 
substantiated perpetrator at Tier I or Tier II may be represented by an 
attorney. As described in Sec.  412.102(d)(4), the substantiated 
perpetrator shall have the burden to show that, considering the 
totality of the evidence, there is not a preponderance of the evidence 
to support the substantiated allegation at Tier I or Tier II, and to 
dispute whether any automatic Tier I substantiating circumstances 
described at Sec.  412.100(e)(7) existed (if applicable) or whether 
aggravating factors or mitigating factors described at Sec.  
412.100(e)(8) existed (if applicable). Both ORR and the substantiated 
perpetrator may present the testimony of witnesses, documents, factual 
data, arguments, or other submissions of proof. The testimony of care 
provider facility staff shall be voluntary and failure to provide such 
testimony will not subject the care provider staff member to 
disciplinary action. Under Sec.  412.102(d)(5), if the substantiated 
perpetrator appeals and the appeal is not dismissed by the ALJ pursuant 
to Sec.  412.102(d)(7), ORR must notify the alleged victim and the 
alleged victim's parent(s), legal guardian(s) (as appropriate), or 
sponsor(s) that an appeal of ORR's disposition will be conducted by an 
ALJ. The alleged victim, other child witness(es), and family members of 
the alleged victim shall not be required to testify. Refusal to testify 
shall have no bearing on a determination as to whether the alleged 
abuse or neglect did or did not take place.
    Under Sec.  412.102(d)(6), both parties (ORR and the substantiated 
perpetrator) may cross examine witnesses and ask questions during a 
live hearing, as well as request additional information, either during 
a live hearing or pursuant to a record review. In order to mitigate the 
potential for re-traumatization of an alleged victim while still 
providing a substantiated perpetrator with the opportunity to respond 
to the allegations, a substantiated perpetrator may not personally 
cross examine the alleged victim. The parties will be given an 
opportunity to file briefs or other written statements of fact or law. 
Under Sec.  412.102(d)(7), the ALJ must conduct a fair and impartial 
hearing under a de novo standard of review to determine whether the 
substantiated perpetrator met their burden of proving that, considering 
the totality of the evidence, there is not a preponderance of the 
evidence to support the substantiated allegation. The ALJ will issue a 
written decision upholding, modifying, or reversing the ORR's 
disposition. Under Sec.  412.102(d)(8), the ALJ shall serve a copy of 
the decision upon the parties and the Assistant Secretary for ACF. The 
ALJ's decision shall provide the substantiated perpetrator at Tier I or 
Tier II and their attorney, if any, with instructions for filing a 
request for review with the Assistant Secretary for ACF. The ALJ also 
shall provide a copy of the decision to the alleged victim, and, as 
appropriate, the alleged victim's parent(s), legal guardian(s), or 
sponsor(s). The complete record upon which the decision is based shall 
be made available to the Assistant Secretary.
    This rule provides another level of review under Sec.  412.102(e). 
This subsection provides that the Assistant Secretary for ACF may 
review the ALJ's determination, either sua sponte or upon a request by 
the substantiated perpetrator. Under Sec.  412.102(e)(1), a 
substantiated perpetrator at Tier I or Tier II may request review of 
the ALJ's decision within 30 days of receipt of the ALJ's decision, by 
filing a request for review with Office of the Assistant

[[Page 93513]]

Secretary for ACF. Under Sec.  412.102(e)(2), the Assistant Secretary 
has discretion, within 30 days after receiving a timely request for 
review of an ALJ's decision under Sec.  412.102(e)(1), to review the 
ALJ's decision and to dismiss a request for review based on 
untimeliness or other procedural defects, or to affirm, modify, or 
reverse the ALJ's decision with regard to dismissal or ORR's 
disposition of the allegation. A review by the Assistant Secretary will 
determine whether the ALJ's decision was based on a material error of 
law or fact.
    Section 412.102(e)(3) provides that if the Assistant Secretary 
affirms the ALJ's decision, or does not modify or reverse the ALJ's 
decision, within 30 days after receiving a timely review request under 
Sec.  412.102(e)(1), then the ALJ's decision becomes the final decision 
of the Assistant Secretary and is binding on both parties (ORR and the 
substantiated perpetrator). Likewise, under Sec.  412.102(e)(4), if the 
Assistant Secretary modifies or reverses the ALJ's decision pursuant to 
Sec.  412.102(e)(2), then the Assistant Secretary's decision is final 
and binding.
    Under Sec.  412.102(e)(5), if at the end of the 30-day period in 
Sec.  412.102(e)(1), no timely request for review has been made, the 
Assistant Secretary has 30 days from that point to exercise discretion 
to review the ALJ's decision. If the Assistant Secretary does not 
modify or reverse the ALJ's decision, then the ALJ's decision becomes 
the final decision of the Assistant Secretary and is binding on both 
parties. The intent of Sec.  412.102(e)(5) is to make clear that the 
Assistant Secretary has discretion to review the ALJ's decision 
regardless of whether a timely request for review is made.
    Under Sec.  412.102(e)(6), the Office of the Assistant Secretary 
for ACF shall notify the parties of the Assistant Secretary's final 
decision. The Office of the Assistant Secretary also shall provide a 
copy of the final decision to the alleged victim and the alleged 
victim's parent(s), legal guardian(s) (as appropriate), or sponsor(s), 
based on review of the ALJ's previous decision, under Sec.  412.102(e).

Section 412.103 Obligations of Care Provider Facilities

    To ensure that ORR can obtain sufficient information to make fair, 
accurate, and impartial decisions regarding allegations of child abuse 
and neglect, at Sec.  412.103, ORR is establishing obligations with 
which care provider facilities must comply during investigations.
    Under Sec.  412.103(a)(1) through (3), during any investigation of 
child abuse and neglect by ORR, a care provider facility must permit 
ORR: (1) to have unrestricted access to the premises, any physical 
property on the premises, buildings, staff, and children in the 
physical custody of the care provider facility; (2) to conduct 
interviews with children residing at the care provider facility, and 
without care provider facility staff, contractors or sub-grantees of 
the care provider facility, or care provider facility volunteers, 
present; and (3) to observe the activities of care provider facility 
staff, contractors or sub-grantees of the care provider facility, care 
provider facility volunteers, or other individuals who have access to 
children in ORR care through contracts or grants with ORR. Under Sec.  
412.103(a)(4), care provider facilities must promptly preserve any 
potential video or documentary evidence. ORR notes that this 
requirement is aligned with the requirement at Sec.  
412.100(e)(5)(iii)(A), which states that upon receiving an intake 
report, the ORR Child Welfare Investigator must immediately request 
preservation of any potential video and documentary evidence. 
Additionally, under Sec.  412.103(a)(5), care provider facilities must 
promptly provide and facilitate access to, upon request, all files, 
records, reports, data, video recordings, and other information, 
including copies of any such documents, requested by ORR either prior 
to or during the investigation. Care provider facilities subject to 
this rule must also promptly provide access to and contact information 
for staff, contractors, or sub-grantees of the care provider facility, 
its volunteers, or other individuals who have access to children in ORR 
care (Sec.  412.103(a)(6)); submit complete and accurate responses to 
any written questions in a timely manner (Sec.  412.103(a)(7)); and 
fully cooperate with ORR (Sec.  412.103(a)(8)). Finally, under Sec.  
412.103(a)(9) care provider facilities are required to fully cooperate 
with any investigation of the same allegation by other State, local, 
and Federal authorities, and relevant law enforcement agencies.
    Further, in alignment with existing ORR policy and 45 CFR 411.67, 
ORR is requiring at Sec.  412.103(b) that care provider facility staff, 
contractors or sub-grantees of the care provider facility, and care 
provider facility volunteers must not retaliate against any person who 
in good faith reports or participates in an investigation of child 
abuse or neglect.
    Under Sec.  412.103(c), a care provider facility's obstruction, 
interference, delay of, or failure to permit or cooperate with any 
investigation under this part, including failure to protect 
unaccompanied children from retaliation pursuant to Sec.  412.103(b), 
may result in ORR taking monitoring and enforcement measures. Such 
measures may include remote monitoring of the care provider facility 
(i.e., monitoring that does not occur on-site); on-site monitoring of 
the care provider facility; monitoring of the corporate offices to 
review internal policies and reporting structures, as well as 
supervisory responses to events (e.g., mitigation or future 
preventative measures); limiting or stopping new placements of 
unaccompanied children at the care provider facility; removing all 
children in ORR care and custody from the care provider facility and 
placing them into other care provider facilities; issuing corrective 
actions; terminating the contract or cooperative agreement with the 
care provider facility; or imposing other such remedies for 
noncompliance applicable to HHS grant recipients and contractors. ORR 
notes that the cooperation of care provider facilities is critical in 
investigations of child abuse and neglect, and that enforcement 
measures such as those described are appropriate to help ensure that 
ORR can obtain the information necessary to determine whether 
allegations are substantiated.
    Under Sec.  412.103(d), ORR requires care provider facilities, 
during the course of an investigation, to provide unaccompanied 
children confidential access to attorneys of record and other legal 
service providers, as well as their families and legal guardians, in a 
manner consistent with requirements established at 45 CFR 411.55 (as 
applicable) as well as 45 CFR 410.1309. Care provider facilities must 
provide unaccompanied children with access to their child advocates, in 
a manner consistent with the requirements of the TVPRA at 8 U.S.C. 
1232(c)(6) and 45 CFR 410.1308. Finally, care provider facilities must 
also provide unaccompanied children access to health services 
(including specialists and mental health practitioners), individual 
counseling sessions, and crisis intervention (including access to 
outside victim services and rape crisis centers where appropriate) to 
most appropriately address unaccompanied children's needs, in a manner 
consistent with requirements established at 45 CFR 410.1302(c)(5), 45 
CFR 410.1307, 45 CFR 410.1311, and 45 CFR 411.21 (as applicable).

[[Page 93514]]

VI. Good Cause for Issuing This IFR

    When engaging in rulemaking, ORR ordinarily publishes a notice of 
proposed rulemaking (NPRM) in the Federal Register and invites public 
comment on the proposed rule. However, under the Administrative 
Procedure Act, 5 U.S.C. 553(b), an NPRM is not required when an agency, 
for good cause, finds that notice and public comment is impracticable, 
unnecessary, or contrary to the public interest, and incorporates a 
statement of the finding and the agency's reasons in the rule issued. 
With respect to this rulemaking, delaying implementation of the 
provisions of this regulation until a public notice and comment process 
is complete would risk serious and imminent harm to unaccompanied 
children in Texas care provider facilities (and in the future at EIFs, 
which ORR may need to open on short notice, before it can execute 
formal written agreements describing child welfare investigations of 
child abuse and neglect with relevant local authorities), and thus 
would be impracticable. As such, ORR believes that it has good cause to 
issue this rulemaking as an Interim Final Rule (IFR) rather than 
issuing an NPRM.
    ORR has determined that this rulemaking is imminently necessary 
because ORR must have the ability to establish employment consequences 
at relevant care provider facilities for sustained perpetrators of 
abuse and neglect in order to fulfill its statutory 
responsibilities.\52\ Critically, as mentioned earlier, ORR began 
taking immediate action soon after it became clear that Texas DFPS was 
not going to resume its historical child welfare and investigative 
functions when it extended its emergency declaration in 2022. 
Subsequently, ORR began consulting with other federal agencies, 
developing the necessary expertise and capacity to conduct 
investigations, drafting policies and procedures to inform how 
investigations are conducted, obtaining administrative approval for new 
agency positions, creating new comprehensive technical systems for 
recording and tracking investigations, and hiring, onboarding, and 
training qualified investigative staff. Most pertinently, as discussed 
at section IV.A, ORR's recently established Division of Unaccompanied 
Child Protective Investigations (DCPI) began its investigations of 
allegations of child abuse and neglect in ORR-funded care provider 
facilities in Texas as of July 2024.
---------------------------------------------------------------------------

    \52\ See supra, Sec. IV.B (referencing various provisions of the 
HSA, including 6 U.S.C. 279(b)(1)(G) (making the ORR Director 
responsible for ``overseeing the infrastructure and personnel of 
facilities in which unaccompanied alien children reside'') and 6 
U.S.C. 279(b)(1)(L) (making the ORR Director responsible for 
``conducting investigations and inspections of facilities and other 
entities in which [unaccompanied children] reside. . .'')).
---------------------------------------------------------------------------

    In addition to investigating allegations of abuse and neglect at 
care provider facilities located in States that do not conduct 
investigations, and at EIFs, ORR needs to be able to direct its care 
provider facilities to prohibit individuals from working or 
volunteering on ORR-funded grants or contracts when there has been a 
sustained allegation of abuse or neglect at Tier I (as defined in this 
rule), and to ensure that perpetrators with such sustained allegations 
do not have access to or contact with children in ORR custody. To that 
end, this rulemaking establishes an ORR Central Registry listing Tier I 
sustained perpetrators, as described in this rule. Further, this rule 
establishes that Tier I sustained perpetrators listed on the ORR 
Central Registry are prohibited from working or volunteering in any way 
on ORR-funded grants or contracts, so as to prohibit them from having 
access to or contact with any unaccompanied child in ORR custody. 
Because such requirements potentially implicate alleged perpetrators' 
ability to work in their chosen profession (if the allegation is 
sustained at Tier I), ORR believes that substantive rulemaking is 
required to codify appeal and review procedures with appropriate due 
process protections for alleged perpetrators (e.g., notice and an 
opportunity to be heard).
    There is good cause to issue this rulemaking as an IFR because 
requiring notice and comment before implementing these provisions would 
risk serious and imminent harm to unaccompanied children. For example, 
even if DCPI concludes through an investigation that an individual 
perpetrated child abuse or neglect, without an ORR Central Registry, 
such a perpetrator could potentially pass a background check and be re-
hired at any time at another ORR care provider facility, which would 
undermine the very purpose of the rule--to protect children from such 
perpetrators. As noted above, ORR understands that creation of the 
Central Registry requires rulemaking because adequate due process 
procedures need to be established in consideration of the employment 
interests at stake. In other words, ORR's DCPI can now investigate, 
substantiate, and sustain allegations of abuse and neglect of 
unaccompanied children in its custody against alleged perpetrators in 
accordance with existing statutory authority, but requiring notice and 
comment before this rule goes into effect would prevent ORR from using 
that critical information in the ORR Central Registry to keep children 
safe in the near and long term. Until ORR is able to begin operating 
the ORR Central Registry, unaccompanied children are at elevated risk 
of abuse or neglect--a risk that ORR seeks to prevent by using this IFR 
to prohibit the hiring of Tier I sustained perpetrators of child abuse 
and neglect.
    As discussed above, as of July 2024, ORR began investigative 
activities in relation to reported child abuse and neglect at care 
provider facilities in Texas. As a result, there is an urgent need to 
have the provisions of this rule in place to protect child welfare 
while also providing appropriate due process protections for alleged 
perpetrators of child abuse and neglect. Notice and comment rulemaking 
would prevent ORR from taking swift and appropriate action when it 
identifies an imminent threat to child safety and would allow 
perpetrators of child abuse and neglect to evade ORR's efforts, 
pursuant to statutory responsibilities, to protect unaccompanied 
children in its custody. Notice and comment rulemaking would increase 
the risk of serious potential harm to unaccompanied children--which ORR 
seeks to address through this IFR by prohibiting employment of 
individuals on the ORR Central Registry.
    ORR has therefore found good cause in the specific circumstances 
presented here--where ORR has recently established a new Division to 
conduct child welfare investigations at EIFs and in States that do not 
do so given that there is an immediate and ongoing risk to 
unaccompanied children in such States without the protections described 
in this rule. This rulemaking is urgently required now to establish 
required employment consequences for individuals found by ORR 
investigations to have perpetrated child abuse or neglect, and ORR has 
not delayed responding to the urgent need to establish such 
consequences because DCPI began initiating investigations as of July 
2024.
    Therefore, HHS finds good cause to waive the notice of proposed 
rulemaking and to issue this final rule on an interim basis. Finally, 
HHS is providing a 60-day public comment period and will carefully 
consider public comments received and may update the final rule, as 
appropriate. ORR plans to finalize the rule within one year of 
implementation.

[[Page 93515]]

VII. 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 within one month following finalization, as required by the 
PRA,\53\ and will include a system of records notice related to the 
requirements in this rule.
---------------------------------------------------------------------------

    \53\ See 44 U.S.C. 3506(c)(2)(A).
---------------------------------------------------------------------------

    To estimate the costs associated with the information collection 
activities described in this interim final rule, ORR utilizes median 
hourly wage rates in accordance with the Bureau of Labor Statistics' 
(BLS) most recent update in April 2024 for Education and Childcare 
Administrators.\54\ The median hourly wage rate is calculated to be 
$26.10 with fringe benefits at 100 percent, for a total hourly wage 
rate of $52.20 ($26.10 + $26.10).
---------------------------------------------------------------------------

    \54\ https://www.bls.gov/oes/current/oes119031.htm. Accessed 
July 31, 2024.
---------------------------------------------------------------------------

    Section 412.100(d) requires that care provider facility staff, 
contractors, sub-grantees, volunteers, and all ORR staff must report 
allegations of child abuse and neglect by care provider facility staff, 
contractors or sub-grantees of the care provider facility, care 
provider facility volunteers, or other individuals who have access to 
children in ORR care through contracts or grants with ORR in accordance 
with ORR policies and procedures to ORR, and to Federal, State, and 
local authorities in accordance with any applicable Federal, State, and 
local reporting and licensing laws. Because this reporting requirement 
would not require additional reporting above and beyond existing ORR 
policy, this requirement will not result in additional burden for care 
provider facilities.

VIII. Regulatory Impact Analysis

A. Economic Analysis

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Section 
3(f) of Executive Order 12866, as amended by Executive Order 14094, 
defines a ``significant regulatory action'' as an action that is likely 
to result in a rule: (1) having an annual effect on the economy of $200 
million or more (adjusted every 3 years for changes in gross domestic 
product), or adversely affecting in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, territorial, or 
tribal governments or communities; (2) creating a serious inconsistency 
or otherwise interfering with an action taken or planned by another 
agency; (3) materially altering the budgetary impact of entitlement 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raising legal or policy issues for which 
centralized review would meaningfully further the President's 
priorities or the principles set forth in the Executive Order. 
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 do not exceed the monetary threshold for significance 
as defined under section 3(f)(1) of E.O. 12866, as amended. However, 
the regulation is significant and has been reviewed by OMB.
    As previously discussed, ORR has developed the child abuse and 
neglect investigation requirements for ORR care provider facilities 
with the intention of keeping the best interests of unaccompanied 
children at the forefront. Because the requirements in this IFR are in 
line with existing ORR policy, ORR anticipates that care provider 
facilities will need to make only minimal updates to their staffing, 
training, and/or policy in order to meet the requirements. 
Specifically, ORR anticipates that care provider facilities will need 
to make updates to meet requirements under Sec.  412.101(c) and Sec.  
412.103. Typically, ORR care provider facilities spend up to 
approximately 5 hours to cooperate with a State-led investigation of 
alleged child abuse or neglect, which can vary widely depending on the 
circumstances of the specific allegation. ORR expects that its Texas 
care provider facilities will spend the same amount of time cooperating 
with investigations conducted by ORR. Because ACF lacks the ability to 
account for the specific details of every care provider facility and 
their ability to meet the requirements, ORR is only able to estimate 
costs associated with other remedies in general, rather than specific 
to each care provider facility.
    To estimate the economic impacts associated with the policies 
promulgated in this interim final rule, ACF uses wage rate and annual 
salary data provided by BLS for Childcare Workers and First-Line 
Supervisors working in the Child Care Services industry.\55\ \56\ The 
median hourly wage rate for childcare workers is calculated to be 
$14.60. Assuming benefits and indirect costs of labor equal 100 percent 
of the hourly wage, the corresponding fully loaded cost of labor for 
childcare workers is $29.20 per hour. Additionally, the mean hourly 
wage rate for First-Line Supervisors working in the Child Care Services 
industry is calculated to be $22.45. Note that we do not use the median 
wage rate because BLS only provides mean wage rates for specific 
industries. Assuming benefits and indirect costs of labor equal 100 
percent of the hourly wage, the corresponding fully loaded cost of 
labor for childcare supervisors is $44.90 per hour. ORR assumes that it 
will take between 0.25 and 0.5 hours at a cost between $7.30 ($29.20 x 
0.25 hours) and $14.60 ($29.20 x 0.5 hours) for each childcare worker 
to receive the relevant policy update training and between $11.23 
($44.90 x 0.25 hours) and $22.45 ($44.90 x 0.5 hours) for each 
childcare supervisor to administer the training. This training would 
include administrative guidance related to how investigations will be 
conducted and due process under the interim final rule. ORR also 
assumes that it will take approximately 1 hour at a cost of $44.90 
($44.90 x 1 hour) for each childcare supervisor to update relevant 
policies.
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July 31, 2024.
    \56\ https://www.bls.gov/oes/current/oes391022.htm. Accessed 
July 31, 2024.
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    In Sec.  412.100(a) through (g) ORR discusses the establishment and 
operation of its investigations into alleged child abuse and neglect. 
Currently, based on FY 2024 levels of wages, benefits, and indirect 
labor costs, ORR estimates 24 full-time staff will be required at a 
cost of approximately $209,000 per staff member for a total of 
approximately $5 million ($209,000 x

[[Page 93516]]

24 staff) per year. The ORR Child Welfare Investigators will receive 
allegations of child abuse and neglect as intake reports, assess the 
allegation to determine whether it meets applicable requirements and 
definitions, conduct all necessary interviews, review and preserve all 
relevant evidence, implement any necessary safety plans, coordinate 
with the multidisciplinary team as needed, and render a disposition. 
ORR expects no new costs or burdens on care provider facilities to 
cooperate with ORR's investigations.
    ORR also notes that all care provider facilities discussed in this 
interim final rule are ACF grantees and the costs of maintaining 
compliance with the requirements are allowable costs to grant awards 
under the Basic Considerations for cost provisions at 45 CFR 403 
through 405, in that the costs are reasonable, necessary, ordinary, 
treated consistently, and are allocable to the award. Additional costs 
associated with the policies discussed in this interim final rule that 
were not budgeted, and cannot be absorbed within existing budgets, 
would be allowable for the grant recipient to submit a request for 
supplemental funds to cover the costs.

B. 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 and requires that ORR care provider facilities within the 
scope of this rule cooperate with Federal investigations of child abuse 
and neglect. As of publication of this rule, 66 of 284 (23 percent) ORR 
care provider facilities are located in Texas and would be impacted by 
the requirements in this interim final rule. While the affected 
percentage of small entities exceeds the threshold of 5 percent for 
this subcategory of care provider facilities within the U.S., ORR 
believes the burden associated with the requirements in this interim 
final rule are equal to or negligibly greater than the burden imposed 
by any State-based requirements to which the affected care provider 
facilities would otherwise be subjected. While this rule primarily 
affects the Federal Government, ORR assumes all of these care provider 
facilities qualify as small businesses as defined by the Small Business 
Administration (SBA), and ORR has therefore attempted to ensure the 
economic impact on individual care provider facilities is kept to a 
minimum.

C. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires 
ORR to prepare a written statement, which includes estimates of 
anticipated impacts, before proposing ``any 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 
$100,000,000 or more (adjusted annually for inflation) in any one 
year.'' The current threshold after adjustment for inflation is $177 
million, using the most current (2022) Implicit Price Deflator for the 
Gross Domestic Product. This interim final rule would not likely result 
in unfunded expenditures that meet or exceed this amount.

D. Executive Order 13132: Federalism

    This interim final rule would not have substantial direct effects 
on the States, on the relationship between the Federal Government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. This interim final rule would 
implement ORR's explicit statutory authority to investigate child abuse 
and neglect allegations in ORR care provider facilities, and would 
enable it to make findings relevant to its responsibility for the care 
of unaccompanied children. In codifying these practices, ORR was 
mindful of its obligations to meet the requirements of Federal statutes 
while also minimizing conflicts between State law and Federal 
interests. At the same time, ORR is also mindful that its fundamental 
obligations are to ensure that it implements its statutory 
responsibilities pursuant to both the HSA and TVPRA, to protect the 
safety of unaccompanied children while in ORR care.
    Typically, ORR enters into cooperative agreements or contracts with 
non-profit and private organizations to provide shelter and care for 
unaccompanied children in a care provider facility licensed by the 
appropriate State or local licensing authority if the State licensing 
agency provides for licensing of care provider facilities that provide 
services to unaccompanied children. This regulation allows ORR to 
investigate allegations of child abuse and neglect only in instances 
where a State will not investigate allegations of child abuse and 
neglect in ORR care provider facilities, and at EIFs. ORR has designed 
its policies and regulations, as well as the terms of its cooperative 
agreements and contracts with the unaccompanied children care provider 
facilities, to complement applicable State and local licensing rules, 
not to supplant or replace the requirements. Because the applicability 
of this regulation is limited precisely to circumstances where a State 
does not investigate child abuse and neglect at ORR care provider 
facilities, and EIFs, it does not implicate federalism concerns or 
impose substantial direct compliance costs on State or local 
governments. Further, this regulation does not preempt State laws and 
regulations because it applies specifically where States have 
explicitly abdicated their investigatory responsibility in ORR care 
provider facilities housing unaccompanied children, and at EIFs where 
States may not have authority to conduct investigations. Where State or 
local authorities enter into formal written agreements with ORR to 
conduct investigations, ORR may still, pursuant to its statutory 
authority, carry out its own investigations, but any potential ORR 
investigation under this rule would not interfere with the State or 
local authority's investigation.
    Therefore, in accordance with section 6 of Executive Order 13132, 
it is determined that this interim final rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.
    Notwithstanding the determination that the formal consultation 
process described in Executive Order 13132 is not required for this 
rule, ORR welcomes any comments from representatives of State and local 
juvenile or family residential facilities--among other individuals and 
groups--during this rulemaking.

E. Executive Order 12988: Civil Justice Reform

    This interim final rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice 
Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

IX. 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 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

[[Page 93517]]

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.

    Dated: November 20, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.

List of Subjects in 45 CFR Part 412

    For the reasons set forth in the preamble, the ORR adds 45 CFR part 
412 to read as follows:

PART 412--INVESTIGATIONS OF ALLEGATIONS OF CHILD ABUSE AND NEGLECT

Sec.
412.001 Definitions
412.100 Investigations of allegations of child abuse and neglect
412.101 Interventions and discipline
412.102 Appeal and review process
412.103 Obligations of care provider facilities

PART 412--INVESTIGATIONS OF ALLEGATIONS OF CHILD ABUSE AND NEGLECT

Sec.  412.001  Definitions.

    ACF means the Administration for Children and Families, Department 
of Health and Human Services.
    Administrative closure means that ORR has determined that it will 
not make a finding regarding an allegation of child abuse or neglect. 
ORR may make a determination of administrative closure both before and 
after an investigation begins. Reasons for administrative closure of an 
intake report before investigation may include, but are not limited to, 
lack of jurisdiction to conduct an investigation of the allegation, 
transfer of the report to another jurisdiction or agency, duplication 
of an already existing report, an allegation not rising to the level of 
child abuse or neglect, or an allegation is otherwise outside the scope 
of this rule, as described at Sec.  412.100(c). Reasons for a 
disposition of administrative closure after investigation may include, 
but are not limited to, inability to contact the child, insufficient 
information to proceed with the investigation, or transfer of the 
report to another jurisdiction or agency.
    Allegation means a written or oral report to ORR of suspected child 
abuse or neglect.
    Alleged perpetrator means a person who is alleged to have abused or 
neglected a child within the scope of this part as described at Sec.  
412.100(a) and (c).
    Appeal and review process means the appeal to an Administrative Law 
Judge (ALJ) of the HHS Departmental Appeal Board (DAB), and review by 
the Assistant Secretary for ACF of the disposition that an allegation 
of child abuse or neglect was substantiated at Tier I or Tier II.
    Attorney of record has the same definition as provided under 45 CFR 
410.1001.
    Care provider facility has the same definition as provided under 45 
CFR 410.1001.
    Child abuse and neglect means any act or failure to act which 
results in death, serious physical or emotional harm, sexual abuse, or 
exploitation of a child; or an act or failure to act which presents an 
imminent risk of serious harm to a child including but not limited to 
physical abuse, verbal or emotional abuse, sexual harassment, sexual 
abuse, inappropriate sexual behavior, neglect, and medical neglect.
    Child advocates has the same definition as provided under 45 CFR 
410.1001.
    Contractor means an entity that receives a contract as provided 
under 45 CFR 75.2.
    Days means calendar days, unless otherwise stated.
    Disposition means a finding by ORR at the conclusion of an 
investigation that an allegation of abuse or neglect is substantiated 
at Tier I, substantiated at Tier II, not substantiated, unfounded, or 
administratively closed.
    Emergency or influx facility (EIF) has the same definition as 
provided under 45 CFR 410.1001.
    HHS means the U.S. Department of Health and Human Services.
    Inappropriate sexual behavior refers to inappropriate sexual, 
derogatory, or offensive conduct that does not rise to the level of 
sexual abuse or sexual harassment.
    Intake report means an allegation of child abuse or neglect 
identified by ORR as describing child abuse or neglect of an 
unaccompanied child by an alleged perpetrator.
    Legal service provider (LSP) has the same definition as provided 
under 45 CFR 410.1001.
    Medical neglect means any failure to provide medical care or access 
to medical services that endangers the health of the child.
    Multidisciplinary team is a group of individuals comprised of ORR 
staff that includes subject matter experts that provides input to ORR's 
Child Welfare Investigators by assessing reported allegations of child 
abuse and neglect at care provider facilities and making 
recommendations regarding the physical and behavioral healthcare needs 
of unaccompanied children potentially impacted by child abuse and 
neglect at these facilities.
    Neglect refers to any failure to provide adequate food, water, 
clothing, shelter, or other necessities; punitive, careless, or 
unnecessary denial of access to other basic services such as education, 
legal aid, exercise, recreation, bathroom usage, and communication or 
correspondence with families, sponsors, or attorneys.
    Not substantiated allegation means a disposition that there is not 
a preponderance of the evidence establishing that the alleged 
perpetrator committed child abuse or neglect, but there is at least 
some evidence that the unaccompanied child was harmed or placed at risk 
of harm, whether or not by the alleged perpetrator.
    ORR means the Office of Refugee Resettlement, Administration for 
Children and Families, U.S. Department of Health and Human Services.
    ORR Central Registry means a database maintained by ORR consisting 
of ORR findings of sustained perpetrators of child abuse and neglect at 
Tier I.
    ORR Child Welfare Investigator means an ORR staff member who 
investigates reports of alleged abuse or neglect of children, renders 
the investigative disposition, and issues corrective action on behalf 
of ORR and performs other related work for ORR.
    Physical abuse means physical harm to a child that includes, but is 
not limited to, bruises, cuts, sprains, welts, fractures, burns, 
lacerations, missing or broken teeth, muscle strains, or internal 
injuries; in addition to physical mistreatment such as whipping, 
punching, shoving, kicking, hitting, biting, shaking, dragging, 
throwing, stabbing, or choking a child, as well as the inappropriate 
use of restraints.
    Preponderance of the evidence means proof, after assessing the 
totality of available information, that leads to the conclusion that 
the fact at issue is more probably true than not.
    Sexual abuse has the same definition as provided under 45 CFR part 
411.6.
    Sexual harassment has the same definition as provided under 45 CFR 
part 411.6.
    Sub-grantee means a person or entity that receives a subaward from 
a care provider facility to carry out activities and programs of ORR or 
the care provider facility pursuant to a grant or agreement with ORR or 
with a care provider facility (but does not include an individual that 
is a beneficiary of such program).

[[Page 93518]]

    Substantiated allegation--Tier I means a disposition that there is 
a preponderance of the evidence establishing that the alleged 
perpetrator committed child abuse or neglect, and the investigation 
indicates one or more Automatic Tier I substantiating circumstances are 
found pursuant to Sec.  412.100(e)(7), or substantiation is warranted 
based on consideration of aggravating and mitigating factors pursuant 
to Sec.  412.100(e)(8).
    Substantiated allegation--Tier II means a disposition that there is 
a preponderance of the evidence establishing that the alleged 
perpetrator committed child abuse or neglect, and that based on 
consideration of aggravating and mitigating factors pursuant to Sec.  
412.100(e)(8), the evidence does not warrant a finding of Substantiated 
Allegation--Tier I.
    Substantiated perpetrator means a person against whom an allegation 
of child abuse or neglect has been substantiated by ORR at Tier I or 
Tier II, but who has not exhausted all applicable appeal and review 
processes for such allegations.
    Sustained allegation means an allegation that was substantiated by 
ORR at Tier I or Tier II and:
    (1) That was upheld pursuant to appeal and review processes, as 
described at Sec.  412.102; or
    (2) For which the appeal was dismissed, including when the 
substantiated perpetrator waives their right to appeal by not making a 
timely request to the DAB ALJ or by waiving those rights as specified 
in Sec.  412.102(c).
    Sustained perpetrator means a substantiated perpetrator at Tier I 
or Tier II:
    (1) Whose child abuse or neglect finding was upheld in the appeal 
and review process; or
    (2) Whose appeal and review process was dismissed, including due to 
waiving their right to appeal by not timely requesting an appeal to the 
DAB ALJ or by waiving those rights as specified in Sec.  412.102(c).
    Unaccompanied child/children has the same definition as provided 
under 45 CFR 410.1001.
    Unfounded allegation means a disposition that there is not a 
preponderance of the evidence establishing that the alleged perpetrator 
committed child abuse or neglect, and the evidence indicates that the 
unaccompanied child was not harmed or placed at risk of harm.
    Verbal or emotional abuse means any criticisms, comments, 
behaviors, or threats that cause harm to a child's psychological, 
intellectual, or emotional functioning or self-esteem, which may be 
exhibited by a child's anxiety, loneliness, fear, sadness, withdrawal, 
aggression, or loss of trust with staff.
    Volunteer has the same definition as provided under 45 CFR 411.

Sec.  412.100  Investigations into allegations of child abuse and 
neglect.

    (a) Purpose. This part establishes standards, requirements and 
procedures for investigations by ORR of allegations of child abuse and 
neglect of an unaccompanied child in ORR custody alleged to have been 
committed by care provider facility staff, contractors or sub-grantees 
of the care provider facility, care provider facility volunteers, or 
other individuals who have access to children in ORR care through 
contracts or grants with ORR, subject to Sec.  412.100(c).
    (b) Severability. The provisions of this part are separate and 
severable from one another. If any provision is stayed or determined to 
be invalid by a court of law, the remaining provisions shall continue 
in effect.
    (c) Applicability. This part applies to:
    (1) Care provider facilities housing unaccompanied children in 
States where the State agency responsible for investigating child abuse 
and neglect allegations will not investigate such allegations in ORR-
funded care provider facilities; and
    (2) Emergency or influx facilities (EIFs).
    (d) Reporting. Care provider facilities to whom this part applies 
must have written policies and procedures that allow unaccompanied 
children, care provider facility staff, contractors or sub-grantees of 
the care provider facility, care provider facility volunteers, families 
of unaccompanied children, legal service providers, child advocates, 
attorneys of record, and any other persons, to report allegations of 
child abuse and neglect to ORR directly, to the care provider facility, 
or to a designated entity or office that is not part of the care 
provider facility. The care provider facility written policies and 
procedures must:
    (1) Provide unaccompanied children and other individuals with 
methods for reporting and inform them of how they can report an 
allegation of child abuse and neglect to a designated entity or office 
that is not part of the care provider facility. Such entity or office 
must be able to receive allegations of child abuse and neglect and must 
immediately forward such allegations to ORR. The method for reporting 
must allow unaccompanied children to remain anonymous upon request.
    (2) Ensure all the methods of reporting described at Sec.  
412.100(d)(1) are accessible for unaccompanied children with 
disabilities and with limited English proficiency.
    (3) Ensure that unaccompanied children, staff, or others who report 
allegations of child abuse and neglect are protected against 
retaliation.
    (e) Investigations. When receiving reports of allegations of child 
abuse and neglect and conducting investigations, ORR must ensure the 
health and safety of unaccompanied children while making every effort 
to reduce further trauma to the alleged victim(s).
    (1) If ORR receives a report of an allegation of child abuse or 
neglect, it must generate an intake report and determine whether the 
report includes an allegation that, if found to be true, would meet the 
definition of child abuse and neglect in this part and is consistent 
with Sec.  412.100(a) and (c). If so, ORR will assign the intake report 
for investigation. If not, ORR will administratively close the report.
    (2) If ORR determines that an intake report is appropriate for 
investigation, ORR shall assign an ORR Child Welfare Investigator to 
make a prompt and thorough investigation of the report to obtain 
sufficient information to determine whether the allegation of child 
abuse or neglect is substantiated, either at Tier I or II, based on a 
preponderance of the evidence.
    (3) ORR shall provide notification that an allegation of child 
abuse and neglect will be investigated by ORR to the alleged 
perpetrator; care provider facility; alleged victim; alleged victim's 
attorney of record (if the child has an attorney of record); and the 
alleged victim's parent(s), legal guardian(s), or sponsor(s) (as 
appropriate), unless ORR has evidence showing the parents, legal 
guardians, or sponsors should not be notified or the victim is 14 years 
old or older. If the alleged victim is 14 years old or older and ORR 
has determined that the alleged victim is able to make an independent 
decision, the alleged victim can affirmatively consent to disclosure.
    (4) Upon notification that an investigation has been initiated, the 
care provider facility must take immediate responsive measures, for the 
protection of child welfare, and notify the alleged perpetrator, as 
appropriate, and ORR of such measures. These measures may extend 
throughout the pendency of an investigation, and during the pendency of 
the appeal and review process, as necessary and applicable.
    (5) Investigations process. (i) ORR shall coordinate with any local 
or State law enforcement agencies, or other Federal agencies, as 
appropriate, during its investigation. ORR may pause or

[[Page 93519]]

resume an investigation at its discretion, with input from law 
enforcement partners or other relevant investigatory bodies, as 
necessary.
    (ii) A multidisciplinary team of ORR staff that includes subject 
matter experts, shall be established, as necessary, to provide input 
and an assessment of the reported allegation of child abuse or neglect 
to assist the ORR Child Welfare Investigator.
    (iii) During the investigation, the ORR Child Welfare Investigator 
must complete, at a minimum, the following actions:
    (A) Upon receiving an intake report, review the intake report and 
the care provider facility's records on the alleged victim and alleged 
perpetrator, conduct background checks on the alleged perpetrator, 
interview the person who reported the allegation if this person was not 
interviewed during intake, immediately request preservation of any 
potential video and documentary evidence, and as needed, establish a 
plan for thoroughly investigating the allegation;
    (B) Visit the care provider facility, as appropriate, to conduct a 
walkthrough of the facility and review video and documentary evidence;
    (C) Make reasonable efforts to interview all individuals who have 
information relevant to the allegation of child abuse or neglect, 
including, but not limited to, the alleged perpetrator (as 
appropriate), care provider facility staff, the alleged victim, 
sponsor(s), and the parent(s) or legal guardian(s) (as appropriate) of 
the alleged victim, and any other potential witnesses;
    (D) Ensure that interviews conducted as part of the investigation 
are accessible for individuals with disabilities and with limited 
English proficiency and are properly documented either in writing or by 
audio or video recording;
    (E) Gather all relevant information, including documents and audio 
or video evidence;
    (F) Review any available evidence of past conduct contained in 
DCPI's records relating to the same alleged perpetrator, except for 
allegations that resulted in a finding of unfounded or administrative 
closure; and
    (G) Assess the ongoing risk of child abuse or neglect to the 
unaccompanied children at the care provider facility and, as 
appropriate, request that the care provider facility implement a plan 
to mitigate the risk and ensure the safety of the children.
    (6) After the investigation is complete, ORR may make any of the 
following dispositions based on the preponderance of the evidence for 
each reported allegation:
    (i) Substantiated allegation--Tier I;
    (ii) Substantiated allegation--Tier II;
    (iii) Not substantiated allegation;
    (iv) Unfounded allegation; or
    (v) Administrative closure.
    (7) Automatic Tier I substantiating circumstances. The existence of 
any one of the following circumstances in connection to a substantiated 
finding, by a preponderance of the evidence, of child abuse or neglect 
shall result in an automatic finding of Substantiated allegation--Tier 
I:
    (i) The death or near death of a child as a result of child abuse 
or neglect;
    (ii) Subjecting or exposing a child to sexual abuse or sexual 
harassment;
    (iii) The infliction of injury or creation of a condition requiring 
a child to be hospitalized or to receive significant medical attention;
    (iv) Repeated instances of physical abuse committed by the 
individual against any unaccompanied child in ORR care;
    (v) Failure to take reasonable action to protect a child from 
sexual abuse or repeated instances of physical abuse under 
circumstances where the individual knew or should have known that such 
abuse was occurring; and
    (vi) Depriving a child of necessary care (food, shelter, 
healthcare, supervision) which either caused serious harm or created a 
substantial risk of serious harm.
    (8) Aggravating factors and mitigating factors. If ORR determines 
that there are no automatic Tier I substantiating circumstances under 
Sec.  412.100(e)(7), ORR shall consider the following aggravating and 
mitigating factors together in determining if child abuse or neglect 
should be substantiated at Tier I or II. Consideration of aggravating 
and mitigating factors will be based on the totality of the 
circumstances and the interest of protecting child welfare:
    (i) Aggravating factors. Aggravating factors shall be weighed 
together with any existing mitigating factors. Aggravating factors 
include any of the following:
    (A) Violations of ORR behavior management requirements pursuant to 
Sec.  410.1304;
    (B) The individual's failure to comply with clearly established 
care provider facility policies, corrective action plans, or agreed-
upon conditions;
    (C) The tender age, delayed developmental status or other 
vulnerability of the child;
    (D) Any significant or lasting physical, psychological, or 
emotional harm to the child;
    (E) An attempt to inflict any significant or lasting physical, 
psychological, or emotional harm to the child;
    (F) Evidence suggesting a repetition or pattern of abuse or 
neglect, including multiple instances in which child abuse or neglect 
was substantiated at Tier I or Tier II and not substantiated 
allegations if they demonstrate a pattern of abuse or neglect or harm.
    (ii) Mitigating factors. Mitigating factors shall be weighed 
together with any existing aggravating factors. Mitigating factors 
include any of the following:
    (A) Remedial actions taken by the individual before the 
investigation was concluded;
    (B) Extraordinary, situational, or temporary stressors that caused 
the individual to act in an uncharacteristically abusive or neglectful 
manner;
    (C) The isolated or aberrational nature of the child abuse or 
neglect; and
    (D) The limited, minor, or negligible physical, psychological, or 
emotional impact of the abuse or neglect on the child.
    (f) Confidentiality. Records created and information gathered or 
obtained during an investigation are for internal purposes only, will 
not be shared or made public unless otherwise required or authorized by 
law, and may not be disclosed without prior ORR approval. All records 
must be maintained in an appropriate recordkeeping system with 
protections for the privacy and security of the individuals identified 
in the records.
    (g) Notifications of a Disposition. (1) ORR must notify the alleged 
perpetrator of the disposition in writing within five days of making a 
disposition. ORR must also notify in writing the alleged victim, their 
parent(s) or legal guardian(s) (as appropriate), or sponsor(s), of the 
disposition within five days of making a disposition.
    (2) If the disposition is substantiated at Tier I, the notification 
must state:
    (i) The substantiated perpetrator will be considered a Tier 1 
sustained perpetrator and their name and other details related to the 
relevant abuse or neglect findings will be placed on the ORR Central 
Registry, unless they seek an appeal of the disposition pursuant to 
Sec.  412.102, and that once identified in the ORR Central Registry 
they will be prohibited from working or volunteering in any way on ORR-
funded grants or contracts, and may not have access to or contact with 
any unaccompanied child in ORR custody;
    (ii) The reasons for the Tier I substantiated perpetrator's 
placement on the ORR Central Registry in terms sufficient to put the 
perpetrator on

[[Page 93520]]

notice of the conduct or incident(s) upon which it is based;
    (iii) The Tier I substantiated perpetrator may appeal ORR's 
disposition pursuant to Sec.  412.102, but that if the Tier I 
substantiated perpetrator either fails to timely submit a notice of 
appeal, or upon conclusion of the appeal and subsequent review, if any, 
the disposition is upheld, the Tier I substantiated perpetrator will be 
added to the ORR Central Registry as a Tier I sustained perpetrator and 
the disposition will be reported to Federal, State, and local 
authorities, as appropriate; and
    (iv) ORR's procedures for making the disposition.
    (3) If the disposition is substantiated at Tier II, the 
notification must inform the Tier II substantiated perpetrator that 
they may appeal ORR's disposition pursuant to Sec.  412.102, but that 
if they either fail to timely submit a notice of appeal, or upon the 
conclusion of the appeal and subsequent review, if any, the disposition 
is upheld, the Tier II substantiated perpetrator will be designated as 
a Tier II sustained perpetrator and ORR's disposition will be retained 
in ORR records. ORR may use these records to determine patterns of 
child abuse and neglect and to inform future safety planning at care 
provider facilities. A Tier II sustained perpetrator will not be placed 
on the ORR Central Registry.

Sec.  412.101  Interventions and discipline.

    (a) ORR Central Registry. (1) ORR will maintain an ORR Central 
Registry consisting of the names of Tier I sustained perpetrators for 
purposes consistent with Sec.  412.100(a) and (c). The ORR Central 
Registry will contain names and other identifying information for such 
persons, and details regarding any sustained allegations of child abuse 
and neglect against those persons.
    (2) Subject to legal requirements regarding disclosure of 
information, as well as information sharing obligations with relevant 
State, local, or Federal authorities, the ORR Central Registry will not 
be public-facing, nor available to persons outside of ORR. The ORR 
Central Registry will only be used by ORR to identify Tier I sustained 
perpetrators, as defined in this part, and for ORR to use as part of 
the screening process by care provider facilities as described in Sec.  
412.101(b).
    (b) Working and Volunteering Prohibitions and Mandatory ORR Central 
Registry Checks. (1) The individuals listed in the ORR Central Registry 
shall be prohibited from working or volunteering in any way on ORR-
funded grants or contracts and may not have access to or contact with 
any unaccompanied child in ORR custody unless ORR removes such 
individual from the ORR Central Registry.
    (2) As part of the screening process for hiring decisions for 
staff, contractors or sub-grantees, or for screening volunteers, all 
care provider facilities, home study providers, and post-release 
service providers, whether or not located in States that investigate 
child abuse and neglect allegations at ORR care provider facilities, 
must check with ORR to confirm that an applicant is not listed in the 
ORR Central Registry.
    (3) All care provider facilities, home study providers, and post-
release service providers, whether or not located in States that 
investigate child abuse and neglect allegations at ORR care provider 
facilities, must also check all of their personnel against the ORR 
Central Registry at least once annually.
    (c) Disciplinary Sanctions. Care provider facilities must implement 
appropriate disciplinary or remedial measures where they or ORR find 
that care provider facility staff, contractors or sub-grantees of the 
care provider facility, or care provider facility volunteers whose 
conduct does not rise to the level of a Tier I substantiated 
allegation, as defined at Sec.  412.001, but nevertheless raises child 
welfare concerns.
    (d) Referrals to State, Local, and Other Federal Agencies. (1) ORR 
shall refer the names and other identifying information of Tier I 
sustained perpetrators to relevant State and local authorities and to 
relevant law enforcement agencies in the State in which the sustained 
allegation of child abuse or neglect occurred. Additionally, if a State 
or local authority or relevant local law enforcement agency outside of 
the State in which the Tier I sustained allegation occurred requests 
information about the sustained perpetrator, ORR will confirm whether a 
particular individual is on the ORR Central Registry.
    (2) ORR will provide the names and other identifying information of 
Tier I sustained perpetrators to the Federal Bureau of Investigation 
and HHS Office of the Inspector General (OIG), consistent with any 
applicable agreements.
    (3) ORR and care provider facilities shall not interfere with 
another State, local, or Federal authority or agency's investigation 
into allegations of child abuse and neglect.

Sec.  412.102  Appeal and review process.

    (a) A substantiated perpetrator at Tier I or Tier II may appeal the 
disposition made by ORR to an Administrative Law Judge (ALJ) of the HHS 
Departmental Appeals Board (DAB) pursuant to Sec.  412.102(c).
    (b) Notice of Opportunity for an Appeal. (1) After ORR 
substantiates an allegation of child abuse and neglect at Tier I or 
Tier II, it will send a written notice to the substantiated perpetrator 
at Tier I or Tier II, in accordance with Sec.  412.100(g), with 
notification that the allegation has been substantiated and that, 
unless they appeal the disposition by ORR, a Tier I substantiated 
perpetrator will be placed on the ORR Central Registry as a Tier I 
sustained perpetrator and a Tier II substantiated perpetrator's 
information will be retained as a Tier II sustained perpetrator in 
agency records.
    (2) The written notice shall:
    (i) Clearly describe the basis for ORR's disposition that 
substantiates the relevant allegations at Tier I or Tier II and shall 
explain the Tier I or Tier II substantiated perpetrator's right to 
appeal the disposition and the steps required to initiate the appeal.
    (ii) Inform the substantiated perpetrator that they may appeal the 
ORR disposition before an ALJ.
    (iii) Provide the substantiated perpetrator at Tier I or Tier II 
and their attorney, if any, with written information and instructions 
describing the appeal process.
    (iv) Inform the substantiated perpetrator at Tier I or Tier II that 
if they do not submit a notice of appeal within 30 days of receiving 
the notice of disposition, the DAB will consider the substantiated 
perpetrator to have waived their opportunity to appeal and any 
subsequent review. If the appeal is determined to be waived, a Tier I 
substantiated perpetrator will be identified as a Tier I sustained 
perpetrator on the ORR Central Registry and a Tier II substantiated 
perpetrator's information will be retained as a Tier II sustained 
perpetrator in agency records.
    (c) Notice of Appeal and Dismissal of an Appeal--(1) Notice of 
Appeal. (i) If the substantiated perpetrator at Tier I or Tier II 
elects to appeal ORR's disposition that an allegation is substantiated 
at Tier I or Tier II, they must file a written notice of appeal with 
the DAB within 30 days of receipt of the written notice of ORR's 
disposition.
    (ii) Within 30 days of receipt of the notice of appeal, ORR shall 
provide all evidence it used in making its disposition to the DAB.
    (iii) ORR shall provide the substantiated perpetrator at Tier I or 
Tier II and their attorney, if any, all information used in making its 
disposition except any portion that ORR determines:

[[Page 93521]]

    (A) Would compromise the safety and well-being of a child, the 
reporter, or any other person;
    (B) Would reveal the identity of a child who furnished information 
with the understanding that their identity would be held in confidence;
    (C) Would reveal the identity of any alleged perpetrator(s) 
involved in the same case who has an unfounded disposition; or,
    (D) Is otherwise prohibited by State or Federal law or regulation. 
In the case of information being withheld, the substantiated 
perpetrator at Tier I or Tier II shall be advised of the general nature 
of the information and the reasons that it is being withheld.
    (2) Dismissal of appeal. (i) The ALJ shall dismiss an appeal when 
the substantiated perpetrator waives appeal by not submitting a notice 
of appeal within 30 days of receiving written notice of ORR's 
disposition, pursuant to Sec.  410.102(b)(2)(iv), and does not 
demonstrate good cause for the untimely submission; or when the 
substantiated perpetrator withdraws the appeal, abandons the appeal, or 
does not have a right to ALJ review. If the appeal of a Tier I 
substantiated perpetrator is dismissed, they will be placed on the ORR 
Central Registry as a Tier I sustained perpetrator. If the appeal of a 
Tier II substantiated perpetrator is dismissed, ORR will retain the 
information regarding the Tier II substantiated perpetrator as a Tier 
II sustained perpetrator in agency records.
    (ii) Notwithstanding such dismissal, the DAB may in its discretion 
temporarily remove the designation of sustained perpetrator at Tier I 
or Tier II, which would result in ORR removing the individual who was 
designated as a sustained perpetrator at Tier I from the ORR Central 
Registry, for situations including, for example, where the ALJ 
determines that the sustained perpetrator at Tier I or Tier II has 
established good cause for exceeding the appeal timeframe.
    (d) Appeal of ORR's disposition. (1) When a substantiated 
perpetrator at Tier I or Tier II appeals the ORR's disposition to an 
ALJ pursuant to Sec.  412.102(c)(1)(i), ORR must transmit to the ALJ 
all of the evidence upon which the disposition was based.
    (2) The evidentiary record must contain all documents and other 
materials, such as video or audio recordings, that were used by ORR in 
making its disposition. The ALJ may remand the case to ORR if the ALJ 
determines that the evidentiary record is insufficiently complete to 
decide whether ORR's disposition is supported by a preponderance of the 
evidence.
    (3) The substantiated perpetrator at Tier I or Tier II may be 
represented by an attorney and may present the testimony of witnesses, 
documents, factual data, arguments, or other submissions of proof.
    (4) The substantiated perpetrator shall have the burden to show 
that, considering the totality of the evidence, there is not a 
preponderance of the evidence to support the substantiated allegation 
at Tier I or Tier II, and to dispute whether any automatic Tier I 
substantiating circumstances existed (if applicable) or whether any 
aggravating factors or mitigating factors existed (if applicable). Both 
ORR and the substantiated perpetrator may present the testimony of 
witnesses, documents, factual data, arguments, or other submissions of 
proof. The testimony of care provider facility staff shall be voluntary 
and failure to offer such testimony will not be subject to disciplinary 
action.
    (5) If the substantiated perpetrator submits a notice of appeal and 
the appeal is not dismissed by the ALJ pursuant to Sec.  412.102(d)(7), 
ORR must notify the alleged victim and the alleged victim's parent(s), 
legal guardian(s) (as appropriate), or sponsor(s) that that an appeal 
of ORR's disposition will be conducted by an ALJ. The alleged victim, 
other child witness(es), and family members of the alleged victim shall 
not be required to testify. Refusal to testify shall have no bearing on 
the determination as to whether abuse did or did not take place.
    (6) The parties may direct and cross examine witnesses either 
during a live hearing or pursuant to a record review. The parties will 
be given an opportunity to file briefs or other written statements as 
to fact or law.
    (7) The ALJ shall conduct a fair and impartial hearing and de novo 
review to determine whether the substantiated perpetrator proved their 
burden of showing that, considering the totality of the evidence, there 
is not a preponderance of the evidence to support the substantiated 
allegation. The ALJ may either dismiss the case for untimeliness, 
withdrawal of the appeal, abandonment of the appeal, or because the 
individual does not have the right to appeal or because of other 
procedural defects, or will issue a written decision to uphold, modify, 
or reverse ORR's disposition.
    (8) The ALJ shall serve a copy of the decision upon the parties and 
the Assistant Secretary for ACF. The ALJ's decision shall provide the 
sustained perpetrator at Tier I or Tier II and their attorney, if any, 
with instructions for requesting review by the Assistant Secretary for 
ACF. The ALJ also shall provide a copy of the decision to alleged 
victim and the alleged victim's parent(s), legal guardian(s) (as 
appropriate), or sponsor(s). The complete record upon which the 
decision is based shall be made available to the Assistant Secretary.
    (e) Review of the ALJ's Decision. (1) A substantiated perpetrator 
at Tier I or Tier II may request a review of the ALJ's decision within 
30 days of receipt of the ALJ's decision, by filing a request for 
review with Office of the Assistant Secretary for ACF.
    (2) The Assistant Secretary for ACF has discretion, within 30 days 
after receiving a timely submission by a substantiated perpetrator of a 
request for review of an ALJ's decision under Sec.  412.102(e)(1) to 
review the ALJ's decision to dismiss a case for untimeliness or other 
procedural defects, and to affirm, modify, or reverse the ALJ's 
decision with regard to dismissal or ORR's disposition of the 
allegation. A review by the Assistant Secretary will determine whether 
the ALJ's decision was based on a material error of law or fact.
    (3) If the Assistant Secretary affirms the ALJ's decision or does 
not modify or reverse the ALJ's decision within 30 days after receiving 
a timely review request pursuant to Sec.  412.102(e)(1), the ALJ's 
decision becomes the final decision of the Assistant Secretary and is 
binding on the parties.
    (4) If the Assistant Secretary modifies or reverses the ALJ's 
decision pursuant to Sec.  412.102(e)(2), the Assistant Secretary's 
decision is final and binding.
    (5) If at the end of the 30-day period in Sec.  412.102(e)(1), no 
timely request for review has been made, the Assistant Secretary has 30 
days from that point to exercise discretion to review the ALJ's 
decision. If the Assistant Secretary does not modify or reverse the 
ALJ's decision, then the ALJ's decision becomes the final decision of 
the Assistant Secretary and is binding on both parties.
    (6) The Office of the Assistant Secretary for ACF shall serve a 
copy of the final decision upon the parties involved. The Office of the 
Assistant Secretary for ACF also shall provide a copy of the final 
decision issued by the Assistant Secretary, based on review on the 
ALJ's decision under Sec.  412.102(e), to the alleged victim and the 
alleged victim's parent(s), legal guardian(s) (as appropriate), or 
sponsor(s).

[[Page 93522]]

Sec.  412.103  Obligations of care provider facilities.

    (a) General requirements. During any investigation by ORR, a care 
provider facility must:
    (1) Permit ORR unrestricted access to the premises, any physical 
property on the premises, buildings, staff, and children in the 
physical custody of the care provider facility;
    (2) Permit ORR to conduct interviews with children residing at the 
care provider facility, and without care provider facility staff, 
contractors, or sub-grantees of the care provider facility, or care 
provider facility volunteers present;
    (3) Permit ORR to observe the activities of care provider facility 
staff, contractors, or sub-grantees of the care provider facility, care 
provider facility volunteers, or other individuals who have access to 
children in ORR care through contracts or grants with ORR;
    (4) Promptly preserve any potential video or documentary evidence;
    (5) Promptly provide access to and, upon request, copies of all 
files, records, reports, data, video recordings, and other information 
to ORR, either prior to or during the investigation;
    (6) Promptly provide access to and contact information for care 
provider facility staff, contractors, or sub-grantees of the care 
provider facility, care provider facility volunteers, or other 
individuals who have access to children in ORR care through other 
contracts or grants with ORR;
    (7) Submit complete and accurate responses to any written questions 
in a timely manner;
    (8) Fully cooperate with ORR;
    (9) Fully cooperate with any investigation of the same allegation 
by State, local, and Federal authorities and relevant law enforcement 
agencies.
    (b) Protection against retaliation. Care provider facility staff, 
contractors, or sub-grantees of the care provider facility, and care 
provider facility volunteers must not retaliate against any person who 
in good faith reports or participates in an investigation of child 
abuse or neglect.
    (c) Obstruction, interference, delay of, or failure to permit an 
investigation. Obstruction, interference, delay of, or failure of a 
care provider facility to permit or cooperate with any investigation 
under this part, including failure to protect unaccompanied children 
from retaliation pursuant to Sec.  412.103(b), may result in ORR taking 
monitoring and enforcement measures including, but not limited to: 
remote monitoring of the care provider facility; on-site monitoring of 
the care provider facility; monitoring of the corporate offices to 
review internal policies and reporting structures, as well as 
supervisory response to events; limiting or stopping new placements of 
unaccompanied children at the care provider facility; removing all 
unaccompanied children from the care provider facility and placing them 
into other care provider facilities; issuing corrective actions; 
terminating the cooperative agreement or contract with the care 
provider facility; or imposing other such remedies for noncompliance 
applicable to HHS grant recipients and contractors.
    (d) Rights to legal representation, familial supports, and other 
supports. During the course of an investigation, care provider 
facilities must provide unaccompanied children confidential access to 
attorneys of record and other legal service providers, in a manner 
consistent with requirements established at 45 CFR 411.55 (as 
applicable) and 45 CFR 410.1309. Care provider facilities must provide 
unaccompanied children access to their families, including legal 
guardians, in a manner consistent with requirements established at 45 
CFR 411.55 (as applicable) and 45 CFR 410.1309. Care provider 
facilities must provide unaccompanied children with access to their 
child advocates, in a manner consistent with the requirements at 8 
U.S.C. 1232(c)(6) and 45 CFR 410.1308. Care provider facilities must 
also provide unaccompanied children access to health services 
(including specialists and mental health practitioners), individual 
counseling sessions, and crisis intervention (including access to 
outside victim services and rape crisis centers where appropriate) to 
most appropriately address unaccompanied children's needs, in a manner 
consistent with requirements established at 45 CFR 410.1307, 45 CFR 
410.1311, 45 CFR 410.1302(c)(5), and 45 CFR 411.21 (as applicable).

[FR Doc. 2024-27626 Filed 11-25-24; 8:45 am]
BILLING CODE 4184-45-P
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