[Federal Register Volume 79, Number 247 (Wednesday, December 24, 2014)]
[Rules and Regulations]
[Pages 77768-77800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29984]



[[Page 77767]]

Vol. 79

Wednesday,

No. 247

December 24, 2014

Part III





Department of Health and Human Services





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Administration for Children and Families





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45 CFR Part 411





Standards To Prevent, Detect, and Respond to Sexual Abuse and Sexual 
Harassment Involving Unaccompanied Children; Final Rule

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

[[Page 77768]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 411

RIN 0970-AC61


Standards To Prevent, Detect, and Respond to Sexual Abuse and 
Sexual Harassment Involving Unaccompanied Children

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

ACTION: Interim final rule (IFR).

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SUMMARY: This IFR proposes standards and procedures to prevent, detect, 
and respond to sexual abuse and sexual harassment involving 
unaccompanied children (UCs) in ORR's care provider facilities.

DATES: This IFR is effective on December 24, 2014. ORR care provider 
facilities must be in compliance with this IFR by June 24, 2015 but 
encourages care provider facilities to be in compliance sooner, if 
possible. HHS will work with facilities to implement and enforce the 
standards contained in this rule. Comments on this IFR must be received 
on or before February 23, 2015.

ADDRESSES: Interested persons are invited to submit comments to the 
Office of Refugee Resettlement, 370 L'Enfant Promenade SW., 8th Floor 
West, Washington, DC 20024, Attention: Elizabeth Sohn, or 
electronically via the Internet at http://www.regulations.gov. If you 
submit a comment, please include your name and address, indicate the 
specific section of this document to which each comment applies, and 
give the reason for each comment. You may submit your comments and 
material by electronic means, mail, or delivery to the address above, 
but please submit your comments and material by only one means. A copy 
of this IFR may be downloaded from http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Elizabeth Sohn, Policy Analyst, 
Division of Policy, Office of Refugee Resettlement, Administration for 
Children and Families by email at <a href="/cdn-cgi/l/email-protection#d184909281bebdb8b2a891b0b2b7ffb9b9a2ffb6bea7"><span class="__cf_email__" data-cfemail="7722363427181b1e140e37161411591f1f0459101801">[email protected]</span></a> or by phone at 
(202) 260-6829. Deaf and hearing impaired individuals may call the 
Federal Dual Party Relay Service at 1-800-877-8339 between 8 a.m. and 7 
p.m. Eastern Time.


SUPPLEMENTARY INFORMATION:

Contents

I. Submission of Comments
II. Executive Summary
III. Background
    A. Department of Justice Rulemaking
    B. Application of PREA Standards to Other Federal Confinement 
Facilities
    C. The Presidential Memorandum on Implementing the Prison Rape 
Elimination Act
    D. Violence Against Women Reauthorization Act of 2013
IV. Discussion of the Interim Final Rule
    A. ORR Standards
    B. Section by Section Discussion
    Subpart A--Coverage
    Subpart B--Prevention Planning
    Subpart C--Responsive Planning
    Subpart D--Training and Education
    Subpart E--Assessment for Risk of Sexual Victimization and 
Abusiveness
    Subpart F--Reporting
    Subpart G--Official Response Following a UC Report
    Subpart H--ORR Incident Monitoring and Evaluation
    Subpart I--Interventions and Discipline
    Subpart J--Medical and Mental Health Care
    Subpart K--Data Collection and Review
    Subpart L--Audits and Corrective Action
V. Waiver of Proposed Rulemaking
VI. Collection of Information Requirements
VII. Regulatory Impact Analysis--Executive Order 12866 and 13563
VIII. Regulatory Flexibility Analysis
IX. Unfunded Mandates Reform Act
X. Congressional Review
XI. Assessment of Federal Regulation and Policies on Family
XII. Executive Order 13132

I. Submission of Comments

    Comments should be specific, address issues raised by the interim 
final rule, propose alternatives where appropriate, explain reasons for 
any objections or recommended changes, and reference the specific 
action of the interim final rule that is being addressed. Additionally, 
we will be interested in comments that indicate agreement with proposed 
policies. We will not acknowledge receipt of the comments we receive. 
However, we will review and consider all comments that are germane and 
are received during the comment period. We will respond to these 
comments in the preamble to the Final Rule.

II. Executive Summary

    This interim final rule provides standards to prevent, detect, and 
respond to sexual abuse and sexual harassment in Department of Health 
and Human Services (HHS), Administration for Children and Families 
(ACF), Office of Refugee Resettlement (ORR) care provider facilities 
housing unaccompanied children\1\ (UCs). Sexual violence and abuse are 
an assault on human dignity and have devastating, lifelong mental and 
physical effects on an individual. HHS is committed to an absolute zero 
tolerance policy against sexual abuse and sexual harassment in its care 
provider facilities and seeks to ensure the safety and security of all 
UCs in its care.
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    \1\ This interim final rule uses the term ``unaccompanied 
child'' in place of the statutory term ``unaccompanied alien 
child,'' but it retains the statutory meaning. An unaccompanied 
alien child is defined in Section 462(g)(2) of the Homeland Security 
Act of 2002 as a child: (1) Who has no lawful immigration status in 
the United States; (2) who has not reached 18 years of age; and (3) 
with respect to whom there is no parent or legal guardian in the 
United States or there is no parent or legal guardian in the United 
States available to provide care and physical custody. 6 U.S.C. 
279(g)(2).
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    The standards set forth in this interim final rule build on the ORR 
UC Program policies and procedures and respond to section 1101(c) of 
the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4 
(VAWA 2013). VAWA 2013 directs the Secretary of HHS to issue ``a final 
rule adopting national standards for the detection, prevention, 
reduction, and punishment of rape and sexual assault in facilities that 
maintain custody'' of unaccompanied children.
    ORR carefully considered all recommendations made by the National 
Prison Rape Elimination Commission's (NPREC) report in developing this 
rule, which covers the eleven categories used by the NPREC to discuss 
and evaluate prison rape prevention and elimination standards. The 
eleven categories include: prevention planning, responsive planning, 
training and education, assessment for risk of sexual victimization and 
abusiveness, reporting, official response following a UC report, ORR 
incident monitoring and evaluation, interventions and discipline, 
medical and mental care, data collection and review, and audits and 
corrective actions. HHS tailored each provision under these categories 
to the UC population and the nature of ORR care provider facilities, 
which differ greatly from typical confinement facilities and prisons. 
Most ORR care provider facilities are shelters, group homes, and 
residential therapeutic centers. The standards were modified to protect 
children and be culturally sensitive, given the background of most UCs.

III. Background

    Congress passed the Prison Rape Elimination Act (PREA), Pub. L. 
108-79, in July 2003 in order to address the often overlooked crime of 
rape in Federal, State, and local prisons and to

[[Page 77769]]

analyze the incidence and effect of prison rape in order to provide 
information, resources, recommendations, and funding to protect 
individuals from the crime. Some of the key purposes of the statute 
were to ``develop and implement national standards for the detection, 
prevention, reduction, and punishment of prison rape,'' and to 
``increase the available data and information on the incidence of 
prison rape.'' 42 U.S.C. 15602(3)-(4). PREA defines the term ``prison'' 
to mean ``any confinement facility of a Federal, State, or local 
government, whether administered by such government or by a private 
organization on behalf of such government, and includes (A) any local 
jail or police lockup; and (B) any juvenile facility used for the 
custody or care of juvenile inmates.'' 42 U.S.C. 15609(7). The term 
``inmate'' is defined in PREA to mean ``any person incarcerated or 
detained in any facility who is accused of, convicted of, sentenced 
for, or adjudicated delinquent for, violations of criminal law or the 
terms and conditions of parole, probation, pretrial release, or 
diversionary program.'' 42 U.S.C. 15609(2).
    PREA established the National Prison Rape Elimination Commission 
(NPREC) to ``carry out a comprehensive legal and factual study of the 
penalogical, physical, mental, medical, social, and economic impacts of 
prison rape in the United States'' and to recommend to the Attorney 
General national standards for the reduction of prison rape. 42 U.S.C. 
15606. The statute directed the Attorney General to publish a final 
rule adopting ``national standards for the detection, prevention, 
reduction, and punishment of prison rape . . . based upon the 
independent judgment of the Attorney General, after giving due 
consideration to the recommended national standards provided by the 
Commission . . . and being informed by such data, opinions, and 
proposals that the Attorney General determines to be appropriate to 
consider.'' 42 U.S.C. 15607(a)(1)-(2).
    The NPREC released its recommended national standards in a report 
(the NPREC report) dated June 23, 2009. The NPREC's report and 
recommended national standards are available at http://www.ncjrs.gov/pdffiles1/226680.pdf. The NPREC set forth four sets of recommended 
national standards for eliminating prison rape and other forms of 
sexual abuse. Each set applied to one of four confinement settings: (1) 
adult prisons and jails; (2) juvenile facilities; (3) community 
corrections facilities; and (4) lockups. The NPREC report recommended 
supplemental standards for facilities with immigration detainees as 
well as tailored standards for facilities with juveniles.

A. Department of Justice Rulemaking

    In response to the NPREC report, the Attorney General established a 
PREA Working Group to review each of the NPREC's proposed standards and 
to assist him in the rulemaking process. The Working Group included 
representatives from a wide range of DOJ components, including the 
Access to Justice Initiative, the Federal Bureau of Prisons (including 
the National Institute of Corrections), the Civil Rights Division, the 
Executive Office for United States Attorneys, the Office of Legal 
Policy, the Office of Legislative Affairs, the Office of Justice 
Programs (including the Bureau of Justice Assistance, the Bureau of 
Justice Statistics, the National Institute of Justice, the Office of 
Juvenile Justice and Delinquency Prevention, and the Office for Victims 
of Crime), the Office on Violence Against Women, and the United States 
Marshals Service. The Working Group conducted an in-depth review of the 
standards proposed by the NPREC, which included a number of listening 
sessions with key stakeholders.
    On March 10, 2010, DOJ published an Advance Notice of Proposed 
Rulemaking (ANPRM) to solicit public input on the NPREC's proposed 
national standards. In general, commenters to the DOJ ANPRM supported 
the broad goals of PREA and the overall intent of the NPREC's 
recommendations. Commenters, however, were sharply divided as to the 
merits of a number of standards. Some commenters, particularly those 
whose responsibilities involve the care and custody of inmates or 
juvenile residents, expressed concern that the NPREC's recommended 
national standards implementing PREA would impose unduly burdensome 
costs on already tight State and local government budgets. Other 
commenters, particularly advocacy groups concerned with protecting the 
health and safety of inmates and juvenile residents, expressed concern 
that the NPREC's standards did not go far enough, and, therefore, would 
not fully achieve PREA's goals.
    After reviewing public input on the ANPRM, DOJ published a Notice 
of Proposed Rulemaking (NPRM) on February 3, 2011 that proposed 
national PREA standards, solicited public comments, and posed 64 
specific questions on the proposed standards and accompanying economic 
analysis.
    DOJ received over 1,300 comments to the NPRM from a broad range of 
stakeholders. Commenters provided general assessments of the DOJ's 
efforts as well as specific and detailed recommendations regarding each 
standard. Following the NPRM's comment period, DOJ issued a final rule 
setting national standards to prevent, detect, and respond to prison 
rape at Federal, State, and, local confinement facilities. 77 FR 37106 
(June 20, 2012). The final rule reflected a considered analysis of the 
public comments and a rigorous assessment of the estimated benefits and 
costs of full nationwide compliance with the standards.

B. Application of PREA Standards to Other Federal Confinement 
Facilities

    DOJ's NPRM interpreted PREA as binding only on facilities operated 
by the Federal Bureau of Prisons and extended the standards to U.S. 
Marshals Service (USMS) facilities under other authorities of the 
Attorney General.\2\ 76 FR 6248, 6265. Numerous commentators criticized 
this interpretation of the statute. In light of those comments, DOJ re-
examined whether PREA extends to Federal facilities beyond those 
operated by DOJ and concluded that PREA does, in fact, encompass any 
Federal confinement facility ``whether administered by [the] government 
or by a private organization on behalf of such government.'' 42 U.S.C. 
15609(7).
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    \2\ While not ``binding'' on State and local facilities, both 
the DOJ's NPRM and the DOJ final rule ``applies'' to State and local 
facilities and facilities operated on their behalf. See 77 FR 37106, 
37107.
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    In its final rule, DOJ further concluded that, in general, each 
Federal department is accountable for and has the statutory authority 
to regulate the operations of its own facilities and, therefore, is 
best positioned to determine how to implement the Federal laws and 
rules that govern its own operations, the conduct of its own employees, 
and the safety of persons in its custody. 77 FR 37106, 37113. Thus, 
given each department's various statutory authorities to regulate 
conditions of confinement, DOJ stated that Federal departments with 
confinement facilities will work with the Attorney General to issue 
rules or procedures consistent with PREA.

C. The Presidential Memorandum on Implementing the Prison Rape 
Elimination Act

    On May 17, 2012, the President issued a Presidential Memorandum 
confirming the goals of PREA and directing Federal agencies with 
confinement facilities to propose rules or procedures necessary to 
satisfy the requirements of PREA within 120 days of the Memorandum. In 
the Memorandum, the President

[[Page 77770]]

established that sexual violence, against any victim, is an assault on 
human dignity and an affront to American values. The President stated 
that PREA encompasses all Federal confinement facilities, including 
those operated by executive departments and agencies other than DOJ, 
whether administered by the Federal Government or by a private 
organization on behalf of the Federal Government. In addition, the 
Memorandum states that each agency is responsible and accountable for 
the operations of its own confinement facilities, as each agency has 
extensive expertise regarding its own facilities, particularly those 
housing unique populations. Thus, each agency is best positioned to 
determine how to implement the Federal laws and rules that govern its 
own operations, the conduct of its own employees, and the safety of 
persons in its custody. To advance PREA's goals, the President directed 
all agencies with Federal confinement facilities to work with the 
Attorney General to propose any rules or procedures necessary to 
satisfy the requirements of PREA.
    In response to the Presidential Memorandum, the Department of 
Homeland Security (DHS) issued a NPRM on standards to prevent, detect, 
and respond to sexual abuse and assault in confinement facilities in 
accordance with PREA on December 19, 2012. 77 FR 75300. DHS issued its 
PREA final rule on March 7, 2014. 79 FR 13100.
    To implement the principles laid out in the Presidential 
Memorandum, ORR began drafting procedures appropriate for its care 
provider facilities. ORR maintains a continuum of care that ranges from 
group homes, shelters, therapeutic care provider facilities, and 
residential treatment centers. ORR also provides grants for a limited 
number of beds at State and local juvenile facilities to house a small 
population of UCs in secure placements. ORR refers to these facilities 
as ``secure care provider facilities.''
    All non-secure ORR care provider facilities are subject to State 
and local licensing standards for juvenile residential facilities, 
unless they are operating on Federal property. All care provider 
facilities subject to State and local licensing standards will have 
outside entities in addition to ORR overseeing and regulating them. ORR 
care provider facilities are mostly group homes and shelters that 
provide a wide array of services. UCs move around freely in a 
supervised environment, and most care provider facilities do not 
maintain secure perimeters. Many care provider facilities are run by 
nonprofit-grantees and located in residential neighborhoods. UCs must 
be provided with a level of privacy like having personal clothes, 
personal effects, and privacy when changing, using the restroom, and 
showering. UCs receive daily educational services, weekly group and 
individual counseling, an individualized service plan, and many other 
services that follow accepted child welfare principles. HHS, with its 
expertise with child welfare issues and UC populations, has policies 
and procedures in place to protect the safety and security of UCs in 
accordance with State and local licensing standards, and includes many 
of the standards set forth by DOJ and DHS in their respective final 
rules.
    ORR is strongly committed to protecting UCs from sexual abuse and 
sexual harassment and to follow the principles laid out in the 
Presidential Memorandum. ORR began creating and implementing a 
comprehensive training for all care provider facility staff on 
preventing and responding to sexual abuse and sexual harassment. As 
ORR's non-secure care provider facilities are not obligated to follow 
DOJ's rule, ORR also began drafting supplemental policies and 
procedures that applied many of the standards set forth by the DOJ rule 
and the NPREC's recommended standards modified for the UC population to 
these facilities. Finally, ORR directed all of its secure care 
providers to follow DOJ's final rule, since these facilities are State 
and local juvenile facilities. As of May 2013, less than 1.5 percent of 
ORR's UC total bed space is reserved for secure placement.

D. Violence Against Women Reauthorization Act of 2013

    The Violence Against Women Reauthorization Act of 2013 (VAWA 2013), 
Pub. L. 113-4, contained a provision applying PREA to custodial 
facilities operated by HHS. VAWA 2013 requires HHS to publish a final 
rule adopting national standards to prevent, detect, and respond to 
rape and sexual assault. These national standards are to apply to all 
care provider facilities that maintain custody of UCs as defined in the 
Homeland Security Act of 2002 (6 U.S.C. 279(g)) and give due 
consideration to the recommended national standards provided by the 
NPREC report. Additionally, HHS is required to regularly assess 
compliance with the standards adopted and include the results of the 
assessments in performance evaluations of care provider facilities.
    In response to VAWA 2013, HHS is proposing the following standards 
for the prevention, detection, and response to sexual abuse and sexual 
harassment of UCs in all ORR care provider facilities, except secure 
care providers and traditional foster care homes as described in the 
rule.

IV. Discussion of the Interim Final Rule

A. ORR Standards

    Sexual abuse and sexual harassment are an assault on human dignity 
and have devastating lifelong psychological and physical effects on an 
individual. ORR is committed to child welfare best practices and 
protecting the safety and security of UCs, and, therefore, has 
implemented a zero tolerance policy against sexual abuse and sexual 
harassment. Through the standards set forth below, ORR seeks to further 
articulate its expectations of care provider facilities to fully 
protect and prevent the sexual abuse and sexual harassment of UCs.
    ORR reviewed and considered all NPREC recommended standards and 
focused on the standards for juvenile facilities and supplemental 
standards for immigration detainees in creating this rule. ORR also 
recognizes that DOJ and DHS have done a considerable amount of work to 
develop and implement policies and practices for use in confinement 
facilities. Thus, ORR used the framework created by the NPREC 
recommendations along with DOJ and DHS' respective rules in conjunction 
with its own expertise in child welfare issues and the UC population's 
specific needs to create its standards. ORR also had to consider the 
practicability of applying the standards to its care provider 
facilities, as all care provider facilities are grantees, sub-grantees, 
or contractors of ORR. ORR's standards ultimately seek to include child 
welfare best practices, other best practice standards, and 
applicability to ORR's continuum of care.

B. Section by Section Discussion

    Sections 411.5 and 411.6 define key terms used in the standards set 
forth in this Part, including definitions related to sexual abuse and 
sexual harassment. Many of the definitions are the same as those found 
in the DOJ rule and the DHS rule. ORR also examined the definitions 
used by the NPREC and made adjustments for applicability to minors. 
Certain terms used by the NPREC, DOJ, or DHS do not appear in ORR's 
standards, because the terms are not relevant to the types of care 
provider facilities utilized by ORR or the term is sufficiently clear 
that it does not require defining. Below is an explanation for key 
definitions modified or added by ORR.

[[Page 77771]]

    The standards define a ``care provider facility,'' which refers to 
any ORR-funded program that is licensed, certified, or accredited by an 
appropriate State or local agency to provide housing and services to 
UCs. Care provider facilities include a range of residential 
facilities, such as shelters, group homes, residential treatment 
centers, and therapeutic care provider facilities. Emergency care 
provider facilities are included in this definition but may or may not 
be licensed, certified, or accredited by an appropriate State or local 
agency. This licensing, certification, or accreditation has no bearing 
on the applicability of these rules as they are still defined as care 
provider facilities.
    ``Emergency'' refers to a sudden, urgent, usually unexpected 
occurrence or occasion requiring immediate action.
    ``Emergency care provider facility'' is a type of care provider 
facility that is opened to provide temporary emergency shelter and 
services for UCs during an influx. Emergency care provider facilities 
may or may not be licensed by an appropriate State or local agency. 
Because of the temporary and emergency nature of emergency care 
provider facilities, they are often either not licensed or are exempted 
from licensing requirements by State and local licensing agencies. 
Emergency care provider facilities may also be opened on Federal 
properties, in which case, the care provider facility would not be 
subject to State or local licensing standards.
    ``Gender'' refers to the attitudes, feelings, and behaviors that a 
given culture associates with a person's biological sex. This term is 
not to be confused with ``sex,'' which is defined below. The 
definitions for the terms ``gender,'' ``gender identity,'' and ``sex'' 
were taken from the American Psychological Association's (APA) 
Guidelines for Psychological Practice with Lesbian, Gay, and Bisexual 
Clients, adopted by the APA Council of Representatives, February 18-20, 
2011.\3\
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    \3\ http://www.apa.org/pi/lgbt/resources/guidelines.aspx.
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    ``Gender identity'' refers to one's sense of oneself as a male, 
female, or transgender.
    ``Law enforcement'' is defined in these standards to refer to the 
traditional use of the term, such as a police officer or a federal law 
enforcement officer. ORR sought to clarify that it does not have its 
own enforcement officers, so when ``law enforcement'' is used in the 
regulations, ORR is referring to Federal, State, and local law 
enforcement agencies.
    ``Limited English proficient'' (LEP) refers to individuals for whom 
English is not the primary language and who may have a limited ability 
to read, write, speak, or understand English.
    A ``secure care provider facility'' refers to a care provider 
facility with a physically secure structure and staff responsible for 
controlling violent behavior. ORR contracts with and provides grants to 
State and local juvenile facilities to house a small percentage of UCs 
that pose a danger to self or others or have been charged with having 
committed a serious criminal offense.
    ``Sex'' refers to a person's biological status and is typically 
categorized as male, female, or intersex. There are a number of 
indicators of biological sex, including sex chromosomes, gonads, 
internal reproductive organs, and external genitalia.
    ``Sexual Assault Forensic Examiner'' (SAFE) refers to a ``medical 
practitioner'' who has specialized forensic training in treating sexual 
assault victims and conducting forensic medical examinations.
    ``Sexual Assault Nurse Examiner'' (SANE) refers to a registered 
nurse who has specialized forensic training in treating sexual assault 
victims and conducting forensic medical examinations.
    The definition for ``sexual harassment'' was modified to include 
harassment via phone calls, emails, texts, social media messages, 
pictures sent or shown, and other electronic communications in addition 
to verbal comments and gestures.
    ``Special needs'' is defined in the rule as any mental and/or 
physical condition that requires special services and treatment by 
staff.
    ``Traditional foster care'' refers to a type of care provider 
facility where a UC is placed with a family in a community-based 
setting. The State or local licensed foster family is responsible for 
providing basic needs in addition to responsibilities as outlined by 
the State or local licensed child placement agency, State and local 
licensing regulations, and any ORR policies related to foster care. The 
UC attends public school and receives on-going case management and 
counseling services. The care provider facility facilitates the 
provision of additional psychiatric, psychological, or counseling 
referrals as needed. Traditional foster care may include transitional 
or short-term foster care as well as long-term foster care provider 
facilities. This type of placement is analogous to the domestic foster 
care system in the United States.
    The definition for an ``unaccompanied child'' comes from section 
462(g)(2) of the Homeland Security Act (Pub. L. 107-296).
    ``Youth care worker'' as defined in this interim final rule refers 
to employees whose primary responsibility is for the supervision and 
monitoring of UCs at care provider facilities. Youth care workers are 
not law enforcement officers, but provide supervision analogous to 
supervisors at a domestic group home.
Subpart A--Coverage
    Section 411.10 sets forth the applicability of this Part to all ORR 
care provider facilities. This Part covers the standards for detecting, 
preventing, and responding to sexual abuse and sexual harassment at 
care provider facilities as required under VAWA 2013 but excludes 
secure care provider facilities and traditional foster care homes.
    Secure care provider facilities are State and local juvenile 
confinement facilities that ORR contracts with or to whom ORR provides 
a grant to house a small population of UCs that pose a danger to self 
or others or have been charged with committing a serious criminal 
offense. ORR requires its secure care provider facilities to follow 
DOJ's National Standards to Prevent, Detect, and Respond to Prison 
Rape, so they are not subject to this rule.
    Traditional foster care refers to community based foster care 
placements and services for UCs in ORR custody. UCs in traditional 
foster care reside in licensed foster homes, attend public school, and 
receive community-based services. Therefore, it is not practicable or 
necessary to extend the standards set forth here to traditional foster 
care homes, and they are excluded from this Part. UCs, however, may be 
placed in transitional foster care where they receive services at an 
ORR care provider facility but sleep in individual foster care homes at 
night. In these instances, the ORR care provider facility providing 
services to UCs during the day are subject to these standards but the 
foster home is not.
    The National Prison Rape Elimination Commission was created to make 
recommendations for confinement facilities where inmates do not have 
regular access to non-prison staff and opportunities to receive help 
from the outside community if they are sexually abused. UCs in foster 
homes, however, go to public schools, receive services in the 
community, and routinely interact with other adults outside the foster 
home who would be in a position to report suspected abuse or provide 
aid to the UC. All foster homes are also

[[Page 77772]]

licensed by State and local licensing authorities and are subject to 
licensing standards and reporting requirements.
    Under paragraph (b), emergency care provider facilities are subject 
to every section in this Part except: (1) section 411.22(c); (2) 
section 411.71(b)(4); (3) section 411.101(b); (4) sections 411.102(c), 
(d), and (e); and (5) Subpart L. Emergency care providers are typically 
opened during an influx of UCs. In these instances, emergency care 
provider facilities are quickly erected in order to meet the immediate 
shelter needs of UCs and include basic care services. The standards 
that exempt emergency care provider facilities all refer to data 
reporting, document retention, or audit requirements that cover a 
prolonged period of time. Emergency care provider facilities are 
temporary in nature and would not be able to provide data for prolonged 
periods of time, remain open long enough to retain documents, or remain 
open long enough to receive an audit. Instead of retaining documents 
for ten years, for example, the emergency capacity care provider would 
transfer all documents to ORR or another care provider facility when it 
closed.
    Generally, because emergency care provider facilities are opened in 
times of emergency and in a time-sensitive manner, it may not be 
possible for emergency care provider facilities to abide by the 
standards set forth in this rule immediately upon opening. Instead, 
emergency care provider facilities must implement the standards within 
fifteen (15) days of opening. The Director, however, may, using 
unreviewable discretion, also waive or modify a specific section for a 
particular emergency care provider facility for good cause, subject to 
an agreement in which the provider will be in compliance within the 
most rapid timeframe feasible. Good cause would only be found in cases 
where the temporary nature of the emergency care provider facility 
makes compliance with the provision impracticable or impossible, and 
the Director determines that the emergency care provider facility could 
not, without substantial difficulty, meet the provision in the absence 
of the waiver or modification. For example, it may be impracticable to 
implement certain provisions within fifteen (15) days at particular 
emergency care provider facilities and some may require additional 
time.
    Paragraph (c) states that for the purposes of this Part, the terms 
related to sexual abuse and sexual harassment refer specifically to the 
sexual abuse or sexual harassment of UCs that occur at an ORR care 
provider facility while in ORR care and custody. A number of UCs in ORR 
care have been sexually abused prior to entering ORR custody. ORR has 
clinicians and case workers on staff to work with UCs on these issues. 
For the purposes of the standards set forth here, however, incidents of 
past sexual abuse and sexual harassment or sexual abuse and sexual 
harassment that occur in any context outside of ORR care and custody 
are not within the scope of this regulation unless explicitly stated 
otherwise.
Subpart B--Prevention Planning
    Section 411.11 covers the zero tolerance policy that ORR and all 
care provider facilities must have and the requirement that ORR and 
care provider facilities have a Prevention of Sexual Abuse Coordinator 
and a Compliance Manager, respectively. ORR is committed to a zero 
tolerance policy against sexual abuse and sexual harassment and will 
make every effort to ensure that UCs are safe and secure while in ORR 
care. Paragraphs (a) and (c) require ORR and care provider facilities 
to establish a zero tolerance policy toward all forms of sexual abuse 
and sexual harassment that outlines ORR and the care provider 
facility's approach to preventing, detecting, and responding to such 
misconduct. ORR will review and approve each care provider facility's 
written policy to ensure that the policies are in compliance with the 
standards set forth in this Part. Paragraphs (b) and (c) require ORR 
and care provider facilities to employ or designate an existing 
employee as a Prevention of Sexual Abuse (PSA) Coordinator and a 
Prevention of Sexual Abuse Compliance Manager, respectively. The PSA 
Compliance Manager does not need to be ``management'' but must have the 
time, access, and authority to question staff, managers, and 
supervisors in order to guide implementation of the care provider 
facility's policies and procedures and effectuate change. The PSA 
Coordinator, however, must be an upper-level, ORR-wide position. Upper-
level refers to any position that has supervisory responsibilities and 
may conduct responsibilities ORR-wide.
    Section 411.12 (a), (b), and (c) require that all organizations 
that contract, grant, or sub-grant with ORR or a care provider facility 
that provides residential services to UCs must, as part of the contract 
or cooperative agreement, adopt and comply with the provisions set 
forth in this Part. In addition, all new contracts, contract renewals, 
and grants must have provisions that allow monitoring and evaluation of 
the contractor, grantee, or sub-grantee to ensure that they are 
complying with these provisions.
    Section 411.13 covers the standards for sufficient supervision and 
monitoring of UCs in order to prevent sexual abuse and sexual 
harassment. Ensuring staffing plans are sufficient and that the 
physical layout of a care provider facility does not place UCs at risk 
are important safeguards in preventing incidents of sexual abuse and 
sexual harassment. Paragraph (a) requires care provider facilities to 
develop, document, and make its best efforts to comply with a staffing 
plan that provides for adequate levels of staffing, and, where 
applicable under State and local licensing standards, video monitoring, 
to protect UCs from sexual abuse and sexual harassment. Staffing ratios 
should be as small as possible to allow for proper monitoring and 
supervision. All care provider facilities are highly encouraged to use 
video monitoring to supplement direct youth care worker supervision but 
must do so in accordance with State and local licensing standards. 
Paragraph (b) requires care provider facilities to consider the 
physical layout of the facility, the composition of the UC population, 
the prevalence of substantiated and unsubstantiated incidents of sexual 
abuse and sexual harassment, and any other relevant factors in 
determining adequate levels of supervision and determining the need for 
video monitoring. Video monitoring equipment, however, may not be 
placed in any bathroom, shower or bathing areas, or other area where 
UCs routinely undress. Care provider facilities are required to review 
the sexual abuse and sexual harassment incident reviews conducted in 
accordance with section 411.101 when considering the factors listed in 
paragraph (b) of this section to determine adequate levels of staff 
supervision and the need for video monitoring.
    Many of ORR's care provider facilities already have video 
monitoring capabilities; ORR understands, however, that such technology 
may not be financially feasible for all care provider facilities, nor 
is video monitoring permitted to the same extent under different State 
and local licensing standards. It is not possible for ORR to create one 
set of requirements for monitoring and supervising UCs for all care 
provider facilities but wants care provider facilities to make best 
efforts to meet and exceed the standards set forth.
    Paragraph (c) requires care provider facility staff, preferably 
supervisory staff, to conduct frequent unannounced rounds to monitor 
UCs and staff in order to identify and deter sexual abuse and

[[Page 77773]]

sexual harassment. Care provider facilities should conduct the 
unannounced rounds during all shifts, including both night and day 
shifts. Care provider facilities must prohibit staff from alerting 
other staff that rounds are occurring unless an announcement is related 
to the legitimate operational functions of the care provider facility. 
For example, before entering a restroom, staff must announce themselves 
to ensure the UC's privacy.
    Section 411.14 governs the standards related to cross-gender 
viewing and searches. Generally, ORR care provider facilities rarely 
conduct pat-down searches. In accordance with State and local licensing 
standards, care provider staff are often restricted from physically 
restraining UCs except in very limited circumstances. ORR also 
discourages physically restraining UCs and, instead, encourages the use 
of de-escalation techniques. Paragraph (a) prohibits cross-gender pat-
down searches except in exigent circumstances as defined in the 
definitions section. For a UC who identifies as transgender or 
intersex, the ORR care provider facility must ask the UC to identify 
the gender of staff with whom he/she would feel most comfortable 
conducting the search. Paragraph (b) requires care provider facilities 
to conduct all pat-down searches in the presence of one additional care 
provider facility staff member unless there are exigent circumstances, 
document any pat-down searches conducted, and report such searches to 
ORR in accordance with ORR policies and procedures. The care provider 
facility must explain in detail why a pat-down search was required, how 
it was conducted, who was present during the search, the circumstances 
of the situation, and the outcome of the search. Paragraph (c) 
prohibits all strip searches and visual body cavity searches of UCs. 
These types of searches are not necessary for the types of care 
provider facilities ORR has and are strictly prohibited. Paragraph (d) 
requires that care provider facilities allow UCs to shower, perform 
bodily functions, and change clothing without being viewed by any 
staff, except: in exigent circumstances; when such viewing is 
incidental to routine room checks; is otherwise appropriate in 
connection with a medical examination or medically-related monitored 
bowel movement; if a UC under age 6 needs assistance with such 
activities; if a UC with special needs is in need of assistance with 
such activities; or the UC requests and requires assistance. Care 
provider facilities may have UCs with special needs in their facilities 
who may not be able to perform bodily functions, clothe, or bathe 
themselves. In these cases, care provider facilities must provide a 
staff member of the same gender as the UC to assist with such 
activities.
    If the UC's sex is unknown, paragraph (e) prohibits care provider 
facilities from searching or physically examining the UC for the sole 
purpose of determining the UC's sex. Instead, care provider facility 
staff members should engage in conversations with the UC or review 
medical records. Staff must be culturally aware and sensitive to the UC 
when conducting such conversations. If necessary, care provider 
facilities may learn of a UC's sex as part of a broader medical 
examination conducted in private by a medical practitioner. The medical 
examination may not be conducted for the sole purpose of determining 
the UC's sex, but must be part of a broader medical examination 
conducted for other medical purposes.
    Paragraph (f) requires care provider facilities to train youth care 
worker staff in the proper procedure for conducting pat-down searches, 
including cross-gender pat-down searches as well as searches of 
transgender and intersex UCs in a professional and respectful manner. 
Trainings should instruct youth care worker staff how to conduct a pat-
down search in the least intrusive manner possible and that is 
consistent with security needs and existing ORR policy, including 
consideration of youth care worker staff safety.
    Section 411.15 addresses the standards for the accommodation of UCs 
with disabilities and UCs who are limited English proficient. These 
standards are important for the UC population, as most UCs do not 
speak, read, or write English and may be illiterate. All care provider 
facilities have bilingual staff and are required to provide or access 
quality interpretation services, but it is important to take additional 
steps for UCs who do not speak the language of the majority of UCs. 
Paragraph (a) requires care provider facilities to take appropriate 
steps to ensure that UCs with disabilities have an equal opportunity to 
participate in or benefit from all aspects of the care provider's 
efforts to prevent, detect, and respond to sexual abuse and sexual 
harassment. Disabilities include but are not limited to UCs who are 
deaf or hard of hearing, those who are blind or have low vision, or 
those who have intellectual, mental, or speech disabilities. Care 
provider facilities must take steps that include, when necessary to 
ensure effective communication with UCs who are deaf or hard of 
hearing, providing access to in-person, telephonic, or video 
interpretive services that enable effective, accurate, and impartial 
interpretation both receptively and expressively, using any necessary 
specialized vocabulary. Care provider facilities also must ensure that 
any written materials related to sexual abuse and sexual harassment are 
translated and provided in formats or through methods that ensure 
effective communication with UCs with disabilities, including UCs who 
have intellectual disabilities, limited reading skills, or who are 
blind or have low vision. Care provider facilities must ensure that all 
communication and services provided and related to the care provider 
facility's prevention, detection, and response to sexual abuse and 
sexual harassment policies are available, understood, and accessible to 
all UCs.
    Paragraph (b) requires that all care provider facilities take 
appropriate steps to ensure that UC who are limited English proficient 
have an equal opportunity to participate in or benefit from all aspects 
of the care provider facility's efforts to prevent, detect, and respond 
to sexual abuse and sexual harassment, including steps to provide 
quality in-person or telephonic interpretive services and quality 
translation services that enable effective, accurate, and impartial 
interpretation and translation, both receptively and expressively, 
using any necessary specialized vocabulary. Care provider facilities 
must provide services in a language appropriate to the UC and utilize 
qualified translators and translation services, as needed. All care 
provider facilities are required under ORR policies and procedures to 
have English and Spanish bilingual staff as well as access to qualified 
translators and translation services available for UC who speak a 
language other than English or Spanish. Upon admission to a care 
provider facility, care provider facility staff must assess and 
identify the language needs of each UC as part of the intake assessment 
process. Paragraph (c) requires care provider facilities to provide in-
person or telephonic interpretation services that enable effective, 
accurate, and impartial interpretation by someone other than another UC 
in matters relating to allegations of sexual abuse and sexual 
harassment. Care provider facilities also must ensure that any written 
materials related to sexual abuse and sexual harassment, including 
notification, orientation, and instruction not provided by ORR, are 
translated either verbally or in written form into the preferred 
languages of UCs. Generally, ORR care provider facilities translate

[[Page 77774]]

into Spanish all documents provided to UC. If the unaccompanied child 
speaks a language other than English or Spanish, the document is 
verbally translated to the unaccompanied child using an in-person 
qualified translator or telephonic interpretation services.
    Section 411.16 covers standards for the hiring and promotion of 
care provider facility staff. In order to emphasize the importance of 
background checks for care provider facility staff, ORR sets forth 
standards for care provider facilities to follow regarding thorough 
background checks, periodically updating criminal background records 
checks, and creating an affirmative duty for staff to disclose 
misconduct in order to identify individuals who have committed, may 
have committed or are committing sexual misconduct. Generally, State 
and local licensing standards have strict requirements for background 
checks for all employees at a juvenile residential facility and have a 
list of crimes and offenses that bar applicants from employment.
    Paragraph (a) prohibits care provider facilities from hiring, 
promoting, or enlisting the services of any staff, contractor, or 
volunteer who may have contact with UCs and who has engaged in sexual 
abuse in a prison, jail, holding facility, community confinement 
facility, juvenile facility, other institution, or care provider 
facility; who has been convicted of engaging or attempting to engage in 
sexual activity facilitated by force, overt or implied threats of 
force, or coercion or if the victim did not consent or was unable to 
consent or refuse; or who has been civilly or administratively 
adjudicated to have engaged in such activity. Paragraph (b) places an 
affirmative duty on the care provider facilities to ask all applicants 
who may have contact with UCs considered for hire or promotion about 
previous misconduct described in paragraph (a) of this section. Care 
provider facilities must ask applicants either in written applications 
or during interviews for hiring or promotions. Care provider facilities 
also must ask current employees, regardless of whether the employee is 
eligible for a promotion, in interviews or written self-evaluations 
conducted as part of reviews of current employees about any misconduct 
described in paragraph (a). In addition, care provider facilities must 
impose upon all employees a continuing affirmative duty to disclose any 
such misconduct. Care provider facilities, consistent with law, must 
make their best efforts to contact all prior institutional employers of 
an applicant to obtain information on substantiated allegations of 
sexual abuse or sexual harassment or any resignation during a pending 
investigation of alleged sexual abuse or sexual harassment.
    Paragraph (c) requires care provider facilities to conduct a 
background investigation before hiring new staff who may have contact 
with UCs to determine whether the candidate is suitable for employment 
with minors in a residential setting. State and local licensing 
standards also require background investigations for all staff working 
at a child care facility, but the extent and scope of the background 
investigations differ State by State. At a minimum, ORR requires that 
background investigations include criminal background records checks, 
Child Protective Services checks, and periodic criminal background 
records check updates every five (5) years. The care provider facility 
should look at any convictions, administrative findings, or a history 
of offenses on a candidate's background investigation to determine if a 
candidate would be suitable to work with children in a residential 
setting. Upon ORR request, the care provider facility must submit all 
background investigation documentation for each staff member and the 
care provider's conclusions regarding the investigation. Paragraph (d) 
requires care provider facilities to also perform a background 
investigation for all potential contractors and volunteers who may have 
contact with UCs and provide documentation of those investigations and 
the care provider's conclusions to ORR upon request. Paragraph (e) 
mandates all care provider facilities to conduct a criminal background 
records check at least every five years for current employees, 
contractors, and volunteers who may have contact with UCs or otherwise 
have a system in place to capture such information. Paragraph (f) 
states that material omissions by staff, contractors, or volunteers 
regarding such misconduct or the provision of materially false 
information by the applicant or staff will be grounds for termination 
or withdrawal of an offer of employment as appropriate.
    Paragraph (g) requires care provider facilities to provide 
information on substantiated allegations of sexual abuse or sexual 
harassment involving a former employee upon receiving a request from 
another care provider facility or institutional employer for whom such 
employee has applied to work, unless it is prohibited by law to provide 
such information. Paragraph (h) requires care provider facilities that 
contract with an organization to provide residential services and/or 
other services to UCs to require the contractor to also follow the 
requirements of this section for the organization and its staff.
    Section 411.17 covers the standards for care provider facilities 
when upgrading facilities and technologies. The purpose of this section 
is to ensure that care provider facilities take into account how 
physical and technological changes may affect a UC's vulnerability to 
sexual abuse and sexual harassment and the care provider facility's 
ability to protect the UC. Under paragraph (a), when a care provider 
facility is planning to design or acquire any new facility or make any 
substantial expansions or modifications of an existing facility, the 
care provider facility, as appropriate, must consider the effect of the 
design, acquisition, expansion, or modification on its ability to 
protect UCs from sexual abuse and sexual harassment. Under paragraph 
(b), when installing or updating a video monitoring system, electronic 
surveillance system, or other monitoring technology in a care provider 
facility, the care provider facility, as appropriate, must consider how 
such technology may enhance its ability to protect UCs from sexual 
abuse and sexual harassment.
    The NPREC recommends that facilities, generally, must use video 
monitoring systems and other cost-effective and appropriate technology 
to supplement sexual abuse prevention, detection, and response efforts. 
ORR highly encourages but does not require care provider facilities to 
use video monitoring systems. However, ORR requires care provider 
facilities to consider the use of video monitoring in Sec.  411.13. 
ORR's care provider facilities are subject to State and local licensing 
standards, which differ with regard to video monitoring and how it may 
be used. Most ORR care provider facilities already utilize video 
monitoring in some form, but it is also not financially feasible for 
all care provider facilities to have video monitoring systems. ORR care 
provider facilities have strong supervision ratios for UCs, which 
allows for proper monitoring and supervision even if there is no video 
monitoring.
    The NPREC also recommends that facilities assess, at least 
annually, the feasibility of and need for new or additional monitoring 
technology and develop a plan for securing such technology. ORR does 
not require an annual assessment, because video monitoring is not 
integral in care provider facilities to actually supervise UCs. Youth 
care worker staff ratios must be at or above State and local licensing 
standards for child residential facilities, which are very strong 
ratios. A typical State or local licensing required staffing ratio of 
adult youth care worker to UC

[[Page 77775]]

is 1:8 during the day and 1:12 at night. Video monitoring is also 
subject to State and local licensing standards. Although ORR strongly 
encourages all care provider facilities to use video monitoring 
technology and update it as necessary, State and local licensing 
standards and financial limitations may limit its use and continuous 
update to the latest technology, respectively.
Subpart C--Responsive Planning
    Section 411.21 lists the responsibilities of care provider 
facilities with regard to victim advocacy, access to counselors, and 
forensic medical examinations. In order to provide crisis intervention 
and counseling services to meet the specific needs of sexual abuse and 
sexual harassment victims, paragraph (a) requires care provider 
facilities to develop procedures to best utilize community resources 
and services to provide expertise and support to UC victims. All care 
provider facilities must establish procedures to make available to UC 
victims outside victims services following incidents of sexual abuse 
and sexual harassment that occur within the care provider facility. The 
care provider facility must attempt to make available to the victim a 
victim advocate from a rape crisis center. If a rape crisis center is 
not available or if the UC prefers, the care provider facility must 
provide a licensed clinician on staff to provide crisis intervention 
and trauma services for the UC. However, staff members are not to 
conduct forensic examinations regardless of whether they are qualified 
or community-based staff members. The outside or internal victim 
advocate must provide, at a minimum, emotional support, crisis 
intervention, information, and referrals to the UC victim.
    When it is medically appropriate and necessary for evidence to be 
collected, paragraph (b) requires the care provider facility to 
arrange, with the UC's consent, for an alleged UC victim to undergo a 
forensic medical examination as soon as possible and that is performed 
by Sexual Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse 
Examiners (SANEs) where possible. If SAFEs or SANEs cannot be made 
available, the examination may be performed by a qualified medical 
practitioner. Care provider facility staff must inform UCs of the 
availability of forensic medical examinations and request their consent 
to have a forensic medical examination, where appropriate, completed as 
soon as possible after the incident. Paragraph (c) requires that, upon 
the UC victim's request, the presence of his or her outside or internal 
victim advocate, including any available victim advocacy services 
offered at a hospital conducting a forensic examination, must be 
allowed to the extent possible for support during a forensic 
examination and investigatory interviews. Paragraph (d) requires that 
care provider facilities, to the extent possible, request that the 
investigating agency follow the requirements of paragraphs (a) through 
(c) of this section in order to provide for the needs of UCs.
    The NPREC recommends that the agency follow a uniform evidence 
protocol that maximizes the potential for obtaining usable physical 
evidence for administrative proceedings and criminal prosecutions. The 
recommendations go on to describe what to include in the protocol. 
Since ORR does not conduct administrative or criminal investigations, 
it does not include this recommendation. Instead, all allegations are 
referred to outside investigators, such as local law enforcement, Child 
Protective Services, and State and local licensing agencies, and the 
investigating agency collects any evidence as necessary. ORR does 
require in section 411.64 that first responders ensure that all crime 
scenes are preserved and protected until the appropriate authority 
arrives to collect any evidence.
    Section 411.22 sets standards to ensure that all allegations of 
sexual abuse and sexual harassment are investigated. ORR and care 
provider facilities must immediately report all allegations of sexual 
abuse and sexual harassment to outside investigating agencies as soon 
as an allegation is made. Such investigating agencies include local and 
State law enforcement, local and State Child Protective Services, and 
local and State licensing agencies. ORR and care provider facilities 
are not enforcement agencies and do not have the authority to conduct 
criminal investigations. Upon receiving an allegation, ORR will monitor 
and evaluate the care provider facility to ensure that ORR policies and 
procedures and relevant legal authorities were followed, including 
compliance with the standards set forth in this section, as well as any 
ways in which the facility might improve its practices and procedures. 
If the care provider failed to report an incident to the appropriate 
outside agencies, ORR will report any lapse in reporting to the local 
or State licensing agency, local or State Child Protective Services, 
and local or State law enforcement agency. If the care provider failed 
to report an incident to ORR or follow ORR policies and procedures, ORR 
will issue corrective actions and may terminate or suspend its grant or 
contract with the care provider facility for failing to comply with ORR 
requirements. ORR and care provider facilities do not conduct internal 
investigations regarding the substance of the allegation, because they 
do not want to interfere or influence an investigation by law 
enforcement, Child Protective Services, or the State or local licensing 
agency.
    Under paragraph (a), ORR and care provider facilities must ensure 
that every allegation of sexual abuse and sexual harassment is 
immediately referred to all appropriate investigating agencies, 
including law enforcement agencies, Child Protective Services, State or 
local licensing agencies, and to ORR according to ORR policies and 
procedures. All allegations must be referred for investigation 
regardless of how the allegation is reported or who makes the report, 
including reports from third-parties and anonymous reporters. Care 
provider facilities must remain informed of ongoing investigations and 
fully cooperate with outside investigators as necessary. Paragraph (b) 
requires care provider facilities to maintain or attempt to enter into 
a memorandum of understanding or other agreement with law enforcement 
agencies, with designated State or local Child Protective Services, and 
with the State or local licensing agency responsible for conducting 
sexual abuse and sexual harassment investigations, as appropriate. Care 
provider facilities are required to maintain a relationship with these 
agencies to ensure investigations are conducted and completed in a 
timely manner. Care provider facilities must maintain a copy of the 
agreement or documentation showing attempts to enter into an agreement. 
Paragraph (c) requires all care provider facilities to maintain 
documentation of all reports and referrals of allegations of sexual 
abuse and sexual harassment for at least ten years.
    Under paragraph (d), ORR will refer an allegation of sexual abuse 
to the Department of Justice or other investigating authority for 
further investigation where such reporting is in accordance with its 
policies and procedures and any memoranda of understanding.
    Under paragraph (e), allegations of sexual abuse that occur at 
emergency care provider facilities operated on Federal properties must 
be reported to the Department of Justice in accordance with ORR 
policies and procedures and any memoranda of understanding. Emergency 
care provider facilities operating on Federal properties and within 
Federal buildings may not be

[[Page 77776]]

subject to State or local licensing standards.
    The NPREC also recommends that facilities investigate all 
allegations of sexual abuse and ensure that investigations are carried 
through to completion, regardless of whether the alleged abuser or 
victim remains at the facility and regardless of whether the source of 
the allegation recants his or her allegation. ORR did not include this 
recommendation, because ORR does not conduct investigations regarding 
the substance of an allegation. Instead, as stated in the previous 
paragraphs, ORR requires that all care provider facilities refer all 
allegations, regardless of how an allegation is made or who it comes 
from, to the proper investigating authorities. ORR and care provider 
facilities have no control over whether law enforcement, Child 
Protective Services, or a State or local licensing agency conducts an 
investigation. Both ORR and care provider facilities, however, must 
attempt to remain informed of ongoing investigations and fully 
cooperate as necessary. ORR also will refer an allegation of sexual 
abuse to the Department of Justice or other investigating authority for 
further investigation where such reporting is in accordance with its 
policies and procedures and any memoranda of understanding. 
Additionally, ORR will monitor and evaluate the care provider facility 
to ensure that ORR policies and procedures and relevant legal 
authorities were followed, including compliance with the standards set 
forth in this section, as well as any ways in which the facility might 
improve its practices and procedures.
    The NPREC goes on to recommend that an agency maintain or attempt 
to enter into a written memorandum of understanding or other agreement 
with the authority responsible for prosecuting violations of criminal 
law as well as maintain documentation of such agreements. ORR does not 
include this standard in this rule, because ORR does not conduct 
administrative or criminal investigations. The investigating agency is 
in a better position to refer cases to prosecutors after completing an 
investigation and determining if there is sufficient evidence to refer 
a case to prosecuting authorities.
Subpart D--Training and Education
    Section 411.31 covers the standards for training staff on sexual 
abuse and sexual harassment-related policies and procedures. Staff 
training is integral to implementing the standards in this Interim 
Final Rule and truly preventing, detecting, and properly responding to 
sexual abuse and sexual harassment. Paragraph (a) requires care 
provider facilities to train or require the training of all employees 
who may have contact with UCs on their responsibilities under these 
standards, including any medical or mental health care personnel who 
are staff members of the care provider. The NPREC recommends that 
employees receive training, including investigators. ORR does not 
require these trainings for investigators because neither ORR nor care 
provider facilities employ investigators. All allegations are referred 
to outside investigators. ORR will, however, encourage care provider 
facilities through its policies and procedures to make efforts to 
provide training for investigators and outside medical and mental 
health care practitioners not employed by care provider facilities. 
Training topics must include, at a minimum: the care provider 
facility's zero tolerance policies for all forms of sexual abuse and 
sexual harassment; the right of UCs and staff to be free from sexual 
abuse and sexual harassment and from retaliation for reporting sexual 
abuse and sexual harassment; definitions and examples of prohibited and 
illegal sexual behavior; recognition of situations where sexual abuse 
or sexual harassment may occur; recognition of physical, behavioral, 
and emotional signs of sexual abuse and methods of preventing and 
responding to such occurrences; how to avoid inappropriate 
relationships with UCs; how to communicate effectively and 
professionally with UCs, including UCs who are lesbian, gay, bisexual, 
transgender, questioning, or intersex; procedures for reporting 
knowledge or suspicion of sexual abuse and sexual harassment as well as 
how to comply with relevant laws related to mandatory reporting; the 
requirement to limit reporting of sexual abuse and sexual harassment to 
personnel with a need-to-know in order to make decisions concerning the 
victim's welfare and for law enforcement or investigative purposes; 
cultural sensitivity toward diverse understandings of acceptable and 
unacceptable sexual behavior and appropriate terms and concepts to use 
when discussing sex, sexual abuse, and sexual harassment with a 
culturally diverse population; sensitivity and awareness regarding past 
trauma that may have been experienced by UCs; and knowledge of all 
existing resources for UCs both inside and outside the care provider 
facility that provide treatment and counseling for trauma and legal 
advocacy for victims. Paragraph (b) requires that these trainings be 
completed within six months of the effective date of these standards, 
and care provider facilities must provide refresher training and 
information as appropriate. Under paragraph (c), care provider 
facilities must document that staff and employees who may have contact 
with UCs have completed the training.
    Section 411.32 discusses the standards for volunteer and contractor 
training on sexual abuse and sexual harassment-related policies and 
procedures. As stated in the previous section, volunteer and contractor 
training is incredibly important in implementing the standards in this 
Interim Final Rule. In particular, volunteers and contractors may not 
be familiar with standard child welfare practices and sexual abuse and 
sexual harassment issues, so it is important to provide complete and 
thorough training to any volunteer or contractor who may have contact 
with UCs. Paragraph (a) requires care provider facilities to ensure 
that all volunteers and contractors who may have contact with UCs are 
trained on their responsibilities under the care provider facility's 
sexual abuse and sexual harassment prevention, detection, and response 
policies and procedures as well as any relevant Federal, State, and 
local laws. Paragraph (b) allows care provider facilities to decide the 
level and type of training that is provided to volunteers and 
contractors based on the services they provide and the level of contact 
they will have with UCs. All care provider facilities, however, must 
provide all volunteer and contractors with training on the care 
provider facility's zero tolerance policies and procedures regarding 
sexual abuse and sexual harassment and inform them on how to report 
such incidents. Paragraph (c) requires care provider facilities to 
maintain written documentation that contractors and volunteers who may 
have contact with UCs have completed the required training.
    Section 411.33 addresses the requirements for educating UCs on the 
care provider facility's zero tolerance policies. ORR realizes that UCs 
are minors who may not understand what sexual abuse or sexual 
harassment are, so educating UCs is an important component that is of 
the utmost importance to preventing sexual abuse and sexual harassment. 
Additionally, care provider facilities must ensure that the orientation 
is provided in such a way that the UC comprehends what he/she is being 
told or given.
    ORR requires under paragraph (a) that all care provider facilities 
must ensure that during the orientation and

[[Page 77777]]

periodically thereafter UCs are notified and informed of the care 
provider facility's zero tolerance policies for all forms of sexual 
abuse and sexual harassment in an age and culturally appropriate 
fashion and in accordance with section 411.15. At a minimum, the 
orientation on the care provider facility's zero tolerance policy must 
include an explanation of the UC's right to be free from sexual abuse 
and sexual harassment as well as the UC's right to be free from 
retaliation for reporting such incidents; definitions and examples of 
UC-on-UC sexual abuse, staff-on-UC sexual abuse, coercive sexual 
activity, appropriate and inappropriate relationships, and sexual 
harassment; an explanation of the methods for reporting sexual abuse 
and sexual harassment, including to any staff member, outside entity, 
and to ORR; and an explanation of a UC's right to receive treatment and 
counseling if the UC was subject to sexual abuse or sexual harassment. 
Paragraph (b) requires all care provider facilities to provide 
notification, orientation, and instruction in formats accessible to all 
UCs at a time and in a manner that is separate from information 
provided about their immigration cases. Although care provider 
facilities do not discuss immigration case details with the UC, and ORR 
is a neutral party in relation to a child's removal proceedings, ORR 
wants to ensure that any discussion regarding a UC's immigration status 
remains separate from the explanation of a care provider facility's 
sexual abuse and sexual harassment-related policies and procedures. 
This is to avoid any risk that the UC will think that sexual harassment 
or sexual abuse-related reporting, assistance, or any other related 
activity could impact his/her immigration case.
    Care provider facilities under paragraph (c) are required to 
document all UCs' participation in orientation and periodic refresher 
sessions that address the care provider facility's zero tolerance 
policies.
    In addition to the orientation session, care provider facilities 
also must post information in accordance with section 411.15 on all 
housing unit bulletin boards about who a UC can contact if he or she 
has been a victim of sexual abuse or sexual harassment or is believed 
to be at imminent risk of sexual abuse or sexual harassment under 
paragraph (d). Under paragraph (e) care provider facilities also must 
make available and distribute to all UCs a pamphlet in accordance with 
section 411.15 that contains, at a minimum, the following: notice of 
the care provider facility's zero tolerance policy toward sexual abuse 
and sexual harassment; the care provider facility's policies and 
procedures related to sexual abuse and sexual harassment; information 
on how to report an incident of sexual abuse or sexual harassment; the 
UC's rights and responsibilities related to sexual abuse and sexual 
harassment; how to contact organizations in the community that provide 
sexual abuse and sexual harassment counseling and legal advocacy for UC 
victims of sexual abuse and sexual harassment; and how to contact 
diplomatic or consular personnel. UCs, upon entering a care provider 
facility and receiving an orientation, may not remember every piece of 
information provided, so it is important to post and distribute 
pamphlets to ensure UCs are always informed.
    The NPREC recommends that the pamphlet also include information on 
how to contact the Office for Civil Rights and Civil Liberties (OCRCL) 
as well as the Office of the Inspector General (OIG) at DHS. ORR does 
not include the contact information for OCRCL and OIG at DHS, because 
UCs are in the care and custody of HHS and not DHS. ORR also does not 
include the contact information for OCRCL and OIG at HHS, because the 
two offices do not function like their counterparts at DHS. OIG, for 
example, does not have the capacity to receive UC reports 24 hours a 
day in order to immediately refer any UC reports it receives. ORR, 
instead, provides that an outside agency may receive reports of sexual 
abuse and sexual harassment, and UCs may always contact diplomatic or 
consular personnel. In addition, UCs may always directly contact ORR 
24-hours a day. The pamphlet will include contact information for care 
provider facility staff, ORR, the outside agency, and diplomatic and 
consular personnel.
    The NPREC also recommended that sexual abuse education be provided 
by a qualified individual with experience communicating about these 
issues with a diverse population. ORR does not explicitly include the 
requirement that an individual have experience communicating about 
these issues with a diverse population in this section, because all 
policies and services related to this rule must be implemented in a 
culturally-sensitive and knowledgeable manner that is tailored for a 
diverse population under section 411.11. In addition, section 411.15 
requires that care provider facilities ensure meaningful access to all 
aspects of the care provider facility's sexual abuse and sexual 
harassment policies to UCs who are limited English proficient. Further, 
section 411.31 requires all care provider facility staff who may have 
contact with UCs to receive training on, among other things, cultural 
sensitivity and effectively communicating with UCs who are LGBTQI.
    Section 411.34 covers the specialized training required of medical 
and mental health care staff employed or contracted by care provider 
facilities. This standard does not include medical and mental health 
professionals utilized in the community and at local hospitals not 
contracted or employed by care provider facilities. Under paragraph 
(a), all medical and mental health care staff employed or contracted by 
care provider facilities must be specially trained, at a minimum, on 
the following topics: how to detect and assess signs of sexual abuse 
and sexual harassment; how to respond effectively and professionally to 
victims of sexual abuse and sexual harassment; how and to whom to 
report allegations or suspicions of sexual abuse and sexual harassment; 
and how to preserve physical evidence of sexual abuse. If medical staff 
intend to conduct forensic examinations, they must receive specific 
training to conduct such examinations prior to conducting them. Care 
provider facilities must document that medical and mental health 
practitioners employed or contracted by the care provider facility 
received the training referenced in this section under paragraph (b). 
Paragraph (c) clarifies that medical and mental health practitioners 
employed or contracted by the care provider facility must receive the 
training outlined in this section in addition to the training mandated 
for all care provider facility employees under section 411.31 or for 
contractors and volunteers under section 411.32, depending on the 
practitioner's status at the care provider facility.
    The NPREC recommends that the agency also provide specialized 
training for investigators conducting sexual abuse investigations. 
Because ORR refers all allegations to outside investigators, however, 
ORR did not include this standard.
Subpart E--Assessment for Risk of Sexual Victimization and Abusiveness
    Section 411.41 requires care provider facilities to assess UCs who 
may be at risk of being sexually abused or harassed or abusing or 
harassing others. Under paragraph (a), within 72 hours of a UC's 
arrival at a care provider facility, care provider facilities must 
obtain and use information about each UC's personal history and 
behavior to reduce the risk of sexual abuse or sexual harassment by or 
upon a UC. In addition, care provider facilities must periodically 
reassess the UC throughout

[[Page 77778]]

a UC's stay at the care provider facility. Paragraph (b) requires that 
the care provider facility's assessment of UCs for risk of sexual 
victimization and abusiveness must include consideration, at a minimum 
and to the extent that the information is available, the following 
criteria: prior sexual victimization or abusiveness; any gender 
nonconforming appearance or manner or identification as lesbian, gay, 
bisexual, transgender, questioning, or intersex and whether the UC may 
therefore be vulnerable to sexual abuse or sexual harassment; any 
current charges and offense history; age; any mental, physical, or 
developmental disability or illness; level of emotional and cognitive 
development; physical size and stature; the UC's own perception of 
vulnerability; and any other specific information about an individual 
UC that may indicate heightened needs for supervision, additional 
safety precautions, or separation from certain other UCs.
    Paragraph (c) states that the care provider facility must obtain 
the information listed in paragraph (b) of this section through 
conversations with the UC during the intake process and medical and 
mental health screenings; during classification assessments; and by 
reviewing court records, case files, care provider facility behavioral 
records, and other relevant documentation from the UC's files. Only 
trained staff are permitted to talk with UCs to gather information 
specifically about their sexual orientation or gender identity, prior 
sexual victimization, history of engaging in sexual abuse, mental 
health status, and mental disabilities for the purposes of the 
assessment required under paragraph (a) of this section. Care provider 
facilities must provide UCs with an opportunity to discuss any safety 
concerns or sensitive issues privately. Under paragraph (d), care 
provider facilities must take appropriate steps and implement controls 
on the dissemination within the care provider facility of responses to 
questions asked pursuant to the standard set forth in this section in 
order to ensure that sensitive information is not exploited to the UC's 
detriment by staff or other UCs.
    The NPREC also recommends that the facility make every reasonable 
effort to obtain institutional and criminal records of immigration 
detainees in its custody prior to screening for risk of victimization 
and abusiveness. It also recommends that screenings be conducted by 
employees who are culturally competent. As part of ORR's placement 
procedures, all UCs placed in ORR custody must be referred by a federal 
agency. DHS provides almost all referrals of UCs to ORR and will 
provide any U.S. criminal records of UCs when referring them. 
Therefore, ORR did not include this standard, because any existing U.S. 
criminal records are already transferred to ORR when a UC is placed in 
its care. UCs may also have a criminal record in a country outside the 
U.S., but those records take time to collect since they come from 
INTERPOL. INTERPOL is the world's largest international police 
organization, with 190 member countries. It ensures that police around 
the world have access to the tools and services necessary to do their 
jobs effectively, including access to criminal records in various 
countries. It would not be feasible to obtain non U.S. records within 
72 hours as required under section 411.41.
    Section 411.42 explains how care provider facilities are required 
to use the assessment completed in section 411.41. Paragraph (a) 
requires care provider facilities to use the information gathered from 
the assessment completed under section 411.41 to inform the assignment 
of UCs to housing, education, recreation, and other activities and 
services. Instead of making generalized decisions for groups of UCs, 
care provider facilities must make an individualized determination for 
each UC to ensure the UC's safety and health.
    One-on-one supervision in ORR care provider facilities does not 
refer to the type of solitary confinement used by prisons. UCs are not 
forced to remain alone and in locked rooms. Instead, one-on-one 
supervision refers to direct line-of-sight supervision at all times. 
Paragraph (b) states that care provider facilities may not place UCs on 
one-on-one supervision as a result of the assessment unless there are 
exigent circumstances that require it to keep the UC, other UCs, or 
staff safe. A UC may only be placed on one-on-one supervision until an 
alternative means of keeping all residents and staff safe can be 
arranged. A UC who is on one-on-one supervision for his/her safety must 
still receive all required services, including but not limited to, 
daily large-muscle exercise, required educational programming, and 
social services, when possible and reasonable under the circumstance. 
UCs on one-on-one supervision must receive daily visits from a medical 
practitioner or mental health care clinician as necessary. The medical 
practitioner or mental health care clinician may decide based on the 
needs of the UC that daily visit are not required, but he/she must 
continue to meet with the UC on a regular basis while the UC is on one-
on-one supervision. UCs, however, should generally not be placed on 
one-on-one supervision for a period of days or weeks. Exigent 
circumstances should be resolved as soon as possible and once safety is 
restored, UCs should no longer be supervised one-on-one.
    When making assessment and housing assignments for a transgender or 
intersex UCs, paragraph (c) requires care provider facilities to 
consider the UC's gender self-identification and an assessment of the 
effects of placement on the UC's health and safety. The care provider 
facility must consult a medical or mental health professional as soon 
as practicable on this assessment, but the care provider facility 
should not base housing assignment decisions of transgender or intersex 
UCs solely on the identity document or physical anatomy of the UC. An 
identity document may include but is not limited to U.S. and foreign 
government documentation, such as DHS forms provided when a UC is 
referred to ORR, birth certificates, and other official documentation 
stating the UC's sex. A UC's self-identification of his/her gender and 
self-assessment of safety needs must always be taken into consideration 
unless State and local licensing standards require otherwise. Some 
State and local licensing standards have specific requirements for the 
housing of transgender or intersex UC. In such cases, care provider 
facilities must follow State and local licensing requirements. Care 
provider facilities must regularly reassess the housing and programming 
assignments of each transgender or intersex UCs to review any threats 
to safety experienced by the UC.
    The NPREC recommended that facilities that house both inmates and 
immigration detainees house all immigration detainees separately from 
other inmates in the facility. ORR did not include this standard, 
because it is not applicable for ORR care provider facilities. 
Immigration detainees housed by DHS may be placed in jails or lockups, 
which is why the NPREC makes this recommendation. ORR, however, places 
UCs at residential shelters that may also house domestic children, but 
the domestic children are not inmates or at the care provider facility 
because of criminal or delinquent acts. Domestic children at care 
provider facilities are typically minors in the domestic child welfare 
system and are often orphaned, separated from parents, or pregnant 
teens.
    ORR does have a policy for care provider facilities to house UCs 
separate from domestic populations, if the care provider facility also 
houses domestic

[[Page 77779]]

populations. Generally, most UCs are housed separately, but there are 
exceptions to this policy. For example, ORR allows mixing of domestic 
minors and UCs in specialized placements, such as at residential 
treatment centers. In these care provider facilities, there is a higher 
level of supervision and care, and it is not feasible to separate the 
two populations, because there are a very small number of UCs at these 
care provider facilities. ORR does not want to effectively isolate UCs 
in that way.
Subpart F--Reporting
    Section 411.51 discusses care provider facility requirements 
regarding the ability of UCs to report sexual abuse and sexual 
harassment and any retaliatory actions resulting from reporting sexual 
abuse and sexual harassment. The ability of UCs to freely and 
immediately report sexual abuse and sexual harassment is essential for 
their protection and safety. ORR is committed to providing easily 
accessible methods for UCs to make reports. Paragraph (a) requires that 
care provider facilities develop policies and procedures for UCs to 
have multiple ways to report sexual abuse and sexual harassment, 
retaliation for reporting sexual abuse and sexual harassment, and staff 
neglect or violations of responsibilities that may have contributed to 
such incidents to the care provider. The care provider facility also 
must provide access to and instructions on how UCs can contact their 
consular official, ORR's headquarters, and an outside entity to 
confidentially, and, if desired, anonymously report these incidents. 
Instructions on how to contact consular officials should include a list 
of phone numbers, and UCs must be provided access to telephones with 
free, preprogrammed numbers for ORR headquarters and the outside entity 
designated under section 411.51(b).
    Under paragraph (b), care provider facilities also must provide and 
inform the UC of at least one way for UCs to report sexual abuse and 
sexual harassment to an entity or office that is not part of the care 
provider facility and is able to receive and immediately forward UC 
reports of sexual abuse and sexual harassment to ORR officials, 
allowing UCs to remain anonymous upon request. For example, care 
provider facilities may collaborate with rape crisis centers or local 
nonprofit organizations to receive UC reports of sexual abuse and 
sexual harassment that can be directly forwarded to law enforcement and 
ORR. The care provider facility must also maintain or attempt to enter 
into a memorandum of understanding or other agreement with the entity 
or office and maintain copies of agreements or documentation showing 
attempts to enter into agreements. The care provider facility's 
policies and procedures under paragraph (c) also must include 
provisions for staff to accept reports made verbally, in writing, 
anonymously, and from third parties. Staff must promptly document any 
verbal reports. Paragraph (d) requires all allegations of sexual abuse 
and sexual harassment by staff or UCs to be immediately reported to ORR 
according to ORR's policies and procedures.
    The NPREC recommends that facilities provide access to telephones 
with free, preprogrammed numbers to the DHS Office for Civil Rights and 
Civil Liberties (CRCL) and Office of the Inspector General (OIG). ORR 
did not include this requirement, because UCs are in the care and 
custody of ORR and not of DHS. ORR also did not include a requirement 
to provide preprogrammed numbers to HHS' CRCL and OIG, because they do 
not function in the same manner that DHS' offices do. HHS' CRCL and OIG 
do not have the capacity to accept reports from UCs on a 24-hour basis. 
ORR, however, provides UCs the opportunity to report to care provider 
facilities, ORR headquarters, and to an outside agency. UCs will have 
access to telephones with free, preprogrammed numbers for ORR 
headquarters and the outside entity designated under section 411.51(b).
    Section 411.52 addresses requirements for a care provider's 
grievance policies and procedures. The grievance process is another 
method through which UCs may make reports of sexual abuse and sexual 
harassment. Paragraph (a) requires care provider facilities to 
implement written policies and procedures for identifying and handling 
time-sensitive grievances that involve an immediate threat to UC 
health, safety, or welfare related to sexual abuse and sexual 
harassment. All such grievances must be reported to ORR and responded 
to immediately. Paragraph (b) requires care provider facility staff to 
immediately notify medical or emergency services personnel if there is 
a UC medical emergency. Paragraph (c) requires care provider facilities 
to issue a written decision on the grievance within five (5) days of 
receipt of the grievance. Paragraph (d) states that UC may obtain 
assistance from other UCs, care provider facility staff, family 
members, or legal representatives to prepare a grievance; and care 
provider facilities must take reasonable steps to expedite requests for 
assistance from these other parties. Under State mandatory reporting 
requirements and section 411.51(d), if a care provider facility staff 
member assists the UC in filing a grievance and gains knowledge of 
sexual abuse or sexual harassment occurring at a care provider, he/she 
must also separately make a report to the appropriate law enforcement 
agency, Child Protective Services agency, State or local licensing 
agency, and ORR. If a third-party assists the UC, such as a family 
member or legal representative, and he/she has knowledge of sexual 
abuse and sexual harassment occurring at a care provider facility, he/
she also may file reports of sexual abuse and sexual harassment with 
the appropriate law enforcement agency, Child Protective Services 
agency, State or local licensing agency, and with ORR.
    The NPREC recommends a specific procedure for the exhaustion of 
administrative remedies. ORR did not include this standard, because ORR 
does not require UCs to exhaust any type of administrative remedy 
before a care provider facility is required to take action in order to 
protect UCs or respond to any allegation of sexual abuse and sexual 
harassment. Care provider facilities must immediately respond to all 
allegations of sexual abuse and sexual harassment regardless of how the 
allegation is reported and also immediately refer the allegation to 
outside investigating agencies. The previous paragraph discussing 
grievances describes how grievances are to be filed and promptly 
responded to by care provider facilities. It does not require a UC to 
file a grievance before referring an allegation for investigation. It 
is simply one way for a UC to make a report of sexual abuse or sexual 
harassment, and ORR requires care provider facilities to have policies 
and procedures to ensure grievances are addressed in a timely and 
appropriate manner.
    Section 411.53 requires that care provider facilities provide UCs 
access to outside confidential support services. Although ORR care 
provider facilities have case managers and clinicians that work with 
individual UCs on an ongoing basis, care provider facilities also 
should provide UC victims of sexual abuse and sexual harassment access 
to outside community resources. If the alleged abuser is a clinician or 
case manager at the care provider facility, the UC should be able to 
access outside services and counsel. Paragraph (a) requires care 
provider facilities to utilize available community resources and 
services to provide support for a UC victim in the areas of crisis 
intervention, counseling, investigation, and the

[[Page 77780]]

prosecution of sexual abuse perpetrators. The care provider facility 
should maintain or try to enter into memoranda of understanding or 
other agreements with community service providers for immigrant victims 
of crime and maintain copies of its agreements or documentation showing 
attempts to enter into agreements. If such resources are available, 
care provider facilities must have written policies and procedures that 
include these outside agencies in the care provider facility's sexual 
abuse and sexual harassment prevention and intervention protocols under 
paragraph (b). Finally, paragraph (c) requires care provider facilities 
to make available to UCs information about local organizations that can 
assist UCs who are victims of sexual abuse and sexual harassment, 
including mailing addresses and telephone numbers. The care provider 
facility must allow reasonable communication between the UC and these 
organizations and agencies in a confidential manner and inform the UC, 
prior to giving him/her access, of the extent to which such 
communications will be confidential. The NPREC recommends that the 
facility also provide UC with unimpeded access to their attorney or 
other legal representative and their families. ORR has incorporated 
this recommendation in section 411.55.
    The NPREC recommends that the outside service provider help victims 
of sexual abuse during their transition from incarceration to the 
community. UCs are not incarcerated like minors in juvenile delinquency 
facilities, so this standard was not included. ORR, however, does 
believe it is important to connect special needs or at-risk UCs with 
resources in the community once they are released. ORR provides post-
release services for certain UCs, which would include UC victims of 
sexual abuse and sexual harassment, in order to connect UCs and UC 
sponsors with resources in their community to assist with any needs a 
UC may have. This service helps UCs transition into the community in 
which they are released.
    Section 411.54 requires ORR to establish a method to receive third-
party reports of sexual abuse and sexual harassment at care provider 
facilities. In addition, ORR is required to make available to the 
public information on how to report sexual abuse and sexual harassment 
on behalf of a UC. This is to allow parents, family members, friends, 
and anyone else to make a report on behalf of a UC. The NPREC 
recommends that at the conclusion of the investigation, the facility 
notify in writing the third-party individual who reported the abuse and 
the resident named in the third-party report of the outcome of the 
investigation. ORR makes efforts to notify all UCs that are the 
suspected victims of allegations of sexual abuse and sexual harassment 
of the outcome of the investigation under section 411.72. ORR, however, 
does not notify the third-party reporter of the outcome of the 
investigation in order to protect both the UC and an anonymous third-
party reporter. A third-party reporter may be any individual with no 
relation to the UC. In order to protect the privacy of the UC, ORR will 
notify the UC of the result, and the UC may choose whether or not to 
notify the third-party of the results of the investigation. ORR will 
also accept anonymous third-party reports. In order to maintain the 
anonymous status of the reporter, ORR cannot provide the third-party 
notification of the outcome of the investigation.
    Section 411.55 requires care provider facilities to ensure that UCs 
have access to their attorneys or other legal representatives and 
families. Paragraph (a) states that care provider facilities must 
provide UCs with confidential access to their attorney or other legal 
representative in accordance with the care provider's attorney-client 
visitation rules. A care provider's attorney-client visitation rules 
typically include time and place restrictions and require the attorney 
or legal representative to provider proper identity documentation prior 
to allowing the attorney to communicate with the UC. Care provider 
facilities have these rules in order to decrease disruptions in the 
UC's school and services schedule and to protect the UC's safety and 
security. In the event of an emergency or exigent circumstance, such as 
an incident involving law enforcement or the need to make an informed 
decision regarding medical services, for example, care provider 
facilities are required to have rules that allow UCs immediate access 
to attorneys, whether in-person or via telephone. All attorneys, 
however, should provide proper identity documentation as well as 
documentation, such as an individualized representation agreement 
demonstrating they are the UC's attorney, prior to gaining access to 
any UC. The care provider's attorney-client visitation rules must be 
approved by ORR to ensure the rules are reasonable and appropriate and 
include emergency provisions. Care provider facilities must also 
provide a confidential space for UCs to meet or speak on the phone 
privately with their attorneys.
    Paragraph (b) requires care provider facilities to allow UCs access 
to their families, including legal guardians, unless ORR has 
documentation showing that certain individuals should not be provided 
access because of safety concerns. ORR, for example, may have 
documentation that a parent has abused his/her child and, therefore, 
care provider facilities may restrict that individual's access to the 
UC if the parent poses a safety and security concern for the UC.
Subpart G--Official Response Following a UC Report
    Section 411.61 covers reporting requirements for care provider 
facility staff. ORR takes seriously the responsibility to report 
incidents of sexual abuse and sexual harassment. In addition, most 
staff members at care provider facilities are considered mandatory 
reporters under State law, and, therefore, must ensure they report all 
allegations, incidents, and suspicions of sexual abuse and sexual 
harassment to all proper authorities under State and local law as well 
as under these standards. Consequently, if care provider facility staff 
are found to have knowledge or suspicion of sexual abuse or sexual 
harassment but have not reported it, the staff member will be subject 
to strict sanctions or corrective actions, up to and including 
termination of employment. ORR will also refer such cases to Child 
Protective Services and State and local licensing agencies.
    In addition to State and local mandatory reporting requirements, 
paragraph (a) requires that all care provider facility staff, 
volunteers, and contractors report immediately to ORR according to ORR 
policy and procedures and to State or local agencies in accordance with 
mandatory reporting laws: Any knowledge, suspicion, or information 
regarding an incident of sexual abuse or sexual harassment that 
occurred while a UC was in ORR care. All care provider facility staff, 
volunteers, and contractors also must report immediately any knowledge, 
suspicion, or information regarding retaliation against UCs or staff 
who reported an incident of sexual abuse or sexual harassment or any 
staff neglect or violation of responsibilities that may have 
contributed to an incident or retaliation. ORR must review and approve 
the care provider's policies and procedures regarding reporting 
requirements to ensure that the care provider facility has appropriate 
reporting procedures. Paragraph (b) requires care provider facility 
staff to make sexual abuse and sexual harassment reports in accordance 
with ORR's policies and procedures as well as the care provider's 
policies and

[[Page 77781]]

procedures, as approved by ORR under section 411.11(c). Apart from the 
report, care provider facility staff must not reveal any information 
within the care provider facility related to a sexual abuse or sexual 
harassment report to anyone other than to the extent necessary to 
provide medical and mental health treatment, investigation, notice to 
law enforcement, or other security and management decisions under 
paragraph (c). This is to ensure that sexual abuse and sexual 
harassment reports are kept as confidential as possible to ensure the 
safety of the UC and/or staff member. Care provider facilities, 
however, must comply with all ORR requests for information regarding 
sexual abuse and sexual harassment allegations.
    Paragraph (d) requires care provider facility staff also to report 
any sexual abuse and sexual harassment allegations to the designated 
State or local services agency under applicable mandatory reporting 
laws in addition to law enforcement and the State or local licensing 
agency. Paragraph (e) requires that upon receiving an allegation of 
sexual abuse or sexual harassment, the care provider facility head or 
his or her designee must report the allegation to the alleged victim's 
parents or legal guardians, unless ORR has evidence showing the parents 
or legal guardians should not be notified or the victim does not 
consent to this disclosure of information and is 14 years of age or 
older, and ORR has determined the victim is able to make an independent 
decision. For example, if parental rights or legal guardian rights have 
been legally terminated and ORR has documentation of such termination, 
care provider facilities should not notify the UC's parent or legal 
guardian whose rights to the UC have been terminated. There may also be 
circumstances, for example, where ORR has evidence that a parent or 
legal guardian has abused a UC in the past and currently poses a danger 
to the safety and security of the UC. In such cases, ORR may choose not 
to notify a UC's parent or legal guardian to protect the safety of the 
UC. If the UC victim does not consent to the disclosure of information 
to his/her parents or legal guardians and is 14 years of age or older 
and ORR has determined the victim is able to make an independent 
decision, ORR will not require parental notification. If the UC is 
under 14 years of age, ORR will notify the UC's parent or legal 
guardian of the allegation as long as there is no evidence to show that 
the parents or legal guardian should not be notified. ORR, along with 
DOJ and DHS, consider UC 14 years of age and older as capable of making 
certain decisions, such as submitting an application for immigration 
status to the U.S. Citizenship and Immigration Services and choosing an 
attorney and completing the form for attorneys to officially appear as 
a minor's attorney or accredited representative in immigration court. 
If a minor may sign a form to retain a legal representative, then ORR 
will allow that minor to choose whether to disclose information to that 
attorney. Lastly, upon receiving an allegation of sexual abuse or 
sexual harassment that occurred while a UC was in ORR care, ORR will 
share this information with the UC's attorney of record within 48 hours 
of learning of the allegation under paragraph (f) unless the UC does 
not consent to the disclosure of information and is 14 years of age or 
older and ORR has determined the victim is able to make an independent 
decision. Instead of requiring the care provider facility to notify the 
juvenile court or the victim's judge of record, as recommended by the 
NPREC, ORR requires that the care provider facility notify the UC's 
attorney of record. UCs are not in juvenile court proceedings.
    The NPREC also recommends that medical and mental health 
practitioners be required to report sexual abuse to designated 
supervisors and officials as well as to the designated State or local 
services agency and must inform residents of their duty to report at 
the initiation of services. ORR did not explicitly state this here, 
because all medical and mental health practitioners that are on staff 
or are a contractor of a care provider facility are required to report 
sexual abuse and sexual harassment like any other staff member under 
this section. Unlike a typical prison environment where medical and 
mental health practitioners may have different reporting structures and 
responsibilities under PREA than prison staff, medical and mental 
health practitioners in ORR care provider facilities are required to 
make reports in the same way that all other staff make reports. They 
are subject to all the requirements in this rule that apply to care 
provider facility staff. The medical and mental health practitioner is 
also bound by his/her professional responsibilities as a medical 
provider to make appropriate reports and provide disclosures, as 
appropriate. ORR does not distinguish between staff in making reports. 
All staff are required to report all suspicions.
    Section 411.62 requires care provider facilities to protect UCs 
from sexual abuse and sexual harassment. If a care provider facility 
employee, volunteer, or contractor reasonably believes that a UC is 
subject to substantial risk of imminent sexual abuse, he or she must 
immediately take action to protect the UC. Taking action may include, 
but is not limited to, reporting to care provider facility management, 
contacting a youth care worker, physically moving the endangered UC, 
and reporting suspicions and risks to both care provider facility 
management and ORR.
    Section 411.63 covers topics related to reporting allegations to 
other care provider facilities. Paragraph (a) requires that a care 
provider facility, upon receiving an allegation that a UC was sexually 
abused or sexually harassed while at another care provider facility, 
must immediately notify ORR no later than 24 hours after receiving the 
allegation. ORR will then notify the care provider facility where the 
alleged abuse or harassment occurred. Under paragraph (b), the care 
provider facility whose staff received the allegation must document 
that it provided notification of the allegation to ORR. Under paragraph 
(c), the care provider facility that receives notification that an 
allegation of sexual abuse or sexual harassment occurred at its 
facility must ensure that the allegation is referred for investigation 
in accordance with these standards and State and local law. Paragraph 
(d) requires that a care provider facility, upon receiving an 
allegation that a UC was sexually abused or sexually harassed while in 
DHS custody, must immediately notify ORR but no later than 24 hours 
after receiving an allegation. ORR will then report the allegation to 
DHS. The care provider facility must document under paragraph (e) that 
it provided ORR such notification.
    Section 411.64 outlines what duties are required for staff 
responding to an allegation of sexual abuse. Paragraph (a) outlines the 
requirements for the first care provider staff member to respond to a 
report of sexual abuse. The care provider facility staff member must 
separate the alleged victim and abuser; preserve and protect, to the 
greatest extent possible, any crime scene until the appropriate 
authorities can take steps to collect any evidence; if the abuse 
occurred within a time period that still allows for the collection of 
physical evidence, request that the alleged victim not take any actions 
that could destroy physical evidence, including, as appropriate, 
washing, brushing teeth, changing clothes, urinating, defecating, 
smoking, drinking, or eating; and if the abuse occurred within a time 
period that still allows for the collection of physical evidence, 
request that the alleged abuser

[[Page 77782]]

and/or witnesses do not take any actions that could destroy physical 
evidence, including, as appropriate, washing, brushing teeth, changing 
clothes, urinating, defecating, smoking, drinking or eating. The care 
provider facility staff member should request that such actions not be 
taken, but the staff member should not physically restrain any UCs from 
taking such actions. If for any reason evidence cannot be collected in 
a timely fashion and the UC requests to use the restroom, UCs should be 
allowed to urinate and defecate as needed.
    Section 411.65 requires care provider facilities to have a 
coordinated response to all allegations of sexual abuse that is 
immediate, efficient, and thorough. Paragraph (a) requires care 
provider facilities to develop a written institutional plan to 
coordinate actions taken by staff first responders, medical and mental 
health practitioners, outside investigators, victim advocates, and care 
provider facility leadership in response to an incident of sexual abuse 
to ensure that victims receive all necessary immediate and ongoing 
medical, mental health, and support services and that investigators are 
able to obtain usable evidence. ORR must review and make an approval 
decision on the written institutional plan to ensure it adequately 
addresses all concerns and is in accordance with ORR policies and 
procedures. Paragraph (b) requires care provider facilities to use a 
coordinated, multidisciplinary team approach to respond to sexual 
abuse. Under paragraph (c), if a victim of sexual abuse is transferred 
between ORR care provider facilities, ORR must, as permitted by law, 
inform the receiving care provider facility of the incident and the 
victim's potential need for medical or social services. Under paragraph 
(d), if a victim of sexual abuse is transferred from an ORR care 
provider facility to a non-ORR facility or sponsor, ORR must, as 
permitted by law, inform the receiving care provider facility or 
sponsor of the incident and the victim's potential need for medical or 
social services, unless the victims requests otherwise.
    Section 411.66 requires that ORR and care provider facility staff, 
contractors, and volunteers suspected of perpetrating sexual abuse or 
sexual harassment be immediately removed from all duties that would 
involve or allow access to UCs pending the outcome of an investigation.
    Section 411.67 addresses protections against retaliation. Care 
provider facility staff, contractors, and volunteers as well as UCs 
must not retaliate against any person, including a UC, who reports, 
complains about, or participates in an investigation into an allegation 
of sexual abuse or sexual harassment. Retaliation is absolutely 
prohibited and must be strongly addressed. For the remainder of the 
UC's stay in ORR custody following a report of sexual abuse or sexual 
harassment, ORR and the care provider facility must monitor to see if 
there may be possible retaliation occurring by UCs or care provider 
facility staff. If there are suspicions of retaliation, the care 
provider facility must address the retaliation and remedy the 
situation. For example, ORR and the care provider facility staff should 
monitor UC disciplinary reports, housing or program changes, negative 
performance reviews, or reassignments of staff. Care provider 
facilities must discuss any changes with the appropriate UC or staff 
member as part of their efforts to determine if retaliation is taking 
place, and, when confirmed, immediately take steps to protect the UC or 
staff member.
    Section 411.68 addresses post-allegation protection of UCs and 
staff. Under paragraph (a), care provider facilities must ensure that 
UC victims of sexual abuse and sexual harassment are placed in a 
supportive environment that provides the least restrictive housing 
option possible, subject to the requirements of 411.42. Paragraph (b) 
requires the care provider facility to employ multiple protection 
measures to ensure the safety and security of UC victims of sexual 
abuse and sexual harassment, including but not limited to: Housing 
changes or transfers for UC victims and/or abusers or harassers; 
removal of alleged UC abusers or harassers from contact with victims; 
and emotional support services for UCs or staff who fear retaliation 
for reporting sexual abuse and sexual harassment or cooperating with 
investigators. Under paragraph (c), a UC victim may be placed on one-
on-one supervision in order to protect the UC. Before taking the UC off 
of one-on-one supervision, the care provider facility must complete a 
re-assessment taking into consideration any increased vulnerability of 
the UC as a result of the sexual abuse or sexual harassment. The re-
assessment must be completed as soon as possible and without delay so 
that the UC is not on one-on-one supervision longer than is absolutely 
necessary for safety and security reasons. The UC should continue to 
receive all services, education, and recreation time while on one-on-
one supervision to the greatest extent possible.
    The NPREC also recommends that DHS never remove from the country or 
transfer to another facility immigration detainees who report sexual 
abuse before the investigation of that abuse is completed. ORR did not 
incorporate these NPREC recommendations in its rule, because ORR has no 
control over the removal of UCs from the United States. That is a 
decision for DHS and the immigration courts. With regard to transfers, 
the NPREC's report states that transfers disrupt a detainee's complaint 
lodged against a DHS facility. Outside agencies investigate all 
allegations at ORR care provider facilities, and investigations should 
continue to completion regardless of whether a UC is transferred or 
not. If the UC is released from ORR care and custody, ORR care provider 
facilities should work with the investigating agencies to ensure the 
care provider facility follows any procedures necessary to continue 
cooperation with investigators once the release occurs. If the UC has a 
protracted stay in ORR care and custody and the investigating agency 
requests that a UC stay in the jurisdiction, ORR will make best efforts 
not to transfer the child to a different care provider facility. Once 
UCs are released from ORR care, ORR no longer has jurisdiction over the 
UC. ORR is not an enforcement agency and cannot monitor UCs in the 
community, but ORR will request that the law enforcement agency local 
to the care provider facility advise the UC on how to protect him- or 
herself once he/she is released either in the same jurisdiction or 
elsewhere. In addition, care provider facilities, as part of their 
agreements with investigating authorities as required under section 
411.22, will work with investigating authorities to request that 
investigations not be closed simply because a UC leaves the 
jurisdiction.
Subpart H--ORR Incident Monitoring and Evaluation
    Section 411.71 discusses the requirements of ORR incident 
monitoring and evaluation after an allegation of sexual abuse or sexual 
harassment is made. The NPREC has recommended standards regarding the 
investigative agency's duty to investigate to completion all 
allegations of sexual abuse, what to include in criminal and 
administrative investigations, and evidence standards for 
administrative investigations. Since ORR does not conduct criminal or 
administrative investigations, it did not include these standards. 
Instead, ORR monitors and evaluates care provider facilities on a 
regular basis to ensure they are following ORR policies and procedures 
as well as relevant legal authorities in accordance with their 
cooperative agreements or contract

[[Page 77783]]

terms. In addition, if an incident occurs, ORR will also monitor and 
evaluate a care provider facility to determine if ORR policies and 
procedures as well as relevant legal authorities were followed and what 
corrective actions, if any, are needed. ORR does not conduct criminal 
investigations, collect evidence, or investigate the substance of the 
allegation. All care provider facilities, except emergency care 
provider facilities not licensed by a State or local agency, are 
overseen by State or local licensing agencies and Child Protective 
Services who are required to investigate such allegations. As such, ORR 
is committed to ensuring that all allegations of sexual abuse and 
sexual harassment are referred to outside investigating agencies with 
the authority to conduct investigations. Under paragraph (a), upon 
receiving an allegation of sexual abuse or sexual harassment, ORR will 
monitor and evaluate the care provider facility to determine if the 
care provider facility did not comply with the requirements of this 
section or ORR policies and procedures. Once an outside investigation 
is completed, ORR must review any available completed investigation 
reports to determine whether additional monitoring and evaluation 
activities are required.
    Paragraph (b) also requires that ORR develop written policies and 
procedures for incident monitoring and evaluation of sexual abuse and 
sexual harassment allegations, including provisions requiring: (1) 
Reviewing prior complaints and reports of sexual abuse and sexual 
harassment involving the suspected perpetrator; (2) determining whether 
actions or failures to act at the care provider facility contributed to 
the abuse or harassment; (3) ensuring that all ORR policies and 
procedures or relevant legal authorities were followed; and (4) 
retention of such reports for as long as the alleged abuser or harasser 
is in ORR custody or employed by ORR or the care provider, plus ten 
years. Paragraph (c) requires ORR to ensure that its incident 
monitoring and evaluation does not interfere with any investigation 
conducted by State or local Child Protective Services, State or local 
licensing agencies, or law enforcement. Paragraph (d) requires that 
when outside agencies investigate an allegation of sexual abuse or 
sexual harassment, the care provider facility and ORR must fully 
cooperate with outside investigators.
    Section 411.72 requires that ORR must, when feasible, notify the UC 
of the result of the investigation if the UC is still in ORR care and 
custody following an investigation. If a UC is no longer in ORR custody 
when investigation results are provided, ORR must attempt to notify the 
UC of the results where feasible. ORR may use the contact information 
of the person, organization, or entity the UC was released to in 
attempting to contact the UC, but ORR is not required to locate a UC if 
he/she is no longer at the address where he/she was released. The NPREC 
also recommends that the agency notify other complainants or additional 
parties that were notified of the allegation of the outcome of the 
investigation. ORR modified this recommendation, because ORR is not the 
investigating agency. ORR would not always have contact information 
about any other complainants and cannot notify reporting parties if 
they were made anonymously. ORR does not have all the information that 
an investigating agency would have. Instead, ORR will encourage the 
investigating agency to notify other complainants, or additional 
parties notified of the allegation, of the outcome of the 
investigation.
Subpart I--Interventions and Discipline
    Section 411.81 addresses disciplinary sanctions for care provider 
facility staff for violations of ORR or the care provider facility's 
sexual abuse and sexual harassment-related policies and procedures. 
Paragraph (a) requires care provider facilities to take disciplinary 
action up to and including termination against any staff member with a 
substantiated allegation of sexual abuse or sexual harassment against 
them or for violating ORR or care provider facility's sexual abuse and 
sexual harassment policies and procedures. For staff who engaged in 
sexual abuse or sexual harassment, termination must be the presumptive 
disciplinary sanction under paragraph (b). In addition, all 
terminations for violations of ORR or care provider facility sexual 
abuse and sexual harassment policies and procedures, or resignations by 
staff who would have been terminated if not for their resignation, must 
be reported to law enforcement agencies and to any relevant State or 
local licensing bodies. Under paragraph (d), any staff member with a 
substantiated allegation of sexual abuse or sexual harassment against 
him/her at an ORR care provider facility is barred from employment at 
any ORR care provider facility.
    Section 411.82 discusses corrective actions for contractors and 
volunteers who engaged in sexual abuse or sexual harassment or violated 
ORR or the care provider facilities' sexual abuse and sexual 
harassment-related policies and procedures. Under paragraph (a), any 
contractor or volunteer who is the subject of a substantiated 
allegation of sexual abuse or sexual harassment must be prohibited from 
working or volunteering at the care provider facility and at any ORR 
care provider facility. Paragraph (b) requires the care provider 
facility to take appropriate remedial measures and to consider whether 
to prohibit further contact with UCs by contractors or volunteers who 
have not engaged in sexual abuse or sexual harassment but have violated 
other provisions within these standards, ORR sexual abuse and sexual 
harassment policies and procedures, or the care provider's sexual abuse 
and sexual harassment policies and procedures.
    Section 411.83 addresses interventions for UCs who engage in sexual 
abuse. UCs must receive appropriate interventions if they engage in UC-
on-UC sexual abuse. Decisions regarding which types of interventions to 
use in particular cases, including treatment, counseling, or 
educational programs, are made with the goal of promoting improved 
behavior by the UC and ensuring the safety of other UCs and staff. 
Considering the age and background of the UC, the appropriate 
intervention plan should be created to encourage and assist the UC to 
improve his/her behavior.
    The NPREC made recommendations regarding the imposition of 
disciplinary sanctions after a finding that a UC engaged in sexual 
abuse. ORR, however, did not include these recommendations, because 
care provider facilities do not discipline UCs in a punitive manner. 
Incidents of UC-on-UC abuse are referred to all investigating 
authorities, including law enforcement entities, and a UC who poses a 
danger to him- or herself, to others, or the community may also be 
transferred to a higher level of care, such as a staff-secure or secure 
care provider facility. The decision to transfer, however, is not 
determined as a result of a disciplinary sanction but is determined 
based on safety concerns and the needs of the UC, as is any lateral 
transfer or transfer to a higher level of care. If necessary, a UC may 
also be transferred to a therapeutic care provider facility or 
residential treatment center if recommended by the care provider's 
clinician and/or psychiatric assessment. ORR will always ensure that 
the UC victim is protected from the alleged perpetrator. This may 
include but is not limited to keeping the victim and alleged 
perpetrator physically separate and housed in separate parts of the 
care provider facility; laterally transferring a UC based on the UC's 
needs; or transferring the alleged perpetrator to a higher-level of 
care if he/she continues to pose a danger to

[[Page 77784]]

him- or herself, to others, or the community.
    Rather than imposing disciplinary sanctions to control UC behavior, 
care provider facilities use positive reinforcement via a token economy 
system. UCs receive extra privileges or the ability to participate in 
extra activities, such as a movie night, when they exhibit positive or 
``good'' behavior. UCs may not be able to participate in extra 
activities if they do not exhibit good behavior, but UCs never have 
services taken away nor are they ever placed in isolation for 
disciplinary reasons.
Subpart J--Medical and Mental Health Care
    Section 411.91 addresses medical and mental health assessments and 
histories of sexual abuse. Under paragraph (a), if the assessment 
pursuant to section 411.41 indicates that a UC experienced prior sexual 
victimization or perpetrated sexual abuse, the care provider facility 
must ensure that the UC is immediately referred to a qualified medical 
or mental health practitioner for medical and/or mental health follow-
up as appropriate. Care provider facility staff must also ensure that 
all UCs disclosures are reported in accordance with these standards. 
All UCs in ORR care regularly meet with care provider facility 
clinicians and case managers. If, however, the UC requires a higher 
level of medical or mental health care as a result of past sexual 
victimization or perpetrated sexual abuse, the care provider facility 
will refer the UC to qualified medical or mental health providers. 
After a referral for medical or mental health follow-up is initiated, 
the care provider facility must ensure that the UC receives a health 
evaluation no later than seventy-two (72) hours after the referral 
under paragraph (b). If the referral is for a mental health follow-up, 
the care provider facility must ensure that the UC receives a mental 
health evaluation no later than 72 hours after the referral under 
paragraph (c).
    Section 411.92 covers access to emergency medical and mental health 
services. ORR provides regular and emergency medical and mental health 
care for all UCs in its care at all times, but the following standards 
are set forth to reiterate the importance of immediately providing 
medical services and crisis intervention services for sexual abuse 
victims. Regular medical, mental health, and crisis intervention 
services provided in the normal course of business are reported to ORR 
in accordance with its policies and procedures. Likewise, any medical, 
mental health, or crisis intervention services provided for sexual 
abuse victims must also be timely reported to ORR in accordance with 
ORR policies and procedures. Paragraph (a) requires care provider 
facilities to provide UCs who are victims of sexual abuse that occurred 
while in ORR care timely, unimpeded access to emergency medical 
treatment, crisis intervention services, emergency contraception, and 
sexually transmitted infections prophylaxis, in accordance with 
professionally accepted standards of care, where appropriate under 
medical or mental health professional standards. Such services must be 
reported to ORR in accordance with ORR's policies and procedures. 
Paragraph (b) requires care provider facilities to provide victims 
access to all medical treatment and crisis intervention services 
regardless of whether the victim names the abuser or cooperates with 
any investigation arising out of the incident. UCs should receive 
immediate medical and mental health treatment any time that it is 
needed. The NPREC's report made recommendations for when no qualified 
medical or mental health practitioner are on duty at the time a report 
of recent abuse is made. ORR did not include these standards, because 
if there is a medical emergency, care provider facilities take UCs to 
the local hospital emergency room. Unlike juvenile facilities that have 
their own medical staff because residents may not leave the facility 
premises, UCs do not have to receive their medical services at the 
residential care provider facility. UCs are often taken out in the 
community to see specialists, dentists, and in the case of emergencies, 
to the emergency room.
    ORR is mindful that some potential and existing grantees and 
contractors may have religious or moral objections to providing certain 
kinds of services, including referrals (for example, for emergency 
contraception). ORR is committed to providing resources and referrals 
for the full range of legally permissible services to UCs who need 
them, helping to facilitate access to these options, and doing so in a 
timely fashion and in a manner that respects the diverse religious and 
cultural backgrounds of UCs. At the same time, ORR is also committed to 
finding ways for organizations to partner with us, even if they object 
to providing specific services on religious grounds.
    The following are ways in which organizations with such objections 
may be able to participate in human services programs. (1) Serve as 
sub-grantees--In many cases, sub-grantees do not need to provide every 
service for which the grantee is responsible, so long as all UCs served 
have access to all services required under the grant in a timely and 
respectful manner. Grantees must ensure that their overall program 
provides all of the required services, but grantees can use sub-
grantees to provide some services. Under this arrangement, as long as 
other sub-grantees are readily available to provide UCs with the 
objected-to services, a sub-grantee may participate in the grant 
program while declining to provide services to which they have a 
religious objection. (2) Apply in a consortium--A second possibility is 
for faith-based organizations to apply in a consortium with one or more 
partners. The consortium would allow for a division of responsibility 
consistent with each organization's principles. Again, as long as UCs 
have timely access to all required services, different organizations 
could divide up the services provided. (3) Notify grantor--In some 
circumstances, another way in which the grantee could ensure access to 
any program services would be for the grantee to notify the federal 
program office responsible for the grant if a UC, who has been informed 
of the available services, may qualify for or be entitled to any 
program services, including referrals, to which the organization has a 
religious objection. It would then be the federal agency's 
responsibility to secure the provision of the needed services, or, if 
appropriate, transfer the case to another provider.
    For example, if a UC requested emergency contraception but the 
grantee that housed the UC objected to providing such services on 
religious or moral grounds, the grantee need only provide notification 
to ORR in accordance with ORR policies and procedures that the UC 
requested such services. The grantee is not required to provide further 
information or services to the UC in relation to the UC's request. Once 
notified, ORR would then have its Federal staff coordinate the 
provision of such services for the UC, and the grantee need only allow 
the UC access to the Federal staff member in order to provide the 
services. If necessary, the ORR staff member would also coordinate 
transportation to and from the location where the services are 
provided.
    All care provider facilities must provide for all the requirements 
under this subpart but the provision of the requirements are also 
subject to ORR's faith-based policy language described above. ORR will 
consider any combination of the approaches described above and is 
specifically requesting public comment for other approaches that would 
accomplish the goal of ensuring that UCs have access to

[[Page 77785]]

a full range of services while enabling qualified faith-based 
organizations to participate in the delivery of those services in a 
manner consistent with their principles. ORR is committed to working 
with all grantee and contractors to fulfill their requirements under 
this rule in a manner that is respectful and sensitive to the grantee 
and contractor's principles and beliefs.
    Section 411.93 addresses ongoing medical and mental health care for 
sexual abuse and sexual harassment victims and abusers. ORR provides 
regular medical care and mental health services, as stated in the last 
section, but these standards reiterate the importance of close, 
continued care for UC victims of sexual abuse and sexual harassment. 
Paragraph (a) requires care provider facilities to offer ongoing 
medical and mental health evaluations and treatment to all UCs who were 
sexually abused or sexually harassed while in ORR care and custody. In 
addition, the evaluation and treatment of such victims must include, as 
appropriate, follow-up services, treatment plans, and, when necessary, 
referrals for continued care following their transfer to or placement 
in other care provider facilities or their release from ORR care and 
custody under paragraph (b). Paragraph (c) requires care provider 
facilities to provide victims with medical and mental health services 
consistent with the community level of care.
    Under paragraph (d), care provider facilities must ensure that 
female UC victims of sexual abuse by a male abuser while in ORR care 
and custody are offered pregnancy tests, as necessary. If pregnancy 
results from an instance of sexual abuse, the care provider facility 
must ensure that the victim receives timely and comprehensive 
information about all lawful pregnancy-related medical services and 
timely access to all lawful pregnancy-related medical services. Care 
provider facilities must also ensure that all UC victims of sexual 
abuse that occurred while in ORR care and custody are offered tests for 
sexually transmitted infections as medically appropriate under 
paragraph (e). Under paragraph (f), care provider facilities must 
ensure that UC victims are provided access to treatment services 
regardless of whether the victim names the abuser or cooperates with 
any investigation arising out of the incident. Finally, paragraph (g) 
requires care provider facilities to attempt to conduct a mental health 
evaluation of all known UC-on-UC abusers within seventy-two (72) hours 
of learning of such abuse and/or abuse history and offer treatment when 
deemed appropriate by mental health practitioners. In order for UCs to 
make informed decisions regarding medical services, care provider 
facilities should engage the UC in discussions with family members or 
attorneys of record in accordance with section 411.55 to the extent 
practicable and follow the appropriate State laws regarding the age of 
consent for medical procedures. As discussed above (see pages 71-72), 
insofar as care provider facilities may have religious objections to 
making such services available, the Federal government, consistent with 
its faith-based policy, is open to considering options whereby UC would 
be informed of available services, and the care provider would meet its 
obligations by notifying the grantor of requests for services.
    The NPREC recommends that all immigration detainees are counseled 
about the immigration consequences of a positive HIV test at the time 
they are offered HIV testing. ORR did not include this standard, 
because the Department of Health and Human Services changed its 
regulations in 42 CFR part 34 to remove HIV infection from the list of 
communicable diseases of public health significance that would make 
foreign nationals inadmissible to the United States. The new rule took 
effect on January 4, 2010, so the NPREC's recommended standard is no 
longer applicable.
Subpart K--Data Collection and Review
    Section 411.101 addresses the requirements to conduct sexual abuse 
and sexual harassment incident reviews. Sexual abuse and sexual 
harassment incident reviews are internal reviews completed by care 
provider facilities and are separate from sexual abuse and sexual 
harassment investigations, which are conducted by law enforcement, the 
Child Protective Services agency, and/or the State or local licensing 
agency. The main purpose of sexual abuse and sexual harassment incident 
reviews is to determine if the care provider facility's policies and 
procedures could be improved or changed in light of the incident or 
allegation. Sexual abuse and sexual harassment incident reviews are 
conducted at the conclusion of an outside investigation and should not 
interfere with any ongoing investigations. Under paragraph (a), care 
provider facilities must conduct a sexual abuse or sexual harassment 
incident review at the conclusion of every investigation of sexual 
abuse and sexual harassment and prepare a written report if the 
allegation was either substantiated or unable to be substantiated, but 
not determined to be unfounded. The written report must evaluate 
whether the incident review and/or investigation indicates that a 
change in policy or practice could better prevent, detect, or respond 
to sexual abuse and sexual harassment. The care provider facility must 
implement the recommendations for improvement or must document its 
reason for not doing so in a written response. Both the report and 
response must be forwarded to ORR's Prevention of Sexual Abuse 
Coordinator. Care provider facilities must also collect accurate, 
uniform data for every reported incident of sexual abuse and sexual 
harassment using a standardized instrument and set of definitions. 
Under paragraph (b), on an annual basis, the care provider facility 
must conduct a review of all sexual abuse and sexual harassment 
investigations and resulting incident reviews to assess and improve 
sexual abuse and sexual harassment detection, prevention, and response 
efforts. The results and findings of the annual review must be provided 
to ORR's Prevention of Sexual Abuse Coordinator. The NPREC 
recommendation goes into specific detail regarding who is required to 
review the incident and what to review. Instead, ORR provides a 
standard that requires the care provider facility to determine if any 
policies or practices should be changed and to provide recommendations 
for improvement. Factors that the NPREC recommends facilities consider, 
such as racial motivation or group dynamics are not as relevant for ORR 
care provider facilities, because the population of UCs at any given 
care provider facility will change often, as UCs are released on an 
average after 35 days.
    Section 411.102 addresses data collection requirements. The purpose 
of this section is to regularly gather and report aggregated 
information to detect patterns so that future incidents may be 
prevented at care provider facilities. Paragraph (a) requires that care 
provider facilities maintain all case records associated with claims of 
sexual abuse and sexual harassment, including incident reports, 
investigative reports, offender information, case disposition, medical 
and counseling evaluation findings, and recommendations for post-
release treatment and/or counseling in accordance with these standards 
and applicable Federal and State laws and ORR policies and procedures. 
Under paragraph (b), the PSA Compliance Manager, on an ongoing basis, 
must work with the care provider facility management and ORR to share 
data regarding effective care provider facility response methods to 
sexual abuse and

[[Page 77786]]

sexual harassment. Paragraph (c) requires the PSA Compliance Manager to 
prepare a report for ORR on a quarterly basis that compiles information 
about incidents and allegation of sexual abuse and sexual harassment as 
well as ongoing investigations and other pending cases. Under paragraph 
(d), the PSA Compliance Manager must annually aggregate incident-based 
sexual abuse and sexual harassment data in his/her care provider 
facility and provide it to ORR from the previous year no later than 
August 31 of the next calendar year.
    The NPREC also recommends that facilities collect additional data 
whenever the immigration detainee is the victim or perpetrator of an 
incident of sexual abuse in custody. The additional incident-based data 
collected should indicate whether the victim and/or perpetrator was an 
immigration detainee, his or her status at the initiation of the 
investigation, and his or her status at the conclusion of the 
investigation. ORR did not include this standard, because UCs are not 
in ORR custody for a long period of time. UCs have an average length of 
stay of 35 days in ORR care, and most immigration cases and 
investigations are still ongoing when a release occurs. Once a UC is 
released, ORR does not track or have the ability to collect immigration 
information regarding the UC. Therefore, ORR is not able to collect the 
type of information that the NPREC recommends.
    Section 411.103 covers how the collected data should be analyzed, 
reported, and used to prevent future incidents. Paragraph (a) requires 
that ORR review data collected and aggregated pursuant to sections 
411.101 and 411.102 in order to assess and improve the effectiveness of 
its sexual abuse and sexual harassment prevention, detection, and 
response policies, practices, and training. ORR's assessment should 
include identifying problem areas, taking corrective actions on care 
provider facilities on an ongoing basis, and preparing an annual report 
of its findings and corrective actions for each care provider facility 
as well as ORR as a whole. Under paragraph (b), ORR's report must 
include a comparison of the current year's data and corrective actions 
with those from prior years. In addition, the report must provide an 
assessment of ORR's progress in preventing, detecting, and responding 
to sexual abuse and sexual harassment. Paragraph (c) requires that the 
Director of ORR approve ORR's annual report on ORR's UC Program as a 
whole and make the report available to the public through its Web site 
or otherwise make the report readily available to the public. Paragraph 
(d) allows ORR to redact specific material from the reports when 
appropriate for safety and security but must indicate the nature of the 
material redacted when releasing the report to the public.
    Section 411.104 addresses how data related to sexual abuse and 
sexual harassment should be stored, published, and destroyed. ORR is 
committed to protecting the safety and security of all UCs in its care 
and custody and, therefore, must ensure that all data collected related 
to sexual abuse and sexual harassment is protected. Under paragraph 
(a), ORR must ensure that data collected pursuant to sections 411.101 
and 411.102 is securely retained in accordance with Federal and State 
laws and ORR record retention policies. Paragraph (b) requires that ORR 
make all aggregated sexual abuse and sexual harassment data from ORR 
care provider facilities with which it provides a grant to or contracts 
with available to the public at least annually on its Web site 
consistent with existing ORR information disclosure policies and 
procedures. The aggregated data excludes data from secure care 
providers, as those care provider facilities must follow the Department 
of Justice's Standards to Prevent, Detect, and Respond to Prison Rape 
and will report to DOJ accordingly. Information regarding secure care 
providers will be available from DOJ. Also excluded from the aggregated 
data is information for traditional foster care providers. Before 
making any type of aggregated sexual abuse and sexual harassment data 
publicly available, however, ORR must remove all personal identifiers 
under paragraph (c). Paragraph (d) requires that ORR maintain sexual 
abuse and sexual harassment data for at least 10 years after the date 
of its initial collection unless Federal, State, or local law requires 
the disposal of official information in less than 10 years.
Subpart L--Audits and Corrective Action
    Section 411.111 addresses the frequency and scope of audits. 
Paragraph (a) states that ORR will ensure that an audit of each care 
provider facility is completed within three years and 60 days after the 
effective date of the standards and at least once during each three-
year period thereafter. ORR may, in its discretion, expedite the audit 
of a particular care provider facility if ORR has reason to believe the 
care provider facility is experiencing problems related to sexual abuse 
and sexual harassment under paragraph (b). Paragraph (c) requires that 
ORR develop and issue an instrument that is coordinated with the HHS 
Office of the Inspector General that will provide guidance on the 
conduct and contents of the audit. Paragraphs (d)-(m) describe the 
types of documents and access the auditor must be provided when 
auditing a care provider facility. Paragraph (n) ensures that all 
sensitive and confidential information that an auditor has access to be 
properly handled by the auditor, and that the auditor is required to 
safeguard such information. Paragraph (o) places an affirmative burden 
on the care provider facility to demonstrate compliance with the 
standards to the auditor.
    Section 411.112 addresses the qualifications required for auditors. 
Paragraph (a) requires that audits must be conducted by an entity or 
individual with relevant auditing or evaluation experience and is 
external to ORR. Under paragraphs (b) and (c), auditors must be 
certified and trained by ORR and cannot receive financial compensation 
from ORR other than compensation related to conducting an audit for 
three years prior or subsequent to an audit.
    Section 411.113 addresses the contents and findings of audits. 
Paragraph (a) requires that audits must include certification by the 
auditor that there are no conflicts of interest between the auditor and 
the care provider facility under review. Paragraphs (b)-(d) address the 
standards that care provider facilities must meet and the methodology, 
sampling sizes, and basis for the auditor's conclusions. Under 
paragraph (e), auditors must redact personally identifiable UC or staff 
information from their reports but provide such information upon ORR 
request. Then, under paragraph (f), ORR will publish aggregated data on 
final audit reports on ORR's Web site or otherwise make it readily 
available to the public.
    Section 411.114 discusses audit corrective action plans. If a care 
provider facility received a finding of ``Does Not Meet Standard'' with 
one or more standards, a 180-day corrective action period is triggered 
under paragraph (a). The auditor and ORR will work to create a 
corrective action plan to achieve compliance, and the auditor must take 
steps to verify implementation of the corrective action plan under 
paragraphs (b) and (c). Under paragraph (d), after the 180-day 
corrective action period ends, the auditor must issue a final 
determination as to whether the care provider facility achieved 
compliance with those standards requiring corrective action.

[[Page 77787]]

Paragraph (e) requires that if the care provider facility does not 
achieve compliance with each standard, it may (at its discretion and 
cost) request a subsequent audit once it believes that it has achieved 
compliance.
    Section 411.115 addresses audit appeals. Paragraph (a) allows care 
provider facilities to file an appeal with ORR regarding any specific 
audit finding that it believes are incorrect. Such an appeal must be 
filed within 90 days of the auditor's final determination. Under 
paragraph (b), if ORR determines that the care provider facility has 
stated good cause for re-evaluation, the care provider facility may 
commission a re-audit by an auditor mutually agreed upon by ORR and the 
care provider facility. The care provider facility, though, must bear 
the costs of the re-audit. Under paragraph (c), the findings of the re-
audit are considered final.

V. Waiver of Proposed Rulemaking

    HHS will ordinarily publish a notice of proposed rulemaking in the 
Federal Register and invite public comment on the proposed rule. The 
notice of proposed rulemaking includes a reference to the legal 
authority under which the rule is proposed and the terms and substances 
of the proposed rule or a description of the subjects and issues 
involved. However, under section 553(b) of the Administrative Procedure 
Act (APA) (5 U.S.C. 551 et seq.), a general notice of proposed 
rulemaking is not required when an agency, for good cause, finds that 
notice and public comment thereon are impracticable, unnecessary, or 
contrary to the public interest, and incorporates a statement of the 
finding and its reasons in the rule issued. HHS has determined that it 
would be contrary to the public interest to delay finalizing the 
provisions of this regulation until a public notice and comment process 
is complete.
    HHS believes that implementing standards that govern the detection, 
prevention, and response to the sexual abuse and sexual harassment of 
UCs as soon as possible is of such importance that publishing a notice 
of proposed rulemaking would be contrary to the public interest. 
Section 1101(c) of the Violence Against Women Reauthorization Act (VAWA 
2013) directs the Secretary of Health and Human Services to publish a 
final rule adopting national standards for the detection, prevention, 
reduction, and punishment of rape and sexual assault in facilities that 
maintain custody of UCs within 180 days of the enactment of VAWA 2013, 
which was on March 7, 2013. In creating a 180-day deadline, HHS 
believes it was Congress' intent for HHS to issue national standards as 
quickly as possible so that UCs have specific protections put in place 
to detect, prevent, reduce, and punish sexual abuse and sexual 
harassment. Once this rule is published, it will take up to a year to 
implement all standards at all care provider facilities. To prevent 
further delay, HHS determined that it should issue an interim final 
rule instead of a notice of proposed rulemaking in order to begin 
implementation of these standards as soon as possible. Issuing this 
regulation on an interim basis is necessary and in the public interest 
in order to prevent, detect, and respond to the sexual abuse and sexual 
harassment of UCs in ORR care and custody. It would be contrary to the 
public interest and to Congress' intent to delay the implementation of 
this rule.
    Based on HHS' determination that a delay of these rules would be 
contrary to the public interest, HHS finds good cause to waive the 
notice of proposed rulemaking and to issue this final rule on an 
interim basis. HHS will take and carefully consider public comments for 
the interim final rule and make any appropriate changes. HHS is 
providing a 60-day public comment period and will address comments 
received before the rule is finalized. We plan to finalize the rule 
within one year of implementation.

VI. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995 (PRA), HHS is required to 
provide 60-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and approval. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a control 
number assigned by OMB.
    This interim final rule with comment requires information 
collections for which HHS plans to seek OMB approval at a later date. 
The information collection requirements associated with this interim 
final rule will not take effect until approved by OMB. HHS will issue 
future Federal Register notices to seek comments on its information 
collections as required by 3506(c)(2)(A) of the Paperwork Reduction Act 
within one month following finalization, and will include the following 
information collections as described below:
    <bullet> Section 411.11(c): Care provider facilities must maintain 
culturally-sensitive written policies mandating zero tolerance toward 
all forms of sexual abuse and sexual harassment and outlining the care 
provider facility's approach to detecting, preventing, and responding 
to such conduct. The policies must be tailored for a diverse population 
and approved by ORR.
    <bullet> Section 411.16(b): Care provider facilities must solicit 
information from job applicants and employees considered for promotion 
about previous misconduct. If a job applicant previously worked at an 
institution, care provider facilities must make efforts to solicit 
information regarding previous misconduct related to sexual abuse and 
sexual harassment.
    <bullet> Section 411.16(c) and (d): Care provider facilities must 
produce background investigation results and documentation to ORR, upon 
request, for job applicants, volunteers, and contractors.
    <bullet> Section 411.16(g): Care provider facilities must provide 
information on substantiated allegations of sexual abuse or sexual 
harassment involving a former employee upon receiving a request from 
another care provider facility or institutional employer for whom such 
employee has applied to work.
    <bullet> Section 411.22(a)-(c): Care provider facilities are 
required to report allegations of sexual abuse and sexual harassment to 
ORR and all appropriate investigating authorities. Care provider 
facilities must maintain documentation of all reports and referrals of 
allegations for at least ten years. Care provider facilities must also 
maintain copies of all agreements or documentation showing attempts to 
enter into agreements with law enforcement agencies, State or local 
Child Protective Services, and State or local licensing agencies.
    <bullet> Sections 411.31(c) and 411.32(c): Care provider facilities 
must maintain written documentation that employees, contractors, and 
volunteers have completed required trainings.
    <bullet> Section 411.33(a), (c)-(e): Care provider facilities must 
disclose information to UCs regarding the care provider facility's zero 
tolerance policies in an age and culturally appropriate fashion. All 
disclosures must be documented.
    <bullet> Section 411.34(b): Care provider facilities must maintain 
documentation that medical and mental health practitioners employed or 
contracted by the care provider facility received required trainings.
    <bullet> Section 411.51: Care provider facilities must provide 
information to UCs regarding methods of reporting and contact 
information to report allegations of sexual abuse and sexual 
harassment.

[[Page 77788]]

Care provider facilities must also maintain agreements or attempts to 
enter into agreements with entities that can receive and immediately 
forward UC reports. Reports made verbally must be documented, and all 
allegations must be reported to ORR.
    <bullet> Section 411.52(c): Care provider facilities must have 
written procedures for identifying and handling time-sensitive 
grievances that involve immediate threats to UC health, safety, or 
welfare related to sexual abuse and sexual harassment, and all such 
grievances must be reported to ORR.
    <bullet> Section 411.53: Care provider facilities must maintain 
agreements or attempts to enter agreements with community service 
providers to provide legal advocacy and confidential emotional support 
services for UC victims of sexual abuse and sexual harassment. Care 
provider facilities must also have written policies and procedures to 
include outside agencies in the care provider facility's sexual abuse 
and sexual harassment prevention and intervention protocols. Finally, 
care provider facilities must disclose information to UCs about these 
local organizations and the assistance they can provide to UC victims 
of sexual abuse and sexual harassment.
    <bullet> Section 411.54: ORR provides a method to receive third-
party reports of sexual abuse and sexual harassment.
    <bullet> Section 411.61(a)-(b), (d)-(f): Care provider facility 
staff, volunteers, and contractors are required to report to ORR and 
third-parties any knowledge, suspicion, or information regarding an 
incident of sexual abuse or sexual harassment, retaliation, or staff 
neglect or violation of responsibilities that may have contributed to 
an incident or retaliation. Care provider facilities must disclose 
allegations of sexual abuse and sexual harassment to a victim's parents 
or legal guardians with the UC victim's consent as well as his/her 
attorney of record, if applicable.
    <bullet> Section 411.63: Care provider facilities that receive an 
allegation that a UC was sexually abused while at another care provider 
facility must immediately report the allegation to ORR. The care 
provider facility reporting the incident must document that it provided 
notification to ORR and must also report the allegation to appropriate 
investigators.
    <bullet> Sections 411.81(c) and 411.82(a): Care provider facilities 
must report to law enforcement any staff, contractor, or volunteer who 
has engaged in sexual abuse or sexual harassment.
    <bullet> Section 411.101: Care provider facilities are required to 
collect certain data at the conclusion of every investigation of sexual 
abuse and sexual harassment and, where the allegation was either 
substantiated or unable to be substantiated but not determined to be 
unfounded, must prepare a report. Care provider facilities must also 
conduct an annual review of all sexual abuse and sexual harassment 
investigations and provide the results and findings to ORR.
    <bullet> Section 411.102: Care provider facilities must maintain 
case records associated with claims of sexual abuse and sexual 
harassment and the Prevention of Sexual Abuse Compliance Manager must 
share data with ORR regarding effective care provider facility response 
methods to sexual abuse and sexual harassment. The PSA Compliance 
Manager must also prepare a report for ORR compiling information and 
aggregate incident-based sexual abuse and sexual harassment data. Care 
provider facilities must also provide information to ORR upon request.
    <bullet> Section 411.113: Audits must contain certain information 
outlined in this section regarding a care provider facility's 
compliance with the standards set forth in this rule.
    We estimate the cost burden for these information collections per 
year will be approximately $900,000 for approximately 100 care provider 
facilities, with each care provider facility spending approximately 416 
hours per year to complete the information collections.

VII. Regulatory Impact Analysis--Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if the 
regulation is necessary, to select the regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. While there are some costs associated with these 
regulations, they are not economically significant as defined under 
E.O. 12866. However, the regulation is significant and has been 
reviewed by OMB.
    Within the IFR, the only areas with associated Federal costs are: 
hiring new staff or converting existing staff to perform functions as a 
Prevention of Sexual Abuse Compliance Manager at care provider 
facilities; training/education, prevention planning; expanding 
reporting mechanisms; data collection; and conducting regular audits. 
This IFR has an approximately $6.21 million cost. This includes 
approximately 100 full-time staff at each care provider facility paid 
an average salary of $45,000 with fringe benefits at an average rate of 
27%. The full-time staff will provide training/education and prevention 
planning as well as complete all reporting requirements and data 
collections. ORR estimates that an annual contract to complete audits 
will cost approximately $500,000 annually. This IFR will not only 
codify existing policies and procedures carried out by the UC Program 
but will also incorporate recommendations from the National Prison Rape 
Elimination Commission. This regulation will strengthen the protections 
and services unaccompanied children receive while in the care of ORR.

VIII. Regulatory Flexibility Analysis

    The Secretary certifies under 5 U.S.C. 605(b), as enacted by the 
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not 
result in a significant impact on a substantial number of small 
entities. This rule primarily affects the operations of the federal 
government, i.e., the Office of Refugee Resettlement's (ORR) management 
of the care and custody of unaccompanied children. This rule is 
primarily intended to ensure that Federally-funded grantees protect, 
detect, and respond to the sexual abuse and sexual harassment of 
unaccompanied children in the care and custody of ORR as directed under 
VAWA 2013. We believe this rule implements the requirements of VAWA 
2013 and assists care providers to continue providing a safe and secure 
environment and child-centered services for UC.
    Specifically, as noted under the Collection of Information 
Requirements section of this preamble, we estimate the cost of 
implementing the new reporting requirements will be approximately 
$900,000 annually, which when applied to approximately 100 grantees 
nationally, results in a cost per grantee of approximately $9,000. In 
developing this estimate, we assumed that each of the 100 grantees 
would spend a total of 416 hours to comply with reporting and data 
collection requirements. Much of the costs associated with the 
reporting requirements of this rule, however, may be absorbed by 
existing grants, as several of the reporting requirements are already 
required under State and local licensing standards and existing ORR 
policies and procedures.

IX. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires

[[Page 77789]]

that a covered agency prepare a budgetary impact statement before 
promulgating a rule that includes any federal mandate that may result 
in the expenditure by state, local, and tribal governments, in the 
aggregate, or by the private sector, of $141 million or more in any one 
year. The Department has determined that this rule would not impose a 
mandate that will result in the expenditure by state, local, and tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million in any one year.

X. Congressional Review

    This regulation is not a major rule as defined in 5 U.S.C. Chapter 
8.

XI. Assessment of Federal Regulation and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires federal agencies to determine whether a proposed 
policy or regulation may affect family well-being. If the agency's 
determination is affirmative, then the agency must prepare an impact 
assessment addressing criteria specified in the law. This regulation 
will not have an impact on family well-being as defined in this 
legislation, which asks agencies to assess policies with respect to 
whether the policy: strengthens or erodes family stability and the 
authority and rights of parents in the education, nurture, and 
supervision of their children; helps the family perform its functions; 
and increases or decreases disposable income.

XII. Executive Order 13132

    Executive Order 13132 on federalism requires that federal agencies 
consult with state and local government officials in the development of 
regulatory policies with federalism implications. This rule does not 
have federalism implications for state or local governments as defined 
in the Executive Order.

List of Subjects in 45 CFR Part 411

    Administrative practice and procedure, Child welfare, Immigration, 
Unaccompanied children, Reporting and recordkeeping requirements.

    Dated: December 16, 2014.
Eskinder Negash,
Director, Office of Refugee Resettlement.
    Dated: December 16, 2014.
Mark H. Greenberg,
Acting Assistant Secretary for Children and Families.
    Approved: December 17, 2014.
Sylvia M. Burwell,
Secretary.
    For the reasons discussed above, the Department of Health and Human 
Services adds part 411 to title 45 of the Code of Federal Regulations 
as follows:

PART 411--STANDARDS TO PREVENT, DETECT, AND RESPOND TO SEXUAL ABUSE 
AND SEXUAL HARASSMENT INVOLVING UNACCOMPANIED CHILDREN


411.5 General definitions.
411.6 Definitions related to sexual abuse and sexual harassment.
Subpart A--Coverage
411.10 Coverage of ORR care provider facilities.
Subpart B--Prevention Planning
411.11 Zero tolerance toward sexual abuse and sexual harassment; 
Prevention of Sexual Abuse Coordinator and Compliance Manager.
411.12 Contracting with or having a grant from ORR for the care of 
UCs.
411.13 UC supervision and monitoring.
411.14 Limits to cross-gender viewing and searches.
411.15 Accommodating UCs with disabilities and UCs who are limited 
English proficient (LEP).
411.16 Hiring and promotion decisions.
411.17 Upgrades to facilities and technologies.
Subpart C--Responsive Planning
411.21 Victim advocacy, access to counselors, and forensic medical 
examinations.
411.22 Policies to ensure investigation of allegations and 
appropriate agency oversight.
Subpart D--Training and Education
411.31 Care provider facility staff training.
411.32 Volunteer and contractor training.
411.33 UC education.
411.34 Specialized training: Medical and mental health care staff.
Subpart E--Assessment for Risk of Sexual Victimization and Abusiveness
411.41 Assessment for risk of sexual victimization and abusiveness.
411.42 Use of assessment information.
Subpart F--Reporting
411.51 UC reporting.
411.52 Grievances.
411.53 UC access to outside confidential support services.
411.54 Third-party reporting.
411.55 UC access to attorneys or other legal representatives and 
families.
Subpart G--Official Response Following a UC Report
411.61 Staff reporting duties.
411.62 Protection duties.
411.63 Reporting to other care provider facilities and DHS.
411.64 Responder duties.
411.65 Coordinated response.
411.66 Protection of UCs from contact with alleged abusers.
411.67 Protection against retaliation.
411.68 Post-allegation protection.
Subpart H--ORR Incident Monitoring and Evaluation
411.71 ORR monitoring and evaluation of care provider facilities 
following an allegation of sexual abuse or sexual harassment.
411.72 Reporting to UCs.
Subpart I--Interventions and Discipline
411.81 Disciplinary sanctions for staff.
411.82 Corrective actions for contractors and volunteers.
411.83 Interventions for UCs who engage in sexual abuse.
Subpart J--Medical and Mental Health Care
411.91 Medical and mental health assessments; history of sexual 
abuse.
411.92 Access to emergency medical and mental health services.
411.93 Ongoing medical and mental health care for sexual abuse and 
sexual harassment victims and abusers.
Subpart K--Data Collection and Review
411.101 Sexual abuse and sexual harassment incident reviews.
411.102 Data collection.
411.103 Data review for corrective action.
411.104 Data storage, publication, and destruction.
Subpart L--Audits and Corrective Action
411.111 Frequency and scope of audits.
411.112 Auditor qualifications.
411.113 Audit contents and findings.
411.114 Audit corrective action plan.
411.115 Audit appeals.

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


Sec.  411.5  General definitions.

    For the purposes of this part, the following definitions apply:
    ACF means the Administration for Children and Families.
    Care provider facility means any ORR funded program that is 
licensed, certified, or accredited by an appropriate State or local 
agency to provide residential or group services to UCs, including a 
program of group homes or facilities for children with special needs or 
staff-secure services for children. Emergency care provider facilities 
are included in this definition but may or may not be licensed, 
certified, or accredited by an appropriate State or local agency.

[[Page 77790]]

    Contractor means a person who, or entity that, provides services on 
a recurring basis pursuant to a contractual agreement with ORR or with 
a care provider facility or has a sub-contractual agreement with the 
contractor.
    DHS means the Department of Homeland Security.
    DOJ means the Department of Justice.
    Director means the Director of the Office of Refugee Resettlement.
    Emergency means a sudden, urgent, usually unexpected occurrence or 
occasion requiring immediate action.
    Emergency care provider facility is a type of care provider 
facility that is temporarily opened to provide temporary emergency 
shelter and services for UCs during an influx. Emergency care provider 
facilities may or may not be licensed by an appropriate State or local 
agency.
    Exigent circumstances means any set of temporary and unforeseen 
circumstances that require immediate action in order to combat a threat 
to the security of a care provider facility or a threat to the safety 
and security of any person.
    Gender refers to the attitudes, feelings, and behaviors that a 
given culture associates with a person's biological sex.
    Gender identity refers to one's sense of oneself as male, female, 
or transgender.
    Gender nonconforming means a person whose appearance or manner does 
not conform to traditional societal gender expectations.
    HHS means the Department of Health and Human Services.
    Intersex means a person whose sexual or reproductive anatomy or 
chromosomal pattern does not seem to fit typical definitions of male or 
female. Intersex medical conditions are sometimes referred to as 
disorders of sex development.
    LGBTQI means lesbian, gay, bisexual, transgender, questioning, or 
intersex.
    Law enforcement means any local, State, or Federal enforcement 
agency with the authority and jurisdiction to investigate whether any 
criminal laws were violated.
    Limited English proficient (LEP) means individuals for whom English 
is not the primary language and who may have a limited ability to read, 
write, speak, or understand English.
    Medical practitioner means a health professional who, by virtue of 
education, credentials, and experience, is permitted by law to evaluate 
and care for patients within the scope of his or her professional 
practice. A ``qualified medical practitioner'' refers to a professional 
who also has successfully completed specialized training for treating 
sexual abuse victims.
    Mental health practitioner means a mental health professional who, 
by virtue of education, credentials, and experience, is permitted by 
law to evaluate and care for patients within the scope of his or her 
professional practice. A ``qualified mental health practitioner'' 
refers to a professional who also has successfully completed 
specialized training for treating sexual abuse victims.
    ORR refers to the Office of Refugee Resettlement.
    Pat-down search means a sliding or patting of the hands over the 
clothed body of an unaccompanied child by staff to determine whether 
the individual possesses contraband.
    Secure care provider facility is a type of care provider facility 
with a physically secure structure and staff responsible for 
controlling violent behavior. ORR uses a secure care provider facility 
as the most restrictive placement option for a UC who poses a danger to 
him or herself or others or has been charged with having committed a 
criminal offense. A secure care provider facility is a juvenile 
detention center.
    Sex refers to a person's biological status and is typically 
categorized as male, female, or intersex. There are a number of 
indicators of biological sex, including sex chromosomes, gonads, 
internal reproductive organs, and external genitalia.
    Sexual Assault Forensic Examiner (SAFE) means a ``medical 
practitioner'' who has specialized forensic training in treating sexual 
assault victims and conducting forensic medical examinations.
    Sexual Assault Nurse Examiner (SANE) means a registered nurse who 
has specialized forensic training in treating sexual assault victims 
and conducting forensic medical examinations.
    Special needs means mental and/or physical conditions that require 
special services and treatment by staff. A UC may have special needs 
due to a disability as defined in section 3 of the Americans with 
Disabilities Act of 1990, 42 U.S.C. 12102(2).
    Staff means employees or contractors of ORR or a care provider 
facility, including any entity that operates within a care provider 
facility.
    Strip search means a search that requires a person to remove or 
arrange some or all clothing so as to permit a visual inspection of the 
person's breasts, buttocks, or genitalia.
    Substantiated allegation means an allegation that was investigated 
and determined to have occurred.
    Traditional foster care means a type of care provider facility 
where a UC is placed with a family in a community-based setting. The 
State or locally licensed foster family is responsible for providing 
basic needs in addition to responsibilities as outlined by the State or 
local licensed child placement agency, State and local licensing 
regulations, and any ORR policies related to foster care. The UC 
attends public school and receives on-going case management and 
counseling services. The care provider facility facilitates the 
provision of additional psychiatric, psychological, or counseling 
referrals as needed. Traditional foster care may include transitional 
or short-term foster care as well as long-term foster care providers.
    Transgender means a person whose gender identity (i.e., internal 
sense of feeling male or female) is different from the person's 
assigned sex at birth.
    Unaccompanied child (UC) means a child:
    (1) Who has no lawful immigration status in the United States;
    (2) Who has not attained 18 years of age; and
    (3) With respect to whom there is no parent or legal guardian in 
the United States or there is no parent or legal guardian in the United 
States available to provide care and physical custody.
    Unfounded allegation means an allegation that was investigated and 
determined not to have occurred.
    Unsubstantiated allegation means an allegation that was 
investigated and the investigation produced insufficient evidence to 
make a final determination as to whether or not the event occurred.
    Volunteer means an individual who donates time and effort on a 
recurring basis to enhance the activities and programs of ORR or the 
care provider facility.
    Youth care worker means employees primarily responsible for the 
supervision and monitoring of UCs in housing units, educational areas, 
recreational areas, dining areas, and other program areas of a care 
provider facility.


Sec.  411.6  Definitions related to sexual abuse and sexual harassment.

    For the purposes of this part, the following definitions apply:
    Sexual abuse means--
    (1) Sexual abuse of a UC by another UC; and
    (2) Sexual abuse of a UC by a staff member, grantee, contractor, or 
volunteer.
    Sexual abuse of a UC by another UC includes any of the following 
acts, if the victim does not consent, is coerced into

[[Page 77791]]

such act by overt or implied threats of violence, or is unable to 
consent or refuse:
    (1) Contact between the penis and the vulva or the penis and the 
anus, including penetration, however slight;
    (2) Contact between the mouth and the penis, vulva, or anus;
    (3) Penetration of the anal or genital opening of another person, 
however slight, by a hand, finger, object, or other instrument; and
    (4) Any other intentional touching, either directly or through the 
clothing, of the genitalia, anus, groin, breast, inner thigh, or the 
buttocks of another person, excluding contact incidental to a physical 
altercation.
    Sexual abuse of a UC by a staff member, grantee, contractor, or 
volunteer includes any of the following acts, with or without the 
consent of the UC:
    (1) Contact between the penis and the vulva or the penis and the 
anus, including penetration, however slight;
    (2) Contact between the mouth and the penis, vulva, or anus;
    (3) Contact between the mouth and any body part where the staff 
member, contractor, or volunteer has the intent to abuse, arouse, or 
gratify sexual desire;
    (4) Penetration of the anal or genital opening, however slight, by 
a hand, finger, object, or other instrument, that is unrelated to 
official duties or where the staff member, grantee, contractor, or 
volunteer has the intent to abuse, arouse, or gratify sexual desire;
    (5) Any other intentional contact, either directly or through the 
clothing, of or with the genitalia, anus, groin, breast, inner thigh, 
or the buttocks, that is unrelated to official duties or where the 
staff member, grantee, contractor, or volunteer has the intent to 
abuse, arouse, or gratify sexual desire;
    (6) Any attempt, threat, or request by a staff member, grantee, 
contractor, or volunteer to engage in the activities described in 
paragraphs (1) through (5) of this definition;
    (7) Any display by a staff member, grantee, contractor, or 
volunteer of his or her uncovered genitalia, buttocks, or breast in the 
presence of a UC; and
    (8) Voyeurism by a staff member, grantee, contactor, or volunteer.
    Sexual harassment includes--
    (1) Repeated and unwelcome sexual advances, requests for sexual 
favors, or verbal comments, gestures, phone calls, emails, texts, 
social media messages, pictures sent or shown, other electronic 
communication, or actions of a derogatory or offensive sexual nature by 
one UC towards another; and
    (2) Repeated verbal comments, gestures, phone calls, emails, texts, 
social media messages, pictures sent or shown, or other electronic 
communication of a sexual nature to a UC by a staff member, grantee, 
contractor, or volunteer, including demeaning references to gender, 
sexually suggestive or derogatory comments about body or clothing, or 
obscene language or gestures.
    Voyeurism by a staff member, grantee, contractor, or volunteer 
means an invasion of privacy of a UC by a staff member, grantee, 
contractor, or volunteer for reasons unrelated to official duties, such 
as inappropriately viewing a UC perform bodily functions or bathing; 
requiring a UC to expose his or her buttocks, genitals, or breasts; or 
recording images of all or part of a UC's naked body or of a UC 
performing bodily functions.

Subpart A--Coverage


Sec.  411.10  Coverage of ORR care provider facilities.

    (a) This part applies to all ORR care provider facilities except 
secure care provider facilities and traditional foster care homes. 
Secure care provider facilities must, instead, follow the Department of 
Justice's National Standards to Prevent, Detect, and Respond to Prison 
Rape, 28 CFR part 115. Traditional foster care homes are not subject to 
this part.
    (b) Emergency care provider facilities are subject to every section 
in this part except:
    (1) Section 411.22(c);
    (2) Section 411.71(b)(4);
    (3) Section 411.101(b);
    (4) Section 411.102(c), (d), and (e); and
    (5) Subpart L.
    (c) Emergency care provider facilities must implement the standards 
in this rule, excluding the standards listed above, within fifteen (15) 
days of opening. The Director, however, may, using unreviewable 
discretion, waive or modify specific sections for a particular 
emergency care provider facility for good cause. Good cause would only 
be found in cases where the temporary nature of the emergency care 
provider facility makes compliance with the provision impracticable or 
impossible, and the Director determines that the emergency care 
provider facility could not, without substantial difficulty, meet the 
provision in the absence of the waiver or modification.
    (d) For the purposes of this part, the terms related to sexual 
abuse and sexual harassment refer specifically to the sexual abuse or 
sexual harassment of a UC that occurs at an ORR care provider facility 
while in ORR care and custody. Incidents of past sexual abuse or sexual 
harassment or sexual abuse or sexual harassment that occurs in any 
other context other than in ORR care and custody are not within the 
scope of this regulation.

Subpart B--Prevention Planning


Sec.  411.11  Zero tolerance toward sexual abuse and sexual harassment; 
Prevention of Sexual Abuse Coordinator and Compliance Manager.

    (a) ORR must have a written policy mandating zero tolerance toward 
all forms of sexual abuse and sexual harassment and outlining ORR's 
approach to preventing, detecting, and responding to such conduct. ORR 
must ensure that all policies and services related to this rule are 
implemented in a culturally-sensitive and knowledgeable manner that is 
tailored for a diverse population.
    (b) ORR must employ or designate an upper-level, ORR-wide 
Prevention of Sexual Abuse Coordinator (PSA Coordinator) with 
sufficient time and authority to develop, implement, and oversee ORR 
efforts to comply with these standards in all of its care provider 
facilities.
    (c) Care provider facilities must have a written policy mandating 
zero tolerance toward all forms of sexual abuse and sexual harassment 
and outlining the care provider facility's approach to preventing, 
detecting, and responding to such conduct. The care provider facility 
also must ensure that all policies and services related to this rule 
are implemented in a culturally-sensitive and knowledgeable manner that 
is tailored for a diverse population. ORR will review and approve each 
care provider facility's written policy.
    (d) Care provider facilities must employ or designate a Prevention 
of Sexual Abuse Compliance Manager (PSA Compliance Manager) with 
sufficient time and authority to develop, implement, and oversee the 
care provider facility's efforts to comply with the provisions set 
forth in this part and serve as a point of contact for ORR's PSA 
Coordinator.


Sec.  411.12  Contracting with or having a grant from ORR for the care 
of UCs.

    (a) When contracting with or providing a grant to a care provider 
facility, ORR must include in any new contracts, contract renewals, 
cooperative agreements, or cooperative agreement renewals the entity's 
obligation to adopt and comply with these standards.
    (b) For organizations that contract, grant, or have a sub-grant 
with a care provider facility to provide residential

[[Page 77792]]

services to UCs, the organization must, as part of the contract or 
cooperative agreement, adopt and comply with the provisions set forth 
in this part.
    (c) All new contracts, contract renewals, and grants must include 
provisions for monitoring and evaluation to ensure that the contractor, 
grantee, or sub-grantee is complying with these provisions.


Sec.  411.13  UC supervision and monitoring.

    (a) Care provider facilities must develop, document, and make their 
best effort to comply with a staffing plan that provides for adequate 
levels of staffing, and, where applicable under State and local 
licensing standards, video monitoring, to protect UCs from sexual abuse 
and sexual harassment.
    (b) In determining adequate levels of UC supervision and 
determining the need for video monitoring, the care provider facility 
must take into consideration the physical layout of the facility, the 
composition of the UC population, the prevalence of substantiated and 
unsubstantiated incidents of sexual abuse and sexual harassment, and 
any other relevant factors. Video monitoring equipment may not be 
placed in any bathroom, shower or bathing area, or other area where UCs 
routinely undress.
    (c) Care provider facilities must conduct frequent unannounced 
rounds to identify and deter sexual abuse and sexual harassment. Such 
rounds must be implemented during night as well as day shifts. Care 
provider facilities must prohibit staff from alerting others that 
rounds are occurring, unless such announcement is related to the 
legitimate operational functions of the care provider facility.


Sec.  411.14  Limits to cross-gender viewing and searches.

    (a) Cross-gender pat-down searches of UCs must not be conducted 
except in exigent circumstances. For a UC that identifies as 
transgender or intersex, the ORR care provider facility must ask the UC 
to identify the gender of staff with whom he/she would feel most 
comfortable conducting the search.
    (b) All pat-down searches must be conducted in the presence of one 
additional care provider facility staff member unless there are exigent 
circumstances and must be documented and reported to ORR.
    (c) Strip searches and visual body cavity searches of UCs are 
prohibited.
    (d) Care provider facilities must permit UCs to shower, perform 
bodily functions, and change clothing without being viewed by staff, 
except: In exigent circumstances; when such viewing is incidental to 
routine room checks; is otherwise appropriate in connection with a 
medical examination or monitored bowel movement; if a UC is under age 6 
and needs assistance with such activities; a UC with special needs is 
in need of assistance with such activities; or the UC requests and 
requires assistance. If the UC has special needs and requires 
assistance with such activities, the care provider facility staff 
member must be of the same gender as the UC when assisting with such 
activities.
    (e) Care provider facilities must not search or physically examine 
a UC for the sole purpose of determining the UC's sex. If the UC's sex 
is unknown, it may be determined during conversations with the UC, by 
reviewing medical records, or, if necessary, learning that information 
as part of a broader medical examination conducted in private by a 
medical practitioner.
    (f) Care provider facilities must train youth care worker staff in 
proper procedures for conducting pat-down searches, including cross-
gender pat-down searches and searches of transgender and intersex UCs. 
All pat-down searches must be conducted in a professional and 
respectful manner, and in the least intrusive manner possible, 
consistent with security needs and existing ORR policy, including 
consideration of youth care worker staff safety.


Sec.  411.15  Accommodating UCs with disabilities and UCs who are 
limited English proficient (LEP).

    (a) Care provider facilities must take appropriate steps to ensure 
that UCs with disabilities (including, for example, UCs who are deaf or 
hard of hearing, those who are blind or have low vision, or those who 
have intellectual, psychiatric, or speech disabilities) have an equal 
opportunity to participate in or benefit from all aspects of the care 
provider facility's efforts to prevent, detect, and respond to sexual 
abuse and sexual harassment. Such steps must include, when necessary to 
ensure effective communication with UCs who are deaf or hard of 
hearing, providing access to in-person, telephonic, or video 
interpretive services that enable effective, accurate, and impartial 
interpretation, both receptively and expressively, using any necessary 
specialized vocabulary. In addition, the care provider facility must 
ensure that any written materials related to sexual abuse and sexual 
harassment are translated and provided in formats or through methods 
that ensure effective communication with UCs with disabilities, 
including UCs who have intellectual disabilities, limited reading 
skills, or who are blind or have low vision.
    (b) Care provider facilities must take appropriate steps to ensure 
that UCs who are limited English proficient have an equal opportunity 
to participate in or benefit from all aspects of the care provider 
facility's efforts to prevent, detect, and respond to sexual abuse and 
sexual harassment, including steps to provide quality in-person or 
telephonic interpretive services and quality translation services that 
enable effective, accurate, and impartial interpretation and 
translation, both receptively and expressively, using any necessary 
specialized vocabulary.
    (c) In matters relating to allegations of sexual abuse or sexual 
harassment, the care provider facility must provide quality in-person 
or telephonic interpretation services that enable effective, accurate, 
and impartial interpretation by someone other than another UC. Care 
provider facilities also must ensure that any written materials related 
to sexual abuse and sexual harassment, including notification, 
orientation, and instruction not provided by ORR, are translated either 
verbally or in written form into the preferred languages of UCs.


Sec.  411.16  Hiring and promotion decisions.

    (a) Care provider facilities are prohibited from hiring or 
promoting any individual who may have contact with UCs and must not 
enlist the services of any contractor or volunteer who may have contact 
with UCs and who engaged in: Sexual abuse in a prison, jail, holding 
facility, community confinement facility, juvenile facility, other 
institution (as defined in 42 U.S.C. 1997), or care provider facility; 
who was convicted of engaging or attempting to engage in sexual 
activity facilitated by force, overt or implied threats of force, or 
coercion, or if the victim did not consent or was unable to consent or 
refuse; or who was civilly or administratively adjudicated to have 
engaged in such activity.
    (b) Care provider facilities considering hiring or promoting staff 
must ask all applicants who may have direct contact with UCs about 
previous misconduct described in paragraph (a) of this section in 
written applications or interviews for hiring or promotions and in any 
interviews or written self-evaluations conducted as part of performance 
evaluations of current employees. Care provider facilities also must 
impose upon employees a continuing affirmative duty to disclose any 
such misconduct, whether the

[[Page 77793]]

conduct occurs on or off duty. Care provider facilities, consistent 
with law, must make their best efforts to contact all prior 
institutional employers of an applicant for employment to obtain 
information on substantiated allegations of sexual abuse or sexual 
harassment or any resignation during a pending investigation of alleged 
sexual abuse or sexual harassment.
    (c) Prior to hiring new staff who may have contact with UCs, the 
care provider facility must conduct a background investigation to 
determine whether the candidate for hire is suitable for employment 
with minors in a residential setting. Upon ORR request, the care 
provider facility must submit all background investigation 
documentation for each staff member and the care provider facility's 
conclusions.
    (d) Care provider facilities also must perform a background 
investigation before enlisting the services of any contractor or 
volunteer who may have contact with UCs. Upon ORR request, the care 
provider facility must submit all background investigation 
documentation for each contractor or volunteer and the care provider 
facility's conclusions.
    (e) Care provider facilities must either conduct a criminal 
background records check at least every five years for current 
employees, contractors, and volunteers who may have contact with UCs or 
have in place a system for capturing the information contained in a 
criminal background records check for current employees.
    (f) Material omissions regarding such misconduct or the provision 
of materially false information by the applicant or staff will be 
grounds for termination or withdrawal of an offer of employment, as 
appropriate.
    (g) Unless prohibited by law, the care provider facility must 
provide information on substantiated allegations of sexual abuse or 
sexual harassment involving a former employee upon receiving a request 
from another care provider facility or institutional employer for whom 
such employee has applied to work.
    (h) In the event the care provider facility contracts with an 
organization to provide residential services and/or other services to 
UCs, the requirements of this section also apply to the organization 
and its staff.


Sec.  411.17  Upgrades to facilities and technologies.

    (a) When designing or acquiring any new facility and in planning 
any substantial expansion or modification of existing facilities, the 
care provider facility, as appropriate, must consider the effect of the 
design, acquisition, expansion, or modification upon their ability to 
protect UCs from sexual abuse and sexual harassment.
    (b) When installing or updating a video monitoring system, 
electronic surveillance system, or other monitoring technology in a 
care provider facility, the care provider facility, as appropriate, 
must consider how such technology may enhance its ability to protect 
UCs from sexual abuse and sexual harassment while maintaining UC 
privacy and dignity.

Subpart C--Responsive Planning


Sec.  411.21  Victim advocacy, access to counselors, and forensic 
medical examinations.

    (a) Care provider facilities must develop procedures to best 
utilize available community resources and services to provide valuable 
expertise and support in the areas of crisis intervention and 
counseling to most appropriately address victims' needs. Each care 
provider facility must establish procedures to make available outside 
victim services following incidents of sexual abuse and sexual 
harassment; the care provider facility must attempt to make available 
to the victim a victim advocate from a rape crisis center. If a rape 
crisis center is not available or if the UC prefers, the care provider 
facility may provide a licensed clinician on staff to provide crisis 
intervention and trauma services for the UC. The outside or internal 
victim advocate must provide emotional support, crisis intervention, 
information, and referrals.
    (b) Where evidentiarily or medically appropriate, and only with the 
UC's consent, the care provider facility must arrange for an alleged 
victim UC to undergo a forensic medical examination as soon as possible 
and that is performed by Sexual Assault Forensic Examiners (SAFEs) or 
Sexual Assault Nurse Examiners (SANEs) where possible. If SAFEs or 
SANEs cannot be made available, the examination may be performed by a 
qualified medical practitioner.
    (c) As requested by a victim, the presence of his or her outside or 
internal victim advocate, including any available victim advocacy 
services offered at a hospital conducting a forensic examination, must 
be allowed to the extent possible for support during a forensic 
examination and investigatory interviews.
    (d) To the extent possible, care provider facilities must request 
that the investigating agency follow the requirements of paragraphs (a) 
through (c) of this section.


Sec.  411.22  Policies to ensure investigation of allegations and 
appropriate agency oversight.

    (a) ORR and care provider facilities must ensure that each 
allegation of sexual abuse and sexual harassment, including a third-
party or anonymous allegation, is immediately referred to all 
appropriate investigating authorities, including Child Protective 
Services, the State or local licensing agency, and law enforcement. 
Care provider facilities also must immediately report each allegation 
of sexual abuse and sexual harassment to ORR according to ORR policies 
and procedures. The care provider facility has an affirmative duty to 
keep abreast of the investigation(s) and cooperate with outside 
investigators. ORR also must remain informed of ongoing investigations 
and fully cooperate as necessary.
    (b) Care provider facilities must maintain or attempt to enter into 
a written memorandum of understanding or other agreement specific to 
investigations of sexual abuse and sexual harassment with the law 
enforcement agency, designated State or local Child Protective 
Services, and/or the State or local licensing agencies responsible for 
conducting sexual abuse and sexual harassment investigations, as 
appropriate. Care provider facilities must maintain a copy of the 
agreement or documentation showing attempts to enter into an agreement.
    (c) Care provider facilities must maintain documentation for at 
least ten years of all reports and referrals of allegations of sexual 
abuse and sexual harassment.
    (d) ORR will refer an allegation of sexual abuse to the Department 
of Justice or other investigating authority for further investigation 
where such reporting is in accordance with its policies and procedures 
and any memoranda of understanding.
    (e) All allegations of sexual abuse that occur at emergency care 
provider facilities operating on fully Federal properties must be 
reported to the Department of Justice in accordance with ORR policies 
and procedures and any memoranda of understanding.

Subpart D--Training and Education


Sec.  411.31  Care provider facility staff training.

    (a) Care provider facilities must train or require the training of 
all employees who may have contact with UCs to be able to fulfill their 
responsibilities under these standards, including training on:

[[Page 77794]]

    (1) ORR and the care provider facility's zero tolerance policies 
for all forms of sexual abuse and sexual harassment;
    (2) The right of UCs and staff to be free from sexual abuse and 
sexual harassment and from retaliation for reporting sexual abuse and 
sexual harassment;
    (3) Definitions and examples of prohibited and illegal sexual 
behavior;
    (4) Recognition of situations where sexual abuse or sexual 
harassment may occur;
    (5) Recognition of physical, behavioral, and emotional signs of 
sexual abuse and methods of preventing and responding to such 
occurrences;
    (6) How to avoid inappropriate relationships with UCs;
    (7) How to communicate effectively and professionally with UCs, 
including UCs who are lesbian, gay, bisexual, transgender, questioning, 
or intersex;
    (8) Procedures for reporting knowledge or suspicion of sexual abuse 
and sexual harassment as well as how to comply with relevant laws 
related to mandatory reporting;
    (9) The requirement to limit reporting of sexual abuse and sexual 
harassment to personnel with a need-to-know in order to make decisions 
concerning the victim's welfare and for law enforcement, investigative, 
or prosecutorial purposes;
    (10) Cultural sensitivity toward diverse understandings of 
acceptable and unacceptable sexual behavior and appropriate terms and 
concepts to use when discussing sex, sexual abuse, and sexual 
harassment with a culturally diverse population;
    (11) Sensitivity and awareness regarding past trauma that may have 
been experienced by UCs;
    (12) Knowledge of all existing resources for UCs both inside and 
outside the care provider facility that provide treatment and 
counseling for trauma and legal advocacy for victims; and
    (13) General cultural competency and sensitivity to the culture and 
age of UC.
    (b) All current care provider facility staff and employees who may 
have contact with UCs must be trained within six months of the 
effective date of these standards, and care provider facilities must 
provide refresher information, as appropriate.
    (c) Care provider facilities must document that staff and employees 
who may have contact with UCs have completed the training.


Sec.  411.32  Volunteer and contractor training.

    (a) Care provider facilities must ensure that all volunteers and 
contractors who may have contact with UCs are trained on their 
responsibilities under ORR and the care provider facility's sexual 
abuse and sexual harassment prevention, detection, and response 
policies and procedures as well as any relevant Federal, State, and 
local laws.
    (b) The level and type of training provided to volunteers and 
contractors may be based on the services they provide and the level of 
contact they will have with UCs, but all volunteers and contractors who 
have contact with UCs must be trained on the care provider facility's 
zero tolerance policies and procedures regarding sexual abuse and 
sexual harassment and informed how to report such incidents.
    (c) Each care provider facility must maintain written documentation 
that contractors and volunteers who may have contact with UCs have 
completed the required trainings.


Sec.  411.33  UC education.

    (a) During the intake process and periodically thereafter, each 
care provider facility must ensure that during orientation or a 
periodic refresher session, UCs are notified and informed of the care 
provider facility's zero tolerance policies for all forms of sexual 
abuse and sexual harassment in an age and culturally appropriate 
fashion and in accordance with Sec.  411.15 that includes, at a 
minimum:
    (1) An explanation of the UC's right to be free from sexual abuse 
and sexual harassment as well as the UC's right to be free from 
retaliation for reporting such incidents;
    (2) Definitions and examples of UC-on-UC sexual abuse, staff-on-UC 
sexual abuse, coercive sexual activity, appropriate and inappropriate 
relationships, and sexual harassment;
    (3) An explanation of the methods for reporting sexual abuse and 
sexual harassment, including to any staff member, outside entity, and 
to ORR;
    (4) An explanation of a UC's right to receive treatment and 
counseling if the UC was subjected to sexual abuse or sexual 
harassment;
    (b) Care provider facilities must provide the UC notification, 
orientation, and instruction in formats accessible to all UCs at a time 
and in a manner that is separate from information provided about their 
immigration cases.
    (c) Care provider facilities must document all UC participation in 
orientation and periodic refresher sessions that address the care 
provider facility's zero tolerance policies.
    (d) Care provider facilities must post on all housing unit bulletin 
boards who a UC can contact if he or she is a victim or is believed to 
be at imminent risk of sexual abuse or sexual harassment in accordance 
with Sec.  411.15.
    (e) Care provider facilities must make available and distribute a 
pamphlet in accordance with Sec.  411.15 that contains, at a minimum, 
the following:
    (1) Notice of the care provider facility's zero-tolerance policy 
toward sexual abuse and sexual harassment;
    (2) The care provider facility's policies and procedures related to 
sexual abuse and sexual harassment;
    (3) Information on how to report an incident of sexual abuse or 
sexual harassment;
    (4) The UC's rights and responsibilities related to sexual abuse 
and sexual harassment;
    (5) How to contact organizations in the community that provide 
sexual abuse counseling and legal advocacy for UC victims of sexual 
abuse and sexual harassment;
    (6) How to contact diplomatic or consular personnel.


Sec.  411.34  Specialized training: Medical and mental health care 
staff.

    (a) All medical and mental health care staff employed or contracted 
by care provider facilities must be specially trained, at a minimum, on 
the following:
    (1) How to detect and assess signs of sexual abuse and sexual 
harassment;
    (2) How to respond effectively and professionally to victims of 
sexual abuse and sexual harassment;
    (3) How and to whom to report allegations or suspicions of sexual 
abuse and sexual harassment; and
    (4) How to preserve physical evidence of sexual abuse. If medical 
staff conduct forensic examinations, such medical staff must receive 
training to conduct such examinations.
    (b) Care provider facilities must document that medical and mental 
health practitioners employed or contracted by the care provider 
facility received the training referenced in this section.
    (c) Medical and mental health practitioners employed or contracted 
by the care provider facility also must receive the training mandated 
for employees under Sec.  411.31 or for contractors and volunteers 
under Sec.  411.32, depending on the practitioner's status at the care 
provider facility.

Subpart E--Assessment for Risk of Sexual Victimization and 
Abusiveness


Sec.  411.41  Assessment for risk of sexual victimization and 
abusiveness.

    (a) Within 72 hours of a UC's arrival at a care provider facility 
and

[[Page 77795]]

periodically throughout a UC's stay, the care provider facility must 
obtain and use information about each UC's personal history and 
behavior using a standardized screening instrument to reduce the risk 
of sexual abuse or sexual harassment by or upon a UC.
    (b) The care provider facility must consider, at a minimum and to 
the extent that the information is available, the following criteria to 
assess UCs for risk of sexual victimization:
    (1) Prior sexual victimization or abusiveness;
    (2) Any gender nonconforming appearance or manner or Self-
identification as lesbian, gay, bisexual, transgender, questioning, or 
intersex and whether the resident may therefore be vulnerable to sexual 
abuse or sexual harassment;
    (3) Any current charges and offense history;
    (4) Age;
    (5) Any mental, physical, or developmental disability or illness;
    (6) Level of emotional and cognitive development;
    (7) Physical size and stature;
    (8) The UC's own perception of vulnerability; and
    (9) Any other specific information about an individual UC that may 
indicate heightened needs for supervision, additional safety 
precautions, or separation from certain other UCs.
    (c) This information must be ascertained through conversations with 
the UC during the intake process and medical and mental health 
screenings; during classification assessments; and by reviewing court 
records, case files, care provider facility behavioral records, and 
other relevant documentation from the UC's files. Only trained staff 
are permitted to talk with UCs to gather information about their sexual 
orientation or gender identity, prior sexual victimization, history of 
engaging in sexual abuse, mental health status, and mental disabilities 
for the purposes of the assessment required under paragraph (a) of this 
section. Care provider facilities must provide UCs an opportunity to 
discuss any safety concerns or sensitive issues privately.
    (d) The care provider facility must implement appropriate controls 
on the dissemination within the care provider facility of responses to 
questions asked pursuant to this standard in order to ensure that 
sensitive information is not exploited to the UC's detriment by staff 
or other UCs.


Sec.  411.42  Use of assessment information.

    (a) The care provider facility must use the information from the 
risk assessment under Sec.  411.41 to inform assignment of UCs to 
housing, education, recreation, and other activities and services. The 
care provider facility must make individualized determinations about 
how to ensure the safety and health of each UC.
    (b) Care provider facilities may not place UCs on one-on-one 
supervision as a result of the assessment completed in Sec.  411.41 
unless there are exigent circumstances that require one-on-one 
supervision to keep the UC, other UCs, or staff safe, and then, only 
until an alternative means of keeping all residents and staff safe can 
be arranged. During any period of one-on-one supervision, a UC may not 
be denied any required services, including but not limited to daily 
large-muscle exercise, required educational programming, and social 
services, as reasonable under the circumstances. UCs on one-on-one 
supervision must receive daily visits from a medical practitioner or 
mental health care clinician as necessary unless the medical 
practitioner or mental health care clinician determines daily visits 
are not required. The medical practitioner or mental health care 
clinician, however, must continue to meet with the UC on a regular 
basis while the UC is on one-on-one supervision.
    (c) When making assessment and housing assignments for a 
transgender or intersex UCs, the care provider facility must consider 
the UC's gender self-identification and an assessment of the effects of 
a housing assignment on the UC's health and safety. The care provider 
facility must consult a medical or mental health professional as soon 
as practicable on this assessment. The care provider facility must not 
base housing assignment decisions of transgender or intersex UCs solely 
on the identity documents or physical anatomy of the UC; a UC's self-
identification of his/her gender and self-assessment of safety needs 
must always be taken into consideration as well. An identity document 
may include but is not limited to official U.S. and foreign government 
documentation, birth certificates, and other official documentation 
stating the UC's sex. The care provider facility's housing assignment 
of a transgender or intersex UCs must be consistent with the safety and 
security considerations of the care provider facility, State and local 
licensing standards, and housing and programming assignments of each 
transgender or intersex UCs must be regularly reassessed to review any 
threats to safety experienced by the UC.

Subpart F--Reporting


Sec.  411.51  UC reporting.

    (a) The care provider facility must develop policies and procedures 
in accordance with Sec.  411.15 to ensure that UCs have multiple ways 
to report to the care provider: Sexual abuse and sexual harassment, 
retaliation for reporting sexual abuse or sexual harassment, and staff 
neglect or violations of responsibilities that may have contributed to 
such incidents. The care provider facility also must provide access to 
and instructions on how UCs may contact their consular official, ORR's 
headquarters, and an outside entity to report these incidents. Care 
provider facilities must provide UCs access to telephones with free, 
preprogrammed numbers for ORR headquarters and the outside entity 
designated under Sec.  411.51(b).
    (b) The care provider facility must provide and inform the UC of at 
least one way for UCs to report sexual abuse and sexual harassment to 
an entity or office that is not part of the care provider facility and 
is able to receive and immediately forward UC reports of sexual abuse 
and sexual harassment to ORR officials, allowing UCs to remain 
anonymous upon request. The care provider facility must maintain or 
attempt to enter into a memorandum of understanding or other agreement 
with the entity or office and maintain copies of agreements or 
documentation showing attempts to enter into agreements.
    (c) The care provider facility's policies and procedures must 
include provisions for staff to accept reports made verbally, in 
writing, anonymously, and from third parties. Staff must promptly 
document any verbal reports.
    (d) All allegations or knowledge of sexual abuse and sexual 
harassment by staff or UCs must be immediately reported to the State or 
local licensing agency, the State or local Child Protective Services 
agency, State or local law enforcement, and to ORR according to ORR's 
policies and procedures.


Sec.  411.52  Grievances.

    (a) The care provider facility must implement written policies and 
procedures for identifying and handling time-sensitive grievances that 
involve an immediate threat to UC health, safety, or welfare related to 
sexual abuse and sexual harassment. All such grievances must be 
reported to ORR according to ORR policies and procedures.
    (b) The care provider facility's staff must bring medical 
emergencies to the

[[Page 77796]]

immediate attention of proper medical and/or emergency services 
personnel for further assessment.
    (c) The care provider facility must issue a written decision on the 
grievance within five days of receipt.
    (d) To prepare a grievance, a UC may obtain assistance from another 
UC, care provider facility staff, family members, or legal 
representatives. Care provider facility staff must take reasonable 
steps to expedite requests for assistance from these other parties.


Sec.  411.53  UC access to outside confidential support services.

    (a) Care provider facilities must utilize available community 
resources and services to provide valuable expertise and support in the 
areas of crisis intervention, counseling, investigation, and the 
prosecution of sexual abuse perpetrators to most appropriately address 
a sexual abuse victim's needs. The care provider facility must maintain 
or attempt to enter into memoranda of understanding or other agreements 
with community service providers, or if local providers are not 
available, with national organizations that provide legal advocacy and 
confidential emotional support services for immigrant victims of crime. 
The care provider facility must maintain copies of its agreements or 
documentation showing attempts to enter into such agreements.
    (b) Care provider facilities must have written policies and 
procedures to include outside agencies in the care provider facility's 
sexual abuse and sexual harassment prevention and intervention 
protocols, if such resources are available.
    (c) Care provider facilities must make available to UC information 
about local organizations that can assist UCs who are victims of sexual 
abuse and sexual harassment, including mailing addresses and telephone 
numbers (including toll-free hotline numbers where available). If no 
such local organizations exist, the care provider facility must make 
available the same information about national organizations. The care 
provider facility must enable reasonable communication between UCs and 
these organizations and agencies in a confidential manner and inform 
UCs, prior to giving them access, of the extent to which such 
communications will be confidential.


Sec.  411.54  Third-party reporting.

    ORR must establish a method to receive third-party reports of 
sexual abuse and sexual harassment and must make available to the 
public information on how to report sexual abuse and sexual harassment 
on behalf of a UC.


Sec.  411.55  UC access to attorneys or other legal representatives and 
families.

    (a) Care provider facilities must provide UCs confidential access 
to their attorney or other legal representative in accordance with the 
care provider's attorney-client visitation rules. The care provider's 
visitation rules must include provisions for immediate access in the 
case of an emergency or exigent circumstance. The care provider's 
attorney-client visitation rules must be approved by ORR to ensure the 
rules are reasonable and appropriate and include provisions for 
emergencies and exigent circumstances.
    (b) Care provider facilities must provide UCs access to their 
families, including legal guardians, unless ORR has documentation 
showing that certain family members or legal guardians should not be 
provided access because of safety concerns.

Subpart G--Official Response Following a UC Report


Sec.  411.61  Staff reporting duties.

    (a) All care provider facility staff, volunteers, and contractors 
must immediately report to ORR according to ORR policies and procedures 
and to State or local agencies in accordance with mandatory reporting 
laws: any knowledge, suspicion, or information regarding an incident of 
sexual abuse or sexual harassment that occurred while a UC was in ORR 
care; retaliation against UCs or staff who reported such an incident; 
and any staff neglect or violation of responsibilities that may have 
contributed to an incident or retaliation. ORR must review and approve 
the care provider facility's policies and procedures and ensure that 
the care provider facility specifies appropriate reporting procedures.
    (b) Care provider facility staff members who become aware of 
alleged sexual abuse or sexual harassment must immediately follow 
reporting requirements set forth by ORR's and the care provider 
facility's policies and procedures.
    (c) Apart from such reporting, care provider facility staff must 
not reveal any information related to a sexual abuse or sexual 
harassment report to anyone within the care provider facility except to 
the extent necessary for medical or mental health treatment, 
investigations, notice to law enforcement, or other security and 
management decisions.
    (d) Care provider facility staff must report any sexual abuse and 
sexual harassment allegations to the designated State or local services 
agency under applicable mandatory reporting laws in addition to law 
enforcement and the State and local licensing agency.
    (e) Upon receiving an allegation of sexual abuse or sexual 
harassment that occurred while a UC was in ORR care, the care provider 
facility head or his or her designee must report the allegation to the 
alleged victim's parents or legal guardians, unless ORR has evidence 
showing the parents or legal guardians should not be notified or the 
victim does not consent to this disclosure of information and is 14 
years of age or older and ORR has determined the victim is able to make 
an independent decision.
    (f) Upon receiving an allegation of sexual abuse or sexual 
harassment that occurred while a UC was in ORR care, ORR will share 
this information with the UC's attorney of record within 48 hours of 
learning of the allegation unless the UC does not consent to this 
disclosure of information and is 14 years of age or older and ORR has 
determined the victim is able to make an independent decision.


Sec.  411.62  Protection duties.

    If a care provider facility employee, volunteer, or contractor 
reasonably believes that a UC is subject to substantial risk of 
imminent sexual abuse or sexual harassment, he or she must take 
immediate action to protect the UC.


Sec.  411.63  Reporting to other care provider facilities and DHS.

    (a) Upon receiving an allegation that a UC was sexually abused or 
sexually harassed while at another care provider facility, the care 
provider facility whose staff received the allegation must immediately 
notify ORR, but no later than 24 hours after receiving the allegation. 
ORR will then notify the care provider facility where the alleged abuse 
or harassment occurred.
    (b) The care provider facility must document that it provided such 
notification to ORR.
    (c) The care provider facility that receives such notification, to 
the extent that such care provider facility is covered by this part, 
must ensure that the allegation is referred for investigation in 
accordance with these standards.
    (d) Upon receiving an allegation that a UC was sexually abused or 
sexually harassed while in DHS custody, the care provider facility 
whose staff received the allegation must immediately notify ORR, but no 
later than 24 hours after receiving an allegation. ORR will then

[[Page 77797]]

report the allegation to DHS in accordance with DHS policies and 
procedures.
    (e) The care provider facility must document that it provided such 
notification to ORR.


Sec.  411.64  Responder duties.

    (a) Upon learning of an allegation that a UC was sexually abused 
while in an ORR care provider facility, the first care provider 
facility staff member to respond to the report must be required to:
    (1) Separate the alleged victim, abuser, and any witnesses;
    (2) Preserve and protect, to the greatest extent possible, any 
crime scene until the appropriate authorities can take steps to collect 
any evidence;
    (3) If the abuse occurred within a time period that still allows 
for the collection of physical evidence, request that the alleged 
victim not take any actions that could destroy physical evidence, 
including, as appropriate, washing, brush teeth, changing clothes, 
urinating, defecating, smoking, drinking, or eating; and
    (4) If the abuse occurred within a time period that still allows 
for the collection of physical evidence, request that the alleged 
abuser(s) and/or witnesses, as necessary, do not take any actions that 
could destroy physical evidence, including, as appropriate, washing, 
brushing teeth, changing clothes, urinating, defecating, smoking, 
drinking, or eating.


Sec.  411.65  Coordinated response.

    (a) Care provider facilities must develop a written institutional 
plan to coordinate actions taken by staff first responders, medical and 
mental health practitioners, outside investigators, victim advocates, 
and care provider facility leadership in response to an incident of 
sexual abuse to ensure that victims receive all necessary immediate and 
ongoing medical, mental health, and support services and that 
investigators are able to obtain usable evidence. ORR must approve the 
written institutional plan.
    (b) Care provider facilities must use a coordinated, 
multidisciplinary team approach to responding to sexual abuse.
    (c) If a victim of sexual abuse is transferred between ORR care 
provider facilities, ORR must, as permitted by law, inform the 
receiving care provider facility of the incident and the victim's 
potential need for medical or social services.
    (d) If a victim of sexual abuse is transferred from an ORR care 
provider facility to a non-ORR facility or sponsor, ORR must, as 
permitted by law, inform the receiving facility or sponsor of the 
incident and the victim's potential need for medical or social 
services, unless the victim requests otherwise.


Sec.  411.66  Protection of UCs from contact with alleged abusers.

    ORR and care provider facility staff, contractors, and volunteers 
suspected of perpetrating sexual abuse or sexual harassment must be 
suspended from all duties that would involve or allow access to UCs 
pending the outcome of an investigation.


Sec.  411.67  Protection against retaliation.

    Care provider facility staff, contractors, volunteers, and UCs must 
not retaliate against any person who reports, complains about, or 
participates in an investigation of alleged sexual abuse or sexual 
harassment. For the remainder of the UC's stay in ORR custody following 
a report of sexual abuse or sexual harassment, ORR and the care 
provider facility must monitor to see if there are facts that may 
suggest possible retaliation by UCs or care provider facility staff and 
must promptly remedy any such retaliation. ORR and the care provider 
facility must also monitor to see if there are facts that may suggest 
possible retaliation by UCs or care provider facility staff against any 
staff member, contractor, or volunteer and must promptly remedy any 
such retaliation. Items ORR and the care provider facility should 
monitor include but are not limited to any UC disciplinary reports, 
housing or program changes, negative performance reviews, or 
reassignments of staff. Care provider facilities must discuss any 
changes with the appropriate UC or staff member as part of their 
efforts to determine if retaliation is taking place and, when 
confirmed, immediately takes steps to protect the UC or staff member.


Sec.  411.68  Post-allegation protection.

    (a) Care provider facilities must ensure that UC victims of sexual 
abuse and sexual harassment are assigned to a supportive environment 
that represents the least restrictive housing option possible to keep 
the UC safe and secure, subject to the requirements of Sec.  411.42.
    (b) The care provider facility should employ multiple protection 
measures to ensure the safety and security of UC victims of sexual 
abuse and sexual harassment, including but not limited to: Housing 
changes or transfers for UC victims and/or abusers or harassers; 
removal of alleged UC abusers or harassers from contact with victims; 
and emotional support services for UCs or staff who fear retaliation 
for reporting sexual abuse or sexual harassment or cooperating with 
investigations.
    (c) A UC victim may be placed on one-on-one supervision in order to 
protect the UC in exigent circumstances. Before taking the UC off of 
one-on-one supervision, the care provider facility must complete a re-
assessment taking into consideration any increased vulnerability of the 
UC as a result of the sexual abuse or sexual harassment. The re-
assessment must be completed as soon as possible and without delay so 
that the UC is not on one-on-one supervision longer than is absolutely 
necessary for safety and security reasons.

Subpart H--ORR Incident Monitoring and Evaluation


Sec.  411.71  ORR monitoring and evaluation of care provider facilities 
following an allegation of sexual abuse or sexual harassment.

    (a) Upon receiving an allegation of sexual abuse or sexual 
harassment that occurs at an ORR care provider facility, ORR will 
monitor and evaluate the care provider facility to ensure that the care 
provider facility complied with the requirements of this section or ORR 
policies and procedures. Upon conclusion of an outside investigation, 
ORR must review any available completed investigation reports to 
determine whether additional monitoring and evaluation activities are 
required.
    (b) ORR must develop written policies and procedures for incident 
monitoring and evaluation of sexual abuse and sexual harassment 
allegations, including provision requiring:
    (1) Reviewing prior complaints and reports of sexual abuse and 
sexual harassment involving the suspected perpetrator;
    (2) Determining whether actions or failures to act at the care 
provider facility contributed to the abuse or harassment;
    (3) Determining if any ORR policies and procedures or relevant 
legal authorities were broken; and
    (4) Retention of such reports for as long as the alleged abuser or 
harasser is in ORR custody or employed by ORR or the care provider 
facility, plus ten years.
    (c) ORR must ensure that its incident monitoring and evaluation 
does not interfere with any ongoing investigation conducted by State or 
local Child Protective Services, the State or local licensing agency, 
or law enforcement.
    (d) When outside agencies investigate an allegation of sexual abuse 
or sexual harassment, the care provider facility and ORR must cooperate 
with outside investigators.

[[Page 77798]]

Sec.  411.72  Reporting to UCs.

    Following an investigation by the appropriate investigating 
authority into a UC's allegation of sexual abuse or sexual harassment, 
ORR must notify the UC in his/her preferred language of the result of 
the investigation if the UC is still in ORR care and custody and where 
feasible. If a UC has been released from ORR care when an investigation 
is completed, ORR should attempt to notify the UC. ORR may encourage 
the investigating agency to also notify other complainants or 
additional parties notified of the allegation of the result of the 
investigation.

Subpart I--Interventions and Discipline


Sec.  411.81  Disciplinary sanctions for staff.

    (a) Care provider facilities must take disciplinary action up to 
and including termination against care provider facility staff with a 
substantiated allegation of sexual abuse or sexual harassment against 
them or for violating ORR or the care provider facility's sexual abuse 
and sexual harassment policies and procedures.
    (b) Termination must be the presumptive disciplinary sanction for 
staff who engaged in sexual abuse or sexual harassment.
    (c) All terminations for violations of ORR and/or care provider 
facility sexual abuse and sexual harassment policies and procedures or 
resignations by staff, who would have been terminated if not for their 
resignation, must be reported to law enforcement agencies and to any 
relevant State or local licensing bodies.
    (d) Any staff member with a substantiated allegation of sexual 
abuse or sexual harassment against him/her at an ORR care provider 
facility is barred from employment at any ORR care provider facility.


Sec.  411.82  Corrective actions for contractors and volunteers.

    (a) Any contractor or volunteer with a substantiated allegation of 
sexual abuse or sexual harassment against him/her must be prohibited 
from working or volunteering at the care provider facility and at any 
ORR care provider facility.
    (b) The care provider facility must take appropriate remedial 
measures and must consider whether to prohibit further contact with UCs 
by contractors or volunteers who have not engaged in sexual abuse or 
sexual harassment but violated other provisions within these standards, 
ORR sexual abuse and sexual harassment policies and procedures, or the 
care provider's sexual abuse and sexual harassment policies and 
procedures.


Sec.  411.83  Interventions for UCs who engage in sexual abuse.

    UCs must receive appropriate interventions if they engage in UC-on-
UC sexual abuse. Decisions regarding which types of interventions to 
use in particular cases, including treatment, counseling, or 
educational programs, are made with the goal of promoting improved 
behavior by the UC and ensuring the safety of other UCs and staff. 
Intervention decisions should take into account the social, sexual, 
emotional, and cognitive development of the UC and the UC's mental 
health status. Incidents of UC-on-UC abuse are referred to all 
investigating authorities, including law enforcement entities.

Subpart J--Medical and Mental Health Care


Sec.  411.91  Medical and mental health assessments; history of sexual 
abuse.

    (a) If the assessment pursuant to Sec.  411.41 indicates that a UC 
experienced prior sexual victimization or perpetrated sexual abuse, the 
care provider facility must ensure that the UC is immediately referred 
to a qualified medical or mental health practitioner for medical and/or 
mental health follow-up as appropriate. Care provider facility staff 
must also ensure that all UCs disclosures are reported in accordance 
with these standards.
    (b) When a referral for medical follow-up is initiated, the care 
provider facility must ensure that the UC receives a health evaluation 
no later than seventy-two (72) hours after the referral.
    (c) When a referral for mental health follow-up is initiated, the 
care provider facility must ensure that the UC receives a mental health 
evaluation no later than seventy-two (72) hours after the referral.


Sec.  411.92  Access to emergency medical and mental health services.

    (a) Care provider facilities must provide UC victims of sexual 
abuse timely, unimpeded access to emergency medical treatment, crisis 
intervention services, emergency contraception, and sexually 
transmitted infections prophylaxis, in accordance with professionally 
accepted standards of care, where appropriate under medical or mental 
health professional standards.
    (b) Care provider facilities must provide UC victims of sexual 
abuse access to all medical treatment and crisis intervention services 
regardless of whether the victim names the abuser or cooperates with 
any investigation arising out of the incident.


Sec.  411.93  Ongoing medical and mental health care for sexual abuse 
and sexual harassment victims and abusers.

    (a) Care provider facilities must offer ongoing medical and mental 
health evaluations and treatment to all UCs who are victimized by 
sexual abuse or sexual harassment while in ORR care and custody.
    (b) The evaluation and treatment of such victims must include, as 
appropriate, follow-up services, treatment plans, and, when necessary, 
referrals for continued care following their transfer to or placement 
in other care provider facilities or their release from ORR care and 
custody.
    (c) The care provider facility must provide victims with medical 
and mental health services consistent with the community level of care.
    (d) Care provider facilities must ensure that female UC victims of 
sexual abuse by a male abuser while in ORR care and custody are offered 
pregnancy tests, as necessary. If pregnancy results from an instance of 
sexual abuse, care provider facility must ensure that the victim 
receives timely and comprehensive information about all lawful 
pregnancy-related medical services and timely access to all lawful 
pregnancy-related medical services. In order for UCs to make informed 
decisions regarding medical services, including, as appropriate, 
medical services provided under Sec.  411.92, care provider facilities 
should engage the UC in discussions with family members or attorneys of 
record in accordance with Sec.  411.55 to the extent practicable and 
follow appropriate State laws regarding the age of consent for medical 
procedures.
    (e) Care provider facilities must ensure that UC victims of sexual 
abuse that occurred while in ORR care and custody are offered tests for 
sexually transmitted infections as medically appropriate.
    (f) Care provider facilities must ensure that UC victims are 
provided access to treatment services regardless of whether the victim 
names the abuser or cooperates with any investigation arising out of 
the incident.
    (g) The care provider facility must attempt to conduct a mental 
health evaluation of all known UC-on-UC abusers within seventy-two (72) 
hours of learning of such abuse and/or abuse history and offer 
treatment when deemed appropriate by mental health practitioners.

[[Page 77799]]

Subpart K--Data Collection and Review


Sec.  411.101  Sexual abuse and sexual harassment incident reviews.

    (a) Care provider facilities must conduct sexual abuse or sexual 
harassment incident reviews at the conclusion of every investigation of 
sexual abuse or sexual harassment and, where the allegation was either 
substantiated or unable to be substantiated but not determined to be 
unfounded, prepare a written report recommending whether the incident 
review and/or investigation indicates that a change in policy or 
practice could better prevent, detect, or respond to sexual abuse and 
sexual harassment. The care provider facility must implement the 
recommendations for improvement or must document its reason for not 
doing so in a written response. Both the report and response must be 
forwarded to ORR's Prevention of Sexual Abuse Coordinator. Care 
provider facilities also must collect accurate, uniform data for every 
reported incident of sexual abuse and sexual harassment using a 
standardized instrument and set of definitions.
    (b) Care provider facilities must conduct an annual review of all 
sexual abuse and sexual harassment investigations and resulting 
incident reviews to assess and improve sexual abuse and sexual 
harassment detection, prevention, and response efforts. The results and 
findings of the annual review must be provided to ORR's Prevention of 
Sexual Abuse Coordinator.


Sec.  411.102  Data collection.

    (a) Care provider facilities must maintain all case records 
associated with claims of sexual abuse and sexual harassment, including 
incident reports, investigative reports, offender information, case 
disposition, medical and counseling evaluation findings, and 
recommendations for post-release treatment and/or counseling in 
accordance with these standards and applicable Federal and State laws 
and ORR policies and procedures.
    (b) On an ongoing basis, the PSA Compliance Manager must work with 
care provider facility management and ORR to share data regarding 
effective care provider facility response methods to sexual abuse and 
sexual harassment.
    (c) On a quarterly basis, the PSA Compliance Manager must prepare a 
report for ORR compiling information received about all incidents and 
allegations of sexual abuse and sexual harassment of UCs in the care 
provider facility during the period covered by the report as well as 
ongoing investigations and other pending cases.
    (d) On an annual basis, the PSA Compliance Manager must aggregate 
incident-based sexual abuse and sexual harassment data, including the 
number of reported sexual abuse and sexual harassment allegations 
determined to be substantiated, unsubstantiated, unfounded, or for 
which an investigation is ongoing. For each incident, information 
concerning the following also must be included:
    (1) The date, time, location, and nature of the incident;
    (2) The demographic background of the victim and perpetrator 
(including citizenship, nationality, age, and sex) that excludes 
specific identifying information;
    (3) The reporting timeline for the incident (including the name of 
the individual who reported the incident; the date and time the report 
was received by the care provider facility; and the date and time the 
incident was reported to ORR);
    (4) Any injuries sustained by the victim;
    (5) Post-report follow-up responses and action taken by the care 
provider facility (e.g., housing placement changes, medical 
examinations, mental health counseling);
    (6) Any interventions imposed on the perpetrator.
    (e) Care provider facilities must provide all data described in 
this section from the previous calendar year to ORR no later than 
August 31.


Sec.  411.103  Data review for corrective action.

    (a) ORR must review data collected and aggregated pursuant to 
Sec. Sec.  411.101 and 411.102 in order to assess and improve the 
effectiveness of its sexual abuse and sexual harassment prevention, 
detection, and response policies, procedures, practices, and training, 
including:
    (1) Identifying problem areas;
    (2) Taking corrective actions on an ongoing basis; and
    (3) Preparing an annual report of its findings and corrective 
actions for each care provider facility as well as ORR as a whole.
    (b) Such report must include a comparison of the current year's 
data and corrective actions with those from prior years and must 
provide an assessment of ORR's progress in preventing, detecting, and 
responding to sexual abuse and sexual harassment.
    (c) The Director of ORR must approve ORR's annual report on ORR's 
UC Program as a whole and make the report available to the public 
through its Web site or otherwise make the report readily available to 
the public.
    (d) ORR may redact specific material from the reports when 
necessary for safety and security reasons but must indicate the nature 
of the material redacted.


Sec.  411.104  Data storage, publication, and destruction.

    (a) ORR must ensure that data collected pursuant to Sec. Sec.  
411.101 and 411.102 is securely retained in accordance with Federal and 
State laws and ORR record retention policies and procedures.
    (b) ORR must make all aggregated sexual abuse and sexual harassment 
data from ORR care provider facilities with which it provides a grant 
to or contracts with, excluding secure care providers and traditional 
foster care providers, available to the public at least annually on its 
Web site consistent with existing ORR information disclosure policies 
and procedures.
    (c) Before making any aggregated sexual abuse and sexual harassment 
data publicly available, ORR must remove all personally identifiable 
information.
    (d) ORR must maintain sexual abuse and sexual harassment data for 
at least 10 years after the date of its initial collection unless 
Federal, State, or local law requires for the disposal of official 
information in less than 10 years.

Subpart L--Audits and Corrective Action


Sec.  411.111  Frequency and scope of audits.

    (a) Within three years of February 22, 2016, each care provider 
facility that houses UCs will be audited at least once; and during each 
three-year period thereafter.
    (b) ORR may expedite an audit if it believes that a particular care 
provider facility may be experiencing problems related to sexual abuse 
or sexual harassment.
    (c) ORR must develop and issue an instrument that is coordinated 
with the HHS Office of the Inspector General that will provide guidance 
on the conduct and contents of the audit.
    (d) The auditor must review all relevant ORR-wide policies, 
procedures, reports, internal and external audits, and licensing 
requirements for each care provider facility type.
    (e) The audits must review, at a minimum, a sampling of relevant 
documents and other records and other information for the most recent 
one-year period.
    (f) The auditor must have access to, and must observe, all areas of 
the audited care provider facilities.

[[Page 77800]]

    (g) ORR and the care provider facility must provide the auditor 
with the relevant documentation to complete a thorough audit of the 
care provider facility.
    (h) The auditor must retain and preserve all documentation 
(including, e.g., videotapes and interview notes) relied upon in making 
audit determinations. Such documentation must be provided to ORR upon 
request.
    (i) The auditor must interview a representative sample of UCs and 
staff, and the care provider facility must make space available 
suitable for such interviews.
    (j) The auditor must review a sampling of any available video 
footage and other electronically available data that may be relevant to 
the provisions being audited.
    (k) The auditor must be permitted to conduct private interviews 
with UCs.
    (l) UCs must be permitted to send confidential information or 
correspondence to the auditor.
    (m) Auditors must attempt to solicit input from community-based or 
victim advocates who may have insight into relevant conditions in the 
care provider facility.
    (n) All sensitive and confidential information provided to auditors 
will include appropriate designations and limitations on further 
dissemination. Auditors must follow appropriate procedures for handling 
and safeguarding such information.
    (o) Care provider facilities bear the affirmative burden on 
demonstrating compliance with the standards to the auditor.


Sec.  411.112  Auditor qualifications.

    (a) An audit must be conducted by an entity or individual with 
relevant auditing or evaluation experience and is external to ORR.
    (b) All auditors must be certified by ORR, and ORR must develop and 
issue procedures regarding the certification process within six months 
of December 24, 2014, which must include training requirements.
    (c) No audit may be conducted by an auditor who received financial 
compensation from the care provider, the care provider's agency, or ORR 
(except for compensation received for conducting other audits) within 
the three years prior to ORR's retention of the auditor.
    (d) ORR, the care provider, or the care provider's agency must not 
employ, contract with, or otherwise financially compensate the auditor 
for three years subsequent to ORR's retention of the auditor, with the 
exception of contracting for subsequent audits.


Sec.  411.113  Audit contents and findings.

    (a) Each audit must include a certification by the auditor that no 
conflict of interest exists with respect to his or her ability to 
conduct an audit of the care provider facility under review.
    (b) Audit reports must state whether care provider facility 
policies and procedures comply with all standards.
    (c) For each of these standards, the auditor must determine whether 
the audited care provider facility reaches one of the following 
findings: Exceeds Standard (substantially exceeds requirement of 
standard); Meets Standard (substantial compliance; complies in all 
material ways with the standard for the relevant review period); Does 
Not Meet Standard (requires corrective action). The audit summary must 
indicate, among other things, the number of provisions the care 
provider facility achieved at each grade level.
    (d) Audit reports must describe the methodology, sampling sizes, 
and basis for the auditor's conclusions with regard to each standard 
provision for each audited care provider facility and must include 
recommendations for any required correction action.
    (e) Auditors must redact any personally identifiable information of 
UCs or staff information from their reports but must provide such 
information to ORR upon request.
    (f) ORR must ensure that aggregated data on final audit reports is 
published on ORR's Web site, or is otherwise made readily available to 
the public. ORR must redact any sensitive or confidential information 
prior to providing such reports publicly.


Sec.  411.114  Audit corrective action plan.

    (a) A finding of ``Does Not Meet Standard'' with one or more 
standards must trigger a 90-day corrective action period.
    (b) The auditor and ORR must jointly develop a corrective action 
plan to achieve compliance.
    (c) The auditor must take necessary and appropriate steps to verify 
implementation of the corrective action plan, such as reviewing updated 
policies and procedures or re-inspecting portions of a care provider 
facility.
    (d) After the 180-day corrective action period ends, the auditor 
must issue a final determination as to whether the care provider 
facility achieved compliance with those standards requiring corrective 
action.
    (e) If the care provider facility does not achieve compliance with 
each standard, it may (at its discretion and cost) request a subsequent 
audit once it believes that it achieved compliance.


Sec.  411.115  Audit appeals.

    (a) A care provider facility may file an appeal with ORR regarding 
any specific audit finding that it believes to be incorrect. Such 
appeal must be filed within 90 days of the auditor's final 
determination.
    (b) If ORR determines that the care provider facility stated good 
cause for re-evaluation, the care provider facility may commission a 
re-audit by an auditor mutually agreed upon by ORR and the care 
provider facility. The care provider facility must bear the costs of 
the re-audit.
    (c) The findings of the re-audit are considered final.

[FR Doc. 2014-29984 Filed 12-19-14; 11:15 am]
BILLING CODE 4184-01-P


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