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  • News: HHS Rule on Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual Harassment Involving UACs

    Federal Register, Volume 79 Issue 247 (Wednesday, December 24, 2014)
    [Federal Register Volume 79, Number 247 (Wednesday, December 24, 2014)]
    [Rules and Regulations]
    [Pages 77767-77800]
    From the Federal Register Online via the Government Printing 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]]
    
    
    -----------------------------------------------------------------------
    
    DEPARTMENT OF HEALTH AND HUMAN SERVICES
    
    Administration for Children and Families
    
    45 CFR Part 411
    
    RIN 0970-AC61
    
    
    Standards To Prevent, Detect, and Respond to Sexual Abuse and 
    Sexual Harassment Involving Unaccompanied Children
    
    AGENCY: Office of Refugee Resettlement (ORR), Administration for 
    Children and Families (ACF), Department of Health and Human Services 
    (HHS).
    
    ACTION: Interim final rule (IFR).
    
    -----------------------------------------------------------------------
    
    SUMMARY: This IFR proposes standards and procedures to prevent, detect, 
    and respond to sexual abuse and sexual harassment involving 
    unaccompanied children (UCs) in ORR's care provider facilities.
    
    DATES: This IFR is effective on December 24, 2014. ORR care provider 
    facilities must be in compliance with this IFR by June 24, 2015 but 
    encourages care provider facilities to be in compliance sooner, if 
    possible. HHS will work with facilities to implement and enforce the 
    standards contained in this rule. Comments on this IFR must be received 
    on or before February 23, 2015.
    
    ADDRESSES: Interested persons are invited to submit comments to the 
    Office of Refugee Resettlement, 370 L'Enfant Promenade SW., 8th Floor 
    West, Washington, DC 20024, Attention: Elizabeth Sohn, or 
    electronically via the Internet at http://www.regulations.gov. If you 
    submit a comment, please include your name and address, indicate the 
    specific section of this document to which each comment applies, and 
    give the reason for each comment. You may submit your comments and 
    material by electronic means, mail, or delivery to the address above, 
    but please submit your comments and material by only one means. A copy 
    of this IFR may be downloaded from http://www.regulations.gov.
    
    FOR FURTHER INFORMATION CONTACT: Elizabeth Sohn, Policy Analyst, 
    Division of Policy, Office of Refugee Resettlement, Administration for 
    Children and Families by email at UACPolicy@acf.hhs.gov or by phone at 
    (202) 260-6829. Deaf and hearing impaired individuals may call the 
    Federal Dual Party Relay Service at 1-800-877-8339 between 8 a.m. and 7 
    p.m. Eastern Time.
    
    
    SUPPLEMENTARY INFORMATION:
    
    Contents
    
    I. Submission of Comments
    II. Executive Summary
    III. Background
        A. Department of Justice Rulemaking
        B. Application of PREA Standards to Other Federal Confinement 
    Facilities
        C. The Presidential Memorandum on Implementing the Prison Rape 
    Elimination Act
        D. Violence Against Women Reauthorization Act of 2013
    IV. Discussion of the Interim Final Rule
        A. ORR Standards
        B. Section by Section Discussion
        Subpart A--Coverage
        Subpart B--Prevention Planning
        Subpart C--Responsive Planning
        Subpart D--Training and Education
        Subpart E--Assessment for Risk of Sexual Victimization and 
    Abusiveness
        Subpart F--Reporting
        Subpart G--Official Response Following a UC Report
        Subpart H--ORR Incident Monitoring and Evaluation
        Subpart I--Interventions and Discipline
        Subpart J--Medical and Mental Health Care
        Subpart K--Data Collection and Review
        Subpart L--Audits and Corrective Action
    V. Waiver of Proposed Rulemaking
    VI. Collection of Information Requirements
    VII. Regulatory Impact Analysis--Executive Order 12866 and 13563
    VIII. Regulatory Flexibility Analysis
    IX. Unfunded Mandates Reform Act
    X. Congressional Review
    XI. Assessment of Federal Regulation and Policies on Family
    XII. Executive Order 13132
    
    I. Submission of Comments
    
        Comments should be specific, address issues raised by the interim 
    final rule, propose alternatives where appropriate, explain reasons for 
    any objections or recommended changes, and reference the specific 
    action of the interim final rule that is being addressed. Additionally, 
    we will be interested in comments that indicate agreement with proposed 
    policies. We will not acknowledge receipt of the comments we receive. 
    However, we will review and consider all comments that are germane and 
    are received during the comment period. We will respond to these 
    comments in the preamble to the Final Rule.
    
    II. Executive Summary
    
        This interim final rule provides standards to prevent, detect, and 
    respond to sexual abuse and sexual harassment in Department of Health 
    and Human Services (HHS), Administration for Children and Families 
    (ACF), Office of Refugee Resettlement (ORR) care provider facilities 
    housing unaccompanied 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.
    ---------------------------------------------------------------------------
    
        \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).
    ---------------------------------------------------------------------------
    
        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).
    ---------------------------------------------------------------------------
    
        \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.
    ---------------------------------------------------------------------------
    
        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\
    ---------------------------------------------------------------------------
    
        \3\ http://www.apa.org/pi/lgbt/resources/guidelines.aspx.
    ---------------------------------------------------------------------------
    
        ``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
    
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    sexual harassment. Care provider facilities should conduct the 
    unannounced rounds during all shifts, including both night and day 
    shifts. Care provider facilities must prohibit staff from alerting 
    other staff that rounds are occurring unless an announcement is related 
    to the legitimate operational functions of the care provider facility. 
    For example, before entering a restroom, staff must announce themselves 
    to ensure the UC's privacy.
        Section 411.14 governs the standards related to cross-gender 
    viewing and searches. Generally, ORR care provider facilities rarely 
    conduct pat-down searches. In accordance with State and local licensing 
    standards, care provider staff are often restricted from physically 
    restraining UCs except in very limited circumstances. ORR also 
    discourages physically restraining UCs and, instead, encourages the use 
    of de-escalation techniques. Paragraph (a) prohibits cross-gender pat-
    down searches except in exigent circumstances as defined in the 
    definitions section. For a UC who identifies as transgender or 
    intersex, the ORR care provider facility must ask the UC to identify 
    the gender of staff with whom he/she would feel most comfortable 
    conducting the search. Paragraph (b) requires care provider facilities 
    to conduct all pat-down searches in the presence of one additional care 
    provider facility staff member unless there are exigent circumstances, 
    document any pat-down searches conducted, and report such searches to 
    ORR in accordance with ORR policies and procedures. The care provider 
    facility must explain in detail why a pat-down search was required, how 
    it was conducted, who was present during the search, the circumstances 
    of the situation, and the outcome of the search. Paragraph (c) 
    prohibits all strip searches and visual body cavity searches of UCs. 
    These types of searches are not necessary for the types of care 
    provider facilities ORR has and are strictly prohibited. Paragraph (d) 
    requires that care provider facilities allow UCs to shower, perform 
    bodily functions, and change clothing without being viewed by any 
    staff, except: in exigent circumstances; when such viewing is 
    incidental to routine room checks; is otherwise appropriate in 
    connection with a medical examination or medically-related monitored 
    bowel movement; if a UC under age 6 needs assistance with such 
    activities; if a UC with special needs is in need of assistance with 
    such activities; or the UC requests and requires assistance. Care 
    provider facilities may have UCs with special needs in their facilities 
    who may not be able to perform bodily functions, clothe, or bathe 
    themselves. In these cases, care provider facilities must provide a 
    staff member of the same gender as the UC to assist with such 
    activities.
        If the UC's sex is unknown, paragraph (e) prohibits care provider 
    facilities from searching or physically examining the UC for the sole 
    purpose of determining the UC's sex. Instead, care provider facility 
    staff members should engage in conversations with the UC or review 
    medical records. Staff must be culturally aware and sensitive to the UC 
    when conducting such conversations. If necessary, care provider 
    facilities may learn of a UC's sex as part of a broader medical 
    examination conducted in private by a medical practitioner. The medical 
    examination may not be conducted for the sole purpose of determining 
    the UC's sex, but must be part of a broader medical examination 
    conducted for other medical purposes.
        Paragraph (f) requires care provider facilities to train youth care 
    worker staff in the proper procedure for conducting pat-down searches, 
    including 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
    
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    into Spanish all documents provided to UC. If the unaccompanied child 
    speaks a language other than English or Spanish, the document is 
    verbally translated to the unaccompanied child using an in-person 
    qualified translator or telephonic interpretation services.
        Section 411.16 covers standards for the hiring and promotion of 
    care provider facility staff. In order to emphasize the importance of 
    background checks for care provider facility staff, ORR sets forth 
    standards for care provider facilities to follow regarding thorough 
    background checks, periodically updating criminal background records 
    checks, and creating an affirmative duty for staff to disclose 
    misconduct in order to identify individuals who have committed, may 
    have committed or are committing sexual misconduct. Generally, State 
    and local licensing standards have strict requirements for background 
    checks for all employees at a juvenile residential facility and have a 
    list of crimes and offenses that bar applicants from employment.
        Paragraph (a) prohibits care provider facilities from hiring, 
    promoting, or enlisting the services of any staff, contractor, or 
    volunteer who may have contact with UCs and who has engaged in sexual 
    abuse in a prison, jail, holding facility, community confinement 
    facility, juvenile facility, other institution, or care provider 
    facility; who has been convicted of engaging or attempting to engage in 
    sexual activity facilitated by force, overt or implied threats of 
    force, or coercion or if the victim did not consent or was unable to 
    consent or refuse; or who has been civilly or administratively 
    adjudicated to have engaged in such activity. Paragraph (b) places an 
    affirmative duty on the care provider facilities to ask all applicants 
    who may have contact with UCs considered for hire or promotion about 
    previous misconduct described in paragraph (a) of this section. Care 
    provider facilities must ask applicants either in written applications 
    or during interviews for hiring or promotions. Care provider facilities 
    also must ask current employees, regardless of whether the employee is 
    eligible for a promotion, in interviews or written 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
    
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    is 1:8 during the day and 1:12 at night. Video monitoring is also 
    subject to State and local licensing standards. Although ORR strongly 
    encourages all care provider facilities to use video monitoring 
    technology and update it as necessary, State and local licensing 
    standards and financial limitations may limit its use and continuous 
    update to the latest technology, respectively.
    Subpart C--Responsive Planning
        Section 411.21 lists the responsibilities of care provider 
    facilities with regard to victim advocacy, access to counselors, and 
    forensic medical examinations. In order to provide crisis intervention 
    and counseling services to meet the specific needs of sexual abuse and 
    sexual harassment victims, paragraph (a) requires care provider 
    facilities to develop procedures to best utilize community resources 
    and services to provide expertise and support to UC victims. All care 
    provider facilities must establish procedures to make available to UC 
    victims outside victims services following incidents of sexual abuse 
    and sexual harassment that occur within the care provider facility. The 
    care provider facility must attempt to make available to the victim a 
    victim advocate from a rape crisis center. If a rape crisis center is 
    not available or if the UC prefers, the care provider facility must 
    provide a licensed clinician on staff to provide crisis intervention 
    and trauma services for the UC. However, staff members are not to 
    conduct forensic examinations regardless of whether they are qualified 
    or community-based staff members. The outside or internal victim 
    advocate must provide, at a minimum, emotional support, crisis 
    intervention, information, and referrals to the UC victim.
        When it is medically appropriate and necessary for evidence to be 
    collected, paragraph (b) requires the care provider facility to 
    arrange, with the UC's consent, for an alleged UC victim to undergo a 
    forensic medical examination as soon as possible and that is performed 
    by Sexual Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse 
    Examiners (SANEs) where possible. If SAFEs or SANEs cannot be made 
    available, the examination may be performed by a qualified medical 
    practitioner. Care provider facility staff must inform UCs of the 
    availability of forensic medical examinations and request their consent 
    to have a forensic medical examination, where appropriate, completed as 
    soon as possible after the incident. Paragraph (c) requires that, upon 
    the UC victim's request, the presence of his or her outside or internal 
    victim advocate, including any available victim advocacy services 
    offered at a hospital conducting a forensic examination, must be 
    allowed to the extent possible for support during a forensic 
    examination and investigatory interviews. Paragraph (d) requires that 
    care provider facilities, to the extent possible, request that the 
    investigating agency follow the requirements of paragraphs (a) through 
    (c) of this section in order to provide for the needs of UCs.
        The NPREC recommends that the agency follow a uniform evidence 
    protocol that maximizes the potential for obtaining usable physical 
    evidence for administrative proceedings and criminal prosecutions. The 
    recommendations go on to describe what to include in the protocol. 
    Since ORR does not conduct administrative or criminal investigations, 
    it does not include this recommendation. Instead, all allegations are 
    referred to outside investigators, such as local law enforcement, Child 
    Protective Services, and State and local licensing agencies, and the 
    investigating agency collects any evidence as necessary. ORR does 
    require in section 411.64 that first responders ensure that all crime 
    scenes are preserved and protected until the appropriate authority 
    arrives to collect any evidence.
        Section 411.22 sets standards to ensure that all allegations of 
    sexual abuse and sexual harassment are investigated. ORR and care 
    provider facilities must immediately report all allegations of sexual 
    abuse and sexual harassment to outside investigating agencies as soon 
    as an allegation is made. Such investigating agencies include local and 
    State law enforcement, local and State Child Protective Services, and 
    local and State licensing agencies. ORR and care provider facilities 
    are not enforcement agencies and do not have the authority to conduct 
    criminal investigations. Upon receiving an allegation, ORR will monitor 
    and evaluate the care provider facility to ensure that ORR policies and 
    procedures and relevant legal authorities were followed, including 
    compliance with the standards set forth in this section, as well as any 
    ways in which the facility might improve its practices and procedures. 
    If the care provider failed to report an incident to the appropriate 
    outside agencies, ORR will report any lapse in reporting to the local 
    or State licensing agency, local or State Child Protective Services, 
    and local or State law enforcement agency. If the care provider failed 
    to report an incident to ORR or follow ORR policies and procedures, ORR 
    will issue corrective actions and may terminate or suspend its grant or 
    contract with the care provider facility for failing to comply with ORR 
    requirements. ORR and care provider facilities do not conduct internal 
    investigations regarding the substance of the allegation, because they 
    do not want to interfere or influence an investigation by law 
    enforcement, Child Protective Services, or the State or local licensing 
    agency.
        Under paragraph (a), ORR and care provider facilities must ensure 
    that every allegation of sexual abuse and sexual harassment is 
    immediately referred to all appropriate investigating agencies, 
    including law enforcement agencies, Child Protective Services, State or 
    local licensing agencies, and to ORR according to ORR policies and 
    procedures. All allegations must be referred for investigation 
    regardless of how the allegation is reported or who makes the report, 
    including reports from third-parties and anonymous reporters. Care 
    provider facilities must remain informed of ongoing investigations and 
    fully cooperate with outside investigators as necessary. Paragraph (b) 
    requires care provider facilities to maintain or attempt to enter into 
    a memorandum of understanding or other agreement with law enforcement 
    agencies, with designated State or local Child Protective Services, and 
    with the State or local licensing agency responsible for conducting 
    sexual abuse and sexual harassment investigations, as appropriate. Care 
    provider facilities are required to maintain a relationship with these 
    agencies to ensure investigations are conducted and completed in a 
    timely manner. Care provider facilities must maintain a copy of the 
    agreement or documentation showing attempts to enter into an agreement. 
    Paragraph (c) requires all care provider facilities to maintain 
    documentation of all reports and referrals of allegations of sexual 
    abuse and sexual harassment for at least ten years.
        Under paragraph (d), ORR will refer an allegation of sexual abuse 
    to the Department of Justice or other investigating authority for 
    further investigation where such reporting is in accordance with its 
    policies and procedures and any memoranda of understanding.
        Under paragraph (e), allegations of sexual abuse that occur at 
    emergency care provider facilities operated on Federal properties must 
    be reported to the Department of Justice in accordance with ORR 
    policies and procedures and any memoranda of understanding. Emergency 
    care provider facilities operating on Federal properties and within 
    Federal buildings may not be
    
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    subject to State or local licensing standards.
        The NPREC also recommends that facilities investigate all 
    allegations of sexual abuse and ensure that investigations are carried 
    through to completion, regardless of whether the alleged abuser or 
    victim remains at the facility and regardless of whether the source of 
    the allegation recants his or her allegation. ORR did not include this 
    recommendation, because ORR does not conduct investigations regarding 
    the substance of an allegation. Instead, as stated in the previous 
    paragraphs, ORR requires that all care provider facilities refer all 
    allegations, regardless of how an allegation is made or who it comes 
    from, to the proper investigating authorities. ORR and care provider 
    facilities have no control over whether law enforcement, Child 
    Protective Services, or a State or local licensing agency conducts an 
    investigation. Both ORR and care provider facilities, however, must 
    attempt to remain informed of ongoing investigations and fully 
    cooperate as necessary. ORR also will refer an allegation of sexual 
    abuse to the Department of Justice or other investigating authority for 
    further investigation where such reporting is in accordance with its 
    policies and procedures and any memoranda of understanding. 
    Additionally, ORR will monitor and evaluate the care provider facility 
    to ensure that ORR policies and procedures and relevant legal 
    authorities were followed, including compliance with the standards set 
    forth in this section, as well as any ways in which the facility might 
    improve its practices and procedures.
        The NPREC goes on to recommend that an agency maintain or attempt 
    to enter into a written memorandum of understanding or other agreement 
    with the authority responsible for prosecuting violations of criminal 
    law as well as maintain documentation of such agreements. ORR does not 
    include this standard in this rule, because ORR does not conduct 
    administrative or criminal investigations. The investigating agency is 
    in a better position to refer cases to prosecutors after completing an 
    investigation and determining if there is sufficient evidence to refer 
    a case to prosecuting authorities.
    Subpart D--Training and Education
        Section 411.31 covers the standards for training staff on sexual 
    abuse and sexual harassment-related policies and procedures. Staff 
    training is integral to implementing the standards in this Interim 
    Final Rule and truly preventing, detecting, and properly responding to 
    sexual abuse and sexual harassment. Paragraph (a) requires care 
    provider facilities to train or require the training of all employees 
    who may have contact with UCs on their responsibilities under these 
    standards, including any medical or mental health care personnel who 
    are staff members of the care provider. The NPREC recommends that 
    employees receive training, including investigators. ORR does not 
    require these trainings for investigators because neither ORR nor care 
    provider facilities employ investigators. All allegations are referred 
    to outside investigators. ORR will, however, encourage care provider 
    facilities through its policies and procedures to make efforts to 
    provide training for investigators and outside medical and mental 
    health care practitioners not employed by care provider facilities. 
    Training topics must include, at a minimum: the care provider 
    facility's zero tolerance policies for all forms of sexual abuse and 
    sexual harassment; the right of UCs and staff to be free from sexual 
    abuse and sexual harassment and from retaliation for reporting sexual 
    abuse and sexual harassment; definitions and examples of prohibited and 
    illegal sexual behavior; recognition of situations where sexual abuse 
    or sexual harassment may occur; recognition of physical, behavioral, 
    and emotional signs of sexual abuse and methods of preventing and 
    responding to such occurrences; how to avoid inappropriate 
    relationships with UCs; how to communicate effectively and 
    professionally with UCs, including UCs who are lesbian, gay, bisexual, 
    transgender, questioning, or intersex; procedures for reporting 
    knowledge or suspicion of sexual abuse and sexual harassment as well as 
    how to comply with relevant laws related to mandatory reporting; the 
    requirement to limit reporting of sexual abuse and sexual harassment to 
    personnel with a need-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
    
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    periodically thereafter UCs are notified and informed of the care 
    provider facility's zero tolerance policies for all forms of sexual 
    abuse and sexual harassment in an age and culturally appropriate 
    fashion and in accordance with section 411.15. At a minimum, the 
    orientation on the care provider facility's zero tolerance policy must 
    include an explanation of the UC's right to be free from sexual abuse 
    and sexual harassment as well as the UC's right to be free from 
    retaliation for reporting such incidents; definitions and examples of 
    UC-on-UC sexual abuse, staff-on-UC sexual abuse, coercive sexual 
    activity, appropriate and inappropriate relationships, and sexual 
    harassment; an explanation of the methods for reporting sexual abuse 
    and sexual harassment, including to any staff member, outside entity, 
    and to ORR; and an explanation of a UC's right to receive treatment and 
    counseling if the UC was subject to sexual abuse or sexual harassment. 
    Paragraph (b) requires all care provider facilities to provide 
    notification, orientation, and instruction in formats accessible to all 
    UCs at a time and in a manner that is separate from information 
    provided about their immigration cases. Although care provider 
    facilities do not discuss immigration case details with the UC, and ORR 
    is a neutral party in relation to a child's removal proceedings, ORR 
    wants to ensure that any discussion regarding a UC's immigration status 
    remains separate from the explanation of a care provider facility's 
    sexual abuse and sexual harassment-related policies and procedures. 
    This is to avoid any risk that the UC will think that sexual harassment 
    or sexual abuse-related reporting, assistance, or any other related 
    activity could impact his/her immigration case.
        Care provider facilities under paragraph (c) are required to 
    document all UCs' participation in orientation and periodic refresher 
    sessions that address the care provider facility's zero tolerance 
    policies.
        In addition to the orientation session, care provider facilities 
    also must post information in accordance with section 411.15 on all 
    housing unit bulletin boards about who a UC can contact if he or she 
    has been a victim of sexual abuse or sexual harassment or is believed 
    to be at imminent risk of sexual abuse or sexual harassment under 
    paragraph (d). Under paragraph (e) care provider facilities also must 
    make available and distribute to all UCs a pamphlet in accordance with 
    section 411.15 that contains, at a minimum, the following: notice of 
    the care provider facility's zero tolerance policy toward sexual abuse 
    and sexual harassment; the care provider facility's policies and 
    procedures related to sexual abuse and sexual harassment; information 
    on how to report an incident of sexual abuse or sexual harassment; the 
    UC's rights and responsibilities related to sexual abuse and sexual 
    harassment; how to contact organizations in the community that provide 
    sexual abuse and sexual harassment counseling and legal advocacy for UC 
    victims of sexual abuse and sexual harassment; and how to contact 
    diplomatic or consular personnel. UCs, upon entering a care provider 
    facility and receiving an orientation, may not remember every piece of 
    information provided, so it is important to post and distribute 
    pamphlets to ensure UCs are always informed.
        The NPREC recommends that the pamphlet also include information on 
    how to contact the Office for Civil Rights and Civil Liberties (OCRCL) 
    as well as the Office of the Inspector General (OIG) at DHS. ORR does 
    not include the contact information for OCRCL and OIG at DHS, because 
    UCs are in the care and custody of HHS and not DHS. ORR also does not 
    include the contact information for OCRCL and OIG at HHS, because the 
    two offices do not function like their counterparts at DHS. OIG, for 
    example, does not have the capacity to receive UC reports 24 hours a 
    day in order to immediately refer any UC reports it receives. ORR, 
    instead, provides that an outside agency may receive reports of sexual 
    abuse and sexual harassment, and UCs may always contact diplomatic or 
    consular personnel. In addition, UCs may always directly contact ORR 
    24-hours a day. The pamphlet will include contact information for care 
    provider facility staff, ORR, the outside agency, and diplomatic and 
    consular personnel.
        The NPREC also recommended that sexual abuse education be provided 
    by a qualified individual with experience communicating about these 
    issues with a diverse population. ORR does not explicitly include the 
    requirement that an individual have experience communicating about 
    these issues with a diverse population in this section, because all 
    policies and services related to this rule must be implemented in a 
    culturally-sensitive and knowledgeable manner that is tailored for a 
    diverse population under section 411.11. In addition, section 411.15 
    requires that care provider facilities ensure meaningful access to all 
    aspects of the care provider facility's sexual abuse and sexual 
    harassment policies to UCs who are limited English proficient. Further, 
    section 411.31 requires all care provider facility staff who may have 
    contact with UCs to receive training on, among other things, cultural 
    sensitivity and effectively communicating with UCs who are LGBTQI.
        Section 411.34 covers the specialized training required of medical 
    and mental health care staff employed or contracted by care provider 
    facilities. This standard does not include medical and mental health 
    professionals utilized in the community and at local hospitals not 
    contracted or employed by care provider facilities. Under paragraph 
    (a), all medical and mental health care staff employed or contracted by 
    care provider facilities must be specially trained, at a minimum, on 
    the following topics: how to detect and assess signs of sexual abuse 
    and sexual harassment; how to respond effectively and professionally to 
    victims of sexual abuse and sexual harassment; how and to whom to 
    report allegations or suspicions of sexual abuse and sexual harassment; 
    and how to preserve physical evidence of sexual abuse. If medical staff 
    intend to conduct forensic examinations, they must receive specific 
    training to conduct such examinations prior to conducting them. Care 
    provider facilities must document that medical and mental health 
    practitioners employed or contracted by the care provider facility 
    received the training referenced in this section under paragraph (b). 
    Paragraph (c) clarifies that medical and mental health practitioners 
    employed or contracted by the care provider facility must receive the 
    training outlined in this section in addition to the training mandated 
    for all care provider facility employees under section 411.31 or for 
    contractors and volunteers under section 411.32, depending on the 
    practitioner's status at the care provider facility.
        The NPREC recommends that the agency also provide specialized 
    training for investigators conducting sexual abuse investigations. 
    Because ORR refers all allegations to outside investigators, however, 
    ORR did not include this standard.
    Subpart E--Assessment for Risk of Sexual Victimization and Abusiveness
        Section 411.41 requires care provider facilities to assess UCs who 
    may be at risk of being sexually abused or harassed or abusing or 
    harassing others. Under paragraph (a), within 72 hours of a UC's 
    arrival at a care provider facility, care provider facilities must 
    obtain and use information about each UC's personal history and 
    behavior to reduce the risk of sexual abuse or sexual harassment by or 
    upon a UC. In addition, care provider facilities must periodically 
    reassess the UC throughout
    
    [[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
    
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    populations. Generally, most UCs are housed separately, but there are 
    exceptions to this policy. For example, ORR allows mixing of domestic 
    minors and UCs in specialized placements, such as at residential 
    treatment centers. In these care provider facilities, there is a higher 
    level of supervision and care, and it is not feasible to separate the 
    two populations, because there are a very small number of UCs at these 
    care provider facilities. ORR does not want to effectively isolate UCs 
    in that way.
    Subpart F--Reporting
        Section 411.51 discusses care provider facility requirements 
    regarding the ability of UCs to report sexual abuse and sexual 
    harassment and any retaliatory actions resulting from reporting sexual 
    abuse and sexual harassment. The ability of UCs to freely and 
    immediately report sexual abuse and sexual harassment is essential for 
    their protection and safety. ORR is committed to providing easily 
    accessible methods for UCs to make reports. Paragraph (a) requires that 
    care provider facilities develop policies and procedures for UCs to 
    have multiple ways to report sexual abuse and sexual harassment, 
    retaliation for reporting sexual abuse and sexual harassment, and staff 
    neglect or violations of responsibilities that may have contributed to 
    such incidents to the care provider. The care provider facility also 
    must provide access to and instructions on how UCs can contact their 
    consular official, ORR's headquarters, and an outside entity to 
    confidentially, and, if desired, anonymously report these incidents. 
    Instructions on how to contact consular officials should include a list 
    of phone numbers, and UCs must be provided access to telephones with 
    free, preprogrammed numbers for ORR headquarters and the outside entity 
    designated under section 411.51(b).
        Under paragraph (b), care provider facilities also must provide and 
    inform the UC of at least one way for UCs to report sexual abuse and 
    sexual harassment to an entity or office that is not part of the care 
    provider facility and is able to receive and immediately forward UC 
    reports of sexual abuse and sexual harassment to ORR officials, 
    allowing UCs to remain anonymous upon request. For example, care 
    provider facilities may collaborate with rape crisis centers or local 
    nonprofit organizations to receive UC reports of sexual abuse and 
    sexual harassment that can be directly forwarded to law enforcement and 
    ORR. The care provider facility must also maintain or attempt to enter 
    into a memorandum of understanding or other agreement with the entity 
    or office and maintain copies of agreements or documentation showing 
    attempts to enter into agreements. The care provider facility's 
    policies and procedures under paragraph (c) also must include 
    provisions for staff to accept reports made verbally, in writing, 
    anonymously, and from third parties. Staff must promptly document any 
    verbal reports. Paragraph (d) requires all allegations of sexual abuse 
    and sexual harassment by staff or UCs to be immediately reported to ORR 
    according to ORR's policies and procedures.
        The NPREC recommends that facilities provide access to telephones 
    with free, preprogrammed numbers to the DHS Office for Civil Rights and 
    Civil Liberties (CRCL) and Office of the Inspector General (OIG). ORR 
    did not include this requirement, because UCs are in the care and 
    custody of ORR and not of DHS. ORR also did not include a requirement 
    to provide preprogrammed numbers to HHS' CRCL and OIG, because they do 
    not function in the same manner that DHS' offices do. HHS' CRCL and OIG 
    do not have the capacity to accept reports from UCs on a 24-hour basis. 
    ORR, however, provides UCs the opportunity to report to care provider 
    facilities, ORR headquarters, and to an outside agency. UCs will have 
    access to telephones with free, preprogrammed numbers for ORR 
    headquarters and the outside entity designated under section 411.51(b).
        Section 411.52 addresses requirements for a care provider's 
    grievance policies and procedures. The grievance process is another 
    method through which UCs may make reports of sexual abuse and sexual 
    harassment. Paragraph (a) requires care provider facilities to 
    implement written policies and procedures for identifying and handling 
    time-sensitive grievances that involve an immediate threat to UC 
    health, safety, or welfare related to sexual abuse and sexual 
    harassment. All such grievances must be reported to ORR and responded 
    to immediately. Paragraph (b) requires care provider facility staff to 
    immediately notify medical or emergency services personnel if there is 
    a UC medical emergency. Paragraph (c) requires care provider facilities 
    to issue a written decision on the grievance within five (5) days of 
    receipt of the grievance. Paragraph (d) states that UC may obtain 
    assistance from other UCs, care provider facility staff, family 
    members, or legal representatives to prepare a grievance; and care 
    provider facilities must take reasonable steps to expedite requests for 
    assistance from these other parties. Under State mandatory reporting 
    requirements and section 411.51(d), if a care provider facility staff 
    member assists the UC in filing a grievance and gains knowledge of 
    sexual abuse or sexual harassment occurring at a care provider, he/she 
    must also separately make a report to the appropriate law enforcement 
    agency, Child Protective Services agency, State or local licensing 
    agency, and ORR. If a third-party assists the UC, such as a family 
    member or legal representative, and he/she has knowledge of sexual 
    abuse and sexual harassment occurring at a care provider facility, he/
    she also may file reports of sexual abuse and sexual harassment with 
    the appropriate law enforcement agency, Child Protective Services 
    agency, State or local licensing agency, and with ORR.
        The NPREC recommends a specific procedure for the exhaustion of 
    administrative remedies. ORR did not include this standard, because ORR 
    does not require UCs to exhaust any type of administrative remedy 
    before a care provider facility is required to take action in order to 
    protect UCs or respond to any allegation of sexual abuse and sexual 
    harassment. Care provider facilities must immediately respond to all 
    allegations of sexual abuse and sexual harassment regardless of how the 
    allegation is reported and also immediately refer the allegation to 
    outside investigating agencies. The previous paragraph discussing 
    grievances describes how grievances are to be filed and promptly 
    responded to by care provider facilities. It does not require a UC to 
    file a grievance before referring an allegation for investigation. It 
    is simply one way for a UC to make a report of sexual abuse or sexual 
    harassment, and ORR requires care provider facilities to have policies 
    and procedures to ensure grievances are addressed in a timely and 
    appropriate manner.
        Section 411.53 requires that care provider facilities provide UCs 
    access to outside confidential support services. Although ORR care 
    provider facilities have case managers and clinicians that work with 
    individual UCs on an ongoing basis, care provider facilities also 
    should provide UC victims of sexual abuse and sexual harassment access 
    to outside community resources. If the alleged abuser is a clinician or 
    case manager at the care provider facility, the UC should be able to 
    access outside services and counsel. Paragraph (a) requires care 
    provider facilities to utilize available community resources and 
    services to provide support for a UC victim in the areas of crisis 
    intervention, counseling, investigation, and the
    
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    prosecution of sexual abuse perpetrators. The care provider facility 
    should maintain or try to enter into memoranda of understanding or 
    other agreements with community service providers for immigrant victims 
    of crime and maintain copies of its agreements or documentation showing 
    attempts to enter into agreements. If such resources are available, 
    care provider facilities must have written policies and procedures that 
    include these outside agencies in the care provider facility's sexual 
    abuse and sexual harassment prevention and intervention protocols under 
    paragraph (b). Finally, paragraph (c) requires care provider facilities 
    to make available to UCs information about local organizations that can 
    assist UCs who are victims of sexual abuse and sexual harassment, 
    including mailing addresses and telephone numbers. The care provider 
    facility must allow reasonable communication between the UC and these 
    organizations and agencies in a confidential manner and inform the UC, 
    prior to giving him/her access, of the extent to which such 
    communications will be confidential. The NPREC recommends that the 
    facility also provide UC with unimpeded access to their attorney or 
    other legal representative and their families. ORR has incorporated 
    this recommendation in section 411.55.
        The NPREC recommends that the outside service provider help victims 
    of sexual abuse during their transition from incarceration to the 
    community. UCs are not incarcerated like minors in juvenile delinquency 
    facilities, so this standard was not included. ORR, however, does 
    believe it is important to connect special needs or at-risk UCs with 
    resources in the community once they are released. ORR provides 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
    
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    and/or witnesses do not take any actions that could destroy physical 
    evidence, including, as appropriate, washing, brushing teeth, changing 
    clothes, urinating, defecating, smoking, drinking or eating. The care 
    provider facility staff member should request that such actions not be 
    taken, but the staff member should not physically restrain any UCs from 
    taking such actions. If for any reason evidence cannot be collected in 
    a timely fashion and the UC requests to use the restroom, UCs should be 
    allowed to urinate and defecate as needed.
        Section 411.65 requires care provider facilities to have a 
    coordinated response to all allegations of sexual abuse that is 
    immediate, efficient, and thorough. Paragraph (a) requires care 
    provider facilities to develop a written institutional plan to 
    coordinate actions taken by staff first responders, medical and mental 
    health practitioners, outside investigators, victim advocates, and care 
    provider facility leadership in response to an incident of sexual abuse 
    to ensure that victims receive all necessary immediate and ongoing 
    medical, mental health, and support services and that investigators are 
    able to obtain usable evidence. ORR must review and make an approval 
    decision on the written institutional plan to ensure it adequately 
    addresses all concerns and is in accordance with ORR policies and 
    procedures. Paragraph (b) requires care provider facilities to use a 
    coordinated, multidisciplinary team approach to respond to sexual 
    abuse. Under paragraph (c), if a victim of sexual abuse is transferred 
    between ORR care provider facilities, ORR must, as permitted by law, 
    inform the receiving care provider facility of the incident and the 
    victim's potential need for medical or social services. Under paragraph 
    (d), if a victim of sexual abuse is transferred from an ORR care 
    provider facility to a non-ORR facility or sponsor, ORR must, as 
    permitted by law, inform the receiving care provider facility or 
    sponsor of the incident and the victim's potential need for medical or 
    social services, unless the victims requests otherwise.
        Section 411.66 requires that ORR and care provider facility staff, 
    contractors, and volunteers suspected of perpetrating sexual abuse or 
    sexual harassment be immediately removed from all duties that would 
    involve or allow access to UCs pending the outcome of an investigation.
        Section 411.67 addresses protections against retaliation. Care 
    provider facility staff, contractors, and volunteers as well as UCs 
    must not retaliate against any person, including a UC, who reports, 
    complains about, or participates in an investigation into an allegation 
    of sexual abuse or sexual harassment. Retaliation is absolutely 
    prohibited and must be strongly addressed. For the remainder of the 
    UC's stay in ORR custody following a report of sexual abuse or sexual 
    harassment, ORR and the care provider facility must monitor to see if 
    there may be possible retaliation occurring by UCs or care provider 
    facility staff. If there are suspicions of retaliation, the care 
    provider facility must address the retaliation and remedy the 
    situation. For example, ORR and the care provider facility staff should 
    monitor UC disciplinary reports, housing or program changes, negative 
    performance reviews, or reassignments of staff. Care provider 
    facilities must discuss any changes with the appropriate UC or staff 
    member as part of their efforts to determine if retaliation is taking 
    place, and, when confirmed, immediately take steps to protect the UC or 
    staff member.
        Section 411.68 addresses 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
    
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    terms. In addition, if an incident occurs, ORR will also monitor and 
    evaluate a care provider facility to determine if ORR policies and 
    procedures as well as relevant legal authorities were followed and what 
    corrective actions, if any, are needed. ORR does not conduct criminal 
    investigations, collect evidence, or investigate the substance of the 
    allegation. All care provider facilities, except emergency care 
    provider facilities not licensed by a State or local agency, are 
    overseen by State or local licensing agencies and Child Protective 
    Services who are required to investigate such allegations. As such, ORR 
    is committed to ensuring that all allegations of sexual abuse and 
    sexual harassment are referred to outside investigating agencies with 
    the authority to conduct investigations. Under paragraph (a), upon 
    receiving an allegation of sexual abuse or sexual harassment, ORR will 
    monitor and evaluate the care provider facility to determine if the 
    care provider facility did not comply with the requirements of this 
    section or ORR policies and procedures. Once an outside investigation 
    is completed, ORR must review any available completed investigation 
    reports to determine whether additional monitoring and evaluation 
    activities are required.
        Paragraph (b) also requires that ORR develop written policies and 
    procedures for incident monitoring and evaluation of sexual abuse and 
    sexual harassment allegations, including provisions requiring: (1) 
    Reviewing prior complaints and reports of sexual abuse and sexual 
    harassment involving the suspected perpetrator; (2) determining whether 
    actions or failures to act at the care provider facility contributed to 
    the abuse or harassment; (3) ensuring that all ORR policies and 
    procedures or relevant legal authorities were followed; and (4) 
    retention of such reports for as long as the alleged abuser or harasser 
    is in ORR custody or employed by ORR or the care provider, plus ten 
    years. Paragraph (c) requires ORR to ensure that its incident 
    monitoring and evaluation does not interfere with any investigation 
    conducted by State or local Child Protective Services, State or local 
    licensing agencies, or law enforcement. Paragraph (d) requires that 
    when outside agencies investigate an allegation of sexual abuse or 
    sexual harassment, the care provider facility and ORR must fully 
    cooperate with outside investigators.
        Section 411.72 requires that ORR must, when feasible, notify the UC 
    of the result of the investigation if the UC is still in ORR care and 
    custody following an investigation. If a UC is no longer in ORR custody 
    when investigation results are provided, ORR must attempt to notify the 
    UC of the results where feasible. ORR may use the contact information 
    of the person, organization, or entity the UC was released to in 
    attempting to contact the UC, but ORR is not required to locate a UC if 
    he/she is no longer at the address where he/she was released. The NPREC 
    also recommends that the agency notify other complainants or additional 
    parties that were notified of the allegation of the outcome of the 
    investigation. ORR modified this recommendation, because ORR is not the 
    investigating agency. ORR would not always have contact information 
    about any other complainants and cannot notify reporting parties if 
    they were made anonymously. ORR does not have all the information that 
    an investigating agency would have. Instead, ORR will encourage the 
    investigating agency to notify other complainants, or additional 
    parties notified of the allegation, of the outcome of the 
    investigation.
    Subpart I--Interventions and Discipline
        Section 411.81 addresses disciplinary sanctions for care provider 
    facility staff for violations of ORR or the care provider facility's 
    sexual abuse and sexual harassment-related policies and procedures. 
    Paragraph (a) requires care provider facilities to take disciplinary 
    action up to and including termination against any staff member with a 
    substantiated allegation of sexual abuse or sexual harassment against 
    them or for violating ORR or care provider facility's sexual abuse and 
    sexual harassment policies and procedures. For staff who engaged in 
    sexual abuse or sexual harassment, termination must be the presumptive 
    disciplinary sanction under paragraph (b). In addition, all 
    terminations for violations of ORR or care provider facility sexual 
    abuse and sexual harassment policies and procedures, or resignations by 
    staff who would have been terminated if not for their resignation, must 
    be reported to law enforcement agencies and to any relevant State or 
    local licensing bodies. Under paragraph (d), any staff member with a 
    substantiated allegation of sexual abuse or sexual harassment against 
    him/her at an ORR care provider facility is barred from employment at 
    any ORR care provider facility.
        Section 411.82 discusses corrective actions for contractors and 
    volunteers who engaged in sexual abuse or sexual harassment or violated 
    ORR or the care provider facilities' sexual abuse and sexual 
    harassment-related policies and procedures. Under paragraph (a), any 
    contractor or volunteer who is the subject of a substantiated 
    allegation of sexual abuse or sexual harassment must be prohibited from 
    working or volunteering at the care provider facility and at any ORR 
    care provider facility. Paragraph (b) requires the care provider 
    facility to take appropriate remedial measures and to consider whether 
    to prohibit further contact with UCs by contractors or volunteers who 
    have not engaged in sexual abuse or sexual harassment but have violated 
    other provisions within these standards, ORR sexual abuse and sexual 
    harassment policies and procedures, or the care provider's sexual abuse 
    and sexual harassment policies and procedures.
        Section 411.83 addresses interventions for UCs who engage in sexual 
    abuse. UCs must receive appropriate interventions if they engage in UC-
    on-UC sexual abuse. Decisions regarding which types of interventions to 
    use in particular cases, including treatment, counseling, or 
    educational programs, are made with the goal of promoting improved 
    behavior by the UC and ensuring the safety of other UCs and staff. 
    Considering the age and background of the UC, the appropriate 
    intervention plan should be created to encourage and assist the UC to 
    improve his/her behavior.
        The NPREC made recommendations regarding the imposition of 
    disciplinary sanctions after a finding that a UC engaged in sexual 
    abuse. ORR, however, did not include these recommendations, because 
    care provider facilities do not discipline UCs in a punitive manner. 
    Incidents of UC-on-UC abuse are referred to all investigating 
    authorities, including law enforcement entities, and a UC who poses a 
    danger to him- or herself, to others, or the community may also be 
    transferred to a higher level of care, such as a staff-secure or secure 
    care provider facility. The decision to transfer, however, is not 
    determined as a result of a disciplinary sanction but is determined 
    based on safety concerns and the needs of the UC, as is any lateral 
    transfer or transfer to a higher level of care. If necessary, a UC may 
    also be transferred to a therapeutic care provider facility or 
    residential treatment center if recommended by the care provider's 
    clinician and/or psychiatric assessment. ORR will always ensure that 
    the UC victim is protected from the alleged perpetrator. This may 
    include but is not limited to keeping the victim and alleged 
    perpetrator physically separate and housed in separate parts of the 
    care provider facility; laterally transferring a UC based on the UC's 
    needs; or transferring the alleged perpetrator to a higher-level of 
    care if he/she continues to pose a danger to
    
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    him- or herself, to others, or the community.
        Rather than imposing disciplinary sanctions to control UC behavior, 
    care provider facilities use positive reinforcement via a token economy 
    system. UCs receive extra privileges or the ability to participate in 
    extra activities, such as a movie night, when they exhibit positive or 
    ``good'' behavior. UCs may not be able to participate in extra 
    activities if they do not exhibit good behavior, but UCs never have 
    services taken away nor are they ever placed in isolation for 
    disciplinary reasons.
    Subpart J--Medical and Mental Health Care
        Section 411.91 addresses medical and mental health assessments and 
    histories of sexual abuse. Under paragraph (a), if the assessment 
    pursuant to section 411.41 indicates that a UC experienced prior sexual 
    victimization or perpetrated sexual abuse, the care provider facility 
    must ensure that the UC is immediately referred to a qualified medical 
    or mental health practitioner for medical and/or mental health follow-
    up as appropriate. Care provider facility staff must also ensure that 
    all UCs disclosures are reported in accordance with these standards. 
    All UCs in ORR care regularly meet with care provider facility 
    clinicians and case managers. If, however, the UC requires a higher 
    level of medical or mental health care as a result of past sexual 
    victimization or perpetrated sexual abuse, the care provider facility 
    will refer the UC to qualified medical or mental health providers. 
    After a referral for medical or mental health follow-up is initiated, 
    the care provider facility must ensure that the UC receives a health 
    evaluation no later than seventy-two (72) hours after the referral 
    under paragraph (b). If the referral is for a mental health follow-up, 
    the care provider facility must ensure that the UC receives a mental 
    health evaluation no later than 72 hours after the referral under 
    paragraph (c).
        Section 411.92 covers access to emergency medical and mental health 
    services. ORR provides regular and emergency medical and mental health 
    care for all UCs in its care at all times, but the following standards 
    are set forth to reiterate the importance of immediately providing 
    medical services and crisis intervention services for sexual abuse 
    victims. Regular medical, mental health, and crisis intervention 
    services provided in the normal course of business are reported to ORR 
    in accordance with its policies and procedures. Likewise, any medical, 
    mental health, or crisis intervention services provided for sexual 
    abuse victims must also be timely reported to ORR in accordance with 
    ORR policies and procedures. Paragraph (a) requires care provider 
    facilities to provide UCs who are victims of sexual abuse that occurred 
    while in ORR care timely, unimpeded access to emergency medical 
    treatment, crisis intervention services, emergency contraception, and 
    sexually transmitted infections prophylaxis, in accordance with 
    professionally accepted standards of care, where appropriate under 
    medical or mental health professional standards. Such services must be 
    reported to ORR in accordance with ORR's policies and procedures. 
    Paragraph (b) requires care provider facilities to provide victims 
    access to all medical treatment and crisis intervention services 
    regardless of whether the victim names the abuser or cooperates with 
    any investigation arising out of the incident. UCs should receive 
    immediate medical and mental health treatment any time that it is 
    needed. The NPREC's report made recommendations for when no qualified 
    medical or mental health practitioner are on duty at the time a report 
    of recent abuse is made. ORR did not include these standards, because 
    if there is a medical emergency, care provider facilities take UCs to 
    the local hospital emergency room. Unlike juvenile facilities that have 
    their own medical staff because residents may not leave the facility 
    premises, UCs do not have to receive their medical services at the 
    residential care provider facility. UCs are often taken out in the 
    community to see specialists, dentists, and in the case of emergencies, 
    to the emergency room.
        ORR is mindful that some potential and existing grantees and 
    contractors may have religious or moral objections to providing certain 
    kinds of services, including referrals (for example, for emergency 
    contraception). ORR is committed to providing resources and referrals 
    for the full range of legally permissible services to UCs who need 
    them, helping to facilitate access to these options, and doing so in a 
    timely fashion and in a manner that respects the diverse religious and 
    cultural backgrounds of UCs. At the same time, ORR is also committed to 
    finding ways for organizations to partner with us, even if they object 
    to providing specific services on religious grounds.
        The following are ways in which organizations with such objections 
    may be able to participate in human services programs. (1) Serve as 
    sub-grantees--In many cases, sub-grantees do not need to provide every 
    service for which the grantee is responsible, so long as all UCs served 
    have access to all services required under the grant in a timely and 
    respectful manner. Grantees must ensure that their overall program 
    provides all of the required services, but grantees can use sub-
    grantees to provide some services. Under this arrangement, as long as 
    other sub-grantees are readily available to provide UCs with the 
    objected-to services, a sub-grantee may participate in the grant 
    program while declining to provide services to which they have a 
    religious objection. (2) Apply in a consortium--A second possibility is 
    for faith-based organizations to apply in a consortium with one or more 
    partners. The consortium would allow for a division of responsibility 
    consistent with each organization's principles. Again, as long as UCs 
    have timely access to all required services, different organizations 
    could divide up the services provided. (3) Notify grantor--In some 
    circumstances, another way in which the grantee could ensure access to 
    any program services would be for the grantee to notify the federal 
    program office responsible for the grant if a UC, who has been informed 
    of the available services, may qualify for or be entitled to any 
    program services, including referrals, to which the organization has a 
    religious objection. It would then be the federal agency's 
    responsibility to secure the provision of the needed services, or, if 
    appropriate, transfer the case to another provider.
        For example, if a UC requested emergency contraception but the 
    grantee that housed the UC objected to providing such services on 
    religious or moral grounds, the grantee need only provide notification 
    to ORR in accordance with ORR policies and procedures that the UC 
    requested such services. The grantee is not required to provide further 
    information or services to the UC in relation to the UC's request. Once 
    notified, ORR would then have its Federal staff coordinate the 
    provision of such services for the UC, and the grantee need only allow 
    the UC access to the Federal staff member in order to provide the 
    services. If necessary, the ORR staff member would also coordinate 
    transportation to and from the location where the services are 
    provided.
        All care provider facilities must provide for all the requirements 
    under this subpart but the provision of the requirements are also 
    subject to ORR's faith-based policy language described above. ORR will 
    consider any combination of the approaches described above and is 
    specifically requesting public comment for other approaches that would 
    accomplish the goal of ensuring that UCs have access to
    
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    a full range of services while enabling qualified faith-based 
    organizations to participate in the delivery of those services in a 
    manner consistent with their principles. ORR is committed to working 
    with all grantee and contractors to fulfill their requirements under 
    this rule in a manner that is respectful and sensitive to the grantee 
    and contractor's principles and beliefs.
        Section 411.93 addresses ongoing medical and mental health care for 
    sexual abuse and sexual harassment victims and abusers. ORR provides 
    regular medical care and mental health services, as stated in the last 
    section, but these standards reiterate the importance of close, 
    continued care for UC victims of sexual abuse and sexual harassment. 
    Paragraph (a) requires care provider facilities to offer ongoing 
    medical and mental health evaluations and treatment to all UCs who were 
    sexually abused or sexually harassed while in ORR care and custody. In 
    addition, the evaluation and treatment of such victims must include, as 
    appropriate, follow-up services, treatment plans, and, when necessary, 
    referrals for continued care following their transfer to or placement 
    in other care provider facilities or their release from ORR care and 
    custody under paragraph (b). Paragraph (c) requires care provider 
    facilities to provide victims with medical and mental health services 
    consistent with the community level of care.
        Under paragraph (d), care provider facilities must ensure that 
    female UC victims of sexual abuse by a male abuser while in ORR care 
    and custody are offered pregnancy tests, as necessary. If pregnancy 
    results from an instance of sexual abuse, the care provider facility 
    must ensure that the victim receives timely and comprehensive 
    information about all lawful pregnancy-related medical services and 
    timely access to all lawful pregnancy-related medical services. Care 
    provider facilities must also ensure that all UC victims of sexual 
    abuse that occurred while in ORR care and custody are offered tests for 
    sexually transmitted infections as medically appropriate under 
    paragraph (e). Under paragraph (f), care provider facilities must 
    ensure that UC victims are provided access to treatment services 
    regardless of whether the victim names the abuser or cooperates with 
    any investigation arising out of the incident. Finally, paragraph (g) 
    requires care provider facilities to attempt to conduct a mental health 
    evaluation of all known UC-on-UC abusers within seventy-two (72) hours 
    of learning of such abuse and/or abuse history and offer treatment when 
    deemed appropriate by mental health practitioners. In order for UCs to 
    make informed decisions regarding medical services, care provider 
    facilities should engage the UC in discussions with family members or 
    attorneys of record in accordance with section 411.55 to the extent 
    practicable and follow the appropriate State laws regarding the age of 
    consent for medical procedures. As discussed above (see pages 71-72), 
    insofar as care provider facilities may have religious objections to 
    making such services available, the Federal government, consistent with 
    its 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.
    
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    Paragraph (e) requires that if the care provider facility does not 
    achieve compliance with each standard, it may (at its discretion and 
    cost) request a subsequent audit once it believes that it has achieved 
    compliance.
        Section 411.115 addresses audit appeals. Paragraph (a) allows care 
    provider facilities to file an appeal with ORR regarding any specific 
    audit finding that it believes are incorrect. Such an appeal must be 
    filed within 90 days of the auditor's final determination. Under 
    paragraph (b), if ORR determines that the care provider facility has 
    stated good cause for 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:
         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.
         Section 411.16(b): Care provider facilities must solicit 
    information from job applicants and employees considered for promotion 
    about previous misconduct. If a job applicant previously worked at an 
    institution, care provider facilities must make efforts to solicit 
    information regarding previous misconduct related to sexual abuse and 
    sexual harassment.
         Section 411.16(c) and (d): Care provider facilities must 
    produce background investigation results and documentation to ORR, upon 
    request, for job applicants, volunteers, and contractors.
         Section 411.16(g): Care provider facilities must provide 
    information on substantiated allegations of sexual abuse or sexual 
    harassment involving a former employee upon receiving a request from 
    another care provider facility or institutional employer for whom such 
    employee has applied to work.
         Section 411.22(a)-(c): Care provider facilities are 
    required to report allegations of sexual abuse and sexual harassment to 
    ORR and all appropriate investigating authorities. Care provider 
    facilities must maintain documentation of all reports and referrals of 
    allegations for at least ten years. Care provider facilities must also 
    maintain copies of all agreements or documentation showing attempts to 
    enter into agreements with law enforcement agencies, State or local 
    Child Protective Services, and State or local licensing agencies.
         Sections 411.31(c) and 411.32(c): Care provider facilities 
    must maintain written documentation that employees, contractors, and 
    volunteers have completed required trainings.
         Section 411.33(a), (c)-(e): Care provider facilities must 
    disclose information to UCs regarding the care provider facility's zero 
    tolerance policies in an age and culturally appropriate fashion. All 
    disclosures must be documented.
         Section 411.34(b): Care provider facilities must maintain 
    documentation that medical and mental health practitioners employed or 
    contracted by the care provider facility received required trainings.
         Section 411.51: Care provider facilities must provide 
    information to UCs regarding methods of reporting and contact 
    information to report allegations of sexual abuse and sexual 
    harassment.
    
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    Care provider facilities must also maintain agreements or attempts to 
    enter into agreements with entities that can receive and immediately 
    forward UC reports. Reports made verbally must be documented, and all 
    allegations must be reported to ORR.
         Section 411.52(c): Care provider facilities must have 
    written procedures for identifying and handling 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.
         Section 411.53: Care provider facilities must maintain 
    agreements or attempts to enter agreements with community service 
    providers to provide legal advocacy and confidential emotional support 
    services for UC victims of sexual abuse and sexual harassment. Care 
    provider facilities must also have written policies and procedures to 
    include outside agencies in the care provider facility's sexual abuse 
    and sexual harassment prevention and intervention protocols. Finally, 
    care provider facilities must disclose information to UCs about these 
    local organizations and the assistance they can provide to UC victims 
    of sexual abuse and sexual harassment.
         Section 411.54: ORR provides a method to receive third-
    party reports of sexual abuse and sexual harassment.
         Section 411.61(a)-(b), (d)-(f): Care provider facility 
    staff, volunteers, and contractors are required to report to ORR and 
    third-parties any knowledge, suspicion, or information regarding an 
    incident of sexual abuse or sexual harassment, retaliation, or staff 
    neglect or violation of responsibilities that may have contributed to 
    an incident or retaliation. Care provider facilities must disclose 
    allegations of sexual abuse and sexual harassment to a victim's parents 
    or legal guardians with the UC victim's consent as well as his/her 
    attorney of record, if applicable.
         Section 411.63: Care provider facilities that receive an 
    allegation that a UC was sexually abused while at another care provider 
    facility must immediately report the allegation to ORR. The care 
    provider facility reporting the incident must document that it provided 
    notification to ORR and must also report the allegation to appropriate 
    investigators.
         Sections 411.81(c) and 411.82(a): Care provider facilities 
    must report to law enforcement any staff, contractor, or volunteer who 
    has engaged in sexual abuse or sexual harassment.
         Section 411.101: Care provider facilities are required to 
    collect certain data at the conclusion of every investigation of sexual 
    abuse and sexual harassment and, where the allegation was either 
    substantiated or unable to be substantiated but not determined to be 
    unfounded, must prepare a report. Care provider facilities must also 
    conduct an annual review of all sexual abuse and sexual harassment 
    investigations and provide the results and findings to ORR.
         Section 411.102: Care provider facilities must maintain 
    case records associated with claims of sexual abuse and sexual 
    harassment and the Prevention of Sexual Abuse Compliance Manager must 
    share data with ORR regarding effective care provider facility response 
    methods to sexual abuse and sexual harassment. The PSA Compliance 
    Manager must also prepare a report for ORR compiling information and 
    aggregate incident-based sexual abuse and sexual harassment data. Care 
    provider facilities must also provide information to ORR upon request.
         Section 411.113: Audits must contain certain information 
    outlined in this section regarding a care provider facility's 
    compliance with the standards set forth in this rule.
        We estimate the cost burden for these information collections per 
    year will be approximately $900,000 for approximately 100 care provider 
    facilities, with each care provider facility spending approximately 416 
    hours per year to complete the information collections.
    
    VII. Regulatory Impact Analysis--Executive Order 12866 and 13563
    
        Executive Orders 12866 and 13563 direct agencies to assess all 
    costs and benefits of available regulatory alternatives and, if the 
    regulation is necessary, to select the regulatory approaches that 
    maximize net benefits (including potential economic, environmental, 
    public health and safety effects, distributive impacts, and equity). 
    Executive Order 13563 emphasizes the importance of quantifying both 
    costs and benefits, of reducing costs, of harmonizing rules, and of 
    promoting flexibility. While there are some costs associated with these 
    regulations, they are not economically significant as defined under 
    E.O. 12866. However, the regulation is significant and has been 
    reviewed by OMB.
        Within the IFR, the only areas with associated Federal costs are: 
    hiring new staff or converting existing staff to perform functions as a 
    Prevention of Sexual Abuse Compliance Manager at care provider 
    facilities; training/education, prevention planning; expanding 
    reporting mechanisms; data collection; and conducting regular audits. 
    This IFR has an approximately $6.21 million cost. This includes 
    approximately 100 full-time staff at each care provider facility paid 
    an average salary of $45,000 with fringe benefits at an average rate of 
    27%. The full-time staff will provide training/education and prevention 
    planning as well as complete all reporting requirements and data 
    collections. ORR estimates that an annual contract to complete audits 
    will cost approximately $500,000 annually. This IFR will not only 
    codify existing policies and procedures carried out by the UC Program 
    but will also incorporate recommendations from the National Prison Rape 
    Elimination Commission. This regulation will strengthen the protections 
    and services unaccompanied children receive while in the care of ORR.
    
    VIII. Regulatory Flexibility Analysis
    
        The Secretary certifies under 5 U.S.C. 605(b), as enacted by the 
    Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not 
    result in a significant impact on a substantial number of small 
    entities. This rule primarily affects the operations of the federal 
    government, i.e., the Office of Refugee Resettlement's (ORR) management 
    of the care and custody of unaccompanied children. This rule is 
    primarily intended to ensure that Federally-funded grantees protect, 
    detect, and respond to the sexual abuse and sexual harassment of 
    unaccompanied children in the care and custody of ORR as directed under 
    VAWA 2013. We believe this rule implements the requirements of VAWA 
    2013 and assists care providers to continue providing a safe and secure 
    environment and child-centered services for UC.
        Specifically, as noted under the Collection of Information 
    Requirements section of this preamble, we estimate the cost of 
    implementing the new reporting requirements will be approximately 
    $900,000 annually, which when applied to approximately 100 grantees 
    nationally, results in a cost per grantee of approximately $9,000. In 
    developing this estimate, we assumed that each of the 100 grantees 
    would spend a total of 416 hours to comply with reporting and data 
    collection requirements. Much of the costs associated with the 
    reporting requirements of this rule, however, may be absorbed by 
    existing grants, as several of the reporting requirements are already 
    required under State and local licensing standards and existing ORR 
    policies and procedures.
    
    IX. Unfunded Mandates Reform Act
    
        Section 202 of the Unfunded Mandates Reform Act of 1995 requires
    
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    that a covered agency prepare a budgetary impact statement before 
    promulgating a rule that includes any federal mandate that may result 
    in the expenditure by state, local, and tribal governments, in the 
    aggregate, or by the private sector, of $141 million or more in any one 
    year. The Department has determined that this rule would not impose a 
    mandate that will result in the expenditure by state, local, and tribal 
    governments, in the aggregate, or by the private sector, of more than 
    $100 million in any one year.
    
    X. Congressional Review
    
        This regulation is not a major rule as defined in 5 U.S.C. Chapter 
    8.
    
    XI. Assessment of Federal Regulation and Policies on Families
    
        Section 654 of the Treasury and General Government Appropriations 
    Act of 1999 requires federal agencies to determine whether a proposed 
    policy or regulation may affect family well-being. If the agency's 
    determination is affirmative, then the agency must prepare an impact 
    assessment addressing criteria specified in the law. This regulation 
    will not have an impact on family well-being as defined in this 
    legislation, which asks agencies to assess policies with respect to 
    whether the policy: strengthens or erodes family stability and the 
    authority and rights of parents in the education, nurture, and 
    supervision of their children; helps the family perform its functions; 
    and increases or decreases disposable income.
    
    XII. Executive Order 13132
    
        Executive Order 13132 on federalism requires that federal agencies 
    consult with state and local government officials in the development of 
    regulatory policies with federalism implications. This rule does not 
    have federalism implications for state or local governments as defined 
    in the Executive Order.
    
    List of Subjects in 45 CFR Part 411
    
        Administrative practice and procedure, Child welfare, Immigration, 
    Unaccompanied children, Reporting and recordkeeping requirements.
    
        Dated: December 16, 2014.
    Eskinder Negash,
    Director, Office of Refugee Resettlement.
        Dated: December 16, 2014.
    Mark H. Greenberg,
    Acting Assistant Secretary for Children and Families.
        Approved: December 17, 2014.
    Sylvia M. Burwell,
    Secretary.
        For the reasons discussed above, the Department of Health and Human 
    Services adds part 411 to title 45 of the Code of Federal Regulations 
    as follows:
    
    PART 411--STANDARDS TO PREVENT, DETECT, AND RESPOND TO SEXUAL ABUSE 
    AND SEXUAL HARASSMENT INVOLVING UNACCOMPANIED CHILDREN
    
    
    411.5 General definitions.
    411.6 Definitions related to sexual abuse and sexual harassment.
    Subpart A--Coverage
    411.10 Coverage of ORR care provider facilities.
    Subpart B--Prevention Planning
    411.11 Zero tolerance toward sexual abuse and sexual harassment; 
    Prevention of Sexual Abuse Coordinator and Compliance Manager.
    411.12 Contracting with or having a grant from ORR for the care of 
    UCs.
    411.13 UC supervision and monitoring.
    411.14 Limits to cross-gender viewing and searches.
    411.15 Accommodating UCs with disabilities and UCs who are limited 
    English proficient (LEP).
    411.16 Hiring and promotion decisions.
    411.17 Upgrades to facilities and technologies.
    Subpart C--Responsive Planning
    411.21 Victim advocacy, access to counselors, and forensic medical 
    examinations.
    411.22 Policies to ensure investigation of allegations and 
    appropriate agency oversight.
    Subpart D--Training and Education
    411.31 Care provider facility staff training.
    411.32 Volunteer and contractor training.
    411.33 UC education.
    411.34 Specialized training: Medical and mental health care staff.
    Subpart E--Assessment for Risk of Sexual Victimization and Abusiveness
    411.41 Assessment for risk of sexual victimization and abusiveness.
    411.42 Use of assessment information.
    Subpart F--Reporting
    411.51 UC reporting.
    411.52 Grievances.
    411.53 UC access to outside confidential support services.
    411.54 Third-party reporting.
    411.55 UC access to attorneys or other legal representatives and 
    families.
    Subpart G--Official Response Following a UC Report
    411.61 Staff reporting duties.
    411.62 Protection duties.
    411.63 Reporting to other care provider facilities and DHS.
    411.64 Responder duties.
    411.65 Coordinated response.
    411.66 Protection of UCs from contact with alleged abusers.
    411.67 Protection against retaliation.
    411.68 Post-allegation protection.
    Subpart H--ORR Incident Monitoring and Evaluation
    411.71 ORR monitoring and evaluation of care provider facilities 
    following an allegation of sexual abuse or sexual harassment.
    411.72 Reporting to UCs.
    Subpart I--Interventions and Discipline
    411.81 Disciplinary sanctions for staff.
    411.82 Corrective actions for contractors and volunteers.
    411.83 Interventions for UCs who engage in sexual abuse.
    Subpart J--Medical and Mental Health Care
    411.91 Medical and mental health assessments; history of sexual 
    abuse.
    411.92 Access to emergency medical and mental health services.
    411.93 Ongoing medical and mental health care for sexual abuse and 
    sexual harassment victims and abusers.
    Subpart K--Data Collection and Review
    411.101 Sexual abuse and sexual harassment incident reviews.
    411.102 Data collection.
    411.103 Data review for corrective action.
    411.104 Data storage, publication, and destruction.
    Subpart L--Audits and Corrective Action
    411.111 Frequency and scope of audits.
    411.112 Auditor qualifications.
    411.113 Audit contents and findings.
    411.114 Audit corrective action plan.
    411.115 Audit appeals.
    
        Authority:  42 U.S.C. 15607 (d).
    
    
    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.
    
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        Contractor means a person who, or entity that, provides services on 
    a recurring basis pursuant to a contractual agreement with ORR or with 
    a care provider facility or has a sub-contractual agreement with the 
    contractor.
        DHS means the Department of Homeland Security.
        DOJ means the Department of Justice.
        Director means the Director of the Office of Refugee Resettlement.
        Emergency means a sudden, urgent, usually unexpected occurrence or 
    occasion requiring immediate action.
        Emergency care provider facility is a type of care provider 
    facility that is temporarily opened to provide temporary emergency 
    shelter and services for UCs during an influx. Emergency care provider 
    facilities may or may not be licensed by an appropriate State or local 
    agency.
        Exigent circumstances means any set of temporary and unforeseen 
    circumstances that require immediate action in order to combat a threat 
    to the security of a care provider facility or a threat to the safety 
    and security of any person.
        Gender refers to the attitudes, feelings, and behaviors that a 
    given culture associates with a person's biological sex.
        Gender identity refers to one's sense of oneself as male, female, 
    or transgender.
        Gender nonconforming means a person whose appearance or manner does 
    not conform to traditional societal gender expectations.
        HHS means the Department of Health and Human Services.
        Intersex means a person whose sexual or reproductive anatomy or 
    chromosomal pattern does not seem to fit typical definitions of male or 
    female. Intersex medical conditions are sometimes referred to as 
    disorders of sex development.
        LGBTQI means lesbian, gay, bisexual, transgender, questioning, or 
    intersex.
        Law enforcement means any local, State, or Federal enforcement 
    agency with the authority and jurisdiction to investigate whether any 
    criminal laws were violated.
        Limited English proficient (LEP) means individuals for whom English 
    is not the primary language and who may have a limited ability to read, 
    write, speak, or understand English.
        Medical practitioner means a health professional who, by virtue of 
    education, credentials, and experience, is permitted by law to evaluate 
    and care for patients within the scope of his or her professional 
    practice. A ``qualified medical practitioner'' refers to a professional 
    who also has successfully completed specialized training for treating 
    sexual abuse victims.
        Mental health practitioner means a mental health professional who, 
    by virtue of education, credentials, and experience, is permitted by 
    law to evaluate and care for patients within the scope of his or her 
    professional practice. A ``qualified mental health practitioner'' 
    refers to a professional who also has successfully completed 
    specialized training for treating sexual abuse victims.
        ORR refers to the Office of Refugee Resettlement.
        Pat-down search means a sliding or patting of the hands over the 
    clothed body of an unaccompanied child by staff to determine whether 
    the individual possesses contraband.
        Secure care provider facility is a type of care provider facility 
    with a physically secure structure and staff responsible for 
    controlling violent behavior. ORR uses a secure care provider facility 
    as the most restrictive placement option for a UC who poses a danger to 
    him or herself or others or has been charged with having committed a 
    criminal offense. A secure care provider facility is a juvenile 
    detention center.
        Sex refers to a person's biological status and is typically 
    categorized as male, female, or intersex. There are a number of 
    indicators of biological sex, including sex chromosomes, gonads, 
    internal reproductive organs, and external genitalia.
        Sexual Assault Forensic Examiner (SAFE) means a ``medical 
    practitioner'' who has specialized forensic training in treating sexual 
    assault victims and conducting forensic medical examinations.
        Sexual Assault Nurse Examiner (SANE) means a registered nurse who 
    has specialized forensic training in treating sexual assault victims 
    and conducting forensic medical examinations.
        Special needs means mental and/or physical conditions that require 
    special services and treatment by staff. A UC may have special needs 
    due to a disability as defined in section 3 of the Americans with 
    Disabilities Act of 1990, 42 U.S.C. 12102(2).
        Staff means employees or contractors of ORR or a care provider 
    facility, including any entity that operates within a care provider 
    facility.
        Strip search means a search that requires a person to remove or 
    arrange some or all clothing so as to permit a visual inspection of the 
    person's breasts, buttocks, or genitalia.
        Substantiated allegation means an allegation that was investigated 
    and determined to have occurred.
        Traditional foster care means a type of care provider facility 
    where a UC is placed with a family in a 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
    
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    such act by overt or implied threats of violence, or is unable to 
    consent or refuse:
        (1) Contact between the ***** and the vulva or the ***** and the 
    anus, including penetration, however slight;
        (2) Contact between the mouth and the *****, 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 ***** and the vulva or the ***** and the 
    anus, including penetration, however slight;
        (2) Contact between the mouth and the *****, 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
    
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    services to UCs, the organization must, as part of the contract or 
    cooperative agreement, adopt and comply with the provisions set forth 
    in this part.
        (c) All new contracts, contract renewals, and grants must include 
    provisions for monitoring and evaluation to ensure that the contractor, 
    grantee, or sub-grantee is complying with these provisions.
    
    
    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
    
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    conduct occurs on or off duty. Care provider facilities, consistent 
    with law, must make their best efforts to contact all prior 
    institutional employers of an applicant for employment to obtain 
    information on substantiated allegations of sexual abuse or sexual 
    harassment or any resignation during a pending investigation of alleged 
    sexual abuse or sexual harassment.
        (c) Prior to hiring new staff who may have contact with UCs, the 
    care provider facility must conduct a background investigation to 
    determine whether the candidate for hire is suitable for employment 
    with minors in a residential setting. Upon ORR request, the care 
    provider facility must submit all background investigation 
    documentation for each staff member and the care provider facility's 
    conclusions.
        (d) Care provider facilities also must perform a background 
    investigation before enlisting the services of any contractor or 
    volunteer who may have contact with UCs. Upon ORR request, the care 
    provider facility must submit all background investigation 
    documentation for each contractor or volunteer and the care provider 
    facility's conclusions.
        (e) Care provider facilities must either conduct a criminal 
    background records check at least every five years for current 
    employees, contractors, and volunteers who may have contact with UCs or 
    have in place a system for capturing the information contained in a 
    criminal background records check for current employees.
        (f) Material omissions regarding such misconduct or the provision 
    of materially false information by the applicant or staff will be 
    grounds for termination or withdrawal of an offer of employment, as 
    appropriate.
        (g) Unless prohibited by law, the care provider facility must 
    provide information on substantiated allegations of sexual abuse or 
    sexual harassment involving a former employee upon receiving a request 
    from another care provider facility or institutional employer for whom 
    such employee has applied to work.
        (h) In the event the care provider facility contracts with an 
    organization to provide residential services and/or other services to 
    UCs, the requirements of this section also apply to the organization 
    and its staff.
    
    
    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:
    
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        (1) ORR and the care provider facility's zero tolerance policies 
    for all forms of sexual abuse and sexual harassment;
        (2) The right of UCs and staff to be free from sexual abuse and 
    sexual harassment and from retaliation for reporting sexual abuse and 
    sexual harassment;
        (3) Definitions and examples of prohibited and illegal sexual 
    behavior;
        (4) Recognition of situations where sexual abuse or sexual 
    harassment may occur;
        (5) Recognition of physical, behavioral, and emotional signs of 
    sexual abuse and methods of preventing and responding to such 
    occurrences;
        (6) How to avoid inappropriate relationships with UCs;
        (7) How to communicate effectively and professionally with UCs, 
    including UCs who are lesbian, gay, bisexual, transgender, questioning, 
    or intersex;
        (8) Procedures for reporting knowledge or suspicion of sexual abuse 
    and sexual harassment as well as how to comply with relevant laws 
    related to mandatory reporting;
        (9) The requirement to limit reporting of sexual abuse and sexual 
    harassment to personnel with a need-to-know in order to make decisions 
    concerning the victim's welfare and for law enforcement, investigative, 
    or prosecutorial purposes;
        (10) Cultural sensitivity toward diverse understandings of 
    acceptable and unacceptable sexual behavior and appropriate terms and 
    concepts to use when discussing sex, sexual abuse, and sexual 
    harassment with a culturally diverse population;
        (11) Sensitivity and awareness regarding past trauma that may have 
    been experienced by UCs;
        (12) Knowledge of all existing resources for UCs both inside and 
    outside the care provider facility that provide treatment and 
    counseling for trauma and legal advocacy for victims; and
        (13) General cultural competency and sensitivity to the culture and 
    age of UC.
        (b) All current care provider facility staff and employees who may 
    have contact with UCs must be trained within six months of the 
    effective date of these standards, and care provider facilities must 
    provide refresher information, as appropriate.
        (c) Care provider facilities must document that staff and employees 
    who may have contact with UCs have completed the training.
    
    
    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
    
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    periodically throughout a UC's stay, the care provider facility must 
    obtain and use information about each UC's personal history and 
    behavior using a standardized screening instrument to reduce the risk 
    of sexual abuse or sexual harassment by or upon a UC.
        (b) The care provider facility must consider, at a minimum and to 
    the extent that the information is available, the following criteria to 
    assess UCs for risk of sexual victimization:
        (1) Prior sexual victimization or abusiveness;
        (2) Any gender nonconforming appearance or manner or 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
    
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    immediate attention of proper medical and/or emergency services 
    personnel for further assessment.
        (c) The care provider facility must issue a written decision on the 
    grievance within five days of receipt.
        (d) To prepare a grievance, a UC may obtain assistance from another 
    UC, care provider facility staff, family members, or legal 
    representatives. Care provider facility staff must take reasonable 
    steps to expedite requests for assistance from these other parties.
    
    
    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
    
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    report the allegation to DHS in accordance with DHS policies and 
    procedures.
        (e) The care provider facility must document that it provided such 
    notification to ORR.
    
    
    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.
    
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    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.
    
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    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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