Rule2024-08329
Unaccompanied Children Program Foundational Rule
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 30, 2024
Effective
July 1, 2024
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
This final rule adopts and replaces regulations relating to key aspects of the placement, care, and services provided to unaccompanied children referred to the Office of Refugee Resettlement (ORR), pursuant to ORR's responsibilities for coordinating and implementing the care and placement of unaccompanied children who are in Federal custody by reason of their immigration status under the Homeland Security Act of 2002 (HSA) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). This final rule establishes a foundation for the Unaccompanied Children Program (UC Program) that is consistent with ORR's statutory duties, for the benefit of unaccompanied children and to enhance public transparency as to the policies governing the operation of the UC Program. This final rule implements the 1997 Flores Settlement Agreement (FSA). As modified in 2001, the FSA provides that it will terminate 45 days after publication of final regulations implementing the agreement. ORR anticipates that any termination of the settlement based on this final rule would only be effective for those provisions that affect ORR and would not terminate provisions of the FSA that apply to other Federal Government agencies.
Full Text
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[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34384-34617]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08329]
[[Page 34383]]
Vol. 89
Tuesday,
No. 84
April 30, 2024
Part III
Department of Health and Human Services
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Administration for Children and Families
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45 CFR Part 410
Unaccompanied Children Program Foundational Rule; Final Rule
Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules
and Regulations
[[Page 34384]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 410
RIN 0970-AC93
Unaccompanied Children Program Foundational Rule
AGENCY: Office of Refugee Resettlement (ORR), Administration for
Children and Families (ACF), U.S. Department of Health and Human
Services (HHS).
ACTION: Final rule.
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SUMMARY: This final rule adopts and replaces regulations relating to
key aspects of the placement, care, and services provided to
unaccompanied children referred to the Office of Refugee Resettlement
(ORR), pursuant to ORR's responsibilities for coordinating and
implementing the care and placement of unaccompanied children who are
in Federal custody by reason of their immigration status under the
Homeland Security Act of 2002 (HSA) and the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).
This final rule establishes a foundation for the Unaccompanied Children
Program (UC Program) that is consistent with ORR's statutory duties,
for the benefit of unaccompanied children and to enhance public
transparency as to the policies governing the operation of the UC
Program. This final rule implements the 1997 Flores Settlement
Agreement (FSA). As modified in 2001, the FSA provides that it will
terminate 45 days after publication of final regulations implementing
the agreement. ORR anticipates that any termination of the settlement
based on this final rule would only be effective for those provisions
that affect ORR and would not terminate provisions of the FSA that
apply to other Federal Government agencies.
DATES: This final rule is effective: July 1, 2024.
FOR FURTHER INFORMATION CONTACT: Toby Biswas, Director of Policy,
Unaccompanied Children Program, Office of Refugee Resettlement,
Administration for Children and Families, Department of Health and
Human Services, Washington, DC, (202) 205-4440 or <a href="/cdn-cgi/l/email-protection#035640536c6f6a607a2e516664766f62776c717a426565626a7170436260652d6b6b702d646c75"><span class="__cf_email__" data-cfemail="89dccad9e6e5e0eaf0a4dbeceefce5e8fde6fbf0c8efefe8e0fbfac9e8eaefa7e1e1faa7eee6ff">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Table of Abbreviations
II. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Select Provisions
C. Summary of Costs and Benefits
III. Background and Purpose
A. The UC Program
B. History and Statutory Structure
C. Statutory and Regulatory Authority
D. Basis and Purpose of Regulatory Action
E. Severability
IV. Discussion of Elements of the Proposed Rule, Public Comments,
Responses, and Final Rule Actions
V. Collection of Information Requirements
VI. Regulatory Impact Analysis
A. Economic Analysis
B. Regulatory Flexibility Analysis
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13132: Federalism
F. Executive Order 12988: Civil Justice Reform
VII. Assessment of Federal Regulation and Policies on Families
VIII. Alternatives Considered
I. Table of Abbreviations
ACF--Administration for Children and Families
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
EOIR--Executive Office for Immigration Review
FSA--Flores Settlement Agreement
HHS--U.S. Department of Health and Human Services
HSA--Homeland Security Act of 2002
INS--Immigration and Naturalization Service
OMB--Office of Management and Budget
ORR--Office of Refugee Resettlement, U.S. Department of Health and
Human Services
TVPRA--William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UC Program--Unaccompanied Children Program
II. Executive Summary
A. Purpose of the Regulatory Action
On October 4, 2023, the Office of Refugee Resettlement (ORR)
published a notice of proposed rulemaking (NPRM or proposed rule), to
replace and supersede regulations at 45 CFR part 410, and to codify
policies and requirements concerning the placement, care, and services
provided to unaccompanied children in Federal custody by reason of
their immigration status and referred to ORR.\1\ The NPRM was based on
statutory authorities and requirements provided under the Homeland
Security Act of 2002 (HSA) \2\ and the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (TVPRA),\3\ and proposed
to implement the terms of the 1997 Flores Settlement Agreement (FSA)
that create responsibilities for HHS and ORR. ORR proposed in the NPRM
that the requirements apply to all care provider facilities, including
both standard programs and non-standard programs, as defined below,
unless otherwise specified (88 FR 68909). ORR noted that the proposed
rule was necessary to codify a uniform set of standards and procedures
that will help to ensure the safety and well-being of unaccompanied
children in ORR care, implement the substantive terms of the FSA, and
enhance public transparency as to the policies governing the operation
of the Unaccompanied Children Program (UC Program).
The proposed rule provided a 60-day public comment period, which
ended on December 4, 2023. This final rule responds to comments
received and adopts the proposed rule, with some changes as discussed
herein. ORR thanks the public for commenting on the NPRM.
B. Summary of Select Provisions
This final rule codifies ORR policies and requirements for the
placement, care, and services provided to unaccompanied children in
Federal custody by reason of their immigration status and referred to
ORR, as discussed in section IV of this final rule. In subpart A, ORR
is finalizing its proposal to define terms that are relevant to the
criteria and requirements in the NPRM and to codify the general
principles that apply to the care and placement of unaccompanied
children in ORR care. In subpart B, ORR is finalizing its proposals
regarding the criteria and requirements that apply with respect to
placement of unaccompanied children at ORR care provider facilities,
including specific criteria for placement at particular types of ORR
care provider facilities. In subpart C, ORR is finalizing policies and
procedures regarding the release of unaccompanied children from ORR
care to vetted and approved sponsors. In subpart D, ORR is finalizing
the standards and services that it must meet and provide to
unaccompanied children in ORR care provider facilities. In subpart E,
ORR is finalizing requirements for the safe transportation of
unaccompanied children while in ORR's care. In subpart F, ORR is
finalizing reporting requirements for care provider facilities such
that ORR may compile and maintain statistical information and other
data on unaccompanied children. In subpart G, ORR is finalizing
requirements and policies regarding the transfer of unaccompanied
children in ORR care. In subpart H, ORR is finalizing requirements for
determining the age of an individual in ORR care. In subpart I, ORR is
finalizing its proposal to codify requirements for emergency or influx
facilities (EIFs), which are ORR facilities
[[Page 34385]]
that are opened during a time of emergency or influx. In subpart J, ORR
is finalizing requirements regarding the availability of administrative
review of ORR decisions. Finally, in subpart K, ORR is finalizing its
proposal to establish an independent ombud's office that would promote
important protections for all children in ORR care.
C. Summary of Costs and Benefits
This final rule codifies current ORR requirements for compliance
with the FSA, court orders, and statutes, as well as certain
requirements under existing ORR policy and cooperative agreements. As
discussed in section VII.A of this final rule, HHS and ORR expect these
requirements to impose limited additional costs, including those costs
incurred by the Federal Government to increase the provision of legal
services to unaccompanied children in limited circumstances, to
supplement costs incurred by grant recipients in order to comply with
the finalized requirements (see below), to establish a risk
determination hearing process, and to establish the Unaccompanied
Children Office of the Ombuds (UC Office of the Ombuds) and other
administrative staffing needs. In subpart D at Sec. 410.1309, ORR is
finalizing its proposal, to the greatest extent practicable, subject to
available resources as determined by ORR, and consistent with section
292 of the Immigration and Nationality Act (INA) (8 U.S.C. 1362), that
all unaccompanied children who are or have been in ORR care would have
access to legal advice and representation in immigration legal
proceedings or matters funded by ORR. In subpart J, ORR is finalizing
the establishment of a risk determination hearing process. To
facilitate this process, ORR has developed forms for use by
unaccompanied children, their parents/legal guardians, or their legal
representatives for which we estimate the costs of completion to range
from $10,187 to $56,589 per year. In subpart K, ORR discusses the
establishment of an Office of the Ombuds for the UC Program. In
addition to the Ombuds position itself, ORR anticipates the need for
support staff in the office. ORR estimates the annual cost of
establishing and maintaining this office would be $1,718,529, which
includes the cost of 10 full-time personnel, as discussed in further
detail in VII.A.2 of this final rule.
ORR also notes that all care provider facilities and service
providers discussed in this final rule are recipients of Federal awards
(e.g., cooperative agreements or contracts), and the costs of
maintaining compliance with these proposed requirements are allowable
costs under the Basic Considerations for cost provisions at 45 CFR
75.403 through 75.405,\4\ in that the costs are reasonable, necessary,
ordinary, treated consistently, and are allocable to the award. If
there are additional costs associated with the policies discussed in
this final rule that were not budgeted, and cannot be absorbed within
existing budgets, the recipient would be able to submit a request for
supplemental funds to cover the costs.
III. Background and Purpose
A. The UC Program
The purpose of this rule is to codify policies, standards, and
protections for the UC Program, consistent with the HSA and TVPRA, and
to implement the substantive requirements of the FSA as they pertain to
ORR. On March 1, 2003, section 462 of the HSA transferred
responsibilities for the care and placement of unaccompanied children
from the Commissioner of the Immigration and Naturalization Service
(INS) to the Director of ORR. The HSA defines certain relevant terms
and establishes ORR responsibilities with respect to unaccompanied
children. The HSA defines ``unaccompanied alien child,'' a term ORR
uses synonymously with ``unaccompanied child,'' as ``a child who--(A)
has no lawful immigration status in the United States; (B) has not
attained 18 years of age; and (C) with respect to whom--(i) there is no
parent or legal guardian in the United States; or (ii) no parent or
legal guardian in the United States is available to provide care and
physical custody.'' \5\ The TVPRA, meanwhile, added requirements for
other executive branch departments and agencies to expeditiously
transfer unaccompanied children in their custody to ORR's care and
custody once identified, and together with HHS and other specified
federal agencies to establish policies and programs to ensure
unaccompanied children are protected from human trafficking and other
criminal activities.\6\ Both statutes are described in further detail
in the paragraphs below. Pursuant to these statutory requirements, the
UC Program provides a safe and appropriate environment for
unaccompanied children in ORR custody. In most cases, unaccompanied
children enter ORR custody via transfer from DHS. When DHS immigration
officials, or officials from other Federal agencies or departments,
transfer an unaccompanied child in their custody to ORR, ORR promptly
places the unaccompanied child in the least restrictive setting that is
in the best interests of the child, taking into consideration danger to
self, danger to the community, and risk of flight. ORR considers the
unique nature of each child's situation, the best interest of the
child, and child welfare principles when making placement, clinical,
case management, and release decisions. To carry out its statutory
responsibilities, and consistent with its responsibilities under the
FSA, ORR currently funds residential care providers that provide
temporary housing and other services to unaccompanied children in ORR
custody. These care providers have been primarily State-licensed and
must also meet ORR requirements to ensure a high-quality level of care.
These multiple providers comprise a continuum of care for children,
including placements in individual and group homes, shelter, heightened
supervision, secure facilities, and residential treatment centers.
While in ORR custody, unaccompanied children are provided with
classroom education, healthcare, socialization/recreation, mental
health services, access to religious and legal services, and case
management. Unaccompanied children generally remain in ORR custody
until they are released to a vetted and approved parent or other
sponsor in the United States, are repatriated to their home country,
obtain legal status, or otherwise no longer meet the statutory
definition of an unaccompanied child (e.g., turn 18). Consistent with
the limits of its statutory authority, and in accordance with current
ORR policy, all children who turn 18 years old while in ORR's care and
custody are transferred to DHS for a custody determination. Once
transferred to DHS, that agency considers placement in the least
restrictive setting available after taking into account the
individual's danger to self, danger to the community, and risk of
flight, in accordance with applicable legal authority.
B. History and Statutory Structure
1. HSA and TVPRA
The HSA abolished the former INS and created DHS. The HSA
transferred many of the immigration functions from the INS to DHS, but
it transferred functions under the immigration laws of the United
States with respect to the care of unaccompanied children to ORR.\7\
The HSA makes the ORR Director responsible for a number of functions
with respect to unaccompanied children, including coordinating and
implementing their care and placement, ensuring that unaccompanied
children's interests are considered in actions and
[[Page 34386]]
decisions relating to their care, making and implementing placement
determinations, implementing policies with respect to the care and
placement of children, and overseeing the infrastructure and personnel
of facilities in which unaccompanied children reside.\8\ The HSA also
states that ORR shall not release unaccompanied children from custody
upon their own recognizance, and requires ORR to consult with
appropriate juvenile justice professionals and certain Federal agencies
in relation to placement determinations to ensure that unaccompanied
children are likely to appear at all hearings and proceedings in which
they are involved; are protected from smugglers, traffickers, and
others who might seek to victimize or otherwise engage them in
criminal, harmful, or exploitative activity; and are placed in a
setting in which they are not likely to pose a danger to themselves or
others.\9\ ORR notes that under its current policies, such consultation
is subject to privacy protections for unaccompanied children. For
example, ORR restricts sharing certain case-specific information with
the Executive Office for Immigration Review (EOIR) and DHS that may
deter a child from seeking legal relief. Subject to such protections,
ORR provides notification of the placement decisions to U.S.
Immigration and Customs Enforcement (ICE) and, if referred by U.S.
Customs and Border Protection (CBP), to CBP. ORR provides the following
notification information: identifying information of the unaccompanied
child, ORR care provider name and address, and ORR care provider point
of contact (name and telephone number).\10\
In 2008, Congress passed the TVPRA, which further elaborated duties
with respect to the care and custody of unaccompanied children. The
TVPRA provides that, except as otherwise provided with respect to
certain unaccompanied children from contiguous countries,\11\ and
consistent with the HSA, the care and custody of all unaccompanied
children, including responsibility for their detention, where
appropriate, is the responsibility of the Secretary of HHS. The TVPRA
states that each department or agency of the Federal Government must
notify HHS within 48 hours upon the apprehension or discovery of an
unaccompanied child or any claim or suspicion that a noncitizen
individual in the custody of such department or agency is under the age
of 18.\12\ The TVPRA states further that, except in exceptional
circumstances, any department or agency of the Federal Government that
has an unaccompanied child in its custody shall transfer the custody of
such child to HHS not later than 72 hours after determining such child
is an unaccompanied child. Furthermore, the TVPRA requires the
Secretary of HHS and other specified Federal agencies to establish
policies and programs to ensure that unaccompanied children in the
United States are protected from traffickers and other persons seeking
to victimize or otherwise engage such children in criminal, harmful, or
exploitative activity.\13\ The TVPRA describes requirements with
respect to safe and secure placements for unaccompanied children,
safety and suitability assessments of potential sponsors for
unaccompanied children, legal orientation presentations, access to
counsel, and child advocates, among other requirements. HHS delegated
its authority under the TVPRA to the Assistant Secretary for Children
and Families, which then re-delegated the authority to the Director of
ORR.\14\
2. The Flores Settlement Agreement Terms and Implementation
On July 11, 1985, four noncitizen children in INS \15\ custody
filed a class action lawsuit in the U.S. District Court for the Central
District of California on behalf of a class of minors detained in the
custody of the INS (Flores litigation).\16\ At that time, the INS was
responsible for the custody of minors entering the United States
unaccompanied by a parent or legal guardian. The Flores litigation
challenged ``(a) the [INS] policy to condition juveniles' release on
bail on their parents' or legal guardians' surrendering to INS agents
for interrogation and deportation; (b) the procedures employed by the
INS in imposing a condition on juveniles' bail that their parents' or
legal guardians' [sic] surrender to INS agents for interrogation and
deportation; and (c) the conditions maintained by the INS in facilities
where juveniles are incarcerated.'' \17\ The plaintiffs claimed that
the INS's release and bond practices and policies violated, among other
things, the INA, the Administrative Procedure Act (APA), and the Due
Process Clause and Equal Protection Guarantee under the Fifth
Amendment.\18\ After over 10 years of litigation, the U.S. Government
and Flores plaintiffs entered into the ``Flores Settlement Agreement,''
which was approved by the district court as a consent decree on January
28, 1997.\19\
The FSA applies to both unaccompanied children, as defined in the
HSA, and to children accompanied by their parents or legal
guardians,\20\ but ORR notes that this final rule is intended
specifically to codify requirements regarding the care of unaccompanied
children who have been transferred to the care and custody of ORR. As
relevant to ORR, the FSA imposes several substantive requirements for
Government custody of unaccompanied children, including requiring that
they be placed in the ``least restrictive setting appropriate to the
minor's age and special needs,'' \21\ and establishing a general policy
favoring release of unaccompanied children where it is determined that
detention of the unaccompanied child is not required either to secure
the child's timely appearance for immigration proceedings or to ensure
the unaccompanied child's safety or that of others.\22\ When release is
appropriate, the FSA establishes an order of priority with respect to
potential sponsors. If no sponsor is available, an unaccompanied child
will be placed at a care provider facility licensed by an appropriate
State agency, or, in the discretion of the Government, with another
adult individual or entity seeking custody. Under the original terms of
the FSA, unaccompanied children whom the former INS was unable to
release upon apprehension and detention remained in INS custody,
typically in a licensed program, until they could be appropriately
released; currently, under the FSA, unaccompanied children who are not
released remain in ORR legal custody and may be transferred or released
only under the authority of ORR. The FSA also mandates that any
noncitizen child who remains in Government custody for removal
proceedings is entitled to a bond hearing before an immigration judge,
``unless the [child] indicates on the Notice of Custody Determination
form that he or she refuses such a hearing.'' \23\ The FSA contains
many other provisions relating to the care of unaccompanied children,
including the minimum standards required at licensed care provider
facilities described in Exhibit 1.
The FSA states that within 120 days of the final district court
approval of the agreement, the Government shall initiate action to
publish the relevant and substantive terms of the Agreement in
regulation.\24\ In 1998, the INS published a proposed rule based on the
substantive terms of the FSA, entitled ``Processing, Detention, and
Release of Juveniles.'' \25\ Over the subsequent years, that proposed
rule was not finalized. The FSA originally included a termination date,
but in 2001, the parties agreed to extend the agreement
[[Page 34387]]
and added a stipulation that terminates the FSA ``45 days following
defendants' publication of final regulations implementing t[he]
Agreement.'' \26\ In January 2002, the INS reopened the comment period
on the 1998 proposed rule,\27\ but the rulemaking was ultimately
terminated. Thus, as a result of the 2001 Stipulation, the FSA remains
in effect. The U.S. District Court for the Central District of
California has continued to rule on various motions filed in the case
and oversee enforcement of the FSA.
3. The 2019 Final Rule
On September 7, 2018, DHS and HHS issued a joint proposed rule,
entitled ``Apprehension, Processing, Care, and Custody of Alien Minors
and Unaccompanied Alien Children'' (2018 Proposed Rule).\28\ The
purpose of the proposed rule was to implement the substantive terms of
the FSA, and thus enable the district court to terminate the agreement.
The rule proposed to adopt provisions that were intended to parallel
the relevant substantive terms of the FSA, with some modifications to
reflect statutory and operational changes put in place since the FSA
was entered into in 1997, along with certain other changes.\29\ A final
rule was promulgated on August 23, 2019 (2019 Final Rule), which
comprised two sets of regulations: one issued by DHS and the other by
HHS. The HHS regulations addressed only the care and custody of
unaccompanied children.\30\ The DHS regulations addressed other
provisions of the FSA that pertained to DHS, including the requirement
that after DHS apprehends unaccompanied children it should transfer
them to the custody of HHS.\31\
After DHS and HHS issued the 2018 Proposed Rule and before the 2019
Final Rule was published, plaintiffs in the Flores litigation filed a
Motion to Enforce the FSA. The court deferred ruling on the Motion,
ordering DHS and HHS to file a notice upon issuance of final
regulations, which DHS and HHS did in August 2019. Later that month,
DHS and HHS also filed a Notice of Termination and Motion in the
Alternative to Terminate the FSA, while Plaintiffs filed a supplemental
brief addressing their Motion to Enforce. Plaintiffs' Motion to Enforce
presented the following two separate but related issues: (1) whether
the 2019 Final Rule would effectively terminate the FSA, and (2) if
not, to what extent the Court should enjoin the Government from
implementing the 2019 Final Rule. On September 27, 2019, approximately
one month after the 2019 Final Rule was published, the District Court
for the Central District of California entered an Order granting
Plaintiffs' Motion to Enforce insofar as it sought an order declaring
that the Government failed to terminate the FSA, denied the
Government's Motion to Terminate the FSA, and issued a permanent
injunction consistent with its order.\32\
On December 29, 2020, in Flores v. Rosen, the U.S. Court of Appeals
for the Ninth Circuit affirmed in part and reversed in part the
District Court Order.\33\ Regarding the HHS regulations applicable to
the care and custody of unaccompanied children in the 2019 Final Rule,
the Court of Appeals held that the regulations were ``largely
consistent'' with the FSA, with two exceptions.\34\ First, it held that
the HHS regulation allowing placement of a minor in a secure facility
upon an agency determination that the minor is otherwise a danger to
self or others broadened the circumstances in which a minor may be
placed in a secure facility, and therefore was inconsistent with the
FSA. Second, it held that provisions providing a hearing to
unaccompanied children held in secure or staff-secure placement only if
requested was inconsistent with the FSA's opt-out process for obtaining
a bond hearing. Although the Ninth Circuit held that the majority of
the HHS regulations could take effect, it also held that the District
Court did not abuse its discretion in declining to terminate the
portions of the FSA covered by those regulations, noting that the
Government moved to ``terminate the Agreement in full, not to modify or
terminate it in part.'' \35\ Consistent with its findings, the Ninth
Circuit held that the FSA ``therefore remains in effect,
notwithstanding the overlapping HHS regulations'' and that the
Government, if it wished, could move to terminate those portions of the
FSA covered by the valid portions of the HHS regulations.\36\
Separately, a group of states brought litigation in the District
Court for the Central District of California seeking to enjoin the
Government from implementing the 2019 Final Rule (California v.
Mayorkas), based on other grounds including the APA.\37\ The court
stayed the case, given the related litigation brought by Flores
plaintiffs, which culminated in the Ninth Circuit decision in Flores v.
Rosen. After that decision, the plaintiffs in California v. Mayorkas
filed a supplemental briefing requesting a narrowed preliminary
injunction, alleging that several portions of the HHS provisions of the
2019 Final Rule violated the APA. Subsequently, the parties entered
into settlement discussions. On December 10, 2021, the parties informed
the court that HHS did not plan to seek termination of the FSA under
the terms of the stipulation or to ask the court to lift its injunction
of the HHS regulations. Instead, HHS would consider a future rulemaking
that would more broadly address issues related to the custody of
unaccompanied children by HHS and that would replace the rule being
challenged in California v. Mayorkas. Based on this agreement, the
court ordered that the California v. Mayorkas litigation should be
placed into abeyance with regard to the Plaintiffs' claims against HHS
while HHS engaged in new rulemaking to replace and supersede the HHS
regulations in the 2019 Final Rule.\38\ Further, among other things,
HHS agreed that while it engaged in new rulemaking, it would not seek
to lift the injunction of the 2019 Final Rule or seek to terminate the
FSA as to HHS under the 2019 Final Rule, and that it would make best
efforts to submit an NPRM to OMB by April 15, 2023, providing quarterly
updates to the Court should it not meet that deadline.\39\ In accord
with the relevant order, ORR made best efforts to submit the NPRM to
OMB, and ultimately sent the document to OMB on April 28, 2023.\40\ The
NPRM initiated that broader rulemaking effort, and reflected the
stipulated agreement in California v. Mayorkas. The NPRM applied, as
relevant, the findings of the Ninth Circuit regarding the 2019 Final
Rule in Flores v. Rosen. Because the permanent injunction of the 2019
Final Rule was never lifted, and the FSA continued to remain in effect,
ORR does not anticipate that any third parties would have developed
reliance interests on the HHS regulations in the 2019 Final Rule.
Differences between the 2019 Final Rule and this final rule are
discussed in relevant portions of the preamble below.
4. Lucas R. Litigation
Another ongoing lawsuit involving ORR, filed in 2018, also has
ramifications for this rule. Lucas R. v. Becerra,\41\ a class action
lawsuit, was filed in the U.S. District Court for the Central District
of California, alleging ORR had violated the FSA, the TVPRA, the U.S.
Constitution, and section 504 of the Rehabilitation Act of 1973
(section 504). Based on the plaintiffs' allegations, the court
certified five plaintiff classes comprising all children in ORR
custody:
(1) who are or will be placed in a secure facility, medium-
secure facility, or residential treatment center (RTC), or whom ORR
has continued to detain in any such facility for more than 30 days,
without being afforded notice and an opportunity to be heard before
a neutral and detached
[[Page 34388]]
decisionmaker regarding the grounds for such placement (i.e., the
``step-up class'');
(2) whom ORR is refusing or will refuse to release to parents or
other available custodians within 30 days of the proposed
custodian's submission of a complete family reunification packet on
the ground that the proposed custodian is or may be unfit (i.e.,
``the unfit custodian class'');
(3) who are or will be prescribed or administered one or more
psychotropic medications without procedural safeguards (i.e., the
``drug administration class'');
(4) who are natives of non-contiguous countries and to whom ORR
is impeding or will impede legal assistance in legal matters or
proceedings involving their custody, placement, release, and/or
administration of psychotropic drugs (i.e., the ``legal
representation class''); and
(5) who have or will have a behavioral, mental health,
intellectual, and/or developmental disability as defined in 29
U.S.C. [section] 705, and who are or will be placed in a secure
facility, medium-secure facility, or [RTC] because of such
disabilities (i.e., the ``disability class'').\42\
On August 30, 2022, the U.S. District Court for the Central
District of California granted preliminary injunctive relief concerning
the allegations of the unfit custodian, step-up, and legal
representation classes. As of October 31, 2022, ORR implemented new
policies and procedures on issues identified in the Court's preliminary
injunction order, which ORR is codifying in this final rule. As stated
in the NPRM, as of September 2023, ORR remained in active litigation in
the Lucas R. class action. The proposed rule stated that depending on
developments in the case, ORR may incorporate additional provisions in
the final rule (88 FR 68913).
On January 5, 2024, the Court issued an order preliminarily
approving settlement agreements that the parties negotiated regarding
the legal representation, drug administration, and disability
classes.\43\ A final approval hearing is scheduled for May 2024. As
discussed in this final rule, ORR is finalizing some proposals from the
NPRM as modified to account for developments in the Lucas R.
litigation. As described herein, in this final rule, ORR intends to
codify the requirements of the Lucas R. preliminary injunction. In
addition, in this final rule, ORR is incorporating the terms of the
anticipated legal representation settlement, among other enhancements
to legal services for unaccompanied children. However, ORR is not
incorporating in the final rule all of the various detailed provisions
in the settlements concerning the drug administration and disability
classes, although ORR is incorporating many commenters' recommendations
in these areas. The drug administration and disability settlements
themselves contemplate implementation over time, thereby affording ORR
an opportunity to see how the terms of those settlements work in
practice as they are implemented, and to assess whether changes may be
needed over time due to evolving circumstances. The disability
settlement in particular requires that ORR work with experts to
undertake a year-long comprehensive needs assessment to evaluate the
adequacy of services, supports, and resources currently in place for
children with disabilities in ORR's custody across its network, and to
identify gaps in the current system, which will inform the development
of a disability plan and future policymaking that best address how to
effectively meet the needs of children with disabilities in ORR's care
and custody. Therefore, while ORR is not codifying all the terms of the
anticipated disability and drug administration settlement agreements in
this final rule, ORR is implementing terms in this rule that broadly
reflect its commitment to ensuring that unaccompanied children are
protected from discrimination and have equal access to the UC Program,
as is consistent with section 504, and that psychotropic medications
are administered appropriately in the best interest of the child and
with meaningful oversight.
C. Statutory and Regulatory Authority
As discussed above, under the HSA and TVPRA, the ORR Director \44\
is responsible for the care and placement of unaccompanied children.
Under the HSA, ORR is responsible for ``coordinating and implementing
the care and placement of [unaccompanied children] who are in Federal
custody by reason of their immigration status,'' ``identifying a
sufficient number of qualified individuals, entities, and facilities to
house [unaccompanied children],'' ``overseeing the infrastructure and
personnel of facilities in which [unaccompanied children reside],'' and
``conducting investigations and inspections of facilities and other
entities in which [unaccompanied children] reside, including regular
follow-up visits to such facilities, placements, and other entities, to
assess the continued suitability of such placements.'' \45\ Under the
TVPRA, Federal agencies are required to notify HHS within 48 hours of
apprehending or discovering an unaccompanied child or receiving a claim
or having suspicion that a noncitizen in their custody is under 18
years of age.\46\ The TVPRA further requires that, absent exceptional
circumstances, any Federal department or agency must transfer an
unaccompanied child to the care and custody of HHS within 72 hours of
determining that a noncitizen child in its custody is an unaccompanied
child. The TVPRA requires that HHS and other specified Federal agencies
establish policies and programs to ensure that unaccompanied children
are protected from traffickers and other persons seeking to victimize
or exploit children.\47\ Among other things, it also requires HHS to
place unaccompanied children in the least restrictive setting that is
in the best interest of the child, and states that in making such
placements it may consider danger to self, danger to the community, and
risk of flight. As previously discussed, the Secretary of HHS delegated
the authority under the TVPRA to the Assistant Secretary for Children
and Families,\48\ who in turn delegated the authority to the Director
of ORR.\49\ It is under this delegation of authority that ORR now
issues regulations describing how ORR meets its statutory
responsibilities under the HSA and TVPRA and implements the relevant
and substantive terms of the FSA for the care and custody of
unaccompanied children.
In addition to requirements and standards related to the direct
care of unaccompanied children, HHS is establishing a new UC Office of
the Ombuds to create a mechanism that allows unaccompanied children and
stakeholders to raise concerns with ORR policies and practices to an
independent body. The Ombuds will be tasked with fielding concerns from
any party relating to the implementation of ORR regulations, policies,
and procedures; reviewing individual cases, conducting site visits and
publishing reports, including reports on systemic issues in ORR
custody, particularly where there are concerns about access to services
or release from ORR care; and following up on grievances made by
children, sponsors, or other stakeholders. As stated in the NPRM, at 88
FR 68913, HHS has authority to establish this office under its
authority to ``establish policies and programs to ensure that
unaccompanied alien children in the United States are protected from
traffickers and other persons seeking to victimize or otherwise engage
such children in criminal, harmful, or exploitative activity.'' \50\
D. Basis and Purpose of Regulatory Action
The purpose of this rule is to finalize a regulatory framework that
(1) codifies policies and practices related to the care
[[Page 34389]]
and custody of unaccompanied children, consistent with ORR's statutory
authorities; and (2) implements relevant provisions of the FSA. The FSA
describes ``minimum'' standards for care of unaccompanied children at
licensed care provider facilities, but Congress subsequently enacted
legislation establishing requirements for the UC Program. This final
rule implements the protections set forth in the FSA and broadens them
consistent with the current legal and operational environment, which
has significantly changed since the FSA was signed over 25 years ago.
E. Severability
This is a comprehensive rule containing many subparts that address
many distinct aspects of the UC Program. To the extent any subpart or
portion of a subpart is declared invalid by a court, ORR intends for
all other subparts to remain in effect. For example, ORR expects that
if a court were to invalidate Subpart B (or any of Subpart B's discrete
provisions) relating to the placement of a child, all other subparts--
such as Subpart C (release of the child), Subpart D (minimum standards
and services), Subpart E (transportation), etc.--may continue to
operate and should remain operative independently of the invalidated
subpart.
Additionally, each Subpart also contains many distinct provisions,
many of which may also operate independently of one another; thus, the
invalidation of one particular provision within a particular subpart
would not necessarily have implications for other aspects of that
subpart. For example, within Subpart D, the provision of access to
routine medical and dental care, and other forms of healthcare at Sec.
410.1307 would not be impacted by the invalidation of the provision of
structured leisure time activities at Sec. 410.1302(c)(4) or provision
of legal services under Sec. 410.1309. ORR intends that if one or more
provisions within a subpart are invalidated, that all other provisions
of that subpart (and all other subparts of the rule) remain in effect.
IV. Discussion of Elements of the Proposed Rule, Public Comments,
Responses, and Final Rule Actions
Subpart A--Care and Placement of Unaccompanied Children
ORR proposed in the notice of proposed rulemaking (NPRM) to codify
requirements and policies regarding the placement, care, and services
provided to unaccompanied children in ORR custody (88 FR 68914). The
following provisions identify the scope of this part, the definitions
used throughout this part, and principles that apply to ORR placement,
care, and services decisions.
ORR received many comments on the proposed rule that were not
directed at any specific proposal and will address those here.
Comment: Many commenters supported the proposed rule, stating that
it improved public transparency as to the policies governing the
program and provided rights and protections for unaccompanied children.
Many commenters supported codifying practices based on the HSA and
TVPRA and implementing and enhancing the terms of the FSA and stated
that a uniform set of standards and procedures would create conformity
and clarity to provide for the well-being of unaccompanied children in
ORR care. Several commenters cited ORR's efforts to clarify,
strengthen, and codify these requirements and ensure the consistent
implementation of child welfare principles and protections for children
in ORR's custody. Another commenter commended ORR on its efforts to
incorporate child-centered, trauma-informed principles into the
regulatory standards for the UC Program and adopting more inclusive
language. Other commenters appreciated that the provisions are tailored
to the individualized needs of unaccompanied children and ensure
protection from individuals who seek to exploit or victimize
unaccompanied children.
Response: ORR thanks the commenters for their support.
Comment: One commenter encouraged ORR to provide clarity and more
specifics in areas where appropriations would impact the ability to
carry out the proposed rule.
Response: ORR thanks the commenter. As discussed in Section VI,
funding for UC Program services is dependent on annual appropriations
from Congress. The regulations specifically mention that post-release
services (PRS) and funding for legal service providers are limited to
the extent appropriations are available. The availability of child
advocates and the enhancement of certain services, such as the
transition to a community-based care model, are also impacted by
appropriations. ACF's Justification of Estimates for Appropriation
Committees provides additional information regarding the impact of its
requested budget.\51\
Comment: One commenter indicated that sections within this document
do not align with the latest policy updates.
Response: ORR thanks the commenter and has included discussion of
policy updates throughout this final rule as applicable.
Comment: Some commenters expressed that the rule would circumvent
accountability, provide less transparency, and harm children.
Response: ORR thanks the commenters for their comments. ORR
believes that codifying these requirements will provide more
accountability and will strengthen the UC Program to better protect
children. The NPRM notice and comment process provided additional
transparency and provided the public an opportunity to comment on ORR's
processes and policies.
Comment: Many commenters expressed opposition to the rule and cited
concerns that the proposed regulations did not do enough to prevent
child trafficking.
Response: ORR appreciates and shares the public's concern for the
welfare of unaccompanied children that come through its care, as well
as the need to mitigate and prevent human trafficking. Among other
similar responsibilities, HHS, together with other specified agencies,
has a duty to ``establish policies and programs to ensure that
unaccompanied alien children in the United States are protected from
traffickers and other persons seeking to victimize or otherwise engage
such children in criminal, harmful, or exploitative activity. . . .''
\52\ Accordingly, these agencies, including ORR, have developed
extensive policies and procedures to protect unaccompanied children and
that are memorialized in subregulatory guidance and memoranda of
agreement (MOA).\53\ This rule contains provisions that are consistent
with HHS's statutory responsibilities, many of which codify and
strengthen current policy. For example, this rule codifies ORR's
historic practice of screening all unaccompanied children for potential
trafficking concerns, including during intake, assessments, and sponsor
assessments, and its use of Significant Incident Reports to report such
concerns. The rule also codifies the requirement that ORR refer
concerns of human trafficking to ACF's Office on Trafficking in Persons
(OTIP) within 24 hours in accordance with reporting requirements under
the Trafficking Victims Protection Act of 2008. OTIP reviews the
concerns to assess whether the unaccompanied child is eligible for
benefits and services. Concerns of human trafficking are also reported
to OTIP by post-release service providers, the ORR National Call Center
(NCC),
[[Page 34390]]
legal services providers, law enforcement, child welfare entities,
healthcare providers, other child-serving agencies, and advocates.
Under this rule, if ORR care provider staff, such as a case manager
or clinician, suspect that a child is a victim of trafficking or is at
risk of trafficking at any point during their interaction with an
unaccompanied child, they must make a referral to HHS's ACF OTIP and to
DHS's Homeland Security Investigations Division and DHS's Center for
Countering Human Trafficking for further investigation. OTIP provides
further assistance to ensure that victims can access appropriate care
and services. Such care is then coordinated with ORR to provide direct
referrals for grant-funded comprehensive case management services,
medical services, food assistance, cash assistance, and health
insurance tailored to the child's individual needs. While ORR does not
retain legal custody of unaccompanied children post-release, ORR
considers what, if any, additional action should be taken consistent
with its legal authorities, including but not limited to: reporting the
matter to local law enforcement; child protective services; or state
child welfare licensing authorities; providing PRS to the released
child and their sponsor, if the child is still under 18; requiring
corrective action to be taken against a care provider facility to
remedy any failure to comply with Federal and state laws and
regulations, licensing and accreditation standards; ORR policies and
procedures, and child welfare standards; or providing technical
assistance to the care provider facility, as needed, to ensure that
deficiencies are addressed.
Comment: One commenter stated their belief that the proposed rule
was subject to the National Environmental Policy Act (NEPA) and argued
that ORR must conduct an environmental assessment prior to finalizing
this rule or it will be in violation of NEPA. The commenter pointed to
the location of a facility in a community as having an environmental
impact.
Response: ORR disagrees that an environmental assessment is
necessary under NEPA for two reasons. NEPA applies when there are
``major Federal actions significantly affecting the quality of the
human environment.'' 42 U.S.C. 4332(C). However, in this rule, HHS is
not taking any Federal action that would ``affect'' the quality of the
human environment because it is essentially memorializing aspects of
existing UC Program procedures in a regulation, rather than where they
reside now, in a settlement agreement, statutes, and the ORR UC policy
guide. Because the rule, as a general matter, does not materially
change the UC Program, it does not significantly affect the quality of
the human environment to implicate NEPA. With respect to the ``risk
determination hearings'' described at Sec. 410.1903, ORR notes that
those hearings already occur, but at DOJ instead of at HHS, as set
forth in this rule.
With respect to the creation of the Office of the Ombuds, as
described in subpart K, HHS has determined that the Ombuds Office falls
under a categorical exclusion as delineated in the HHS General
Administration Manual,\54\ which describes certain categories of
actions that do not require environmental review. Specifically, the
Office of the Ombuds falls under Section 30-20-40(B)(2)(g), which
excludes ``liaison functions (e.g., serving on task forces, ad hoc
committees or representing HHS interests in specific functional areas
in relationship with other governmental and non-governmental
entities).'' To carry out its responsibility to confidentially and
informally receive and investigate complaints and concerns related to
unaccompanied children's experiences in ORR care, the Office will
liaise with stakeholders in the UC Program, including both governmental
and non-governmental entities, and as such it is subject to the HHS
categorical exclusion.
In general, HHS has determined that the rule falls under a
categorical exclusion in section 30-20-40(B)(2)(f) of the HHS General
Administration Manual, which provides that environment impact
statements and environmental assessments are not required for ``grants
for social services (e.g., support for Head Start, senior citizen
programs or drug treatment programs) except projects involving
construction, renovation, or changes in land use.'' The UC Program
provides grants for social services. Although the commenter points to
locating a facility as having environmental impact, the rule does not
in any way address issues relating to site selection for ORR facilities
(i.e., the rule does not describe projects involving construction,
renovation, or changes in land use). To the extent the UC Program going
forward may engage in such activities, ORR would engage in proper
environmental review for each such activity. This rule, however, does
not implicate environmental review.
Comment: One commenter stated their belief that the proposed rule
did not include a cost estimate or financial analysis of what the
burden would be to American taxpayers, and stated that before the rule
is finalized, the Office of Management and Budget should review the
rule.
Response: The proposed rule, and this final rule, provide a cost
estimate in the section titled Economic Analysis. The Office of
Management and Budget reviewed the proposed and final rules before
publication.\55\
Final Rule Action: ORR will finalize the majority of the proposals,
with some changes as discussed throughout this rule.
Section 410.1000 Scope of This Part
ORR proposed in the NPRM, at Sec. 410.1000(a), that the scope of
this part pertain to the placement, care, and services provided to
unaccompanied children in Federal custody by reason of their
immigration status and referred to ORR (88 FR 68914). As described in
section III of this final rule, ORR's care, custody, and placement of
unaccompanied children is governed by the HSA and TVPRA, and ORR
provides its services to unaccompanied children in accordance with the
terms of the FSA. ORR also clarified that part 410 would not govern or
describe the entire program. For example, part 411 (describing
requirements related to the prevention of sexual abuse of unaccompanied
children in ORR care) would remain in effect under this rule. ORR notes
that its current policies and practices are described in the online ORR
Policy Guide,\56\ Field Guidance,\57\ manuals describing compliance
with ORR policies and procedures, and other communications from ORR to
care provider facilities. ORR will continue to utilize these vehicles
for its subregulatory guidance and will revise them in connection with
publication of the final rule as needed to ensure compliance with the
final rule. The provisions of this part would, in many cases, codify
existing ORR policies and practices. Further, ORR will continue to
publish subregulatory guidance as needed to clarify the application of
these regulations.
ORR also proposed, at Sec. 410.1000(b), that the provisions of
this part are separate and severable from one another and that if any
provision is stayed or determined to be invalid, the remaining
provisions shall continue in effect (88 FR 68914). Additionally, ORR
proposed in the NPRM at Sec. 410.1000(c) that ORR does not fund or
operate facilities other than standard programs, restrictive placements
(which include secure facilities, including residential treatment
centers, and heightened supervision facilities), or EIFs, absent a
[[Page 34391]]
specific waiver as described under Sec. 410.1801(d) or such additional
waivers as are permitted by law (88 FR 68914).
Comment: One commenter questioned the consistency of the level of
detail used in the NPRM, stating that some parts of the proposed
regulation were very detailed while other requirements were more
general. The commenter suggested that the rule should include either a
statement of general guiding principles from which specific policy and
operational directives will be drawn or, conversely, should include all
specific operational directives for all requirements, thus replacing
existing or significantly modifying the existing ORR Policy Guide.
Response: ORR thanks the commenter for their comment. As clarified
in the NPRM, part 410 will not govern or describe the entire program
(88 FR 68914). Where the regulations contain less detail, subregulatory
guidance will provide specific guidance on requirements. By keeping
some of the requirements subregulatory, ORR will be able to make more
frequent, iterative updates in keeping with best practices and to allow
continued responsiveness to the needs of unaccompanied children and
care provider facilities. The requirements codified in this rule, on
the other hand, may in the future be amended only through future notice
and comment rulemaking or changes in law.
Comment: One commenter stated that while they appreciated the
Administration's work to codify standards, they believe it is also
important to preserve ORR's ability to nimbly respond to emerging
issues through updates to its policy guide, as ORR did during the
COVID-19 pandemic. The commenter recommended that ORR include language
making it clear that nothing in the final rule precludes ORR from
updating policy and guidance to address emergent situations while
prioritizing the best interests of children.
Response: ORR reiterates the clarification that part 410 will not
govern or describe the entire program and that further guidance will be
provided through subregulatory guidance in order to remain nimble to
changing circumstances as the commenter suggests.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1000 as proposed.
Section 410.1001 Definitions
ORR proposed in the NPRM, at Sec. 410.1001, to codify the
definitions of terms that apply to this part (88 FR 68914 through
68916). Some definitions are the same as those found in statute, or
other authorities (e.g., the definition of ``unaccompanied child'' is
the same as the definition of ``unaccompanied alien child'' as found in
the HSA, 6 U.S.C. 279(g)(2)). Notably, for purposes of this rule, ORR
updated certain terms and definitions provided in the FSA (e.g., the
definition of ``influx''). In the NPRM, ORR provided an explanation for
certain definitions, to further explain ORR's rationale when the rule
applies the relevant terms. As discussed in this section, ORR is
revising some of the proposed definitions.
ORR proposed in the NPRM the definition of ``care provider
facility'' to generally describe any placement type for unaccompanied
children, except out of network (OON) placements, and as a result is
broader than the term ``standard program,'' provided below, which, for
example, does not include EIFs (88 FR 68914). ORR also noted that this
definition does not reference ``facilities for children with special
needs,'' a term used in the definition of ``licensed program'' in the
FSA and 45 CFR 411.5. ORR considered not using the term ``facilities
for children with special needs'' within the part for the reasons set
forth below in this section at the proposed definition of ``standard
program.'' Moreover, ORR considered this definition for ``care provider
facility'' to encompass any facility in which an unaccompanied child
may be placed while in the custody of ORR, including any facility
exclusively serving children in need of particular services and
treatment.
ORR proposed in the NPRM a definition of ``disability'' that is
distinct from the NPRM's proposed definition for a ``special needs
unaccompanied child,'' discussed later in this section and which is
derived specifically from the FSA (88 FR 68914). Although some
unaccompanied children may have a disability and have special needs,
the terms are not synonymous. For example, an unaccompanied child
exiting ORR custody may be considered to have a disability within the
definition set forth in section 504 even if the child does not require
services or treatments for a mental and/or physical impairment.
ORR proposed in the NPRM a definition of ``emergency'' that differs
from the definition previously finalized at 45 CFR 411.5, which defines
the term as ``a sudden, urgent, usually unexpected occurrence or
occasion requiring immediate action'' (88 FR 68914). ``Emergency,'' for
purposes of the proposed rule, would reflect the term's usage in the
context of the requirements proposed in the NPRM.
With respect to the definition of the proposed term ``EOIR
accredited representative,'' ORR noted in the NPRM that DOJ refers to
these individuals simply as ``accredited representatives,'' see 8 CFR
1292.1(a)(4), but for purposes of the NPRM, ORR adopted the term ``EOIR
accredited representative'' (88 FR 68914).
ORR proposed in the NPRM that the definition of ``heightened
supervision facility'' incorporate language consistent with the
definition of ``medium secure facility'' provided in the FSA at
paragraph 8 (88 FR 68914). This term replaces the term ``staff secure
facility'' as used under existing ORR policies. ORR decided to change
its terminology because it had become clear that the prior term was not
well understood and did not effectively convey information about the
nature of such facilities.
ORR proposed in the NPRM that the definition of ``influx'' would
change the threshold for declaring an influx, for ORR's purposes, from
the FSA standard, which ORR believes is out of date considering current
migration patterns and its organizational capacity (88 FR 68914 through
68915). The FSA defines influx as ``those circumstances where the INS
has, at any given time, more than 130 minors eligible for placement in
a licensed program.'' ORR's definition, however, would not impact the
rights, and responsibilities of other parties of the FSA. ORR believes
that the proposed definition more appropriately reflects significantly
changed circumstances since the inception of the FSA and provides a
more realistic, fair, and workable threshold for implementing
safeguards necessary in cases where a high percentage of ORR's bed
capacity is in use. The 1997 standard of 130 minors awaiting placement
does not reflect the realities of unaccompanied children referrals in
the past decade, in which the number of unaccompanied children
referrals each day typically exceeds, and sometimes greatly exceeds,
130 children. To leave this standard as the definition of influx would
mean, in effect, that the program is always in influx status.
Accordingly, ORR provided a more realistic and workable threshold for
implementing safeguards necessary in cases where a high percentage of
ORR bed capacity is in use.
With respect to the definition of ``post-release services,'' ORR
noted in the NPRM that assistance linking families to educational
resources may include but is not limited to, in appropriate
circumstances, assisting with school enrollment; requesting an English
language proficiency assessment; seeking an evaluation to determine
whether the child is eligible
[[Page 34392]]
for a free appropriate public education (which can include special
education and related services) or reasonable modifications and
auxiliary aids and services under the Individuals with Disabilities
Education Act or section 504; and monitoring the unaccompanied child's
attendance and progress in school (88 FR 68915). ORR noted that while
the TVPRA requires that follow-up services must be provided during the
pendency of removal proceedings in cases in which a home study
occurred, the nature and extent of those services would be subject to
available resources.
ORR noted, in the NPRM, with respect to the proposed definition of
``runaway risk,'' the FSA and ORR policy currently use the term
``escape risk'' (88 FR 68915). See FSA paragraph 22 (defining ``escape
risk'' as ``a serious risk that the minor will attempt to escape from
custody,'' and providing a non-exhaustive list of factors ORR may
consider when determining whether an unaccompanied child is an escape
risk--e.g., whether the unaccompanied child is currently under a final
order of removal, the unaccompanied child's immigration history, and
whether the unaccompanied child has previously absconded or attempted
to abscond from Government custody). ORR proposed in the NPRM to update
this term to ``runaway risk,'' which is a term used by state child
welfare agencies and Federal agencies to describe children at risk from
running away from home or their care setting (88 FR 68915). Rather than
basing its determination of runaway risk solely on the factors
described in the FSA, ORR proposed in the NPRM that such determinations
must be made in view of a totality of the circumstances and should not
be based solely on a past attempt to run away. This definition of
runaway risk is consistent with how the term is used in the FSA to
describe escape from ORR care, i.e., from a care provider facility. ORR
noted throughout the proposed rule that the TVPRA uses the term ``risk
of flight,'' stating HHS ``may'' consider ``risk of flight,'' among
other factors, when making placement determinations.\58\ ORR
understands that in the immigration law context, ``risk of flight''
refers to an individual's risk of not appearing for their immigration
proceedings.\59\ ORR proposed in the NPRM, with respect to its
responsibilities toward unaccompanied children in its custody, to
interpret ``risk of flight'' as including ``runaway risk,'' thereby
adding runaway risk to the list of factors it would consider in making
placement determinations. Runaway risk often overlaps with concern that
an unaccompanied child may not appear for the child's immigration
proceedings. ORR also noted that runaway risk may also relate to
potential danger to self or the community, given the inherent risks to
unaccompanied children who run away from custody (88 FR 68915).
With respect to the proposed definition of ``secure facility,'' ORR
noted that the FSA uses but does not provide a definition for this term
(88 FR 68915). Nevertheless, the proposed definition is consistent with
the provisions of the FSA that apply to secure facilities. ORR also
noted that the proposed definition differs from the definition in the
2019 Final Rule, which could have been read to indicate that any
contract or cooperative agreement for a facility with separate
accommodations for minors is a secure facility. Such a definition risks
erroneously confusing other types of ORR placements that are not secure
with secure placements and, therefore, ORR proposed in the NPRM an
updated definition in the NPRM.
ORR proposed in the NPRM to change the definition of ``special
needs unaccompanied child,'' to the term ``special needs minor'' as
described within the FSA at paragraph 7 and by using the phrase
``intellectual or developmental disability'' instead of ``mental
illness or retardation'' as used in the FSA (88 FR 68915). ORR
understands that this update reflects current terminology which has
superseded the terminology used in the FSA (``retardation''). Although
an unaccompanied child with a disability, as defined in this section,
could also be a ``special needs unaccompanied child'' as incorporated
here, the definition of disability is broader and thus the terms are
not synonymous. To further this clarification, ORR proposed in the NPRM
a separate definition for disability earlier in this section that
incorporates the meaning of the term across applicable governing
statutory authorities. ORR also considered not defining and not using
the term ``special needs unaccompanied child'' within the part for the
reasons set forth below at proposed Sec. Sec. 410.1103 and 410.1106.
ORR proposed in the NPRM a definition of ``standard program'' that
reflects and updates the term ``licensed program'' at paragraph 6 of
the FSA (88 FR 68915 through 68916). The FSA does not discuss
situations where States discontinue licensing, or exempt from
licensing, childcare facilities that contract with the Federal
Government to care for unaccompanied children because such facilities
provide shelter and services to unaccompanied children as has happened
recently in some States.\60\ ORR proposed in the NPRM a definition of
``standard program'' that is broader in scope to account for
circumstances wherein licensure is unavailable in the State to programs
that provide residential, group, or home care services for dependent
children when those programs are serving unaccompanied children. ORR
notes that most States where ORR has care provider facilities have not
taken such actions, and that wherever possible standard programs would
continue to be licensed consistent with current practice under the FSA.
However, ORR considered substituting the term ``licensed program'' with
the proposed updated term ``standard program'' in order to establish
that the requirement that facilities in those States must still meet
minimum standards, consistent with requirements for licensed facilities
expressed in the FSA at Exhibit 1, in any circumstance in which a State
will not license a facility because the facility is housing
unaccompanied children.\61\ ORR solicited comments on using the
proposed definition of ``standard program'' in lieu of the term
``licensed program.''
ORR proposed in the NPRM a definition for ``standard program'' to
encompass any program operating non-secure facilities that provide
services to unaccompanied children in need of particular services and
treatment or to children with particular mental or physical conditions
(88 FR 68916). Given this, ORR believed the continued use of language
such as ``facilities for children with special needs'' and ``facilities
for special needs minors,'' as used in the FSA definition of ``licensed
program,'' was unnecessary for this regulation, and potentially
problematic for reasons discussed elsewhere within this section and at
proposed Sec. Sec. 410.1103 and 410.1106. ORR included this language
to ensure consistency with the FSA, but it considered not using the
term ``special needs unaccompanied child'' or specifying that
facilities for special needs unaccompanied children operated by a
standard program are covered by the requirements that apply to standard
programs in the part. Therefore, ORR also solicited comments in this
section on its proposal to not include in the definition of ``standard
program'' the FSA terminology used in the term ``licensed program''
referencing facilities for special needs unaccompanied children or a
facility for special needs unaccompanied children.
ORR proposed in the NPRM to define ``trauma bond'' consistent with
how the Department of State's Office to Monitor and Combat Trafficking
in Persons defines the term in its factsheet, Trauma
[[Page 34393]]
Bonding in Human Trafficking (88 FR 68916).\62\
ORR proposed in the NPRM to define ``trauma-informed,'' based upon
its belief that a trauma-informed approach to the care and placement of
unaccompanied children is essential to ensuring that the interests of
children are considered in decisions and actions relating to their care
and custody (88 FR 68916).\63\ ORR interprets trauma-informed system,
standard, process, or practices consistent with the 6 Guidelines To A
Trauma-Informed Approach adopted by the Centers for Disease Control and
Prevention (CDC) and developed by the Substance Abuse and Mental Health
Services Administration (SAMHSA).
ORR received comments on the following definitions.
Attorney of Record
Comment: One commenter recommended changes to the definition of
``attorney of record.'' The commenter recommended that ORR revise the
definition to specifically define an ``attorney'' as ``an individual
licensed to practice law in any U.S. jurisdiction'' but then make clear
that non-attorneys may represent a child in their immigration
proceedings. The commenter also urged ORR to remove reference to the
requirement that an attorney ``protects [unaccompanied children] from
mistreatment, exploitation, and trafficking, consistent with 8 U.S.C.
1232(c)(5),'' explaining that the statute cited requires that HHS
ensure counsel because that will protect unaccompanied children from
mistreatment, exploitation, and trafficking, but not that counsel is
required to protect the child. The commenter continued, that although
in many instances having counsel will ensure a child's protection, the
duty to protect, as outlined in the proposed definition, may conflict
with an attorney's duty to represent the child's expressed interests as
required by the rules of professional conduct.
Response: ORR thanks the commenter. The definition of attorney of
record states that the attorney represents the unaccompanied child in
legal proceedings, so ORR does not think it is necessary to also
indicate that the attorney is licensed for such representation. ORR
does agree with the commenter that the addition of the referenced
language from the TVPRA improperly implies that the attorney is
required to protect the child and that it should remove that language
from the definition.
Final Rule Action: ORR is revising the proposed definition of
``attorney of record'' to remove the phrase ``and protects them from
mistreatment, exploitation, and trafficking, consistent with 8 U.S.C.
1232(c)(5).''
Best Interest
Comment: Many commenters commented on the definition of ``best
interest.'' Commenters recommended expanding the definition of ``best
interest'' to more explicitly address the following factors: the impact
of family relationships and importance of family integrity, the impact
of Federal custody on an unaccompanied child's well-being, their
safety, and their identity including their race, religion, ethnicity,
sexual orientation, and gender identity.
Response: ORR thanks the commenters. ORR notes that the rule
provides a non-exhaustive list of factors ORR may consider in
evaluating what is in a child's best interest. ORR understands the
listed factors to already encompass additional factors suggested by the
commenters. Further, ORR notes that some of the factors recommended by
commenters are also already provided as considerations for placement
under Sec. 410.1103. Having said that, ORR will further consider
whether to expand on the definition of best interest in future
policymaking.
Final Rule Action: ORR is finalizing the definition of ``best
interest'' as proposed.
Care Provider Facility
Comment: One commenter supported the proposed term ``care provider
facility,'' stating that by making it broader than ``standard
program,'' it will help clarify the meaning of influx or emergency
facilities. Another commenter recommended that the definition of ``care
provider facility'' meet the definition of ``child care institution''
at section 472(c)(2)(A) of the Social Security Act in order to align
all institutions and facilities serving vulnerable children residing
within and across states, including but not limited to unaccompanied
children.
Response: ORR thanks the commenter for their support. Regarding the
definition in the Social Security Act, section 472(c)(2)(A) defines
``child care institution'' as ``a private child-care institution, or a
public childcare institution which accommodates no more than 25
children, which is licensed by the State in which it is situated or has
been approved by the agency of the State responsible for licensing or
approval of institutions of this type as meeting the standards
established for the licensing.'' Although ORR appreciates the comment,
section 472 of the Social Security Act is specific to State payments to
foster care programs and does not govern the ORR UC Program. Although
ORR strives to place children in care settings with small numbers of
children, it is not always possible to do so. Additionally, ORR has
further requirements that care provider facilities must meet in
addition to those relating to State licensing.
Final Rule Action: ORR is finalizing the term care provider
facility as follows: Care provider facility means any physical site,
including an individual family home, that houses one or more
unaccompanied children in ORR custody and is operated by an ORR-funded
program that provides residential services for unaccompanied children.
Out of network (OON) placements are not included within this
definition.
Case File
Comment: One commenter supported the inclusion of home study and
PRS records as part of the case file definition and, by so doing,
including such records as protected information, agreeing that
unaccompanied children's case files and related information should
receive strong safeguards from unauthorized access, misuse, and
inappropriate disclosure. However, the commenter requested clarity
regarding the meaning of ``correspondence'' within the definition,
asking if it was meant to cover a limited set of materials regarding
the child's unification, such as any correspondence with parents and
sponsors done by ORR staff or provider case managers. The commenter
expressed concern that this is not consistent with the other use of
``correspondence'' in the NPRM at Sec. 410.1304(a)(2)(ii), where the
word ``correspondence'' appears to be meant to include personal
correspondence between the unaccompanied child and whomever the child
wishes to correspond with, including a friend, relative, parent,
attorney, or child advocate. Such materials should be the child's
personal property and not the property of ORR.
Response: ORR thanks the commenter. ORR notes that the definition
of case file is ``the physical and electronic records for each
unaccompanied child that are pertinent to the care and placement of the
child.'' Accordingly, personal correspondence that is not pertinent to
the care and placement of the child would not be part of the case file.
However, for the sake of clarity, ORR will revise the proposed
definition to state that the case file includes ``correspondence
regarding the child's case.''
[[Page 34394]]
Comment: One commenter did not support the statement within the
proposed definition of case file that ``[t]he records of unaccompanied
children are the property of ORR.'' The commenter acknowledged the
importance of strong, universal standards governing children's records
in order to consistently protect the confidentiality of their
Personally Identifiable Information (PII) but stated that the ownership
of children's records is a more complicated issue. The commenter
stated, as an example, that when a child brings documents such as a
birth certificate into custody, the Federal Government holds that
document, but does not own it. The commenter stated that the birth
certificate belongs to the child and the child's parent and legal
guardian, and the document and its content can be shared with the
child's or parent's consent.
Response: ORR notes that, consistent with UC Program's System of
Records Notice (SORN), unaccompanied children have access to, and are
entitled to copies of, their own case file records, consistent with the
provisions of the Privacy Act, codified at 5 U.S.C. 552a.\64\ An
unaccompanied child's attorney of record also has the ability to
request the child's full case file at any time. With respect to
original documents such as a child's birth certificate, ORR notes that
it is amending the definition of ``case file'' to note that it includes
``copies of'' birth and marriage certificates.
Final Rule Action: ORR is revising the proposed definition to add
that case file materials include ``but are not limited to'' the
materials listed in the definition. ORR is also adding the phrase
``regarding the child's case'' after ``correspondence.'' ORR is also
adding ``copies of'' before birth and marriage certificates.
Additionally, in order to be consistent with finalized Sec.
410.1303(h)(2), ORR is adding ``except for program administration
purposes'' at the end of the definition. ORR is otherwise finalizing
the definition as proposed.
Close Relative
Final Rule Action: As discussed in Sec. 410.1205, ORR is
finalizing the definition of ``close relative'' as a type of potential
sponsor, as follows: ``Close relative means a brother, sister,
grandparent, aunt, uncle, first cousin, or other immediate biological
relative, or immediate relative through legal marriage or adoption, and
half-sibling.''
Community-Based-Care
Comment: One commenter did not support the proposed definition of
community-based care, believing that it is overly broad. The commenter
recommended retaining ``traditional foster care'' instead.
Response: ORR thanks the commenter for their comment. ORR notes
that it is planning to transition to a community-based care model that
will restructure ORR's existing transitional foster care and long-term
foster care programs to operate within a continuum of care including
basic and therapeutic foster family settings as well as supervised
independent living group home settings, to more effectively place and
support children in non-congregate settings. However, ORR plans to
describe this transition in future policymaking, and therefore is not
finalizing the term ``community-based care'' in this rule. ORR will
consider this commenter's feedback as it continues transitioning to
this model. Additional details and responses to public comments on
community-based care are described in subpart B.
Final Rule Action: ORR is not finalizing codification of the
definition for the term ``community-based care,'' though ORR has sought
to provide further details relating to the broad standards applicable
to the term in subpart B.
Disposition
Comment: One commenter stated that the proposed rule uses the term
``disposition'' as a term of art but does not define what disposition
signifies, includes, or excludes.
Response: The term ``disposition'' appears three times in the
regulation, twice as ``case disposition'' and once as the ``disposition
of any actions in which the unaccompanied child is the subject.'' ORR
believes that the meaning of disposition is clear in context and so the
term does not necessitate a definition.
Final Rule Action: ORR is not finalizing a definition for
``disposition.''
Executive Office for Immigration Review (EOIR) Accredited
Representative
Comment: One commenter recommended that ORR change the term ``EOIR
accredited representative'' to ``DOJ accredited representative,''
stating that the term is commonly referred to as ``DOJ accredited
representative'' and that adopting a different term in these proposed
regulations will cause unnecessary confusion and be inconsistent with
how representatives are referred to elsewhere.
Response: ORR thanks the commenter and agrees to revise the term to
``DOJ Accredited Representative.'' ORR is updating this term throughout
the rest of this final rule, even where summarizing NPRM language which
used the term ``EOIR accredited representative.''
Final Rule Action: ORR is revising the term to ``DOJ Accredited
Representative'' and otherwise finalizing the definition of such term
as proposed.
Emergency
Comment: Some commenters did not support the proposed definition of
``emergency,'' believing that it relaxes standards and changes a
commonly understood term.
Response: The FSA defines emergency, for purposes of paragraph 12
of the FSA, as ``an act or event that prevents the placement of minors
pursuant to paragraph 19 within the timeframe provided.'' In turn,
paragraph 19 of the FSA describes the requirement to place
unaccompanied children in licensed programs until they can be released
to a sponsor--``provided, however, that in the event of an emergency a
licensed program may transfer temporary physical custody of a minor
prior to securing permission from the INS but shall notify the INS of
the transfer as soon as is practicable thereafter, but in all cases
within 8 hours.'' The FSA states at paragraph 12B that emergencies
include ``natural disasters (e.g., earthquakes, hurricanes, etc.),
facility fires, civil disturbances and medical emergencies (e.g., a
chicken pox epidemic among a group of minors).'' In the NPRM, ORR
proposed to define ``emergency'' as ``an act or event (including, but
not limited to, a natural disaster, facility fire, civil disturbance,
or medical or public health concerns at one or more facilities) that
prevents timely transport or placement of unaccompanied children, or
impacts other conditions provided by this part (88 FR 68979). ORR is
therefore codifying the term emergency as used in the FSA.
Final Rule Action: ORR is finalizing the term ``emergency'' as
proposed.
Emergency or Influx Facility (EIF)
Comment: One commenter expressed concern that the proposed rule
defined emergency or influx facility as ``a type of care provider
facility that opens temporarily to provide shelter and services for
unaccompanied children'' but does not define temporary. Another
commenter urged ORR to incorporate additional language that unlicensed
placements, such as emergency and influx sites, should only be utilized
as a last resort.
[[Page 34395]]
Response: As stated in the NPRM, ORR has a strong preference to
house unaccompanied children in standard programs (88 FR 68955).
However, ORR notes that in times of emergency or influx, additional
facilities may be needed on short notice to house unaccompanied
children. Consistent with current policy, ORR intends that under this
rule it will cease placements at EIFs if net bed capacity of ORR's
standard programs that is occupied or held for placement of
unaccompanied children drops below 85 percent for a period of at least
seven consecutive days.
Final Rule Action: For consistency and clarity, ORR is replacing
the proposed second sentence of the definition, which read ``These
facilities are not otherwise categorized as a standard or secure
facility in this part'' with ``An EIF is not defined as a standard
program, shelter, or secure facility under this part.'' ORR is also
replacing the phrase ``they may not be licensed'' with ``they may be
unlicensed'' to remove any possible implication that they are not
allowed to be licensed. ORR is otherwise finalizing the term
``emergency or influx facility (EIF)'' as proposed.
Family Planning Services
Comment: A few commenters suggested that ORR amend the list of
family planning services to include abortion, arguing that abortion
should be included in the definition of family planning services to
avoid stigmatizing abortion.
Response: ORR thanks the commenters for their comments. ORR notes
that its proposed definition of ``family planning services'' is
consistent with other HHS regulations and publications.\65\ As noted in
the NPRM, ORR has included abortion in the definition of medical
services requiring heightened ORR involvement (88 FR 68979). One
commenter suggested revising the definition by updating ``pregnancy
testing and counseling'' in the list of family planning services to
``pregnancy testing and non-directive pregnancy counseling.'' ORR
accepts the recommendation to update ``counseling'' to ``non-directive
options counseling'' in the definition of Family Planning Services in
the regulatory text, as it aligns with ORR's intended meaning and
aligns with corresponding language in Field Guidance #21.
Final Rule Action: ORR is adding the phrase ``non-directive
options'' before ``counseling'' and otherwise, finalizing the term
``Family Planning Services'' as proposed.
Heightened Supervision Facility
Comment: One commenter supported the inclusion in the term's
definition that ``heightened supervision facilities'' ``provide
supports'' to children with higher needs. The commenter encouraged ORR
to eliminate the definition's focus on security and replace text with
reference to additional personalized and intensive service provision.
Response: ORR thanks the commenter for their comment. ORR notes
that the definition merely defines the facility and how it differs from
a shelter facility. Heightened supervision facilities are required to
meet the minimum standards for standard programs. ORR notes that it is
important to describe the level of restriction at these facilities
because certain requirements need to be met for children to be placed
in heightened supervision facilities under subpart B and children have
a right to review placement in these facilities under subpart J.
Final Rule Action: As further discussed at the preamble text for
Sec. 410.1302, ORR is adding the phrase ``or that meets the
requirements of State licensing that would otherwise be applicable if
it is in a State that does not allow state licensing of programs
providing care and services to unaccompanied children,'' after
``licensed by an appropriate State agency.''
Influx
Comment: Many commenters supported the proposed definition of
``influx,'' noting that the updated definition is more realistic in
light of recent immigration trends and would reduce the placement of
unaccompanied children in emergency facilities. One commenter
recommended that the definition be amended to account for the
trajectory of incoming unaccompanied children to reach or exceed 85
percent of bed capacity within 30 days in order to trigger EIFs from
cold to warm status.
Response: ORR thanks the commenters. ORR intends through this final
rule to update the FSA definition of influx to account for current
circumstances at the southern border. However, because migration
patterns are unpredictable, ORR believes it is appropriate to maintain
subregulatory procedures with respect to preparing for the use of EIFs,
based on the definition of influx codified in this rule.
Comment: One commenter supported ORR's proposal to adopt a
definition of ``influx'' that differs from the FSA, agreeing that the
FSA standard set forth in 1997 does not reflect the realities of
unaccompanied children awaiting placement that have been experienced in
the last decade. However, the commenter expressed their view that ORR
has consistently underutilized available licensed beds in its network
and placed unaccompanied children in active influx care facilities when
licensed facilities were available. The commenter stated further their
concern that the proposed definition would have an influx hinge
entirely on ORR's network capacity, as opposed to the actual numbers of
unaccompanied children entering the agency's care. Another commenter
requested clarification regarding the safeguards referenced in the
definition of influx.
Response: ORR thanks the commenters. ORR appreciates the
commenter's concern about basing the definition of influx on the net
bed capacity of standard programs, however basing it on numbers of
unaccompanied children proved insufficient as migration numbers greatly
increased and the static number became outdated. The original intent of
the FSA definition was to identify circumstances in which there is a
sudden need to expand capacity and not sufficient time to use the
ordinary supply-building process. Looking at referrals in relation to
current net bed capacity of ORR's standard programs that is occupied or
held for placement of unaccompanied children is a better way to reflect
that need and sets the definition of influx at a level vastly higher
than what would have been required had ORR maintained the FSA
definition. ORR also notes that standard capacity beds may be
unavailable for a variety of reasons including staffing shortages;
licensing restrictions on age, gender, or ratios; or building issues
(e.g., water leaks) that prevent the safe placement of children. These
causes of unavailability are not controlled by ORR, but are examples of
issues that may restrict ORR's access to standard beds in its network
of care on a given day. ORR will continue to monitor the numbers of
unaccompanied children and the number of available standard placements
to determine if further updates are needed in the future.
Final Rule Action: ORR is replacing the term ``for purposes of this
part'' with ``for purposes of HHS operations'' and otherwise finalizing
the definition of ``influx'' as proposed.
Least Restrictive Placement
Comment: One commenter expressed concern that ``least restrictive
placement'' is not defined, and that it may be inferred that the least
restrictive placement is by default, anything that is
[[Page 34396]]
not a ``restrictive placement,'' which is defined. The commenter
expressed concern that the proposed regulations do not recognize the
commenter's belief that some non-restrictive placements are more
restrictive than other non-restrictive placements.
Response: ORR notes that it intends the term ``least restrictive
placement'' be read consistent with the TVPRA requirement that
unaccompanied children in the custody of HHS be ``promptly placed in
the least restrictive setting that is in the best interest of the
child,'' and that in making such placements HHS ``may consider danger
to self, danger to the community, and risk of flight,'' among other
requirements. 8 U.S.C. 1232(c)(2)(A).
Final Rule Action: ORR is not adopting a definition of ``least
restrictive placement.''
LGBTQI+
Comment: A few commenters recommended expanding the definition of
LGBTQI+, which the NPRM defined as meaning ``lesbian, gay, bisexual,
transgender, queer or questioning, intersex,'' to include an
explanation of the ``+'' symbol. The commenters stated their belief
that expanding the definition would make the definition more complete
and would better encompass the many other identities that make up the
LGBTQI+ community.
Response: ORR thanks the commenters. ORR appreciates that the term
LGBTQI+ is an umbrella term that is broader than the term LGBTQI, and
accordingly has revised the regulatory definition to say that the term
``includes'' lesbian, gay, bisexual, transgender, questioning or
intersex, as defined at 45 CFR 411.5. This change helps to make clear
that the term LGBTQI+ includes additional identities such as non-
binary.
Final Rule Action: ORR is revising the definition to replace
``means'' with ``includes'' and is otherwise finalizing the definition
of LGBTQI+ as proposed.
Mechanical Restraints
Final Rule Action: For the reasons discussed in the preamble
discussion of Sec. 410.1304(e)(1), ORR is clarifying the definition of
mechanical restraints by adding a second sentence to the definition, as
follows: ``For purposes of the Unaccompanied Children Program,
mechanical restraints are prohibited across all care provider types
except in secure facilities, where they are permitted only as
consistent with State licensure requirements.'' ORR is otherwise
finalizing the definition as proposed.
Medical Services Requiring Heightened ORR Involvement
Comment: A few commenters recommended that ORR revise the
definition of medical services requiring heightened ORR involvement to
clarify that the heightened involvement is only to ensure quick
transportation or transfer for abortion, as needed, and not to create
obstacles to impede access to abortion.
Response: ORR acknowledges the importance of not creating obstacles
to needed medical services, including but not limited to abortion, but
does not believe that the definition of medical services requiring
heightened ORR involvement needs to be modified in order to make this
point clear. ORR is revising Sec. 410.1307 to further clarify that ORR
will not prevent unaccompanied children in ORR care from accessing
healthcare services, including medical services requiring heightened
ORR involvement and family planning services, and ORR must make
reasonable efforts to facilitate access to those services if requested
by the unaccompanied child.
Final Rule Action: ORR is finalizing the definition of ``medical
services requiring heightened ORR involvement'' as proposed.
ORR Long-Term Home Care
Comment: One commenter stated they had no objection to the proposed
change from ``long-term foster care'' to ``long-term home care.''
Another commenter suggested that the definition of ``ORR long-term home
care'' be clarified to indicate whether children need to have viable
legal cases in the particular State to be placed in that program versus
the ``legal proceedings'' that all children in ORR care are in.
Response: ORR thanks the commenters. Part of the proposed
definition reads that ``[a]n unaccompanied child may be placed in long-
term home care if ORR is unable to identify an appropriate sponsor with
whom to place the unaccompanied child during the pendency of their
legal proceedings.'' ORR clarifies that the legal proceedings
referenced are immigration legal proceedings and is amending the
definition accordingly.
Final Rule Action: ORR is adding the word ``immigration'' before
``legal proceedings'' and is otherwise finalizing the definition of
``ORR long-term home care'' as proposed.
Out of Network (OON) Placement
Comment: Some commenters expressed concern that OON facilities were
excluded from the definition of care provider facility and that the
definition of OON placements does not require they are State licensed
or follow the requirements of a standard program. Commenters requested
clarification regarding standards applicable to OON placements. One
commenter recommended that the definition of OON placement be revised
to state that during an OON placement, the responsibility for reporting
incidents related to the child, assessments, and ongoing case
management would remain with the care provider facility.
Response: In response to the comments, ORR is adding to the
definition of OON placement that OON placements are ``licensed by an
appropriate State agency.'' ORR will vet the program to ensure that the
program is in good standing with State licensing and is complying with
all applicable State child welfare laws and regulations and all State
and local building, fire, health, and safety codes. ORR further
reiterates that an unaccompanied child may only be placed at an OON
placement when such placement would be in the unaccompanied child's
best interest. As stated in the NPRM, consistent with existing
policies, in these circumstances, even though an unaccompanied child
would be physically located at an OON placement, the unaccompanied
child would remain in ORR legal custody (88 FR 68924). ORR also
clarifies that an OON placement is not defined as a standard program
under this part. However, as provided under ORR policy, the
unaccompanied child's case manager would monitor the unaccompanied
child's progress and ensure the unaccompanied child is receiving
services.
Final Rule Action: ORR is adding the phrase ``that is licensed by
an appropriate State agency'' after ``means a facility'' to the
definition of out of network placement. ORR is also stating that such a
placement is not defined as a standard program under this part. ORR is
otherwise finalizing the definition as proposed.
Placement Review Panel
Comment: One commenter suggested revising the definition of
``placement review panel (PRP)'' to include additional information
regarding timeframes for decision and specificity regarding the term
``ORR Senior Level Career Staff'' by including the job title or
designation.
Response: ORR thanks the commenter for their feedback. Requirements
for the PRP are addressed by ORR under Sec. 410.1902, rather than in
the definition of the PRP. ORR clarifies that ``ORR
[[Page 34397]]
Senior Level Career Staff'' means ORR staff at a senior level or above
that is not politically appointed.
Final Rule Action: ORR is finalizing the definition of ``placement
review panel'' as proposed.
Qualified Interpreter
Comment: One commenter suggested that the definition of a
``qualified interpreter'' for an individual with a disability be
modified to include adherence to generally accepted ethics principles,
including client confidentiality, to make it clear that individuals
with disabilities are entitled to the same confidentiality and ethical
protections as limited English proficient individuals.
Response: ORR thanks the commenter for catching a drafting error.
ORR will restructure the proposed paragraph, moving former subparagraph
(2)(iii) to become new paragraph (3), so that the ethical protections
provision applies to the overall definition of ``qualified
interpreter.''
Comment: One commenter suggested that the definition of ``qualified
interpreter'' requires that interpreters are not only proficient in the
language but also culturally competent.
Response: ORR thanks the commenter but notes that the definition of
qualified interpreter for a limited English proficient individual
includes a requirement that the interpreter be able to interpret
``effectively, accurately, and impartially to and from such language(s)
and English, using any necessary specialized vocabulary or terms
without changes, omissions, or additions and while preserving the tone,
sentiment, and emotional level of the original oral statement.'' This
definition is consistent with another HHS regulation \66\ and captures
a requirement that the interpreter understand the cultural nuances of
the language.
Final Rule Action: ORR is revising the proposed definition to move
former subparagraph (2)(iii) to become new paragraph (3) such that the
requirement to adhere to generally accepted interpreter ethics
principles, including client confidentiality applies to both qualified
interpreters for an individual with a disability and for a limited
English proficient individual. ORR is finalizing the rest of the
definition as proposed.
Runaway Risk
Comment: One commenter supported the proposed definition of
``runaway risk,'' noting that it is consistent with the FSA. The
commenter also supported the proposed rule's clarification that this
determination must consider the totality of the circumstances. Another
commenter also supported replacing the term ``escape risk'' with a term
such as ``child at risk of running away,'' stating that other terms are
used in criminal or enforcement settings and are not appropriate to use
in a child welfare setting.
Response: ORR thanks the commenters for their support for not using
the term ``escape risk'' and instead using a term that relates to
runaway risk, given that escape risk is relevant to a criminal setting.
ORR notes that the definition of runaway risk requires a finding that
it is ``highly probable or reasonably certain'' that a child will
attempt to abscond from ORR care, whereas the FSA defines ``escape
risk'' as meaning there is a ``serious risk'' that a minor will attempt
to escape from custody. Per Sec. 410.1105(b)(2)(ii) of this final
rule, one of the factors ORR may consider for placement of children in
heightened supervision facilities is whether a child is a runaway risk.
Because a determination that a child is a runaway risk can result in
their placement into a restrictive placement, ORR intends through this
updated language to establish a clearer and higher standard than
required by the FSA to determine such risk.
Comment: One commenter did not support the proposal to replace the
term ``escape risk'' with ``runaway risk'' stating their belief that it
was not consistent with the FSA because the FSA requires that a prior
escape from custody lead to a more restrictive placement, while the
proposed rule allows ORR to disregard that factor in determining
whether an unaccompanied child is a runaway risk.
Response: ORR disagrees with the commenter that the proposal is
inconsistent with the FSA. Section 410.1003(f) states that ORR will
consider runaway risk in making placement determinations. The
definition of runaway risk states that a prior attempt to run away
cannot be the sole consideration but does not require ORR to disregard
this factor in determining runaway risk. As finalized at Sec.
410.1107(b), ORR considers whether a child has previously absconded or
attempted to abscond from State or Federal custody when determining, in
view of the totality of the circumstances, whether a child is a runaway
risk for purposes of placement decisions.
Final Rule Action: ORR is finalizing the term ``runaway risk'' as
proposed.
Seclusion
Comment: A few commenters asked for additional clarity in the
definition of ``seclusion'' concerning what seclusion involves and how
it works in practice.
Response: ORR emphasizes, as established at Sec. 410.1304(c), that
seclusion is prohibited at standard programs and RTCs, and as
established at Sec. 410.1304(e)(1), that seclusion is permitted at
non-RTC secure facilities only in emergency safety situations. Further,
ORR notes that, consistent with current policies, seclusion is
permitted only after all other de-escalation strategies and less
restrictive approaches have been attempted and failed; must involve
continued monitoring or supervision by staff throughout the seclusion
period; must never be used as a means of coercion, discipline,
convenience, or retaliation; must be performed in a manner that is
safe, proportionate, and appropriate to the severity of the underlying
emergency risk to the safety of others necessitating the seclusion;
must be appropriate and proportionate to the child's chronological and
developmental age, size, gender, as well as physical, medical, and
psychiatric condition, and personal history; must be utilized in the
most child-friendly, trauma-informed way possible; and must only be
utilized for the short amount of time needed to ameliorate the
underlying emergency risk to the safety of others.
Final Rule Action: ORR is updating the definition of ``seclusion''
by adding ``is instructed not to leave or'' before ``is physically
prevented from leaving'' while otherwise finalizing the definition as
proposed.
Secure Facility
Comment: Some commenters did not support that the definition of
``secure facility'' states that secure facilities do not need to comply
with the requirements for minimum standards of care and services
applicable to all other standard programs under Sec. 410.1302. The
commenters stated their belief that exempting children in secure
facilities from the right to receive the minimum standards of care
afforded to children in all other placement types is unwarranted and
would formalize differential treatment of children as to their basic
needs. Some commenters encouraged ORR to eliminate the use of secure
detention, with one commenter stating their belief that placement in
secure facilities is out of step with ORR's mandate and inappropriate
for any child not placed there under the authority of a juvenile court
judge. That commenter recommended that ORR be explicit in the
definition of and criteria for placement in secure facilities.
Response: ORR is revising its proposed regulation text to remove
the
[[Page 34398]]
statement that a secure facility ``does not need to meet the
requirements of Sec. 410.1302.'' As discussed in the responses to
comments in Sec. Sec. 410.1301 and 410.1302, ORR is finalizing Sec.
410.1302 such that the requirements of that section apply to secure
facilities. ORR notes that this is consistent with current and historic
practice, whereby ORR has required secure facilities to comply with FSA
Exhibit 1 requirements even though the FSA itself does not require
that. And as a practical matter, ORR currently has no secure facilities
in its network of care provider facilities. As a result, ORR does not
anticipate that this revision will implicate any reliance interests.
Additionally, in response to commenters' concerns about the use of
secure detention facilities, ORR is revising the definition to remove
the explicit mention of ``a secure ORR detention facility, or a State
or county juvenile detention facility''.
Final Rule Action: ORR is revising the definition of ``secure
facility'' to remove the phrases ``a secure ORR detention facility, or
a State or county juvenile detention facility'' and ``does not need to
meet the requirements of Sec. 410.1302.'' ORR is otherwise finalizing
the definition as proposed.
Significant Incidents
Comment: One commenter stated that significant changes were made to
reporting of significant incidents in policy updates in 2022 and 2023
and suggested that these changes should be incorporated into the final
rule.
Response: ORR thanks the commenter. In the NPRM, ORR incorrectly
included ``pregnancy'' in the list of significant incidents. Pregnancy
is no longer reported as a significant incident but is instead
documented in the Health Tab of the UC Portal. Accordingly, ORR is
updating the definition of ``significant incidents'' to remove
pregnancy. With regard to other policy updates, ORR reiterates that it
is not codifying all of its policies and choosing for some policies to
remain subregulatory such that they can be more easily updated as
needed.
Final Rule Action: After consideration of public comments, ORR is
removing pregnancy from the definition of significant incidents, but
otherwise finalizing the term as proposed.
Special Needs Unaccompanied Child
Comment: Many commenters supported the proposal to not define or
use the term ``special needs unaccompanied child'' and instead refer to
children's individualized needs. Commenters agreed that the term is
disfavored and is seen as degrading. One commenter stated the term
individualized needs is more specific to the child rather than
confusing that the child might have a disability. Some commenters
further supported the proposal to remove ``facilities for children with
special needs'' from the definition of standard program. Some
commenters stated support for changing the term disability to special
needs unaccompanied child.
Response: ORR is finalizing the use of ``individualized needs'' in
many places in the regulations in lieu of the outdated term ``special
needs.''
Final Rule Action: ORR is removing the term ``special needs
unaccompanied child'' from the regulation.
Standard Program
Comment: One commenter was concerned that the definition of
``standard program'' in the NPRM requires all homes and facilities to
be ``non-secure,'' whereas paragraph 6 of the FSA requires them to be
``non-secure as required by State law.'' The commenter expressed
concerns that ORR could adopt a definition of non-secure that permits
much more restrictive conditions than are currently permissible. The
commenter contended further that, for the same reasons, if ORR chooses
to retain the reference to ``a facility for special needs unaccompanied
children'' in the definition of ``standard program'' it would be
impermissible to replace the FSA's paragraph 6 reference to the ``level
of security permitted under State law'' with undefined ``requirements
specified by ORR if licensure is unavailable in the State.''
Response: ORR thanks the commenter and notes that it is revising
the definition of ``standard program'' to include ``non-secure as
required by State law.'' ORR is also revising the definition of
``standard program'' to not reference ``facilities for special needs
unaccompanied children'' given the term ``special needs'' has become
stigmatized. Instead, the definition of ``standard program'' includes
``facilities for unaccompanied children with specific individualized
needs.''
Final Rule Action: ORR is revising the proposed definition of
``standard program'' by replacing the proposed phrase ``or that meets
other requirements specified by ORR if licensure is unavailable in the
State'' with ``or that meets the requirements of State licensing that
would otherwise be applicable if it is in a State that does not allow
State licensing,'' and by moving this language to the end of the
relevant sentence. ORR is also revising the proposed definition so that
the final rule states that all standard programs shall be ``non-secure
as required under State law.'' ORR is also revising the proposed
definition so that the final rule does not include the language
``facility for special needs unaccompanied children'' and instead
includes the language ``facility for unaccompanied children with
specific individualized needs.'' ORR is also revising the definition
such that a facility for unaccompanied children with specific
individualized needs may maintain that level of security permitted
under state law and deleting the phrase ``or under the requirements
specified by ORR if licensure is unavailable in the State.'' ORR is
otherwise finalizing the term as proposed.
Transfer
Comment: Regarding the proposed definition of ``transfer,'' a few
commenters had differing opinions on the statement in the NPRM that a
transfer from a community-based placement to a shelter is not a step-
up. The proposed rule stated that such transfer does not constitute a
step-up because neither a community-based placement nor a shelter would
be considered a secure placement. One commenter did not support the
statement, stating that it fails to recognize that a large shelter
facility is more restrictive than a foster care setting. However,
another commenter supported the statement, but requested the addition
of clarifying language that if the least restrictive placement for an
unaccompanied child has been determined to be a shelter level of care,
a community-based care facility shall also be considered an appropriate
placement, without the need for a child in a restrictive placement to
be first ``stepped down'' to a shelter level of care.
Response: As stated in the definition of ``transfer'' at Sec.
410.1001, ORR uses the terms ``step-up'' and ``step-down'' to describe
transfers of unaccompanied children to or from restrictive placements.
All standard programs are non-restrictive settings. Because standard
programs are non-restrictive settings, a transfer between those
settings is not by definition a ``step-up'' or ``step-down.''
Final Rule Action: ORR is finalizing the definition of ``transfer''
as proposed.
Trauma-Informed
Comment: Some commenters supported ORR's inclusion of a trauma-
informed approach, citing the importance of taking such an approach
with the unaccompanied children population. A few commenters
[[Page 34399]]
recommended this approach be culturally and linguistically appropriate
to better accommodate unaccompanied children's diverse experiences and
to ensure continued connection to their language, culture, traditions,
and community. However, one commenter warned that a trauma-informed
approach is not accomplished through any single particular technique or
checklist and requires ongoing organizational change and assessment.
Response: ORR thanks the commenters for their support. This rule
establishes a definition of ``trauma-informed'' that ORR believes can
accommodate the commenters' concerns, and ORR will consider their
feedback as it develops additional guidance implementing a trauma-
informed approach in relevant circumstances.
Final Rule Action: ORR is finalizing the term ``trauma-informed''
as proposed.
Unaccompanied Child/Children
Comment: Some commenters requested clarification of aspects of the
definition of ``unaccompanied child,'' such as what constitutes an
``available'' parent or legal guardian, or whether children in
particular circumstances meet the definition of ``unaccompanied
child.''
Response: ORR notes that this final rule applies the statutory
definition of ``unaccompanied alien child'' as provided in the HSA for
purposes relevant to ORR. Other federal agencies also apply the HSA
definition as relevant for their purposes. The statutory definition has
three prongs: the child must have no lawful immigration status in the
United States; the child must be under 18 years old; and the child must
have no parent or legal guardian in the United States, or no parent or
legal guardian in the United States available to provide care and
physical custody. The rule itself tracked the statutory definition and
did not purport to interpret it, and accordingly, discussions of
application of the statutory definition in particular circumstances are
beyond the scope of the rule. ORR notes that it is not an immigration
enforcement authority and would not go out into the community to take
custody of any child. Rather, unaccompanied children enter ORR custody
upon transfer of custody from another Federal department or agency. As
discussed at the portion of the NPRM's preamble addressing Sec.
410.1101, ORR may seek clarification about the information provided by
the referring agency as needed to determine appropriate placement and
how the referred individual meets the statutory definition of
unaccompanied child (88 FR 68917). In such instances, ORR shall notify
the referring agency and work with the referring agency, including by
requesting additional information, in accordance with statutory time
frames for transferring unaccompanied children to ORR.
Comment: One commenter recommended not using the term
``unaccompanied alien child,'' arguing that the word ``alien'' is
dehumanizing.
Response: ORR agrees with the commenter and did not use the term
``alien'' in the proposed rule unless directly quoting the HSA or
TVPRA. Similarly, in the final rule, ORR has updated the defined term
``unaccompanied alien child,'' as used in the HSA and TVPRA, to
``unaccompanied child.''
Final Rule Action: After consideration of public comments, ORR is
finalizing the definition of ``unaccompanied child/children'' as
proposed.
Section 410.1002 ORR Care and Placement of Unaccompanied Children
ORR proposed in the NPRM, at Sec. 410.1002, a description of ORR's
authority to coordinate and implement the care and placement of
unaccompanied children who are in ORR custody by reason of their
immigration status (88 FR 68916). ORR notes that this substantive
requirement is aligned with the requirement established in the 2019
Final Rule at 45 CFR 410.102(a), concerning the scope of authority of
ORR regarding the care and placement of unaccompanied children. That
section of the 2019 Final Rule was not found to be inconsistent with
the FSA by the 9th Circuit in Flores v. Rosen, but as discussed in
section III.B.3 of this final rule, the 2019 Final Rule in its entirety
is currently enjoined and will be superseded by the standards
implemented in this final rule. Changes throughout this subpart to the
standards set by the 2019 Final Rule are explained where relevant.
Comment: One commenter recommended that ORR include additional
language to Sec. 410.1002 to mention particular attention and respect
for human rights for extremely high-risk populations and explicitly
stating that ORR takes into consideration the child's Indigenous
identity, membership, and or citizenship of a Native Nation.
Response: ORR thanks the commenter. Under Sec. 410.1003(a), ORR
requires that within all placements, unaccompanied children shall be
treated with dignity, respect, and special concern for their particular
vulnerability, which would include any considerations which would make
the child high-risk. Additionally, under the definition of ``best
interest,'' ORR is required to consider the unaccompanied child's
cultural background, which would include membership or citizenship of a
Native Nation.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1002 as proposed.
Section 410.1003 General Principles That Apply to the Care and
Placement of Unaccompanied Children
ORR proposed in the NPRM, at Sec. 410.1003, to describe principles
that would apply to the care and placement for unaccompanied children
in its custody (88 FR 68916 through 68917). These principles are based
on ORR's statutory duties to provide care and custody for unaccompanied
children in a manner that is consistent with their best interests.\67\
ORR proposed in the NPRM at Sec. 410.1003(a), that for all
placements, unaccompanied children shall be treated with dignity,
respect, and special concern for their particular vulnerability as
unaccompanied children. In addition to ORR's statutory authorities,
finalizing this proposal is consistent with the substantive criteria
set forth at paragraph 11 of the FSA, and current ORR policies.
ORR proposed in the NPRM at Sec. 410.1003(b), that ORR shall hold
unaccompanied children in facilities that are safe and sanitary and
that are consistent with ORR's concern for the particular vulnerability
of unaccompanied children. Finalizing this proposal is consistent with
the substantive requirement from paragraph 12A of the FSA that
``[f]ollowing arrest, the INS shall hold minors in facilities that are
safe and sanitary and that are consistent with the INS's concern for
the particular vulnerability of minors.'' ORR noted that although this
provision applies to the arrest and detention of unaccompanied children
prior to their placement in an ORR care provider facility, and not to
unaccompanied children after they are placed in ORR's care, ORR
proposed in the NPRM to adopt this standard for its facilities and
custody of unaccompanied children as well. ORR also noted that it
proposed in the NPRM the phrasing ``the particular vulnerability of
unaccompanied children'' as opposed to ``the particular vulnerability
of minors,'' as it believed that the specific vulnerability of the
population of unaccompanied children should be considered when
providing them with safe and sanitary conditions.
ORR proposed in the NPRM, at Sec. 410.1003(c), that it would be
required
[[Page 34400]]
to plan and provide care and services based on the individual needs of
and focusing on the strengths of the unaccompanied child. As a
complementary provision, ORR proposed in the NPRM, at Sec.
410.1003(d), to encourage unaccompanied children, as developmentally
appropriate and in their best interests, to be active participants in
ORR's decision-making process relating to their care and placement. ORR
believes that these collaborative approaches to care provision allow
for the recognition of each child's specific needs and strengths while
providing opportunities for unaccompanied children to become more
empowered, resilient, and self-efficacious.
ORR proposed in the NPRM, at Sec. 410.1003(e), to codify a
requirement that care of unaccompanied children be tailored to the
individualized needs of each unaccompanied child in ORR custody,
ensuring the interests of the child are considered, and that
unaccompanied children are protected from traffickers and other persons
seeking to victimize or otherwise engage them in criminal, harmful, or
exploitative activity,\68\ both while in ORR custody and upon release
from the UC Program. ORR recognizes the utmost importance of protecting
unaccompanied children from traffickers and other persons seeking to
victimize or otherwise engage in harmful activities, including
unscrupulous employers. ORR believes the provisions that were proposed
at Sec. 410.1003(e) reinforce ORR's commitment to ensuring the best
interests of unaccompanied children are considered and actions are
taken to safeguard them from harm. ORR also believes that codifying the
requirement to consider each unaccompanied child's individualized needs
reinforces that unaccompanied children will be assessed by ORR to
determine whether they may require particular services and treatment
while in the UC Program, such as to address the ramifications of a
history of severe neglect or abuse, as provided for in paragraph 7 of
the FSA.
Consistent with the substantive criteria set forth in the TVPRA, 8
U.S.C. 1232(c)(2)(A), ORR proposed in the NPRM at Sec. 410.1003(f) to
require that unaccompanied children be promptly placed in the least
restrictive setting that is in the best interest of the child, with
placement considerations including danger to self; danger to the
community; and runaway risk, as defined in Sec. 410.1001. In addition
to ORR's statutory authorities, finalizing the proposal is consistent
with the substantive criteria set forth at paragraph 11 of the FSA, and
current ORR policies.
ORR proposed in the NPRM, at Sec. 410.1003(g), to require
consultation with parents, legal guardians, child advocates, and
attorneys of record or DOJ Accredited Representatives as needed when
requesting information or consent from all unaccompanied children.
Comment: One commenter generally supported Sec. 410.1003, stating
that the provisions are tailored to the individualized needs of
unaccompanied children and ensure protection from individuals who seek
to exploit or victimize unaccompanied children like human traffickers
and employers.
Response: ORR thanks the commenter for their comment.
Comment: A few commenters noted that the proposed rule alternated
between stating what ORR ``shall'' do and state what ORR does in the
present tense. Those commenters noted in Sec. 410.1003, paragraph (a)
states that ``unaccompanied children shall be treated with dignity,
respect, and special concern'' while paragraph (f) states ``ORR places
each unaccompanied child in the least restrictive setting that is in
the best interests of the child.'' The commenters recommended that the
Final Rule should consistently use ``shall'' rather than the present
tense.
Response: ORR thanks the commenters for their comment. Although ORR
intends for statements in the present tense in the regulation to be
mandatory, for the sake of clarity, ORR will revise Sec. 410.1003(f)
to include the mandatory language ``shall.'' This revision makes the
language consistent with Sec. 410.1103(a). ORR further notes that it
has made this revision throughout the finalized regulation text for
consistency, clarity, and explicit alignment with ORR's statutory
authorities and the FSA.
Comment: One commenter requested more clarity as to what standards
are applicable to what types of programs, stating that in some sections
the document is specific that principles are for standard and
restrictive placements, inferring they are not applicable to emergency
intake sites (EIS) and influx care facilities (ICF) but that in other
sections the document is silent as to types of programs, leaving areas
of ambiguity.
Response: As stated in finalized Sec. 410.1301, the standards in
subpart D apply to standard programs and secure facilities, and to
other care provider facilities and PRS providers where specified. The
standards for EIFs are in subpart I. If a requirement or standard
states that it is for ``all care provider facilities,'' then that
includes standard programs, restrictive placements, and EIFs.
Additionally, the principles articulated in Sec. 410.1003 refer to
``all placements,'' and therefore apply to all ORR placements without
regard to the type of facility.
Comment: One commenter recommended that ORR add language to make
clear that requirements for ORR to treat children with dignity, respect
and special concern for their vulnerability under paragraph (a),
applies to ORR staff, the staff of ORR subcontracted facilities, and
any other stakeholder or interested person who interacts with the child
while the child remains in the custody of ORR, or during the child's
transport to or from an ORR care provider.
Response: ORR appreciates the commenter's comment. ORR notes,
however, that these are general provisions that relate to ORR.
Specifics about the requirements of care provider facilities,
transportation, and other interested parties are in other parts of the
regulation, such as Sec. Sec. 410.1302, 410.1304, 410.1401, 410.1801.
Those specific requirements are to ensure that unaccompanied children
are treated with dignity, respect, and special concern for their
particular vulnerability.
Comment: One commenter expressed concern that the proposed rule did
not provide clear guidance on how to determine the best interests of
the child in various situations, such as when there are conflicting
preferences or claims from different sponsors, when there are concerns
about the safety or suitability of a sponsor, or when there are special
needs or circumstances of the child. The commenter expressed concerns
that this would lead to confusion and inconsistency in decision-making,
and potentially compromise the rights and well-being of the child. The
commenter recommended that the final rule provide clear and
comprehensive guidance on how to determine and apply the best interests
of the child principle in various situations, taking into account the
views and preferences of the child, the characteristics and
circumstances of the sponsor, and the relevant legal and policy
frameworks. The commenter also stated that the rule should provide for
independent review and oversight of best interests determinations by
qualified professionals.
Response: The definition of best interest includes a non-exhaustive
list of factors to consider, as appropriate, when evaluating a child's
best interests. The list is necessarily non-exhaustive because each
child is unique and has
[[Page 34401]]
individual needs, background, and circumstances but the rule is
explicit in emphasizing the importance of making decisions in the
child's best interest.
Regarding the recommendation for independent review and oversight
of determinations of best interest, ORR notes that it may appoint child
advocates for victims of trafficking and other vulnerable children who
are independent, qualified professionals who provide best interests
determinations (BIDs). ORR considers such BIDs when making decisions
regarding the care, placement, and release of unaccompanied children.
Additionally, the rule provides for review of placement decisions, in
subpart J, and an independent Office of the Ombuds, in subpart K.
Comment: Several commenters recommended that ORR include language
affirmatively stating ORR's obligations to protect unaccompanied
children in its care from discriminatory treatment and abuse,
expressing concern over States adopting legislation that dismantles
anti-discrimination protections for LGBTQI+ people.
Response: ORR agrees with the need to protect LGBTQI+ individuals
from discrimination and believes that the language finalized at Sec.
410.1003(a) protects unaccompanied children in its care from
discriminatory treatment and abuse because it establishes the general
principle that unaccompanied children shall be treated with dignity,
respect, and special concern for their particular vulnerability.
Further, as provided in current policy, ORR requires care provider
facilities to operate their programs following certain guiding
principles, including ensuring that LGBTQI+ children are treated with
dignity and respect, receive recognition of their sexual orientation
and/or gender identity, are not discriminated against or harassed based
on actual or perceived sexual orientation or gender identity, and are
cared for in an inclusive and respectful environment.
Comment: Some commenters expressed support for the proposal in
paragraph (d) that unaccompanied children be active participants in
ORR's decision-making process related to their care and placement.
Response: ORR thanks the commenters for their support.
Comment: One commenter recommended that ORR require that Indigenous
cultural and language experts be required in the consultation process
for Indigenous children to provide their free, prior, and informed
consent.
Response: ORR thanks the commenter but notes that the suggestion is
not required by statute or the FSA. ORR notes that it is finalizing
language access requirements in Sec. 410.1306.
Comment: One commenter recommended that ORR collaborate with non-
governmental organizations and advocacy groups that are actively
working in the field of child protection as they often have valuable
insights and resources that can contribute significantly to the cause.
Response: ORR thanks the commenter and notes that it currently
collaborates with and seeks input from advocacy groups and service
providers, and that it intends to continue that practice under this
final rule.
Comment: One commenter recommended that ORR prioritize identifying
and adding facilities throughout the United States in more populous
areas to ensure adequate access for children to legal, medical, and
other services and to ease the burden on community organizations.
Response: ORR appreciates the commenter's recommendation and does
consider whether the area is populous and the availability of services
among many other factors when adding facilities through the United
States. ORR notes, however, that it is limited by the grant and
contract applications it receives and the locations in which qualifying
proposals are located. ORR further notes that this rule does not
address site selection for care provider facilities, and therefore it
does not believe a change to the rule text concerning site selection is
appropriate.
Comment: A few commenters recommended ORR have local law
enforcement, county oversight, and State oversight regarding the nature
of their operations in respective jurisdictions.
Response: ORR notes that local law enforcement and county and State
Governments do have oversight into aspects of the care of unaccompanied
children. For example, local law enforcement agencies investigate and
prosecute State crimes, and State and local Governments license and
investigate care provider facilities with respect to licensing
requirements and allegations of child abuse and neglect. ORR notes that
the role of local law enforcement and child protective services and
licensing entities in the context of the UC Program is also discussed
in the preamble to the Interim Final Rule, Standards to Prevent,
Detect, and Respond to Sexual Abuse and Sexual Harassment Involving
Unaccompanied Children, codified at 45 CFR part 411.\69\ Accordingly,
ORR does not believe a revision to the rule is needed to specifically
describe the role of State and local Governments as suggested.
Final Rule Action: After consideration of public comments, ORR is
revising paragraph (f) to read ``In making placement determinations,
ORR shall place each unaccompanied child in the least restrictive
setting that is in the best interests of the child, giving
consideration to the child's danger to self, danger to others, and
runaway risk.'' All other paragraphs will be finalized as proposed.
Section 410.1004 ORR Custody of Unaccompanied Children
ORR proposed in the NPRM at Sec. 410.1004 to describe the scope of
ORR's custody of unaccompanied children (88 FR 68917). Consistent with
its statutory authorities and the FSA, the provision specifies that all
unaccompanied children placed by ORR in care provider facilities remain
in the legal custody of ORR and may be transferred or released only
with ORR approval.\70\ The provision also provides that in the event of
an emergency, a care provider facility may transfer temporary physical
custody of an unaccompanied child prior to securing approval from ORR
but shall notify ORR of the transfer as soon as is practicable
thereafter, and in all cases within 8 hours.\71\
Comment: One commenter expressed concern that Sec. 410.1004 uses
the term ``legal custody'' without defining it. The commenter noted
that custody can include actual, constructive, or legal custody and
argued that if ORR claims legal custody over unaccompanied children,
not just actual or constructive custody, it should outline all legal
responsibilities owed or held over the child whether pursuant to
Federal or State law.
Response: ORR interprets the term ``legal custody'' consistent with
its statutory authorities and with its usage in the FSA. The TVPRA
makes HHS responsible, consistent with the HSA, for the ``care and
custody'' of unaccompanied children.\72\ The HSA makes ORR responsible
for ``coordinating and implementing the care and placement of
unaccompanied alien children who are in Federal custody by reason of
their immigration status.'' \73\ The FSA uses the term ``legal
custody'' to define the scope of the agreement and of specific
provisions.\74\ ORR notes that in these contexts, it is assumed that
ORR has the ability to provide care and supervision for children. So,
consistent with a prior ruling interpreting the FSA, ORR understands
the term ``legal custody'' to signify ``the right and responsibility to
[[Page 34402]]
care for the well-being of the child and make decisions on the child's
behalf.'' \75\
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1004 as proposed.
Subpart B--Determining the Placement of an Unaccompanied Child at a
Care Provider Facility
In the NPRM, ORR proposed in subpart B to codify the criteria and
requirements that apply to the placement of unaccompanied children at
particular types of care provider facilities (88 FR 68917 through
68927). The HSA makes ORR responsible for, among other things,
``coordinating and implementing the care and placement of unaccompanied
alien children who are in Federal custody by reason of their
immigration status,'' ``making placement determinations for all
unaccompanied alien children who are in Federal custody by reason of
their immigration status,'' ``implementing the placement
determinations,'' and ``implementing policies with respect to the care
and placement of unaccompanied alien children.'' \76\ In addition, ORR
stated in the NPRM that proposed subpart B clarifies and strengthens
placement criteria to better ensure appropriate placement based on each
unaccompanied child's individual background, characteristics, and
needs. ORR stated that it believes that these provisions can help to
protect the interests of unaccompanied children in ORR care by
supporting safe and appropriate placement in the least restrictive
setting appropriate to the child's age and individualized needs,
consistent with existing legal requirements and child welfare best
practices.
Section 410.1100 Purpose of This Subpart
ORR proposed in the NPRM at Sec. 410.1100 that the purpose of
subpart B is to set forth the process by which ORR receives referrals
from other Federal agencies and the factors ORR considers when placing
an unaccompanied child in a particular care provider facility (88 FR
68917). In addition, ORR proposed in the NPRM at Sec. 410.1100 to
clarify that, as used in this subpart, ``placement determinations'' or
``placements'' refers to placements in ORR-approved care provider
facilities during the time an unaccompanied child is in ORR care, and
not to the location of an unaccompanied child once the child is
released in accordance with provisions in subpart C.
ORR did not receive any comments on proposed Sec. 410.1100.
Final Rule Action: ORR is finalizing this section as proposed.
Section 410.1101 Process for the Placement of an Unaccompanied Child
After Referral From Another Federal Agency
ORR proposed in the NPRM, at Sec. 410.1101, to codify the process
for accepting referrals of unaccompanied children from another Federal
agency and for placement of an unaccompanied child in a care provider
facility upon such referral (88 FR 68917 through 68919). The TVPRA at 8
U.S.C. 1232(b)(3) requires any department or agency of the Federal
Government that has an unaccompanied child in its custody to transfer
the custody of such unaccompanied child to HHS no later than 72 hours
after determining that the child is an unaccompanied child (unless
there are exceptional circumstances ).\77\ ORR proposed in the NPRM at
Sec. 410.1101(a) to accept referrals of unaccompanied children
transferred to its custody pursuant to the TVPRA (88 FR 68917).
Further, consistent with existing policy and in cooperation with
referring agencies, ORR proposed in the NPRM that it would accept such
referrals at any time of day, every day of the year. In addition, ORR
stated in the preamble to the NPRM that it may seek clarification about
the information provided by the referring agency. ORR notes that it may
seek such clarification as needed to determine appropriate placement
and how the referred individual meets the statutory definition of
unaccompanied child. ORR stated that in such instances, it shall notify
the referring agency and work with the referring agency, including by
requesting additional information, in accordance with statutory
timeframes for transferring unaccompanied children to ORR.
ORR proposed in the NPRM at Sec. 410.1101(b) and (c), timeframes
for identifying and notifying a referring Federal agency of ORR's
identification of an appropriate placement for an unaccompanied child,
and for accepting transfer of custody of an unaccompanied child after
the determination that the child is an unaccompanied child who should
be transferred to ORR (88 FR 68917 through 68918). ORR proposed in the
NPRM at Sec. 410.1101(b) to codify its current policy that upon
notification from any department or agency of the Federal Government
that a child is an unaccompanied child and therefore must be
transferred to ORR custody, ORR must identify an appropriate placement
for the unaccompanied child and notify the referring Federal agency
within 24 hours of receiving the referring agency's notification
whenever possible, and no later than 48 hours of receiving the
referring agency's notification, barring exceptional circumstances (see
paragraph below). ORR stated in the NPRM that it believes that setting
a maximum timeframe of 48 hours for ORR to identify a placement and
notify a referring Federal agency of ORR's identification of a
placement would help to expedite transfer of unaccompanied children
from the referring Federal agency to ORR care, but also that certain
exceptions to this timeframe may be necessary in certain circumstances,
as discussed in the following paragraph. ORR further proposed in Sec.
410.1101(c) that it would be required to work with the referring
Federal department or agency to accept transfer of custody of the
unaccompanied child, consistent with the statutory requirements at 8
U.S.C. 1232(b)(3).
As noted above, the TVPRA provides that referring Federal
departments and agencies must transfer custody of unaccompanied
children to HHS within 72 hours of determining the child is an
unaccompanied child unless there are exceptional circumstances. In
order to help facilitate this requirement in coordination with
referring departments and agencies, ORR proposed in the NPRM at Sec.
410.1101(b) and (c) internal timeframes for ORR to identify and notify
referring Federal departments and agencies of placements and to accept
transfer of custody from referring departments and agencies (88 FR
68917 through 68918). ORR also noted that it may, in certain
``exceptional circumstances,'' be unable to timely identify placements
for and help facilitate other departments' and agencies' timely
transfers of unaccompanied children to its custody. For purposes of
Sec. 410.1101(b) and (c), ORR proposed in the NPRM at Sec.
410.1101(d) circumstances which would prevent ORR from timely
identifying a placement for an unaccompanied child or accepting
transfer of custody. At proposed Sec. 410.1101(d), ORR described these
exceptional circumstances consistent with those described in paragraph
12A of the FSA, even though, as ORR further explains below, it believes
that paragraph 12A primarily concerns responsibilities of the former
INS that now apply to immigration enforcement authorities and not ORR.
Some of these circumstances were also incorporated into the 2019 Final
Rule at Sec. 410.202. The proposed ``exceptional circumstances,'' for
ORR's purposes,
[[Page 34403]]
included the following: (1) any court decree or court-approved
settlement that requires otherwise; (2) an influx, as defined in
proposed Sec. 410.1001; (3) an emergency, including a natural
disaster, such as an earthquake or hurricane, and other events, such as
facility fires or civil disturbances; (4) a medical emergency, such as
a viral epidemic or pandemic among a group of unaccompanied children;
(5) the apprehension of an unaccompanied child in a remote location;
and (6) the apprehension of an unaccompanied child whom the referring
agency indicates (i) poses a danger to self or others; or (ii) has been
charged with or convicted of a crime, or is the subject of delinquency
proceedings, a delinquency charge, or has been adjudicated delinquent,
and additional information is essential in order to determine an
appropriate ORR placement. Notably, ORR stated in the preamble to the
proposed rule that the unavailability of documents will not necessarily
prevent the prompt transfer of a child to ORR. In addition, ORR
proposed in the NPRM that ``exceptional circumstances,'' for ORR's
purposes, would include an act or event that could not be reasonably
foreseen that prevents the placement or accepting transfer of custody
of an unaccompanied child within the proposed timeframes. Given the
mandate under the TVPRA, 8 U.S.C. 1232(c)(2), that ORR place an
unaccompanied child in the least restrictive setting that is in the
best interests of the unaccompanied child, subject to consideration of
danger to self, danger to the community/others, and risk of flight,
additional time may be needed in some circumstances to determine the
most appropriate and safe placement that comports with the best
interests of the unaccompanied child. Thus, ORR stated that it believes
that this general exception for acts or events that could not be
reasonably foreseen is appropriate to afford additional time to assess
these considerations, though ORR is mindful of avoiding prolonged
placements in DHS facilities that are not designed for the long-term
care of children. As discussed previously, ORR proposed in the NPRM
that these exceptional circumstances would modify the timeframes
applicable to ORR under proposed Sec. 410.1101(b) and (c).
In the NPRM, ORR noted that the FSA also includes an exception to
these timeframe requirements for unaccompanied children who do not
speak English and for whom an interpreter is unavailable. However, ORR
did not propose to include this as an exceptional circumstance for
purposes of Sec. 410.1101(b) and (c). ORR stated that because ORR is
able to serve unaccompanied children regardless of their primary
language through the use of interpreters, ORR did not view this as an
insurmountable impediment to the prompt placement of unaccompanied
children. In addition, ORR noted that the FSA includes an exception in
which a reasonable person would conclude that an individual is an adult
despite the individual's claim to be an unaccompanied child. However,
ORR did not propose to include this as an exceptional circumstance for
purposes of Sec. 410.1101(b) and (c) because ORR did not believe that
such a situation poses the type of urgency inherent in exceptional
circumstances as described above. For further information on ORR's
proposed policies regarding age determinations, ORR referred readers to
its discussion of subpart H.
In the NPRM, ORR stated that it seeks to accept transfer of
unaccompanied children as quickly as possible after a placement has
been identified within this timeframe (88 FR 68918). In identifying
placements for unaccompanied children, ORR balances the need for
expeditious identification of placement with the need to ensure safe
and appropriate placement in the best interests of the unaccompanied
child, which necessitates a comprehensive review of information
regarding an unaccompanied child's background and needs before
placement. ORR stated in the NPRM that, under existing policy, to
determine the appropriate placement for an unaccompanied child, ORR
requests and assesses extensive background information on the
unaccompanied child from the referring department or agency, including
the following: (1) how the referring agency made the determination that
the child is an unaccompanied child; (2) health related information;
(3) whether the unaccompanied child has any medication or prescription
information, including how many days' supply of the medication will be
provided with the unaccompanied child when the child is transferred
into ORR custody; (4) biographical and biometric information, such as
name, gender, alien number, date of birth, country of birth and
nationality, date(s) of entry and apprehension, place of entry and
apprehension, manner of entry, and the unaccompanied child's current
location; (5) any information concerning whether the unaccompanied
child is a victim of trafficking or other crimes; (6) whether the
unaccompanied child was apprehended with a sibling or other relative;
(7) identifying information and contact information for a parent, legal
guardian, or other related adult providing care for the unaccompanied
child prior to apprehension, if known, and information regarding
whether the unaccompanied child was separated from a parent, legal
guardian, or adult relative after apprehension, and the reason for
separation; (8) if the unaccompanied child was apprehended in transit
to a final destination, what the final destination was and who the
unaccompanied child planned to meet or live with at that destination,
if known; (9) whether the unaccompanied child is a runaway risk, and if
so, the runaway risk indicators; (10) any information on a history of
violence, juvenile or criminal background, or gang involvement known or
suspected, risk of danger to self or others, State court proceedings,
or probation; (11) if the unaccompanied child is being returned to ORR
custody after arrest on alleged gang affiliation or involvement, ORR
requests all documentation confirming whether the unaccompanied child
is a Saravia class member and information on the Saravia hearing,
including the date and time; \78\ and (12) any particular needs or
other information that would affect the care and placement of the
unaccompanied child, including, as applicable, information about
services, supports, or program modifications provided to the child on
the basis of disability (88 FR 68918 through 68919).
Furthermore, the TVPRA places the responsibility for the transfer
of custody on referring Federal agencies.\79\ ORR custody begins when
it assumes physical custody from the referring agency. ORR proposed in
the NPRM at Sec. 410.1101(e) to codify this practice, which is also
consistent with current policies (88 FR 68919).
Note, ORR typically assumes physical custody when the unaccompanied
child arrives at an ORR care provider facility (usually via transport
by DHS). However, as described in current policies,\80\ under certain
extenuating and exceptional circumstances, ORR may assume physical
custody of an unaccompanied child, and thereby legal custody, to
facilitate release to a vetted sponsor without first placing the child
at an ORR care provider facility. In these cases, federal partner
agencies may notify ORR that a child will likely be determined to be
unaccompanied. ORR may request additional information from the
referring agency, or third-party partners, regarding any potential
sponsors for the child, to begin the sponsor vetting process.\81\
[[Page 34404]]
Comment: A few commenters generally expressed support for the
timeframes at proposed Sec. 410.1101(b) and (c). These commenters
supported the proposed timeframes for ORR to work with the referring
department or agency to accept custody of unaccompanied children
(within the 72 hour requirement applicable to the transferring agency
under the TVPRA) and identify an initial placement (no later than 48
hours) because the proposed timeframes ensure that unaccompanied
children are not held in detention in a restrictive setting at DHS or
other referring agencies and recognize that children are best cared for
by social welfare officers and not by immigration officials.
Response: ORR thanks commenters for their support of the proposed
timeframes at Sec. 410.1101(b) and (c). ORR notes that it is making a
clarifying edit to add the phrase ``in its custody'' to the first
sentence of paragraph (b) to clarify that, consistent with the TVPRA, a
referring Federal department or agency must transfer unaccompanied
children ``in its custody'' to ORR. This sentence now states, ``Upon
notification from any department or agency of the Federal Government
that a child in its custody is an unaccompanied child and therefore
must be transferred to ORR custody . . .''.
Comment: Two commenters made recommendations regarding the
notification and transfer process. One commenter recommended
``vigorous'' collaboration between ORR and other agencies and a clear
description of responsibilities of these agencies to ensure effective
implementation. Another commenter suggested that ORR consider codifying
potential border unifications of children. The commenter noted that
cases have recently been started while children are still in CBP
custody, and that co-location of ORR providers with CBP could allow
many parent and legal guardian sponsors to reunify with unaccompanied
children without transferring the child to an ORR shelter. The
commenter further stated this could also allow non-parent family
members who are traveling with the child (grandparents, aunts, etc.) to
submit the necessary documents to sponsor the child without ever
needing to be separated.
Response: ORR thanks the commenters for their recommendations. With
regard to the recommendation that there be ``vigorous'' collaboration
between ORR and other agencies and a clear description of
responsibilities to ensure effective implementation, ORR notes that ORR
does in fact collaborate closely with referring agencies, including
CBP, during the referral of unaccompanied children to ORR custody. For
example, as specifically set forth at Sec. 410.1101(c), as finalized
in this rule, ORR works with the referring department or agency to
accept transfer of custody of the unaccompanied child, consistent with
the timeframe set forth in the TVPRA.\82\ Furthermore, under existing
policy, and as reflected in the NPRM, to determine the appropriate
placement for an unaccompanied child, ORR requests and assesses
extensive background information on the unaccompanied child from the
referring agency, which ORR takes into consideration in placing a child
in an ORR care provider facility. In addition, as ORR stated in the
preamble to the NPRM, it may seek clarification about the information
provided by the referring agency as needed to determine appropriate
placement and how the referred individual meets the statutory
definition of unaccompanied child (88 FR 68917). In such instances, ORR
shall notify the referring agency and work with the referring agency,
including by requesting additional information, in accordance with
statutory time frames for transferring unaccompanied children to ORR.
ORR has added language to the regulatory text at Sec. 410.1101 to make
more explicit the nature of this coordination.
Moreover, DHS and ORR are continuing to work together to improve
information sharing and will collaborate on improved procedures for
making age determinations, as required by the TVPRA, and other
standards for determining whether an individual meets the statutory
definition of unaccompanied child. The Departments will update existing
memoranda of agreement, as appropriate. Seeking clarification will not
preclude transfer of individuals determined by the referring agency to
be unaccompanied children in accordance with statutory time frames,
except in exceptional circumstances.
In regard to the suggestion to codify potential border unifications
of unaccompanied children, ORR notes that this final rule codifies
existing interagency practices regarding notification and transfer of
unaccompanied children to ORR custody from other Federal agencies,
consistent with requirements set out in the TVPRA. ORR is also
currently operating an initiative to facilitate unification of
unaccompanied children with their sponsors while minimizing the child's
time in ORR custody. Because the standards codified in this final rule
accord with current practices and are consistent with the statutory
framework established by the HSA and TVPRA, ORR will finalize the
current sections as proposed. But ORR notes that it may in the future
consider alternative approaches, including approaches like the one
raised in the comment.
Comment: Two commenters made recommendations or raised questions to
clarify the language at proposed Sec. 410.1101(d), which addresses
exceptions to the timeframes at proposed Sec. 410.1101(b) and (c). One
commenter stated that proposed Sec. 410.1101(d) is ambiguous, noting
that while ``exceptional circumstances'' may be valid explanations for
slower-than-required placements, an exceptional circumstance should not
give license for ORR to place a child in care more slowly after a
referral. The commenter stated that ORR should move with all due haste
to place children in safe placements even in ``exceptional
circumstances'' and recommended that ORR refine the rule to clarify
that it always attempts to identify an appropriate placement within 48
hours but that such a timeframe may not be possible to achieve during
exceptional circumstances. This commenter also noted that the proposed
rule preamble states that ``the unavailability of documents will not
necessarily prevent the prompt transfer of a child to ORR.'' The
commenter recommended that this assurance be binding on ORR as it is
minimally burdensome and suggested that ORR add language to this effect
to any final rule.
One commenter asked whether Sec. 410.1101(d)(6) means that secure
and staff secure placements do not have to fall within the 48-hour
placement timeline.
Response: ORR notes that Sec. 410.1101(b) already provides that
ORR shall identify an appropriate placement for the unaccompanied child
and notify the referring Federal agency within 24 hours of receiving
the referring agency's notification ``whenever possible,'' and ``no
later than within 48 hours of receiving notification, barring
exceptional circumstances'' (88 FR 68918). As a result, the rule
already contemplates that ORR seeks to identify a placement as quickly
as reasonably possible upon notification from a referring department or
agency that a child is an unaccompanied child, including in situations
where exceptional circumstances may apply. ORR does not view the
proposed exceptional circumstances as a license to act more slowly in
identifying an appropriate placement, but only as reasonable
explanations for why it may not be possible to meet the proposed
[[Page 34405]]
timeframes despite ORR's efforts to do so in those exceptional cases.
In addition, as one commenter noted, the proposed rule preamble
states, with respect to proposed Sec. 410.1101(d)(6), that ``the
unavailability of documents will not necessarily prevent the prompt
transfer of a child to ORR.'' In proposed Sec. 410.1101(d)(6)(ii), ORR
added language at the end of the provision to qualify when the
exceptional circumstance in paragraph (d)(6)(ii) would apply--that is,
when ``additional information is essential in order to determine an
appropriate ORR placement'' (88 FR 68918). To further clarify and
qualify the application of this exception, ORR noted in the NPRM
preamble that ``the unavailability of documents will not necessarily
prevent the prompt transfer of a child to ORR.'' This language was
intended to recognize the fact that in some cases, lack of appropriate
information or documentation may not prevent ORR from timely
identifying a placement or facilitating transfer of custody, and in
those cases, ORR must comply with the proposed timeframes at Sec.
410.1101(b) and (c). Thus, this language was intended to make clear
ORR's limited use of this exception. As ORR believes the intent is
sufficiently clear from the preamble text, ORR does not believe it is
necessary to add language to this effect to the final rule.
Given these clarifications, ORR emphasizes that proposed Sec.
410.1101(d)(6) does not mean that secure and heightened supervision
placements do not have to meet the timeframes established in this
section. First, as discussed above, this exception is not a license to
act more slowly in situations that may fall within this proposed
exception--ORR must still act expeditiously to identify placement
within 48 hours to the extent possible. Second, not all secure or
heightened supervision placements may meet the criteria set forth in
proposed Sec. 410.1101(d)(6)--for example, since as noted above and in
the proposed regulation, in order to qualify for the exception at Sec.
410.1101(d)(6)(ii), additional information must be essential in order
to determine an appropriate ORR placement, and where it is not
essential, as discussed above, the unavailability of documents will not
necessarily prevent the prompt identification of a placement.
Comment: A few commenters expressed concern about the proposed
timeframes at Sec. 410.1101(b) and (c), stating that speed should
never take priority over the safety and well-being of the children. One
commenter also expressed concern with ORR's ability to meet the
proposed timeframes.
Response: ORR does not agree that the proposed timeframes at Sec.
410.1101(b) and (c) will result in expediency taking priority over the
safety and well-being of unaccompanied children. As an initial matter,
ORR notes that the timelines described in this section are consistent
with statutory timelines provided in the TVPRA.\83\ In addition, ORR
believes that the proposed timeframes are reasonable and achievable
while transferring custody and identifying placements in the best
interests of the unaccompanied child. ORR notes that, in fiscal year
2023, ORR placed 99 percent of unaccompanied children in standard
programs within 24 hours of receiving notification of their referrals.
As noted in the NPRM, ORR balances the need for expeditious
identification of placement with the need to ensure safe and
appropriate placement in the best interests of the unaccompanied child,
which involves a comprehensive review of information regarding an
unaccompanied child's background and needs before placement. As further
discussed in the NPRM, additional time may be needed in some
circumstances to determine the most appropriate and safe placement that
comports with the best interests of the unaccompanied child. Thus, ORR
proposed in the NPRM to codify at Sec. 410.1101(d) certain
``exceptional circumstances'' where it may be unable to timely identify
placements for or facilitate other agencies' timely transfers of
unaccompanied children to its custody in accordance with proposed Sec.
410.1101(b) and (c) (88 FR 68918). ORR believes that codification of
these exceptional circumstances will provide ORR the flexibility
necessary to ensure the safety and well-being of each child are fully
taken into account before a child is placed with a care provider
facility.
Comment: Many commenters expressed concerns regarding specific
exceptional circumstances set forth at proposed Sec. 410.1101(d).
One commenter stated that ORR inappropriately defined influx as an
``exceptional circumstance'' at proposed Sec. 410.1101(d)(2) that
allows ORR to relieve itself of the duty to receive a child from other
Federal agencies within 72 hours. The commenter stated that
promulgating this proposal would allow ORR to absolve itself of the
responsibility to comply with the terms of the FSA when it presents
challenges to the agency, directly risking the safety of unaccompanied
children. The commenter believed that ORR should be held to higher
scrutiny, not less, when its facilities are overwhelmed because it is
at these times that unaccompanied children are at heightened risk for
exploitation, abuse, and mismanagement. The commenter requested that
HHS make data available to the public regarding how frequently
``emergency'' or ``influx'' conditions are present.
A few commenters opposed the proposed exception at Sec.
410.1101(d)(3) because it includes language that is beyond what is
enumerated in the FSA. Specifically, the commenters noted that proposed
Sec. 410.1101(d)(3) states that an emergency would include ``a natural
disaster, such as an earthquake or hurricane, and other events, such as
facility fires or civil disturbances.'' The commenters believed that
the addition of ``and other events'' would create a catch-all for
anything ORR chooses to deem an emergency in the future and that
expanding the term would result in situations that are detrimental to
the health, safety and well-being of unaccompanied children.
Many commenters recommended deleting the exception at Sec.
410.1101(d)(6), stating that the ORR Policy Guide permits no exception
to the prompt transfer of children required by the TVPRA and that this
marks a weakening of ORR's current policy, under which, if exceptional
circumstances prevent the referring Federal agency from providing
complete documentation, the care provider is not permitted to deny or
delay admitting the child. These commenters also noted that this
exception is absent from the FSA list of exceptions, including
paragraph 12A. Commenters said that incomplete documentation about a
child should never permit ORR to leave children in DHS custody beyond
72 hours, given the clear dangers to children's health and safety.
A few commenters expressed concern with the exception provided
under proposed Sec. 410.1101(d)(7), which described an exception for
acts or events ``that could not be reasonably foreseen that prevents
the placement of or accepting transfer of custody of an unaccompanied
child within the timeframes in paragraph (b) or (c) of this section.''
The commenter said that this language was overly broad and would allow
ORR to make placement decisions that would be inconsistent with the FSA
and noted that the proposed rule did not identify any specific
circumstances not already covered by the FSA's current exceptions that
required a delay in placement in the past.
Response: As discussed in the NPRM, ORR proposed in the NPRM at
Sec. 410.1101(b) and (c) internal
[[Page 34406]]
timeframes for ORR to identify and notify referring Federal agencies of
placements and to accept transfer of custody from referring agencies,
but noted that in certain ``exceptional circumstances'' additional time
may be needed to identify safe and appropriate placements that comport
with the best interests of the unaccompanied child or to help
facilitate other agencies' transfers of unaccompanied children to ORR
custody (88 FR 68917 through 68918). Thus, for purposes of Sec.
410.1101(b) and (c), ORR proposed in the NPRM at Sec. 410.1101(d)
circumstances which may prevent ORR from timely identifying a placement
for an unaccompanied child or accepting transfer of custody (88 FR
68918). ORR intended that all of the exceptional circumstances at
proposed Sec. 410.1101(d) serve the purpose of protecting the health
and safety of unaccompanied children, as the application of such
exceptions will provide ORR the time, if necessary, in certain
circumstances to ensure appropriate and safe placement.
With respect to the comment that the proposed exception at Sec.
410.1101(d)(2) would allow ORR to absolve itself of the responsibility
to comply with the terms of the FSA when it presents challenges to the
agency, risking the safety of unaccompanied children, ORR notes that
paragraph 12A of the FSA specifically provides an exception to the
timeframe for placement in a licensed program in the event of an influx
of unaccompanied children into the United States, stating that in those
situations, children must be placed into such programs as expeditiously
as possible. Thus, ORR believes that the exception at proposed Sec.
410.1101(d)(2) is consistent with the FSA. Moreover, as noted at
subpart I, the definition of influx in this rule sets a substantially
higher threshold for when circumstances can be considered an influx
than is required under the FSA. ORR emphasizes that in every case, ORR
seeks to identify a placement and accept transfer of custody of an
unaccompanied child as quickly as possible upon notification from a
referring Federal department or agency that a child is an unaccompanied
child, including in situations where exceptional circumstances may
apply. As discussed previously, the proposed exceptional circumstances
were not intended as a license to act more slowly in identifying an
appropriate placement, but rather as circumstances in which it may not
be possible to meet the proposed timeframes despite ORR's best efforts
to do so. Further, because the exception at Sec. 410.1102(d)(2) would
provide ORR with additional time, if necessary, to determine a safe and
appropriate placement for an unaccompanied child, ORR believes that
this exception helps to protect and serve the best interests of such
children rather than risk their safety. ORR notes that it makes data
available to the public regarding the use of EIFs.\84\
Furthermore, ORR disagrees with the comment that the proposed
exception at Sec. 410.1101(d)(3), specifically the addition of the
phrase ``and other events,'' would create a catch-all for anything ORR
chooses to deem an emergency in the future and expand the term in ways
that are detrimental to the health, safety, and well-being of
unaccompanied children. First, ORR believes that the definition of
``emergency'' is consistent with the FSA. ORR notes that the definition
of ``emergency'' in the FSA is in fact broad, defining ``emergency'' as
``any act or event that prevents the placement of minors pursuant to
paragraph 19 within the timeframe provided.'' While the FSA states that
``[s]uch emergencies include natural disasters . . ., facility fires,
civil disturbances, and medical emergencies,'' ORR views these as
examples of what would qualify as an ``emergency'' under the broad
definition that precedes this list. As noted previously, because the
purpose of this exception is to provide ORR with additional time, if
necessary, to determine a safe and appropriate placement for an
unaccompanied child, we believe that this exception would help to
protect and serve the best interests of such children rather than risk
their safety. To address commenters' concern with reference to ``other
events'' and further clarify that the events listed are examples of the
types of emergencies that would qualify as exceptional circumstances,
ORR is finalizing revisions to Sec. 410.1101(d)(3) to list relevant
examples and delete reference to ``and other events.''
ORR also disagrees with the commenters that recommended deleting
the exception at Sec. 410.1101(d)(6) and stated that it is
inconsistent with the FSA and the ORR Policy Guide. ORR notes that the
FSA includes an exception to the placement timeframes at paragraph 12A
for situations where a child meets the criteria for placement in a
secure facility under paragraph 21. The exception at proposed Sec.
410.1101(d)(6) does not delineate all five of the potential situations
set forth at paragraph 21 of the FSA (i.e., the unaccompanied child (A)
``has been charged with, is chargeable, or has been convicted of a
crime, or is the subject of delinquency proceedings, has been
adjudicated delinquent, or is chargeable with a delinquent act''--
subject to certain exceptions; (B) ``has committed, or has made
credible threats to commit, a violent or malicious act (whether
directed at himself or others) while in INS legal custody or while in
the presence of an INS officer;'' (C) ``has engaged, while in a
licensed program, in conduct that has proven to be unacceptably
disruptive of the normal functioning of the licensed program in which
he or she has been placed and removal is necessary to ensure the
welfare of the minor or others, as determined by the staff of the
licensed program (Examples: drug or alcohol abuse, stealing, fighting,
intimidation of others, etc. This list is not exhaustive.);'' (D) is an
escape risk; or (E) ``must be held in a secure facility for his or her
own safety, such as when the INS has reason to believe that a smuggler
would abduct or coerce a particular minor to secure payment of
smuggling fees.'').\85\ But ORR believes the five potential situations
described at paragraph 21 are described by sub-paragraphs (d)(i) and
(d)(ii)--i.e., all the potential circumstances listed in FSA paragraph
21 essentially concern whether a child poses a danger to self or
others, or has been charged with or convicted of a crime or is the
subject of delinquency charges or proceedings. But further, by omitting
some of the situations set forth in paragraph 21 of the FSA that
justify secure placement and by adding the requirement at proposed
Sec. 410.1101(d)(6)(ii) that ``additional information'' must be
``essential in order to determine an appropriate placement,'' ORR is
narrowing the application of this exception in a manner it believes
adequately implements FSA paragraph 21. In addition, ORR stated in the
NPRM preamble that ``the unavailability of documents will not
necessarily prevent the prompt transfer of a child to ORR'' (88 FR
68918). This language was intended to recognize that lack of
appropriate information or documentation may not always be an
appropriate justification for delaying timely identification of
placement or acceptance of transfer of custody. As such, ORR further
limited the exception at proposed Sec. 410.1101(d)(6)(ii) to those
situations where additional documentation is absolutely necessary to
appropriately place an unaccompanied child, acknowledging that timely
transfer and placement would still take place whenever possible even in
the absence of certain information or documentation. Given these
additional restrictions on the use
[[Page 34407]]
of proposed Sec. 410.1101(d)(6) as an exceptional circumstance, we
believe this provision reasonably ensures ORR's timely acceptance of
transfer and identification of placement of unaccompanied children
whenever possible, even in the absence of documentation.
In addition, ORR disagrees with the comment that proposed Sec.
410.1101(d)(6) should be deleted because it is inconsistent with and
weakens current ORR policies under which a care provider may not deny
or delay admitting the unaccompanied child if exceptional circumstances
prevent the referring Federal agency from providing complete
documentation. ORR notes that this provision of the ORR Policy Guide
does not relate to the required timeframes applicable to ORR at Sec.
410.1101(b) and (c) or the exceptions to such timeframes described at
Sec. 410.1101(d)(6). Paragraphs (b) and (c) of Sec. 410.1101 set
forth the timeframes within which ORR must identify and notify the
referring Federal agency of appropriate placement and work with the
referring Federal agency to accept transfer of custody, and Sec.
410.1101(d) provides exceptions applicable to ORR's obligation to meet
these timeframes (88 FR 68917 through 68918). By contrast, the policy
identified by the commenter sets forth obligations applicable to the
care provider facility--specifically, restrictions on the care provider
facility's ability to deny or delay admitting a child after transfer of
custody to ORR has occurred and the care provider facility has been
identified as an appropriate placement. The ``exceptional
circumstances'' referred to in that provision apply to the referring
Federal agency and relate to its ability to provide complete
documentation; this term does not refer to the exceptional
circumstances that apply to ORR's ability to meet timeframes under
Sec. 410.1101(b) and (c).
With respect to Sec. 410.1101(d)(7), after consideration of
comments received on this provision, ORR is removing this exception
from the regulation text in this final rule. To date, ORR has not
identified any specific circumstances not already covered by Sec.
410.1101(d)(1) through (d)(6) that have required a delay in placement,
and thus ORR believes it is not necessary to include this exception at
this time.
Comment: A few commenters recommended that the final rule
reintroduce a State licensing requirement in every provision of the
proposed rule where the FSA, specifically at paragraph 19, requires
State-licensed placement.
Response: ORR refers the commenters to its discussion of State
licensing at the preamble text for Sec. 410.1302. The definition of
``standard program'' in this final rule is broader in scope than the
FSA definition of ``licensed placement'' to account for changed
circumstances since the FSA went into effect, where certain States have
made licensure unavailable to ORR care provider facilities because they
care for unaccompanied children. Having said that, at Sec. 410.1302(a)
of this final rule, if a standard program is in a State that does not
license care provider facilities because they serve unaccompanied
children, the standard program must still meet the State licensing
requirements that would apply if the State allowed for licensure.
Similarly, ORR is revising Sec. 410.1302(b) to expressly provide that
all standard programs, whether or not licensed, must comply with all
State child welfare laws and regulations and all State and local
building, fire, health, and safety codes even if licensure is
unavailable in their State to care provider facilities providing care
and services to unaccompanied children. Similarly, in this final rule,
ORR has revised Sec. 410.1101(b) to state that ORR will identify a
standard program placement for an unaccompanied child, unless one of
the listed exceptions in Sec. 410.1101 applies.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1101 with the following modifications: first, to
revise Sec. 410.1101(b) to (1) add the phrase ``in its custody'' to
the first sentence of paragraph (b) to clarify that, under the TVPRA, a
referring Federal department or agency must transfer unaccompanied
children in its custody to ORR, and (2) state that ORR will identify a
standard program placement for an unaccompanied child, unless one of
the listed exceptions in Sec. 410.1104 applies; second, to make a
clarifying revision to the Sec. 410.1101(d) introductory text to add
the word ``timely'' before ``accept'' so that the word ``timely'' is
read to modify both ``identify a placement'' and ``accept transfer of
custody''; third, to amend Sec. 410.1101(d)(3) to state, ``An
emergency, including a natural disaster such as an earthquake or
hurricane, a facility fire, or a civil disturbance;'' fourth, to remove
the exceptional circumstance at Sec. 410.1101(d)(7); and fifth, to add
an additional sentence to Sec. 410.1101(b) stating, ``ORR may seek
clarification about the information provided by the referring agency as
needed. In such instances, ORR shall notify the referring agency and
work with the referring agency, including by requesting additional
information, in accordance with statutory time frames.''
Section 410.1102 Care Provider Facility Types
Under Sec. 410.1102, ORR described the types of care provider
facilities in which unaccompanied children may be placed (88 FR 68919
through 68920). The basis for this section is ORR's statutory authority
to make placement determinations for unaccompanied children in its
care, as well as other responsibilities such as implementing policies
with respect to their care and overseeing the infrastructure and
personnel of facilities in which unaccompanied children reside.\86\
Specifically, this section proposed that ORR may place an unaccompanied
child in a care provider facility as defined at Sec. 410.1001,
including but not limited to shelters, group homes, individual family
homes, heightened supervision facilities, or secure facilities,
including RTCs. ORR proposed in the NPRM that it may also place
unaccompanied children in OON placements under certain, limited
circumstances. OON placements may include an OON RTC (which would need
to meet the standards that apply to RTCs that are ORR care provider
facilities), or a temporary stay at hospital (for example, for
surgery). For purposes of this final rule, ORR notes as a general
matter that it may place an unaccompanied child in an OON placement if
it determines that a child has a specific need that cannot be met
within ORR's network of facilities, where no in-network care provider
equipped to meet the child's needs has the capacity to accept a new
placement, or where transfer to a less restrictive facility is
warranted and ORR is unable to place the child in a less restrictive
in-network facility. ORR proposed in the NPRM to make such placements
taking into account the considerations and criteria set forth in
Sec. Sec. 410.1103 through 410.1109 and Sec. 410.1901, as further
discussed below. In addition, in times of influx or emergency, as
further discussed in subpart I (Emergency and Influx Operations), ORR
proposed in the NPRM that it may place unaccompanied children in
facilities that may not meet the standards of a standard program, but
rather meet the standards in subpart I. ORR believes that this
provision is consistent with the FSA requirement that unaccompanied
children be placed in licensed programs until such time as release can
be effected or until immigration proceedings are concluded, except that
in the event of an emergency or influx of children into the United
[[Page 34408]]
States, ORR must place unaccompanied children into licensed programs as
expeditiously as possible.\87\
Consistent with proposed Sec. 410.1102, ORR stated in the preamble
to the NPRM that it would place unaccompanied children in group homes
or individual family homes, including long-term and transitional home
care settings, as appropriate, based on the unaccompanied child's age
and individualized needs and circumstances (88 FR 68919). Definitions
of ``ORR long-term home care'' and ``ORR transitional home care'' were
proposed in Sec. 410.1001, which ORR stated would replace the terms
``long-term foster care'' and ``transitional foster care'' as those
terms are used in the definition of ``traditional foster care''
provided at 45 CFR 411.5. ORR stated in the preamble of the NPRM that
where possible, it believes that based on an unaccompanied child's age,
individualized needs, and circumstances, as well as a care provider
facility's capacity, it should favor placing unaccompanied children in
transitional and long-term home care settings while they are awaiting
release to sponsors. Having said that, ORR noted that efforts to place
more unaccompanied children out of congregate care shelters that house
more than 25 children together is a long-term aspiration, given the
large number of children in its custody and the number of additional
programs that would be required to care for them in home care settings
or small-scale shelters of 25 children or less. ORR stated that given
this reality, care provider facilities structured and licensed to
accommodate more than 25 children continue to serve a vital role in
meeting this need.
Finally, as discussed in the preamble to the proposed rule, ORR was
considering replacing its current long-term and transitional home care
placement approach with a community-based care model that would expand
upon the current types of care provider facilities that may care for
unaccompanied children in community-based settings (88 FR 68919 through
68920). ORR stated that this is in line with a vision of moving towards
a framework of community-based care as described in the NPRM and in the
following paragraphs. ORR stated that it believes such a framework
would be consistent with the language of the proposed rule and that ORR
would be able to implement it in a manner consistent with the proposed
rule.
ORR stated in the preamble to the NPRM that if it were to finalize
the community-based care model, references to ORR long-term home care
and ORR transitional home care would be replaced with the term
community-based care, and ORR would define ``community-based care'' in
Sec. 410.1001 as an ORR-funded and administered family or group home
placement in a community-based setting, whether for a short-term or a
long-term placement (88 FR 68919). ORR stated that the definition of
``community-based care'' encompasses the term ``traditional foster
care'' that is codified at existing Sec. 411.5.
For a more detailed discussion of ORR's proposed community-based
care model, ORR refers readers to the NPRM preamble (88 FR 68919
through 68920). ORR welcomed public comment on its vision of community-
based care, its inclusion as a care provider facility type in place of
ORR's current long-term and transitional home care placement approach,
and any other concerns relevant to this change based on existing
language in the NPRM.
Comment: Many commenters supported the proposed development and
implementation of a community-based care model. A number of commenters
stated that they supported including the community-based care model in
the final rule because such a model aligns with Federal and State child
welfare policies, which recognize the importance of allowing
unaccompanied children to experience normal childhood freedoms and
opportunities to the greatest extent possible. Some commenters
specifically expressed support for the implementation of the Reasonable
and Prudent Parent standard, the provision of ``a continuum of care,''
and the integration of unaccompanied children with their local
communities and schools. Some commenters also noted that expanding care
to include small community-based group homes and semi-independent
living for older children will allow ORR to reduce reliance on
congregate care settings, help unaccompanied children develop life
skills, and offer both potential cost-savings and improvements in the
quality-of-care children receive. Many commenters offered
recommendations related to the development and implementation of a
community-based care model. For example, commenters recommended that
ORR develop timelines and a transition plan as well as additional
operational details; ensure placements are smaller, home-like settings
that allow children to have private spaces and input into their own
schedules and participation in community; prioritize developing family-
based and/or community-based placements that can accommodate the needs
of children with disabilities; and ensure that community-based care
programs have the proper amount of resources and support to provide
adequate care for unaccompanied children and to facilitate their
integration into the community.
Response: ORR thanks commenters for the many comments and
recommendations regarding ORR's planned efforts toward the development
of a community-based care model and agrees with the many potential
benefits of such a model cited by commenters. So that ORR may more
fully consider the comments and recommendations it received, ORR is not
finalizing the community-based care model in this final rule but will
consider all comments and recommendations received as it continues to
transition to such a model.
Comment: A few commenters expressed concerns with the use of large
congregate care facilities, recommending that that congregate care
facilities be limited to 25 or fewer beds and that ORR prioritize
placements in the least restrictive settings possible, including family
or small community-based settings. One of these commenters also
recommended limiting placement in congregate facilities unless the
unaccompanied child has specific therapeutic needs where treatment
cannot be provided in a home or community-based environment. This
commenter also recommended that if family-based placement is
unavailable and congregate placement is necessary, ORR should cease
placing unaccompanied children in unlicensed facilities.
Response: ORR believes that where possible, based on an
unaccompanied child's age, individualized needs, and circumstances, as
well as a care provider facility's capacity, it should prioritize
placing unaccompanied children in transitional and long-term home care
settings while they are awaiting release to sponsors, so as to limit
the time spent in large congregate care facilities. Currently, under
existing policy, a child is a candidate for long-term home care if the
child is expected to have a protracted stay in ORR and is under the age
of 17 and 6 months at the time of placement, unless waived by both the
referring and receiving Federal Field Specialist (FFS), who will take
into account the best interests of the child.
As ORR explained in the NPRM, however, efforts to place more
unaccompanied children out of congregate care shelters that house more
than 25 children together is a long-term aspiration, given the large
number of children in its custody and the number
[[Page 34409]]
of additional programs that would be required to care for them in home
care settings or small-scale shelters of 25 children or less (88 FR
68919). As ORR noted in the NPRM, given this reality, care provider
facilities that accommodate more than 25 children continue to serve a
vital role in meeting this need. ORR notes that such facilities are
required to be State-licensed, or if they are located in States that
will not license care provider facilities housing unaccompanied
children under this rule, ORR still requires them to follow State
licensing requirements. In addition, all ORR standard programs must
follow the minimum standards and provide the required services
established at subpart D.
In response to the request that ORR cease placing unaccompanied
children in unlicensed facilities, ORR notes that pursuant to Sec.
410.1001, as finalized in this rule, standard programs must be licensed
by an appropriate State agency, or meet the requirements of State
licensing if they are in a State that does not allow State licensing of
programs that provide services to unaccompanied children. As provided
in Sec. 410.1104, ORR will place unaccompanied children in standard
programs that are not restrictive placements, except where a child
meets criteria for restrictive placement, or in the event of an influx
or emergency in which case ORR must make all reasonable efforts to
place children in standard programs as expeditiously as possible. As
provided in Sec. 410.1102, in times of influx or emergency, ORR may
place unaccompanied children in emergency or influx facilities that may
not meet the standards of a standard program. In situations where
unaccompanied children are placed in programs that are not standard
programs, ORR implements other safeguards to protect their safety and
well-being. Specifically, ORR imposes minimum standards for such
emergency and influx facilities at subpart I (as finalized in this
rule) to ensure the safety and well-being of children placed in such
facilities. In the case of secure facilities, which are not standard
programs, under this final rule, secure facilities are required to meet
the minimum standards under Sec. 410.1302.
Comment: Many commenters expressed concern that the NPRM does not
specify the circumstances in which unaccompanied children would be
placed in OON placements and requested additional clarification. These
commenters stated that while proposed Sec. 410.1105(c)(2) provides
criteria for OON RTC placements, the proposed rule does not provide
criteria for other OON placements. One commenter specifically cautioned
against overreliance on OON placements, including OON RTCs or OON
placements that would meet the definition of heightened supervision
facilities as defined in proposed Sec. 410.1001. This commenter noted
that children placed in OON placements tend to face more challenges
than children placed in-network that negatively impact their well-being
and legal case. For instance, according to the commenter, staff at OON
placements usually lack experience serving migrant populations or
unaccompanied children, and children in OON placements frequently face
additional language access barriers, which can delay their access to
critical information and services. Additionally, the commenter stated
that OON placements are diffusely located, often far from any legal
service provider, making children's access to in-person legal meetings
infrequent or entirely infeasible. In addition, some commenters noted
that in the past, some unaccompanied children placed out-of-network
have not received minimum required services, such as educational
services and outdoor recreation, and that care and treatment provided
by OON placements can vary widely. These commenters emphasized that
thorough vetting and independent oversight of OON placements is
critical and appreciated the proposed rule's reference to consulting
with non-governmental stakeholders such as protection and advocacy
(P&A) agencies to assess OON placements. They welcomed further
discussion with ORR about policies and procedures to monitor OON
placements. One commenter expressed the view that it is not feasible
for ORR to sufficiently vet OON RTCs for placement due to the
overwhelming number of unaccompanied children.
Commenters also made several recommendations for the final rule.
First, commenters recommended that, to ensure unaccompanied children
placed in OON placements have the same rights and protections as other
unaccompanied children, the final rule should state that children may
be placed in an OON placement only if it is the least restrictive, most
integrated placement appropriate, that OON placements must be State-
licensed to care for dependent children, and that children in OON
placements must receive all the minimum services for standard programs,
including those specified in proposed Sec. 410.1302. Commenters
further recommended that a child not be transferred to a restrictive
OON placement unless they meet the criteria for transfer to the same
level of restrictive placement within the ORR network. In addition, a
few commenters recommended that the final rule state that any secure
OON placement must satisfy the secure placement criteria in paragraph
21 of the FSA. Finally, one commenter, while understanding that it
would not be feasible for all OON placements to be State-licensed,
recommended that ORR include in the final rule that OON placements meet
the other requirements for licensed facilities outlined in the FSA.
Response: Section 410.1102, as finalized in this rule, provides
that ORR may place unaccompanied children in OON placements under
certain, limited circumstances. Consistent with current policies, such
circumstances include where ORR determines that a child has a specific
need that cannot be met within the ORR network of care provider
facilities, where no in-network care provider facility equipped to meet
the child's needs has the capacity to accept a new placement, or where
transfer to a less restrictive facility is warranted and ORR is unable
to place the child in a less restrictive in-network care provider
facility. With respect to OON RTCs in particular, as proposed, under
Sec. 410.1105(c)(2) ORR will place an unaccompanied child at an OON
RTC when a licensed clinical psychologist or psychiatrist consulted by
ORR or a care provider facility has determined that the unaccompanied
child requires a level of care only found in an OON RTC (either because
the unaccompanied child has identified needs that cannot be met within
the ORR network of RTCs or no placements are available within ORR's
network of RTCs), or that an OON RTC would best meet the unaccompanied
child's identified needs. Consistent with Sec. 410.1103, ORR will only
place unaccompanied children in an OON placement if it is the least
restrictive placement (consistent with the FSA) and in the child's best
interest (consistent with the TVPRA), and ORR is revising Sec.
410.1102 to clarify this.
To clarify its intent under this final rule, ORR notes that it
makes every effort to place children within the ORR-funded care
provider facility network. However, there may be instances when ORR
determines there is no in-network care provider facility available to
provide specialized services to meet an unaccompanied child's
identified needs, or no in-network care provider facility equipped to
meet those needs with the capacity to accept a new placement. In those
cases, ORR will consider an OON placement.
[[Page 34410]]
ORR disagrees with one commenter's assertion that it is not
feasible to appropriately vet OON RTCs or any OON placement. Under
current policies, which ORR has incorporated in the final rule at Sec.
410.1001, OON providers must be licensed by State licensing authorities
and vetted prior to placement to ensure the provider is in good
standing and is complying with all applicable State welfare laws and
regulations and all State and local building, fire, health, and safety
codes. Further, as noted in the NPRM, ORR may confer with other Federal
agencies and non-governmental stakeholders, such as the P&A systems,
when vetting OON RTCs (88 FR 68925). In addition, an ORR FFS and the
FFS Supervisor must approve any OON placement as the least restrictive
setting appropriate for the child's needs.
In response to commenters' concerns regarding the additional
challenges faced by children placed in OON programs, and that
unaccompanied children placed in OON facilities receive appropriate
services to meet their needs, ORR notes that the case manager who is
assigned to a child placed in an OON facility \88\ will administer the
case management services and maintain weekly contact with the child and
the child's OON provider to ensure that both the case manager and ORR
FFS are receiving weekly updates on the child's progress. Thus, the
case manager would monitor the unaccompanied child's care and ensure
the unaccompanied child is receiving services. The case manager also
provides updates to the child's attorney of record.
ORR concurs with the commenters that any OON secure placement would
need to satisfy the secure placement criteria in paragraph 21 of the
FSA, which are implemented at Sec. 410.1105. In addition, ORR concurs
that children may not be placed in an OON restrictive facility unless
they meet the criteria for placement or transfer to the same level of
restrictive placement within ORR's network. ORR notes that Sec.
410.1105(c)(2) already states that the criteria for placement in or
transfer to RTCs within the ORR network apply to placement or transfer
to OON RTCs. ORR refers readers to the section of this final rule
addressing Sec. 410.1105 for further information regarding criteria
for placement in restrictive facilities.
As clarified in the preamble section discussing Sec. 410.1000,
part 410 will not govern or describe the entire program. Where the
regulations contain less detail, subregulatory guidance such as the ORR
Policy Guide, Field Guidance, manuals describing compliance with ORR
policies and procedures, and other communications from ORR to care
provider facilities will provide specific guidance on relevant
requirements in a manner consistent with this final rule. ORR is not
proposing to codify all of its existing requirements regarding OON
placements in this final rule due to the complexity and quantity of
those existing requirements, and because of its intention to
iteratively refine and update those requirements in keeping with best
practices and allow continued responsiveness to the needs of
unaccompanied children and care provider facilities.
Comment: A few commenters expressed concern with use of foster care
or group homes. These commenters stated that the foster system in the
United States is significantly fragm
[…truncated; see source link]Indexed from Federal Register on April 30, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.