Rule2024-27626
Investigations of Child Abuse and Neglect 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
November 27, 2024
Effective
December 27, 2024
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
This IFR describes how ORR shall investigate and substantiate allegations of child abuse and neglect occurring in certain ORR care provider facilities, and maintain a registry of perpetrators relating to certain sustained allegations.
Full Text
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<title>Federal Register, Volume 89 Issue 229 (Wednesday, November 27, 2024)</title>
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[Federal Register Volume 89, Number 229 (Wednesday, November 27, 2024)]
[Rules and Regulations]
[Pages 93498-93522]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-27626]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 412
RIN 0970-AD10
Investigations of Child Abuse and Neglect Rule
AGENCY: Office of Refugee Resettlement (ORR), Administration for
Children and Families (ACF), U.S. Department of Health and Human
Services (HHS).
ACTION: Interim final rule with comment period (IFR).
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SUMMARY: This IFR describes how ORR shall investigate and substantiate
allegations of child abuse and neglect occurring in certain ORR care
provider facilities, and maintain a registry of perpetrators relating
to certain sustained allegations.
DATES: This IFR is effective December 27, 2024. Comments on this IFR
must be received on or before January 27, 2025.
ADDRESSES: You may send comments, identified by [docket number and/or
Regulatory Information Number (RIN)], by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#80d5c3d0efece9e3f9add2e5e7f5ece1f4eff2f9c1e6e6e1e9f2f3c0e1e3e6aee8e8f3aee7eff6"><span class="__cf_email__" data-cfemail="cb9e889ba4a7a2a8b2e699aeacbea7aabfa4b9b28aadadaaa2b9b88baaa8ade5a3a3b8e5aca4bd">[email protected]</span></a>. Include
[docket number and/or RIN] in the subject line of the message.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking. For detailed instructions
on submitting comments and additional information on the rulemaking
process, see the ``Public Participation'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Toby Biswas, Director of Policy,
Division of Unaccompanied Children Policy, Unaccompanied Children
Bureau, Office of Refugee Resettlement, Administration for Children and
Families, Department of Health and Human Services, Washington, DC,
(202) 205-4440 or <a href="/cdn-cgi/l/email-protection#287d6b784744414b51057a4d4f5d44495c475a51694e4e49415a5b68494b4e0640405b064f475e"><span class="__cf_email__" data-cfemail="bde8feedd2d1d4dec490efd8dac8d1dcc9d2cfc4fcdbdbdcd4cfcefddcdedb93d5d5ce93dad2cb">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
II. Table of Abbreviations
III. Executive Summary
IV. Background and Purpose
A. Background and History
B. Authority
C. Basis and Scope of Regulatory Action
D. Severability
V. Discussion of Elements of the Interim Final Rule
VI. Good Cause for Issuing This IFR
VII. Collection of Information Requirements
VIII. Regulatory Impact Analysis
A. Economic Analysis
B. Regulatory Flexibility Analysis
C. Unfunded Mandates Reform Act
D. Executive Order 13132: Federalism
E. Executive Order 12988: Civil Justice Reform
IX. Assessment of Federal Regulation and Policies on Families
I. Public Participation
ORR encourages all interested parties to participate in this
rulemaking by submitting written comments, views, and data on any or
all aspects of this interim final rule. ORR also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this interim final rule. ORR will review all comments
received, but ORR will only post comments that address the topic of the
interim final rule. All comments ORR posts to <a href="https://www.regulations.gov">https://www.regulations.gov</a> will include any personal or commercial information
you provide.
A. Submitting Comments
Comments that will provide the most assistance to ORR will
reference a specific portion of the interim final rule, explain the
reason for any recommended change, and include data, information, or
authority that support such recommended change. If you submit comments,
please indicate the specific section of this document to which each
comment applies and provide a reason for each suggestion or
recommendation. You may submit your comments and materials online or by
email, but please use only one of these means. If you submit a comment
online via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, it will be considered received
when it is received at the Docket Management Facility.
Instructions: To submit your comments online, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and insert ``XXXX-XXXX-XXXX'' in the ``Search''
box. Click on the ``Comment Now!'' box and input your comment in the
text box provided. Click the ``Continue'' box, and if you are satisfied
with your comment, follow the prompts to submit it.
For additional information, please read the ``Privacy and Security
Notice'' that is available via the link in the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
ORR will consider all comments and materials received during the
comment period and may change this rule based on your comments.
B. Viewing Comments and Documents
Docket: To view posted comments, as well as documents mentioned in
this preamble as being available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and insert ``XXXX-XXXX-XXXX'' in the ``Search''
box. Click on the ``Open Docket Folder,'' and you can click on ``View
Comment'' or ``View All'' under the ``Comments'' section of the page.
Individuals without internet access can make alternate arrangements for
viewing comments and documents related to this rulemaking by contacting
ORR through the FOR FURTHER INFORMATION CONTACT section above. You may
sign up for email alerts on the online docket to be notified when
comments are posted, or a final rule is published.
C. Privacy Act
As stated in the Submitting Comments section above, please be aware
that anyone can search the electronic form of comments received into
any dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.).
II. Table of Abbreviations
ACF--Administration for Children and Families
ALJ--Administrative Law Judge
CAPTA--Child Abuse Prevention and Treatment Act
CWT--ORR's Child Welfare Team
DAB--HHS Departmental Appeals Board
DOJ--U.S. Department of Justice
EIF--Emergency or Influx Facility
FBI--Federal Bureau of Investigation
FSA--Flores Settlement Agreement
HHS--U.S. Department of Health and Human Services
[[Page 93499]]
HSA--Homeland Security Act of 2002
OIG--Office of the Inspector General
OMB--Office of Management and Budget
ORR--Office of Refugee Resettlement, U.S. Department of Health and
Human Services
PCAN Team--ORR's Prevention of Child Abuse and Neglect Team
PSA IFR--Standards To Prevent, Detect, and Respond to Sexual Abuse
and Sexual Harassment Involving Unaccompanied Children, Interim
Final Rule
TVPRA--William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UC Bureau--Unaccompanied Children Bureau
VCAA--Victims of Child Abuse Act
III. Executive Summary
This interim final rule provides standards and processes for the
Department of Health and Human Services (HHS), Administration for
Children and Families (ACF), Office of Refugee Resettlement (ORR), to
apply when it conducts investigations into allegations of child abuse
and neglect that occur in certain care provider facilities funded by
ORR to provide residential and other services for unaccompanied
children; \1\ describes a process for appeal and review of
substantiated allegations; and establishes an ORR Central Registry to
list individuals with certain findings of child abuse and neglect that
have been substantiated and sustained after exhausting the appeal and
review process. This rule describes how and in what circumstances ORR
may conduct investigations, and impose certain consequences with
respect to sustained allegations of child abuse and neglect by care
provider facility staff, contractors or sub-grantees of the care
provider facility, care provider facility volunteers, and other
individuals with access to unaccompanied children in ORR care through
contracts or grants with ORR. Specifically, the investigations and
required consequences described in this rule shall apply in two
circumstances: (1) where the State or local authority that would
otherwise be responsible for such investigations will not investigate
allegations arising at ORR care provider facilities that care for or
propose to care for unaccompanied children; and (2) at ORR emergency or
influx facilities (EIFs).
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\1\ An unaccompanied child is defined as a child who has no
lawful immigration status in the United States; has not attained 18
years of age; and with respect to whom there is no parent or legal
guardian in the United States, or no parent or legal guardian in the
United States available to provide care and physical custody. See 6
U.S.C. 279(g)(2).
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Child abuse and neglect can have devastating lifelong mental and
physical effects on an individual. ORR is committed to preventing and
mitigating child abuse and neglect in its care provider facilities and
seeks to ensure the safety, well-being, and security of all
unaccompanied children in its care.
IV. Background and Purpose
A. Background and History
On March 1, 2003, section 462 of the Homeland Security Act of 2002
(HSA) transferred responsibilities for the care and placement of
unaccompanied children from the Commissioner of the former Immigration
and Naturalization Service to the Director of ORR. Since that time, ORR
has provided for the day-to-day care of over 700,000 unaccompanied
children in ORR care provider facilities that are currently
administered through a nationwide network of providers (funded via
cooperative agreements or contracts, or sub-awards thereof).\2\
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\2\ Unaccompanied Children Bureau Fact Sheet. (July 5, 2024).
Retrieved from: <a href="https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/fact-sheet">https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/fact-sheet</a>.
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As further detailed below in section IV.B., ORR oversees its care
provider facilities through its Unaccompanied Children Bureau \3\
pursuant to its responsibilities under the HSA,\4\ the Trafficking
Victims Protection Reauthorization Act of 2008 (TVPRA),\5\ the
Unaccompanied Children (UC) Program Foundational Rule,\6\ the Flores
Settlement Agreement (FSA) as relevant,<SUP>7 8</SUP> and ORR's
regulatory Standards To Prevent, Detect, and Respond to Sexual Abuse
and Sexual Harassment Involving Unaccompanied Children interim final
rule (PSA IFR).\9\
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\3\ See Statement of Organization, Functions, and Delegations of
Authority, 89 FR 49889 (Jun. 12, 2014) (redesignating the former
``Unaccompanied Children Program'' as the ``Unaccompanied Children
Bureau'').
\4\ 6 U.S.C. 279.
\5\ 8 U.S.C. 1232.
\6\ 45 CFR part 410.
\7\ Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-
4544-RJK(Px) (C.D. Cal. Jul. 17, 1997).
\8\ As of the publication of this rule, the Flores Settlement
Agreement (FSA) has been partially and conditionally terminated as
to ORR, as a result of the publication of the UC Program
Foundational Rule. See Order Re Defendants' Motion to Terminate the
Flores Settlement Agreement as to Defendant HHS, Flores v. Garland,
No. 2:85-cv-04544 (C.D. Cal. Jun. 28, 2024), ECF No. 1447.
\9\ 45 CFR part 411.
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Consistent with the HSA and TVPRA, ORR is responsible for the care,
custody, and placement of unaccompanied children who are in Federal
custody by reason of their immigration status.\10\ Any department or
agency of the Federal government that has an unaccompanied child from a
non-contiguous country in its custody is required to transfer custody
of such child to HHS.\11\ Typically, ORR places unaccompanied children
in care provider facilities it funds to provide these children with
residential and other services, until the children can be safely
released to qualified and vetted sponsors (individuals or entities to
whom ORR releases unaccompanied children out of ORR custody, in
accordance with ORR's sponsor suitability assessment process and
release procedures),\12\ are repatriated to their home country, obtain
legal status, or otherwise no longer meet the statutory definition of
an unaccompanied child (e.g., turn 18 years old). In accordance with
the UC Program Foundational Rule (and consistent with the FSA), ORR
makes reasonable efforts to place unaccompanied children in State-
licensed facilities in those geographical areas where the majority of
children are apprehended \13\--except in cases of emergency or influx,
when ORR may utilize EIFs.\14\ EIFs are Federally contracted facilities
that ORR may need to stand up quickly to accommodate placements for
children that exceed its standard capacity. Consistent with ORR's UC
Program Foundational Rule (and the FSA), EIFs are not required to be
State-licensed.\15\
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\10\ See 6 U.S.C. 279(b)(1)(A); 8 U.S.C. 1232(b)(1).
\11\ See 8 U.S.C. 1232(b)(3).
\12\ See 45 CFR 410.1001.
\13\ 45 CFR 410.1103(e); see also FSA par. 6.
\14\ See 45 CFR part 410, subpart I; see also FSA Exhibit 3.
\15\ See 45 CFR 410.1001.
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As of the publication date of this rulemaking, ORR has built a
network of nearly 300 care provider facilities in 27 States, funded
through cooperative agreements and grants between ORR and the care
provider facilities. As discussed below, a significant number of ORR
care provider facilities are in Texas, which has decided to no longer
conduct investigations of reported abuse and neglect arising at ORR-
funded care provider facilities housing unaccompanied children.
In addition, as of the publication date of this rulemaking, ORR
oversees three influx care facilities, funded through contracts, that
currently have no children in care but are ready to commence or resume
operations within certain timeframes if needed.\16\ ORR does not
currently have formal written agreements with the relevant State or
local authorities to investigate reports of
[[Page 93500]]
child abuse and neglect at these facilities. If such agreements are
executed, ORR may in its discretion elect not to exercise its
investigative authority and instead rely on the relevant State or local
authorities (consistent with its approach to sexual abuse as described
at 45 CFR part 411).\17\ Nevertheless, even in these circumstances, ORR
retains statutory authority to conduct investigations at EIFs, and in
these situations could do so consistent with this rule. If ORR were to
conduct its own investigation concurrently with a State or local
authority's investigation, ORR would cooperate with such authority and
ORR's investigation would not conflict with such investigation.
Further, ORR would conduct its investigation in such a manner as to
minimize potential trauma to the alleged victim (e.g., by not
interviewing a child where the State or local authority has already
interviewed the child for the same information).
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\16\ ORR Influx Care Facilities for Unaccompanied Children Fact
Sheet. (July 29, 2024). Retrieved from: <a href="https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/influx-care-facilities-fact-sheet">https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/influx-care-facilities-fact-sheet</a>.
\17\ See infra Section IV.B.
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To ensure that reports of child abuse and neglect at Texas care
provider facilities and EIFs (as relevant) do not go uninvestigated,
and pursuant to ORR's statutory responsibilities, on June 12, 2024, ORR
established a Division of Unaccompanied Child Protection Investigations
(DCPI) to, among other things, receive reports of alleged abuse or
neglect involving unaccompanied children in ORR custody and investigate
those claims where it has jurisdiction.\18\ DCPI began conducting
investigations of alleged child abuse and neglect in ORR-funded care
provider facilities in Texas as of July 2024. This interim final rule
describes the procedures DCPI uses when it performs child welfare
investigations of alleged child abuse and neglect at ORR care provider
facilities; and establishes employment consequences for care provider
facility staff and volunteers based on ORR investigation dispositions,
including relevant due process protections for alleged perpetrators of
abuse and neglect.
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\18\ See 89 FR 49889, 49892.
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B. Authority
ORR's statutory authority enables it to perform investigations of
alleged child abuse and neglect occurring at its care provider
facilities, and to establish disciplinary consequences, including
employment consequences, for individuals it determines to have
perpetrated abuse or neglect. The HSA transferred to the Director of
ORR functions under the immigration laws of the United States with
respect to the care of unaccompanied children that were vested by
statute in, or performed by, the Commissioner of the Immigration and
Naturalization Service. Pursuant to such transfer, the ORR Director is
``responsible for,'' among other things, ``ensuring that the interests
of the child are considered in decisions and actions relating to the
care and custody of an [unaccompanied child],'' \19\ ``implementing
policies with respect to the care and placement of [unaccompanied
children],'' \20\ and ``identifying a sufficient number of qualified
individuals, entities, and facilities to house [unaccompanied
children].'' \21\ In addition, the HSA makes the ORR Director
responsible for ``overseeing the infrastructure and personnel of
facilities in which [unaccompanied children] reside,'' \22\ and
``conducting investigations and inspections of facilities and other
entities in which [unaccompanied children] reside, including regular
follow-up visits to such facilities, placements, and other entities, to
assess the continued suitability of such placements.'' \23\
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\19\ 6 U.S.C. 279(b)(1)(B).
\20\ 6 U.S.C. 279(b)(1)(E).
\21\ 6 U.S.C. 279(b)(1)(F).
\22\ 6 U.S.C. 279(b)(1)(G).
\23\ 6 U.S.C. 279(b)(1)(L).
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Necessarily, a fundamental aspect of ensuring that there are
qualified individuals, entities, and care provider facilities to care
for and house unaccompanied children is ensuring that care provider
facility staff, contractors, or sub-grantees of the care provider
facility, along with care provider facility volunteers and other
individuals who have access to children in ORR care through contracts
or grants with ORR, do not engage in abuse or neglect of children in
ORR care; that such individuals who are alleged to have engaged in such
abuse or neglect are reported and identified; that allegations of child
abuse or neglect against such individuals are properly and thoroughly
investigated; and that if the allegations are found to be substantiated
and are sustained pursuant to an appeal and review process, actions are
taken to ensure that such individuals are prohibited from working or
volunteering in any way on ORR-funded grants or contracts and do not
have contact with children in ORR custody. Thus, the rule described
here is a crucial aspect of implementing ORR's statutory mandates under
the HSA, which expressly delegates authority to the ORR Director to
administer the UC Bureau.
Pursuant to these authorities, this rule describes the
circumstances in which ORR will investigate allegations of child abuse
and neglect; the procedures for such investigations; and steps ORR may
take in response to findings that individuals who work or volunteer at
ORR-funded care provider facilities have perpetrated abuse or neglect
against children in its custody, including due process requirements
that would apply to such steps.
In addition to the HSA, ORR's Interim Final Rule regarding the
Prevention of Sexual Abuse \24\ (PSA IFR), which ORR promulgated in
2014 pursuant to the Violence Against Women Reauthorization Act of 2013
(VAWA),\25\ describes requirements concerning sexual abuse of
unaccompanied children in ORR custody. Though the PSA IFR specifically
applies to the prevention of sexual abuse of unaccompanied children, it
describes requirements that inform this IFR regarding the prevention of
abuse and neglect, including requirements for staff background checks;
suspension of staff, contractors, and volunteers suspected of
perpetrating sexual abuse or sexual harassment from all duties that
would involve or allow access to unaccompanied children pending the
outcome of an investigation; and requirements for restricting the
employment of care provider facility staff against whom allegations of
child abuse or neglect have been substantiated.\26\
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\24\ Standards To Prevent, Detect, and Respond to Sexual Abuse
and Sexual Harassment Involving Unaccompanied Children, 79 FR 77768
(Dec. 24, 2014) (codified at 45 CFR part 411).
\25\ See Public Law 113-4, 1101(d), 127 Stat. 134, 135 (2013)
(codified at 34 U.S.C. 30307(d)) (directing the Secretary of HHS to
``publish a final rule adopting national standards for the
detection, prevention, reduction, and punishment of rape and sexual
assault in facilities that maintain custody of unaccompanied alien
children (as defined in section 279(g) of Title 6)'').
\26\ See generally Standards to Prevent, Detect, and Respond to
Sexual Assault and Sexual Harassment Involving Unaccompanied
Children, codified at 45 CFR part 411 (PSA IFR); see also the ORR
Policy Guide at Section 4.3.
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The standards in the PSA IFR also require care provider facilities
to refer allegations of sexual abuse and sexual harassment to proper
investigating authorities (i.e., State and local law enforcement, child
protective services, and licensing authorities), and to remain informed
of ongoing investigations and fully cooperate with outside
investigators as necessary.\27\ ORR notes that nothing in this rule is
intended to replace or prohibit investigations of sexual abuse and
sexual harassment under other civil rights laws. The PSA IFR also
states that ORR will refer allegations to the Department of Justice
[[Page 93501]]
or other investigating authority for further investigation where such
reporting is in accordance with its policies and procedures and any
memoranda of understanding.\28\
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\27\ See 45 CFR 411.22(a); 411.71(c), (d).
\28\ See 45 CFR 411.22(d).
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At the time the PSA IFR was published, ORR assumed that all States
or localities would maintain their historic practices of investigating
alleged child abuse and neglect in ORR State-licensed care provider
facilities. Accordingly, the PSA IFR only contemplates scenarios where
a State or local authority is the investigating authority for
allegations of sexual abuse and harassment occurring at ORR care
provider facilities. This rule describes a new system of ORR
investigations and actions to be taken based on investigation findings,
which ORR would apply, as needed, at care provider facilities as
described at Sec. 412.100(c).
Finally, the Victims of Child Abuse Act (VCAA) and its implementing
regulations \29\ impose reporting requirements on ORR-contracted
facilities (e.g., EIFs). Under the VCAA, child abuse (as defined in the
Act) occurring at Federally-operated or contracted facilities must be
reported to local law enforcement or child protective services agencies
with jurisdiction to investigate reports of child abuse or to protect
child abuse victims in the land area or facility in question,
``provided that such agencies, if non-federal, enter into formal
written agreements to do so. . . .'' \30\ If there is no such formal
written agreement, the Federal Bureau of Investigation (FBI) is the
agency designated to receive such reports.\31\ However, ORR is advised
that the FBI's jurisdiction is limited to Federal crimes (i.e., the FBI
cannot investigate conduct that does not rise to the level of a Federal
crime)--and many child abuse and neglect allegations that nonetheless
warrant investigation do not constitute Federal crimes. Upon receipt of
such reports of child abuse, agencies designated under the VCAA--which
can include other federal agencies or non-federal agencies that are
designated pursuant to a formal written agreement--may conduct
investigations of the alleged abuse and neglect. This IFR does not
conflict with any agency duties under the VCAA. If ORR executes formal
written agreements with relevant local authorities to investigate child
abuse and neglect at EIFs, it reserves discretion under its statutory
authorities to conduct its own investigations as well. In such cases,
ORR intends under this rule that any ORR investigation will not
conflict with investigations performed by other authorities in
connection with the VCAA.
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\29\ See 34 U.S.C. 20341; see also 28 CFR part 81.
\30\ 28 CFR 81.2
\31\ 28 CFR 81.3.
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C. Basis and Scope of Regulatory Action
1. Discontinuation of Investigations of Child Abuse and Neglect at Care
Provider Facilities That Care for Unaccompanied Children.
For years, ORR has relied on States or localities both to license
its care provider facilities and to investigate any allegations of
child abuse and neglect.\32\ Since 2021, however, three States--Texas,
Florida, and South Carolina--have ceased licensing childcare facilities
that serve or propose to serve unaccompanied children under grant or
contract with ORR. As of publication of this rule, Florida and South
Carolina continue to provide for State-based investigations of alleged
child abuse and neglect in ORR-funded care provider facilities.\33\ In
contrast, in connection with the State's decision to end licensing of
care provider facilities housing unaccompanied children, the Texas
State agency that would otherwise be responsible for such
investigations no longer conducts them at ORR care provider facilities
(except foster care providers).
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\32\ See, e.g., 79 FR 77768, 77776 (``. . . ORR does not conduct
investigations regarding the substance of an allegation. Instead, as
stated in the previous paragraphs, ORR requires that all care
provider facilities refer all allegations, regardless of how an
allegation is made or who it comes from, to the proper investigating
authorities.'').
\33\ ORR notes that Florida continues to investigate child abuse
and neglect in care provider facilities housing unaccompanied
children, and ORR only operates foster family home care settings in
South Carolina. Foster care licensing has not been impacted by South
Carolina's action to not license residential care.
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Pursuant to a proclamation by Texas's Governor Abbott,\34\ on July
13, 2021, the Texas Health and Human Services Commission (HHSC) issued
an emergency rule temporarily exempting Texas's childcare facilities
that shelter unaccompanied children in Federal custody from Texas's
licensing requirement.\35\ The exemption went through a series of
renewals until, on July 22, 2022, Texas amended the emergency rule to
make the licensure exemption ongoing.\36\
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\34\ Proclamation by the Governor of the State of Texas. (May
31, 2021). Available at: <a href="https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf">https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf</a>.
\35\ 46 Tex. Reg. 4407. (July 23, 2021). (Adopting on an
emergency basis in Texas Administrative Code title 26 part 1,
chapter 745, Licensing, new Sec. 745.10301 and amended Sec.
745.115). The emergency rule--and the exemption it provides--were
only effective for 120 days and could only be renewed for an
additional 60 days. Available at: <a href="https://texashistory.unt.edu/ark:/67531/metapth1362781/m2/1/high_res_d/0723is.pdf">https://texashistory.unt.edu/ark:/67531/metapth1362781/m2/1/high_res_d/0723is.pdf</a>.
\36\ Texas HHS Agenda Item. (May 19, 2022). Available at:
<a href="https://www.hhs.texas.gov/sites/default/files/documents/may-2022-ec-agenda-item-2bvi.docx">https://www.hhs.texas.gov/sites/default/files/documents/may-2022-ec-agenda-item-2bvi.docx</a>.
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ORR understands that, pursuant to this change in Texas law, neither
Texas HHSC nor the Texas Department of Family and Protective Services
(DFPS) currently conducts child abuse and neglect investigations in
facilities that house unaccompanied children due to their lack of
jurisdiction over license-exempt childcare facilities. Because DFPS is
not investigating, substantiating, or sustaining these allegations
pursuant to administrative reviews as appropriate, DFPS does not list
potential sustained perpetrators in the Texas child abuse and neglect
registry,\37\ and thus such perpetrators will not be identified as
having committed abuse or neglect in a background check by an ORR-
funded or other provider. State and local law enforcement continue to
investigate reported child abuse and neglect that rises to the level of
a crime, but in many instances, actions involving abuse or neglect
constitute civil violations, but not criminal violations. Depending on
circumstances, this may include physical abuse, verbal/emotional abuse,
and sexual harassment.
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\37\ Tex. Fam. Code Sec. 261.002.
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As discussed above, ORR has historically relied on State and local
authorities to investigate allegations of child abuse and neglect
arising at its care provider facilities. However, a significant gap in
investigative capacity has resulted from Texas's decision to cease DFPS
investigations at ORR care provider facilities. ORR was unable to
immediately fill this gap by conducting its own investigations because
such investigations necessitate the use of skilled and trained
investigators, and historically ORR had not played this role.
However, ORR took immediate and ongoing steps after determining
that Texas planned to cease its investigations into alleged child abuse
and neglect at ORR-funded care provider facilities housing
unaccompanied children. Soon after it became clear that Texas DFPS was
not going to resume its long-standing child welfare and investigative
functions when it extended its emergency declaration in 2022, ORR began
examining the operational feasibility, capacity, and expertise that
would be required to permanently absorb the investigative
responsibilities once performed by Texas DFPS. Such an endeavor
represented an unexpected
[[Page 93502]]
and significant expansion of ORR's operations, as ORR had successfully
relied on relevant state child welfare entities to fulfill that role
for years up to this point. ORR's work over the past two years has
included, but not been strictly limited to: communicating with Texas
state officials to confirm their position regarding investigations into
alleged child abuse and neglect at ORR care providers and attempt to
reach a resolution with the state directly; consulting with other
federal agencies to evaluate available options to address the lack of
investigations and seek feedback on ORR's proposed approach;
researching and planning how ORR would develop the necessary expertise
and capacity to conduct investigations; developing policies and
procedures to inform how investigations are conducted; obtaining
administrative approval for new agency positions; creating of new
comprehensive technical systems for recording and tracking
investigations; and, eventually, the hiring, onboarding, and training
of qualified investigative staff.
In addition, while engaged in these efforts, ORR directed its care
provider facilities in Texas to continue reporting abuse and neglect
allegations to State child welfare agencies, State licensing agencies,
State and local law enforcement, and where appropriate, the HHS Office
of the Inspector General and the FBI. ORR also established a framework,
utilizing its child welfare team or CWT (later becoming known as the
ORR Prevention of Child Abuse and Neglect or PCAN Team) for conducting
in-depth reviews of care provider facility responses to each individual
allegation of abuse and neglect. In these reviews, ORR staff receive
and review documentation concerning the allegation, assess whether
proper interventions and reporting requirements under ORR policies and
procedures were followed, and make recommendations for appropriate
follow-up actions regarding the alleged victim's medical and mental
health needs.
While ORR's in-depth reviews have played an important role in
filling some of the investigations-related gaps like ensuring
compliance with reporting requirements and following up on appropriate
interventions for staff and children, there remained a need for a
separate entity other than the care provider facilities themselves--
that would ensure independent oversight and response--to investigate
allegations of abuse and neglect that do not constitute criminal
violations. Accordingly, pursuant to its statutory responsibilities to
oversee the personnel and infrastructure of care provider facilities
and to conduct investigations (see discussion under section IV.B.
Authority), ORR established the Division of Unaccompanied Child
Protection Investigations (DCPI) in June 2024.\38\ DCPI began
conducting investigations of alleged child abuse and neglect at care
provider facilities in Texas in July 2024.
---------------------------------------------------------------------------
\38\ See Statement of Organization, Functions, and Delegations
of Authority, 89 FR 49889 (June 24, 2024).
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However, investigations without more do not fully fill the gap left
by Texas DFPS's decision not to investigate allegations of child abuse
and neglect, including by substantiating and sustaining such
allegations so that perpetrators may be identified and precluded from
working with unaccompanied children in ORR's care. The statutory
provisions authorizing ORR to establish its investigative division do
not specify the particular procedures ORR should follow in conducting
investigations and taking action to protect children from individuals
with pending or sustained allegations of sexual abuse or neglect. Thus,
ORR has determined that in order to fully address the protection of
children in its custody, consistent with its statutory responsibility,
it is important to establish a mechanism to ensure that individuals
with sustained Tier I allegations (as defined in this rule)
investigated by DCPI are terminated from employment in ORR-funded
programs, prevented from having contact with children in ORR programs,
and barred from employment in any ORR-funded program in the future. To
accomplish this goal with appropriate due process protections, ORR has
adopted this rule.
2. Need for ORR To Investigate Child Abuse and Neglect at Emergency or
Influx Facilities
In addition, this rulemaking provides needed clarity with respect
to investigations of child abuse and neglect at EIFs. Responsibility
for investigating allegations of child abuse and neglect at EIFs is
unique to each EIF based on a number of factors, including the
willingness of States or local authorities to investigate child abuse
and neglect at care provider facilities housing unaccompanied children
or enter into a formal written agreement with ORR to do so; the unique
size, capacity, and scope of EIFs; and the urgent timelines under which
EIFs may be activated. Because EIFs are activated in times of influx,
which arise based on unpredictable migration patterns, there may not be
sufficient time to establish formal written agreements with local
authorities to conduct child abuse and neglect investigations when ORR
activates such facilities. For example, referrals of unaccompanied
children to ORR increased dramatically from Federal fiscal year (FFY)
2020 (15,381 children) to FFY 2021 (122,731 children), continued to
increase in FFY 2022 (128,904 children), but then decreased in FFY 2023
(118,938 children).\39\ ORR believes, as a result, that it is
appropriate to include EIFs within the scope of this rule--to ensure
that reports of child abuse and neglect arising at EIFs are
consistently investigated and that ORR may take actions to protect
unaccompanied children from those with pending or sustained
allegations.\40\
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\39\ ORR Unaccompanied Children Facts and Data. (July 5, 2024).
Retrieved from: <a href="https://www.acf.hhs.gov/orr/about/ucs/facts-and-data">https://www.acf.hhs.gov/orr/about/ucs/facts-and-data</a>.
\40\ See also infra Section VI (discussing good cause for
issuing this IFR).
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ORR prefers that State and local authorities exercise their long-
standing authority under State and local laws and regulations to
investigate allegations of child abuse and neglect and will continue to
seek to establish agreements with States and local authorities to
investigate child abuse and neglect at EIFs. However, as noted above,
as of the date of publication, ORR does not currently have written
agreements with State or local authorities to conduct child welfare
investigations at EIFs, and as noted above, FBI investigations are
limited to allegations that potentially rise to the level of Federal
crimes. Further, with DCPI investigations of alleged child abuse and
neglect underway, there is also a need to maintain an ORR central
registry to document substantiated abuse and neglect findings based on
its own investigations. As in States that do not to provide an
investigative infrastructure for ORR-funded facilities housing
unaccompanied children, both investigations and the maintenance of a
central registry are required at EIFs--particularly where no State or
local investigative infrastructure is available (e.g., pursuant to a
formal written agreement with ORR).
ORR notes that any ORR investigations into allegations of child
abuse and neglect at EIFs under this rule would be separate from any
other investigations that may occur by other authorities, whether
pursuant to the VCAA or otherwise, and will not conflict with
investigations by those other authorities.
[[Page 93503]]
3. Scope of Rulemaking
This IFR describes the circumstances in which ORR will investigate
and substantiate child abuse and neglect allegations. It also
delineates further steps ORR may take upon conducting such
investigations to protect unaccompanied children, such as ensuring that
certain individuals against whom allegations of child abuse and neglect
have been substantiated and upheld after an appeal and review process
are prevented from working or volunteering in any way on ORR-funded
grants or contracts, and that alleged perpetrators with pending
allegations do not have continued access to children. As discussed
below at section VI, considering ORR's recent establishment of the
DCPI, there is good cause to issue an IFR both to describe the nature
and scope of ORR investigations, and critically, to establish required
consequences for certain investigative findings, with appropriate due
process protections.
This IFR:
<bullet> Describes the responsibilities of ORR to conduct
investigations into allegations of child abuse and neglect of
unaccompanied children at (1) care provider facilities located in
States where the State agency responsible for investigating child abuse
and neglect allegations will not investigate such allegations in ORR-
funded care provider facilities, and at (2) EIFs;
<bullet> Defines the applicable burden of proof as a preponderance
of the evidence and describes the investigation disposition types as
substantiated-Tier I; substantiated-Tier II; not substantiated;
unfounded; or administratively closed;
<bullet> Describes notification requirements of the findings of
investigations;
<bullet> Describes an appeal and review process for individuals
with substantiated allegations of child abuse and neglect at ORR care
provider facilities in States that will not investigate allegations of
abuse or neglect in facilities housing unaccompanied children and at
emergency or influx facilities;
<bullet> Creates an ORR Central Registry, and associated processes
and sanctions, for individuals with sustained Tier I allegations of
child abuse and neglect at EIFs and at ORR care provider facilities in
States that will not investigate allegations of abuse or neglect in
facilities housing unaccompanied children; and
<bullet> Describes requirements for care provider facilities to
cooperate with investigations.
D. Severability
The different parts of this interim final rule address distinct
aspects of investigations of child abuse and neglect. These include:
the investigation of allegations of child abuse and neglect occurring
at care provider facilities that do not conduct their own
investigations, and investigations at EIFs (Sec. 412.100);
interventions and discipline, including an ORR Central Registry of
perpetrators relating to certain sustained allegations (Sec. 412.101);
the appeal and review process (Sec. 412.102); and obligations of care
provider facilities (Sec. 412.103) in cooperating with investigations.
To the extent any section or subsection of the rule is declared invalid
by a court, ORR intends for all remaining sections and subsections to
remain in effect, as they would continue to function sensibly. As an
illustration, ORR expects that if a court were to invalidate Sec.
412.100(c)(2), which makes the requirements of Sec. 412.100 relating
to investigations into allegations of child abuse and neglect
applicable to EIFs, the standards, requirements, and procedures under
Sec. 412.100 would continue to be applicable to care provider
facilities housing unaccompanied children in States where the State
agency responsible for investigating child abuse and neglect
allegations will not investigate such allegations in ORR-funded care
provider facilities, as provided in Sec. 412.100(c)(1). Likewise, ORR
expects that if a court were to declare that the ORR Central Registry
as defined at Sec. 412.001 and described at Sec. 412.101(a) is
invalid, the requirements of Sec. 412.100 relating to investigations
into allegations of child abuse and neglect at certain facilities, and
the obligations of care facilities delineated at Sec. 412.103 will
remain in effect.
V. Discussion of Elements of the Interim Final Rule
Section 412.001 Definitions
ORR, in Sec. 412.001, is codifying the definitions of terms that
apply to this part. Many terms used in this rule are defined in other
authorities, including statutes and ORR regulations, and this rule uses
these terms consistently with those definitions. For example, this rule
uses the term ``unaccompanied child'' consistently with the definition
provided in the UC Program Foundational Rule, at 45 CFR 410.1001 (which
is further consistent with the definition of ``unaccompanied alien
child'' found in the Homeland Security Act (HSA), at 6 U.S.C.
279(g)(2)). Below, ORR further explains its rationale for certain
definitions applied in this rule.
The definition of ``administrative closure'' describes when ORR
determines it will not make a finding regarding an allegation of child
abuse or neglect. Administrative closure does not imply that ORR would
have found an allegation of abuse or neglect to be substantiated or not
substantiated. ORR may assign an intake report for administrative
closure if ORR determines it is not appropriate for investigation.
Reasons for administrative closure before an investigation may include,
but are not limited to, lack of jurisdiction to conduct an
investigation of the allegation (e.g., if the alleged abuse or neglect
occurred in a State where the State agency responsible for
investigating child abuse and neglect continues to investigate such
reports of unaccompanied children in ORR care); transfer of the report
to another jurisdiction or agency; an allegation not rising to the
level of child abuse or neglect; duplication of an existing report; or
an allegation is otherwise outside the scope of this rule, as described
at Sec. 412.100(c). ORR may also make a disposition of administrative
closure after investigation. Reasons for administrative closure after
an investigation may include, but are not limited to, inability to
contact the child; insufficient information to proceed with the
investigation; or transfer to another jurisdiction or agency. If ORR
administratively closes an intake report or investigation, it may
consider further investigation related to the initial allegation if new
information becomes available.
The definition of ``alleged perpetrator'' means a person who is
alleged to have abused or neglected a child within the scope of this
part as described at Sec. 412.100(a) and (c). The term encompasses
individuals who are identified in an intake report, and subject to an
investigation under this part, but does not include individuals who
have been subject to an investigation which resulted in a not
substantiated allegation, unfounded allegation, or administrative
closure. Per the definition of child abuse and neglect set out at Sec.
412.001, alleged perpetrators can include individuals who observed,
permitted, or otherwise allowed a child to be mistreated and knowingly
failed to act to protect the child. Alleged perpetrators do not become
sustained perpetrators until all appropriate investigative steps have
been completed and they have exhausted all administrative remedies,
including waiving their right to appeal, as
[[Page 93504]]
applicable and as specified in Sec. 412.102(c).
The definition of ``child abuse and neglect'' in this IFR is based
on ORR's review of Federal laws, consultation with the Administration
on Children, Youth, and Families, including the Children's Bureau, and
on its experience operating the UC Bureau. For example, ORR intends
that this definition capture the types of behaviors identified at 22
U.S.C. 7102, 34 U.S.C. 20341, and 42 U.S.C. 5106g, Note Sec. 3, to the
extent they describe behaviors and situations that are relevant to
unaccompanied children for purposes of this rule. At the same time, the
definition of ``child abuse and neglect'' and related definitions
(e.g., medical neglect, verbal or emotional abuse) in this rule provide
additional granularity relevant to the UC Bureau. The definitions of
sexual abuse and sexual harassment used in this rule are the same as
the PSA IFR at 45 CFR 411.6. ORR developed other related definitions to
appropriately capture incidents and circumstances that raise child
welfare concerns, and also reflect how abuse or neglect has
historically been identified within the UC Bureau (e.g., based on
historical significant incident reporting to ORR, input from subject
matter experts in child welfare including ORR's CWT, Prevention of
Sexual Abuse Team, Division of Health for Unaccompanied Children,
Federal field specialists, and Data Analytics and Information
Management team). For example, this IFR provides separate definitions
distinguishing neglect and medical neglect, and child abuse from child
neglect, in contrast to 34 U.S.C. 20341, which groups these concepts
together. Having separate definitions in this rule also enables ORR to
have accurate data on specific kinds of abuse or neglect that may occur
with respect to children in its care.
The definition of ``inappropriate sexual behavior'' refers to
inappropriate sexual, derogatory, or offensive conduct that does not
rise to the level of sexual abuse or sexual harassment. ORR intends
that this term, which is also used in current ORR policies, capture
conduct that falls outside of other relevant definitions, but still
merits reporting and response.
The definition of ``medical neglect'' draws in part from ORR's
review of other Federal authorities. For example, it is meant to
include concerns described in the definition of ``negligent treatment''
from 34 U.S.C. 20341(c)(7), and the definition of ``neglect'' from 42
CFR 483.5. ORR found that these authorities described the types of
issues from which it seeks to protect unaccompanied children in its
custody, and, to that extent, these authorities informed the definition
of ``medical neglect'' in this rule. ORR is providing a separate
definition for medical neglect, distinct from other forms of neglect,
based on its experience operating the UC Bureau, including knowledge of
the forms of neglect historically reported within the context of the UC
Bureau, and the importance of having sufficient granularity in data
reporting and monitoring to appropriately capture and address the types
of incidents and circumstances that raise child welfare concerns.
``Multidisciplinary team'' is defined as a group of individuals
comprised of ORR staff, including subject matter experts.
Multidisciplinary teams provide input to ORR's Child Welfare
Investigators by assessing reported allegations of child abuse and
neglect at care provider facilities and making recommendations
regarding physical and behavioral healthcare needs of unaccompanied
children potentially impacted by child abuse and neglect at these
facilities. Notably, the multidisciplinary team may include, but is not
limited to, child welfare experts, forensic interviewers, mental health
practitioners, child development and disability practitioners,
pediatricians and other medical experts as needed, policy advisors,
Federal program analysts, Federal program management staff, or other
subject matter experts. The multidisciplinary team will also focus on
the physical and behavioral healthcare needs of unaccompanied children
potentially impacted by, and during the course of, the investigation of
child abuse or neglect. Importantly, this team is different from, and
in addition to, the ORR Child Welfare Investigator. The ORR Child
Welfare Investigator sits within the DCPI, which will have the option
to consult with the separate multidisciplinary team as necessary and
appropriate. ORR believes that this collaborative approach to the
investigation will lead to a coordinated response, representing a
variety of fields and disciplines to support unaccompanied children
while also ensuring a more efficient and thorough investigation.
The definition of ``not substantiated allegation'' means a
disposition that there is not a preponderance of the evidence
establishing that the alleged perpetrator committed child abuse or
neglect (as defined in this section), but there is at least some
evidence that the unaccompanied child was harmed or placed at risk of
harm, whether or not by the alleged perpetrator. This term does not
include administratively closed allegations. ORR notes that this
definition differs from its definition of ``unsubstantiated
allegation'' under the PSA IFR at 45 CFR 411.5 (``an allegation that
was investigated and the investigation produced insufficient evidence
to make a final determination as to whether or not the event
occurred''). This investigation disposition, as well as the other
defined dispositions, are further described in Sec. 412.100.
The definition of ``physical abuse'' in this IFR aligns with the
types of behaviors identified at 34 U.S.C. 20341 and described at 42
U.S.C. 5106g, Note Sec. 3, to the extent that those provisions
describe behaviors and situations that are relevant to unaccompanied
children for the purposes of this rule. Further, the definition of
``physical abuse'' provided in this rule includes specific non-
exhaustive examples, based on ORR's experience operating the UC Bureau
and the forms of physical abuse historically reported, as well as
feedback from care provider facilities that definitions with greater
specificity better support effective reporting and monitoring.
The definition of ``preponderance of the evidence'' describes the
burden of proof used to substantiate allegations of child abuse and
neglect. ORR notes that this definition is based on 42 CFR 93.219, and
that this definition means something is more likely than not to be
true.
The definition of ``sexual abuse,'' has the same meaning as that
term is defined in 45 CFR 411.6.
The definition of ``sexual harassment,'' has the same meaning as
that term is defined in 45 CFR 411.6. ORR notes that this definition
indicates that prohibited conduct ``includes'' repeated actions;
however, the definition is not intended to be exhaustive, and a single
instance may constitute sexual harassment.
The definition of ``sub-grantee'' is based on the definition of the
term ``subrecipient'' from 45 CFR 75.2. ORR is using the term sub-
grantee instead of subrecipient for consistency with existing ORR
policies and guidance.
The definition of ``substantiated allegation-Tier I'' means a
disposition that there is a preponderance of the evidence establishing
that the alleged perpetrator committed child abuse or neglect, and the
investigation indicates one or more automatic Tier I substantiating
circumstances have been found pursuant to Sec. 412.100(e)(7) or
substantiation at Tier I is warranted based on consideration of
aggravating and mitigating factors pursuant to Sec. 412.100(e)(8). ORR
notes that this
[[Page 93505]]
definition differs from its definition of ``substantiated allegation''
under the PSA IFR at 45 CFR 411.5 (``an allegation that was
investigated and determined to have occurred'') to incorporate that
ORR, as the investigating entity, is using the preponderance of
evidence standard to establish a disposition of ``substantiated'' and
to incorporate the consideration of automatic Tier I substantiating
circumstances, aggravating factors, and mitigating factors.
The definition of ``substantiated allegation-Tier II'' means a
disposition that there is a preponderance of the evidence establishing
that the alleged perpetrator committed child abuse or neglect, and that
based on consideration of aggravating and mitigating factors pursuant
to Sec. 412.100(e)(8), the evidence does not warrant a finding of
``Substantiated Allegation-Tier I.'' ORR notes that this definition
differs from its definition of ``substantiated allegation'' under the
PSA IFR at 45 CFR 411.5 (``an allegation that was investigated and
determined to have occurred'') to incorporate that ORR, as the
investigating entity, is using the preponderance of the evidence
standard to establish a disposition of ``substantiated'' and to
incorporate the consideration of whether a disposition of substantiated
allegation-Tier I is warranted, including in consideration of the
aggravating and mitigating factors.
The definition of ``substantiated perpetrator'' means a person
against whom an allegation of child abuse or neglect has been
substantiated by ORR at Tier I or Tier II, but who has not exhausted
the applicable appeal and review process for such allegations.
Substantiated perpetrators at both Tier I and Tier II may appeal the
disposition made by ORR to an Administrative Law Judge (ALJ) of the HHS
Departmental Appeals Board (DAB) pursuant to Sec. 412.102(c) and
subsequently to the HHS Assistant Secretary for Children and Families
pursuant to Sec. 412.102(e).
The definition of ``sustained allegation'' means an allegation that
was substantiated by ORR at Tier I or Tier II and that was upheld
pursuant to the appeal and review process described in this rule or for
which an appeal and review process was dismissed, including when the
substantiated perpetrator waives their right to appeal by failing to
make a timely request or by waiving those rights as specified in Sec.
412.102(c).
The definition of ``sustained perpetrator'' means a substantiated
perpetrator at Tier I or Tier II whose child abuse or neglect finding
was upheld in the appeal and review process or whose appeal and review
process was dismissed, including due to the sustained perpetrator's
waiver of their right to appeal by failing to timely request appeal, or
by otherwise waiving those rights as specified at Sec. 412.102(c).
Tier I Sustained perpetrators shall be prohibited from working in any
way in connection with ORR-funded grants or contracts, including
working or volunteering at any ORR care provider facility; may not have
access to or contact with any unaccompanied child in ORR custody; will
be added to the ORR Central Registry; and will be referred to
appropriate law enforcement agencies. Information concerning Tier II
sustained perpetrators will be recorded and maintained in agency
records.
The definition of ``unfounded allegation'' means a disposition that
there is not a preponderance of the evidence establishing that the
alleged perpetrator committed child abuse or neglect, and the evidence
indicates that the unaccompanied child was not harmed or placed at risk
of harm. ORR notes that this definition differs from its definition of
``unfounded allegation'' under 45 CFR 411.5 (``an allegation that was
investigated and determined not to have occurred'') to incorporate that
ORR, as the investigating entity, is using the preponderance of
evidence standard to establish a disposition of ``unfounded
allegation.'' ORR also notes that records regarding unfounded
allegations are maintained and disposed of in accordance with the
applicable federal records management requirements.
The definition of ``verbal or emotional abuse'' aligns with the
definition of ``mental injury'' at 34 U.S.C. 20341 and described at 42
U.S.C. 5106g, Note Sec. 3, to the extent that those authorities
describe behaviors and situations that are relevant to unaccompanied
children for the purposes of this rule. The definition also includes
specific non-exhaustive examples, based on ORR's experience operating
the UC Bureau and the forms of verbal and emotional abuse historically
reported, as well as feedback from care provider facilities that
definitions with greater specificity will better support effective
reporting and monitoring.
Section 412.100 Investigations Into Allegations of Child Abuse and
Neglect
ORR describes the purpose of this IFR at Sec. 412.100(a). This
rule establishes the standards, requirements, and procedures for
investigations by ORR of allegations of child abuse and neglect of
unaccompanied children in ORR custody alleged to have been committed by
care provider facility staff, contractors or sub-grantees of the care
provider facility, care provider facility volunteers, or other
individuals who have access to children in ORR care through contracts
or grants with ORR, subject to Sec. 412.100(c). ORR may also
investigate individuals including those who are affiliated with legal
service providers, child advocates, or other contractors engaged by ORR
or the relevant care provider facility, to the extent allegations of
abuse or neglect concern unaccompanied children who were in ORR custody
at the time of the alleged incident. ORR believes these regulations
will reduce the risk of child abuse and neglect of unaccompanied
children in ORR care.
Section 412.100(b) provides that the provisions of this part are
separate and severable from one another and that if any provision is
stayed or determined to be invalid in a final judgment by a court of
law, the remaining provisions shall continue in effect. This provision
is meant to be consistent with the discussion of severability provided
in the preamble at section IV.D.
Section 412.100(c) states that this rule applies in two
circumstances. First, it applies to care provider facilities located in
States where the State agency otherwise responsible for investigating
child abuse and neglect allegations will not, as a matter of policy,
investigate allegations of abuse or neglect concerning unaccompanied
children at ORR-funded care provider facilities.\41\ Second, this rule
applies to EIFs. ORR notes this regulation implements ORR's statutory
authority to conduct investigations and inspections of care provider
facilities and other entities in which unaccompanied children reside
while in ORR custody, regardless of the alleged perpetrator's
particular role or job at the care provider facility--i.e., regardless
of whether they are employed directly by the care provider facility,
are employed by a contractor or sub-grantee of the care provider
facility, are caring for unaccompanied children through a cooperative
agreement with ORR, or are volunteers at a care provider facility.
Finally, this regulation provides ORR the authority to investigate any
allegations of child abuse and neglect that occurred during a child's
stay at an ORR care provider facility, even if the allegation is
reported after the unaccompanied child has been released from ORR care
and custody. In the event that a child is transferred to another care
provider facility, ORR will continue to investigate any allegations of
child abuse and neglect that occurred at the
[[Page 93506]]
care provider facility for which the allegation was submitted.
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\41\ As of the publication of this rule, the only such state is
Texas.
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ORR believes that it is critical to ensure that allegations of
child abuse and neglect are reported to ORR. For example, ORR's
existing policies and procedures require care provider facilities to
report all allegations of child abuse and neglect of an unaccompanied
child in ORR custody to ORR and to Federal, State, and local
authorities in accordance with any applicable Federal, State, and local
reporting and licensing laws.\42\ Further, 45 CFR 411.61 requires care
provider facilities to report to ORR any allegation, suspicion,
knowledge, or information regarding an incident of sexual abuse or
sexual harassment occurring in ORR care, along with any retaliatory
actions resulting from reporting such incidents. The UC Program
Foundational Rule requires at 45 CFR 410.1303(g) that all care provider
facilities report to ORR any emergency incident, significant incident,
or program-level event, in accordance with any applicable Federal,
State, and local reporting laws. These existing requirements apply to
all ORR care provider facilities. The requirements outlined in this
rule at Sec. 412.100(d) further provide that any person may report an
allegation of child abuse and neglect to ORR directly, to the care
provider facility, or to a designated entity or office that is not part
of the care provider facility. To ensure clarity and consistency, ORR
believes it is important to outline these additional reporting
requirements for care provider facilities subject to this rule.
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\42\ See, ORR Policy Guide Section 5.8.2 Significant Incidents.
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ORR believes that ensuring individuals can report allegations of
child abuse and neglect without fear of retaliation is key to ensuring
that such reports are made. Therefore, under Sec. 412.100(d), care
provider facilities to which this part applies must have written
policies and procedures that allow children, care provider facility
staff, contractors or sub-grantees of the care provider facility, care
provider facility volunteers, families of unaccompanied children, legal
service providers, child advocates, attorneys of record, and any other
persons to report allegations of child abuse and neglect to ORR
directly, to the care provider facility, or to a designated entity or
office that is not part of the care provider facility. Under Sec.
412.100(d), the written policies and procedures must minimally address
three topics. First, under Sec. 412.100(d)(1), the care provider
facilities' policies and procedures must at minimum provide
unaccompanied children and other individuals with methods for reporting
and inform them of how they can report an allegation of child abuse and
neglect to a designated entity or office that is not part of the care
provider facility. Such entity or office must be able to receive
allegations of child abuse and neglect and to immediately forward them
to ORR, allowing unaccompanied children to remain anonymous upon
request. Second, under Sec. 412.100(d)(2), all the methods of
reporting must be accessible to all unaccompanied children including
those with disabilities and those with limited English proficiency.
This can include, for example, ensuring unaccompanied children are
aware of, and are able to call, ORR's National Call Center.\43\ In
order to be accessible to unaccompanied children with disabilities, the
method of reporting must provide effective communication consistent
with section 504 of the Rehabilitation Act of 1973. In addition, ORR
notes that the requirements for language access for unaccompanied
children with disabilities under the UC Program Foundational Rule must
also be met, at 45 CFR 410.1306 and 45 CFR 410.1311 respectively.
Third, under Sec. 412.100(d)(3), the care provider facility policies
and procedures must include protections to prevent retaliation against
unaccompanied children and others who report allegations of child abuse
and neglect.
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\43\ See ORR, Office of Refugee Resettlement National Call
Center, <a href="https://www.acf.hhs.gov/orr/outreach-material/office-refugee-resettlement-national-call-center">https://www.acf.hhs.gov/orr/outreach-material/office-refugee-resettlement-national-call-center</a> (date accessed Sept. 6,
2024).
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At Sec. 412.100(e), ORR is establishing requirements for the
screening and intake of reports of allegations of child abuse and
neglect, conducting investigations, assigning dispositions to the
allegations, and documenting investigations. When receiving reports of
allegations of child abuse and neglect and conducting investigations,
ORR must ensure the health and safety of unaccompanied children while
making every effort to reduce further trauma to the alleged victim(s).
ORR is requiring at Sec. 412.100(e)(1), that when it receives a
report of alleged child abuse or neglect, ORR must generate an intake
report and determine whether the report includes an allegation that, if
found to be true, would meet the definition of child abuse and neglect
in this part and is consistent with Sec. 412.100(a) and (c). If so,
ORR will assign the intake report for investigation. If not, ORR will
assign the intake report for administrative closure. ORR will assign an
intake report for investigation where the allegation meets the
requirements of Sec. 412.100(a) and (c); but ORR may in its discretion
elect not to investigate an allegation at an EIF if it has a formal
written agreement with the relevant State or local authority to perform
such investigations. ORR may administratively close an intake report
when it determines it is not appropriate for an investigation, which
may include circumstances such as those described in the definition of
administrative closure in Sec. 412.001. ORR notes that it will assign
an intake report for investigation in accordance with the requirements
at Sec. 412.100(e) even if the child is no longer in ORR care, as long
as the alleged abuse or neglect occurred while the child was in ORR
care. This could include, for example, instances in which an
unaccompanied child reports an allegation of abuse or neglect to ORR
after they have been released, or if the child has been transferred to
another care provider facility. In the event that a child has been
transferred to a new care provider facility in a State that conducts
investigations, ORR will continue its investigation in the State in
which the alleged child abuse or neglect occurred, as the alleged
perpetrator may still pose a risk to other children in the care
provider facility from which the child was transferred. ORR will
document and assess the report to determine the timeline for assigning
the report for investigation based on the level of risk of harm to the
alleged victim and assign different response times based on the level
of risk of harm. ORR will document and maintain a record of every
allegation received at care provider facilities that fall under this
IFR, whether it is ultimately assigned for investigation and a
disposition rendered or assigned for administrative closure. ORR's
decision and rationale about whether to classify the allegation as an
intake report and assign it for investigation (or for administrative
closure) will also be documented.
After an intake report is assigned for investigation, under Sec.
412.100(e)(2), ORR shall assign an ORR Child Welfare Investigator to
make a prompt and thorough investigation of the report to obtain
sufficient information to determine whether the allegation is
substantiated based on a preponderance of the evidence. The
preponderance of the evidence standard for ORR investigations shall be
applied in determining whether the alleged perpetrator committed child
abuse or neglect. As such, the investigation prescribed in this section
relates to the
[[Page 93507]]
underlying allegation of abuse or neglect to a child, in addition to
focusing on the individual perpetrator(s) involved. ORR will
communicate its disposition to the alleged perpetrator, consistent with
the requirements set forth at Sec. 412.100(g), specifying whether the
investigation determined that the alleged perpetrator committed abuse
or neglect as defined in this rule. ORR emphasizes that this child-
centered approach comports with common child welfare best practices
seen across State systems.
ORR is requiring, at Sec. 412.100(e)(3), that ORR shall provide
notification that an allegation of child abuse and neglect will be
investigated by ORR. This notification shall be provided to the alleged
perpetrator; care provider facility; alleged victim; alleged victim's
attorney of record (if the child has an attorney of record); and the
alleged victim's parent(s), legal guardian(s), or sponsor(s) (as
appropriate), unless ORR has evidence showing the parents, legal
guardians, or sponsors should not be notified. If the alleged victim is
14 years old or older and ORR has determined that the alleged victim is
able to make an independent decision, the alleged victim can
affirmatively consent to disclosure. ORR notes that this notification
requirement to the alleged victim, their attorney of record, and their
parents, legal guardians, or sponsors is consistent with ORR's existing
subregulatory notification policies and the PSA IFR requirements at 45
CFR 411.61(e) that are specific to sexual abuse and sexual harassment.
To be clear, ORR also notes that the requirements of 45 CFR 411.61(f)
continue to apply with respect to allegations of sexual abuse and
harassment.
ORR is requiring, at Sec. 412.100(e)(4), that the care provider
facility must take immediate responsive measures to protect child
welfare when notified that an investigation has been initiated, confirm
the actions to ORR, and notify the alleged perpetrator, as appropriate.
Such responsive measures may extend throughout the pendency of an
investigation, and during the pendency of appeal and review processes,
as necessary and applicable. ORR believes that this requirement is
necessary to protect the safety and well-being of the unaccompanied
children in ORR's care and custody until the allegation is either found
to be not substantiated, unfounded, or is administratively closed.
Additionally, ORR notes that care provider facility actions must be
consistent with 45 CFR 411.66, which requires that any ORR and care
provider facility staff, contractors, and volunteers suspected of
perpetrating sexual abuse or sexual harassment must be suspended from
all duties that would involve or allow access to unaccompanied children
pending the outcome of an investigation.
At Sec. 412.100(e)(5), ORR is establishing minimum standards that
ORR shall follow when investigating allegations of child abuse and
neglect. ORR investigations under this rule are not intended to replace
investigations that may be performed by other relevant authorities,
including State law enforcement or other Federal agencies, or entities
designated under the VCAA to receive reports of child abuse.
Accordingly, to the extent possible and appropriate, ORR is requiring
at Sec. 412.100(e)(5)(i) that it coordinate with any local or State
law enforcement or other Federal agencies during its investigation. ORR
may pause or resume an investigation at its discretion, with input from
law enforcement partners or other relevant investigatory bodies, as
necessary. Such coordination and cooperation with outside
investigations is consistent with similar principles described in the
PSA IFR.\44\
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\44\ See, e.g., 79 FR 77768, 77793; 77797.
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Additionally, under Sec. 412.100(e)(5)(ii), ORR shall establish,
as necessary, a multidisciplinary team comprised of ORR staff, which
may include, but is not limited to, child welfare experts, forensic
interviewers, mental health practitioners, child development and
disability practitioners, pediatricians and other medical experts as
needed, policy advisors, Federal program analysts, Federal program
management staff, and subject matter experts to collaborate with the
ORR Child Welfare Investigator. Although the ORR Child Welfare
Investigator is responsible for rendering a final disposition based on
their investigation, the multidisciplinary team will engage a range of
ORR staff who are subject matter experts to provide input and an
assessment of the reported allegation of child abuse or neglect to
assist the ORR Child Welfare Investigator's investigation. The
multidisciplinary team will also focus on the physical and behavioral
healthcare needs of unaccompanied children potentially impacted by, and
during the course of, the investigation of child abuse or neglect. This
team is different from, and in addition to, the ORR Child Welfare
Investigator and the DCPI will have the option to consult with the
separate multidisciplinary team as necessary and appropriate. ORR
believes that this collaborative approach to the investigation will
lead to a coordinated response, representing a variety of fields and
disciplines to support unaccompanied children while also ensuring a
more efficient and thorough investigation.
Under Sec. 412.100(e)(5)(iii), the Child Welfare Investigator is
required to complete certain minimum actions during an investigation.
The Investigator should demonstrate that they have thoroughly
investigated the allegation to obtain sufficient information for ORR to
make a disposition. Under Sec. 412.100(e)(5)(iii)(A), ORR is requiring
that upon receipt of the intake report, the ORR Child Welfare
Investigator must review the intake report and the care provider
facility's records on the alleged victim and alleged perpetrator,
conduct a background check on the alleged perpetrator, interview the
person who reported the allegation if this person was not interviewed
during intake, immediately request preservation of any potential video
and documentary evidence, and as needed, establish a plan for
thoroughly investigating the allegation. ORR already requires
background checks of care provider facility staff, contractors, and
volunteers prior to hiring or before such individuals may have contact
with unaccompanied children; \45\ but the intent of this requirement is
to ensure that ORR has an updated background check regarding the
alleged perpetrator. This may include an FBI fingerprint check of
national and State criminal history repositories, a National Sex
Offender Public website check, state child abuse and neglect registry
checks, or other public records checks. Further, ORR recognizes the
importance of avoiding the loss of any video and documentary evidence
and therefore requires the ORR Child Welfare Investigator to
immediately seek preservation of that evidence. At Sec.
412.100(e)(5)(iii)(B), ORR is requiring the ORR Child Welfare
Investigator to visit the care provider facility, as appropriate, to
conduct a walkthrough of the facility and review video and documentary
evidence. The intent of this requirement is to ensure the Investigator
is able to review any video and documentary evidence in a timely way
and record any observations that may be relevant to the investigation.
Visits to the care provider facility may be unannounced, and the ORR
Child Welfare Investigator may visit a care provider facility as often
as necessary to complete an investigation.
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\45\ See 45 CFR 411.16(c), (d).
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Under Sec. 412.100(e)(5)(iii)(C), ORR is requiring the ORR Child
Welfare Investigator to make reasonable efforts
[[Page 93508]]
to interview all individuals who have information relevant to the
report of child abuse or neglect, including, but not limited to, the
alleged perpetrator, care provider facility staff, the alleged victim,
sponsor(s), and the parent(s) or legal guardian(s) (as appropriate) of
the alleged victim, and any other potential witnesses. ORR recognizes
the importance of conducting investigations in a way that minimizes the
number of times individual children, including the alleged victim and
those who may have relevant information, are interviewed, so as to
mitigate potential trauma during the investigation process and to
promote reliability of the information collected. This includes taking
into consideration when law enforcement or other Federal entities are
conducting an investigation of the same allegation in alignment with
Sec. 412.100(e)(5)(i). ORR recognizes that some children, however, may
require multiple interviews in order to feel more comfortable
discussing allegations of child abuse and neglect, remember details, or
overcome feelings of shame or guilt.\46\
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\46\ Child Welfare Information Gateway. (2023). Forensic
interviewing: A primer for child welfare professionals. U.S.
Department of Health and Human Services, Administration for Children
and Families, Children's Bureau. Available at: <a href="https://www.childwelfare.gov/pubs/factsheets/forensicinterviewing/">https://www.childwelfare.gov/pubs/factsheets/forensicinterviewing/</a>.
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Care provider facility staff will not be compelled to address
questions about allegations regarding either themselves or other staff,
under threat of disciplinary actions. ORR will not use threat of
discharge to force an employee to be interviewed.
ORR notes that there may be circumstances where the ORR Child
Welfare Investigator may not be able to interview all individuals who
have information relevant to the report of child abuse or neglect. For
example, the ORR Child Welfare Investigator may be unable to locate the
individual after making reasonable efforts or the individual is unable
to be interviewed due to the individual's parent, legal guardian,
sponsor, or attorney representing the individual, refusing to permit
the interview. ORR also notes that there may be situations in which it
would not be appropriate for the parent, legal guardian, or sponsor to
be interviewed (e.g., when a child 14 years old or older has not
consented to disclosure). Additionally, the ORR Child Welfare
Investigator may not be able to interview an alleged perpetrator if the
perpetrator was arrested or is under investigation by a law enforcement
agency and the interview would interfere with the investigation; or the
alleged perpetrator is detained and the jail, prison, or other
detention facility where the alleged perpetrator is detained will not
permit the interview.
At Sec. 412.100(e)(5)(iii)(D), ORR is requiring the ORR Child
Welfare Investigator ensure that interviews conducted as part of the
investigation are accessible for all unaccompanied children, including
those with disabilities and those with limited English proficiency and
are properly documented either in writing or by audio or video
recording. In order to be accessible for unaccompanied children with
disabilities, the interviews must provide effective communication
consistent with section 504 of the Rehabilitation Act of 1973. In
addition, ORR notes that the requirements for language access and the
requirements for unaccompanied children with disabilities under the UC
Program Foundational Rule must also be met, at 45 CFR 410.1306 and 45
CFR 410.1311 respectively.
At Sec. 412.100(e)(5)(iii)(F), ORR is requiring that the ORR Child
Welfare Investigator review any available evidence in DCPI's records
relating to past conduct of an alleged perpetrator, except allegations
that resulted in a finding of unfounded or administrative closure.
ORR's intent in taking these steps is to ensure that it captures
situations that reveal patterns of behavior warranting further scrutiny
but protects the rights of the individual as relates to prior unfounded
or administratively closed allegations.
At Sec. 412.100(e)(5)(iii)(F), ORR is requiring the ORR Child
Welfare Investigator to gather relevant information as part of the
investigation, including documents and audio or video evidence.
Lastly, at Sec. 412.100(e)(5)(iii)(G), ORR is requiring the ORR
Child Welfare Investigator to assess any imminent or ongoing risk of
child abuse or neglect to the unaccompanied children at the care
provider facility and, as appropriate, request that the care provider
facility implement a plan to mitigate the risk and ensure the safety of
the children. ORR's intent, in addition to investigating the underlying
allegation, is also to assess any imminent or ongoing risks to children
at the care provider facility following an allegation and to ensure the
care provider facility implements safeguards to mitigate any such risks
and ensure the safety of the children. The ORR Child Welfare
Investigator is responsible for identifying any immediate risks to
child welfare during the initial care provider facility visit following
an allegation. This is not the same as determining whether the
allegation occurred, which is done through the described investigation
process, but rather to gain additional insight on how the allegation
may have occurred. As appropriate, the ORR Child Welfare Investigator
may request that the care provider facility implement a plan to
mitigate the risk of child abuse or neglect to ensure safety of the
unaccompanied children in ORR care at the care provider facility.
ORR is establishing at Sec. 412.100(e)(6), that once the ORR Child
Welfare Investigator's investigation is complete, ORR has the authority
to render a disposition based on a preponderance of the evidence for
each allegation. Possible dispositions include substantiated
allegation-Tier I; substantiated allegation-Tier II; not substantiated
allegation; unfounded; or administrative closure. If ORR determines the
allegation is not substantiated, unfounded, or administratively closed,
it may nevertheless consider further future investigation of the
allegation if new information becomes available. ORR based its
disposition types and definitions, including the relevant factors in
Sec. 412.100(e)(7) and (8), on a variety of existing State domestic
child welfare systems and established best practices that balance
children's needs and safety, the nuances that can exist in each
allegation, and the due process rights of alleged perpetrators.
ORR notes that the first step in determining the disposition of an
investigation is establishing whether child abuse or neglect, as
defined under Sec. 412.001, occurred based on the available
information. If ORR finds, based on a preponderance of the evidence,
that child abuse or neglect occurred, the allegation is considered
substantiated as defined in Sec. 412.001. ORR will determine whether
each substantiated allegation is considered a substantiated allegation-
Tier I or substantiated allegation-Tier II as to the substantiated
perpetrator, based on the circumstances described at Sec.
412.100(e)(7) and Sec. 412.100(e)(8). ORR will make every reasonable
effort to determine the perpetrator(s) responsible for each
substantiated allegation of child abuse or neglect, and what role any
other individuals involved in the abuse or neglect had, even if they
did not perpetrate the act. An individual against whom an allegation of
child abuse or neglect has been substantiated by ORR at Tier I or Tier
II is considered a substantiated perpetrator, as defined in Sec.
412.001. Under Sec. 412.001, a substantiated perpetrator at Tier I or
Tier II may appeal ORR's disposition pursuant to the established
appeals process in Sec. 412.102(d).
[[Page 93509]]
ORR distinguishes an ``unfounded'' disposition from a ``not
substantiated'' disposition based on whether there was evidence
indicating that a child was harmed or placed at risk of harm. ORR
believes that distinguishing these two categories in this way allows
for a more child-centric approach to conducting investigations and
rendering dispositions by ensuring that any situation in which a child
is harmed or placed at risk of harm is specifically documented as such.
While there are other existing mechanisms, including ORR's Significant
Incident Reporting and monitoring systems, that may capture this
information, these mechanisms do not specifically document ORR
investigation dispositions.
By distinguishing ``unfounded'' and ``not substantiated''
dispositions, ORR will be able to better monitor and track individuals,
grantees, and contractors who may have repeated instances of
allegations against them. Even where alleged child abuse and neglect is
ultimately not substantiated, ORR believes documenting ``not
substantiated'' is important for child welfare because over time such
findings may reveal patterns of conduct requiring further scrutiny or
action by ORR. Notably, ORR is also requiring at Sec.
412.100(e)(5)(iii)(F) that any available evidence of past conduct in
DCPI's records relating to the same alleged perpetrator be reviewed as
part of the Child Welfare Investigator's investigative process, except
for allegations that resulted in a finding of unfounded or
administrative closure.
Under Sec. 412.100(e)(7), a disposition of substantiated
allegation-Tier I is automatically required where the allegation is (1)
substantiated by a preponderance of the evidence, and (2) where certain
enumerated factors are present. The factors warranting an automatic
Tier I substantiated allegation are: (i) death or near death of a child
as a result of child abuse or neglect; (ii) subjecting or exposing a
child to sexual abuse or sexual harassment; (iii) inflicting an injury
or creating a condition requiring a child to be hospitalized or to
receive significant medical attention; (iv) repeated instances of
physical abuse committed by the individual against any unaccompanied
child in ORR care; (v) failure to take reasonable action to protect a
child from sexual abuse or repeated instances of physical abuse under
circumstances where the individual knew or should have known that such
abuse was occurring; and (vi) depriving a child of necessary care
(e.g., food, shelter, healthcare, supervision) which either caused
serious harm or created a substantial risk of serious harm. ORR notes
that ``individual'' in this case means the care provider facility
staff, contractors or sub-grantees of the care provider facility, care
provider facility volunteers, or other individuals who have access to
children in ORR care through contracts or grants with ORR. Under Sec.
410.100(e)(7)(iv), when repeated instances of physical abuse are
committed by the individual, the finding of substantiated allegation-
Tier I could apply to the first incident reported if evidence is found
which indicates a pattern of abusive behavior, injuries to a child, or
harm. Additionally, under Sec. 410.100(e)(7)(v), the condition of an
individual failing to take reasonable action to protect a child from
sexual abuse or repeated instances of physical abuse would be met, for
example, when another individual is aware of the abuse, and fails to
take any action to stop it, and thus allows the perpetrator's abusive
behavior to continue. Under Sec. 410.100(e)(7)(vi), the condition of
depriving a child of necessary care which either caused serious harm or
a substantial risk of harm includes cases of willful abandonment,
deprivation of food, withholding of vital healthcare, forced isolation,
and other acts or omissions of similar severity.
If no automatic Tier I substantiating circumstances, as described
at Sec. 412.100(e)(7), are present, Sec. 412.100(e)(8) enumerates
aggravating and mitigating factors which will be considered in
determining if child abuse or neglect should be substantiated at Tier I
or II. In the absence of automatic Tier I substantiating circumstances,
where ORR finds under a preponderance of the evidence that child abuse
or neglect occurred, ORR will make a determination as to whether the
allegation should be substantiated as Tier I or Tier II by weighing
aggravating and mitigating factors together. Consideration of
aggravating and mitigating factors will be based on the totality of the
circumstances and in the interest of protecting child welfare. ORR
again notes that the ``individual'' means the care provider facility
staff, contractors or sub-grantees of the care provider facility, care
provider facility volunteers, or other individuals who have access to
children in ORR care through contracts or grants with ORR. Aggravating
factors include any of the following under Sec. 412.100(e)(8)(i): (A)
violations of ORR behavior management requirements pursuant to the UC
Program Foundational Rule at 45 CFR 410.1304; (B) failure to comply
with clearly established care provider facility policies, corrective
action plans, or agreed-upon conditions; (C) the tender age, delayed
developmental status or other vulnerability of the child; (D) any
significant or lasting physical, psychological, or emotional harm to
the child; (E) an attempt to inflict any significant or lasting
physical, psychological, or emotional harm to the child; and (F)
evidence suggesting a repetition or pattern of abuse or neglect,
including multiple instances in which child abuse or neglect was
substantiated at Tier I or Tier II, or not substantiated allegations if
they demonstrate a pattern of abuse or neglect.
Under Sec. 412.100(e)(8)(i)(A), violations of ORR behavior
management requirements \47\ include, for example, the use of prone
physical restraints, chemical restraints, or peer restraints for any
reason in any care provider facility setting, especially considering
the age and particular vulnerability of the child. ORR notes the factor
under Sec. 412.100(e)(8)(i)(C) includes tender age as defined in ORR's
Policy Guide which means children 12 years of age or younger. It also
includes the alleged victim's vulnerable status (including history of
trauma), particularly if the child is under the age of five; the
child's developmental stage; the child's individualized needs, the
child's disabilities, if any; and other vulnerabilities of the child.
ORR's consideration of an attempt to inflict any significant or lasting
physical, psychological, or emotional harm on the child under Sec.
412.100(e)(8)(i)(E) will include whether there was an attempt to harm
the child, even if the child does not appear to have suffered actual
harm. Finally, to understand whether there is a repetition or pattern
of child abuse or neglect under Sec. 412.100(e)(8)(i)(F), ORR will
consider whether there have been multiple Tier I or Tier II allegations
that have been sustained pursuant to this IFR, or determined to have
occurred by other relevant authorities that indicate such a pattern.
ORR will also consider whether there is evidence to indicate prior
occurrences or ongoing incidents of child abuse or neglect even if it
is the first incident investigated by ORR.
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\47\ See 45 CFR 410.1304.
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Under Sec. 412.100(e)(8)(ii), mitigating factors shall be weighed
together with any existing aggravating factors. ORR again notes that
the ``individual'' means the care provider facility staff, contractors
or sub-grantees of the care provider facility, volunteers, or other
individuals who have access to children in ORR care through contracts
or grants with ORR. Mitigating factors include
[[Page 93510]]
any of the following: (A) remedial actions taken by the individual
before the investigation was concluded; (B) extraordinary, situational,
or temporary stressors that caused the individual to act in an
uncharacteristically abusive or neglectful manner; (C) the isolated or
aberrational nature of the child abuse or neglect; and (D) the limited,
minor, or negligible physical, psychological, or emotional impact of
the abuse or neglect on the child. Under Sec. 412.100(e)(8)(ii)(C),
ORR will consider the isolated nature of the child abuse or neglect and
that there is no evidence of a pattern. If a subsequent report yields
additional evidence of a historical pattern or behavior, however, this
mitigating factor would be eliminated.
Under Sec. 412.100(f), records created, and information gathered
or obtained during the course of an investigation are for internal
purposes only, will not be shared or made public unless otherwise
required or authorized by law, and may not be disclosed without prior
ORR approval. All records will be maintained in an appropriate
recordkeeping system with protections for the privacy and security of
the individuals identified in the records. This provision refers to the
entire record gathered during the course of an investigation under this
part, in contrast to Sec. 412.101(d), which states ORR will refer
names and other identifying information of sustained perpetrators to
relevant State and local authorities and to relevant law enforcement
agencies in the State in which the child abuse and neglect occurred.
This provides ORR with discretion to disclose records, for example, to
Federal, State, or local government authorities, or any agents of such
authorities, that have a need for such information in order to carry
out their responsibilities under law to protect children from child
abuse and neglect. The provision also provides ORR with discretion to
share relevant information with the HHS Office of the Inspector General
(OIG) for purposes of conducting investigations in accordance with the
Inspector General Act (IG Act) of 1978.\48\ ORR notes that Sec.
412.100(f) applies to all records and information gathered, whether
they pertain to an alleged perpetrator, an unaccompanied child who is
an alleged victim or any other unaccompanied child, an individual
making an allegation to ORR, or any other individual associated with an
allegation, intake report, or investigation under this part.
Safeguarding and maintaining the confidentiality of an unaccompanied
child's case file records is critical to carrying out ORR's
responsibilities under the HSA and the TVPRA.\49\ Additionally,
requiring confidentiality is critical for promoting compliance with the
requirement to report allegations of child abuse and neglect at Sec.
412.100(d).\50\
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\48\ See 5 U.S.C. 6(a).
\49\ See 89 FR 34384, 34494. See also 81 FR 46682 (stating that
ORR treats systems of records containing unaccompanied child
information as subject to the provisions of the Privacy Act, 5
U.S.C. 552a).
\50\ ORR further notes that it has finalized regulations
relating to the confidentiality of case files of unaccompanied
children in ORR care in the Unaccompanied Children Program
Foundational Rule. See id. at 34599 (codified at 45 CFR
410.1303(h)).
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ORR is establishing requirements pertaining to notification of
dispositions at Sec. 412.100(g). At Sec. 412.100(g)(1), ORR must
notify the alleged perpetrator of the disposition of an investigation
in writing within five days of making the disposition. ORR must also
notify in writing the alleged victim and their parent(s), legal
guardian(s) (as appropriate), or sponsor(s), of the disposition within
five days of making a disposition.
Under Sec. 412.100(g)(2), if the disposition is substantiated at
Tier I, the notification must state: (i) the substantiated perpetrator
will be considered a sustained perpetrator at Tier I and their name and
other relevant information will be placed on the ORR Central Registry
(unless they seek an appeal of the disposition pursuant to Sec.
412.102) and that once identified in the Central Registry, they will be
prohibited from working or volunteering in any way on ORR-funded grants
or contracts, and may not have access to or contact with any
unaccompanied child in ORR custody; (ii) the reasons for the Tier I
substantiated perpetrator's placement on the ORR Central Registry in
terms sufficient to put the perpetrator on notice of the conduct or
incident(s) upon which it is based; (iii) the substantiated perpetrator
may appeal ORR's disposition pursuant to Sec. 412.102, but that if the
Tier I substantiated perpetrator either fails to request such appeal in
a timely manner, or upon conclusion of the appeal and subsequent
review, if any, the disposition is upheld, the perpetrator will be
added to the ORR Central Registry and the disposition will be reported
to Federal, State, and local authorities as appropriate (such as
notifying the State in which the allegation occurred when an allegation
is sustained); and (iv) ORR's procedures for making the disposition.
ORR believes these requirements are a key part in ensuring a Tier I
substantiated perpetrator has adequate notification that they will be
placed on the ORR Central Registry, the consequences of being placed on
the Registry, and of the ability to request an appeal and subsequent
review.
Under Sec. 412.100(g)(3), if the disposition is a Tier II
substantiated allegation, the notification must inform the Tier II
substantiated perpetrator that they may appeal ORR's disposition
pursuant to Sec. 412.102, but that if the Tier II substantiated
perpetrator either fails to request such appeal in a timely manner, or
upon the conclusion of the appeal and subsequent review, if any, the
disposition is upheld, the Tier II substantiated perpetrator will be
designated as a Tier II sustained perpetrator and ORR's disposition
will be retained in ORR records. ORR may use these records for
determining patterns of abuse and neglect and for informing future
safety planning at care provider facilities. A Tier II sustained
perpetrator will not be placed on the ORR Central Registry.
Section 412.101 Interventions and Discipline
Under Sec. 412.101, ORR is establishing mechanisms for
interventions and discipline related to substantiated and sustained
allegations of child abuse and neglect as determined by ORR under Sec.
412.100. These intervention and discipline mechanisms include
maintenance by ORR of a ORR Central Registry of individuals with Tier I
sustained allegations of child abuse and neglect; prohibitions on
hiring, employing, or permitting as volunteers individuals who are
listed in the ORR Central Registry; required disciplinary sanctions by
ORR care provider facilities; and provisions for ORR referrals of
substantiated allegations of child abuse and neglect to other
government and law enforcement agencies. ORR believes that these
enforcement mechanisms and requirements are crucial to carrying out the
purpose of this part, as specified and described under Sec. 412.100(a)
and (c) above.
Section 412.101(a) describes an ORR Central Registry to list Tier I
sustained perpetrators under this rule. Under Sec. 412.101(a)(1), for
purposes consistent with Sec. 412.100(a) and (c), ORR will create and
maintain an ORR Central Registry of Tier I sustained perpetrators,
including names and other identifying information, and details
regarding the sustained allegations. Under Sec. 412.101(a)(2), subject
to legal requirements regarding disclosure of information (e.g., under
Freedom of Information Act (FOIA), the Privacy Act, or the IG Act), the
ORR Central Registry
[[Page 93511]]
will not be public-facing, nor available to persons outside of ORR,
since its purpose is to inform employment decisions by ORR care
provider facilities, home study providers, and post-release service
providers by providing the names and other identifying information of
Tier I sustained perpetrators, and for ORR to use as part of the
screening process by care provider facilities as described in Sec.
412.101(b).
Section 412.101(b) sets out certain working and volunteering
prohibitions for individuals listed in the ORR Central Registry, as
well as requirements for checking the ORR Central Registry. ORR is
requiring at Sec. 412.101(b)(1) that the individuals listed in the ORR
Central Registry shall be prohibited from working or volunteering in
any way on ORR-funded grants or contracts, and may not have access to
or contact with any unaccompanied child in ORR custody, unless ORR
removes such individual from the Central Registry (e.g., circumstances
contemplated under Sec. 412.102(c)(2)(ii), addressing temporary
removal of an individual from the Central Registry while an appeal is
pending; Sec. 412.102(e), addressing possible reversal of a DAB
finding by second-level review, carried out by the Assistant Secretary
for ACF). ORR-funded grants or contracts where individuals listed in
the ORR Central Registry will be prohibited from working or
volunteering may cover, for example, other care provider facilities,
ORR home study and post-release service providers, or other ORR-funded
services that may include access to unaccompanied children. At Sec.
412.101(b)(2), ORR is requiring that, as part of the screening process
for hiring decisions for staff, contractors or sub-grantees, or for
screening volunteers, all care provider facilities, home study
providers, and post-release service providers, whether or not located
in States that investigate child abuse and neglect allegations at ORR
care provider facilities, must check with ORR to confirm that an
applicant is not listed in the ORR Central Registry.
At Sec. 412.101(b)(3), ORR sets out the requirement that all care
provider facilities, home study providers, and post-release service
providers, whether or not located in States that investigate child
abuse and neglect allegations at ORR care provider facilities, must
also check all of their personnel against the ORR Central Registry at
least once annually. Checking applicants and current personnel against
the ORR Central Registry is an especially important child safety
measure for care provider facilities located in States that do not
investigate allegations of child abuse and neglect, and thus whose
registries will not include individuals alleged, or found through
investigation, to have perpetrated abuse or neglect at ORR care
provider facilities. ORR notes that the requirements at Sec.
412.101(b) are supplementary to those in the PSA IFR at 45 CFR 411.16
and 45 CFR 411.81.
Under Sec. 412.101(c), care provider facilities must implement
appropriate disciplinary or remedial measures where they or ORR find
care provider facility staff, contractors or sub-grantees of the care
provider facility, or care provider facility volunteers engaged in
conduct that does not rise to the level of a Tier I substantiated
allegation, as defined at Sec. 412.001, but nevertheless raises child
welfare concerns.
ORR believes that it is important to share information regarding
sustained perpetrators with relevant State and local authorities such
that they can take additional action as necessary to protect children
in their jurisdictions in accordance with their legal obligations. This
information sharing does not mean that information on the registry is
public facing, such as other public criminal records databases. Rather,
ORR will only share information directly with relevant entities and in
accordance with applicable State and Federal information sharing,
privacy, and due process protections. Accordingly, under Sec.
412.101(d)(1), ORR will refer names and other identifying information
of Tier I sustained perpetrators to relevant State and local
authorities (e.g., child protective services) and to relevant law
enforcement agencies in the State in which the sustained allegation of
child abuse and neglect occurred. This requirement comports with
existing requirements in the PSA IFR that all terminations for
violations of ORR or care provider facility policies and procedures
regarding sexual abuse and sexual harassment, or resignations by staff
who would have been terminated if not for their resignation, must be
reported to law enforcement agencies and to any relevant State or local
licensing bodies.\51\ Additionally, if requested by a relevant State or
local authority or relevant law enforcement agency, including an
authority or agency outside of the State in which the Tier I sustained
allegation occurred, ORR will confirm whether a particular individual
is on the ORR Central Registry. Furthermore, under Sec. 412.101(d)(2),
ORR will provide the names and other identifying information of Tier I
sustained perpetrators to the Federal Bureau of Investigation, and HHS
Office of the Inspector General (OIG), consistent with any applicable
agreements. Finally, Sec. 412.101(d)(3) requires that neither ORR nor
care provider facilities shall interfere with another State, local, or
Federal authority or agency's investigation into allegations of child
abuse and neglect.
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\51\ See 45 CFR 411.81(c).
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Section 412.102 Appeal and Review Process
ORR is establishing guidelines and requirements regarding the
availability of an appeal and review process of dispositions made by
ORR at Sec. 412.102.
Under Sec. 412.102(a), a substantiated perpetrator, whether at
Tier I or Tier II, may appeal the disposition made by ORR to an
Administrative Law Judge (ALJ) in the HHS Departmental Appeals Board
(DAB) pursuant to Sec. 412.102(c).
ORR is requiring, at Sec. 412.102(b), that ORR shall notify
substantiated perpetrators at Tier I or Tier II of their opportunity
for an appeal. As stated above, all alleged perpetrators receive notice
of the allegations against them pursuant to Sec. 412.100(e)(3). Under
Sec. 412.102(b)(1), after completing an investigation and upon
substantiation of any relevant allegations, ORR will send a written
notice to the substantiated perpetrator at Tier I or Tier II, in
accordance with Sec. 412.100(g). The notice will state that the
relevant allegations have been substantiated and that the Tier I
substantiated perpetrator will be placed on the ORR Central Registry
unless they appeal the disposition by ORR and that the Tier II
substantiated perpetrator's information will be retained as a Tier II
sustained perpetrator in agency records. Under Sec. 412.102(b)(2), the
written notice shall: (i) clearly describe the basis for ORR's
disposition that substantiates the relevant allegations at Tier I or
Tier II and shall explain the Tier I or Tier II substantiated
perpetrator's right to appeal the disposition and the steps required to
initiate the appeal; (ii) inform the substantiated perpetrator that
they may appeal the disposition before an ALJ; (iii) provide the
substantiated perpetrator at Tier I or Tier II and their attorney, if
any, with written information and instructions describing the appeal
process; and (iv) inform the substantiated perpetrator at Tier I or
Tier II that if they do not appeal within 30 days of receiving the
notice, the DAB will consider the substantiated perpetrator to have
waived their opportunity for an appeal and any subsequent review. A
Tier I substantiated perpetrator will be identified on the ORR Central
Registry as a Tier I sustained perpetrator. A Tier II substantiated
perpetrator's
[[Page 93512]]
information will be retained as a Tier II sustained perpetrator in
agency records.
At Sec. 412.102(c), ORR is establishing a process for
substantiated perpetrators at Tier I or Tier II to appeal of ORR's
disposition. Under Sec. 412.102(c)(1)(i), and as further elaborated at
Sec. 412.102(c)(2), if the substantiated perpetrator elects to appeal
ORR's disposition that a child abuse or neglect allegation is
substantiated at Tier I or Tier II, they must file a written notice of
appeal with the DAB within 30 days of receipt of the written notice of
ORR's disposition. Under Sec. 412.102(c)(1)(ii), within 30 days of
receiving this written notice of appeal, ORR will provide all evidence
it used in making its disposition to the DAB. Under Sec.
412.102(c)(1)(iii), within 30 days of receiving this written notice of
appeal, ORR will provide to the substantiated perpetrator at Tier I or
Tier II, and their attorney, if any, all information used in making its
disposition, except any information that ORR determines: (A) would
compromise the safety and well-being of a child, the reporter, or any
other person; (B) would reveal the identity of a child who furnished
information with the understanding that their identity would be held in
confidence; (C) would reveal the identity of any other alleged
perpetrator(s) involved in the same case who has an unfounded
disposition (to protect the privacy of the alleged perpetrator with an
unfounded disposition); or (D) is otherwise prohibited by State or
Federal law or regulation. In the case of information being withheld,
the substantiated perpetrator at Tier I or Tier II will be advised of
the general nature of the information and the reasons that it is being
withheld. Neither the substantiated perpetrator at Tier I or Tier II
nor the care provider facility are required to provide information
unless they would like the ALJ to consider such information as part of
the hearing or record review, and they will not be compelled to provide
it.
Dismissal of appeals is covered in Sec. 412.102(c)(2). Under Sec.
412.102(c)(2)(i), the ALJ may dismiss an appeal when the ALJ determines
that the substantiated perpetrator waived appeal by not submitting the
notice of appeal in a timely manner (i.e., an appeal within 30 days of
receiving written notice of ORR's disposition) and failed to
demonstrate good cause for the untimely request, withdraws the appeal,
abandons the appeal, or does not have a right to ALJ review (including,
but not limited to, situations where the case does not involve a Tier I
or Tier II substantiated allegation). If the appeal is dismissed, the
Tier I substantiated perpetrator will be placed on the ORR Central
Registry as a Tier I sustained perpetrator or ORR will retain the
information regarding the Tier II substantiated perpetrator as a Tier
II sustained perpetrator in agency records, as applicable.
Notwithstanding such a dismissal, under Sec. 412.102(c)(2)(ii) the DAB
may in its discretion temporarily remove the designation of sustained
perpetrator at Tier I or Tier II, which would result in ORR removing
the individual who was designated as a Tier I sustained perpetrator
from the ORR Central Registry, in situations where, for example, the
ALJ determines that the sustained perpetrator at Tier I or Tier II has
established good cause for exceeding the appeal timeframe. This rule
contemplates that good cause may be established, for example, where a
serious medical condition prevented timely filing of the notice of
appeal.
The appeal and review processes are described in Sec. 412.102(d)
and (e). Under Sec. 412.102(d)(1), when a substantiated perpetrator at
Tier I or Tier II appeals, ORR must transmit all of the evidence upon
which ORR's disposition was based to the ALJ. Under Sec.
412.102(d)(2), the evidentiary record must contain all documents and
other materials, such as video or audio recordings, that were used by
ORR in making its disposition. The ALJ may remand the case to ORR if
the ALJ determines that the evidentiary record is insufficiently
complete to determine whether ORR's disposition is supported by a
preponderance of the evidence. Under Sec. 412.102(d)(3), the
substantiated perpetrator at Tier I or Tier II may be represented by an
attorney. As described in Sec. 412.102(d)(4), the substantiated
perpetrator shall have the burden to show that, considering the
totality of the evidence, there is not a preponderance of the evidence
to support the substantiated allegation at Tier I or Tier II, and to
dispute whether any automatic Tier I substantiating circumstances
described at Sec. 412.100(e)(7) existed (if applicable) or whether
aggravating factors or mitigating factors described at Sec.
412.100(e)(8) existed (if applicable). Both ORR and the substantiated
perpetrator may present the testimony of witnesses, documents, factual
data, arguments, or other submissions of proof. The testimony of care
provider facility staff shall be voluntary and failure to provide such
testimony will not subject the care provider staff member to
disciplinary action. Under Sec. 412.102(d)(5), if the substantiated
perpetrator appeals and the appeal is not dismissed by the ALJ pursuant
to Sec. 412.102(d)(7), ORR must notify the alleged victim and the
alleged victim's parent(s), legal guardian(s) (as appropriate), or
sponsor(s) that an appeal of ORR's disposition will be conducted by an
ALJ. The alleged victim, other child witness(es), and family members of
the alleged victim shall not be required to testify. Refusal to testify
shall have no bearing on a determination as to whether the alleged
abuse or neglect did or did not take place.
Under Sec. 412.102(d)(6), both parties (ORR and the substantiated
perpetrator) may cross examine witnesses and ask questions during a
live hearing, as well as request additional information, either during
a live hearing or pursuant to a record review. In order to mitigate the
potential for re-traumatization of an alleged victim while still
providing a substantiated perpetrator with the opportunity to respond
to the allegations, a substantiated perpetrator may not personally
cross examine the alleged victim. The parties will be given an
opportunity to file briefs or other written statements of fact or law.
Under Sec. 412.102(d)(7), the ALJ must conduct a fair and impartial
hearing under a de novo standard of review to determine whether the
substantiated perpetrator met their burden of proving that, considering
the totality of the evidence, there is not a preponderance of the
evidence to support the substantiated allegation. The ALJ will issue a
written decision upholding, modifying, or reversing the ORR's
disposition. Under Sec. 412.102(d)(8), the ALJ shall serve a copy of
the decision upon the parties and the Assistant Secretary for ACF. The
ALJ's decision shall provide the substantiated perpetrator at Tier I or
Tier II and their attorney, if any, with instructions for filing a
request for review with the Assistant Secretary for ACF. The ALJ also
shall provide a copy of the decision to the alleged victim, and, as
appropriate, the alleged victim's parent(s), legal guardian(s), or
sponsor(s). The complete record upon which the decision is based shall
be made available to the Assistant Secretary.
This rule provides another level of review under Sec. 412.102(e).
This subsection provides that the Assistant Secretary for ACF may
review the ALJ's determination, either sua sponte or upon a request by
the substantiated perpetrator. Under Sec. 412.102(e)(1), a
substantiated perpetrator at Tier I or Tier II may request review of
the ALJ's decision within 30 days of receipt of the ALJ's decision, by
filing a request for review with Office of the Assistant
[[Page 93513]]
Secretary for ACF. Under Sec. 412.102(e)(2), the Assistant Secretary
has discretion, within 30 days after receiving a timely request for
review of an ALJ's decision under Sec. 412.102(e)(1), to review the
ALJ's decision and to dismiss a request for review based on
untimeliness or other procedural defects, or to affirm, modify, or
reverse the ALJ's decision with regard to dismissal or ORR's
disposition of the allegation. A review by the Assistant Secretary will
determine whether the ALJ's decision was based on a material error of
law or fact.
Section 412.102(e)(3) provides that if the Assistant Secretary
affirms the ALJ's decision, or does not modify or reverse the ALJ's
decision, within 30 days after receiving a timely review request under
Sec. 412.102(e)(1), then the ALJ's decision becomes the final decision
of the Assistant Secretary and is binding on both parties (ORR and the
substantiated perpetrator). Likewise, under Sec. 412.102(e)(4), if the
Assistant Secretary modifies or reverses the ALJ's decision pursuant to
Sec. 412.102(e)(2), then the Assistant Secretary's decision is final
and binding.
Under Sec. 412.102(e)(5), if at the end of the 30-day period in
Sec. 412.102(e)(1), no timely request for review has been made, the
Assistant Secretary has 30 days from that point to exercise discretion
to review the ALJ's decision. If the Assistant Secretary does not
modify or reverse the ALJ's decision, then the ALJ's decision becomes
the final decision of the Assistant Secretary and is binding on both
parties. The intent of Sec. 412.102(e)(5) is to make clear that the
Assistant Secretary has discretion to review the ALJ's decision
regardless of whether a timely request for review is made.
Under Sec. 412.102(e)(6), the Office of the Assistant Secretary
for ACF shall notify the parties of the Assistant Secretary's final
decision. The Office of the Assistant Secretary also shall provide a
copy of the final decision to the alleged victim and the alleged
victim's parent(s), legal guardian(s) (as appropriate), or sponsor(s),
based on review of the ALJ's previous decision, under Sec. 412.102(e).
Section 412.103 Obligations of Care Provider Facilities
To ensure that ORR can obtain sufficient information to make fair,
accurate, and impartial decisions regarding allegations of child abuse
and neglect, at Sec. 412.103, ORR is establishing obligations with
which care provider facilities must comply during investigations.
Under Sec. 412.103(a)(1) through (3), during any investigation of
child abuse and neglect by ORR, a care provider facility must permit
ORR: (1) to have unrestricted access to the premises, any physical
property on the premises, buildings, staff, and children in the
physical custody of the care provider facility; (2) to conduct
interviews with children residing at the care provider facility, and
without care provider facility staff, contractors or sub-grantees of
the care provider facility, or care provider facility volunteers,
present; and (3) to observe the activities of care provider facility
staff, contractors or sub-grantees of the care provider facility, care
provider facility volunteers, or other individuals who have access to
children in ORR care through contracts or grants with ORR. Under Sec.
412.103(a)(4), care provider facilities must promptly preserve any
potential video or documentary evidence. ORR notes that this
requirement is aligned with the requirement at Sec.
412.100(e)(5)(iii)(A), which states that upon receiving an intake
report, the ORR Child Welfare Investigator must immediately request
preservation of any potential video and documentary evidence.
Additionally, under Sec. 412.103(a)(5), care provider facilities must
promptly provide and facilitate access to, upon request, all files,
records, reports, data, video recordings, and other information,
including copies of any such documents, requested by ORR either prior
to or during the investigation. Care provider facilities subject to
this rule must also promptly provide access to and contact information
for staff, contractors, or sub-grantees of the care provider facility,
its volunteers, or other individuals who have access to children in ORR
care (Sec. 412.103(a)(6)); submit complete and accurate responses to
any written questions in a timely manner (Sec. 412.103(a)(7)); and
fully cooperate with ORR (Sec. 412.103(a)(8)). Finally, under Sec.
412.103(a)(9) care provider facilities are required to fully cooperate
with any investigation of the same allegation by other State, local,
and Federal authorities, and relevant law enforcement agencies.
Further, in alignment with existing ORR policy and 45 CFR 411.67,
ORR is requiring at Sec. 412.103(b) that care provider facility staff,
contractors or sub-grantees of the care provider facility, and care
provider facility volunteers must not retaliate against any person who
in good faith reports or participates in an investigation of child
abuse or neglect.
Under Sec. 412.103(c), a care provider facility's obstruction,
interference, delay of, or failure to permit or cooperate with any
investigation under this part, including failure to protect
unaccompanied children from retaliation pursuant to Sec. 412.103(b),
may result in ORR taking monitoring and enforcement measures. Such
measures may include remote monitoring of the care provider facility
(i.e., monitoring that does not occur on-site); on-site monitoring of
the care provider facility; monitoring of the corporate offices to
review internal policies and reporting structures, as well as
supervisory responses to events (e.g., mitigation or future
preventative measures); limiting or stopping new placements of
unaccompanied children at the care provider facility; removing all
children in ORR care and custody from the care provider facility and
placing them into other care provider facilities; issuing corrective
actions; terminating the contract or cooperative agreement with the
care provider facility; or imposing other such remedies for
noncompliance applicable to HHS grant recipients and contractors. ORR
notes that the cooperation of care provider facilities is critical in
investigations of child abuse and neglect, and that enforcement
measures such as those described are appropriate to help ensure that
ORR can obtain the information necessary to determine whether
allegations are substantiated.
Under Sec. 412.103(d), ORR requires care provider facilities,
during the course of an investigation, to provide unaccompanied
children confidential access to attorneys of record and other legal
service providers, as well as their families and legal guardians, in a
manner consistent with requirements established at 45 CFR 411.55 (as
applicable) as well as 45 CFR 410.1309. Care provider facilities must
provide unaccompanied children with access to their child advocates, in
a manner consistent with the requirements of the TVPRA at 8 U.S.C.
1232(c)(6) and 45 CFR 410.1308. Finally, care provider facilities must
also provide unaccompanied children access to health services
(including specialists and mental health practitioners), individual
counseling sessions, and crisis intervention (including access to
outside victim services and rape crisis centers where appropriate) to
most appropriately address unaccompanied children's needs, in a manner
consistent with requirements established at 45 CFR 410.1302(c)(5), 45
CFR 410.1307, 45 CFR 410.1311, and 45 CFR 411.21 (as applicable).
[[Page 93514]]
VI. Good Cause for Issuing This IFR
When engaging in rulemaking, ORR ordinarily publishes a notice of
proposed rulemaking (NPRM) in the Federal Register and invites public
comment on the proposed rule. However, under the Administrative
Procedure Act, 5 U.S.C. 553(b), an NPRM is not required when an agency,
for good cause, finds that notice and public comment is impracticable,
unnecessary, or contrary to the public interest, and incorporates a
statement of the finding and the agency's reasons in the rule issued.
With respect to this rulemaking, delaying implementation of the
provisions of this regulation until a public notice and comment process
is complete would risk serious and imminent harm to unaccompanied
children in Texas care provider facilities (and in the future at EIFs,
which ORR may need to open on short notice, before it can execute
formal written agreements describing child welfare investigations of
child abuse and neglect with relevant local authorities), and thus
would be impracticable. As such, ORR believes that it has good cause to
issue this rulemaking as an Interim Final Rule (IFR) rather than
issuing an NPRM.
ORR has determined that this rulemaking is imminently necessary
because ORR must have the ability to establish employment consequences
at relevant care provider facilities for sustained perpetrators of
abuse and neglect in order to fulfill its statutory
responsibilities.\52\ Critically, as mentioned earlier, ORR began
taking immediate action soon after it became clear that Texas DFPS was
not going to resume its historical child welfare and investigative
functions when it extended its emergency declaration in 2022.
Subsequently, ORR began consulting with other federal agencies,
developing the necessary expertise and capacity to conduct
investigations, drafting policies and procedures to inform how
investigations are conducted, obtaining administrative approval for new
agency positions, creating new comprehensive technical systems for
recording and tracking investigations, and hiring, onboarding, and
training qualified investigative staff. Most pertinently, as discussed
at section IV.A, ORR's recently established Division of Unaccompanied
Child Protective Investigations (DCPI) began its investigations of
allegations of child abuse and neglect in ORR-funded care provider
facilities in Texas as of July 2024.
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\52\ See supra, Sec. IV.B (referencing various provisions of the
HSA, including 6 U.S.C. 279(b)(1)(G) (making the ORR Director
responsible for ``overseeing the infrastructure and personnel of
facilities in which unaccompanied alien children reside'') and 6
U.S.C. 279(b)(1)(L) (making the ORR Director responsible for
``conducting investigations and inspections of facilities and other
entities in which [unaccompanied children] reside. . .'')).
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In addition to investigating allegations of abuse and neglect at
care provider facilities located in States that do not conduct
investigations, and at EIFs, ORR needs to be able to direct its care
provider facilities to prohibit individuals from working or
volunteering on ORR-funded grants or contracts when there has been a
sustained allegation of abuse or neglect at Tier I (as defined in this
rule), and to ensure that perpetrators with such sustained allegations
do not have access to or contact with children in ORR custody. To that
end, this rulemaking establishes an ORR Central Registry listing Tier I
sustained perpetrators, as described in this rule. Further, this rule
establishes that Tier I sustained perpetrators listed on the ORR
Central Registry are prohibited from working or volunteering in any way
on ORR-funded grants or contracts, so as to prohibit them from having
access to or contact with any unaccompanied child in ORR custody.
Because such requirements potentially implicate alleged perpetrators'
ability to work in their chosen profession (if the allegation is
sustained at Tier I), ORR believes that substantive rulemaking is
required to codify appeal and review procedures with appropriate due
process protections for alleged perpetrators (e.g., notice and an
opportunity to be heard).
There is good cause to issue this rulemaking as an IFR because
requiring notice and comment before implementing these provisions would
risk serious and imminent harm to unaccompanied children. For example,
even if DCPI concludes through an investigation that an individual
perpetrated child abuse or neglect, without an ORR Central Registry,
such a perpetrator could potentially pass a background check and be re-
hired at any time at another ORR care provider facility, which would
undermine the very purpose of the rule--to protect children from such
perpetrators. As noted above, ORR understands that creation of the
Central Registry requires rulemaking because adequate due process
procedures need to be established in consideration of the employment
interests at stake. In other words, ORR's DCPI can now investigate,
substantiate, and sustain allegations of abuse and neglect of
unaccompanied children in its custody against alleged perpetrators in
accordance with existing statutory authority, but requiring notice and
comment before this rule goes into effect would prevent ORR from using
that critical information in the ORR Central Registry to keep children
safe in the near and long term. Until ORR is able to begin operating
the ORR Central Registry, unaccompanied children are at elevated risk
of abuse or neglect--a risk that ORR seeks to prevent by using this IFR
to prohibit the hiring of Tier I sustained perpetrators of child abuse
and neglect.
As discussed above, as of July 2024, ORR began investigative
activities in relation to reported child abuse and neglect at care
provider facilities in Texas. As a result, there is an urgent need to
have the provisions of this rule in place to protect child welfare
while also providing appropriate due process protections for alleged
perpetrators of child abuse and neglect. Notice and comment rulemaking
would prevent ORR from taking swift and appropriate action when it
identifies an imminent threat to child safety and would allow
perpetrators of child abuse and neglect to evade ORR's efforts,
pursuant to statutory responsibilities, to protect unaccompanied
children in its custody. Notice and comment rulemaking would increase
the risk of serious potential harm to unaccompanied children--which ORR
seeks to address through this IFR by prohibiting employment of
individuals on the ORR Central Registry.
ORR has therefore found good cause in the specific circumstances
presented here--where ORR has recently established a new Division to
conduct child welfare investigations at EIFs and in States that do not
do so given that there is an immediate and ongoing risk to
unaccompanied children in such States without the protections described
in this rule. This rulemaking is urgently required now to establish
required employment consequences for individuals found by ORR
investigations to have perpetrated child abuse or neglect, and ORR has
not delayed responding to the urgent need to establish such
consequences because DCPI began initiating investigations as of July
2024.
Therefore, HHS finds good cause to waive the notice of proposed
rulemaking and to issue this final rule on an interim basis. Finally,
HHS is providing a 60-day public comment period and will carefully
consider public comments received and may update the final rule, as
appropriate. ORR plans to finalize the rule within one year of
implementation.
[[Page 93515]]
VII. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995 (PRA), HHS is required to
provide 60-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a control
number assigned by OMB.
This interim final rule with comment requires information
collections for which HHS plans to seek OMB approval at a later date.
The information collection requirements associated with this interim
final rule will not take effect until approved by OMB. HHS will issue
future Federal Register notices to seek comments on its information
collections within one month following finalization, as required by the
PRA,\53\ and will include a system of records notice related to the
requirements in this rule.
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\53\ See 44 U.S.C. 3506(c)(2)(A).
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To estimate the costs associated with the information collection
activities described in this interim final rule, ORR utilizes median
hourly wage rates in accordance with the Bureau of Labor Statistics'
(BLS) most recent update in April 2024 for Education and Childcare
Administrators.\54\ The median hourly wage rate is calculated to be
$26.10 with fringe benefits at 100 percent, for a total hourly wage
rate of $52.20 ($26.10 + $26.10).
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\54\ <a href="https://www.bls.gov/oes/current/oes119031.htm">https://www.bls.gov/oes/current/oes119031.htm</a>. Accessed
July 31, 2024.
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Section 412.100(d) requires that care provider facility staff,
contractors, sub-grantees, volunteers, and all ORR staff must report
allegations of child abuse and neglect by care provider facility staff,
contractors or sub-grantees of the care provider facility, care
provider facility volunteers, or other individuals who have access to
children in ORR care through contracts or grants with ORR in accordance
with ORR policies and procedures to ORR, and to Federal, State, and
local authorities in accordance with any applicable Federal, State, and
local reporting and licensing laws. Because this reporting requirement
would not require additional reporting above and beyond existing ORR
policy, this requirement will not result in additional burden for care
provider facilities.
VIII. Regulatory Impact Analysis
A. Economic Analysis
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Section
3(f) of Executive Order 12866, as amended by Executive Order 14094,
defines a ``significant regulatory action'' as an action that is likely
to result in a rule: (1) having an annual effect on the economy of $200
million or more (adjusted every 3 years for changes in gross domestic
product), or adversely affecting in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, territorial, or
tribal governments or communities; (2) creating a serious inconsistency
or otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impact of entitlement
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raising legal or policy issues for which
centralized review would meaningfully further the President's
priorities or the principles set forth in the Executive Order.
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. While there are some costs associated with these
regulations, they do not exceed the monetary threshold for significance
as defined under section 3(f)(1) of E.O. 12866, as amended. However,
the regulation is significant and has been reviewed by OMB.
As previously discussed, ORR has developed the child abuse and
neglect investigation requirements for ORR care provider facilities
with the intention of keeping the best interests of unaccompanied
children at the forefront. Because the requirements in this IFR are in
line with existing ORR policy, ORR anticipates that care provider
facilities will need to make only minimal updates to their staffing,
training, and/or policy in order to meet the requirements.
Specifically, ORR anticipates that care provider facilities will need
to make updates to meet requirements under Sec. 412.101(c) and Sec.
412.103. Typically, ORR care provider facilities spend up to
approximately 5 hours to cooperate with a State-led investigation of
alleged child abuse or neglect, which can vary widely depending on the
circumstances of the specific allegation. ORR expects that its Texas
care provider facilities will spend the same amount of time cooperating
with investigations conducted by ORR. Because ACF lacks the ability to
account for the specific details of every care provider facility and
their ability to meet the requirements, ORR is only able to estimate
costs associated with other remedies in general, rather than specific
to each care provider facility.
To estimate the economic impacts associated with the policies
promulgated in this interim final rule, ACF uses wage rate and annual
salary data provided by BLS for Childcare Workers and First-Line
Supervisors working in the Child Care Services industry.\55\ \56\ The
median hourly wage rate for childcare workers is calculated to be
$14.60. Assuming benefits and indirect costs of labor equal 100 percent
of the hourly wage, the corresponding fully loaded cost of labor for
childcare workers is $29.20 per hour. Additionally, the mean hourly
wage rate for First-Line Supervisors working in the Child Care Services
industry is calculated to be $22.45. Note that we do not use the median
wage rate because BLS only provides mean wage rates for specific
industries. Assuming benefits and indirect costs of labor equal 100
percent of the hourly wage, the corresponding fully loaded cost of
labor for childcare supervisors is $44.90 per hour. ORR assumes that it
will take between 0.25 and 0.5 hours at a cost between $7.30 ($29.20 x
0.25 hours) and $14.60 ($29.20 x 0.5 hours) for each childcare worker
to receive the relevant policy update training and between $11.23
($44.90 x 0.25 hours) and $22.45 ($44.90 x 0.5 hours) for each
childcare supervisor to administer the training. This training would
include administrative guidance related to how investigations will be
conducted and due process under the interim final rule. ORR also
assumes that it will take approximately 1 hour at a cost of $44.90
($44.90 x 1 hour) for each childcare supervisor to update relevant
policies.
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\55\ <a href="https://www.bls.gov/oes/current/oes399011.htm">https://www.bls.gov/oes/current/oes399011.htm</a>. Accessed
July 31, 2024.
\56\ <a href="https://www.bls.gov/oes/current/oes391022.htm">https://www.bls.gov/oes/current/oes391022.htm</a>. Accessed
July 31, 2024.
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In Sec. 412.100(a) through (g) ORR discusses the establishment and
operation of its investigations into alleged child abuse and neglect.
Currently, based on FY 2024 levels of wages, benefits, and indirect
labor costs, ORR estimates 24 full-time staff will be required at a
cost of approximately $209,000 per staff member for a total of
approximately $5 million ($209,000 x
[[Page 93516]]
24 staff) per year. The ORR Child Welfare Investigators will receive
allegations of child abuse and neglect as intake reports, assess the
allegation to determine whether it meets applicable requirements and
definitions, conduct all necessary interviews, review and preserve all
relevant evidence, implement any necessary safety plans, coordinate
with the multidisciplinary team as needed, and render a disposition.
ORR expects no new costs or burdens on care provider facilities to
cooperate with ORR's investigations.
ORR also notes that all care provider facilities discussed in this
interim final rule are ACF grantees and the costs of maintaining
compliance with the requirements are allowable costs to grant awards
under the Basic Considerations for cost provisions at 45 CFR 403
through 405, in that the costs are reasonable, necessary, ordinary,
treated consistently, and are allocable to the award. Additional costs
associated with the policies discussed in this interim final rule that
were not budgeted, and cannot be absorbed within existing budgets,
would be allowable for the grant recipient to submit a request for
supplemental funds to cover the costs.
B. Regulatory Flexibility Analysis
The Secretary certifies under 5 U.S.C. 605(b), as enacted by the
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not
result in a significant impact on a substantial number of small
entities. This rule primarily affects the operations of the Federal
Government and requires that ORR care provider facilities within the
scope of this rule cooperate with Federal investigations of child abuse
and neglect. As of publication of this rule, 66 of 284 (23 percent) ORR
care provider facilities are located in Texas and would be impacted by
the requirements in this interim final rule. While the affected
percentage of small entities exceeds the threshold of 5 percent for
this subcategory of care provider facilities within the U.S., ORR
believes the burden associated with the requirements in this interim
final rule are equal to or negligibly greater than the burden imposed
by any State-based requirements to which the affected care provider
facilities would otherwise be subjected. While this rule primarily
affects the Federal Government, ORR assumes all of these care provider
facilities qualify as small businesses as defined by the Small Business
Administration (SBA), and ORR has therefore attempted to ensure the
economic impact on individual care provider facilities is kept to a
minimum.
C. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires
ORR to prepare a written statement, which includes estimates of
anticipated impacts, before proposing ``any rule that includes any
Federal mandate that may result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more (adjusted annually for inflation) in any one
year.'' The current threshold after adjustment for inflation is $177
million, using the most current (2022) Implicit Price Deflator for the
Gross Domestic Product. This interim final rule would not likely result
in unfunded expenditures that meet or exceed this amount.
D. Executive Order 13132: Federalism
This interim final rule would not have substantial direct effects
on the States, on the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government. This interim final rule would
implement ORR's explicit statutory authority to investigate child abuse
and neglect allegations in ORR care provider facilities, and would
enable it to make findings relevant to its responsibility for the care
of unaccompanied children. In codifying these practices, ORR was
mindful of its obligations to meet the requirements of Federal statutes
while also minimizing conflicts between State law and Federal
interests. At the same time, ORR is also mindful that its fundamental
obligations are to ensure that it implements its statutory
responsibilities pursuant to both the HSA and TVPRA, to protect the
safety of unaccompanied children while in ORR care.
Typically, ORR enters into cooperative agreements or contracts with
non-profit and private organizations to provide shelter and care for
unaccompanied children in a care provider facility licensed by the
appropriate State or local licensing authority if the State licensing
agency provides for licensing of care provider facilities that provide
services to unaccompanied children. This regulation allows ORR to
investigate allegations of child abuse and neglect only in instances
where a State will not investigate allegations of child abuse and
neglect in ORR care provider facilities, and at EIFs. ORR has designed
its policies and regulations, as well as the terms of its cooperative
agreements and contracts with the unaccompanied children care provider
facilities, to complement applicable State and local licensing rules,
not to supplant or replace the requirements. Because the applicability
of this regulation is limited precisely to circumstances where a State
does not investigate child abuse and neglect at ORR care provider
facilities, and EIFs, it does not implicate federalism concerns or
impose substantial direct compliance costs on State or local
governments. Further, this regulation does not preempt State laws and
regulations because it applies specifically where States have
explicitly abdicated their investigatory responsibility in ORR care
provider facilities housing unaccompanied children, and at EIFs where
States may not have authority to conduct investigations. Where State or
local authorities enter into formal written agreements with ORR to
conduct investigations, ORR may still, pursuant to its statutory
authority, carry out its own investigations, but any potential ORR
investigation under this rule would not interfere with the State or
local authority's investigation.
Therefore, in accordance with section 6 of Executive Order 13132,
it is determined that this interim final rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
Notwithstanding the determination that the formal consultation
process described in Executive Order 13132 is not required for this
rule, ORR welcomes any comments from representatives of State and local
juvenile or family residential facilities--among other individuals and
groups--during this rulemaking.
E. Executive Order 12988: Civil Justice Reform
This interim final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice
Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
IX. Assessment of Federal Regulation and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 requires Federal agencies to determine whether a policy or
regulation may affect family well-being. If the agency's determination
is affirmative, then the agency must prepare an impact assessment
addressing criteria specified in the law. This regulation will not have
an impact on family well-being as defined in this legislation, which
asks agencies to assess policies with respect to whether the policy:
strengthens or erodes family
[[Page 93517]]
stability and the authority and rights of parents in the education,
nurture, and supervision of their children; helps the family perform
its functions; and increases or decreases disposable income.
Dated: November 20, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
List of Subjects in 45 CFR Part 412
For the reasons set forth in the preamble, the ORR adds 45 CFR part
412 to read as follows:
PART 412--INVESTIGATIONS OF ALLEGATIONS OF CHILD ABUSE AND NEGLECT
Sec.
412.001 Definitions
412.100 Investigations of allegations of child abuse and neglect
412.101 Interventions and discipline
412.102 Appeal and review process
412.103 Obligations of care provider facilities
PART 412--INVESTIGATIONS OF ALLEGATIONS OF CHILD ABUSE AND NEGLECT
Sec. 412.001 Definitions.
ACF means the Administration for Children and Families, Department
of Health and Human Services.
Administrative closure means that ORR has determined that it will
not make a finding regarding an allegation of child abuse or neglect.
ORR may make a determination of administrative closure both before and
after an investigation begins. Reasons for administrative closure of an
intake report before investigation may include, but are not limited to,
lack of jurisdiction to conduct an investigation of the allegation,
transfer of the report to another jurisdiction or agency, duplication
of an already existing report, an allegation not rising to the level of
child abuse or neglect, or an allegation is otherwise outside the scope
of this rule, as described at Sec. 412.100(c). Reasons for a
disposition of administrative closure after investigation may include,
but are not limited to, inability to contact the child, insufficient
information to proceed with the investigation, or transfer of the
report to another jurisdiction or agency.
Allegation means a written or oral report to ORR of suspected child
abuse or neglect.
Alleged perpetrator means a person who is alleged to have abused or
neglected a child within the scope of this part as described at Sec.
412.100(a) and (c).
Appeal and review process means the appeal to an Administrative Law
Judge (ALJ) of the HHS Departmental Appeal Board (DAB), and review by
the Assistant Secretary for ACF of the disposition that an allegation
of child abuse or neglect was substantiated at Tier I or Tier II.
Attorney of record has the same definition as provided under 45 CFR
410.1001.
Care provider facility has the same definition as provided under 45
CFR 410.1001.
Child abuse and neglect means any act or failure to act which
results in death, serious physical or emotional harm, sexual abuse, or
exploitation of a child; or an act or failure to act which presents an
imminent risk of serious harm to a child including but not limited to
physical abuse, verbal or emotional abuse, sexual harassment, sexual
abuse, inappropriate sexual behavior, neglect, and medical neglect.
Child advocates has the same definition as provided under 45 CFR
410.1001.
Contractor means an entity that receives a contract as provided
under 45 CFR 75.2.
Days means calendar days, unless otherwise stated.
Disposition means a finding by ORR at the conclusion of an
investigation that an allegation of abuse or neglect is substantiated
at Tier I, substantiated at Tier II, not substantiated, unfounded, or
administratively closed.
Emergency or influx facility (EIF) has the same definition as
provided under 45 CFR 410.1001.
HHS means the U.S. Department of Health and Human Services.
Inappropriate sexual behavior refers to inappropriate sexual,
derogatory, or offensive conduct that does not rise to the level of
sexual abuse or sexual harassment.
Intake report means an allegation of child abuse or neglect
identified by ORR as describing child abuse or neglect of an
unaccompanied child by an alleged perpetrator.
Legal service provider (LSP) has the same definition as provided
under 45 CFR 410.1001.
Medical neglect means any failure to provide medical care or access
to medical services that endangers the health of the child.
Multidisciplinary team is a group of individuals comprised of ORR
staff that includes subject matter experts that provides input to ORR's
Child Welfare Investigators by assessing reported allegations of child
abuse and neglect at care provider facilities and making
recommendations regarding the physical and behavioral healthcare needs
of unaccompanied children potentially impacted by child abuse and
neglect at these facilities.
Neglect refers to any failure to provide adequate food, water,
clothing, shelter, or other necessities; punitive, careless, or
unnecessary denial of access to other basic services such as education,
legal aid, exercise, recreation, bathroom usage, and communication or
correspondence with families, sponsors, or attorneys.
Not substantiated allegation means a disposition that there is not
a preponderance of the evidence establishing that the alleged
perpetrator committed child abuse or neglect, but there is at least
some evidence that the unaccompanied child was harmed or placed at risk
of harm, whether or not by the alleged perpetrator.
ORR means the Office of Refugee Resettlement, Administration for
Children and Families, U.S. Department of Health and Human Services.
ORR Central Registry means a database maintained by ORR consisting
of ORR findings of sustained perpetrators of child abuse and neglect at
Tier I.
ORR Child Welfare Investigator means an ORR staff member who
investigates reports of alleged abuse or neglect of children, renders
the investigative disposition, and issues corrective action on behalf
of ORR and performs other related work for ORR.
Physical abuse means physical harm to a child that includes, but is
not limited to, bruises, cuts, sprains, welts, fractures, burns,
lacerations, missing or broken teeth, muscle strains, or internal
injuries; in addition to physical mistreatment such as whipping,
punching, shoving, kicking, hitting, biting, shaking, dragging,
throwing, stabbing, or choking a child, as well as the inappropriate
use of restraints.
Preponderance of the evidence means proof, after assessing the
totality of available information, that leads to the conclusion that
the fact at issue is more probably true than not.
Sexual abuse has the same definition as provided under 45 CFR part
411.6.
Sexual harassment has the same definition as provided under 45 CFR
part 411.6.
Sub-grantee means a person or entity that receives a subaward from
a care provider facility to carry out activities and programs of ORR or
the care provider facility pursuant to a grant or agreement with ORR or
with a care provider facility (but does not include an individual that
is a beneficiary of such program).
[[Page 93518]]
Substantiated allegation--Tier I means a disposition that there is
a preponderance of the evidence establishing that the alleged
perpetrator committed child abuse or neglect, and the investigation
indicates one or more Automatic Tier I substantiating circumstances are
found pursuant to Sec. 412.100(e)(7), or substantiation is warranted
based on consideration of aggravating and mitigating factors pursuant
to Sec. 412.100(e)(8).
Substantiated allegation--Tier II means a disposition that there is
a preponderance of the evidence establishing that the alleged
perpetrator committed child abuse or neglect, and that based on
consideration of aggravating and mitigating factors pursuant to Sec.
412.100(e)(8), the evidence does not warrant a finding of Substantiated
Allegation--Tier I.
Substantiated perpetrator means a person against whom an allegation
of child abuse or neglect has been substantiated by ORR at Tier I or
Tier II, but who has not exhausted all applicable appeal and review
processes for such allegations.
Sustained allegation means an allegation that was substantiated by
ORR at Tier I or Tier II and:
(1) That was upheld pursuant to appeal and review processes, as
described at Sec. 412.102; or
(2) For which the appeal was dismissed, including when the
substantiated perpetrator waives their right to appeal by not making a
timely request to the DAB ALJ or by waiving those rights as specified
in Sec. 412.102(c).
Sustained perpetrator means a substantiated perpetrator at Tier I
or Tier II:
(1) Whose child abuse or neglect finding was upheld in the appeal
and review process; or
(2) Whose appeal and review process was dismissed, including due to
waiving their right to appeal by not timely requesting an appeal to the
DAB ALJ or by waiving those rights as specified in Sec. 412.102(c).
Unaccompanied child/children has the same definition as provided
under 45 CFR 410.1001.
Unfounded allegation means a disposition that there is not a
preponderance of the evidence establishing that the alleged perpetrator
committed child abuse or neglect, and the evidence indicates that the
unaccompanied child was not harmed or placed at risk of harm.
Verbal or emotional abuse means any criticisms, comments,
behaviors, or threats that cause harm to a child's psychological,
intellectual, or emotional functioning or self-esteem, which may be
exhibited by a child's anxiety, loneliness, fear, sadness, withdrawal,
aggression, or loss of trust with staff.
Volunteer has the same definition as provided under 45 CFR 411.
Sec. 412.100 Investigations into allegations of child abuse and
neglect.
(a) Purpose. This part establishes standards, requirements and
procedures for investigations by ORR of allegations of child abuse and
neglect of an unaccompanied child in ORR custody alleged to have been
committed by care provider facility staff, contractors or sub-grantees
of the care provider facility, care provider facility volunteers, or
other individuals who have access to children in ORR care through
contracts or grants with ORR, subject to Sec. 412.100(c).
(b) Severability. The provisions of this part are separate and
severable from one another. If any provision is stayed or determined to
be invalid by a court of law, the remaining provisions shall continue
in effect.
(c) Applicability. This part applies to:
(1) Care provider facilities housing unaccompanied children in
States where the State agency responsible for investigating child abuse
and neglect allegations will not investigate such allegations in ORR-
funded care provider facilities; and
(2) Emergency or influx facilities (EIFs).
(d) Reporting. Care provider facilities to whom this part applies
must have written policies and procedures that allow unaccompanied
children, care provider facility staff, contractors or sub-grantees of
the care provider facility, care provider facility volunteers, families
of unaccompanied children, legal service providers, child advocates,
attorneys of record, and any other persons, to report allegations of
child abuse and neglect to ORR directly, to the care provider facility,
or to a designated entity or office that is not part of the care
provider facility. The care provider facility written policies and
procedures must:
(1) Provide unaccompanied children and other individuals with
methods for reporting and inform them of how they can report an
allegation of child abuse and neglect to a designated entity or office
that is not part of the care provider facility. Such entity or office
must be able to receive allegations of child abuse and neglect and must
immediately forward such allegations to ORR. The method for reporting
must allow unaccompanied children to remain anonymous upon request.
(2) Ensure all the methods of reporting described at Sec.
412.100(d)(1) are accessible for unaccompanied children with
disabilities and with limited English proficiency.
(3) Ensure that unaccompanied children, staff, or others who report
allegations of child abuse and neglect are protected against
retaliation.
(e) Investigations. When receiving reports of allegations of child
abuse and neglect and conducting investigations, ORR must ensure the
health and safety of unaccompanied children while making every effort
to reduce further trauma to the alleged victim(s).
(1) If ORR receives a report of an allegation of child abuse or
neglect, it must generate an intake report and determine whether the
report includes an allegation that, if found to be true, would meet the
definition of child abuse and neglect in this part and is consistent
with Sec. 412.100(a) and (c). If so, ORR will assign the intake report
for investigation. If not, ORR will administratively close the report.
(2) If ORR determines that an intake report is appropriate for
investigation, ORR shall assign an ORR Child Welfare Investigator to
make a prompt and thorough investigation of the report to obtain
sufficient information to determine whether the allegation of child
abuse or neglect is substantiated, either at Tier I or II, based on a
preponderance of the evidence.
(3) ORR shall provide notification that an allegation of child
abuse and neglect will be investigated by ORR to the alleged
perpetrator; care provider facility; alleged victim; alleged victim's
attorney of record (if the child has an attorney of record); and the
alleged victim's parent(s), legal guardian(s), or sponsor(s) (as
appropriate), unless ORR has evidence showing the parents, legal
guardians, or sponsors should not be notified or the victim is 14 years
old or older. If the alleged victim is 14 years old or older and ORR
has determined that the alleged victim is able to make an independent
decision, the alleged victim can affirmatively consent to disclosure.
(4) Upon notification that an investigation has been initiated, the
care provider facility must take immediate responsive measures, for the
protection of child welfare, and notify the alleged perpetrator, as
appropriate, and ORR of such measures. These measures may extend
throughout the pendency of an investigation, and during the pendency of
the appeal and review process, as necessary and applicable.
(5) Investigations process. (i) ORR shall coordinate with any local
or State law enforcement agencies, or other Federal agencies, as
appropriate, during its investigation. ORR may pause or
[[Page 93519]]
resume an investigation at its discretion, with input from law
enforcement partners or other relevant investigatory bodies, as
necessary.
(ii) A multidisciplinary team of ORR staff that includes subject
matter experts, shall be established, as necessary, to provide input
and an assessment of the reported allegation of child abuse or neglect
to assist the ORR Child Welfare Investigator.
(iii) During the investigation, the ORR Child Welfare Investigator
must complete, at a minimum, the following actions:
(A) Upon receiving an intake report, review the intake report and
the care provider facility's records on the alleged victim and alleged
perpetrator, conduct background checks on the alleged perpetrator,
interview the person who reported the allegation if this person was not
interviewed during intake, immediately request preservation of any
potential video and documentary evidence, and as needed, establish a
plan for thoroughly investigating the allegation;
(B) Visit the care provider facility, as appropriate, to conduct a
walkthrough of the facility and review video and documentary evidence;
(C) Make reasonable efforts to interview all individuals who have
information relevant to the allegation of child abuse or neglect,
including, but not limited to, the alleged perpetrator (as
appropriate), care provider facility staff, the alleged victim,
sponsor(s), and the parent(s) or legal guardian(s) (as appropriate) of
the alleged victim, and any other potential witnesses;
(D) Ensure that interviews conducted as part of the investigation
are accessible for individuals with disabilities and with limited
English proficiency and are properly documented either in writing or by
audio or video recording;
(E) Gather all relevant information, including documents and audio
or video evidence;
(F) Review any available evidence of past conduct contained in
DCPI's records relating to the same alleged perpetrator, except for
allegations that resulted in a finding of unfounded or administrative
closure; and
(G) Assess the ongoing risk of child abuse or neglect to the
unaccompanied children at the care provider facility and, as
appropriate, request that the care provider facility implement a plan
to mitigate the risk and ensure the safety of the children.
(6) After the investigation is complete, ORR may make any of the
following dispositions based on the preponderance of the evidence for
each reported allegation:
(i) Substantiated allegation--Tier I;
(ii) Substantiated allegation--Tier II;
(iii) Not substantiated allegation;
(iv) Unfounded allegation; or
(v) Administrative closure.
(7) Automatic Tier I substantiating circumstances. The existence of
any one of the following circumstances in connection to a substantiated
finding, by a preponderance of the evidence, of child abuse or neglect
shall result in an automatic finding of Substantiated allegation--Tier
I:
(i) The death or near death of a child as a result of child abuse
or neglect;
(ii) Subjecting or exposing a child to sexual abuse or sexual
harassment;
(iii) The infliction of injury or creation of a condition requiring
a child to be hospitalized or to receive significant medical attention;
(iv) Repeated instances of physical abuse committed by the
individual against any unaccompanied child in ORR care;
(v) Failure to take reasonable action to protect a child from
sexual abuse or repeated instances of physical abuse under
circumstances where the individual knew or should have known that such
abuse was occurring; and
(vi) Depriving a child of necessary care (food, shelter,
healthcare, supervision) which either caused serious harm or created a
substantial risk of serious harm.
(8) Aggravating factors and mitigating factors. If ORR determines
that there are no automatic Tier I substantiating circumstances under
Sec. 412.100(e)(7), ORR shall consider the following aggravating and
mitigating factors together in determining if child abuse or neglect
should be substantiated at Tier I or II. Consideration of aggravating
and mitigating factors will be based on the totality of the
circumstances and the interest of protecting child welfare:
(i) Aggravating factors. Aggravating factors shall be weighed
together with any existing mitigating factors. Aggravating factors
include any of the following:
(A) Violations of ORR behavior management requirements pursuant to
Sec. 410.1304;
(B) The individual's failure to comply with clearly established
care provider facility policies, corrective action plans, or agreed-
upon conditions;
(C) The tender age, delayed developmental status or other
vulnerability of the child;
(D) Any significant or lasting physical, psychological, or
emotional harm to the child;
(E) An attempt to inflict any significant or lasting physical,
psychological, or emotional harm to the child;
(F) Evidence suggesting a repetition or pattern of abuse or
neglect, including multiple instances in which child abuse or neglect
was substantiated at Tier I or Tier II and not substantiated
allegations if they demonstrate a pattern of abuse or neglect or harm.
(ii) Mitigating factors. Mitigating factors shall be weighed
together with any existing aggravating factors. Mitigating factors
include any of the following:
(A) Remedial actions taken by the individual before the
investigation was concluded;
(B) Extraordinary, situational, or temporary stressors that caused
the individual to act in an uncharacteristically abusive or neglectful
manner;
(C) The isolated or aberrational nature of the child abuse or
neglect; and
(D) The limited, minor, or negligible physical, psychological, or
emotional impact of the abuse or neglect on the child.
(f) Confidentiality. Records created and information gathered or
obtained during an investigation are for internal purposes only, will
not be shared or made public unless otherwise required or authorized by
law, and may not be disclosed without prior ORR approval. All records
must be maintained in an appropriate recordkeeping system with
protections for the privacy and security of the individuals identified
in the records.
(g) Notifications of a Disposition. (1) ORR must notify the alleged
perpetrator of the disposition in writing within five days of making a
disposition. ORR must also notify in writing the alleged victim, their
parent(s) or legal guardian(s) (as appropriate), or sponsor(s), of the
disposition within five days of making a disposition.
(2) If the disposition is substantiated at Tier I, the notification
must state:
(i) The substantiated perpetrator will be considered a Tier 1
sustained perpetrator and their name and other details related to the
relevant abuse or neglect findings will be placed on the ORR Central
Registry, unless they seek an appeal of the disposition pursuant to
Sec. 412.102, and that once identified in the ORR Central Registry
they will be prohibited from working or volunteering in any way on ORR-
funded grants or contracts, and may not have access to or contact with
any unaccompanied child in ORR custody;
(ii) The reasons for the Tier I substantiated perpetrator's
placement on the ORR Central Registry in terms sufficient to put the
perpetrator on
[[Page 93520]]
notice of the conduct or incident(s) upon which it is based;
(iii) The Tier I substantiated perpetrator may appeal ORR's
disposition pursuant to Sec. 412.102, but that if the Tier I
substantiated perpetrator either fails to timely submit a notice of
appeal, or upon conclusion of the appeal and subsequent review, if any,
the disposition is upheld, the Tier I substantiated perpetrator will be
added to the ORR Central Registry as a Tier I sustained perpetrator and
the disposition will be reported to Federal, State, and local
authorities, as appropriate; and
(iv) ORR's procedures for making the disposition.
(3) If the disposition is substantiated at Tier II, the
notification must inform the Tier II substantiated perpetrator that
they may appeal ORR's disposition pursuant to Sec. 412.102, but that
if they either fail to timely submit a notice of appeal, or upon the
conclusion of the appeal and subsequent review, if any, the disposition
is upheld, the Tier II substantiated perpetrator will be designated as
a Tier II sustained perpetrator and ORR's disposition will be retained
in ORR records. ORR may use these records to determine patterns of
child abuse and neglect and to inform future safety planning at care
provider facilities. A Tier II sustained perpetrator will not be placed
on the ORR Central Registry.
Sec. 412.101 Interventions and discipline.
(a) ORR Central Registry. (1) ORR will maintain an ORR Central
Registry consisting of the names of Tier I sustained perpetrators for
purposes consistent with Sec. 412.100(a) and (c). The ORR Central
Registry will contain names and other identifying information for such
persons, and details regarding any sustained allegations of child abuse
and neglect against those persons.
(2) Subject to legal requirements regarding disclosure of
information, as well as information sharing obligations with relevant
State, local, or Federal authorities, the ORR Central Registry will not
be public-facing, nor available to persons outside of ORR. The ORR
Central Registry will only be used by ORR to identify Tier I sustained
perpetrators, as defined in this part, and for ORR to use as part of
the screening process by care provider facilities as described in Sec.
412.101(b).
(b) Working and Volunteering Prohibitions and Mandatory ORR Central
Registry Checks. (1) The individuals listed in the ORR Central Registry
shall be prohibited from working or volunteering in any way on ORR-
funded grants or contracts and may not have access to or contact with
any unaccompanied child in ORR custody unless ORR removes such
individual from the ORR Central Registry.
(2) As part of the screening process for hiring decisions for
staff, contractors or sub-grantees, or for screening volunteers, all
care provider facilities, home study providers, and post-release
service providers, whether or not located in States that investigate
child abuse and neglect allegations at ORR care provider facilities,
must check with ORR to confirm that an applicant is not listed in the
ORR Central Registry.
(3) All care provider facilities, home study providers, and post-
release service providers, whether or not located in States that
investigate child abuse and neglect allegations at ORR care provider
facilities, must also check all of their personnel against the ORR
Central Registry at least once annually.
(c) Disciplinary Sanctions. Care provider facilities must implement
appropriate disciplinary or remedial measures where they or ORR find
that care provider facility staff, contractors or sub-grantees of the
care provider facility, or care provider facility volunteers whose
conduct does not rise to the level of a Tier I substantiated
allegation, as defined at Sec. 412.001, but nevertheless raises child
welfare concerns.
(d) Referrals to State, Local, and Other Federal Agencies. (1) ORR
shall refer the names and other identifying information of Tier I
sustained perpetrators to relevant State and local authorities and to
relevant law enforcement agencies in the State in which the sustained
allegation of child abuse or neglect occurred. Additionally, if a State
or local authority or relevant local law enforcement agency outside of
the State in which the Tier I sustained allegation occurred requests
information about the sustained perpetrator, ORR will confirm whether a
particular individual is on the ORR Central Registry.
(2) ORR will provide the names and other identifying information of
Tier I sustained perpetrators to the Federal Bureau of Investigation
and HHS Office of the Inspector General (OIG), consistent with any
applicable agreements.
(3) ORR and care provider facilities shall not interfere with
another State, local, or Federal authority or agency's investigation
into allegations of child abuse and neglect.
Sec. 412.102 Appeal and review process.
(a) A substantiated perpetrator at Tier I or Tier II may appeal the
disposition made by ORR to an Administrative Law Judge (ALJ) of the HHS
Departmental Appeals Board (DAB) pursuant to Sec. 412.102(c).
(b) Notice of Opportunity for an Appeal. (1) After ORR
substantiates an allegation of child abuse and neglect at Tier I or
Tier II, it will send a written notice to the substantiated perpetrator
at Tier I or Tier II, in accordance with Sec. 412.100(g), with
notification that the allegation has been substantiated and that,
unless they appeal the disposition by ORR, a Tier I substantiated
perpetrator will be placed on the ORR Central Registry as a Tier I
sustained perpetrator and a Tier II substantiated perpetrator's
information will be retained as a Tier II sustained perpetrator in
agency records.
(2) The written notice shall:
(i) Clearly describe the basis for ORR's disposition that
substantiates the relevant allegations at Tier I or Tier II and shall
explain the Tier I or Tier II substantiated perpetrator's right to
appeal the disposition and the steps required to initiate the appeal.
(ii) Inform the substantiated perpetrator that they may appeal the
ORR disposition before an ALJ.
(iii) Provide the substantiated perpetrator at Tier I or Tier II
and their attorney, if any, with written information and instructions
describing the appeal process.
(iv) Inform the substantiated perpetrator at Tier I or Tier II that
if they do not submit a notice of appeal within 30 days of receiving
the notice of disposition, the DAB will consider the substantiated
perpetrator to have waived their opportunity to appeal and any
subsequent review. If the appeal is determined to be waived, a Tier I
substantiated perpetrator will be identified as a Tier I sustained
perpetrator on the ORR Central Registry and a Tier II substantiated
perpetrator's information will be retained as a Tier II sustained
perpetrator in agency records.
(c) Notice of Appeal and Dismissal of an Appeal--(1) Notice of
Appeal. (i) If the substantiated perpetrator at Tier I or Tier II
elects to appeal ORR's disposition that an allegation is substantiated
at Tier I or Tier II, they must file a written notice of appeal with
the DAB within 30 days of receipt of the written notice of ORR's
disposition.
(ii) Within 30 days of receipt of the notice of appeal, ORR shall
provide all evidence it used in making its disposition to the DAB.
(iii) ORR shall provide the substantiated perpetrator at Tier I or
Tier II and their attorney, if any, all information used in making its
disposition except any portion that ORR determines:
[[Page 93521]]
(A) Would compromise the safety and well-being of a child, the
reporter, or any other person;
(B) Would reveal the identity of a child who furnished information
with the understanding that their identity would be held in confidence;
(C) Would reveal the identity of any alleged perpetrator(s)
involved in the same case who has an unfounded disposition; or,
(D) Is otherwise prohibited by State or Federal law or regulation.
In the case of information being withheld, the substantiated
perpetrator at Tier I or Tier II shall be advised of the general nature
of the information and the reasons that it is being withheld.
(2) Dismissal of appeal. (i) The ALJ shall dismiss an appeal when
the substantiated perpetrator waives appeal by not submitting a notice
of appeal within 30 days of receiving written notice of ORR's
disposition, pursuant to Sec. 410.102(b)(2)(iv), and does not
demonstrate good cause for the untimely submission; or when the
substantiated perpetrator withdraws the appeal, abandons the appeal, or
does not have a right to ALJ review. If the appeal of a Tier I
substantiated perpetrator is dismissed, they will be placed on the ORR
Central Registry as a Tier I sustained perpetrator. If the appeal of a
Tier II substantiated perpetrator is dismissed, ORR will retain the
information regarding the Tier II substantiated perpetrator as a Tier
II sustained perpetrator in agency records.
(ii) Notwithstanding such dismissal, the DAB may in its discretion
temporarily remove the designation of sustained perpetrator at Tier I
or Tier II, which would result in ORR removing the individual who was
designated as a sustained perpetrator at Tier I from the ORR Central
Registry, for situations including, for example, where the ALJ
determines that the sustained perpetrator at Tier I or Tier II has
established good cause for exceeding the appeal timeframe.
(d) Appeal of ORR's disposition. (1) When a substantiated
perpetrator at Tier I or Tier II appeals the ORR's disposition to an
ALJ pursuant to Sec. 412.102(c)(1)(i), ORR must transmit to the ALJ
all of the evidence upon which the disposition was based.
(2) The evidentiary record must contain all documents and other
materials, such as video or audio recordings, that were used by ORR in
making its disposition. The ALJ may remand the case to ORR if the ALJ
determines that the evidentiary record is insufficiently complete to
decide whether ORR's disposition is supported by a preponderance of the
evidence.
(3) The substantiated perpetrator at Tier I or Tier II may be
represented by an attorney and may present the testimony of witnesses,
documents, factual data, arguments, or other submissions of proof.
(4) The substantiated perpetrator shall have the burden to show
that, considering the totality of the evidence, there is not a
preponderance of the evidence to support the substantiated allegation
at Tier I or Tier II, and to dispute whether any automatic Tier I
substantiating circumstances existed (if applicable) or whether any
aggravating factors or mitigating factors existed (if applicable). Both
ORR and the substantiated perpetrator may present the testimony of
witnesses, documents, factual data, arguments, or other submissions of
proof. The testimony of care provider facility staff shall be voluntary
and failure to offer such testimony will not be subject to disciplinary
action.
(5) If the substantiated perpetrator submits a notice of appeal and
the appeal is not dismissed by the ALJ pursuant to Sec. 412.102(d)(7),
ORR must notify the alleged victim and the alleged victim's parent(s),
legal guardian(s) (as appropriate), or sponsor(s) that that an appeal
of ORR's disposition will be conducted by an ALJ. The alleged victim,
other child witness(es), and family members of the alleged victim shall
not be required to testify. Refusal to testify shall have no bearing on
the determination as to whether abuse did or did not take place.
(6) The parties may direct and cross examine witnesses either
during a live hearing or pursuant to a record review. The parties will
be given an opportunity to file briefs or other written statements as
to fact or law.
(7) The ALJ shall conduct a fair and impartial hearing and de novo
review to determine whether the substantiated perpetrator proved their
burden of showing that, considering the totality of the evidence, there
is not a preponderance of the evidence to support the substantiated
allegation. The ALJ may either dismiss the case for untimeliness,
withdrawal of the appeal, abandonment of the appeal, or because the
individual does not have the right to appeal or because of other
procedural defects, or will issue a written decision to uphold, modify,
or reverse ORR's disposition.
(8) The ALJ shall serve a copy of the decision upon the parties and
the Assistant Secretary for ACF. The ALJ's decision shall provide the
sustained perpetrator at Tier I or Tier II and their attorney, if any,
with instructions for requesting review by the Assistant Secretary for
ACF. The ALJ also shall provide a copy of the decision to alleged
victim and the alleged victim's parent(s), legal guardian(s) (as
appropriate), or sponsor(s). The complete record upon which the
decision is based shall be made available to the Assistant Secretary.
(e) Review of the ALJ's Decision. (1) A substantiated perpetrator
at Tier I or Tier II may request a review of the ALJ's decision within
30 days of receipt of the ALJ's decision, by filing a request for
review with Office of the Assistant Secretary for ACF.
(2) The Assistant Secretary for ACF has discretion, within 30 days
after receiving a timely submission by a substantiated perpetrator of a
request for review of an ALJ's decision under Sec. 412.102(e)(1) to
review the ALJ's decision to dismiss a case for untimeliness or other
procedural defects, and to affirm, modify, or reverse the ALJ's
decision with regard to dismissal or ORR's disposition of the
allegation. A review by the Assistant Secretary will determine whether
the ALJ's decision was based on a material error of law or fact.
(3) If the Assistant Secretary affirms the ALJ's decision or does
not modify or reverse the ALJ's decision within 30 days after receiving
a timely review request pursuant to Sec. 412.102(e)(1), the ALJ's
decision becomes the final decision of the Assistant Secretary and is
binding on the parties.
(4) If the Assistant Secretary modifies or reverses the ALJ's
decision pursuant to Sec. 412.102(e)(2), the Assistant Secretary's
decision is final and binding.
(5) If at the end of the 30-day period in Sec. 412.102(e)(1), no
timely request for review has been made, the Assistant Secretary has 30
days from that point to exercise discretion to review the ALJ's
decision. If the Assistant Secretary does not modify or reverse the
ALJ's decision, then the ALJ's decision becomes the final decision of
the Assistant Secretary and is binding on both parties.
(6) The Office of the Assistant Secretary for ACF shall serve a
copy of the final decision upon the parties involved. The Office of the
Assistant Secretary for ACF also shall provide a copy of the final
decision issued by the Assistant Secretary, based on review on the
ALJ's decision under Sec. 412.102(e), to the alleged victim and the
alleged victim's parent(s), legal guardian(s) (as appropriate), or
sponsor(s).
[[Page 93522]]
Sec. 412.103 Obligations of care provider facilities.
(a) General requirements. During any investigation by ORR, a care
provider facility must:
(1) Permit ORR unrestricted access to the premises, any physical
property on the premises, buildings, staff, and children in the
physical custody of the care provider facility;
(2) Permit ORR to conduct interviews with children residing at the
care provider facility, and without care provider facility staff,
contractors, or sub-grantees of the care provider facility, or care
provider facility volunteers present;
(3) Permit ORR to observe the activities of care provider facility
staff, contractors, or sub-grantees of the care provider facility, care
provider facility volunteers, or other individuals who have access to
children in ORR care through contracts or grants with ORR;
(4) Promptly preserve any potential video or documentary evidence;
(5) Promptly provide access to and, upon request, copies of all
files, records, reports, data, video recordings, and other information
to ORR, either prior to or during the investigation;
(6) Promptly provide access to and contact information for care
provider facility staff, contractors, or sub-grantees of the care
provider facility, care provider facility volunteers, or other
individuals who have access to children in ORR care through other
contracts or grants with ORR;
(7) Submit complete and accurate responses to any written questions
in a timely manner;
(8) Fully cooperate with ORR;
(9) Fully cooperate with any investigation of the same allegation
by State, local, and Federal authorities and relevant law enforcement
agencies.
(b) Protection against retaliation. Care provider facility staff,
contractors, or sub-grantees of the care provider facility, and care
provider facility volunteers must not retaliate against any person who
in good faith reports or participates in an investigation of child
abuse or neglect.
(c) Obstruction, interference, delay of, or failure to permit an
investigation. Obstruction, interference, delay of, or failure of a
care provider facility to permit or cooperate with any investigation
under this part, including failure to protect unaccompanied children
from retaliation pursuant to Sec. 412.103(b), may result in ORR taking
monitoring and enforcement measures including, but not limited to:
remote monitoring of the care provider facility; on-site monitoring of
the care provider facility; monitoring of the corporate offices to
review internal policies and reporting structures, as well as
supervisory response to events; limiting or stopping new placements of
unaccompanied children at the care provider facility; removing all
unaccompanied children from the care provider facility and placing them
into other care provider facilities; issuing corrective actions;
terminating the cooperative agreement or contract with the care
provider facility; or imposing other such remedies for noncompliance
applicable to HHS grant recipients and contractors.
(d) Rights to legal representation, familial supports, and other
supports. During the course of an investigation, care provider
facilities must provide unaccompanied children confidential access to
attorneys of record and other legal service providers, in a manner
consistent with requirements established at 45 CFR 411.55 (as
applicable) and 45 CFR 410.1309. Care provider facilities must provide
unaccompanied children access to their families, including legal
guardians, in a manner consistent with requirements established at 45
CFR 411.55 (as applicable) and 45 CFR 410.1309. Care provider
facilities must provide unaccompanied children with access to their
child advocates, in a manner consistent with the requirements at 8
U.S.C. 1232(c)(6) and 45 CFR 410.1308. Care provider facilities must
also provide unaccompanied children access to health services
(including specialists and mental health practitioners), individual
counseling sessions, and crisis intervention (including access to
outside victim services and rape crisis centers where appropriate) to
most appropriately address unaccompanied children's needs, in a manner
consistent with requirements established at 45 CFR 410.1307, 45 CFR
410.1311, 45 CFR 410.1302(c)(5), and 45 CFR 411.21 (as applicable).
[FR Doc. 2024-27626 Filed 11-25-24; 8:45 am]
BILLING CODE 4184-45-P
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</html>Indexed from Federal Register on November 27, 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.