Unaccompanied Children Program Foundational Rule, 34384-34617 [2024-08329]

Agencies

• DEPARTMENT OF HEALTH AND HUMAN SERVICES
• Administration for Children and Families

[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34384-34617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08329]



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Vol. 89

Tuesday,

No. 84

April 30, 2024

Part III





Department of Health and Human Services





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Administration for Children and Families





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45 CFR Part 410





Unaccompanied Children Program Foundational Rule; Final Rule

Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules 
and Regulations

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 410

RIN 0970-AC93


Unaccompanied Children Program Foundational Rule

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

ACTION: Final rule.

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SUMMARY: This final rule adopts and replaces regulations relating to 
key aspects of the placement, care, and services provided to 
unaccompanied children referred to the Office of Refugee Resettlement 
(ORR), pursuant to ORR's responsibilities for coordinating and 
implementing the care and placement of unaccompanied children who are 
in Federal custody by reason of their immigration status under the 
Homeland Security Act of 2002 (HSA) and the William Wilberforce 
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). 
This final rule establishes a foundation for the Unaccompanied Children 
Program (UC Program) that is consistent with ORR's statutory duties, 
for the benefit of unaccompanied children and to enhance public 
transparency as to the policies governing the operation of the UC 
Program. This final rule implements the 1997 Flores Settlement 
Agreement (FSA). As modified in 2001, the FSA provides that it will 
terminate 45 days after publication of final regulations implementing 
the agreement. ORR anticipates that any termination of the settlement 
based on this final rule would only be effective for those provisions 
that affect ORR and would not terminate provisions of the FSA that 
apply to other Federal Government agencies.

DATES: This final rule is effective: July 1, 2024.

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Table of Abbreviations
II. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of Select Provisions
    C. Summary of Costs and Benefits
III. Background and Purpose
    A. The UC Program
    B. History and Statutory Structure
    C. Statutory and Regulatory Authority
    D. Basis and Purpose of Regulatory Action
    E. Severability
IV. Discussion of Elements of the Proposed Rule, Public Comments, 
Responses, and Final Rule Actions
V. Collection of Information Requirements
VI. Regulatory Impact Analysis
    A. Economic Analysis
    B. Regulatory Flexibility Analysis
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
    E. Executive Order 13132: Federalism
    F. Executive Order 12988: Civil Justice Reform
VII. Assessment of Federal Regulation and Policies on Families
VIII. Alternatives Considered

I. Table of Abbreviations

ACF--Administration for Children and Families
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
EOIR--Executive Office for Immigration Review
FSA--Flores Settlement Agreement
HHS--U.S. Department of Health and Human Services
HSA--Homeland Security Act of 2002
INS--Immigration and Naturalization Service
OMB--Office of Management and Budget
ORR--Office of Refugee Resettlement, U.S. Department of Health and 
Human Services
TVPRA--William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008
UC Program--Unaccompanied Children Program

II. Executive Summary

A. Purpose of the Regulatory Action

    On October 4, 2023, the Office of Refugee Resettlement (ORR) 
published a notice of proposed rulemaking (NPRM or proposed rule), to 
replace and supersede regulations at 45 CFR part 410, and to codify 
policies and requirements concerning the placement, care, and services 
provided to unaccompanied children in Federal custody by reason of 
their immigration status and referred to ORR.\1\ The NPRM was based on 
statutory authorities and requirements provided under the Homeland 
Security Act of 2002 (HSA) \2\ and the William Wilberforce Trafficking 
Victims Protection Reauthorization Act of 2008 (TVPRA),\3\ and proposed 
to implement the terms of the 1997 Flores Settlement Agreement (FSA) 
that create responsibilities for HHS and ORR. ORR proposed in the NPRM 
that the requirements apply to all care provider facilities, including 
both standard programs and non-standard programs, as defined below, 
unless otherwise specified (88 FR 68909). ORR noted that the proposed 
rule was necessary to codify a uniform set of standards and procedures 
that will help to ensure the safety and well-being of unaccompanied 
children in ORR care, implement the substantive terms of the FSA, and 
enhance public transparency as to the policies governing the operation 
of the Unaccompanied Children Program (UC Program).
    The proposed rule provided a 60-day public comment period, which 
ended on December 4, 2023. This final rule responds to comments 
received and adopts the proposed rule, with some changes as discussed 
herein. ORR thanks the public for commenting on the NPRM.

B. Summary of Select Provisions

    This final rule codifies ORR policies and requirements for the 
placement, care, and services provided to unaccompanied children in 
Federal custody by reason of their immigration status and referred to 
ORR, as discussed in section IV of this final rule. In subpart A, ORR 
is finalizing its proposal to define terms that are relevant to the 
criteria and requirements in the NPRM and to codify the general 
principles that apply to the care and placement of unaccompanied 
children in ORR care. In subpart B, ORR is finalizing its proposals 
regarding the criteria and requirements that apply with respect to 
placement of unaccompanied children at ORR care provider facilities, 
including specific criteria for placement at particular types of ORR 
care provider facilities. In subpart C, ORR is finalizing policies and 
procedures regarding the release of unaccompanied children from ORR 
care to vetted and approved sponsors. In subpart D, ORR is finalizing 
the standards and services that it must meet and provide to 
unaccompanied children in ORR care provider facilities. In subpart E, 
ORR is finalizing requirements for the safe transportation of 
unaccompanied children while in ORR's care. In subpart F, ORR is 
finalizing reporting requirements for care provider facilities such 
that ORR may compile and maintain statistical information and other 
data on unaccompanied children. In subpart G, ORR is finalizing 
requirements and policies regarding the transfer of unaccompanied 
children in ORR care. In subpart H, ORR is finalizing requirements for 
determining the age of an individual in ORR care. In subpart I, ORR is 
finalizing its proposal to codify requirements for emergency or influx 
facilities (EIFs), which are ORR facilities

[[Page 34385]]

that are opened during a time of emergency or influx. In subpart J, ORR 
is finalizing requirements regarding the availability of administrative 
review of ORR decisions. Finally, in subpart K, ORR is finalizing its 
proposal to establish an independent ombud's office that would promote 
important protections for all children in ORR care.

C. Summary of Costs and Benefits

    This final rule codifies current ORR requirements for compliance 
with the FSA, court orders, and statutes, as well as certain 
requirements under existing ORR policy and cooperative agreements. As 
discussed in section VII.A of this final rule, HHS and ORR expect these 
requirements to impose limited additional costs, including those costs 
incurred by the Federal Government to increase the provision of legal 
services to unaccompanied children in limited circumstances, to 
supplement costs incurred by grant recipients in order to comply with 
the finalized requirements (see below), to establish a risk 
determination hearing process, and to establish the Unaccompanied 
Children Office of the Ombuds (UC Office of the Ombuds) and other 
administrative staffing needs. In subpart D at Sec.  410.1309, ORR is 
finalizing its proposal, to the greatest extent practicable, subject to 
available resources as determined by ORR, and consistent with section 
292 of the Immigration and Nationality Act (INA) (8 U.S.C. 1362), that 
all unaccompanied children who are or have been in ORR care would have 
access to legal advice and representation in immigration legal 
proceedings or matters funded by ORR. In subpart J, ORR is finalizing 
the establishment of a risk determination hearing process. To 
facilitate this process, ORR has developed forms for use by 
unaccompanied children, their parents/legal guardians, or their legal 
representatives for which we estimate the costs of completion to range 
from $10,187 to $56,589 per year. In subpart K, ORR discusses the 
establishment of an Office of the Ombuds for the UC Program. In 
addition to the Ombuds position itself, ORR anticipates the need for 
support staff in the office. ORR estimates the annual cost of 
establishing and maintaining this office would be $1,718,529, which 
includes the cost of 10 full-time personnel, as discussed in further 
detail in VII.A.2 of this final rule.
    ORR also notes that all care provider facilities and service 
providers discussed in this final rule are recipients of Federal awards 
(e.g., cooperative agreements or contracts), and the costs of 
maintaining compliance with these proposed requirements are allowable 
costs under the Basic Considerations for cost provisions at 45 CFR 
75.403 through 75.405,\4\ in that the costs are reasonable, necessary, 
ordinary, treated consistently, and are allocable to the award. If 
there are additional costs associated with the policies discussed in 
this final rule that were not budgeted, and cannot be absorbed within 
existing budgets, the recipient would be able to submit a request for 
supplemental funds to cover the costs.

III. Background and Purpose

A. The UC Program

    The purpose of this rule is to codify policies, standards, and 
protections for the UC Program, consistent with the HSA and TVPRA, and 
to implement the substantive requirements of the FSA as they pertain to 
ORR. On March 1, 2003, section 462 of the HSA transferred 
responsibilities for the care and placement of unaccompanied children 
from the Commissioner of the Immigration and Naturalization Service 
(INS) to the Director of ORR. The HSA defines certain relevant terms 
and establishes ORR responsibilities with respect to unaccompanied 
children. The HSA defines ``unaccompanied alien child,'' a term ORR 
uses synonymously with ``unaccompanied child,'' as ``a child who--(A) 
has no lawful immigration status in the United States; (B) has not 
attained 18 years of age; and (C) with respect to whom--(i) there is no 
parent or legal guardian in the United States; or (ii) no parent or 
legal guardian in the United States is available to provide care and 
physical custody.'' \5\ The TVPRA, meanwhile, added requirements for 
other executive branch departments and agencies to expeditiously 
transfer unaccompanied children in their custody to ORR's care and 
custody once identified, and together with HHS and other specified 
federal agencies to establish policies and programs to ensure 
unaccompanied children are protected from human trafficking and other 
criminal activities.\6\ Both statutes are described in further detail 
in the paragraphs below. Pursuant to these statutory requirements, the 
UC Program provides a safe and appropriate environment for 
unaccompanied children in ORR custody. In most cases, unaccompanied 
children enter ORR custody via transfer from DHS. When DHS immigration 
officials, or officials from other Federal agencies or departments, 
transfer an unaccompanied child in their custody to ORR, ORR promptly 
places the unaccompanied child in the least restrictive setting that is 
in the best interests of the child, taking into consideration danger to 
self, danger to the community, and risk of flight. ORR considers the 
unique nature of each child's situation, the best interest of the 
child, and child welfare principles when making placement, clinical, 
case management, and release decisions. To carry out its statutory 
responsibilities, and consistent with its responsibilities under the 
FSA, ORR currently funds residential care providers that provide 
temporary housing and other services to unaccompanied children in ORR 
custody. These care providers have been primarily State-licensed and 
must also meet ORR requirements to ensure a high-quality level of care. 
These multiple providers comprise a continuum of care for children, 
including placements in individual and group homes, shelter, heightened 
supervision, secure facilities, and residential treatment centers. 
While in ORR custody, unaccompanied children are provided with 
classroom education, healthcare, socialization/recreation, mental 
health services, access to religious and legal services, and case 
management. Unaccompanied children generally remain in ORR custody 
until they are released to a vetted and approved parent or other 
sponsor in the United States, are repatriated to their home country, 
obtain legal status, or otherwise no longer meet the statutory 
definition of an unaccompanied child (e.g., turn 18). Consistent with 
the limits of its statutory authority, and in accordance with current 
ORR policy, all children who turn 18 years old while in ORR's care and 
custody are transferred to DHS for a custody determination. Once 
transferred to DHS, that agency considers placement in the least 
restrictive setting available after taking into account the 
individual's danger to self, danger to the community, and risk of 
flight, in accordance with applicable legal authority.

B. History and Statutory Structure

1. HSA and TVPRA
    The HSA abolished the former INS and created DHS. The HSA 
transferred many of the immigration functions from the INS to DHS, but 
it transferred functions under the immigration laws of the United 
States with respect to the care of unaccompanied children to ORR.\7\ 
The HSA makes the ORR Director responsible for a number of functions 
with respect to unaccompanied children, including coordinating and 
implementing their care and placement, ensuring that unaccompanied 
children's interests are considered in actions and

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decisions relating to their care, making and implementing placement 
determinations, implementing policies with respect to the care and 
placement of children, and overseeing the infrastructure and personnel 
of facilities in which unaccompanied children reside.\8\ The HSA also 
states that ORR shall not release unaccompanied children from custody 
upon their own recognizance, and requires ORR to consult with 
appropriate juvenile justice professionals and certain Federal agencies 
in relation to placement determinations to ensure that unaccompanied 
children are likely to appear at all hearings and proceedings in which 
they are involved; are protected from smugglers, traffickers, and 
others who might seek to victimize or otherwise engage them in 
criminal, harmful, or exploitative activity; and are placed in a 
setting in which they are not likely to pose a danger to themselves or 
others.\9\ ORR notes that under its current policies, such consultation 
is subject to privacy protections for unaccompanied children. For 
example, ORR restricts sharing certain case-specific information with 
the Executive Office for Immigration Review (EOIR) and DHS that may 
deter a child from seeking legal relief. Subject to such protections, 
ORR provides notification of the placement decisions to U.S. 
Immigration and Customs Enforcement (ICE) and, if referred by U.S. 
Customs and Border Protection (CBP), to CBP. ORR provides the following 
notification information: identifying information of the unaccompanied 
child, ORR care provider name and address, and ORR care provider point 
of contact (name and telephone number).\10\
    In 2008, Congress passed the TVPRA, which further elaborated duties 
with respect to the care and custody of unaccompanied children. The 
TVPRA provides that, except as otherwise provided with respect to 
certain unaccompanied children from contiguous countries,\11\ and 
consistent with the HSA, the care and custody of all unaccompanied 
children, including responsibility for their detention, where 
appropriate, is the responsibility of the Secretary of HHS. The TVPRA 
states that each department or agency of the Federal Government must 
notify HHS within 48 hours upon the apprehension or discovery of an 
unaccompanied child or any claim or suspicion that a noncitizen 
individual in the custody of such department or agency is under the age 
of 18.\12\ The TVPRA states further that, except in exceptional 
circumstances, any department or agency of the Federal Government that 
has an unaccompanied child in its custody shall transfer the custody of 
such child to HHS not later than 72 hours after determining such child 
is an unaccompanied child. Furthermore, the TVPRA requires the 
Secretary of HHS and other specified Federal agencies to establish 
policies and programs to ensure that unaccompanied children in the 
United States are protected from traffickers and other persons seeking 
to victimize or otherwise engage such children in criminal, harmful, or 
exploitative activity.\13\ The TVPRA describes requirements with 
respect to safe and secure placements for unaccompanied children, 
safety and suitability assessments of potential sponsors for 
unaccompanied children, legal orientation presentations, access to 
counsel, and child advocates, among other requirements. HHS delegated 
its authority under the TVPRA to the Assistant Secretary for Children 
and Families, which then re-delegated the authority to the Director of 
ORR.\14\
2. The Flores Settlement Agreement Terms and Implementation
    On July 11, 1985, four noncitizen children in INS \15\ custody 
filed a class action lawsuit in the U.S. District Court for the Central 
District of California on behalf of a class of minors detained in the 
custody of the INS (Flores litigation).\16\ At that time, the INS was 
responsible for the custody of minors entering the United States 
unaccompanied by a parent or legal guardian. The Flores litigation 
challenged ``(a) the [INS] policy to condition juveniles' release on 
bail on their parents' or legal guardians' surrendering to INS agents 
for interrogation and deportation; (b) the procedures employed by the 
INS in imposing a condition on juveniles' bail that their parents' or 
legal guardians' [sic] surrender to INS agents for interrogation and 
deportation; and (c) the conditions maintained by the INS in facilities 
where juveniles are incarcerated.'' \17\ The plaintiffs claimed that 
the INS's release and bond practices and policies violated, among other 
things, the INA, the Administrative Procedure Act (APA), and the Due 
Process Clause and Equal Protection Guarantee under the Fifth 
Amendment.\18\ After over 10 years of litigation, the U.S. Government 
and Flores plaintiffs entered into the ``Flores Settlement Agreement,'' 
which was approved by the district court as a consent decree on January 
28, 1997.\19\
    The FSA applies to both unaccompanied children, as defined in the 
HSA, and to children accompanied by their parents or legal 
guardians,\20\ but ORR notes that this final rule is intended 
specifically to codify requirements regarding the care of unaccompanied 
children who have been transferred to the care and custody of ORR. As 
relevant to ORR, the FSA imposes several substantive requirements for 
Government custody of unaccompanied children, including requiring that 
they be placed in the ``least restrictive setting appropriate to the 
minor's age and special needs,'' \21\ and establishing a general policy 
favoring release of unaccompanied children where it is determined that 
detention of the unaccompanied child is not required either to secure 
the child's timely appearance for immigration proceedings or to ensure 
the unaccompanied child's safety or that of others.\22\ When release is 
appropriate, the FSA establishes an order of priority with respect to 
potential sponsors. If no sponsor is available, an unaccompanied child 
will be placed at a care provider facility licensed by an appropriate 
State agency, or, in the discretion of the Government, with another 
adult individual or entity seeking custody. Under the original terms of 
the FSA, unaccompanied children whom the former INS was unable to 
release upon apprehension and detention remained in INS custody, 
typically in a licensed program, until they could be appropriately 
released; currently, under the FSA, unaccompanied children who are not 
released remain in ORR legal custody and may be transferred or released 
only under the authority of ORR. The FSA also mandates that any 
noncitizen child who remains in Government custody for removal 
proceedings is entitled to a bond hearing before an immigration judge, 
``unless the [child] indicates on the Notice of Custody Determination 
form that he or she refuses such a hearing.'' \23\ The FSA contains 
many other provisions relating to the care of unaccompanied children, 
including the minimum standards required at licensed care provider 
facilities described in Exhibit 1.
    The FSA states that within 120 days of the final district court 
approval of the agreement, the Government shall initiate action to 
publish the relevant and substantive terms of the Agreement in 
regulation.\24\ In 1998, the INS published a proposed rule based on the 
substantive terms of the FSA, entitled ``Processing, Detention, and 
Release of Juveniles.'' \25\ Over the subsequent years, that proposed 
rule was not finalized. The FSA originally included a termination date, 
but in 2001, the parties agreed to extend the agreement

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and added a stipulation that terminates the FSA ``45 days following 
defendants' publication of final regulations implementing t[he] 
Agreement.'' \26\ In January 2002, the INS reopened the comment period 
on the 1998 proposed rule,\27\ but the rulemaking was ultimately 
terminated. Thus, as a result of the 2001 Stipulation, the FSA remains 
in effect. The U.S. District Court for the Central District of 
California has continued to rule on various motions filed in the case 
and oversee enforcement of the FSA.
3. The 2019 Final Rule
    On September 7, 2018, DHS and HHS issued a joint proposed rule, 
entitled ``Apprehension, Processing, Care, and Custody of Alien Minors 
and Unaccompanied Alien Children'' (2018 Proposed Rule).\28\ The 
purpose of the proposed rule was to implement the substantive terms of 
the FSA, and thus enable the district court to terminate the agreement. 
The rule proposed to adopt provisions that were intended to parallel 
the relevant substantive terms of the FSA, with some modifications to 
reflect statutory and operational changes put in place since the FSA 
was entered into in 1997, along with certain other changes.\29\ A final 
rule was promulgated on August 23, 2019 (2019 Final Rule), which 
comprised two sets of regulations: one issued by DHS and the other by 
HHS. The HHS regulations addressed only the care and custody of 
unaccompanied children.\30\ The DHS regulations addressed other 
provisions of the FSA that pertained to DHS, including the requirement 
that after DHS apprehends unaccompanied children it should transfer 
them to the custody of HHS.\31\
    After DHS and HHS issued the 2018 Proposed Rule and before the 2019 
Final Rule was published, plaintiffs in the Flores litigation filed a 
Motion to Enforce the FSA. The court deferred ruling on the Motion, 
ordering DHS and HHS to file a notice upon issuance of final 
regulations, which DHS and HHS did in August 2019. Later that month, 
DHS and HHS also filed a Notice of Termination and Motion in the 
Alternative to Terminate the FSA, while Plaintiffs filed a supplemental 
brief addressing their Motion to Enforce. Plaintiffs' Motion to Enforce 
presented the following two separate but related issues: (1) whether 
the 2019 Final Rule would effectively terminate the FSA, and (2) if 
not, to what extent the Court should enjoin the Government from 
implementing the 2019 Final Rule. On September 27, 2019, approximately 
one month after the 2019 Final Rule was published, the District Court 
for the Central District of California entered an Order granting 
Plaintiffs' Motion to Enforce insofar as it sought an order declaring 
that the Government failed to terminate the FSA, denied the 
Government's Motion to Terminate the FSA, and issued a permanent 
injunction consistent with its order.\32\
    On December 29, 2020, in Flores v. Rosen, the U.S. Court of Appeals 
for the Ninth Circuit affirmed in part and reversed in part the 
District Court Order.\33\ Regarding the HHS regulations applicable to 
the care and custody of unaccompanied children in the 2019 Final Rule, 
the Court of Appeals held that the regulations were ``largely 
consistent'' with the FSA, with two exceptions.\34\ First, it held that 
the HHS regulation allowing placement of a minor in a secure facility 
upon an agency determination that the minor is otherwise a danger to 
self or others broadened the circumstances in which a minor may be 
placed in a secure facility, and therefore was inconsistent with the 
FSA. Second, it held that provisions providing a hearing to 
unaccompanied children held in secure or staff-secure placement only if 
requested was inconsistent with the FSA's opt-out process for obtaining 
a bond hearing. Although the Ninth Circuit held that the majority of 
the HHS regulations could take effect, it also held that the District 
Court did not abuse its discretion in declining to terminate the 
portions of the FSA covered by those regulations, noting that the 
Government moved to ``terminate the Agreement in full, not to modify or 
terminate it in part.'' \35\ Consistent with its findings, the Ninth 
Circuit held that the FSA ``therefore remains in effect, 
notwithstanding the overlapping HHS regulations'' and that the 
Government, if it wished, could move to terminate those portions of the 
FSA covered by the valid portions of the HHS regulations.\36\
    Separately, a group of states brought litigation in the District 
Court for the Central District of California seeking to enjoin the 
Government from implementing the 2019 Final Rule (California v. 
Mayorkas), based on other grounds including the APA.\37\ The court 
stayed the case, given the related litigation brought by Flores 
plaintiffs, which culminated in the Ninth Circuit decision in Flores v. 
Rosen. After that decision, the plaintiffs in California v. Mayorkas 
filed a supplemental briefing requesting a narrowed preliminary 
injunction, alleging that several portions of the HHS provisions of the 
2019 Final Rule violated the APA. Subsequently, the parties entered 
into settlement discussions. On December 10, 2021, the parties informed 
the court that HHS did not plan to seek termination of the FSA under 
the terms of the stipulation or to ask the court to lift its injunction 
of the HHS regulations. Instead, HHS would consider a future rulemaking 
that would more broadly address issues related to the custody of 
unaccompanied children by HHS and that would replace the rule being 
challenged in California v. Mayorkas. Based on this agreement, the 
court ordered that the California v. Mayorkas litigation should be 
placed into abeyance with regard to the Plaintiffs' claims against HHS 
while HHS engaged in new rulemaking to replace and supersede the HHS 
regulations in the 2019 Final Rule.\38\ Further, among other things, 
HHS agreed that while it engaged in new rulemaking, it would not seek 
to lift the injunction of the 2019 Final Rule or seek to terminate the 
FSA as to HHS under the 2019 Final Rule, and that it would make best 
efforts to submit an NPRM to OMB by April 15, 2023, providing quarterly 
updates to the Court should it not meet that deadline.\39\ In accord 
with the relevant order, ORR made best efforts to submit the NPRM to 
OMB, and ultimately sent the document to OMB on April 28, 2023.\40\ The 
NPRM initiated that broader rulemaking effort, and reflected the 
stipulated agreement in California v. Mayorkas. The NPRM applied, as 
relevant, the findings of the Ninth Circuit regarding the 2019 Final 
Rule in Flores v. Rosen. Because the permanent injunction of the 2019 
Final Rule was never lifted, and the FSA continued to remain in effect, 
ORR does not anticipate that any third parties would have developed 
reliance interests on the HHS regulations in the 2019 Final Rule. 
Differences between the 2019 Final Rule and this final rule are 
discussed in relevant portions of the preamble below.
4. Lucas R. Litigation
    Another ongoing lawsuit involving ORR, filed in 2018, also has 
ramifications for this rule. Lucas R. v. Becerra,\41\ a class action 
lawsuit, was filed in the U.S. District Court for the Central District 
of California, alleging ORR had violated the FSA, the TVPRA, the U.S. 
Constitution, and section 504 of the Rehabilitation Act of 1973 
(section 504). Based on the plaintiffs' allegations, the court 
certified five plaintiff classes comprising all children in ORR 
custody:

    (1) who are or will be placed in a secure facility, medium-
secure facility, or residential treatment center (RTC), or whom ORR 
has continued to detain in any such facility for more than 30 days, 
without being afforded notice and an opportunity to be heard before 
a neutral and detached

[[Page 34388]]

decisionmaker regarding the grounds for such placement (i.e., the 
``step-up class'');
    (2) whom ORR is refusing or will refuse to release to parents or 
other available custodians within 30 days of the proposed 
custodian's submission of a complete family reunification packet on 
the ground that the proposed custodian is or may be unfit (i.e., 
``the unfit custodian class'');
    (3) who are or will be prescribed or administered one or more 
psychotropic medications without procedural safeguards (i.e., the 
``drug administration class'');
    (4) who are natives of non-contiguous countries and to whom ORR 
is impeding or will impede legal assistance in legal matters or 
proceedings involving their custody, placement, release, and/or 
administration of psychotropic drugs (i.e., the ``legal 
representation class''); and
    (5) who have or will have a behavioral, mental health, 
intellectual, and/or developmental disability as defined in 29 
U.S.C. [section] 705, and who are or will be placed in a secure 
facility, medium-secure facility, or [RTC] because of such 
disabilities (i.e., the ``disability class'').\42\

    On August 30, 2022, the U.S. District Court for the Central 
District of California granted preliminary injunctive relief concerning 
the allegations of the unfit custodian, step-up, and legal 
representation classes. As of October 31, 2022, ORR implemented new 
policies and procedures on issues identified in the Court's preliminary 
injunction order, which ORR is codifying in this final rule. As stated 
in the NPRM, as of September 2023, ORR remained in active litigation in 
the Lucas R. class action. The proposed rule stated that depending on 
developments in the case, ORR may incorporate additional provisions in 
the final rule (88 FR 68913).
    On January 5, 2024, the Court issued an order preliminarily 
approving settlement agreements that the parties negotiated regarding 
the legal representation, drug administration, and disability 
classes.\43\ A final approval hearing is scheduled for May 2024. As 
discussed in this final rule, ORR is finalizing some proposals from the 
NPRM as modified to account for developments in the Lucas R. 
litigation. As described herein, in this final rule, ORR intends to 
codify the requirements of the Lucas R. preliminary injunction. In 
addition, in this final rule, ORR is incorporating the terms of the 
anticipated legal representation settlement, among other enhancements 
to legal services for unaccompanied children. However, ORR is not 
incorporating in the final rule all of the various detailed provisions 
in the settlements concerning the drug administration and disability 
classes, although ORR is incorporating many commenters' recommendations 
in these areas. The drug administration and disability settlements 
themselves contemplate implementation over time, thereby affording ORR 
an opportunity to see how the terms of those settlements work in 
practice as they are implemented, and to assess whether changes may be 
needed over time due to evolving circumstances. The disability 
settlement in particular requires that ORR work with experts to 
undertake a year-long comprehensive needs assessment to evaluate the 
adequacy of services, supports, and resources currently in place for 
children with disabilities in ORR's custody across its network, and to 
identify gaps in the current system, which will inform the development 
of a disability plan and future policymaking that best address how to 
effectively meet the needs of children with disabilities in ORR's care 
and custody. Therefore, while ORR is not codifying all the terms of the 
anticipated disability and drug administration settlement agreements in 
this final rule, ORR is implementing terms in this rule that broadly 
reflect its commitment to ensuring that unaccompanied children are 
protected from discrimination and have equal access to the UC Program, 
as is consistent with section 504, and that psychotropic medications 
are administered appropriately in the best interest of the child and 
with meaningful oversight.

C. Statutory and Regulatory Authority

    As discussed above, under the HSA and TVPRA, the ORR Director \44\ 
is responsible for the care and placement of unaccompanied children. 
Under the HSA, ORR is responsible for ``coordinating and implementing 
the care and placement of [unaccompanied children] who are in Federal 
custody by reason of their immigration status,'' ``identifying a 
sufficient number of qualified individuals, entities, and facilities to 
house [unaccompanied children],'' ``overseeing the infrastructure and 
personnel of facilities in which [unaccompanied children reside],'' and 
``conducting investigations and inspections of facilities and other 
entities in which [unaccompanied children] reside, including regular 
follow-up visits to such facilities, placements, and other entities, to 
assess the continued suitability of such placements.'' \45\ Under the 
TVPRA, Federal agencies are required to notify HHS within 48 hours of 
apprehending or discovering an unaccompanied child or receiving a claim 
or having suspicion that a noncitizen in their custody is under 18 
years of age.\46\ The TVPRA further requires that, absent exceptional 
circumstances, any Federal department or agency must transfer an 
unaccompanied child to the care and custody of HHS within 72 hours of 
determining that a noncitizen child in its custody is an unaccompanied 
child. The TVPRA requires that HHS and other specified Federal agencies 
establish policies and programs to ensure that unaccompanied children 
are protected from traffickers and other persons seeking to victimize 
or exploit children.\47\ Among other things, it also requires HHS to 
place unaccompanied children in the least restrictive setting that is 
in the best interest of the child, and states that in making such 
placements it may consider danger to self, danger to the community, and 
risk of flight. As previously discussed, the Secretary of HHS delegated 
the authority under the TVPRA to the Assistant Secretary for Children 
and Families,\48\ who in turn delegated the authority to the Director 
of ORR.\49\ It is under this delegation of authority that ORR now 
issues regulations describing how ORR meets its statutory 
responsibilities under the HSA and TVPRA and implements the relevant 
and substantive terms of the FSA for the care and custody of 
unaccompanied children.
    In addition to requirements and standards related to the direct 
care of unaccompanied children, HHS is establishing a new UC Office of 
the Ombuds to create a mechanism that allows unaccompanied children and 
stakeholders to raise concerns with ORR policies and practices to an 
independent body. The Ombuds will be tasked with fielding concerns from 
any party relating to the implementation of ORR regulations, policies, 
and procedures; reviewing individual cases, conducting site visits and 
publishing reports, including reports on systemic issues in ORR 
custody, particularly where there are concerns about access to services 
or release from ORR care; and following up on grievances made by 
children, sponsors, or other stakeholders. As stated in the NPRM, at 88 
FR 68913, HHS has authority to establish this office under its 
authority to ``establish policies and programs to ensure that 
unaccompanied alien children in the United States are protected from 
traffickers and other persons seeking to victimize or otherwise engage 
such children in criminal, harmful, or exploitative activity.'' \50\

D. Basis and Purpose of Regulatory Action

    The purpose of this rule is to finalize a regulatory framework that 
(1) codifies policies and practices related to the care

[[Page 34389]]

and custody of unaccompanied children, consistent with ORR's statutory 
authorities; and (2) implements relevant provisions of the FSA. The FSA 
describes ``minimum'' standards for care of unaccompanied children at 
licensed care provider facilities, but Congress subsequently enacted 
legislation establishing requirements for the UC Program. This final 
rule implements the protections set forth in the FSA and broadens them 
consistent with the current legal and operational environment, which 
has significantly changed since the FSA was signed over 25 years ago.

E. Severability

    This is a comprehensive rule containing many subparts that address 
many distinct aspects of the UC Program. To the extent any subpart or 
portion of a subpart is declared invalid by a court, ORR intends for 
all other subparts to remain in effect. For example, ORR expects that 
if a court were to invalidate Subpart B (or any of Subpart B's discrete 
provisions) relating to the placement of a child, all other subparts--
such as Subpart C (release of the child), Subpart D (minimum standards 
and services), Subpart E (transportation), etc.--may continue to 
operate and should remain operative independently of the invalidated 
subpart.
    Additionally, each Subpart also contains many distinct provisions, 
many of which may also operate independently of one another; thus, the 
invalidation of one particular provision within a particular subpart 
would not necessarily have implications for other aspects of that 
subpart. For example, within Subpart D, the provision of access to 
routine medical and dental care, and other forms of healthcare at Sec.  
410.1307 would not be impacted by the invalidation of the provision of 
structured leisure time activities at Sec.  410.1302(c)(4) or provision 
of legal services under Sec.  410.1309. ORR intends that if one or more 
provisions within a subpart are invalidated, that all other provisions 
of that subpart (and all other subparts of the rule) remain in effect.

IV. Discussion of Elements of the Proposed Rule, Public Comments, 
Responses, and Final Rule Actions

Subpart A--Care and Placement of Unaccompanied Children

    ORR proposed in the notice of proposed rulemaking (NPRM) to codify 
requirements and policies regarding the placement, care, and services 
provided to unaccompanied children in ORR custody (88 FR 68914). The 
following provisions identify the scope of this part, the definitions 
used throughout this part, and principles that apply to ORR placement, 
care, and services decisions.
    ORR received many comments on the proposed rule that were not 
directed at any specific proposal and will address those here.
    Comment: Many commenters supported the proposed rule, stating that 
it improved public transparency as to the policies governing the 
program and provided rights and protections for unaccompanied children. 
Many commenters supported codifying practices based on the HSA and 
TVPRA and implementing and enhancing the terms of the FSA and stated 
that a uniform set of standards and procedures would create conformity 
and clarity to provide for the well-being of unaccompanied children in 
ORR care. Several commenters cited ORR's efforts to clarify, 
strengthen, and codify these requirements and ensure the consistent 
implementation of child welfare principles and protections for children 
in ORR's custody. Another commenter commended ORR on its efforts to 
incorporate child-centered, trauma-informed principles into the 
regulatory standards for the UC Program and adopting more inclusive 
language. Other commenters appreciated that the provisions are tailored 
to the individualized needs of unaccompanied children and ensure 
protection from individuals who seek to exploit or victimize 
unaccompanied children.
    Response: ORR thanks the commenters for their support.
    Comment: One commenter encouraged ORR to provide clarity and more 
specifics in areas where appropriations would impact the ability to 
carry out the proposed rule.
    Response: ORR thanks the commenter. As discussed in Section VI, 
funding for UC Program services is dependent on annual appropriations 
from Congress. The regulations specifically mention that post-release 
services (PRS) and funding for legal service providers are limited to 
the extent appropriations are available. The availability of child 
advocates and the enhancement of certain services, such as the 
transition to a community-based care model, are also impacted by 
appropriations. ACF's Justification of Estimates for Appropriation 
Committees provides additional information regarding the impact of its 
requested budget.\51\
    Comment: One commenter indicated that sections within this document 
do not align with the latest policy updates.
    Response: ORR thanks the commenter and has included discussion of 
policy updates throughout this final rule as applicable.
    Comment: Some commenters expressed that the rule would circumvent 
accountability, provide less transparency, and harm children.
    Response: ORR thanks the commenters for their comments. ORR 
believes that codifying these requirements will provide more 
accountability and will strengthen the UC Program to better protect 
children. The NPRM notice and comment process provided additional 
transparency and provided the public an opportunity to comment on ORR's 
processes and policies.
    Comment: Many commenters expressed opposition to the rule and cited 
concerns that the proposed regulations did not do enough to prevent 
child trafficking.
    Response: ORR appreciates and shares the public's concern for the 
welfare of unaccompanied children that come through its care, as well 
as the need to mitigate and prevent human trafficking. Among other 
similar responsibilities, HHS, together with other specified agencies, 
has a duty to ``establish policies and programs to ensure that 
unaccompanied alien children in the United States are protected from 
traffickers and other persons seeking to victimize or otherwise engage 
such children in criminal, harmful, or exploitative activity. . . .'' 
\52\ Accordingly, these agencies, including ORR, have developed 
extensive policies and procedures to protect unaccompanied children and 
that are memorialized in subregulatory guidance and memoranda of 
agreement (MOA).\53\ This rule contains provisions that are consistent 
with HHS's statutory responsibilities, many of which codify and 
strengthen current policy. For example, this rule codifies ORR's 
historic practice of screening all unaccompanied children for potential 
trafficking concerns, including during intake, assessments, and sponsor 
assessments, and its use of Significant Incident Reports to report such 
concerns. The rule also codifies the requirement that ORR refer 
concerns of human trafficking to ACF's Office on Trafficking in Persons 
(OTIP) within 24 hours in accordance with reporting requirements under 
the Trafficking Victims Protection Act of 2008. OTIP reviews the 
concerns to assess whether the unaccompanied child is eligible for 
benefits and services. Concerns of human trafficking are also reported 
to OTIP by post-release service providers, the ORR National Call Center 
(NCC),

[[Page 34390]]

legal services providers, law enforcement, child welfare entities, 
healthcare providers, other child-serving agencies, and advocates.
    Under this rule, if ORR care provider staff, such as a case manager 
or clinician, suspect that a child is a victim of trafficking or is at 
risk of trafficking at any point during their interaction with an 
unaccompanied child, they must make a referral to HHS's ACF OTIP and to 
DHS's Homeland Security Investigations Division and DHS's Center for 
Countering Human Trafficking for further investigation. OTIP provides 
further assistance to ensure that victims can access appropriate care 
and services. Such care is then coordinated with ORR to provide direct 
referrals for grant-funded comprehensive case management services, 
medical services, food assistance, cash assistance, and health 
insurance tailored to the child's individual needs. While ORR does not 
retain legal custody of unaccompanied children post-release, ORR 
considers what, if any, additional action should be taken consistent 
with its legal authorities, including but not limited to: reporting the 
matter to local law enforcement; child protective services; or state 
child welfare licensing authorities; providing PRS to the released 
child and their sponsor, if the child is still under 18; requiring 
corrective action to be taken against a care provider facility to 
remedy any failure to comply with Federal and state laws and 
regulations, licensing and accreditation standards; ORR policies and 
procedures, and child welfare standards; or providing technical 
assistance to the care provider facility, as needed, to ensure that 
deficiencies are addressed.
    Comment: One commenter stated their belief that the proposed rule 
was subject to the National Environmental Policy Act (NEPA) and argued 
that ORR must conduct an environmental assessment prior to finalizing 
this rule or it will be in violation of NEPA. The commenter pointed to 
the location of a facility in a community as having an environmental 
impact.
    Response: ORR disagrees that an environmental assessment is 
necessary under NEPA for two reasons. NEPA applies when there are 
``major Federal actions significantly affecting the quality of the 
human environment.'' 42 U.S.C. 4332(C). However, in this rule, HHS is 
not taking any Federal action that would ``affect'' the quality of the 
human environment because it is essentially memorializing aspects of 
existing UC Program procedures in a regulation, rather than where they 
reside now, in a settlement agreement, statutes, and the ORR UC policy 
guide. Because the rule, as a general matter, does not materially 
change the UC Program, it does not significantly affect the quality of 
the human environment to implicate NEPA. With respect to the ``risk 
determination hearings'' described at Sec.  410.1903, ORR notes that 
those hearings already occur, but at DOJ instead of at HHS, as set 
forth in this rule.
    With respect to the creation of the Office of the Ombuds, as 
described in subpart K, HHS has determined that the Ombuds Office falls 
under a categorical exclusion as delineated in the HHS General 
Administration Manual,\54\ which describes certain categories of 
actions that do not require environmental review. Specifically, the 
Office of the Ombuds falls under Section 30-20-40(B)(2)(g), which 
excludes ``liaison functions (e.g., serving on task forces, ad hoc 
committees or representing HHS interests in specific functional areas 
in relationship with other governmental and non-governmental 
entities).'' To carry out its responsibility to confidentially and 
informally receive and investigate complaints and concerns related to 
unaccompanied children's experiences in ORR care, the Office will 
liaise with stakeholders in the UC Program, including both governmental 
and non-governmental entities, and as such it is subject to the HHS 
categorical exclusion.
    In general, HHS has determined that the rule falls under a 
categorical exclusion in section 30-20-40(B)(2)(f) of the HHS General 
Administration Manual, which provides that environment impact 
statements and environmental assessments are not required for ``grants 
for social services (e.g., support for Head Start, senior citizen 
programs or drug treatment programs) except projects involving 
construction, renovation, or changes in land use.'' The UC Program 
provides grants for social services. Although the commenter points to 
locating a facility as having environmental impact, the rule does not 
in any way address issues relating to site selection for ORR facilities 
(i.e., the rule does not describe projects involving construction, 
renovation, or changes in land use). To the extent the UC Program going 
forward may engage in such activities, ORR would engage in proper 
environmental review for each such activity. This rule, however, does 
not implicate environmental review.
    Comment: One commenter stated their belief that the proposed rule 
did not include a cost estimate or financial analysis of what the 
burden would be to American taxpayers, and stated that before the rule 
is finalized, the Office of Management and Budget should review the 
rule.
    Response: The proposed rule, and this final rule, provide a cost 
estimate in the section titled Economic Analysis. The Office of 
Management and Budget reviewed the proposed and final rules before 
publication.\55\
    Final Rule Action: ORR will finalize the majority of the proposals, 
with some changes as discussed throughout this rule.
Section 410.1000 Scope of This Part
    ORR proposed in the NPRM, at Sec.  410.1000(a), that the scope of 
this part pertain to the placement, care, and services provided to 
unaccompanied children in Federal custody by reason of their 
immigration status and referred to ORR (88 FR 68914). As described in 
section III of this final rule, ORR's care, custody, and placement of 
unaccompanied children is governed by the HSA and TVPRA, and ORR 
provides its services to unaccompanied children in accordance with the 
terms of the FSA. ORR also clarified that part 410 would not govern or 
describe the entire program. For example, part 411 (describing 
requirements related to the prevention of sexual abuse of unaccompanied 
children in ORR care) would remain in effect under this rule. ORR notes 
that its current policies and practices are described in the online ORR 
Policy Guide,\56\ Field Guidance,\57\ manuals describing compliance 
with ORR policies and procedures, and other communications from ORR to 
care provider facilities. ORR will continue to utilize these vehicles 
for its subregulatory guidance and will revise them in connection with 
publication of the final rule as needed to ensure compliance with the 
final rule. The provisions of this part would, in many cases, codify 
existing ORR policies and practices. Further, ORR will continue to 
publish subregulatory guidance as needed to clarify the application of 
these regulations.
    ORR also proposed, at Sec.  410.1000(b), that the provisions of 
this part are separate and severable from one another and that if any 
provision is stayed or determined to be invalid, the remaining 
provisions shall continue in effect (88 FR 68914). Additionally, ORR 
proposed in the NPRM at Sec.  410.1000(c) that ORR does not fund or 
operate facilities other than standard programs, restrictive placements 
(which include secure facilities, including residential treatment 
centers, and heightened supervision facilities), or EIFs, absent a

[[Page 34391]]

specific waiver as described under Sec.  410.1801(d) or such additional 
waivers as are permitted by law (88 FR 68914).
    Comment: One commenter questioned the consistency of the level of 
detail used in the NPRM, stating that some parts of the proposed 
regulation were very detailed while other requirements were more 
general. The commenter suggested that the rule should include either a 
statement of general guiding principles from which specific policy and 
operational directives will be drawn or, conversely, should include all 
specific operational directives for all requirements, thus replacing 
existing or significantly modifying the existing ORR Policy Guide.
    Response: ORR thanks the commenter for their comment. As clarified 
in the NPRM, part 410 will not govern or describe the entire program 
(88 FR 68914). Where the regulations contain less detail, subregulatory 
guidance will provide specific guidance on requirements. By keeping 
some of the requirements subregulatory, ORR will be able to make more 
frequent, iterative updates in keeping with best practices and to allow 
continued responsiveness to the needs of unaccompanied children and 
care provider facilities. The requirements codified in this rule, on 
the other hand, may in the future be amended only through future notice 
and comment rulemaking or changes in law.
    Comment: One commenter stated that while they appreciated the 
Administration's work to codify standards, they believe it is also 
important to preserve ORR's ability to nimbly respond to emerging 
issues through updates to its policy guide, as ORR did during the 
COVID-19 pandemic. The commenter recommended that ORR include language 
making it clear that nothing in the final rule precludes ORR from 
updating policy and guidance to address emergent situations while 
prioritizing the best interests of children.
    Response: ORR reiterates the clarification that part 410 will not 
govern or describe the entire program and that further guidance will be 
provided through subregulatory guidance in order to remain nimble to 
changing circumstances as the commenter suggests.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1000 as proposed.
Section 410.1001 Definitions
    ORR proposed in the NPRM, at Sec.  410.1001, to codify the 
definitions of terms that apply to this part (88 FR 68914 through 
68916). Some definitions are the same as those found in statute, or 
other authorities (e.g., the definition of ``unaccompanied child'' is 
the same as the definition of ``unaccompanied alien child'' as found in 
the HSA, 6 U.S.C. 279(g)(2)). Notably, for purposes of this rule, ORR 
updated certain terms and definitions provided in the FSA (e.g., the 
definition of ``influx''). In the NPRM, ORR provided an explanation for 
certain definitions, to further explain ORR's rationale when the rule 
applies the relevant terms. As discussed in this section, ORR is 
revising some of the proposed definitions.
    ORR proposed in the NPRM the definition of ``care provider 
facility'' to generally describe any placement type for unaccompanied 
children, except out of network (OON) placements, and as a result is 
broader than the term ``standard program,'' provided below, which, for 
example, does not include EIFs (88 FR 68914). ORR also noted that this 
definition does not reference ``facilities for children with special 
needs,'' a term used in the definition of ``licensed program'' in the 
FSA and 45 CFR 411.5. ORR considered not using the term ``facilities 
for children with special needs'' within the part for the reasons set 
forth below in this section at the proposed definition of ``standard 
program.'' Moreover, ORR considered this definition for ``care provider 
facility'' to encompass any facility in which an unaccompanied child 
may be placed while in the custody of ORR, including any facility 
exclusively serving children in need of particular services and 
treatment.
    ORR proposed in the NPRM a definition of ``disability'' that is 
distinct from the NPRM's proposed definition for a ``special needs 
unaccompanied child,'' discussed later in this section and which is 
derived specifically from the FSA (88 FR 68914). Although some 
unaccompanied children may have a disability and have special needs, 
the terms are not synonymous. For example, an unaccompanied child 
exiting ORR custody may be considered to have a disability within the 
definition set forth in section 504 even if the child does not require 
services or treatments for a mental and/or physical impairment.
    ORR proposed in the NPRM a definition of ``emergency'' that differs 
from the definition previously finalized at 45 CFR 411.5, which defines 
the term as ``a sudden, urgent, usually unexpected occurrence or 
occasion requiring immediate action'' (88 FR 68914). ``Emergency,'' for 
purposes of the proposed rule, would reflect the term's usage in the 
context of the requirements proposed in the NPRM.
    With respect to the definition of the proposed term ``EOIR 
accredited representative,'' ORR noted in the NPRM that DOJ refers to 
these individuals simply as ``accredited representatives,'' see 8 CFR 
1292.1(a)(4), but for purposes of the NPRM, ORR adopted the term ``EOIR 
accredited representative'' (88 FR 68914).
    ORR proposed in the NPRM that the definition of ``heightened 
supervision facility'' incorporate language consistent with the 
definition of ``medium secure facility'' provided in the FSA at 
paragraph 8 (88 FR 68914). This term replaces the term ``staff secure 
facility'' as used under existing ORR policies. ORR decided to change 
its terminology because it had become clear that the prior term was not 
well understood and did not effectively convey information about the 
nature of such facilities.
    ORR proposed in the NPRM that the definition of ``influx'' would 
change the threshold for declaring an influx, for ORR's purposes, from 
the FSA standard, which ORR believes is out of date considering current 
migration patterns and its organizational capacity (88 FR 68914 through 
68915). The FSA defines influx as ``those circumstances where the INS 
has, at any given time, more than 130 minors eligible for placement in 
a licensed program.'' ORR's definition, however, would not impact the 
rights, and responsibilities of other parties of the FSA. ORR believes 
that the proposed definition more appropriately reflects significantly 
changed circumstances since the inception of the FSA and provides a 
more realistic, fair, and workable threshold for implementing 
safeguards necessary in cases where a high percentage of ORR's bed 
capacity is in use. The 1997 standard of 130 minors awaiting placement 
does not reflect the realities of unaccompanied children referrals in 
the past decade, in which the number of unaccompanied children 
referrals each day typically exceeds, and sometimes greatly exceeds, 
130 children. To leave this standard as the definition of influx would 
mean, in effect, that the program is always in influx status. 
Accordingly, ORR provided a more realistic and workable threshold for 
implementing safeguards necessary in cases where a high percentage of 
ORR bed capacity is in use.
    With respect to the definition of ``post-release services,'' ORR 
noted in the NPRM that assistance linking families to educational 
resources may include but is not limited to, in appropriate 
circumstances, assisting with school enrollment; requesting an English 
language proficiency assessment; seeking an evaluation to determine 
whether the child is eligible

[[Page 34392]]

for a free appropriate public education (which can include special 
education and related services) or reasonable modifications and 
auxiliary aids and services under the Individuals with Disabilities 
Education Act or section 504; and monitoring the unaccompanied child's 
attendance and progress in school (88 FR 68915). ORR noted that while 
the TVPRA requires that follow-up services must be provided during the 
pendency of removal proceedings in cases in which a home study 
occurred, the nature and extent of those services would be subject to 
available resources.
    ORR noted, in the NPRM, with respect to the proposed definition of 
``runaway risk,'' the FSA and ORR policy currently use the term 
``escape risk'' (88 FR 68915). See FSA paragraph 22 (defining ``escape 
risk'' as ``a serious risk that the minor will attempt to escape from 
custody,'' and providing a non-exhaustive list of factors ORR may 
consider when determining whether an unaccompanied child is an escape 
risk--e.g., whether the unaccompanied child is currently under a final 
order of removal, the unaccompanied child's immigration history, and 
whether the unaccompanied child has previously absconded or attempted 
to abscond from Government custody). ORR proposed in the NPRM to update 
this term to ``runaway risk,'' which is a term used by state child 
welfare agencies and Federal agencies to describe children at risk from 
running away from home or their care setting (88 FR 68915). Rather than 
basing its determination of runaway risk solely on the factors 
described in the FSA, ORR proposed in the NPRM that such determinations 
must be made in view of a totality of the circumstances and should not 
be based solely on a past attempt to run away. This definition of 
runaway risk is consistent with how the term is used in the FSA to 
describe escape from ORR care, i.e., from a care provider facility. ORR 
noted throughout the proposed rule that the TVPRA uses the term ``risk 
of flight,'' stating HHS ``may'' consider ``risk of flight,'' among 
other factors, when making placement determinations.\58\ ORR 
understands that in the immigration law context, ``risk of flight'' 
refers to an individual's risk of not appearing for their immigration 
proceedings.\59\ ORR proposed in the NPRM, with respect to its 
responsibilities toward unaccompanied children in its custody, to 
interpret ``risk of flight'' as including ``runaway risk,'' thereby 
adding runaway risk to the list of factors it would consider in making 
placement determinations. Runaway risk often overlaps with concern that 
an unaccompanied child may not appear for the child's immigration 
proceedings. ORR also noted that runaway risk may also relate to 
potential danger to self or the community, given the inherent risks to 
unaccompanied children who run away from custody (88 FR 68915).
    With respect to the proposed definition of ``secure facility,'' ORR 
noted that the FSA uses but does not provide a definition for this term 
(88 FR 68915). Nevertheless, the proposed definition is consistent with 
the provisions of the FSA that apply to secure facilities. ORR also 
noted that the proposed definition differs from the definition in the 
2019 Final Rule, which could have been read to indicate that any 
contract or cooperative agreement for a facility with separate 
accommodations for minors is a secure facility. Such a definition risks 
erroneously confusing other types of ORR placements that are not secure 
with secure placements and, therefore, ORR proposed in the NPRM an 
updated definition in the NPRM.
    ORR proposed in the NPRM to change the definition of ``special 
needs unaccompanied child,'' to the term ``special needs minor'' as 
described within the FSA at paragraph 7 and by using the phrase 
``intellectual or developmental disability'' instead of ``mental 
illness or retardation'' as used in the FSA (88 FR 68915). ORR 
understands that this update reflects current terminology which has 
superseded the terminology used in the FSA (``retardation''). Although 
an unaccompanied child with a disability, as defined in this section, 
could also be a ``special needs unaccompanied child'' as incorporated 
here, the definition of disability is broader and thus the terms are 
not synonymous. To further this clarification, ORR proposed in the NPRM 
a separate definition for disability earlier in this section that 
incorporates the meaning of the term across applicable governing 
statutory authorities. ORR also considered not defining and not using 
the term ``special needs unaccompanied child'' within the part for the 
reasons set forth below at proposed Sec. Sec.  410.1103 and 410.1106.
    ORR proposed in the NPRM a definition of ``standard program'' that 
reflects and updates the term ``licensed program'' at paragraph 6 of 
the FSA (88 FR 68915 through 68916). The FSA does not discuss 
situations where States discontinue licensing, or exempt from 
licensing, childcare facilities that contract with the Federal 
Government to care for unaccompanied children because such facilities 
provide shelter and services to unaccompanied children as has happened 
recently in some States.\60\ ORR proposed in the NPRM a definition of 
``standard program'' that is broader in scope to account for 
circumstances wherein licensure is unavailable in the State to programs 
that provide residential, group, or home care services for dependent 
children when those programs are serving unaccompanied children. ORR 
notes that most States where ORR has care provider facilities have not 
taken such actions, and that wherever possible standard programs would 
continue to be licensed consistent with current practice under the FSA. 
However, ORR considered substituting the term ``licensed program'' with 
the proposed updated term ``standard program'' in order to establish 
that the requirement that facilities in those States must still meet 
minimum standards, consistent with requirements for licensed facilities 
expressed in the FSA at Exhibit 1, in any circumstance in which a State 
will not license a facility because the facility is housing 
unaccompanied children.\61\ ORR solicited comments on using the 
proposed definition of ``standard program'' in lieu of the term 
``licensed program.''
    ORR proposed in the NPRM a definition for ``standard program'' to 
encompass any program operating non-secure facilities that provide 
services to unaccompanied children in need of particular services and 
treatment or to children with particular mental or physical conditions 
(88 FR 68916). Given this, ORR believed the continued use of language 
such as ``facilities for children with special needs'' and ``facilities 
for special needs minors,'' as used in the FSA definition of ``licensed 
program,'' was unnecessary for this regulation, and potentially 
problematic for reasons discussed elsewhere within this section and at 
proposed Sec. Sec.  410.1103 and 410.1106. ORR included this language 
to ensure consistency with the FSA, but it considered not using the 
term ``special needs unaccompanied child'' or specifying that 
facilities for special needs unaccompanied children operated by a 
standard program are covered by the requirements that apply to standard 
programs in the part. Therefore, ORR also solicited comments in this 
section on its proposal to not include in the definition of ``standard 
program'' the FSA terminology used in the term ``licensed program'' 
referencing facilities for special needs unaccompanied children or a 
facility for special needs unaccompanied children.
    ORR proposed in the NPRM to define ``trauma bond'' consistent with 
how the Department of State's Office to Monitor and Combat Trafficking 
in Persons defines the term in its factsheet, Trauma

[[Page 34393]]

Bonding in Human Trafficking (88 FR 68916).\62\
    ORR proposed in the NPRM to define ``trauma-informed,'' based upon 
its belief that a trauma-informed approach to the care and placement of 
unaccompanied children is essential to ensuring that the interests of 
children are considered in decisions and actions relating to their care 
and custody (88 FR 68916).\63\ ORR interprets trauma-informed system, 
standard, process, or practices consistent with the 6 Guidelines To A 
Trauma-Informed Approach adopted by the Centers for Disease Control and 
Prevention (CDC) and developed by the Substance Abuse and Mental Health 
Services Administration (SAMHSA).
    ORR received comments on the following definitions.
Attorney of Record
    Comment: One commenter recommended changes to the definition of 
``attorney of record.'' The commenter recommended that ORR revise the 
definition to specifically define an ``attorney'' as ``an individual 
licensed to practice law in any U.S. jurisdiction'' but then make clear 
that non-attorneys may represent a child in their immigration 
proceedings. The commenter also urged ORR to remove reference to the 
requirement that an attorney ``protects [unaccompanied children] from 
mistreatment, exploitation, and trafficking, consistent with 8 U.S.C. 
1232(c)(5),'' explaining that the statute cited requires that HHS 
ensure counsel because that will protect unaccompanied children from 
mistreatment, exploitation, and trafficking, but not that counsel is 
required to protect the child. The commenter continued, that although 
in many instances having counsel will ensure a child's protection, the 
duty to protect, as outlined in the proposed definition, may conflict 
with an attorney's duty to represent the child's expressed interests as 
required by the rules of professional conduct.
    Response: ORR thanks the commenter. The definition of attorney of 
record states that the attorney represents the unaccompanied child in 
legal proceedings, so ORR does not think it is necessary to also 
indicate that the attorney is licensed for such representation. ORR 
does agree with the commenter that the addition of the referenced 
language from the TVPRA improperly implies that the attorney is 
required to protect the child and that it should remove that language 
from the definition.
    Final Rule Action: ORR is revising the proposed definition of 
``attorney of record'' to remove the phrase ``and protects them from 
mistreatment, exploitation, and trafficking, consistent with 8 U.S.C. 
1232(c)(5).''
Best Interest
    Comment: Many commenters commented on the definition of ``best 
interest.'' Commenters recommended expanding the definition of ``best 
interest'' to more explicitly address the following factors: the impact 
of family relationships and importance of family integrity, the impact 
of Federal custody on an unaccompanied child's well-being, their 
safety, and their identity including their race, religion, ethnicity, 
sexual orientation, and gender identity.
    Response: ORR thanks the commenters. ORR notes that the rule 
provides a non-exhaustive list of factors ORR may consider in 
evaluating what is in a child's best interest. ORR understands the 
listed factors to already encompass additional factors suggested by the 
commenters. Further, ORR notes that some of the factors recommended by 
commenters are also already provided as considerations for placement 
under Sec.  410.1103. Having said that, ORR will further consider 
whether to expand on the definition of best interest in future 
policymaking.
    Final Rule Action: ORR is finalizing the definition of ``best 
interest'' as proposed.
Care Provider Facility
    Comment: One commenter supported the proposed term ``care provider 
facility,'' stating that by making it broader than ``standard 
program,'' it will help clarify the meaning of influx or emergency 
facilities. Another commenter recommended that the definition of ``care 
provider facility'' meet the definition of ``child care institution'' 
at section 472(c)(2)(A) of the Social Security Act in order to align 
all institutions and facilities serving vulnerable children residing 
within and across states, including but not limited to unaccompanied 
children.
    Response: ORR thanks the commenter for their support. Regarding the 
definition in the Social Security Act, section 472(c)(2)(A) defines 
``child care institution'' as ``a private child-care institution, or a 
public childcare institution which accommodates no more than 25 
children, which is licensed by the State in which it is situated or has 
been approved by the agency of the State responsible for licensing or 
approval of institutions of this type as meeting the standards 
established for the licensing.'' Although ORR appreciates the comment, 
section 472 of the Social Security Act is specific to State payments to 
foster care programs and does not govern the ORR UC Program. Although 
ORR strives to place children in care settings with small numbers of 
children, it is not always possible to do so. Additionally, ORR has 
further requirements that care provider facilities must meet in 
addition to those relating to State licensing.
    Final Rule Action: ORR is finalizing the term care provider 
facility as follows: Care provider facility means any physical site, 
including an individual family home, that houses one or more 
unaccompanied children in ORR custody and is operated by an ORR-funded 
program that provides residential services for unaccompanied children. 
Out of network (OON) placements are not included within this 
definition.
Case File
    Comment: One commenter supported the inclusion of home study and 
PRS records as part of the case file definition and, by so doing, 
including such records as protected information, agreeing that 
unaccompanied children's case files and related information should 
receive strong safeguards from unauthorized access, misuse, and 
inappropriate disclosure. However, the commenter requested clarity 
regarding the meaning of ``correspondence'' within the definition, 
asking if it was meant to cover a limited set of materials regarding 
the child's unification, such as any correspondence with parents and 
sponsors done by ORR staff or provider case managers. The commenter 
expressed concern that this is not consistent with the other use of 
``correspondence'' in the NPRM at Sec.  410.1304(a)(2)(ii), where the 
word ``correspondence'' appears to be meant to include personal 
correspondence between the unaccompanied child and whomever the child 
wishes to correspond with, including a friend, relative, parent, 
attorney, or child advocate. Such materials should be the child's 
personal property and not the property of ORR.
    Response: ORR thanks the commenter. ORR notes that the definition 
of case file is ``the physical and electronic records for each 
unaccompanied child that are pertinent to the care and placement of the 
child.'' Accordingly, personal correspondence that is not pertinent to 
the care and placement of the child would not be part of the case file. 
However, for the sake of clarity, ORR will revise the proposed 
definition to state that the case file includes ``correspondence 
regarding the child's case.''

[[Page 34394]]

    Comment: One commenter did not support the statement within the 
proposed definition of case file that ``[t]he records of unaccompanied 
children are the property of ORR.'' The commenter acknowledged the 
importance of strong, universal standards governing children's records 
in order to consistently protect the confidentiality of their 
Personally Identifiable Information (PII) but stated that the ownership 
of children's records is a more complicated issue. The commenter 
stated, as an example, that when a child brings documents such as a 
birth certificate into custody, the Federal Government holds that 
document, but does not own it. The commenter stated that the birth 
certificate belongs to the child and the child's parent and legal 
guardian, and the document and its content can be shared with the 
child's or parent's consent.
    Response: ORR notes that, consistent with UC Program's System of 
Records Notice (SORN), unaccompanied children have access to, and are 
entitled to copies of, their own case file records, consistent with the 
provisions of the Privacy Act, codified at 5 U.S.C. 552a.\64\ An 
unaccompanied child's attorney of record also has the ability to 
request the child's full case file at any time. With respect to 
original documents such as a child's birth certificate, ORR notes that 
it is amending the definition of ``case file'' to note that it includes 
``copies of'' birth and marriage certificates.
    Final Rule Action: ORR is revising the proposed definition to add 
that case file materials include ``but are not limited to'' the 
materials listed in the definition. ORR is also adding the phrase 
``regarding the child's case'' after ``correspondence.'' ORR is also 
adding ``copies of'' before birth and marriage certificates. 
Additionally, in order to be consistent with finalized Sec.  
410.1303(h)(2), ORR is adding ``except for program administration 
purposes'' at the end of the definition. ORR is otherwise finalizing 
the definition as proposed.
Close Relative
    Final Rule Action: As discussed in Sec.  410.1205, ORR is 
finalizing the definition of ``close relative'' as a type of potential 
sponsor, as follows: ``Close relative means a brother, sister, 
grandparent, aunt, uncle, first cousin, or other immediate biological 
relative, or immediate relative through legal marriage or adoption, and 
half-sibling.''
Community-Based-Care
    Comment: One commenter did not support the proposed definition of 
community-based care, believing that it is overly broad. The commenter 
recommended retaining ``traditional foster care'' instead.
    Response: ORR thanks the commenter for their comment. ORR notes 
that it is planning to transition to a community-based care model that 
will restructure ORR's existing transitional foster care and long-term 
foster care programs to operate within a continuum of care including 
basic and therapeutic foster family settings as well as supervised 
independent living group home settings, to more effectively place and 
support children in non-congregate settings. However, ORR plans to 
describe this transition in future policymaking, and therefore is not 
finalizing the term ``community-based care'' in this rule. ORR will 
consider this commenter's feedback as it continues transitioning to 
this model. Additional details and responses to public comments on 
community-based care are described in subpart B.
    Final Rule Action: ORR is not finalizing codification of the 
definition for the term ``community-based care,'' though ORR has sought 
to provide further details relating to the broad standards applicable 
to the term in subpart B.
Disposition
    Comment: One commenter stated that the proposed rule uses the term 
``disposition'' as a term of art but does not define what disposition 
signifies, includes, or excludes.
    Response: The term ``disposition'' appears three times in the 
regulation, twice as ``case disposition'' and once as the ``disposition 
of any actions in which the unaccompanied child is the subject.'' ORR 
believes that the meaning of disposition is clear in context and so the 
term does not necessitate a definition.
    Final Rule Action: ORR is not finalizing a definition for 
``disposition.''
Executive Office for Immigration Review (EOIR) Accredited 
Representative
    Comment: One commenter recommended that ORR change the term ``EOIR 
accredited representative'' to ``DOJ accredited representative,'' 
stating that the term is commonly referred to as ``DOJ accredited 
representative'' and that adopting a different term in these proposed 
regulations will cause unnecessary confusion and be inconsistent with 
how representatives are referred to elsewhere.
    Response: ORR thanks the commenter and agrees to revise the term to 
``DOJ Accredited Representative.'' ORR is updating this term throughout 
the rest of this final rule, even where summarizing NPRM language which 
used the term ``EOIR accredited representative.''
    Final Rule Action: ORR is revising the term to ``DOJ Accredited 
Representative'' and otherwise finalizing the definition of such term 
as proposed.
Emergency
    Comment: Some commenters did not support the proposed definition of 
``emergency,'' believing that it relaxes standards and changes a 
commonly understood term.
    Response: The FSA defines emergency, for purposes of paragraph 12 
of the FSA, as ``an act or event that prevents the placement of minors 
pursuant to paragraph 19 within the timeframe provided.'' In turn, 
paragraph 19 of the FSA describes the requirement to place 
unaccompanied children in licensed programs until they can be released 
to a sponsor--``provided, however, that in the event of an emergency a 
licensed program may transfer temporary physical custody of a minor 
prior to securing permission from the INS but shall notify the INS of 
the transfer as soon as is practicable thereafter, but in all cases 
within 8 hours.'' The FSA states at paragraph 12B that emergencies 
include ``natural disasters (e.g., earthquakes, hurricanes, etc.), 
facility fires, civil disturbances and medical emergencies (e.g., a 
chicken pox epidemic among a group of minors).'' In the NPRM, ORR 
proposed to define ``emergency'' as ``an act or event (including, but 
not limited to, a natural disaster, facility fire, civil disturbance, 
or medical or public health concerns at one or more facilities) that 
prevents timely transport or placement of unaccompanied children, or 
impacts other conditions provided by this part (88 FR 68979). ORR is 
therefore codifying the term emergency as used in the FSA.
    Final Rule Action: ORR is finalizing the term ``emergency'' as 
proposed.
Emergency or Influx Facility (EIF)
    Comment: One commenter expressed concern that the proposed rule 
defined emergency or influx facility as ``a type of care provider 
facility that opens temporarily to provide shelter and services for 
unaccompanied children'' but does not define temporary. Another 
commenter urged ORR to incorporate additional language that unlicensed 
placements, such as emergency and influx sites, should only be utilized 
as a last resort.

[[Page 34395]]

    Response: As stated in the NPRM, ORR has a strong preference to 
house unaccompanied children in standard programs (88 FR 68955). 
However, ORR notes that in times of emergency or influx, additional 
facilities may be needed on short notice to house unaccompanied 
children. Consistent with current policy, ORR intends that under this 
rule it will cease placements at EIFs if net bed capacity of ORR's 
standard programs that is occupied or held for placement of 
unaccompanied children drops below 85 percent for a period of at least 
seven consecutive days.
    Final Rule Action: For consistency and clarity, ORR is replacing 
the proposed second sentence of the definition, which read ``These 
facilities are not otherwise categorized as a standard or secure 
facility in this part'' with ``An EIF is not defined as a standard 
program, shelter, or secure facility under this part.'' ORR is also 
replacing the phrase ``they may not be licensed'' with ``they may be 
unlicensed'' to remove any possible implication that they are not 
allowed to be licensed. ORR is otherwise finalizing the term 
``emergency or influx facility (EIF)'' as proposed.
Family Planning Services
    Comment: A few commenters suggested that ORR amend the list of 
family planning services to include abortion, arguing that abortion 
should be included in the definition of family planning services to 
avoid stigmatizing abortion.
    Response: ORR thanks the commenters for their comments. ORR notes 
that its proposed definition of ``family planning services'' is 
consistent with other HHS regulations and publications.\65\ As noted in 
the NPRM, ORR has included abortion in the definition of medical 
services requiring heightened ORR involvement (88 FR 68979). One 
commenter suggested revising the definition by updating ``pregnancy 
testing and counseling'' in the list of family planning services to 
``pregnancy testing and non-directive pregnancy counseling.'' ORR 
accepts the recommendation to update ``counseling'' to ``non-directive 
options counseling'' in the definition of Family Planning Services in 
the regulatory text, as it aligns with ORR's intended meaning and 
aligns with corresponding language in Field Guidance #21.
    Final Rule Action: ORR is adding the phrase ``non-directive 
options'' before ``counseling'' and otherwise, finalizing the term 
``Family Planning Services'' as proposed.
Heightened Supervision Facility
    Comment: One commenter supported the inclusion in the term's 
definition that ``heightened supervision facilities'' ``provide 
supports'' to children with higher needs. The commenter encouraged ORR 
to eliminate the definition's focus on security and replace text with 
reference to additional personalized and intensive service provision.
    Response: ORR thanks the commenter for their comment. ORR notes 
that the definition merely defines the facility and how it differs from 
a shelter facility. Heightened supervision facilities are required to 
meet the minimum standards for standard programs. ORR notes that it is 
important to describe the level of restriction at these facilities 
because certain requirements need to be met for children to be placed 
in heightened supervision facilities under subpart B and children have 
a right to review placement in these facilities under subpart J.
    Final Rule Action: As further discussed at the preamble text for 
Sec.  410.1302, ORR is adding the phrase ``or that meets the 
requirements of State licensing that would otherwise be applicable if 
it is in a State that does not allow state licensing of programs 
providing care and services to unaccompanied children,'' after 
``licensed by an appropriate State agency.''
Influx
    Comment: Many commenters supported the proposed definition of 
``influx,'' noting that the updated definition is more realistic in 
light of recent immigration trends and would reduce the placement of 
unaccompanied children in emergency facilities. One commenter 
recommended that the definition be amended to account for the 
trajectory of incoming unaccompanied children to reach or exceed 85 
percent of bed capacity within 30 days in order to trigger EIFs from 
cold to warm status.
    Response: ORR thanks the commenters. ORR intends through this final 
rule to update the FSA definition of influx to account for current 
circumstances at the southern border. However, because migration 
patterns are unpredictable, ORR believes it is appropriate to maintain 
subregulatory procedures with respect to preparing for the use of EIFs, 
based on the definition of influx codified in this rule.
    Comment: One commenter supported ORR's proposal to adopt a 
definition of ``influx'' that differs from the FSA, agreeing that the 
FSA standard set forth in 1997 does not reflect the realities of 
unaccompanied children awaiting placement that have been experienced in 
the last decade. However, the commenter expressed their view that ORR 
has consistently underutilized available licensed beds in its network 
and placed unaccompanied children in active influx care facilities when 
licensed facilities were available. The commenter stated further their 
concern that the proposed definition would have an influx hinge 
entirely on ORR's network capacity, as opposed to the actual numbers of 
unaccompanied children entering the agency's care. Another commenter 
requested clarification regarding the safeguards referenced in the 
definition of influx.
    Response: ORR thanks the commenters. ORR appreciates the 
commenter's concern about basing the definition of influx on the net 
bed capacity of standard programs, however basing it on numbers of 
unaccompanied children proved insufficient as migration numbers greatly 
increased and the static number became outdated. The original intent of 
the FSA definition was to identify circumstances in which there is a 
sudden need to expand capacity and not sufficient time to use the 
ordinary supply-building process. Looking at referrals in relation to 
current net bed capacity of ORR's standard programs that is occupied or 
held for placement of unaccompanied children is a better way to reflect 
that need and sets the definition of influx at a level vastly higher 
than what would have been required had ORR maintained the FSA 
definition. ORR also notes that standard capacity beds may be 
unavailable for a variety of reasons including staffing shortages; 
licensing restrictions on age, gender, or ratios; or building issues 
(e.g., water leaks) that prevent the safe placement of children. These 
causes of unavailability are not controlled by ORR, but are examples of 
issues that may restrict ORR's access to standard beds in its network 
of care on a given day. ORR will continue to monitor the numbers of 
unaccompanied children and the number of available standard placements 
to determine if further updates are needed in the future.
    Final Rule Action: ORR is replacing the term ``for purposes of this 
part'' with ``for purposes of HHS operations'' and otherwise finalizing 
the definition of ``influx'' as proposed.
Least Restrictive Placement
    Comment: One commenter expressed concern that ``least restrictive 
placement'' is not defined, and that it may be inferred that the least 
restrictive placement is by default, anything that is

[[Page 34396]]

not a ``restrictive placement,'' which is defined. The commenter 
expressed concern that the proposed regulations do not recognize the 
commenter's belief that some non-restrictive placements are more 
restrictive than other non-restrictive placements.
    Response: ORR notes that it intends the term ``least restrictive 
placement'' be read consistent with the TVPRA requirement that 
unaccompanied children in the custody of HHS be ``promptly placed in 
the least restrictive setting that is in the best interest of the 
child,'' and that in making such placements HHS ``may consider danger 
to self, danger to the community, and risk of flight,'' among other 
requirements. 8 U.S.C. 1232(c)(2)(A).
    Final Rule Action: ORR is not adopting a definition of ``least 
restrictive placement.''
LGBTQI+
    Comment: A few commenters recommended expanding the definition of 
LGBTQI+, which the NPRM defined as meaning ``lesbian, gay, bisexual, 
transgender, queer or questioning, intersex,'' to include an 
explanation of the ``+'' symbol. The commenters stated their belief 
that expanding the definition would make the definition more complete 
and would better encompass the many other identities that make up the 
LGBTQI+ community.
    Response: ORR thanks the commenters. ORR appreciates that the term 
LGBTQI+ is an umbrella term that is broader than the term LGBTQI, and 
accordingly has revised the regulatory definition to say that the term 
``includes'' lesbian, gay, bisexual, transgender, questioning or 
intersex, as defined at 45 CFR 411.5. This change helps to make clear 
that the term LGBTQI+ includes additional identities such as non-
binary.
    Final Rule Action: ORR is revising the definition to replace 
``means'' with ``includes'' and is otherwise finalizing the definition 
of LGBTQI+ as proposed.
Mechanical Restraints
    Final Rule Action: For the reasons discussed in the preamble 
discussion of Sec.  410.1304(e)(1), ORR is clarifying the definition of 
mechanical restraints by adding a second sentence to the definition, as 
follows: ``For purposes of the Unaccompanied Children Program, 
mechanical restraints are prohibited across all care provider types 
except in secure facilities, where they are permitted only as 
consistent with State licensure requirements.'' ORR is otherwise 
finalizing the definition as proposed.
Medical Services Requiring Heightened ORR Involvement
    Comment: A few commenters recommended that ORR revise the 
definition of medical services requiring heightened ORR involvement to 
clarify that the heightened involvement is only to ensure quick 
transportation or transfer for abortion, as needed, and not to create 
obstacles to impede access to abortion.
    Response: ORR acknowledges the importance of not creating obstacles 
to needed medical services, including but not limited to abortion, but 
does not believe that the definition of medical services requiring 
heightened ORR involvement needs to be modified in order to make this 
point clear. ORR is revising Sec.  410.1307 to further clarify that ORR 
will not prevent unaccompanied children in ORR care from accessing 
healthcare services, including medical services requiring heightened 
ORR involvement and family planning services, and ORR must make 
reasonable efforts to facilitate access to those services if requested 
by the unaccompanied child.
    Final Rule Action: ORR is finalizing the definition of ``medical 
services requiring heightened ORR involvement'' as proposed.
ORR Long-Term Home Care
    Comment: One commenter stated they had no objection to the proposed 
change from ``long-term foster care'' to ``long-term home care.'' 
Another commenter suggested that the definition of ``ORR long-term home 
care'' be clarified to indicate whether children need to have viable 
legal cases in the particular State to be placed in that program versus 
the ``legal proceedings'' that all children in ORR care are in.
    Response: ORR thanks the commenters. Part of the proposed 
definition reads that ``[a]n unaccompanied child may be placed in long-
term home care if ORR is unable to identify an appropriate sponsor with 
whom to place the unaccompanied child during the pendency of their 
legal proceedings.'' ORR clarifies that the legal proceedings 
referenced are immigration legal proceedings and is amending the 
definition accordingly.
    Final Rule Action: ORR is adding the word ``immigration'' before 
``legal proceedings'' and is otherwise finalizing the definition of 
``ORR long-term home care'' as proposed.
Out of Network (OON) Placement
    Comment: Some commenters expressed concern that OON facilities were 
excluded from the definition of care provider facility and that the 
definition of OON placements does not require they are State licensed 
or follow the requirements of a standard program. Commenters requested 
clarification regarding standards applicable to OON placements. One 
commenter recommended that the definition of OON placement be revised 
to state that during an OON placement, the responsibility for reporting 
incidents related to the child, assessments, and ongoing case 
management would remain with the care provider facility.
    Response: In response to the comments, ORR is adding to the 
definition of OON placement that OON placements are ``licensed by an 
appropriate State agency.'' ORR will vet the program to ensure that the 
program is in good standing with State licensing and is complying with 
all applicable State child welfare laws and regulations and all State 
and local building, fire, health, and safety codes. ORR further 
reiterates that an unaccompanied child may only be placed at an OON 
placement when such placement would be in the unaccompanied child's 
best interest. As stated in the NPRM, consistent with existing 
policies, in these circumstances, even though an unaccompanied child 
would be physically located at an OON placement, the unaccompanied 
child would remain in ORR legal custody (88 FR 68924). ORR also 
clarifies that an OON placement is not defined as a standard program 
under this part. However, as provided under ORR policy, the 
unaccompanied child's case manager would monitor the unaccompanied 
child's progress and ensure the unaccompanied child is receiving 
services.
    Final Rule Action: ORR is adding the phrase ``that is licensed by 
an appropriate State agency'' after ``means a facility'' to the 
definition of out of network placement. ORR is also stating that such a 
placement is not defined as a standard program under this part. ORR is 
otherwise finalizing the definition as proposed.
Placement Review Panel
    Comment: One commenter suggested revising the definition of 
``placement review panel (PRP)'' to include additional information 
regarding timeframes for decision and specificity regarding the term 
``ORR Senior Level Career Staff'' by including the job title or 
designation.
    Response: ORR thanks the commenter for their feedback. Requirements 
for the PRP are addressed by ORR under Sec.  410.1902, rather than in 
the definition of the PRP. ORR clarifies that ``ORR

[[Page 34397]]

Senior Level Career Staff'' means ORR staff at a senior level or above 
that is not politically appointed.
    Final Rule Action: ORR is finalizing the definition of ``placement 
review panel'' as proposed.
Qualified Interpreter
    Comment: One commenter suggested that the definition of a 
``qualified interpreter'' for an individual with a disability be 
modified to include adherence to generally accepted ethics principles, 
including client confidentiality, to make it clear that individuals 
with disabilities are entitled to the same confidentiality and ethical 
protections as limited English proficient individuals.
    Response: ORR thanks the commenter for catching a drafting error. 
ORR will restructure the proposed paragraph, moving former subparagraph 
(2)(iii) to become new paragraph (3), so that the ethical protections 
provision applies to the overall definition of ``qualified 
interpreter.''
    Comment: One commenter suggested that the definition of ``qualified 
interpreter'' requires that interpreters are not only proficient in the 
language but also culturally competent.
    Response: ORR thanks the commenter but notes that the definition of 
qualified interpreter for a limited English proficient individual 
includes a requirement that the interpreter be able to interpret 
``effectively, accurately, and impartially to and from such language(s) 
and English, using any necessary specialized vocabulary or terms 
without changes, omissions, or additions and while preserving the tone, 
sentiment, and emotional level of the original oral statement.'' This 
definition is consistent with another HHS regulation \66\ and captures 
a requirement that the interpreter understand the cultural nuances of 
the language.
    Final Rule Action: ORR is revising the proposed definition to move 
former subparagraph (2)(iii) to become new paragraph (3) such that the 
requirement to adhere to generally accepted interpreter ethics 
principles, including client confidentiality applies to both qualified 
interpreters for an individual with a disability and for a limited 
English proficient individual. ORR is finalizing the rest of the 
definition as proposed.
Runaway Risk
    Comment: One commenter supported the proposed definition of 
``runaway risk,'' noting that it is consistent with the FSA. The 
commenter also supported the proposed rule's clarification that this 
determination must consider the totality of the circumstances. Another 
commenter also supported replacing the term ``escape risk'' with a term 
such as ``child at risk of running away,'' stating that other terms are 
used in criminal or enforcement settings and are not appropriate to use 
in a child welfare setting.
    Response: ORR thanks the commenters for their support for not using 
the term ``escape risk'' and instead using a term that relates to 
runaway risk, given that escape risk is relevant to a criminal setting. 
ORR notes that the definition of runaway risk requires a finding that 
it is ``highly probable or reasonably certain'' that a child will 
attempt to abscond from ORR care, whereas the FSA defines ``escape 
risk'' as meaning there is a ``serious risk'' that a minor will attempt 
to escape from custody. Per Sec.  410.1105(b)(2)(ii) of this final 
rule, one of the factors ORR may consider for placement of children in 
heightened supervision facilities is whether a child is a runaway risk. 
Because a determination that a child is a runaway risk can result in 
their placement into a restrictive placement, ORR intends through this 
updated language to establish a clearer and higher standard than 
required by the FSA to determine such risk.
    Comment: One commenter did not support the proposal to replace the 
term ``escape risk'' with ``runaway risk'' stating their belief that it 
was not consistent with the FSA because the FSA requires that a prior 
escape from custody lead to a more restrictive placement, while the 
proposed rule allows ORR to disregard that factor in determining 
whether an unaccompanied child is a runaway risk.
    Response: ORR disagrees with the commenter that the proposal is 
inconsistent with the FSA. Section 410.1003(f) states that ORR will 
consider runaway risk in making placement determinations. The 
definition of runaway risk states that a prior attempt to run away 
cannot be the sole consideration but does not require ORR to disregard 
this factor in determining runaway risk. As finalized at Sec.  
410.1107(b), ORR considers whether a child has previously absconded or 
attempted to abscond from State or Federal custody when determining, in 
view of the totality of the circumstances, whether a child is a runaway 
risk for purposes of placement decisions.
    Final Rule Action: ORR is finalizing the term ``runaway risk'' as 
proposed.
Seclusion
    Comment: A few commenters asked for additional clarity in the 
definition of ``seclusion'' concerning what seclusion involves and how 
it works in practice.
    Response: ORR emphasizes, as established at Sec.  410.1304(c), that 
seclusion is prohibited at standard programs and RTCs, and as 
established at Sec.  410.1304(e)(1), that seclusion is permitted at 
non-RTC secure facilities only in emergency safety situations. Further, 
ORR notes that, consistent with current policies, seclusion is 
permitted only after all other de-escalation strategies and less 
restrictive approaches have been attempted and failed; must involve 
continued monitoring or supervision by staff throughout the seclusion 
period; must never be used as a means of coercion, discipline, 
convenience, or retaliation; must be performed in a manner that is 
safe, proportionate, and appropriate to the severity of the underlying 
emergency risk to the safety of others necessitating the seclusion; 
must be appropriate and proportionate to the child's chronological and 
developmental age, size, gender, as well as physical, medical, and 
psychiatric condition, and personal history; must be utilized in the 
most child-friendly, trauma-informed way possible; and must only be 
utilized for the short amount of time needed to ameliorate the 
underlying emergency risk to the safety of others.
    Final Rule Action: ORR is updating the definition of ``seclusion'' 
by adding ``is instructed not to leave or'' before ``is physically 
prevented from leaving'' while otherwise finalizing the definition as 
proposed.
Secure Facility
    Comment: Some commenters did not support that the definition of 
``secure facility'' states that secure facilities do not need to comply 
with the requirements for minimum standards of care and services 
applicable to all other standard programs under Sec.  410.1302. The 
commenters stated their belief that exempting children in secure 
facilities from the right to receive the minimum standards of care 
afforded to children in all other placement types is unwarranted and 
would formalize differential treatment of children as to their basic 
needs. Some commenters encouraged ORR to eliminate the use of secure 
detention, with one commenter stating their belief that placement in 
secure facilities is out of step with ORR's mandate and inappropriate 
for any child not placed there under the authority of a juvenile court 
judge. That commenter recommended that ORR be explicit in the 
definition of and criteria for placement in secure facilities.
    Response: ORR is revising its proposed regulation text to remove 
the

[[Page 34398]]

statement that a secure facility ``does not need to meet the 
requirements of Sec.  410.1302.'' As discussed in the responses to 
comments in Sec. Sec.  410.1301 and 410.1302, ORR is finalizing Sec.  
410.1302 such that the requirements of that section apply to secure 
facilities. ORR notes that this is consistent with current and historic 
practice, whereby ORR has required secure facilities to comply with FSA 
Exhibit 1 requirements even though the FSA itself does not require 
that. And as a practical matter, ORR currently has no secure facilities 
in its network of care provider facilities. As a result, ORR does not 
anticipate that this revision will implicate any reliance interests. 
Additionally, in response to commenters' concerns about the use of 
secure detention facilities, ORR is revising the definition to remove 
the explicit mention of ``a secure ORR detention facility, or a State 
or county juvenile detention facility''.
    Final Rule Action: ORR is revising the definition of ``secure 
facility'' to remove the phrases ``a secure ORR detention facility, or 
a State or county juvenile detention facility'' and ``does not need to 
meet the requirements of Sec.  410.1302.'' ORR is otherwise finalizing 
the definition as proposed.
Significant Incidents
    Comment: One commenter stated that significant changes were made to 
reporting of significant incidents in policy updates in 2022 and 2023 
and suggested that these changes should be incorporated into the final 
rule.
    Response: ORR thanks the commenter. In the NPRM, ORR incorrectly 
included ``pregnancy'' in the list of significant incidents. Pregnancy 
is no longer reported as a significant incident but is instead 
documented in the Health Tab of the UC Portal. Accordingly, ORR is 
updating the definition of ``significant incidents'' to remove 
pregnancy. With regard to other policy updates, ORR reiterates that it 
is not codifying all of its policies and choosing for some policies to 
remain subregulatory such that they can be more easily updated as 
needed.
    Final Rule Action: After consideration of public comments, ORR is 
removing pregnancy from the definition of significant incidents, but 
otherwise finalizing the term as proposed.
Special Needs Unaccompanied Child
    Comment: Many commenters supported the proposal to not define or 
use the term ``special needs unaccompanied child'' and instead refer to 
children's individualized needs. Commenters agreed that the term is 
disfavored and is seen as degrading. One commenter stated the term 
individualized needs is more specific to the child rather than 
confusing that the child might have a disability. Some commenters 
further supported the proposal to remove ``facilities for children with 
special needs'' from the definition of standard program. Some 
commenters stated support for changing the term disability to special 
needs unaccompanied child.
    Response: ORR is finalizing the use of ``individualized needs'' in 
many places in the regulations in lieu of the outdated term ``special 
needs.''
    Final Rule Action: ORR is removing the term ``special needs 
unaccompanied child'' from the regulation.
Standard Program
    Comment: One commenter was concerned that the definition of 
``standard program'' in the NPRM requires all homes and facilities to 
be ``non-secure,'' whereas paragraph 6 of the FSA requires them to be 
``non-secure as required by State law.'' The commenter expressed 
concerns that ORR could adopt a definition of non-secure that permits 
much more restrictive conditions than are currently permissible. The 
commenter contended further that, for the same reasons, if ORR chooses 
to retain the reference to ``a facility for special needs unaccompanied 
children'' in the definition of ``standard program'' it would be 
impermissible to replace the FSA's paragraph 6 reference to the ``level 
of security permitted under State law'' with undefined ``requirements 
specified by ORR if licensure is unavailable in the State.''
    Response: ORR thanks the commenter and notes that it is revising 
the definition of ``standard program'' to include ``non-secure as 
required by State law.'' ORR is also revising the definition of 
``standard program'' to not reference ``facilities for special needs 
unaccompanied children'' given the term ``special needs'' has become 
stigmatized. Instead, the definition of ``standard program'' includes 
``facilities for unaccompanied children with specific individualized 
needs.''
    Final Rule Action: ORR is revising the proposed definition of 
``standard program'' by replacing the proposed phrase ``or that meets 
other requirements specified by ORR if licensure is unavailable in the 
State'' with ``or that meets the requirements of State licensing that 
would otherwise be applicable if it is in a State that does not allow 
State licensing,'' and by moving this language to the end of the 
relevant sentence. ORR is also revising the proposed definition so that 
the final rule states that all standard programs shall be ``non-secure 
as required under State law.'' ORR is also revising the proposed 
definition so that the final rule does not include the language 
``facility for special needs unaccompanied children'' and instead 
includes the language ``facility for unaccompanied children with 
specific individualized needs.'' ORR is also revising the definition 
such that a facility for unaccompanied children with specific 
individualized needs may maintain that level of security permitted 
under state law and deleting the phrase ``or under the requirements 
specified by ORR if licensure is unavailable in the State.'' ORR is 
otherwise finalizing the term as proposed.
Transfer
    Comment: Regarding the proposed definition of ``transfer,'' a few 
commenters had differing opinions on the statement in the NPRM that a 
transfer from a community-based placement to a shelter is not a step-
up. The proposed rule stated that such transfer does not constitute a 
step-up because neither a community-based placement nor a shelter would 
be considered a secure placement. One commenter did not support the 
statement, stating that it fails to recognize that a large shelter 
facility is more restrictive than a foster care setting. However, 
another commenter supported the statement, but requested the addition 
of clarifying language that if the least restrictive placement for an 
unaccompanied child has been determined to be a shelter level of care, 
a community-based care facility shall also be considered an appropriate 
placement, without the need for a child in a restrictive placement to 
be first ``stepped down'' to a shelter level of care.
    Response: As stated in the definition of ``transfer'' at Sec.  
410.1001, ORR uses the terms ``step-up'' and ``step-down'' to describe 
transfers of unaccompanied children to or from restrictive placements. 
All standard programs are non-restrictive settings. Because standard 
programs are non-restrictive settings, a transfer between those 
settings is not by definition a ``step-up'' or ``step-down.''
    Final Rule Action: ORR is finalizing the definition of ``transfer'' 
as proposed.
Trauma-Informed
    Comment: Some commenters supported ORR's inclusion of a trauma-
informed approach, citing the importance of taking such an approach 
with the unaccompanied children population. A few commenters

[[Page 34399]]

recommended this approach be culturally and linguistically appropriate 
to better accommodate unaccompanied children's diverse experiences and 
to ensure continued connection to their language, culture, traditions, 
and community. However, one commenter warned that a trauma-informed 
approach is not accomplished through any single particular technique or 
checklist and requires ongoing organizational change and assessment.
    Response: ORR thanks the commenters for their support. This rule 
establishes a definition of ``trauma-informed'' that ORR believes can 
accommodate the commenters' concerns, and ORR will consider their 
feedback as it develops additional guidance implementing a trauma-
informed approach in relevant circumstances.
    Final Rule Action: ORR is finalizing the term ``trauma-informed'' 
as proposed.
Unaccompanied Child/Children
    Comment: Some commenters requested clarification of aspects of the 
definition of ``unaccompanied child,'' such as what constitutes an 
``available'' parent or legal guardian, or whether children in 
particular circumstances meet the definition of ``unaccompanied 
child.''
    Response: ORR notes that this final rule applies the statutory 
definition of ``unaccompanied alien child'' as provided in the HSA for 
purposes relevant to ORR. Other federal agencies also apply the HSA 
definition as relevant for their purposes. The statutory definition has 
three prongs: the child must have no lawful immigration status in the 
United States; the child must be under 18 years old; and the child must 
have no parent or legal guardian in the United States, or no parent or 
legal guardian in the United States available to provide care and 
physical custody. The rule itself tracked the statutory definition and 
did not purport to interpret it, and accordingly, discussions of 
application of the statutory definition in particular circumstances are 
beyond the scope of the rule. ORR notes that it is not an immigration 
enforcement authority and would not go out into the community to take 
custody of any child. Rather, unaccompanied children enter ORR custody 
upon transfer of custody from another Federal department or agency. As 
discussed at the portion of the NPRM's preamble addressing Sec.  
410.1101, ORR may seek clarification about the information provided by 
the referring agency as needed to determine appropriate placement and 
how the referred individual meets the statutory definition of 
unaccompanied child (88 FR 68917). In such instances, ORR shall notify 
the referring agency and work with the referring agency, including by 
requesting additional information, in accordance with statutory time 
frames for transferring unaccompanied children to ORR.
    Comment: One commenter recommended not using the term 
``unaccompanied alien child,'' arguing that the word ``alien'' is 
dehumanizing.
    Response: ORR agrees with the commenter and did not use the term 
``alien'' in the proposed rule unless directly quoting the HSA or 
TVPRA. Similarly, in the final rule, ORR has updated the defined term 
``unaccompanied alien child,'' as used in the HSA and TVPRA, to 
``unaccompanied child.''
    Final Rule Action: After consideration of public comments, ORR is 
finalizing the definition of ``unaccompanied child/children'' as 
proposed.
Section 410.1002 ORR Care and Placement of Unaccompanied Children
    ORR proposed in the NPRM, at Sec.  410.1002, a description of ORR's 
authority to coordinate and implement the care and placement of 
unaccompanied children who are in ORR custody by reason of their 
immigration status (88 FR 68916). ORR notes that this substantive 
requirement is aligned with the requirement established in the 2019 
Final Rule at 45 CFR 410.102(a), concerning the scope of authority of 
ORR regarding the care and placement of unaccompanied children. That 
section of the 2019 Final Rule was not found to be inconsistent with 
the FSA by the 9th Circuit in Flores v. Rosen, but as discussed in 
section III.B.3 of this final rule, the 2019 Final Rule in its entirety 
is currently enjoined and will be superseded by the standards 
implemented in this final rule. Changes throughout this subpart to the 
standards set by the 2019 Final Rule are explained where relevant.
    Comment: One commenter recommended that ORR include additional 
language to Sec.  410.1002 to mention particular attention and respect 
for human rights for extremely high-risk populations and explicitly 
stating that ORR takes into consideration the child's Indigenous 
identity, membership, and or citizenship of a Native Nation.
    Response: ORR thanks the commenter. Under Sec.  410.1003(a), ORR 
requires that within all placements, unaccompanied children shall be 
treated with dignity, respect, and special concern for their particular 
vulnerability, which would include any considerations which would make 
the child high-risk. Additionally, under the definition of ``best 
interest,'' ORR is required to consider the unaccompanied child's 
cultural background, which would include membership or citizenship of a 
Native Nation.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1002 as proposed.
Section 410.1003 General Principles That Apply to the Care and 
Placement of Unaccompanied Children
    ORR proposed in the NPRM, at Sec.  410.1003, to describe principles 
that would apply to the care and placement for unaccompanied children 
in its custody (88 FR 68916 through 68917). These principles are based 
on ORR's statutory duties to provide care and custody for unaccompanied 
children in a manner that is consistent with their best interests.\67\
    ORR proposed in the NPRM at Sec.  410.1003(a), that for all 
placements, unaccompanied children shall be treated with dignity, 
respect, and special concern for their particular vulnerability as 
unaccompanied children. In addition to ORR's statutory authorities, 
finalizing this proposal is consistent with the substantive criteria 
set forth at paragraph 11 of the FSA, and current ORR policies.
    ORR proposed in the NPRM at Sec.  410.1003(b), that ORR shall hold 
unaccompanied children in facilities that are safe and sanitary and 
that are consistent with ORR's concern for the particular vulnerability 
of unaccompanied children. Finalizing this proposal is consistent with 
the substantive requirement from paragraph 12A of the FSA that 
``[f]ollowing arrest, the INS shall hold minors in facilities that are 
safe and sanitary and that are consistent with the INS's concern for 
the particular vulnerability of minors.'' ORR noted that although this 
provision applies to the arrest and detention of unaccompanied children 
prior to their placement in an ORR care provider facility, and not to 
unaccompanied children after they are placed in ORR's care, ORR 
proposed in the NPRM to adopt this standard for its facilities and 
custody of unaccompanied children as well. ORR also noted that it 
proposed in the NPRM the phrasing ``the particular vulnerability of 
unaccompanied children'' as opposed to ``the particular vulnerability 
of minors,'' as it believed that the specific vulnerability of the 
population of unaccompanied children should be considered when 
providing them with safe and sanitary conditions.
    ORR proposed in the NPRM, at Sec.  410.1003(c), that it would be 
required

[[Page 34400]]

to plan and provide care and services based on the individual needs of 
and focusing on the strengths of the unaccompanied child. As a 
complementary provision, ORR proposed in the NPRM, at Sec.  
410.1003(d), to encourage unaccompanied children, as developmentally 
appropriate and in their best interests, to be active participants in 
ORR's decision-making process relating to their care and placement. ORR 
believes that these collaborative approaches to care provision allow 
for the recognition of each child's specific needs and strengths while 
providing opportunities for unaccompanied children to become more 
empowered, resilient, and self-efficacious.
    ORR proposed in the NPRM, at Sec.  410.1003(e), to codify a 
requirement that care of unaccompanied children be tailored to the 
individualized needs of each unaccompanied child in ORR custody, 
ensuring the interests of the child are considered, and that 
unaccompanied children are protected from traffickers and other persons 
seeking to victimize or otherwise engage them in criminal, harmful, or 
exploitative activity,\68\ both while in ORR custody and upon release 
from the UC Program. ORR recognizes the utmost importance of protecting 
unaccompanied children from traffickers and other persons seeking to 
victimize or otherwise engage in harmful activities, including 
unscrupulous employers. ORR believes the provisions that were proposed 
at Sec.  410.1003(e) reinforce ORR's commitment to ensuring the best 
interests of unaccompanied children are considered and actions are 
taken to safeguard them from harm. ORR also believes that codifying the 
requirement to consider each unaccompanied child's individualized needs 
reinforces that unaccompanied children will be assessed by ORR to 
determine whether they may require particular services and treatment 
while in the UC Program, such as to address the ramifications of a 
history of severe neglect or abuse, as provided for in paragraph 7 of 
the FSA.
    Consistent with the substantive criteria set forth in the TVPRA, 8 
U.S.C. 1232(c)(2)(A), ORR proposed in the NPRM at Sec.  410.1003(f) to 
require that unaccompanied children be promptly placed in the least 
restrictive setting that is in the best interest of the child, with 
placement considerations including danger to self; danger to the 
community; and runaway risk, as defined in Sec.  410.1001. In addition 
to ORR's statutory authorities, finalizing the proposal is consistent 
with the substantive criteria set forth at paragraph 11 of the FSA, and 
current ORR policies.
    ORR proposed in the NPRM, at Sec.  410.1003(g), to require 
consultation with parents, legal guardians, child advocates, and 
attorneys of record or DOJ Accredited Representatives as needed when 
requesting information or consent from all unaccompanied children.
    Comment: One commenter generally supported Sec.  410.1003, stating 
that the provisions are tailored to the individualized needs of 
unaccompanied children and ensure protection from individuals who seek 
to exploit or victimize unaccompanied children like human traffickers 
and employers.
    Response: ORR thanks the commenter for their comment.
    Comment: A few commenters noted that the proposed rule alternated 
between stating what ORR ``shall'' do and state what ORR does in the 
present tense. Those commenters noted in Sec.  410.1003, paragraph (a) 
states that ``unaccompanied children shall be treated with dignity, 
respect, and special concern'' while paragraph (f) states ``ORR places 
each unaccompanied child in the least restrictive setting that is in 
the best interests of the child.'' The commenters recommended that the 
Final Rule should consistently use ``shall'' rather than the present 
tense.
    Response: ORR thanks the commenters for their comment. Although ORR 
intends for statements in the present tense in the regulation to be 
mandatory, for the sake of clarity, ORR will revise Sec.  410.1003(f) 
to include the mandatory language ``shall.'' This revision makes the 
language consistent with Sec.  410.1103(a). ORR further notes that it 
has made this revision throughout the finalized regulation text for 
consistency, clarity, and explicit alignment with ORR's statutory 
authorities and the FSA.
    Comment: One commenter requested more clarity as to what standards 
are applicable to what types of programs, stating that in some sections 
the document is specific that principles are for standard and 
restrictive placements, inferring they are not applicable to emergency 
intake sites (EIS) and influx care facilities (ICF) but that in other 
sections the document is silent as to types of programs, leaving areas 
of ambiguity.
    Response: As stated in finalized Sec.  410.1301, the standards in 
subpart D apply to standard programs and secure facilities, and to 
other care provider facilities and PRS providers where specified. The 
standards for EIFs are in subpart I. If a requirement or standard 
states that it is for ``all care provider facilities,'' then that 
includes standard programs, restrictive placements, and EIFs. 
Additionally, the principles articulated in Sec.  410.1003 refer to 
``all placements,'' and therefore apply to all ORR placements without 
regard to the type of facility.
    Comment: One commenter recommended that ORR add language to make 
clear that requirements for ORR to treat children with dignity, respect 
and special concern for their vulnerability under paragraph (a), 
applies to ORR staff, the staff of ORR subcontracted facilities, and 
any other stakeholder or interested person who interacts with the child 
while the child remains in the custody of ORR, or during the child's 
transport to or from an ORR care provider.
    Response: ORR appreciates the commenter's comment. ORR notes, 
however, that these are general provisions that relate to ORR. 
Specifics about the requirements of care provider facilities, 
transportation, and other interested parties are in other parts of the 
regulation, such as Sec. Sec.  410.1302, 410.1304, 410.1401, 410.1801. 
Those specific requirements are to ensure that unaccompanied children 
are treated with dignity, respect, and special concern for their 
particular vulnerability.
    Comment: One commenter expressed concern that the proposed rule did 
not provide clear guidance on how to determine the best interests of 
the child in various situations, such as when there are conflicting 
preferences or claims from different sponsors, when there are concerns 
about the safety or suitability of a sponsor, or when there are special 
needs or circumstances of the child. The commenter expressed concerns 
that this would lead to confusion and inconsistency in decision-making, 
and potentially compromise the rights and well-being of the child. The 
commenter recommended that the final rule provide clear and 
comprehensive guidance on how to determine and apply the best interests 
of the child principle in various situations, taking into account the 
views and preferences of the child, the characteristics and 
circumstances of the sponsor, and the relevant legal and policy 
frameworks. The commenter also stated that the rule should provide for 
independent review and oversight of best interests determinations by 
qualified professionals.
    Response: The definition of best interest includes a non-exhaustive 
list of factors to consider, as appropriate, when evaluating a child's 
best interests. The list is necessarily non-exhaustive because each 
child is unique and has

[[Page 34401]]

individual needs, background, and circumstances but the rule is 
explicit in emphasizing the importance of making decisions in the 
child's best interest.
    Regarding the recommendation for independent review and oversight 
of determinations of best interest, ORR notes that it may appoint child 
advocates for victims of trafficking and other vulnerable children who 
are independent, qualified professionals who provide best interests 
determinations (BIDs). ORR considers such BIDs when making decisions 
regarding the care, placement, and release of unaccompanied children. 
Additionally, the rule provides for review of placement decisions, in 
subpart J, and an independent Office of the Ombuds, in subpart K.
    Comment: Several commenters recommended that ORR include language 
affirmatively stating ORR's obligations to protect unaccompanied 
children in its care from discriminatory treatment and abuse, 
expressing concern over States adopting legislation that dismantles 
anti-discrimination protections for LGBTQI+ people.
    Response: ORR agrees with the need to protect LGBTQI+ individuals 
from discrimination and believes that the language finalized at Sec.  
410.1003(a) protects unaccompanied children in its care from 
discriminatory treatment and abuse because it establishes the general 
principle that unaccompanied children shall be treated with dignity, 
respect, and special concern for their particular vulnerability. 
Further, as provided in current policy, ORR requires care provider 
facilities to operate their programs following certain guiding 
principles, including ensuring that LGBTQI+ children are treated with 
dignity and respect, receive recognition of their sexual orientation 
and/or gender identity, are not discriminated against or harassed based 
on actual or perceived sexual orientation or gender identity, and are 
cared for in an inclusive and respectful environment.
    Comment: Some commenters expressed support for the proposal in 
paragraph (d) that unaccompanied children be active participants in 
ORR's decision-making process related to their care and placement.
    Response: ORR thanks the commenters for their support.
    Comment: One commenter recommended that ORR require that Indigenous 
cultural and language experts be required in the consultation process 
for Indigenous children to provide their free, prior, and informed 
consent.
    Response: ORR thanks the commenter but notes that the suggestion is 
not required by statute or the FSA. ORR notes that it is finalizing 
language access requirements in Sec.  410.1306.
    Comment: One commenter recommended that ORR collaborate with non-
governmental organizations and advocacy groups that are actively 
working in the field of child protection as they often have valuable 
insights and resources that can contribute significantly to the cause.
    Response: ORR thanks the commenter and notes that it currently 
collaborates with and seeks input from advocacy groups and service 
providers, and that it intends to continue that practice under this 
final rule.
    Comment: One commenter recommended that ORR prioritize identifying 
and adding facilities throughout the United States in more populous 
areas to ensure adequate access for children to legal, medical, and 
other services and to ease the burden on community organizations.
    Response: ORR appreciates the commenter's recommendation and does 
consider whether the area is populous and the availability of services 
among many other factors when adding facilities through the United 
States. ORR notes, however, that it is limited by the grant and 
contract applications it receives and the locations in which qualifying 
proposals are located. ORR further notes that this rule does not 
address site selection for care provider facilities, and therefore it 
does not believe a change to the rule text concerning site selection is 
appropriate.
    Comment: A few commenters recommended ORR have local law 
enforcement, county oversight, and State oversight regarding the nature 
of their operations in respective jurisdictions.
    Response: ORR notes that local law enforcement and county and State 
Governments do have oversight into aspects of the care of unaccompanied 
children. For example, local law enforcement agencies investigate and 
prosecute State crimes, and State and local Governments license and 
investigate care provider facilities with respect to licensing 
requirements and allegations of child abuse and neglect. ORR notes that 
the role of local law enforcement and child protective services and 
licensing entities in the context of the UC Program is also discussed 
in the preamble to the Interim Final Rule, Standards to Prevent, 
Detect, and Respond to Sexual Abuse and Sexual Harassment Involving 
Unaccompanied Children, codified at 45 CFR part 411.\69\ Accordingly, 
ORR does not believe a revision to the rule is needed to specifically 
describe the role of State and local Governments as suggested.
    Final Rule Action: After consideration of public comments, ORR is 
revising paragraph (f) to read ``In making placement determinations, 
ORR shall place each unaccompanied child in the least restrictive 
setting that is in the best interests of the child, giving 
consideration to the child's danger to self, danger to others, and 
runaway risk.'' All other paragraphs will be finalized as proposed.
Section 410.1004 ORR Custody of Unaccompanied Children
    ORR proposed in the NPRM at Sec.  410.1004 to describe the scope of 
ORR's custody of unaccompanied children (88 FR 68917). Consistent with 
its statutory authorities and the FSA, the provision specifies that all 
unaccompanied children placed by ORR in care provider facilities remain 
in the legal custody of ORR and may be transferred or released only 
with ORR approval.\70\ The provision also provides that in the event of 
an emergency, a care provider facility may transfer temporary physical 
custody of an unaccompanied child prior to securing approval from ORR 
but shall notify ORR of the transfer as soon as is practicable 
thereafter, and in all cases within 8 hours.\71\
    Comment: One commenter expressed concern that Sec.  410.1004 uses 
the term ``legal custody'' without defining it. The commenter noted 
that custody can include actual, constructive, or legal custody and 
argued that if ORR claims legal custody over unaccompanied children, 
not just actual or constructive custody, it should outline all legal 
responsibilities owed or held over the child whether pursuant to 
Federal or State law.
    Response: ORR interprets the term ``legal custody'' consistent with 
its statutory authorities and with its usage in the FSA. The TVPRA 
makes HHS responsible, consistent with the HSA, for the ``care and 
custody'' of unaccompanied children.\72\ The HSA makes ORR responsible 
for ``coordinating and implementing the care and placement of 
unaccompanied alien children who are in Federal custody by reason of 
their immigration status.'' \73\ The FSA uses the term ``legal 
custody'' to define the scope of the agreement and of specific 
provisions.\74\ ORR notes that in these contexts, it is assumed that 
ORR has the ability to provide care and supervision for children. So, 
consistent with a prior ruling interpreting the FSA, ORR understands 
the term ``legal custody'' to signify ``the right and responsibility to

[[Page 34402]]

care for the well-being of the child and make decisions on the child's 
behalf.'' \75\
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1004 as proposed.

Subpart B--Determining the Placement of an Unaccompanied Child at a 
Care Provider Facility

    In the NPRM, ORR proposed in subpart B to codify the criteria and 
requirements that apply to the placement of unaccompanied children at 
particular types of care provider facilities (88 FR 68917 through 
68927). The HSA makes ORR responsible for, among other things, 
``coordinating and implementing the care and placement of unaccompanied 
alien children who are in Federal custody by reason of their 
immigration status,'' ``making placement determinations for all 
unaccompanied alien children who are in Federal custody by reason of 
their immigration status,'' ``implementing the placement 
determinations,'' and ``implementing policies with respect to the care 
and placement of unaccompanied alien children.'' \76\ In addition, ORR 
stated in the NPRM that proposed subpart B clarifies and strengthens 
placement criteria to better ensure appropriate placement based on each 
unaccompanied child's individual background, characteristics, and 
needs. ORR stated that it believes that these provisions can help to 
protect the interests of unaccompanied children in ORR care by 
supporting safe and appropriate placement in the least restrictive 
setting appropriate to the child's age and individualized needs, 
consistent with existing legal requirements and child welfare best 
practices.
Section 410.1100 Purpose of This Subpart
    ORR proposed in the NPRM at Sec.  410.1100 that the purpose of 
subpart B is to set forth the process by which ORR receives referrals 
from other Federal agencies and the factors ORR considers when placing 
an unaccompanied child in a particular care provider facility (88 FR 
68917). In addition, ORR proposed in the NPRM at Sec.  410.1100 to 
clarify that, as used in this subpart, ``placement determinations'' or 
``placements'' refers to placements in ORR-approved care provider 
facilities during the time an unaccompanied child is in ORR care, and 
not to the location of an unaccompanied child once the child is 
released in accordance with provisions in subpart C.
    ORR did not receive any comments on proposed Sec.  410.1100.
    Final Rule Action: ORR is finalizing this section as proposed.
Section 410.1101 Process for the Placement of an Unaccompanied Child 
After Referral From Another Federal Agency
    ORR proposed in the NPRM, at Sec.  410.1101, to codify the process 
for accepting referrals of unaccompanied children from another Federal 
agency and for placement of an unaccompanied child in a care provider 
facility upon such referral (88 FR 68917 through 68919). The TVPRA at 8 
U.S.C. 1232(b)(3) requires any department or agency of the Federal 
Government that has an unaccompanied child in its custody to transfer 
the custody of such unaccompanied child to HHS no later than 72 hours 
after determining that the child is an unaccompanied child (unless 
there are exceptional circumstances ).\77\ ORR proposed in the NPRM at 
Sec.  410.1101(a) to accept referrals of unaccompanied children 
transferred to its custody pursuant to the TVPRA (88 FR 68917). 
Further, consistent with existing policy and in cooperation with 
referring agencies, ORR proposed in the NPRM that it would accept such 
referrals at any time of day, every day of the year. In addition, ORR 
stated in the preamble to the NPRM that it may seek clarification about 
the information provided by the referring agency. ORR notes that it may 
seek such clarification as needed to determine appropriate placement 
and how the referred individual meets the statutory definition of 
unaccompanied child. ORR stated that in such instances, it shall notify 
the referring agency and work with the referring agency, including by 
requesting additional information, in accordance with statutory 
timeframes for transferring unaccompanied children to ORR.
    ORR proposed in the NPRM at Sec.  410.1101(b) and (c), timeframes 
for identifying and notifying a referring Federal agency of ORR's 
identification of an appropriate placement for an unaccompanied child, 
and for accepting transfer of custody of an unaccompanied child after 
the determination that the child is an unaccompanied child who should 
be transferred to ORR (88 FR 68917 through 68918). ORR proposed in the 
NPRM at Sec.  410.1101(b) to codify its current policy that upon 
notification from any department or agency of the Federal Government 
that a child is an unaccompanied child and therefore must be 
transferred to ORR custody, ORR must identify an appropriate placement 
for the unaccompanied child and notify the referring Federal agency 
within 24 hours of receiving the referring agency's notification 
whenever possible, and no later than 48 hours of receiving the 
referring agency's notification, barring exceptional circumstances (see 
paragraph below). ORR stated in the NPRM that it believes that setting 
a maximum timeframe of 48 hours for ORR to identify a placement and 
notify a referring Federal agency of ORR's identification of a 
placement would help to expedite transfer of unaccompanied children 
from the referring Federal agency to ORR care, but also that certain 
exceptions to this timeframe may be necessary in certain circumstances, 
as discussed in the following paragraph. ORR further proposed in Sec.  
410.1101(c) that it would be required to work with the referring 
Federal department or agency to accept transfer of custody of the 
unaccompanied child, consistent with the statutory requirements at 8 
U.S.C. 1232(b)(3).
    As noted above, the TVPRA provides that referring Federal 
departments and agencies must transfer custody of unaccompanied 
children to HHS within 72 hours of determining the child is an 
unaccompanied child unless there are exceptional circumstances. In 
order to help facilitate this requirement in coordination with 
referring departments and agencies, ORR proposed in the NPRM at Sec.  
410.1101(b) and (c) internal timeframes for ORR to identify and notify 
referring Federal departments and agencies of placements and to accept 
transfer of custody from referring departments and agencies (88 FR 
68917 through 68918). ORR also noted that it may, in certain 
``exceptional circumstances,'' be unable to timely identify placements 
for and help facilitate other departments' and agencies' timely 
transfers of unaccompanied children to its custody. For purposes of 
Sec.  410.1101(b) and (c), ORR proposed in the NPRM at Sec.  
410.1101(d) circumstances which would prevent ORR from timely 
identifying a placement for an unaccompanied child or accepting 
transfer of custody. At proposed Sec.  410.1101(d), ORR described these 
exceptional circumstances consistent with those described in paragraph 
12A of the FSA, even though, as ORR further explains below, it believes 
that paragraph 12A primarily concerns responsibilities of the former 
INS that now apply to immigration enforcement authorities and not ORR. 
Some of these circumstances were also incorporated into the 2019 Final 
Rule at Sec.  410.202. The proposed ``exceptional circumstances,'' for 
ORR's purposes,

[[Page 34403]]

included the following: (1) any court decree or court-approved 
settlement that requires otherwise; (2) an influx, as defined in 
proposed Sec.  410.1001; (3) an emergency, including a natural 
disaster, such as an earthquake or hurricane, and other events, such as 
facility fires or civil disturbances; (4) a medical emergency, such as 
a viral epidemic or pandemic among a group of unaccompanied children; 
(5) the apprehension of an unaccompanied child in a remote location; 
and (6) the apprehension of an unaccompanied child whom the referring 
agency indicates (i) poses a danger to self or others; or (ii) has been 
charged with or convicted of a crime, or is the subject of delinquency 
proceedings, a delinquency charge, or has been adjudicated delinquent, 
and additional information is essential in order to determine an 
appropriate ORR placement. Notably, ORR stated in the preamble to the 
proposed rule that the unavailability of documents will not necessarily 
prevent the prompt transfer of a child to ORR. In addition, ORR 
proposed in the NPRM that ``exceptional circumstances,'' for ORR's 
purposes, would include an act or event that could not be reasonably 
foreseen that prevents the placement or accepting transfer of custody 
of an unaccompanied child within the proposed timeframes. Given the 
mandate under the TVPRA, 8 U.S.C. 1232(c)(2), that ORR place an 
unaccompanied child in the least restrictive setting that is in the 
best interests of the unaccompanied child, subject to consideration of 
danger to self, danger to the community/others, and risk of flight, 
additional time may be needed in some circumstances to determine the 
most appropriate and safe placement that comports with the best 
interests of the unaccompanied child. Thus, ORR stated that it believes 
that this general exception for acts or events that could not be 
reasonably foreseen is appropriate to afford additional time to assess 
these considerations, though ORR is mindful of avoiding prolonged 
placements in DHS facilities that are not designed for the long-term 
care of children. As discussed previously, ORR proposed in the NPRM 
that these exceptional circumstances would modify the timeframes 
applicable to ORR under proposed Sec.  410.1101(b) and (c).
    In the NPRM, ORR noted that the FSA also includes an exception to 
these timeframe requirements for unaccompanied children who do not 
speak English and for whom an interpreter is unavailable. However, ORR 
did not propose to include this as an exceptional circumstance for 
purposes of Sec.  410.1101(b) and (c). ORR stated that because ORR is 
able to serve unaccompanied children regardless of their primary 
language through the use of interpreters, ORR did not view this as an 
insurmountable impediment to the prompt placement of unaccompanied 
children. In addition, ORR noted that the FSA includes an exception in 
which a reasonable person would conclude that an individual is an adult 
despite the individual's claim to be an unaccompanied child. However, 
ORR did not propose to include this as an exceptional circumstance for 
purposes of Sec.  410.1101(b) and (c) because ORR did not believe that 
such a situation poses the type of urgency inherent in exceptional 
circumstances as described above. For further information on ORR's 
proposed policies regarding age determinations, ORR referred readers to 
its discussion of subpart H.
    In the NPRM, ORR stated that it seeks to accept transfer of 
unaccompanied children as quickly as possible after a placement has 
been identified within this timeframe (88 FR 68918). In identifying 
placements for unaccompanied children, ORR balances the need for 
expeditious identification of placement with the need to ensure safe 
and appropriate placement in the best interests of the unaccompanied 
child, which necessitates a comprehensive review of information 
regarding an unaccompanied child's background and needs before 
placement. ORR stated in the NPRM that, under existing policy, to 
determine the appropriate placement for an unaccompanied child, ORR 
requests and assesses extensive background information on the 
unaccompanied child from the referring department or agency, including 
the following: (1) how the referring agency made the determination that 
the child is an unaccompanied child; (2) health related information; 
(3) whether the unaccompanied child has any medication or prescription 
information, including how many days' supply of the medication will be 
provided with the unaccompanied child when the child is transferred 
into ORR custody; (4) biographical and biometric information, such as 
name, gender, alien number, date of birth, country of birth and 
nationality, date(s) of entry and apprehension, place of entry and 
apprehension, manner of entry, and the unaccompanied child's current 
location; (5) any information concerning whether the unaccompanied 
child is a victim of trafficking or other crimes; (6) whether the 
unaccompanied child was apprehended with a sibling or other relative; 
(7) identifying information and contact information for a parent, legal 
guardian, or other related adult providing care for the unaccompanied 
child prior to apprehension, if known, and information regarding 
whether the unaccompanied child was separated from a parent, legal 
guardian, or adult relative after apprehension, and the reason for 
separation; (8) if the unaccompanied child was apprehended in transit 
to a final destination, what the final destination was and who the 
unaccompanied child planned to meet or live with at that destination, 
if known; (9) whether the unaccompanied child is a runaway risk, and if 
so, the runaway risk indicators; (10) any information on a history of 
violence, juvenile or criminal background, or gang involvement known or 
suspected, risk of danger to self or others, State court proceedings, 
or probation; (11) if the unaccompanied child is being returned to ORR 
custody after arrest on alleged gang affiliation or involvement, ORR 
requests all documentation confirming whether the unaccompanied child 
is a Saravia class member and information on the Saravia hearing, 
including the date and time; \78\ and (12) any particular needs or 
other information that would affect the care and placement of the 
unaccompanied child, including, as applicable, information about 
services, supports, or program modifications provided to the child on 
the basis of disability (88 FR 68918 through 68919).
    Furthermore, the TVPRA places the responsibility for the transfer 
of custody on referring Federal agencies.\79\ ORR custody begins when 
it assumes physical custody from the referring agency. ORR proposed in 
the NPRM at Sec.  410.1101(e) to codify this practice, which is also 
consistent with current policies (88 FR 68919).
    Note, ORR typically assumes physical custody when the unaccompanied 
child arrives at an ORR care provider facility (usually via transport 
by DHS). However, as described in current policies,\80\ under certain 
extenuating and exceptional circumstances, ORR may assume physical 
custody of an unaccompanied child, and thereby legal custody, to 
facilitate release to a vetted sponsor without first placing the child 
at an ORR care provider facility. In these cases, federal partner 
agencies may notify ORR that a child will likely be determined to be 
unaccompanied. ORR may request additional information from the 
referring agency, or third-party partners, regarding any potential 
sponsors for the child, to begin the sponsor vetting process.\81\

[[Page 34404]]

    Comment: A few commenters generally expressed support for the 
timeframes at proposed Sec.  410.1101(b) and (c). These commenters 
supported the proposed timeframes for ORR to work with the referring 
department or agency to accept custody of unaccompanied children 
(within the 72 hour requirement applicable to the transferring agency 
under the TVPRA) and identify an initial placement (no later than 48 
hours) because the proposed timeframes ensure that unaccompanied 
children are not held in detention in a restrictive setting at DHS or 
other referring agencies and recognize that children are best cared for 
by social welfare officers and not by immigration officials.
    Response: ORR thanks commenters for their support of the proposed 
timeframes at Sec.  410.1101(b) and (c). ORR notes that it is making a 
clarifying edit to add the phrase ``in its custody'' to the first 
sentence of paragraph (b) to clarify that, consistent with the TVPRA, a 
referring Federal department or agency must transfer unaccompanied 
children ``in its custody'' to ORR. This sentence now states, ``Upon 
notification from any department or agency of the Federal Government 
that a child in its custody is an unaccompanied child and therefore 
must be transferred to ORR custody . . .''.
    Comment: Two commenters made recommendations regarding the 
notification and transfer process. One commenter recommended 
``vigorous'' collaboration between ORR and other agencies and a clear 
description of responsibilities of these agencies to ensure effective 
implementation. Another commenter suggested that ORR consider codifying 
potential border unifications of children. The commenter noted that 
cases have recently been started while children are still in CBP 
custody, and that co-location of ORR providers with CBP could allow 
many parent and legal guardian sponsors to reunify with unaccompanied 
children without transferring the child to an ORR shelter. The 
commenter further stated this could also allow non-parent family 
members who are traveling with the child (grandparents, aunts, etc.) to 
submit the necessary documents to sponsor the child without ever 
needing to be separated.
    Response: ORR thanks the commenters for their recommendations. With 
regard to the recommendation that there be ``vigorous'' collaboration 
between ORR and other agencies and a clear description of 
responsibilities to ensure effective implementation, ORR notes that ORR 
does in fact collaborate closely with referring agencies, including 
CBP, during the referral of unaccompanied children to ORR custody. For 
example, as specifically set forth at Sec.  410.1101(c), as finalized 
in this rule, ORR works with the referring department or agency to 
accept transfer of custody of the unaccompanied child, consistent with 
the timeframe set forth in the TVPRA.\82\ Furthermore, under existing 
policy, and as reflected in the NPRM, to determine the appropriate 
placement for an unaccompanied child, ORR requests and assesses 
extensive background information on the unaccompanied child from the 
referring agency, which ORR takes into consideration in placing a child 
in an ORR care provider facility. In addition, as ORR stated in the 
preamble to the NPRM, it may seek clarification about the information 
provided by the referring agency as needed to determine appropriate 
placement and how the referred individual meets the statutory 
definition of unaccompanied child (88 FR 68917). In such instances, ORR 
shall notify the referring agency and work with the referring agency, 
including by requesting additional information, in accordance with 
statutory time frames for transferring unaccompanied children to ORR. 
ORR has added language to the regulatory text at Sec.  410.1101 to make 
more explicit the nature of this coordination.
    Moreover, DHS and ORR are continuing to work together to improve 
information sharing and will collaborate on improved procedures for 
making age determinations, as required by the TVPRA, and other 
standards for determining whether an individual meets the statutory 
definition of unaccompanied child. The Departments will update existing 
memoranda of agreement, as appropriate. Seeking clarification will not 
preclude transfer of individuals determined by the referring agency to 
be unaccompanied children in accordance with statutory time frames, 
except in exceptional circumstances.
    In regard to the suggestion to codify potential border unifications 
of unaccompanied children, ORR notes that this final rule codifies 
existing interagency practices regarding notification and transfer of 
unaccompanied children to ORR custody from other Federal agencies, 
consistent with requirements set out in the TVPRA. ORR is also 
currently operating an initiative to facilitate unification of 
unaccompanied children with their sponsors while minimizing the child's 
time in ORR custody. Because the standards codified in this final rule 
accord with current practices and are consistent with the statutory 
framework established by the HSA and TVPRA, ORR will finalize the 
current sections as proposed. But ORR notes that it may in the future 
consider alternative approaches, including approaches like the one 
raised in the comment.
    Comment: Two commenters made recommendations or raised questions to 
clarify the language at proposed Sec.  410.1101(d), which addresses 
exceptions to the timeframes at proposed Sec.  410.1101(b) and (c). One 
commenter stated that proposed Sec.  410.1101(d) is ambiguous, noting 
that while ``exceptional circumstances'' may be valid explanations for 
slower-than-required placements, an exceptional circumstance should not 
give license for ORR to place a child in care more slowly after a 
referral. The commenter stated that ORR should move with all due haste 
to place children in safe placements even in ``exceptional 
circumstances'' and recommended that ORR refine the rule to clarify 
that it always attempts to identify an appropriate placement within 48 
hours but that such a timeframe may not be possible to achieve during 
exceptional circumstances. This commenter also noted that the proposed 
rule preamble states that ``the unavailability of documents will not 
necessarily prevent the prompt transfer of a child to ORR.'' The 
commenter recommended that this assurance be binding on ORR as it is 
minimally burdensome and suggested that ORR add language to this effect 
to any final rule.
    One commenter asked whether Sec.  410.1101(d)(6) means that secure 
and staff secure placements do not have to fall within the 48-hour 
placement timeline.
    Response: ORR notes that Sec.  410.1101(b) already provides that 
ORR shall identify an appropriate placement for the unaccompanied child 
and notify the referring Federal agency within 24 hours of receiving 
the referring agency's notification ``whenever possible,'' and ``no 
later than within 48 hours of receiving notification, barring 
exceptional circumstances'' (88 FR 68918). As a result, the rule 
already contemplates that ORR seeks to identify a placement as quickly 
as reasonably possible upon notification from a referring department or 
agency that a child is an unaccompanied child, including in situations 
where exceptional circumstances may apply. ORR does not view the 
proposed exceptional circumstances as a license to act more slowly in 
identifying an appropriate placement, but only as reasonable 
explanations for why it may not be possible to meet the proposed

[[Page 34405]]

timeframes despite ORR's efforts to do so in those exceptional cases.
    In addition, as one commenter noted, the proposed rule preamble 
states, with respect to proposed Sec.  410.1101(d)(6), that ``the 
unavailability of documents will not necessarily prevent the prompt 
transfer of a child to ORR.'' In proposed Sec.  410.1101(d)(6)(ii), ORR 
added language at the end of the provision to qualify when the 
exceptional circumstance in paragraph (d)(6)(ii) would apply--that is, 
when ``additional information is essential in order to determine an 
appropriate ORR placement'' (88 FR 68918). To further clarify and 
qualify the application of this exception, ORR noted in the NPRM 
preamble that ``the unavailability of documents will not necessarily 
prevent the prompt transfer of a child to ORR.'' This language was 
intended to recognize the fact that in some cases, lack of appropriate 
information or documentation may not prevent ORR from timely 
identifying a placement or facilitating transfer of custody, and in 
those cases, ORR must comply with the proposed timeframes at Sec.  
410.1101(b) and (c). Thus, this language was intended to make clear 
ORR's limited use of this exception. As ORR believes the intent is 
sufficiently clear from the preamble text, ORR does not believe it is 
necessary to add language to this effect to the final rule.
    Given these clarifications, ORR emphasizes that proposed Sec.  
410.1101(d)(6) does not mean that secure and heightened supervision 
placements do not have to meet the timeframes established in this 
section. First, as discussed above, this exception is not a license to 
act more slowly in situations that may fall within this proposed 
exception--ORR must still act expeditiously to identify placement 
within 48 hours to the extent possible. Second, not all secure or 
heightened supervision placements may meet the criteria set forth in 
proposed Sec.  410.1101(d)(6)--for example, since as noted above and in 
the proposed regulation, in order to qualify for the exception at Sec.  
410.1101(d)(6)(ii), additional information must be essential in order 
to determine an appropriate ORR placement, and where it is not 
essential, as discussed above, the unavailability of documents will not 
necessarily prevent the prompt identification of a placement.
    Comment: A few commenters expressed concern about the proposed 
timeframes at Sec.  410.1101(b) and (c), stating that speed should 
never take priority over the safety and well-being of the children. One 
commenter also expressed concern with ORR's ability to meet the 
proposed timeframes.
    Response: ORR does not agree that the proposed timeframes at Sec.  
410.1101(b) and (c) will result in expediency taking priority over the 
safety and well-being of unaccompanied children. As an initial matter, 
ORR notes that the timelines described in this section are consistent 
with statutory timelines provided in the TVPRA.\83\ In addition, ORR 
believes that the proposed timeframes are reasonable and achievable 
while transferring custody and identifying placements in the best 
interests of the unaccompanied child. ORR notes that, in fiscal year 
2023, ORR placed 99 percent of unaccompanied children in standard 
programs within 24 hours of receiving notification of their referrals. 
As noted in the NPRM, ORR balances the need for expeditious 
identification of placement with the need to ensure safe and 
appropriate placement in the best interests of the unaccompanied child, 
which involves a comprehensive review of information regarding an 
unaccompanied child's background and needs before placement. As further 
discussed in the NPRM, additional time may be needed in some 
circumstances to determine the most appropriate and safe placement that 
comports with the best interests of the unaccompanied child. Thus, ORR 
proposed in the NPRM to codify at Sec.  410.1101(d) certain 
``exceptional circumstances'' where it may be unable to timely identify 
placements for or facilitate other agencies' timely transfers of 
unaccompanied children to its custody in accordance with proposed Sec.  
410.1101(b) and (c) (88 FR 68918). ORR believes that codification of 
these exceptional circumstances will provide ORR the flexibility 
necessary to ensure the safety and well-being of each child are fully 
taken into account before a child is placed with a care provider 
facility.
    Comment: Many commenters expressed concerns regarding specific 
exceptional circumstances set forth at proposed Sec.  410.1101(d).
    One commenter stated that ORR inappropriately defined influx as an 
``exceptional circumstance'' at proposed Sec.  410.1101(d)(2) that 
allows ORR to relieve itself of the duty to receive a child from other 
Federal agencies within 72 hours. The commenter stated that 
promulgating this proposal would allow ORR to absolve itself of the 
responsibility to comply with the terms of the FSA when it presents 
challenges to the agency, directly risking the safety of unaccompanied 
children. The commenter believed that ORR should be held to higher 
scrutiny, not less, when its facilities are overwhelmed because it is 
at these times that unaccompanied children are at heightened risk for 
exploitation, abuse, and mismanagement. The commenter requested that 
HHS make data available to the public regarding how frequently 
``emergency'' or ``influx'' conditions are present.
    A few commenters opposed the proposed exception at Sec.  
410.1101(d)(3) because it includes language that is beyond what is 
enumerated in the FSA. Specifically, the commenters noted that proposed 
Sec.  410.1101(d)(3) states that an emergency would include ``a natural 
disaster, such as an earthquake or hurricane, and other events, such as 
facility fires or civil disturbances.'' The commenters believed that 
the addition of ``and other events'' would create a catch-all for 
anything ORR chooses to deem an emergency in the future and that 
expanding the term would result in situations that are detrimental to 
the health, safety and well-being of unaccompanied children.
    Many commenters recommended deleting the exception at Sec.  
410.1101(d)(6), stating that the ORR Policy Guide permits no exception 
to the prompt transfer of children required by the TVPRA and that this 
marks a weakening of ORR's current policy, under which, if exceptional 
circumstances prevent the referring Federal agency from providing 
complete documentation, the care provider is not permitted to deny or 
delay admitting the child. These commenters also noted that this 
exception is absent from the FSA list of exceptions, including 
paragraph 12A. Commenters said that incomplete documentation about a 
child should never permit ORR to leave children in DHS custody beyond 
72 hours, given the clear dangers to children's health and safety.
    A few commenters expressed concern with the exception provided 
under proposed Sec.  410.1101(d)(7), which described an exception for 
acts or events ``that could not be reasonably foreseen that prevents 
the placement of or accepting transfer of custody of an unaccompanied 
child within the timeframes in paragraph (b) or (c) of this section.'' 
The commenter said that this language was overly broad and would allow 
ORR to make placement decisions that would be inconsistent with the FSA 
and noted that the proposed rule did not identify any specific 
circumstances not already covered by the FSA's current exceptions that 
required a delay in placement in the past.
    Response: As discussed in the NPRM, ORR proposed in the NPRM at 
Sec.  410.1101(b) and (c) internal

[[Page 34406]]

timeframes for ORR to identify and notify referring Federal agencies of 
placements and to accept transfer of custody from referring agencies, 
but noted that in certain ``exceptional circumstances'' additional time 
may be needed to identify safe and appropriate placements that comport 
with the best interests of the unaccompanied child or to help 
facilitate other agencies' transfers of unaccompanied children to ORR 
custody (88 FR 68917 through 68918). Thus, for purposes of Sec.  
410.1101(b) and (c), ORR proposed in the NPRM at Sec.  410.1101(d) 
circumstances which may prevent ORR from timely identifying a placement 
for an unaccompanied child or accepting transfer of custody (88 FR 
68918). ORR intended that all of the exceptional circumstances at 
proposed Sec.  410.1101(d) serve the purpose of protecting the health 
and safety of unaccompanied children, as the application of such 
exceptions will provide ORR the time, if necessary, in certain 
circumstances to ensure appropriate and safe placement.
    With respect to the comment that the proposed exception at Sec.  
410.1101(d)(2) would allow ORR to absolve itself of the responsibility 
to comply with the terms of the FSA when it presents challenges to the 
agency, risking the safety of unaccompanied children, ORR notes that 
paragraph 12A of the FSA specifically provides an exception to the 
timeframe for placement in a licensed program in the event of an influx 
of unaccompanied children into the United States, stating that in those 
situations, children must be placed into such programs as expeditiously 
as possible. Thus, ORR believes that the exception at proposed Sec.  
410.1101(d)(2) is consistent with the FSA. Moreover, as noted at 
subpart I, the definition of influx in this rule sets a substantially 
higher threshold for when circumstances can be considered an influx 
than is required under the FSA. ORR emphasizes that in every case, ORR 
seeks to identify a placement and accept transfer of custody of an 
unaccompanied child as quickly as possible upon notification from a 
referring Federal department or agency that a child is an unaccompanied 
child, including in situations where exceptional circumstances may 
apply. As discussed previously, the proposed exceptional circumstances 
were not intended as a license to act more slowly in identifying an 
appropriate placement, but rather as circumstances in which it may not 
be possible to meet the proposed timeframes despite ORR's best efforts 
to do so. Further, because the exception at Sec.  410.1102(d)(2) would 
provide ORR with additional time, if necessary, to determine a safe and 
appropriate placement for an unaccompanied child, ORR believes that 
this exception helps to protect and serve the best interests of such 
children rather than risk their safety. ORR notes that it makes data 
available to the public regarding the use of EIFs.\84\
    Furthermore, ORR disagrees with the comment that the proposed 
exception at Sec.  410.1101(d)(3), specifically the addition of the 
phrase ``and other events,'' would create a catch-all for anything ORR 
chooses to deem an emergency in the future and expand the term in ways 
that are detrimental to the health, safety, and well-being of 
unaccompanied children. First, ORR believes that the definition of 
``emergency'' is consistent with the FSA. ORR notes that the definition 
of ``emergency'' in the FSA is in fact broad, defining ``emergency'' as 
``any act or event that prevents the placement of minors pursuant to 
paragraph 19 within the timeframe provided.'' While the FSA states that 
``[s]uch emergencies include natural disasters . . ., facility fires, 
civil disturbances, and medical emergencies,'' ORR views these as 
examples of what would qualify as an ``emergency'' under the broad 
definition that precedes this list. As noted previously, because the 
purpose of this exception is to provide ORR with additional time, if 
necessary, to determine a safe and appropriate placement for an 
unaccompanied child, we believe that this exception would help to 
protect and serve the best interests of such children rather than risk 
their safety. To address commenters' concern with reference to ``other 
events'' and further clarify that the events listed are examples of the 
types of emergencies that would qualify as exceptional circumstances, 
ORR is finalizing revisions to Sec.  410.1101(d)(3) to list relevant 
examples and delete reference to ``and other events.''
    ORR also disagrees with the commenters that recommended deleting 
the exception at Sec.  410.1101(d)(6) and stated that it is 
inconsistent with the FSA and the ORR Policy Guide. ORR notes that the 
FSA includes an exception to the placement timeframes at paragraph 12A 
for situations where a child meets the criteria for placement in a 
secure facility under paragraph 21. The exception at proposed Sec.  
410.1101(d)(6) does not delineate all five of the potential situations 
set forth at paragraph 21 of the FSA (i.e., the unaccompanied child (A) 
``has been charged with, is chargeable, or has been convicted of a 
crime, or is the subject of delinquency proceedings, has been 
adjudicated delinquent, or is chargeable with a delinquent act''--
subject to certain exceptions; (B) ``has committed, or has made 
credible threats to commit, a violent or malicious act (whether 
directed at himself or others) while in INS legal custody or while in 
the presence of an INS officer;'' (C) ``has engaged, while in a 
licensed program, in conduct that has proven to be unacceptably 
disruptive of the normal functioning of the licensed program in which 
he or she has been placed and removal is necessary to ensure the 
welfare of the minor or others, as determined by the staff of the 
licensed program (Examples: drug or alcohol abuse, stealing, fighting, 
intimidation of others, etc. This list is not exhaustive.);'' (D) is an 
escape risk; or (E) ``must be held in a secure facility for his or her 
own safety, such as when the INS has reason to believe that a smuggler 
would abduct or coerce a particular minor to secure payment of 
smuggling fees.'').\85\ But ORR believes the five potential situations 
described at paragraph 21 are described by sub-paragraphs (d)(i) and 
(d)(ii)--i.e., all the potential circumstances listed in FSA paragraph 
21 essentially concern whether a child poses a danger to self or 
others, or has been charged with or convicted of a crime or is the 
subject of delinquency charges or proceedings. But further, by omitting 
some of the situations set forth in paragraph 21 of the FSA that 
justify secure placement and by adding the requirement at proposed 
Sec.  410.1101(d)(6)(ii) that ``additional information'' must be 
``essential in order to determine an appropriate placement,'' ORR is 
narrowing the application of this exception in a manner it believes 
adequately implements FSA paragraph 21. In addition, ORR stated in the 
NPRM preamble that ``the unavailability of documents will not 
necessarily prevent the prompt transfer of a child to ORR'' (88 FR 
68918). This language was intended to recognize that lack of 
appropriate information or documentation may not always be an 
appropriate justification for delaying timely identification of 
placement or acceptance of transfer of custody. As such, ORR further 
limited the exception at proposed Sec.  410.1101(d)(6)(ii) to those 
situations where additional documentation is absolutely necessary to 
appropriately place an unaccompanied child, acknowledging that timely 
transfer and placement would still take place whenever possible even in 
the absence of certain information or documentation. Given these 
additional restrictions on the use

[[Page 34407]]

of proposed Sec.  410.1101(d)(6) as an exceptional circumstance, we 
believe this provision reasonably ensures ORR's timely acceptance of 
transfer and identification of placement of unaccompanied children 
whenever possible, even in the absence of documentation.
    In addition, ORR disagrees with the comment that proposed Sec.  
410.1101(d)(6) should be deleted because it is inconsistent with and 
weakens current ORR policies under which a care provider may not deny 
or delay admitting the unaccompanied child if exceptional circumstances 
prevent the referring Federal agency from providing complete 
documentation. ORR notes that this provision of the ORR Policy Guide 
does not relate to the required timeframes applicable to ORR at Sec.  
410.1101(b) and (c) or the exceptions to such timeframes described at 
Sec.  410.1101(d)(6). Paragraphs (b) and (c) of Sec.  410.1101 set 
forth the timeframes within which ORR must identify and notify the 
referring Federal agency of appropriate placement and work with the 
referring Federal agency to accept transfer of custody, and Sec.  
410.1101(d) provides exceptions applicable to ORR's obligation to meet 
these timeframes (88 FR 68917 through 68918). By contrast, the policy 
identified by the commenter sets forth obligations applicable to the 
care provider facility--specifically, restrictions on the care provider 
facility's ability to deny or delay admitting a child after transfer of 
custody to ORR has occurred and the care provider facility has been 
identified as an appropriate placement. The ``exceptional 
circumstances'' referred to in that provision apply to the referring 
Federal agency and relate to its ability to provide complete 
documentation; this term does not refer to the exceptional 
circumstances that apply to ORR's ability to meet timeframes under 
Sec.  410.1101(b) and (c).
    With respect to Sec.  410.1101(d)(7), after consideration of 
comments received on this provision, ORR is removing this exception 
from the regulation text in this final rule. To date, ORR has not 
identified any specific circumstances not already covered by Sec.  
410.1101(d)(1) through (d)(6) that have required a delay in placement, 
and thus ORR believes it is not necessary to include this exception at 
this time.
    Comment: A few commenters recommended that the final rule 
reintroduce a State licensing requirement in every provision of the 
proposed rule where the FSA, specifically at paragraph 19, requires 
State-licensed placement.
    Response: ORR refers the commenters to its discussion of State 
licensing at the preamble text for Sec.  410.1302. The definition of 
``standard program'' in this final rule is broader in scope than the 
FSA definition of ``licensed placement'' to account for changed 
circumstances since the FSA went into effect, where certain States have 
made licensure unavailable to ORR care provider facilities because they 
care for unaccompanied children. Having said that, at Sec.  410.1302(a) 
of this final rule, if a standard program is in a State that does not 
license care provider facilities because they serve unaccompanied 
children, the standard program must still meet the State licensing 
requirements that would apply if the State allowed for licensure. 
Similarly, ORR is revising Sec.  410.1302(b) to expressly provide that 
all standard programs, whether or not licensed, must comply with all 
State child welfare laws and regulations and all State and local 
building, fire, health, and safety codes even if licensure is 
unavailable in their State to care provider facilities providing care 
and services to unaccompanied children. Similarly, in this final rule, 
ORR has revised Sec.  410.1101(b) to state that ORR will identify a 
standard program placement for an unaccompanied child, unless one of 
the listed exceptions in Sec.  410.1101 applies.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1101 with the following modifications: first, to 
revise Sec.  410.1101(b) to (1) add the phrase ``in its custody'' to 
the first sentence of paragraph (b) to clarify that, under the TVPRA, a 
referring Federal department or agency must transfer unaccompanied 
children in its custody to ORR, and (2) state that ORR will identify a 
standard program placement for an unaccompanied child, unless one of 
the listed exceptions in Sec.  410.1104 applies; second, to make a 
clarifying revision to the Sec.  410.1101(d) introductory text to add 
the word ``timely'' before ``accept'' so that the word ``timely'' is 
read to modify both ``identify a placement'' and ``accept transfer of 
custody''; third, to amend Sec.  410.1101(d)(3) to state, ``An 
emergency, including a natural disaster such as an earthquake or 
hurricane, a facility fire, or a civil disturbance;'' fourth, to remove 
the exceptional circumstance at Sec.  410.1101(d)(7); and fifth, to add 
an additional sentence to Sec.  410.1101(b) stating, ``ORR may seek 
clarification about the information provided by the referring agency as 
needed. In such instances, ORR shall notify the referring agency and 
work with the referring agency, including by requesting additional 
information, in accordance with statutory time frames.''
Section 410.1102 Care Provider Facility Types
    Under Sec.  410.1102, ORR described the types of care provider 
facilities in which unaccompanied children may be placed (88 FR 68919 
through 68920). The basis for this section is ORR's statutory authority 
to make placement determinations for unaccompanied children in its 
care, as well as other responsibilities such as implementing policies 
with respect to their care and overseeing the infrastructure and 
personnel of facilities in which unaccompanied children reside.\86\ 
Specifically, this section proposed that ORR may place an unaccompanied 
child in a care provider facility as defined at Sec.  410.1001, 
including but not limited to shelters, group homes, individual family 
homes, heightened supervision facilities, or secure facilities, 
including RTCs. ORR proposed in the NPRM that it may also place 
unaccompanied children in OON placements under certain, limited 
circumstances. OON placements may include an OON RTC (which would need 
to meet the standards that apply to RTCs that are ORR care provider 
facilities), or a temporary stay at hospital (for example, for 
surgery). For purposes of this final rule, ORR notes as a general 
matter that it may place an unaccompanied child in an OON placement if 
it determines that a child has a specific need that cannot be met 
within ORR's network of facilities, where no in-network care provider 
equipped to meet the child's needs has the capacity to accept a new 
placement, or where transfer to a less restrictive facility is 
warranted and ORR is unable to place the child in a less restrictive 
in-network facility. ORR proposed in the NPRM to make such placements 
taking into account the considerations and criteria set forth in 
Sec. Sec.  410.1103 through 410.1109 and Sec.  410.1901, as further 
discussed below. In addition, in times of influx or emergency, as 
further discussed in subpart I (Emergency and Influx Operations), ORR 
proposed in the NPRM that it may place unaccompanied children in 
facilities that may not meet the standards of a standard program, but 
rather meet the standards in subpart I. ORR believes that this 
provision is consistent with the FSA requirement that unaccompanied 
children be placed in licensed programs until such time as release can 
be effected or until immigration proceedings are concluded, except that 
in the event of an emergency or influx of children into the United

[[Page 34408]]

States, ORR must place unaccompanied children into licensed programs as 
expeditiously as possible.\87\
    Consistent with proposed Sec.  410.1102, ORR stated in the preamble 
to the NPRM that it would place unaccompanied children in group homes 
or individual family homes, including long-term and transitional home 
care settings, as appropriate, based on the unaccompanied child's age 
and individualized needs and circumstances (88 FR 68919). Definitions 
of ``ORR long-term home care'' and ``ORR transitional home care'' were 
proposed in Sec.  410.1001, which ORR stated would replace the terms 
``long-term foster care'' and ``transitional foster care'' as those 
terms are used in the definition of ``traditional foster care'' 
provided at 45 CFR 411.5. ORR stated in the preamble of the NPRM that 
where possible, it believes that based on an unaccompanied child's age, 
individualized needs, and circumstances, as well as a care provider 
facility's capacity, it should favor placing unaccompanied children in 
transitional and long-term home care settings while they are awaiting 
release to sponsors. Having said that, ORR noted that efforts to place 
more unaccompanied children out of congregate care shelters that house 
more than 25 children together is a long-term aspiration, given the 
large number of children in its custody and the number of additional 
programs that would be required to care for them in home care settings 
or small-scale shelters of 25 children or less. ORR stated that given 
this reality, care provider facilities structured and licensed to 
accommodate more than 25 children continue to serve a vital role in 
meeting this need.
    Finally, as discussed in the preamble to the proposed rule, ORR was 
considering replacing its current long-term and transitional home care 
placement approach with a community-based care model that would expand 
upon the current types of care provider facilities that may care for 
unaccompanied children in community-based settings (88 FR 68919 through 
68920). ORR stated that this is in line with a vision of moving towards 
a framework of community-based care as described in the NPRM and in the 
following paragraphs. ORR stated that it believes such a framework 
would be consistent with the language of the proposed rule and that ORR 
would be able to implement it in a manner consistent with the proposed 
rule.
    ORR stated in the preamble to the NPRM that if it were to finalize 
the community-based care model, references to ORR long-term home care 
and ORR transitional home care would be replaced with the term 
community-based care, and ORR would define ``community-based care'' in 
Sec.  410.1001 as an ORR-funded and administered family or group home 
placement in a community-based setting, whether for a short-term or a 
long-term placement (88 FR 68919). ORR stated that the definition of 
``community-based care'' encompasses the term ``traditional foster 
care'' that is codified at existing Sec.  411.5.
    For a more detailed discussion of ORR's proposed community-based 
care model, ORR refers readers to the NPRM preamble (88 FR 68919 
through 68920). ORR welcomed public comment on its vision of community-
based care, its inclusion as a care provider facility type in place of 
ORR's current long-term and transitional home care placement approach, 
and any other concerns relevant to this change based on existing 
language in the NPRM.
    Comment: Many commenters supported the proposed development and 
implementation of a community-based care model. A number of commenters 
stated that they supported including the community-based care model in 
the final rule because such a model aligns with Federal and State child 
welfare policies, which recognize the importance of allowing 
unaccompanied children to experience normal childhood freedoms and 
opportunities to the greatest extent possible. Some commenters 
specifically expressed support for the implementation of the Reasonable 
and Prudent Parent standard, the provision of ``a continuum of care,'' 
and the integration of unaccompanied children with their local 
communities and schools. Some commenters also noted that expanding care 
to include small community-based group homes and semi-independent 
living for older children will allow ORR to reduce reliance on 
congregate care settings, help unaccompanied children develop life 
skills, and offer both potential cost-savings and improvements in the 
quality-of-care children receive. Many commenters offered 
recommendations related to the development and implementation of a 
community-based care model. For example, commenters recommended that 
ORR develop timelines and a transition plan as well as additional 
operational details; ensure placements are smaller, home-like settings 
that allow children to have private spaces and input into their own 
schedules and participation in community; prioritize developing family-
based and/or community-based placements that can accommodate the needs 
of children with disabilities; and ensure that community-based care 
programs have the proper amount of resources and support to provide 
adequate care for unaccompanied children and to facilitate their 
integration into the community.
    Response: ORR thanks commenters for the many comments and 
recommendations regarding ORR's planned efforts toward the development 
of a community-based care model and agrees with the many potential 
benefits of such a model cited by commenters. So that ORR may more 
fully consider the comments and recommendations it received, ORR is not 
finalizing the community-based care model in this final rule but will 
consider all comments and recommendations received as it continues to 
transition to such a model.
    Comment: A few commenters expressed concerns with the use of large 
congregate care facilities, recommending that that congregate care 
facilities be limited to 25 or fewer beds and that ORR prioritize 
placements in the least restrictive settings possible, including family 
or small community-based settings. One of these commenters also 
recommended limiting placement in congregate facilities unless the 
unaccompanied child has specific therapeutic needs where treatment 
cannot be provided in a home or community-based environment. This 
commenter also recommended that if family-based placement is 
unavailable and congregate placement is necessary, ORR should cease 
placing unaccompanied children in unlicensed facilities.
    Response: ORR believes that where possible, based on an 
unaccompanied child's age, individualized needs, and circumstances, as 
well as a care provider facility's capacity, it should prioritize 
placing unaccompanied children in transitional and long-term home care 
settings while they are awaiting release to sponsors, so as to limit 
the time spent in large congregate care facilities. Currently, under 
existing policy, a child is a candidate for long-term home care if the 
child is expected to have a protracted stay in ORR and is under the age 
of 17 and 6 months at the time of placement, unless waived by both the 
referring and receiving Federal Field Specialist (FFS), who will take 
into account the best interests of the child.
    As ORR explained in the NPRM, however, efforts to place more 
unaccompanied children out of congregate care shelters that house more 
than 25 children together is a long-term aspiration, given the large 
number of children in its custody and the number

[[Page 34409]]

of additional programs that would be required to care for them in home 
care settings or small-scale shelters of 25 children or less (88 FR 
68919). As ORR noted in the NPRM, given this reality, care provider 
facilities that accommodate more than 25 children continue to serve a 
vital role in meeting this need. ORR notes that such facilities are 
required to be State-licensed, or if they are located in States that 
will not license care provider facilities housing unaccompanied 
children under this rule, ORR still requires them to follow State 
licensing requirements. In addition, all ORR standard programs must 
follow the minimum standards and provide the required services 
established at subpart D.
    In response to the request that ORR cease placing unaccompanied 
children in unlicensed facilities, ORR notes that pursuant to Sec.  
410.1001, as finalized in this rule, standard programs must be licensed 
by an appropriate State agency, or meet the requirements of State 
licensing if they are in a State that does not allow State licensing of 
programs that provide services to unaccompanied children. As provided 
in Sec.  410.1104, ORR will place unaccompanied children in standard 
programs that are not restrictive placements, except where a child 
meets criteria for restrictive placement, or in the event of an influx 
or emergency in which case ORR must make all reasonable efforts to 
place children in standard programs as expeditiously as possible. As 
provided in Sec.  410.1102, in times of influx or emergency, ORR may 
place unaccompanied children in emergency or influx facilities that may 
not meet the standards of a standard program. In situations where 
unaccompanied children are placed in programs that are not standard 
programs, ORR implements other safeguards to protect their safety and 
well-being. Specifically, ORR imposes minimum standards for such 
emergency and influx facilities at subpart I (as finalized in this 
rule) to ensure the safety and well-being of children placed in such 
facilities. In the case of secure facilities, which are not standard 
programs, under this final rule, secure facilities are required to meet 
the minimum standards under Sec.  410.1302.
    Comment: Many commenters expressed concern that the NPRM does not 
specify the circumstances in which unaccompanied children would be 
placed in OON placements and requested additional clarification. These 
commenters stated that while proposed Sec.  410.1105(c)(2) provides 
criteria for OON RTC placements, the proposed rule does not provide 
criteria for other OON placements. One commenter specifically cautioned 
against overreliance on OON placements, including OON RTCs or OON 
placements that would meet the definition of heightened supervision 
facilities as defined in proposed Sec.  410.1001. This commenter noted 
that children placed in OON placements tend to face more challenges 
than children placed in-network that negatively impact their well-being 
and legal case. For instance, according to the commenter, staff at OON 
placements usually lack experience serving migrant populations or 
unaccompanied children, and children in OON placements frequently face 
additional language access barriers, which can delay their access to 
critical information and services. Additionally, the commenter stated 
that OON placements are diffusely located, often far from any legal 
service provider, making children's access to in-person legal meetings 
infrequent or entirely infeasible. In addition, some commenters noted 
that in the past, some unaccompanied children placed out-of-network 
have not received minimum required services, such as educational 
services and outdoor recreation, and that care and treatment provided 
by OON placements can vary widely. These commenters emphasized that 
thorough vetting and independent oversight of OON placements is 
critical and appreciated the proposed rule's reference to consulting 
with non-governmental stakeholders such as protection and advocacy 
(P&A) agencies to assess OON placements. They welcomed further 
discussion with ORR about policies and procedures to monitor OON 
placements. One commenter expressed the view that it is not feasible 
for ORR to sufficiently vet OON RTCs for placement due to the 
overwhelming number of unaccompanied children.
    Commenters also made several recommendations for the final rule. 
First, commenters recommended that, to ensure unaccompanied children 
placed in OON placements have the same rights and protections as other 
unaccompanied children, the final rule should state that children may 
be placed in an OON placement only if it is the least restrictive, most 
integrated placement appropriate, that OON placements must be State-
licensed to care for dependent children, and that children in OON 
placements must receive all the minimum services for standard programs, 
including those specified in proposed Sec.  410.1302. Commenters 
further recommended that a child not be transferred to a restrictive 
OON placement unless they meet the criteria for transfer to the same 
level of restrictive placement within the ORR network. In addition, a 
few commenters recommended that the final rule state that any secure 
OON placement must satisfy the secure placement criteria in paragraph 
21 of the FSA. Finally, one commenter, while understanding that it 
would not be feasible for all OON placements to be State-licensed, 
recommended that ORR include in the final rule that OON placements meet 
the other requirements for licensed facilities outlined in the FSA.
    Response: Section 410.1102, as finalized in this rule, provides 
that ORR may place unaccompanied children in OON placements under 
certain, limited circumstances. Consistent with current policies, such 
circumstances include where ORR determines that a child has a specific 
need that cannot be met within the ORR network of care provider 
facilities, where no in-network care provider facility equipped to meet 
the child's needs has the capacity to accept a new placement, or where 
transfer to a less restrictive facility is warranted and ORR is unable 
to place the child in a less restrictive in-network care provider 
facility. With respect to OON RTCs in particular, as proposed, under 
Sec.  410.1105(c)(2) ORR will place an unaccompanied child at an OON 
RTC when a licensed clinical psychologist or psychiatrist consulted by 
ORR or a care provider facility has determined that the unaccompanied 
child requires a level of care only found in an OON RTC (either because 
the unaccompanied child has identified needs that cannot be met within 
the ORR network of RTCs or no placements are available within ORR's 
network of RTCs), or that an OON RTC would best meet the unaccompanied 
child's identified needs. Consistent with Sec.  410.1103, ORR will only 
place unaccompanied children in an OON placement if it is the least 
restrictive placement (consistent with the FSA) and in the child's best 
interest (consistent with the TVPRA), and ORR is revising Sec.  
410.1102 to clarify this.
    To clarify its intent under this final rule, ORR notes that it 
makes every effort to place children within the ORR-funded care 
provider facility network. However, there may be instances when ORR 
determines there is no in-network care provider facility available to 
provide specialized services to meet an unaccompanied child's 
identified needs, or no in-network care provider facility equipped to 
meet those needs with the capacity to accept a new placement. In those 
cases, ORR will consider an OON placement.

[[Page 34410]]

    ORR disagrees with one commenter's assertion that it is not 
feasible to appropriately vet OON RTCs or any OON placement. Under 
current policies, which ORR has incorporated in the final rule at Sec.  
410.1001, OON providers must be licensed by State licensing authorities 
and vetted prior to placement to ensure the provider is in good 
standing and is complying with all applicable State welfare laws and 
regulations and all State and local building, fire, health, and safety 
codes. Further, as noted in the NPRM, ORR may confer with other Federal 
agencies and non-governmental stakeholders, such as the P&A systems, 
when vetting OON RTCs (88 FR 68925). In addition, an ORR FFS and the 
FFS Supervisor must approve any OON placement as the least restrictive 
setting appropriate for the child's needs.
    In response to commenters' concerns regarding the additional 
challenges faced by children placed in OON programs, and that 
unaccompanied children placed in OON facilities receive appropriate 
services to meet their needs, ORR notes that the case manager who is 
assigned to a child placed in an OON facility \88\ will administer the 
case management services and maintain weekly contact with the child and 
the child's OON provider to ensure that both the case manager and ORR 
FFS are receiving weekly updates on the child's progress. Thus, the 
case manager would monitor the unaccompanied child's care and ensure 
the unaccompanied child is receiving services. The case manager also 
provides updates to the child's attorney of record.
    ORR concurs with the commenters that any OON secure placement would 
need to satisfy the secure placement criteria in paragraph 21 of the 
FSA, which are implemented at Sec.  410.1105. In addition, ORR concurs 
that children may not be placed in an OON restrictive facility unless 
they meet the criteria for placement or transfer to the same level of 
restrictive placement within ORR's network. ORR notes that Sec.  
410.1105(c)(2) already states that the criteria for placement in or 
transfer to RTCs within the ORR network apply to placement or transfer 
to OON RTCs. ORR refers readers to the section of this final rule 
addressing Sec.  410.1105 for further information regarding criteria 
for placement in restrictive facilities.
    As clarified in the preamble section discussing Sec.  410.1000, 
part 410 will not govern or describe the entire program. Where the 
regulations contain less detail, subregulatory guidance such as the ORR 
Policy Guide, Field Guidance, manuals describing compliance with ORR 
policies and procedures, and other communications from ORR to care 
provider facilities will provide specific guidance on relevant 
requirements in a manner consistent with this final rule. ORR is not 
proposing to codify all of its existing requirements regarding OON 
placements in this final rule due to the complexity and quantity of 
those existing requirements, and because of its intention to 
iteratively refine and update those requirements in keeping with best 
practices and allow continued responsiveness to the needs of 
unaccompanied children and care provider facilities.
    Comment: A few commenters expressed concern with use of foster care 
or group homes. These commenters stated that the foster system in the 
United States is significantly fragmented, contributing to a prevalence 
of trafficking activities. One commenter noted that addressing this 
issue is crucial for enhancing the effectiveness and safety of the 
foster care system and should be addressed before placing unaccompanied 
children there. Another commenter expressed concern that ORR's proposed 
placement provisions would allow unaccompanied children to be placed 
into foster care facilities that may not meet the standards of a 
standard program.
    Response: ORR notes that ORR only uses licensed foster care 
programs, which must meet the requirements applicable to a standard 
program under this final rule, including those specified under subpart 
D. Thus, ORR has in place standards and requirements to protect the 
children's safety and well-being.
    Comment: A few commenters stated that the final rule must specify 
that until an unaccompanied child is placed in a program licensed by 
the State to provide services for dependent children, the child ``shall 
be separated from delinquent offenders'' (except as provided in 
paragraph 21 of the FSA). The commenters noted that paragraph 12A of 
the FSA provides that ``minors shall be separated from delinquent 
offenders,'' but that this protection does not appear in the NPRM. 
Commenters disagreed with ORR's statement in the NPRM (88 FR 68922) 
that this provision is not applicable because it relates to the initial 
apprehension of unaccompanied children (before ORR involvement) and 
stated that paragraph 12A of the FSA is not limited to initial 
apprehension. Rather, according to the commenters, paragraph 12A covers 
situations where ``there is no one to whom the INS may release the 
minor pursuant to paragraph 14, and no appropriate licensed program is 
``immediately available for placement pursuant to paragraph 19.'' 
Commenters noted that the definition of licensed program in paragraph 6 
of the FSA specifies that a licensed program must be ``licensed by an 
appropriate State agency to provide residential, group, or foster care 
services for dependent children'' and that these two paragraphs of the 
FSA work together: prior to licensed placement, unaccompanied children 
must be separated from minors adjudicated delinquent; after licensed 
placement, children must be placed in a facility licensed by the State 
to serve dependent (rather than delinquent) children. The commenters 
expressed concern that the proposed rule permits children to be placed 
in ``standard programs'' that lack State licensure as well as in 
unlicensed emergency and influx facilities, yet it offers no assurances 
that unaccompanied children in these placements will be treated as 
dependent minors. The commenter further noted that the proposed rule 
did not specify any required standards for OON facilities or any 
placement criteria for OON non-RTCs and stated that this would permit 
ORR to place children in OON facilities that are licensed for minors 
adjudicated delinquent, in violation of the FSA.
    Response: As an initial matter, ORR has revised the final rule at 
Sec.  410.1001 to require that OON placements be licensed by an 
appropriate State agency. OON placements are vetted prior to ORR 
placing a child there to ensure the program is in good standing with 
State licensing authorities and is complying with all applicable State 
welfare laws and regulations and State and local building, fire, 
health, and safety codes. For further discussion of standards and 
placement criteria for OON placements, ORR refers readers to a response 
addressing OON placements in this preamble section. ORR also revised 
the final rule at Sec.  410.1302 to require that standard programs be 
State licensed by an appropriate State agency to provide residential, 
group, or transitional or long-term home care services for dependent 
children or meet the requirements of State licensing that would 
otherwise be applicable if it is in a State that does not allow State 
licensing of programs providing care and services to unaccompanied 
children. An extensive discussion of those revisions is provided in the 
preamble related to Sec.  410.1302.
    ORR further notes that, as discussed in the NPRM, the plain 
language of paragraph 12A of the FSA applies to DHS placements, not ORR 
placements. Paragraph 12A states that ``[f]ollowing arrest'' of an 
unaccompanied child if there is ``no appropriate licensed

[[Page 34411]]

program . . . immediately available'' the INS may place an 
unaccompanied child in an ``INS detention facility, or other INS-
contracted facility, having separate accommodations for minors, or a 
State or county juvenile detention facility,'' however unaccompanied 
children ``shall be separated from delinquent offenders'' in those 
facilities. Paragraph 12A then requires the INS to transfer 
unaccompanied children from those initial placements within three or 
five days, depending on the circumstances, to a licensed placement 
under paragraph 19 of the FSA. Therefore, the language of paragraph 12A 
regarding ``separation from delinquent offenders'' is most fairly read 
to apply to DHS's initial placements after arrest. This interpretation 
of the FSA is consistent with the current statutory framework, where 
the referring Federal department or Federal agency (usually DHS) is 
required to transfer an unaccompanied child in its custody to ORR 
within 72 hours of determining the child is an unaccompanied child, 
absent exceptional circumstances. Once a child is transferred to ORR's 
custody, ORR will place the child consistent with this part. In any 
event, practically speaking, unaccompanied children are not placed with 
``delinquent offenders.'' FSA paragraph 12A refers to ``delinquent 
offenders'' as juveniles who are detained in a ``State or county 
juvenile detention facility,'' presumably following arrest or 
conviction of a crime. Because ORR provides care and custody only for 
unaccompanied children, the only possible scenario in which an 
unaccompanied child could be placed with ``delinquent offenders'' is 
possibly in the context of OON secure placements. Accordingly, ORR is 
updating Sec.  410.1102 to state that unaccompanied children shall be 
separated from delinquent offenders in OON placements (except those 
unaccompanied children who meet the requirements for a secure placement 
pursuant to Sec.  410.1105).
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1102 as proposed, with the following 
modifications. First, ORR is revising Sec.  410.1102 to state that ORR 
may place unaccompanied children in OON placements if ORR determines 
that a child has a specific need that cannot be met within the ORR 
network of care provider facilities, where no in-network care provider 
facility equipped to meet the child's needs has the capacity to accept 
a new placement, or where transfer to a less restrictive facility is 
warranted and ORR is unable to place the child in a less restrictive 
in-network care provider facility. Second, ORR is revising Sec.  
410.1102 to state that ORR may place unaccompanied children in OON 
placements, subject to Sec.  410.1103, to clarify that ORR will only 
place unaccompanied children in an OON placement if it is the least 
restrictive placement (consistent with the FSA) and in the child's best 
interest. Third, ORR is revising Sec.  410.1102 to state that 
unaccompanied children shall be separated from delinquent offenders in 
OON placements (except those unaccompanied children who meet the 
requirements for a secure placement pursuant to Sec.  410.1105). 
Finally, at this time, ORR is not finalizing a community-based care 
model as described in the NPRM in order to allow additional time to 
consider the comments and recommendations received on a possible future 
community-based care model.
Section 410.1103 Considerations Generally Applicable to the Placement 
of an Unaccompanied Child
    ORR proposed in the NPRM at Sec.  410.1103 considerations generally 
applicable to the placement of unaccompanied children consistent with 
the TVPRA, 8 U.S.C. 1232(c)(2)(A), and the FSA (88 FR 68920 through 
68922). The TVPRA mandates that ORR place each unaccompanied child in 
the least restrictive setting that is in the best interest of the 
unaccompanied child and specifies that HHS may consider danger to self, 
danger to community, and risk of flight. Similarly, paragraph 11 of the 
FSA requires that each unaccompanied child be placed in the least 
restrictive setting appropriate to the child's age and ``special 
needs,'' provided that such setting is consistent with the interest in 
ensuring the unaccompanied child's timely appearance before DHS and the 
immigration courts and protecting the unaccompanied child's well-being 
and that of others. Consistent with the statutory mandate and the FSA 
provision, as well as existing policy, ORR proposed in the NPRM at 
Sec.  410.1103(a) that it would place each unaccompanied child in the 
least restrictive setting that is in the best interest of the 
unaccompanied child and appropriate to the unaccompanied child's age 
and individualized needs, provided that such setting is consistent with 
the interest in ensuring the unaccompanied child's timely appearance 
before DHS and the immigration courts and protecting the unaccompanied 
child's well-being and that of others.
    As discussed in the NPRM, ORR considers the following factors when 
evaluating an unaccompanied child's best interest: the unaccompanied 
child's expressed interests, in accordance with the unaccompanied 
child's age and maturity; the unaccompanied child's mental and physical 
health; the wishes of the unaccompanied child's parents or legal 
guardians; the intimacy of relationship(s) between the unaccompanied 
child and the child's family, including the interactions and 
interrelationship of the unaccompanied child with the child's parents, 
siblings, and any other person who may significantly affect the 
unaccompanied child's well-being; the unaccompanied child's adjustment 
to the community; the unaccompanied child's cultural background and 
primary language; length or lack of time the unaccompanied child has 
lived in a stable environment; individualized needs, including any 
needs related to the unaccompanied child's disability; and the 
unaccompanied child's development and identity (88 FR 68920). ORR also 
noted that its care provider facilities are usually congregate care 
settings. As a result, consistent with prioritizing the safety and 
well-being of all unaccompanied children when making a placement 
determination, ORR stated that it evaluates the best interests of both 
the individual unaccompanied child being placed and the best interests 
of the other unaccompanied children at the care provider facility where 
the individual unaccompanied child may be placed. ORR noted that the 
factors and considerations in Sec.  410.1103(b) and Sec.  410.1105 also 
are evaluated in determining the best interest of the child for 
purposes of placement.
    ORR also proposed to use the term ``individualized needs,'' in 
Sec.  410.1103(a), rather than ``special needs'' (as used in the FSA 
and regulations established in the 2019 Final Rule at 45 CFR 
410.201(a)), because it believes the term ``special needs'' has created 
confusion. ORR explained that the term ``special needs'' may imply 
that, in determining placement, ORR considers only a limited range of 
needs that fall within a special category (88 FR 68920 through 68921). 
Instead, in assessing the appropriate placement of an unaccompanied 
child, ORR stated that it takes into account any need it becomes aware 
of that is specific to the individual being assessed, regardless of the 
nature of that need. In addition, ORR noted that the term ``special 
needs'' may imply that, in determining placement, ORR considers only 
those needs related to an unaccompanied child's disability, which as 
explained, is not the case. To avoid the suggestion

[[Page 34412]]

that, in determining placement of an unaccompanied child, ORR only 
takes into account a limited range of needs that fall within a special 
category, ORR proposed in the NPRM the broader term ``individualized 
needs'' for purposes of Sec.  410.1103(a).
    ORR further noted that as used in the FSA, including the 
considerations required at paragraph 11, ``special needs'' is not 
synonymous with disability or disability-related needs. As explained in 
the NPRM, the term ``special needs'' has no clear legal definition; of 
note, it is not used in section 504 or the HHS implementing regulations 
at 45 CFR part 85. Aside from its particular usage in the FSA, the term 
``special needs'' is often understood to be a placeholder or euphemism 
for ``disability.'' As with the term ``handicapped,'' ORR was concerned 
about perpetuating language that many individuals now find 
stigmatizing. For these reasons, as discussed above at Sec.  410.1001, 
ORR invited comments concerning the continued use of the terms 
``special needs minor'' or ``special needs unaccompanied child'' but 
included these terms in the NPRM in order to ensure consistency with 
the FSA.
    Under Sec.  410.1103(b), consistent with existing policy and with 
certain requirements under the TVPRA,\89\ ORR proposed in the NPRM that 
it would consider additional factors that may be relevant to the 
unaccompanied child's placement, to the extent such information is 
available, including but not limited to the following: danger to self 
and the community or others, runaway risk, trafficking in persons or 
other safety concerns, age, gender, LGBTQI+ status or identity,\90\ 
disability, any specialized services or treatment required or requested 
by the unaccompanied child, criminal background, location of a 
potential sponsor and safe and timely release options, behavior, 
siblings in ORR custody, language access, whether the unaccompanied 
child is pregnant or parenting, location of the unaccompanied child's 
apprehension, and length of stay in ORR custody (88 FR 68921). ORR 
stated that it believes that this information, to the extent available, 
is necessary for a comprehensive review of an unaccompanied child's 
background and needs and for appropriate and safe placement of an 
unaccompanied child.
    In addition, with respect to the consideration of whether any 
specialized services or treatments are required, ORR explained in the 
NPRM that it is aware of the importance of ascertaining an 
unaccompanied child's health status upon entering ORR care in order to 
ensure the most appropriate placement, which includes the following: 
the need for proximity to medical specialists; the child's reproductive 
health status, including information relating to pregnancy or post-
partum status, use of birth control, any recent procedures, 
medications, or current needs related to pregnancy; and whether the 
child is a victim of a sex crime (e.g., sexual assault, sex 
trafficking); and other healthcare needs (88 FR 68921). ORR relies on 
such information provided from referring Federal agencies to make 
appropriate placements. For further discussion of proposed policies 
related to access to medical care, ORR referred readers to Sec.  
410.1307(b). ORR stated that when it receives a referral of an 
unaccompanied child from another Federal agency, ORR documents and 
reviews the unaccompanied child's biographical and apprehension 
information, as submitted by the referring Federal agency in ORR's case 
management system, including any information about an unaccompanied 
child's health status, including their reproductive health status, and 
need for medical specialists.
    Under Sec.  410.1103(c), ORR proposed in the NPRM that it would be 
able to utilize information provided by the referring Federal agency, 
child assessment tools, interviews, and pertinent documentation to 
determine the placement of all unaccompanied children (88 FR 68921). In 
addition, ORR proposed in the NPRM that it may obtain any relevant 
records from local, State, and Federal agencies regarding an 
unaccompanied child to inform placement decisions. ORR explained that 
such information is vital in carrying out ORR's general duty to 
coordinate the care and placement of unaccompanied children, including 
determining whether a restrictive placement may be necessary.\91\ ORR 
proposed in the NPRM to add these provisions to the regulations to 
clarify the broad range of information it may utilize in making 
placement determinations.
    The TVPRA requires that the placement of an unaccompanied child in 
a secure facility be reviewed at a minimum on a monthly basis to 
determine if such placement remains warranted.\92\ In the NPRM, ORR 
noted that it exceeds the statutory requirement here because under its 
current policies all restrictive placements, including secure 
placements, must be reviewed at least every 30 days (88 FR 68921). ORR 
proposed in the NPRM at Sec.  410.1103(d) to codify the practice of 
reviewing restrictive placements at least every 30 days to determine if 
such placements remain warranted.
    Additionally, ORR proposed in the NPRM at Sec.  410.1103(e) to 
codify its existing policy that ORR make reasonable efforts to provide 
placements in those geographical areas where DHS encounters the 
majority of unaccompanied children (88 FR 68921). ORR stated that it 
believes this provision is justified in order to facilitate the orderly 
and expeditious transfer of children from DHS border facilities to ORR 
care provider facilities, which is in the child's best interest. ORR 
further stated that this requirement reflects the requirement at 
paragraph 6 of the FSA. ORR noted that in making any placement 
decision, it also would take into account the considerations set forth 
in Sec.  410.1103(a) and (b).
    Finally, ORR proposed in the NPRM at Sec.  410.1103(f) to codify a 
requirement that care provider facilities accept all unaccompanied 
children placed by ORR at their facilities, except in limited 
circumstances (88 FR 68921 through 68922). ORR explained that such a 
requirement is consistent with ORR's authority to make and implement 
placement determinations, and to oversee its care provider facilities, 
as established at 6 U.S.C. 279(b)(1). Consistent with existing policy, 
ORR proposed in the NPRM under Sec.  410.1103(f), that a care provider 
facility may only deny ORR's request for placement based on the 
following reasons: (1) lack of available bed space; (2) the placement 
of the unaccompanied child would conflict with the care provider 
facility's State or local licensing rules; (3) the initial placement 
involves an unaccompanied child with a significant physical or mental 
illness for which the referring Federal agency does not provide a 
medical clearance; or (4) in the case of the placement of an 
unaccompanied child with a disability, the care provider facility 
concludes it is unable to meet the child's disability-related needs 
without fundamentally altering its program, even by providing 
reasonable modifications and even with additional support from ORR. ORR 
proposed in the NPRM that if a care provider facility wishes to deny a 
placement, it must make a written request to ORR providing the 
individualized reasons for the denial. ORR proposed in the NPRM that 
any such request must be approved by ORR before the care provider 
facility may deny a placement. In addition, ORR proposed in the NPRM at 
Sec.  410.1103(f) that it would be able to follow up with a care 
provider facility about a placement denial to find a solution to the 
reason for the denial.

[[Page 34413]]

    ORR did not propose to codify in subpart B the provisions finalized 
in the 2019 Final Rule at Sec.  410.201(b) or (e), which were based on 
requirements set forth in paragraph 12A of the FSA. The 2019 Final Rule 
at Sec.  410.201(b) provided that ORR separates unaccompanied children 
from delinquent offenders. However, ORR noted in the NPRM that 
paragraph 12A of the FSA concerns detention of unaccompanied children 
following arrest by the former INS, and currently DHS, before transfer 
of custody to ORR. ORR explained that it is not involved in the 
apprehension or encounter of unaccompanied children or their immediate 
detention following apprehension or encounter and thus ORR proposed in 
the NPRM to omit this provision from this regulation. Having said that, 
ORR proposed in the NPRM that it will apply the facility standards 
described as paragraph 12A of the FSA to its care provider facilities, 
consistent with standards set forth in subpart D (Minimum Standards and 
Required Services) and subpart I (Emergency and Influx Operations) (88 
FR 68922).
    The 2019 Final Rule at Sec.  410.201(e) provides that if there is 
no appropriate licensed program immediately available for placement, 
and no one to whom ORR may release an unaccompanied child, the 
unaccompanied child may be placed in an ORR-contracted facility having 
separate accommodations for children, or a State or county juvenile 
detention facility where such child shall be separated from delinquent 
offenders, and that every effort must be taken to ensure the safety and 
well-being of the unaccompanied child detained in these facilities. ORR 
proposed in the NPRM omitting this provision from these regulations (88 
FR 68922). This provision was also based on paragraph 12A of the FSA, 
which concerns detention of unaccompanied children following arrest by 
the former INS, and currently following encounter by DHS, before 
transfer of custody to placement in an ORR care provider facility. 
Instead, consistent with existing policies, under Sec.  410.1101(b), 
ORR proposed in the NPRM to identify an appropriate placement for the 
unaccompanied child at a care provider facility within 24 hours of 
receiving the referring agency's notification, whenever possible, and 
no later than 48 hours of receiving such notification, barring 
exceptional circumstances. Also, as further discussed in the next 
section (addressing Sec.  410.1104), in the event of an emergency or 
influx of unaccompanied children into the United States, ORR proposed 
in the NPRM to place unaccompanied children as expeditiously as 
possible in accordance with subpart I (Emergency and Influx 
Operations).
    Comment: Many commenters supported the requirement at proposed 
Sec.  410.1103(a) that ORR place each unaccompanied child in the least 
restrictive setting that is in the best interest of the child and 
appropriate to the unaccompanied child's age and individualized needs. 
A few commenters specifically commended ORR for the proposal to codify 
the requirement that care for unaccompanied children be tailored to 
their individualized needs, emphasizing that this is a significant step 
that helps ensure the welfare and well-being of unaccompanied children, 
protects them from potential exploitation, and aligns with recognized 
child welfare best practices. These commenters applauded ORR for taking 
this crucial step to prioritize the best interests of the child.
    Some of these commenters also provided recommendations to further 
strengthen or clarify the proposed provisions at Sec.  410.1103(a). One 
commenter recommended that ORR strengthen language regarding the use of 
least restrictive settings by stating that unaccompanied children 
should be placed in the least restrictive setting that is appropriate 
for their needs and safety, which could include foster care, family 
homes, or other community-based settings, but that institutional 
settings should be the last possible option and not considered unless 
absolutely necessary. One commenter stated that if family-based 
placement is unavailable and congregate placement is necessary, ORR 
shelter facilities should require review by legal advocates (lawyers, 
judges, others) to ensure that the situation is the least restrictive 
and most appropriate available setting for the unaccompanied child.
    A few commenters stated that the primary relevant factors to 
consider when determining a child's placement should be the best 
interests of the child, which they believed should be a mix of the 
factors laid out in both Sec. Sec.  410.1001 and 410.1103. While the 
commenters agreed that ORR may consider additional factors, based on 
each child's individual circumstances to ensure that child's safety and 
to meet individualized needs, they believed that the prevailing factors 
for this determination, which should be reflected in the regulations, 
are the best interest factors. These commenters also recommended that 
ORR should separate the safety and immigration enforcement 
considerations, the latter of which are secondary to the best interests 
of the child and should be considered separately.
    Response: ORR agrees that each unaccompanied child should be placed 
in the least restrictive setting that is in the best interest of the 
child and appropriate to the unaccompanied child's age and 
individualized needs, and that consideration of each child's 
individualized needs is a key component to ensuring their safety and 
welfare.
    Consistent with 8 U.S.C. 1232(c)(2)(A), when determining placement 
of an unaccompanied child, ORR places the unaccompanied child in the 
least restrictive setting that it determines is in the best interest of 
the child. And, consistent with the FSA at paragraph 11, ORR places an 
unaccompanied child in the least restrictive setting appropriate to the 
child's age and special needs, provided that such setting is consistent 
with its interests to ensure the child's timely appearance before DHS 
and the immigration courts and to protect the child's well-being and 
that of others. ORR implements these requirements by assessing a broad 
range of factors and criteria as set forth at Sec. Sec.  410.1103 and 
410.1105.
    In response to the commenter that recommended ORR strengthen the 
language regarding the use of least restrictive settings by providing 
that unaccompanied children should be placed in the least restrictive 
setting that is appropriate for their needs and safety, which could 
include foster care, family homes, or other community-based settings, 
but that institutional settings should be the last possible option and 
not considered unless absolutely necessary, ORR notes that the 
considerations recommended by the commenter are already part of the 
best interest assessment performed by ORR in determining an appropriate 
placement under Sec.  410.1103. Under proposed Sec.  410.1103(a) and 
(b), ORR would consider a child's individualized needs and safety 
through assessment of the various factors presented in those 
subsections. In addition, as discussed above and in the NPRM, where 
possible, ORR agrees that based on an unaccompanied child's age, 
individualized needs, and circumstances, as well as a care provider 
facility's capacity, it should favor placing unaccompanied children in 
transitional and long-term home care settings rather than institutional 
settings while they are awaiting release to sponsors (88 FR 68919). 
Having said that, as ORR has previously noted, efforts to place more 
unaccompanied children out of congregate care shelters

[[Page 34414]]

that house more than 25 children together is a long-term aspiration, 
given the number of children in its custody and the number of 
additional programs that would be required to care for them in home 
care settings or small-scale shelters of 25 children or less. Given 
this reality, care provider facilities structured and licensed to 
accommodate more than 25 children continue to serve a vital role in 
meeting this need.
    In response to the comment asserting that if family-based placement 
is unavailable and congregate placement is necessary, ORR shelter 
facilities should require review by legal advocates (lawyers, judges, 
others) to ensure that the situation is the least restrictive and most 
appropriate available setting for the unaccompanied child, while the 
commenter did not make a specific recommendation for changes to the 
rule text, ORR notes that its current placement process, as codified in 
this final rule, is consistent with requirements under the statute and 
FSA. As noted previously, the statute \93\ expressly makes ORR 
``responsible for making and implementing placement determinations for 
all unaccompanied children who are in Federal custody by reason of 
their immigration status'' and does not contemplate external review by 
legal advocates. Furthermore, ORR believes that the commenter's 
suggestion is impracticable, especially if it refers to the initial 
transfer of unaccompanied children from other Federal agencies, given 
the 72 hour timeframe required by statute.\94\ Finally, ORR notes that 
shelter facilities, as well as family-based placements, are not 
considered restrictive facilities, and that ORR has codified in this 
rule, at Sec.  410.1901, procedures for review of restrictive 
placements such as heightened supervision and secure facilities.
    Finally, given the language of the statute \95\ and paragraph 11 of 
the FSA, ORR does not believe it would be appropriate to separate the 
safety and immigration considerations and consider them as secondary 
under proposed Sec.  410.1103(a). Thus, ORR is finalizing Sec.  
410.1103 to require that ORR place unaccompanied children in the least 
restrictive setting that is in the best interest of the child and 
appropriate to the child's age and individualized needs, provided that 
this setting is consistent with ensuring the child's timely appearance 
before DHS and the immigration courts and protecting the unaccompanied 
child's well-being and that of others.
    Comment: One commenter questioned whether there is any objective 
procedure that can be applied in determining ``the least restrictive 
setting that is in the best interests of the child, taking into 
consideration danger to self, danger to the community, and risk of 
flight'' (quoting from proposed rule preamble at section IV.A, 88 FR 
68910). The commenter expressed concern that the evaluation of such 
topics with regard to an individual may be subjective and asked if 
there is an objective procedure to apply to these situations to ensure 
an unbiased placement.
    Response: ORR notes that it was unclear what the commenter meant by 
an ``objective procedure'' to determine the least restrictive setting 
in the best interest of a child. Having said that, ORR notes that 
several of the potential factors for consideration described at Sec.  
410.1103(b) are based on concrete, objective measures (e.g., age, 
siblings in ORR custody, location of the child's apprehension, length 
of stay in ORR custody). Nevertheless, to determine an appropriate 
placement that is in an unaccompanied child's best interest, ORR 
believes it must also consider other factors that reflect a child's 
individualized needs and circumstances, but which may not be as 
concrete as age or length of stay in ORR custody. Therefore, ORR 
believes the proposed framework of requiring consideration of a non-
exhaustive list of factors is a reasonable method of assessing 
appropriate placements that are in a child's best interest. Under this 
rule, ORR will take into account a broad range of factors, as provided 
at Sec.  410.1103 and the definition of ``best interest'' at Sec.  
410.1001. In particular, Sec.  410.1103(b) provides a list of 17 
factors that ORR considers as relevant to a child's placement, 
including, among others, the specific factors noted by the commenter 
(danger to self, danger to the community/others, and runaway risk). 
Furthermore, the definition of best interest at Sec.  410.1001 sets 
forth specific factors that ORR will take into account in determining a 
child's best interest. The consideration of factors set forth at Sec.  
410.1103 and the definition of ``best interest'' at Sec.  410.1001 
necessarily will vary for each child and involve some judgment based on 
each child's unique, individualized needs and experiences and on 
information obtained by ORR from various sources as provided at Sec.  
410.1103(c), including the referring Federal agency, assessments 
performed of the child, interviews, pertinent documentation, and 
records from local, State, and Federal agencies regarding the child.
    Comment: Many commenters opposed the language at proposed Sec.  
410.1103(a) requiring that the placement setting be ``consistent with 
the interest in ensuring the unaccompanied child's timely appearance 
before DHS and the immigration courts.'' These commenters stated that 
this language should be removed because it is inconsistent with ORR's 
child welfare mandate. These commenters further asserted that ORR does 
not operate as an immigration enforcement agency and compliance with 
immigration court obligations is not an appropriate consideration for 
ORR placement decisions; instead, these commenters believed that 
consideration of ``risk of flight'' as it relates to immigration 
proceedings (as opposed to flight from a custodial setting), lies 
squarely with DHS. These commenters stated that placement decisions 
should be guided by a determination that the placement is in the least 
restrictive setting in the best interest of the child.
    Response: As discussed previously, the HSA \96\ requires ORR to 
consult with DHS in making placement decisions to ensure that children 
are likely to appear for all hearings and proceedings in which they are 
involved. Similarly, paragraph 11 of the FSA requires that each 
unaccompanied child be placed in the least restrictive setting 
appropriate to the child's age and special needs, provided that such 
setting is consistent with the interest in ensuring the unaccompanied 
child's timely appearance before DHS and the immigration courts and 
protecting the unaccompanied child's well-being and that of others. 
Consistent with the statutory mandate and the FSA provision, ORR is 
finalizing the language at Sec.  410.1103(a) as proposed, requiring 
that the placement setting be consistent with the interest in ensuring 
the unaccompanied child's timely appearance before DHS and the 
immigration courts.
    Comment: Many commenters supported the proposed rule's requirement 
that gender and LGBTQI+ status or identity be considered when making 
placement decisions. A number of commenters, while supporting these 
requirements, also provided recommendations to strengthen the 
consideration of these factors to ensure LGBTQI+ children receive the 
support they need. These commenters noted that when LGBTQI+ children 
are discriminated against or mistreated, their mental and physical 
health suffers, whereas supportive placement options support their 
stability and mitigate safety risks. Commenters recommended that ORR 
add language to the final rule that requires care provider facilities 
to consult with LGBTQI+ children in making placement decisions, in 
order to ensure that ORR has an adequate

[[Page 34415]]

understanding of the child's wishes, needs, and concerns with respect 
to placement. One commenter specifically recommended that language be 
added to the rule to ensure that the privacy needs of LGBTQI+ children 
are accommodated.
    Response: ORR agrees that the consideration of an unaccompanied 
child's gender and LGBTQI+ status or identity is important in 
determining a safe and appropriate placement for such children. To 
align with the revision to Sec.  410.1210(c)(3), ORR is updating Sec.  
410.1103(b)(7) to ``LGBTQI+ status or identity'' and will refer instead 
to ``LGBTQI+ status or identity'' in the preamble of this final rule.
    Regarding commenters' recommendations, ORR notes that consistent 
with current policy, under this rule, ORR will require care provider 
facilities to operate their programs following certain guiding 
principles, including ensuring that LGBTQI+ children are treated with 
dignity and respect, receive recognition of their sexual orientation 
and/or gender identity, are not discriminated against or harassed based 
on actual or perceived sexual orientation or gender identity, and are 
cared for in an inclusive and respectful environment.\97\ ORR agrees 
that it is essential to ensure the safety and well-being of each child. 
Under Sec.  410.1103(b)(7), ORR intends, consistent with current 
policies, that care provider facilities conduct an individualized 
assessment of each LGBTQI+ child's needs, and according to that 
assessment address each LGBTQI+ child's housing preferences and health 
and safety needs. If a child expresses safety or privacy concerns or 
the care provider facility otherwise becomes aware of such concerns, 
the care provider facility must take reasonable steps to address those 
concerns.
    Further, as finalized at Sec.  410.1001, ORR considers an 
unaccompanied child's expressed interests when evaluating what is in 
the child's best interests, in accordance with the child's age and 
maturity. Under Sec.  410.1302(c), all standard programs and secure 
facilities are required to provide or arrange an individualized needs 
assessment for unaccompanied children, and provide regular individual 
and group counseling sessions. These requirements also apply to EIFs, 
as described at Sec.  410.1801(b). Further, case managers are 
responsible for developing individual service plans for each 
unaccompanied child. ORR believes that these provisions will ensure 
that LGBTQI+ children are consulted in making placement determinations 
when appropriate and that ORR has an adequate understanding of the 
child's wishes, needs, and concerns with respect to placement.
    ORR will continue to monitor the implementation of its existing 
policies to protect LGBTQI+ children with respect to placement 
determinations and consider the recommendations as needed in future 
policymaking. ORR notes that addressing these concerns through its 
policies allows ORR to make more frequent, iterative updates in keeping 
with best practices, to communicate its requirements in greater detail, 
and to be responsive to the needs of unaccompanied children and care 
provider facilities.
    Comment: One commenter expressed concern that Sec.  410.1103(b) 
allows for unacceptable discretion by listing the factors that ``may be 
relevant''; the commenter stated that gender and age are factors that 
should always be a consideration in any child's proper placement.
    Response: At Sec.  410.1103(b), ORR includes a non-exhaustive list 
of factors, some of which, including gender and age, will be relevant 
in most or all placements. ORR believes that a factor's relevance may 
vary depending on a child's unique needs and circumstances. For 
example, ORR acknowledges that consideration of a child's gender 
identity is of particular relevance in placement decisions. In 
addition, under current ORR policy, children who are under 13 years of 
age are given priority for transitional foster care placements; thus, 
in assessing foster care placements, age is an essential factor to 
consider.\98\ To clarify ORR's intent that certain factors may be 
relevant in most or all placements, while other factors may not be 
relevant to every unaccompanied child's situation, depending on each 
child's individualized needs, ORR is revising Sec.  410.1103(b) 
introductory language to replace the phrase ``that may be relevant'' 
with ``to the extent they are relevant.''
    Comment: A number of commenters expressed concern with, or asked 
for further clarification regarding, ORR's proposal to consider gender 
and/or LGBTQI+ status or identity in determining placement. Two 
commenters expressed concern about the impact of these requirements on 
faith-based providers that provide such services to unaccompanied 
children. One commenter also asked for clarification regarding how the 
best interests of the child are evaluated in the context of the 
unaccompanied child's expressed interests and the unaccompanied child's 
development and identity. Another commenter believed that there is no 
legitimate reason for a child's self-identified gender or LGBTQI+ 
status or identity to be considered in placement, and expressed concern 
that the proposed regulation discriminates against religious ORR staff 
members, faith-based foster care providers and parents by forcing them 
to choose between their deeply held convictions and their desire to 
live out their faith by caring for unaccompanied children.
    A few commenters expressed concern that the proposed rule did not 
explain how a child's LGBTQI+ status or identity should impact a 
placement. One of these commenters asked how, and at what age, ORR 
would ascertain a child's LGBTQI+ status or identity.
    A few commenters also asked ORR to clarify whether ORR's definition 
of a suitable placement for an unaccompanied child would match the 
definition of a ``safe and appropriate placement'' for LGBTQI+ children 
in foster care as recently proposed by the HHS ACF Children's Bureau 
(88 FR 66752). These commenters opposed ORR adopting the standard 
proposed by the Children's Bureau.
    Response: Although ORR is respectful of different views, it 
reiterates the importance of taking gender and LGBTQI+ status or 
identity into account as set out in this rule. In determining an 
appropriate placement, ORR takes into account a broad range of factors, 
not just gender and LGBTQI+ status or identity, as set forth at Sec.  
410.1103 and the definition of ``best interest'' at Sec.  410.1001. 
Thus, when evaluating the child's best interest ORR considers the whole 
person including consideration of the unaccompanied child's expressed 
interests and the unaccompanied child's development and identity, 
depending on the child's age, maturity, and individualized needs, as 
well as information from a variety of sources as specified at Sec.  
410.1103(c). Because each child has unique needs and experiences, the 
consideration of the factors set forth at Sec.  410.1103 and the 
definition of ``best interest'' at Sec.  410.1001 necessarily will vary 
for each child.
    ORR staff members, care provider facilities, and foster parents 
that serve and care for unaccompanied children in ORR custody agree to 
do so consistent with ORR's policies and requirements, including those 
that pertain to LGBTQI+ children. ORR wishes to make clear that it 
operates the UC Program in compliance with the requirements of federal 
religious freedom laws, including the Religious Freedom Restoration 
Act, and applicable Federal conscience protections, as well as all

[[Page 34416]]

other applicable Federal civil rights laws and applicable HHS 
regulations. HHS regulations state, for example: ``A faith-based 
organization that participates in HHS awarding-agency funded programs 
or services will retain its autonomy; right of expression; religious 
character; and independence from Federal, State, and local governments, 
and may continue to carry out its mission, including the definition, 
development, practice, and expression of its religious beliefs.'' \99\ 
These regulations also make clear that HHS may make accommodations, 
including for religious exercise, with respect to one or more program 
requirements on a case-by-case basis in accordance with the 
Constitution and laws of the United States.\100\ Regarding commenters' 
request for clarification on whether ORR is adopting the standard 
proposed by the Children's Bureau in the NPRM on safe and appropriate 
placement requirements under titles IV-E and IV-B of the Social 
Security Act for children in foster care who identify as LGBTQI+,\101\ 
ORR notes that the Children's Bureau and ORR are distinct offices 
within ACF and the programs they administer are governed by distinct 
statutory authorities. As such, the rule proposed by the Children's 
Bureau would not govern the UC Program. ORR determines whether a 
placement is safe and suitable for an unaccompanied child in accordance 
with 8 U.S.C. 1232(c) and the provisions set forth in subpart B of this 
rule.
    Comment: Some commenters opposed the proposed rule's reference to 
what they described as the ``non-scientific, undefined'' term 
``gender'' rather than ``sex'' of the child. Two commenters expressed 
the view that the proposed placement criteria would result in 
placements that compromise the privacy and safety of girls in ORR 
custody.
    Response: ORR notes that the terms ``gender'' and ``sex'' are not 
synonymous, and are separately defined in existing ORR regulations at 
45 CFR 411.5. As such, ORR declines to list ``sex'' as a factor in lieu 
of ``gender.'' Further, under Sec.  410.1103(a), as finalized in this 
rule, ORR considers a child's gender identity as one of many factors, 
when making placement determinations because ORR believes that such 
identity has significant implications for reaching placement decisions 
that protect the safety and well-being of unaccompanied children. ORR 
notes that Sec.  410.1103(b) is a non-exhaustive list of the factors 
ORR considers, and thus ORR could also consider a child's sex, as 
relevant, for purpose of placement.
    ORR disagrees that the consideration of gender in placement 
decisions will diminish privacy or safety. If a child expresses safety 
or privacy concerns, or the care provider facility otherwise becomes 
aware of such concerns, the care provider facility must take reasonable 
steps to address those concerns.
    Comment: Many commenters stated that criminal background or history 
(proposed Sec.  410.1103(b)(10)) should be removed as a factor because 
it is overbroad and permits the consideration of unsupported 
allegations and criminal charges that have not resulted in convictions. 
These commenters stated that, at most, ORR should only consider 
confirmed or verified criminal convictions for children charged as 
adults and only when it is necessary to appropriately care for the 
child or others. These commenters stated that ORR should not consider 
juvenile delinquency adjudications because criminal laws do not treat 
children the same as adults, and juvenile delinquency adjudications are 
not considered criminal convictions. These commenters also expressed 
the view that consideration of criminal history risks straying from 
ORR's role under the TVPRA and expressed concern that an incorrect 
assessment of a child's previous contact with the criminal or juvenile 
justice system can lead to a child's wrongful placement or transfer to 
a restrictive setting or prolonged stay in such placements. In 
addition, many commenters stated ORR should ensure that juvenile 
records remain confidential and are not used against children, 
particularly to place children in restrictive, punitive settings.
    A few commenters believed that children escaping a nation in which 
forced gang recruitment is common should not be penalized for suspected 
gang affiliation and one commenter noted that ORR should assume all 
children who migrate here are traumatized, and thus should be placed in 
warm and supportive environments rather than secure placements.
    Response: ORR appreciates commenters' concerns regarding the 
consideration of a child's criminal background and history in 
determining appropriate placement; however, ORR continues to believe 
that consideration of this factor is necessary and appropriate in 
determining placement that is in the best interest of both the 
unaccompanied child and other children at the care provider facility 
under consideration. ORR believes that is appropriate to consider all 
information that may pertain to a child's potential connections to 
criminal activity, including criminal charges, convictions, juvenile 
delinquency adjudications, and suspected gang involvement or 
affiliation, to get a complete picture of the child's experiences and 
individualized needs and any potential risk to the child or to others 
in a care provider facility in which a child may be placed. Also, it is 
important to note that no child is automatically placed in a 
restrictive facility; instead, the child's placement will depend on the 
nature of any criminal background and the consideration of other 
factors at Sec.  410.1103(b), including whether there exists a danger 
to self or others, and whether the child meets the specific criteria at 
Sec.  410.1105 for a restrictive placement. Thus, consistent with its 
role under the TVPRA, ORR assesses many factors and applies various 
criteria before making a placement. ORR recognizes that children 
escaping a nation in which gang-related violence is common may be 
traumatized and takes this into consideration as part of its best 
interests assessment (see, in particular, the definition of ``best 
interest'' in Sec.  410.1101) along with the broad array of other 
information to determine appropriate placement.
    Furthermore, in assessing criminal background, ORR closely 
considers information obtained from a variety of sources, as provided 
at Sec.  410.1103(c), including the referring Federal agency, 
assessments performed of the child, interviews, pertinent 
documentation, and records from local, State, and Federal agencies 
regarding the child. Thus, ORR acquires and evaluates criminal 
background information in collaboration with other professionals and 
agencies with expertise in these matters, and disagrees with comments 
that this factor is overbroad, permits the consideration of unsupported 
allegations, or causes ORR to stray from ORR's role under the TVPRA. In 
fact, ORR's role under the TVPRA (8 U.S.C. 1232(c)(2)(A)) is to 
determine appropriate placement in the least restrictive setting that 
is in the best interest of the unaccompanied child, giving due 
consideration to danger to self, danger to the community, and risk of 
flight. In considering a child's criminal background as described 
above, ORR is fulfilling its statutory role.
    Comment: Many commenters opposed the inclusion of behavior as a 
factor at proposed Sec.  410.1103(b)(12), asserting that this factor is 
vague and overbroad. These commenters stated that ORR and its care 
provider facilities often rely heavily on ``Significant Incident 
Reports'' (SIRs) as evidence of ``bad

[[Page 34417]]

behavior'' in determining a child's level of placement, and expressed 
concern that the information in SIRs may not provide a full picture of 
the child or adequately note the significant trauma that may have 
contributed to a child's behavior, prompting a child to be 
inappropriately stepped up to an even more restrictive environment or 
delay a child's transfer to a long-term foster care placement.
    In addition, many commenters stated that behavior should be deleted 
as a factor because it is duplicative of Sec.  410.1103(b)(9), which 
requires an assessment of ``[a]ny specialized services or treatment 
required or requested by the unaccompanied child'' as a factor for 
consideration in placement. These commenters further noted that 
behavioral issues exhibited by children are often manifestations of 
stress, detention fatigue, and trauma, and typically indicate a child's 
need for additional support and services. Commenters further stated 
that, if ORR includes ``behavior'' as a factor for consideration in 
placement, the language at least should be amended to ``the child's 
need for behavioral supports and services.''
    Response: ORR continues to believe that consideration of behavior 
is appropriate in determining placement that is in the best interest of 
the unaccompanied child and other children at the care provider 
facility under consideration. While the term ``behavior'' could entail 
a broad range of considerations, ORR believes this is necessary for ORR 
and its care provider facilities to obtain a complete picture of the 
child's individualized needs. In response to commenters' concerns, 
while ORR and its care provider facilities use SIRs as evidence of a 
child's behavior in determining a child's level of placement, under 
existing policy and under Sec.  410.1103, ORR and its care provider 
facilities also take into account other factors to obtain a complete 
picture of the child and the broader context of the child's behavior 
before making this determination, including the child's mental and 
physical health and other individualized needs as set forth in the 
definition of ``best interest'' at Sec.  410.1001.
    ORR disagrees that listing ``behavior'' as a factor is duplicative 
and already captured under Sec.  410.1103(b)(9) (specialized services 
or treatment required or requested). While ORR agrees that behavioral 
issues exhibited by children can be manifestations of stress, detention 
fatigue, and trauma, and may indicate a child's need for additional 
support and services, the causes of behavioral issues and whether they 
necessitate additional services or treatment may vary from child to 
child depending on each child's individual experiences and needs. Thus, 
ORR does not agree that this factor is already captured under Sec.  
410.1103(b)(9); instead, ORR believes that for purposes of clarity and 
to ensure that behavior is specifically included as part of a 
comprehensive consideration of a child's needs, it should be included 
as a separate factor at Sec.  410.1103(b)(12).
    ORR also does not believe it is necessary to amend the language at 
Sec.  410.1103(b)(9) to state ``the child's need for behavioral 
supports and services'' as requested by commenters. ORR recognizes that 
a child's behavior is often connected to other needs, such as mental 
health needs, or that behavioral supports or services may be 
appropriate in certain cases but believes that the need for ``supports 
and services'' may vary from child to child in light of the child's 
stage of development and the circumstances the child is facing. ORR 
believes that reflecting the factor as ``behavior'' allows for a more 
comprehensive consideration of the behavioral manifestations that could 
impact placement. ORR will consider further addressing and clarifying 
the application of behavior in future policymaking.
    Comment: Many commenters supported the consideration of a child's 
status as pregnant or parenting in Sec.  410.1103(b)(15) and supported 
ORR's recognition in the preamble that pregnant and parenting youth are 
``best served in family settings.'' These commenters recommended that 
ORR go further to protect these particularly vulnerable youth by 
codifying a new subsection (h) in Sec.  410.1103 that explains pregnant 
and parenting unaccompanied children ``shall be given priority to 
community-based care placements'' or ``transitional and long-term home 
care,'' depending on the terminology for care provider types that ORR 
adopts. Commenters noted that this addition to the proposed rule would 
be consistent with section 1.2.2 of the UC Program Policy Guide, which 
provides, in part, that ``ORR gives priority for transitional foster 
care placements to . . . teens who are pregnant or are parenting.'' One 
commenter applauded ORR's recognition that unaccompanied children who 
are pregnant and/or parenting need particular kinds of placements and 
services, noting that data show that many teenage parents in foster 
care have experienced maltreatment, endured multiple placements, and 
been separated from parents and other important people, resulting in 
significant trauma. The commenter encouraged ORR to make specific 
recommendations to address the needs of pregnant and/or parenting youth 
who may come into the agency's care to ensure their safety, health, and 
well-being.
    Response: As noted by commenters, under current ORR policy, 
teenagers who are pregnant or are parenting are a priority group for 
transitional foster care. ORR does not propose to adopt in the 
regulation text each of its existing policies regarding transitional 
foster care, including this provision, because of the sheer number of 
those requirements and because keeping those requirements in 
subregulatory guidance will allow ORR to make more appropriate, timely, 
and iterative updates in keeping with best practices and be continually 
responsive to the needs of unaccompanied children and care provider 
facilities. As clarified in Sec.  410.1000, part 410 will not govern or 
describe the entire program. Where the regulations contain less detail, 
subregulatory guidance such as the ORR Policy Guide, Field Guidance, 
manuals describing compliance with ORR policies and procedures, and 
other communications from ORR to care provider facilities will provide 
specific guidance on requirements.
    Comment: One commenter asked ORR to clarify (1) whether it believes 
that it is in the best interest of the child to place a pregnant child 
in States that have more permissive abortion laws or less permissive 
abortion laws; (2) to what extent do State laws on abortion factor into 
the ``best interests of the child,'' if at all; and (3) whether the 
availability of medical services for abortion takes precedence over 
placing an unaccompanied child with family or relatives who are located 
in a State where such services are not available.
    Response: The factors outlined at Sec.  410.1103 pertain to ORR's 
process for placing an unaccompanied child in a particular care 
provider facility. ORR makes decisions whether to release the 
unaccompanied child to family or relatives in accordance with subpart C 
of this part.
    Consistent with the ``best interest'' definition and placement 
considerations at Sec. Sec.  410.1001 and 410.1103, respectively, if a 
child expresses the need for medical services of any kind, access to 
medical services is one factor ORR considers in determining a placement 
that is in the best interest of the unaccompanied child and appropriate 
to the child's age and individualized needs. ORR further notes

[[Page 34418]]

that while access to medical services is an important factor in 
determining placement, it is not the sole factor assessed under Sec.  
410.1103(b). For example, ORR also considers release to family or 
relatives who are determined to be suitable sponsors under Sec. Sec.  
410.1201 through 410.1204. For every child in its custody ORR evaluates 
the best interest of the child taking into account each child's 
individual needs and circumstances. For further discussion of an 
unaccompanied child's access to medical care, ORR refers readers to the 
discussion of Sec.  410.1307 of this final rule.
    Comment: One commenter stated that the language and list of factors 
identified in Sec.  410.1103(b) are not sufficiently comprehensive and 
conflate best interest considerations with immigration enforcement and 
safety considerations. The commenter provided suggested language that 
incorporates best interest factors included in the NPRM (88 FR 68920), 
factors under proposed Sec.  410.1103, and factors used in best 
interest determinations in family and child welfare courts. 
Specifically, the commenter recommended revising the structure and 
content of Sec.  410.1103(b) to first include the best interest factors 
set forth in the NPRM preamble (88 FR 68920), followed by certain 
factors in Sec.  410.1103(b), and finally, certain new factors such as 
impact on the child of current ORR placement; size of proposed 
placement, whether a child placed in a particular jurisdiction is 
likely to obtain legal relief, and caretaker's ability to provide for 
the child's physical and mental well-being. A few other commenters also 
encouraged ORR to consider the impact of the placement on the child's 
legal case or potential legal relief when making placement decisions.
    Finally, to distinguish best interest and least restrictive setting 
considerations from those regarding community safety or flight risk, 
the commenter recommended incorporating danger to community and flight 
risk in Sec.  410.1103(b) to be considered separately in making 
placement decisions. The commenter stated that danger to community and 
flight risk would encompass assessment of behavior, criminal history, 
and trafficking risk making the listing of these three factors 
separately unnecessary.
    Response: ORR appreciates the commenter's recommendations. As to 
the commenter's suggestion to incorporate the best interest standards 
set forth in the NPRM preamble (88 FR 68920) into Sec.  410.1103(b), 
ORR believes that such standards are already adequately incorporated 
into Sec.  410.1103 through the reference to ``best interest'' in Sec.  
410.1103(a) and thus it is not necessary to individually include such 
factors in Sec.  410.1103(b). In regard to two of the new factors 
recommended by the commenter, impact of any previous placement and the 
size of the proposed placement, ORR notes that it does in fact consider 
these in determining the least restrictive placement that is in the 
best interest of the child and that is appropriate to the child's age 
and individualized needs, whether upon initial placement or transfer. 
In regard to the suggestion that ORR consider whether a child placed in 
a particular jurisdiction is likely to obtain legal relief, ORR notes 
that for most unaccompanied children in ORR custody, immigration 
proceedings begin after the child has been released to a sponsor. 
Immigration proceedings may commence for children who are in ORR 
custody for longer periods, in particular for those children placed in 
ORR long-term home care. ORR notes that under existing policy, in 
making a long-term home care referral and placement decision that is in 
the child's best interest, ORR considers the legal service provider's 
(LSP) recommendation of preferred locations for placement. ORR intends 
to continue this policy under this final rule. With respect to the 
commenter's suggestion to consider the caretaker's ability to provide 
for the child's physical and mental well-being (as required by the 
TVPRA, 8 U.S.C. 1232(c)(3)(A)), ORR notes that this factor applies when 
assessing release of a child, rather than placement in an ORR care 
provider facility, and is in fact taken into consideration under Sec.  
410.1202, as finalized in this rule.
    Finally, ORR does not agree that danger to community and flight 
risk adequately encompass the separate considerations of behavior, 
criminal history, and trafficking risk. ORR further believes that 
including each of these five factors separately in Sec.  410.1103(b) 
provides greater clarity as to the types of considerations that may be 
relevant in determining placement for an unaccompanied child. ORR 
believes that it is not necessary to distinguish best interest and 
least restrictive setting considerations from those regarding community 
safety or flight risk for purposes of Sec.  410.1103(b) because all of 
these factors are potentially relevant to determining the least 
restrictive setting in the best interest of the child.
    Comment: A few commenters encouraged ORR to consider access to 
counsel when making placement decisions.
    Response: ORR notes that it provides unaccompanied children with 
access to legal services and information pursuant to Sec.  410.1309, as 
finalized in this rule. Additionally, access to counsel is not limited 
by placement, and so it is not a factor considered in placement 
decisions. ORR refers readers to the discussion of Sec.  410.1309 later 
in this final rule for further information.
    Comment: One commenter noted that the proposed rule fails to take 
into account the impact of transfers on unaccompanied children when 
determining placement. This commenter recommended that for significant 
subpopulations of unaccompanied children (including tender-age 
children, children with identified autism-spectrum disorders, and 
children with impaired functioning in emotional domains related to the 
formation of stable attachments), ORR should have a strong preference 
for the use of a single placement and explicitly weigh the disruption 
of a transfer as part of any evaluation for transfer placement 
suitability. The commenter noted that transfers are inherently 
destabilizing for unaccompanied children and should be minimized.
    Response: As part of its evaluation of whether a transfer is in the 
best interests of the child, ORR assesses various factors provided at 
Sec.  410.1103 and in the definition of best interest at Sec.  
410.1001, as relevant, including the potential impacts of a transfer on 
a child given the child's age, maturity, mental and physical needs, and 
any other individualized needs, including needs related to the child's 
disability. Because it already intends such factors to be considered 
when making placement determinations, at this time, ORR does not 
believe it necessary to make the changes to the rule text as suggested 
by the commenter.
    Comment: One commenter noted that the current rule gives ORR 
authority to consider the factors at Sec.  410.1103(b) and questioned 
why ORR is proposing a new rule to authorize such consideration. This 
commenter asked ORR to explain why these factors are not already being 
considered.
    Response: ORR thanks the commenter for its question. As discussed 
in the NPRM and this final rule regarding the scope of this rule 
regarding Sec.  410.1000, ORR's current policies, including policies 
concerning considerations generally applicable to the placement of an 
unaccompanied child, are described in various policy documents, field 
guidance, manuals, and communications from ORR to care provider 
facilities (88 FR 68914). But ORR does not have a regulation that

[[Page 34419]]

comprehensively codifies such standards. Further, as discussed in 
section III.B.3 of the proposed rule and this final rule, the 2019 
Final Rule is currently subject to an injunction. ORR is issuing this 
final rule to more broadly codify and address issues related to custody 
of unaccompanied children by HHS, consistent with ORR's statutory 
authorities and to implement relevant provisions of the FSA. This final 
rule codifies, at Sec.  410.1103, the factors that ORR currently 
applies in determining appropriate placement.
    Comment: Some commenters generally opposed application of factors 
at Sec.  410.1103(b), expressing concern that the factors would be 
insufficient to enable ORR or its contractors to identify patterns of 
trafficking. One commenter believed the proposed rule does not give ORR 
employees evaluating children's placement sufficient guidance on what 
factors should be considered and how to protect children from 
traffickers or persons seeking to victimize unaccompanied children.
    Response: ORR takes seriously its responsibility when making 
placement determinations to consider the best interests of 
unaccompanied children and specifically to protect them from 
trafficking risk.\102\ Section 410.1103(b) helps to protect the safety 
and well-being of unaccompanied children under ORR care by explicitly 
listing factors that ORR considers in determining an appropriate 
placement in the best interest of an unaccompanied child, including 
trafficking and safety concerns, criminal background, danger to self, 
danger to community/others, and runaway risk. While relevant to 
placement decisions, the factors in Sec.  410.1103(b) also allow ORR to 
potentially identify patterns in the information provided which can 
assist in efforts to protect the unaccompanied child's safety. This 
final rule details trafficking protection and prevention efforts 
related to sponsor vetting and post-release services, policies 
regarding trafficking concern referrals to other agencies, and access 
to child advocates and legal services providers. ORR will also consider 
providing additional guidance regarding application of these factors 
and how to protect children from traffickers or persons seeking to 
victimize them in future policymaking.
    Comment: Many commenters recommended that ORR shorten frequency of 
restrictive placement reviews to ``at least every 14 days'' to ensure 
compliance with its legal obligation under the TVPRA to place children 
in the least restrictive setting in their best interest. These 
commenters noted that the TVPRA requires that ORR review the placement 
of children in secure facilities (the most restrictive level of 
placements) on a monthly basis ``at a minimum'' and that by extending 
the TVPRA's 30-day minimum standard from secure settings to all 
restrictive settings, the proposed language sets an unacceptably low 
expectation for ORR's mandate. The commenters believed that proposed 
Sec.  410.1103(d) overlooks the opportunity to expect more prompt 
reviews as a norm and ignores statutory support and evidence that 
children require faster reviews while in restrictive settings.
    Response: ORR appreciates the commenters' recommendations, but ORR 
continues to believe that requiring review of all restrictive 
placements at least every 30 days is a reasonable standard and 
consistent with the TVPRA.\103\ The TVPRA requires that the placement 
of an unaccompanied child in a secure facility be reviewed, at a 
minimum, on a monthly basis, and sets no review frequency for 
heightened supervision facilities. Thus, as noted in the NPRM, ORR 
exceeds the statutory requirement by requiring at Sec.  410.1103(d), 
consistent with its existing policy, that all restrictive placements be 
reviewed at least every 30 days to determine whether a new level of 
care is appropriate (88 FR 68998). Having said that, ORR does note that 
Sec.  410.1103(d) states that restrictive placements must be reviewed 
``at least'' every 30 days, allowing ORR and its care provider 
facilities the flexibility to assess placements more frequently as 
determined appropriate in any given case. Thus, we believe that the 
frequency of reviews required under Sec.  410.1103(d) will reasonably 
allow ORR to determine whether a restrictive placement continues to be 
warranted in accord with its statutory responsibilities, but also in a 
way that gives it the ability to respond flexibly in cases warranting 
more frequent review.
    Comment: A few commenters stated that they believe that proposed 
Sec.  410.1103(e) not only violates the State licensing requirement of 
the FSA but could lead to unlicensed placements being favored over 
State-licensed placements. Commenters noted that paragraph 6 of the FSA 
provides that the Government ``shall make reasonable efforts to provide 
licensed placements in those geographic areas where the majority of 
minors are apprehended, such as southern California, southeast Texas, 
southern Florida and the northeast corridor.'' However, the commenters 
noted that proposed Sec.  410.1103(e), by contrast, states that ``ORR 
shall make reasonable efforts to provide placements in those 
geographical areas where DHS encounters the majority of unaccompanied 
children.'' The commenters believed that by omitting the term 
``licensed'' from this provision, the proposed rule violates the FSA 
State licensing requirement and could have the effect of prioritizing 
unlicensed placements in Texas over licensed placements in other 
geographic areas, undermining the purpose of paragraph 6 and the FSA as 
a whole.
    Response: ORR notes that this final rule has revised Sec.  
410.1103(e) to state that ORR shall make reasonable efforts to provide 
``licensed'' placements in those geographical areas where DHS 
encounters the majority of unaccompanied children. In addition, ORR 
refers the commenters to the discussion of State licensing in the 
preamble related to Sec.  410.1302 of this final rule further below.
    Comment: One commenter suggested that by focusing placement in 
limited geographic areas (near the Southwest Border) under proposed 
Sec.  410.1103(e), ORR does not appear to consider whether 
unaccompanied children might require greater care. The commenter 
questioned why ORR would want to confine unaccompanied children to a 
small number of facilities in one area of the country and suggested 
that this forces ORR to construct new facilities to support them. One 
commenter emphasized that placement of children in geographic areas 
near prospective sponsors is also important, especially for children 
whose prospective sponsors are parents or legal guardians. The 
commenter described certain benefits when a child receives a placement 
near the prospective sponsor, including improved sponsor response to 
the sponsor application, decreased stress for the unaccompanied child, 
and improved efficiencies in legal representation.
    Another commenter expressed concern that proposed Sec.  410.1103(e) 
prioritizes speed when placing children instead of safety.
    Response: Consistent with paragraph 6 of the FSA, Sec.  410.1103(e) 
provides that ORR shall make reasonable efforts to provide licensed 
placements in those geographical areas where DHS encounters the 
majority of unaccompanied children. As discussed in the NPRM, ORR 
believes that this provision is justified in order to facilitate the 
orderly and expeditious transfer of children from DHS border facilities 
to ORR care provider facilities, which is in the child's best interest 
(88 FR 68921). ORR notes, however, that this provision does not require 
that ORR place unaccompanied children in these

[[Page 34420]]

geographic areas in every case, but instead requires that ORR make 
reasonable efforts to do so. ORR acknowledges that in some cases, 
placement in the specified areas may not be appropriate or possible, 
for example, when there is not sufficient capacity at certain types of 
care provider facilities to adequately meet the needs of a child. In 
addition, Sec.  410.1103(e) does not displace the requirement at Sec.  
410.1103(a) that ORR must place each child in the least restrictive 
setting that is in the best interest of the child and appropriate to 
the child's age and individualized needs, or the requirement at Sec.  
410.1103(b) that ORR must consider numerous factors that may be 
relevant to such placements. Thus, after considering the relevant 
factors at Sec.  410.1103, including the best interest considerations 
at Sec.  410.1001, ORR could determine in some cases that it is in the 
best interest of the child to be placed in areas outside the geographic 
areas where DHS encounters the majority of unaccompanied children, 
including, in appropriate cases, geographic areas near prospective 
sponsors.
    Finally, in response to the comment that Sec.  410.1103(e) 
prioritizes speed over safety when placing children, ORR notes that 
this provision is written consistently with the FSA at paragraph 6, but 
also in accord with ORR's statutory responsibility to consider the best 
interests of unaccompanied children. While expeditious placement is 
important, because for example it minimizes the amount of time children 
spend in Border Patrol facilities that are not designed to care for 
children, ORR considers multiple factors, not time alone, in 
determining a placement that is in the best interest of an 
unaccompanied child to ensure that safety and well-being of the child 
and others.
    Comment: Many commenters supported ORR's proposed restrictions at 
Sec.  410.1103(f) on the circumstances in which care provider 
facilities may deny placements of unaccompanied children, stating that 
the issue of care provider facilities improperly denying placements to 
children has been a longstanding problem, especially for unaccompanied 
children with disabilities. In addition, these commenters supported 
proposed Sec.  410.1103(g), stating that these provisions will provide 
greater transparency and accountability to ensure that care provider 
facilities do not deny placements to children on improper bases.
    Response: ORR agrees with the commenters that Sec.  410.1103(f) and 
(g) will help ensure that unaccompanied children, including those with 
disabilities, are not denied placement in appropriate care provider 
facilities.
    Comment: Many commenters provided recommendations to strengthen 
Sec.  410.1103(f) and (g). These commenters recommended that Sec.  
410.1103(f) specify that if a care provider facility denies placement 
to a child with a disability under any of the subparagraphs of Sec.  
410.1103(f), ORR will promptly find the child another placement in the 
most integrated setting appropriate. In addition, with respect to Sec.  
410.1103(g), commenters further recommended that ORR set a strict 
timeframe of 72 hours within which care provider facilities must 
respond to a placement request, stating that ORR should not permit care 
provider facilities to avoid their obligations by delaying or failing 
to respond to placement requests. These commenters further recommended 
that ORR set a strict timeframe within which ORR staff must respond to 
any written request by a care provider facility for authorization to 
deny placement, and that if ORR denies the care provider facility's 
request, the care provider facility should be required to arrange 
promptly for the child's transfer to its facility.
    Commenters also stated that the regulations should provide for 
monitoring and oversight of provider compliance with respect to 
placement requests, given the findings of the May 2023 report issued by 
the HHS Office of Inspector General (OIG) \104\ that ``ORR staff and 
care provider facility staff did not document information critical to 
the transfer of unaccompanied children'' and ``did not have a process 
in place to track denied transfers,'' and the longstanding issue of 
improper placement denials by providers. Specifically, these commenters 
stated that ORR should track care provider facilities' written requests 
for authorization to deny placements and ORR's responses to those 
requests and order corrective actions, such as re-training, for care 
provider facilities that have had their requests denied on multiple 
occasions. Furthermore, the commenters stated that for accountability 
and oversight, ORR should publish aggregate data regarding care 
provider facility compliance and provide data regarding corrective 
actions to the Ombudsperson for review.
    Response: ORR notes that whenever a care provider facility denies 
placement of a child, with or without a disability, it makes every 
effort to promptly identify another placement in the least restrictive, 
most integrated setting that is in the child's best interest and 
appropriate to the child's needs. ORR has procedures in place to ensure 
that transfers happen within a reasonable timeframe which may vary 
depending on the facts of a particular case to ensure that placements 
are made in the child's best interest. Given this, ORR does not believe 
it is necessary or appropriate to codify a strict timeframe as 
requested by commenters.
    With respect to the recommendation that, if ORR denies the care 
provider facility's request to deny placement, the care provider 
facility should be required to arrange promptly for the child's 
transfer to its facility, ORR notes that, in these cases, ORR expects 
the care provider facility to arrange promptly for the child's 
transfer. As provided at Sec.  410.1103(g), ORR may also follow up with 
a care provider facility about a placement denial to find a solution to 
the reason for the denial. Given this, ORR expects that the reason for 
the requested denial may be resolved in many cases through such follow-
up such that a child may be promptly transferred to such facility 
without issue. However, if the care provider facility nevertheless 
continues to deny placement of the child, ORR will impose corrective 
actions as appropriate. ORR also notes that it has established a 
Transfer Review Panel to help conduct oversight of care provider 
facility transfer decisions to track when denials occur and help 
resolve challenges to placement that might arise.
    Finally, with respect to commenters' recommendations that the 
regulations provide for monitoring and oversight of care provider 
facility compliance with respect to placement requests and that ORR 
publish aggregate data regarding care provider facility compliance and 
provide data regarding corrective actions to the Ombudsperson for 
review, ORR will take them under consideration and may address them in 
future policymaking.
    Comment: One commenter opposed proposed Sec.  410.1103(f), stating 
that it eliminates the discretion Florida's childcare providers have 
when it comes to accepting placement of unaccompanied children. The 
commenter stated that care provider facilities must maintain autonomy 
to determine which children they are willing to accept for placement 
and may have reasons for denying a placement beyond those provided in 
Sec.  410.1103(f). The commenter provided examples of other 
circumstances in which, in the commenter's view, a Florida care 
provider facility should have the independent discretion to deny 
placement, including where the care

[[Page 34421]]

provider facility determines that placement of the child would pose a 
risk to another child for whom the facility is already providing care 
(such as when a child has an emotional or behavioral disturbance that 
cannot be managed); where a care provider facility determines that 
placement would pose a risk to the child, such as placement of a young 
child in a group home that is currently caring for teenagers; or where 
the care provider facility determines that it does not have the 
resources to appropriately care for the child.
    One commenter sought clarification about whether the intent of 
proposed Sec.  410.1103(f) and (g) was to remove the care provider 
facility's autonomy to decide for itself whether it meets one of the 
criteria at proposed Sec.  410.1103(f), noting that the two subsections 
seem to conflict with one another. In addition, the commenter stated 
that follow-up with the care provider facility after submitting a 
written placement denial request will likely take more time than the 48 
hours allowed (as provided under Sec.  410.1101(b)), and asked whether, 
in this case, the child would then be placed at the care provider 
facility regardless of whether ORR's decision process has been 
completed.
    Response: As noted in the NPRM, the requirements at Sec.  
410.1103(f) and (g) are consistent with ORR's authority under the HSA 
\105\ to make and implement placement determinations, and to oversee 
its care provider facilities. ORR further notes its care provider 
facilities agree, as a condition of their funding, to abide by ORR 
policies, which include policies regarding the placement of 
unaccompanied children. ORR believes that the provisions at Sec.  
410.1103(f) and (g) are reasonable and necessary to enable prompt 
placement of unaccompanied children, including children with 
disabilities, in the least restrictive, most integrated setting 
appropriate to their needs as mandated by the TVPRA and as is 
consistent with section 504, and to ensure that children do not remain 
unnecessarily in restrictive placements even after ORR and care 
provider facility staff have determined that they should be stepped 
down to a less restrictive placement. As provided at Sec.  410.1103(g), 
care provider facilities must submit a written request to ORR for 
authorization to deny placement, which must be approved by ORR before 
the care provider facility may deny placement. Certain examples 
provided by the commenter of other circumstances in which a care 
provider facility should have the independent discretion to deny 
placement involve factors (danger to self and the community/others) 
considered by ORR under Sec.  410.1103 prior to making a placement 
determination in the best interests of the child, and thus in most 
cases, at the time a placement determination is made, these should not 
be issues. However, as provided at Sec.  410.1103(g), in any case, ORR 
may follow up with a care provider facility about a placement denial to 
find a solution to the reason for the denial.
    Finally, ORR will make every effort to promptly approve or deny a 
care provider facility's written placement denial request, or work with 
the facility to resolve the issue raised in the request. If ORR 
believes it cannot make a determination on the request within the 48-
hour timeframe set forth at Sec.  410.1101(b), ORR will evaluate the 
circumstances and the best interests of the child in each individual 
case to determine how to proceed.
    Final Rule Action: At Sec.  410.1103(b) introductory language, ORR 
is replacing the phrase ``that may be relevant'' with ``to the extent 
they are relevant.'' In addition, at Sec.  410.1103(b)(7), ORR is 
replacing ``LGBTQI+ status'' with ``LGBTQI status or identity.'' Also, 
at Sec.  410.1103(e), ORR is revising ``placement'' to state ``licensed 
placement.'' Finally, at Sec.  410.1103(f)(4), ORR is revising the 
phrase ``altering its program'' to ``altering the nature of its 
program'' consistent with references to this standard in other sections 
of this final rule. Otherwise, ORR is finalizing Sec.  410.1103 as 
proposed in the NPRM.
Section 410.1104 Placement of an Unaccompanied Child in a Standard 
Program That Is Not Restrictive
    ORR proposed in the NPRM at Sec.  410.1104 to codify substantive 
criteria for placement of an unaccompanied child in a standard program 
that is not a restrictive placement (88 FR 68922). The TVPRA requires 
ORR to promptly place unaccompanied children ``in the least restrictive 
setting that is in the best interest of the child,'' and states that in 
making such placements ORR ``may consider danger to self, danger to the 
community, and risk of flight.'' \106\ ORR also noted that under 
paragraph 19 of the FSA, with certain exceptions, an unaccompanied 
child must be placed temporarily in a licensed program until release 
can be effectuated or until immigration proceedings are concluded. 
Consistent with the TVPRA and existing policy, ORR proposed in the NPRM 
at Sec.  410.1104, to place all unaccompanied children in a standard 
program that is not a restrictive placement (in other words, that is 
not a heightened supervision facility) after the unaccompanied child is 
transferred to ORR legal custody, except in the following 
circumstances: (a) the unaccompanied child meets the criteria for 
placement in a restrictive placement set forth at Sec.  410.1105; or 
(b) in the event of an emergency or influx of unaccompanied children 
into the United States, in which case ORR shall place the unaccompanied 
child as expeditiously as possible in accordance with subpart I 
(Emergency and Influx Operations). These exceptions are consistent with 
placement considerations described in the TVPRA at 8 U.S.C. 
1232(c)(2)(A) (noting, for example, that in making placements HHS ``may 
consider danger to self, danger to the community, and risk of 
flight''), and exceptions provided for in section paragraph 19 of the 
FSA.
    ORR did not propose to codify certain other exceptions described in 
the FSA and included in the 2019 Final Rule at Sec.  410.202(b) and 
(d). The 2019 Final Rule at Sec.  410.202(b) provided that 
unaccompanied children do not have to be placed in a standard program 
as otherwise required by any court decree or court-approved settlement. 
ORR stated in the NPRM that it did not believe it was necessary to 
include this exception, as any court decree or settlement that would 
require ORR to implement placement criteria that differ from those at 
Sec.  410.1104 would take effect pursuant to its own terms even without 
specifying these potential circumstances in the regulation. Section 
410.202(d) provided that an unaccompanied child does not have to be 
placed in a standard program if a reasonable person would conclude that 
the unaccompanied child is an adult despite the individual's claims to 
be a child. ORR stated that it also did not believe it was necessary to 
include this exception in Sec.  410.1104 because a person determined by 
ORR to be an adult (has attained 18 years of age) would be excluded 
from the definition of unaccompanied child and thus would not be placed 
in any ORR care provider facility (ORR referred readers to subpart H 
for discussion of age determinations).
    Comment: One commenter stated that ORR should view congregate 
shelters as semi-restrictive in nature and stated that there is a 
continuum of restrictiveness among the placements categorized as non-
restrictive. Specifically, this commenter recommended that ORR 
distinguish in Sec.  410.1104 between non-restrictive placements based 
on the size and duration of stay of the children housed in those 
placements. The commenter noted that congregate shelters, particularly 
when they have a capacity over 25 children, impose significant 
restrictions on children (asserting, for example, that doors are

[[Page 34422]]

locked, children are required to be in certain locations at certain 
times and do not attend local schools, meal times have strict 
schedules, and recreation is limited), and thus should be classified as 
semi-restrictive and used sparingly. The commenter further stated that 
a presumption should be incorporated, consistent with child welfare 
standards, that no later than 2 weeks after ORR assumes custody, the 
child should be placed in a community-based or family placement. The 
commenter added that ORR should have the burden of justifying placement 
of children in large congregate shelters for longer than two weeks, and 
that family and small community-based placements are the least 
restrictive alternative to release and should be the norm for placing 
children. Another commenter similarly stated that while shelters 
operate at a lesser degree of restriction than heightened supervision 
facilities and secure facilities, larger shelters have an institutional 
nature where children are under constant supervision by staff and are 
not permitted to depart and return at will. This commenter also urged 
ORR to pay particular attention to situations where children remain in 
such shelter settings for prolonged periods because the restrictions in 
place and the separation of children from the local community can begin 
to manifest as more detention-like the longer a child remains there.
    Response: As described at Sec.  410.1102, ORR utilizes various 
types of non-restrictive placements, including shelters, group homes, 
and individual family homes. Such care provider facilities may vary in 
terms of the number of children they house (e.g., based on their 
physical capacity and licensure requirements) but these are not 
restrictive placements. ORR recognizes that, as noted by commenters, 
larger shelters may generally be more institutional in nature than 
smaller, home-like settings. Consistent with these comments, ORR 
believes that where possible, based on an unaccompanied child's age, 
individualized needs, and circumstances, as well as a care provider 
facility's capacity, it should prioritize placing unaccompanied 
children in transitional and long-term home care settings while they 
are awaiting release to sponsors, so as to limit the time spent in 
large congregate care facilities. However, as discussed previously in 
this final rule preamble addressing comments under Sec.  410.1102, 
efforts to place more unaccompanied children out of congregate care 
shelters that house more than 25 children together is a long-term 
aspiration, given the large number of children in its custody and the 
number of additional programs that would be required to care for them 
in home care settings or small-scale shelters of 25 children or less.
    Comment: One commenter recommended that the proposed language at 
Sec.  410.1104 (``ORR places all unaccompanied children in standard 
programs'') should state instead that ORR ``shall place'' all 
unaccompanied children in standard programs. In addition, the commenter 
stated that the TVPRA (8 U.S.C. 1232(c)(2)(A)) requires that children 
``promptly'' be placed in such settings. Thus, the commenter further 
recommended that, consistent with the TVPRA, ORR revise the language to 
clarify that ORR is required to ``promptly'' place unaccompanied 
children in the least restrictive setting pursuant to an individualized 
determination of the child's best interest.
    Response: ORR intended for the language at Sec.  410.1104 to 
reflect a mandatory obligation, and thus as the commenter recommended, 
ORR is revising the introductory language at Sec.  410.1104 to state 
that ORR ``shall place'' all accompanied children in standard programs. 
With respect to the recommendation that ORR add the word ``promptly,'' 
ORR believes that the timeframe for identifying placement under Sec.  
410.1101(b) satisfies the prompt placement requirement set forth in the 
TVPRA, and thus is not adding this word to Sec.  410.1104. The purpose 
of Sec.  410.1104 is to establish ORR's obligation to place 
unaccompanied children in standard programs as opposed to restrictive 
placements or emergency or influx facilities, except in the 
circumstances delineated in paragraphs (a) and (b)--rather than to 
establish a timeline for such placement. Finally, ORR notes that the 
``least restrictive setting'' and ``best interest'' requirements are 
addressed in Sec.  410.1103(a), and thus ORR does not believe it is 
necessary to add that language to Sec.  410.1104 as recommended by the 
commenter.
    Comment: A few commenters stated that proposed Sec.  410.1104 is 
not consistent with the FSA because it does not include a requirement 
that all determinations to place a minor in a secure facility will be 
reviewed and approved by the regional juvenile coordinator, as required 
at paragraph 23 of the FSA. The commenters asserted that the Placement 
Review Panel cannot substitute for this safeguard.
    Response: ORR notes that criteria for placing unaccompanied 
children in restrictive placements, including secure placements, are 
set forth at Sec.  410.1105. Nevertheless, ORR agrees that paragraph 23 
of FSA states that all determinations to place a minor in a secure 
facility will be reviewed and approved by the regional juvenile 
coordinator. This was a reference to a specific position that existed 
at the INS in 1997. To comply with this requirement, ORR Federal field 
staff, which is an equivalent position to the regional juvenile 
coordinator, will perform the function described in the FSA with 
respect to reviewing and approving such placement determinations. 
Accordingly, as provided in the next section of this preamble, ORR is 
revising Sec.  410.1105(a)(1) to provide that all determinations to 
place an unaccompanied child in a secure facility (that is not an RTC) 
will be reviewed and approved by ORR Federal field staff.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1104 as proposed with one modification. ORR is 
revising Sec.  410.1104 to state that ORR ``shall place'' all 
unaccompanied children in standard programs in order to clarify the 
mandatory nature of its obligation under this section.
Section 410.1105 Criteria for Placing an Unaccompanied Child in a 
Restrictive Placement
    ORR proposed in the NPRM at Sec.  410.1105 to address the criteria 
for placing unaccompanied children in restrictive placements (88 FR 
68922 through 68925). ORR proposed in the NPRM at Sec.  410.1001 to 
define restrictive placements to include secure facilities, heightened 
supervision facilities, and RTCs. The criteria for placement in each of 
these facilities are further discussed below.
    ORR proposed in the NPRM at Sec.  410.1105(a) to address placement 
at secure facilities that are not RTCs. ORR proposed in the NPRM at 
Sec.  410.1105(a)(1) that consistent with existing policies, it may 
place an unaccompanied child in a secure facility (that is not also an 
RTC) either upon referral from another agency or department of the 
Federal Government (i.e., as an initial placement), or through a 
transfer to another care provider facility after the initial placement.
    ORR proposed in the NPRM at Sec.  410.1105(a)(2), that it would not 
place an unaccompanied child in a secure facility (that is not also an 
RTC) if less restrictive alternative placements are available. ORR 
noted that such placements must also be appropriate under the 
circumstances and in the best interests of the unaccompanied child. In

[[Page 34423]]

determining whether there is a less restrictive placement available to 
meet the individualized needs of an unaccompanied child with a 
disability, consistent with section 504, ORR explained that it must 
consider whether there are any reasonable modifications to the 
policies, practices, or procedures of an available less restrictive 
placement or any provision of auxiliary aids and services that would 
allow the unaccompanied child with a disability to be placed in that 
less restrictive facility. However, ORR stated that it is not required 
to take any action that it can demonstrate would result in a 
fundamental alteration in the nature of a program or activity. ORR 
noted that the proposed regulation text is consistent with 8 U.S.C. 
1232(c)(2)(A). Also, ORR noted that this requirement is consistent with 
paragraph 23 of the FSA, which provides that ORR may not place an 
unaccompanied child in a secure facility if there are less restrictive 
alternatives that are available and appropriate in the circumstances. 
Under the FSA, less restrictive alternatives include transfer to (a) a 
medium security facility, which is equivalent to ``heightened 
supervision facility'' as defined at proposed Sec.  410.1001, or (b) 
another licensed program, a term which ORR noted that, for purposes of 
the proposed rule, is superseded by ``standard program'' as defined at 
proposed Sec.  410.1001. Consistent with the FSA, ORR further proposed 
in the NPRM at Sec.  410.1105(a)(2) that it may place an unaccompanied 
child in a heightened supervision facility or other non-secure care 
provider facility as an alternative, provided that the unaccompanied 
child does not pose a danger to self or others. ORR stated that it 
believes that such alternative placements may not be appropriate for 
unaccompanied children who pose a danger to self or others, as less 
restrictive placements may not have the level of staff supervision and 
requisite security procedures to address the needs of such 
unaccompanied children.
    ORR proposed in the NPRM to place unaccompanied children in secure 
facilities (that are not RTCs) in limited, enumerated circumstances set 
forth at Sec.  410.1105(a)(3). Specifically, ORR proposed in the NPRM 
that it may place an unaccompanied child in a secure facility (that is 
not an RTC) only if the unaccompanied child meets one of three 
criteria. First, ORR proposed in the NPRM at Sec.  410.1105(a)(3)(i) 
that it may place the unaccompanied child in a secure facility (that is 
not an RTC) if the unaccompanied child has been charged with, or 
convicted of, a crime, or is the subject of delinquency proceedings, a 
delinquency charge, or has been adjudicated delinquent, and where ORR 
deems that those circumstances demonstrate that the unaccompanied child 
poses a danger to self or others, not including: (1) an isolated 
offense that was not within a pattern or practice of criminal activity 
and did not involve violence against a person or the use or carrying of 
a weapon; or (2) a petty offense, which is not considered grounds for 
stricter means of detention in any case. ORR noted in the NPRM that 
these provisions were also included in the 2019 Final Rule at Sec.  
410.203(a)(1), except that as proposed, Sec.  410.1105(a)(3) omits 
language from the FSA and previous Sec.  410.203(a)(1) that allows an 
unaccompanied child to be placed in a secure facility if the 
unaccompanied child is ``chargeable with a delinquent act'' (which 
under the FSA, means that ORR has probable cause to believe that the 
unaccompanied child has committed a specified offense). ORR stated that 
it believes it is appropriate to omit such language because being 
``chargeable'' with an offense is not a permissible reason for 
placement in a secure facility identified by the TVPRA.\107\ Further, 
because it is not a law enforcement agency, unlike the former INS, ORR 
stated that it is not in a position to make determinations such as 
whether an unaccompanied child is ``chargeable'' with an offense. Even 
without this language, ORR stated that it believes finalizing this 
provision as proposed is consistent with the substantive criteria of 
the FSA. Furthermore, consistent with 8 U.S.C. 1232(c)(2)(A) (which 
does not list runaway risk as a permissible reason for placement in a 
secure facility), ORR did not propose runaway risk as a factor in 
determining placement in a secure facility, even though that is a 
permissible ground under the FSA for placement in a secure facility.
    Second, ORR proposed in the NPRM at Sec.  410.1105(a)(3)(ii) that 
it may place an unaccompanied child in a secure facility (that is not 
an RTC) if the unaccompanied child, while in DHS or ORR custody, or 
while in the presence of an immigration officer, ORR official, or ORR 
contracted staff, has committed, or has made credible threats to 
commit, a violent or malicious act (whether directed at the 
unaccompanied child or others). The 2019 Final Rule at Sec.  
410.203(a)(2) and paragraph 21B of the FSA contain a similar provision, 
except that in contrast to Sec.  410.203(a)(2) and the FSA, finalizing 
this provision as proposed in the NPRM would include acts committed in 
the presence of an ``ORR official or ORR contracted staff.'' ORR stated 
that it believes the addition of this language is appropriate given 
that ORR officials and contracted staff would more often be in a 
position to observe an unaccompanied child's behavior and actions and 
to assess whether an unaccompanied child has committed, or made 
credible threats to commit, the acts referenced in this provision. 
Again, ORR stated it does not believe this change constitutes a 
substantive deviation from the requirements of the FSA.
    Third, ORR proposed in the NPRM at Sec.  410.1105(a)(3)(iii) that 
it may place an unaccompanied child in a secure facility (that is not 
an RTC) if the unaccompanied child has engaged, while in a restrictive 
placement, in conduct that has proven to be unacceptably disruptive of 
the normal functioning of the care provider facility, and removal from 
the facility is necessary to ensure the welfare of the unaccompanied 
child or others, as determined by the staff of the care provider 
facility (e.g., substance or alcohol use, stealing, fighting, 
intimidation of others, or sexually predatory behavior), and ORR 
determines the unaccompanied child poses a danger to self or others 
based on such conduct. The 2019 Final Rule contained a similar 
provision at Sec.  410.203(a)(3), which was based on paragraph 21C of 
the FSA. But in contrast to Sec.  410.203(a)(3) of the 2019 Final Rule 
and the FSA, ORR noted that the proposed provision in the NPRM requires 
that the conduct at issue be engaged in while in a ``restrictive 
placement,'' rather than a ``licensed program.'' ORR stated that it 
believes such disruptive behavior should initially result in potential 
transfer to a heightened supervision facility before placement in a 
secure facility (that is not an RTC)--in other words, that disruptive 
behavior in a standard program that is not a restrictive placement 
should not result in immediate transfer, or ``step-up,'' to a secure 
facility. As discussed above, the 2019 Final Rule was intended to 
implement the provisions of the FSA that relate to HHS. However, ORR 
proposed in the NPRM this change in order to ensure that unaccompanied 
children in such circumstances are stepped up to a more structured 
program rather than being immediately placed in a secure facility. ORR 
stated in the NPRM that it believes this update is consistent with its 
authorities under the HSA and TVPRA \108\ and does not believe it 
constitutes a substantive deviation from the requirements of the

[[Page 34424]]

FSA, which provides that unaccompanied children ``may'' be transferred 
to secure facilities based on unacceptably disruptive conduct where 
transfer is necessary to ensure the welfare of the unaccompanied child 
or others but does not require such transfer (88 FR 68923).\109\
    ORR proposed in the NPRM at Sec.  410.1105(b) to outline the 
policies and criteria that it would apply in placing unaccompanied 
children in heightened supervision facilities. ORR noted in the NPRM 
that the term ``heightened supervision facility'' as defined at Sec.  
410.1001 would be used in place of the term ``medium secure'' facility 
provided in the FSA and in place of the term ``staff secure facility'' 
currently used by ORR at 45 CFR part 411 and in its subregulatory 
guidance. ORR stated that it believes the term ``heightened supervision 
facility'' better reflects the nature and purpose of such facilities, 
which is to provide care to unaccompanied children who require close 
supervision but do not need placement at a secure facility, including 
an RTC. As reflected in the proposed definition, ORR stated that 
heightened supervision facilities maintain stricter security measures 
than a shelter such as intensive staff supervision in order to provide 
supports, manage problem behavior, and prevent an unaccompanied child 
from running away. ORR proposed in the NPRM at Sec.  410.1105(b)(1) 
that it may place unaccompanied children in this type of facility 
either as an initial placement (upon referral from another agency or 
department of the Federal Government) or through a transfer from the 
initial placement. Furthermore, ORR proposed in the NPRM, at Sec.  
410.1105(b)(2), to codify factors it would consider in determining 
whether to place an unaccompanied child in a heightened supervision 
facility. Specifically, ORR stated it would consider if the 
unaccompanied child (1) has been unacceptably disruptive to the normal 
functioning of a shelter such that transfer is necessary to ensure the 
welfare of the unaccompanied child or others; (2) is a runaway risk, 
based on the criteria at proposed Sec.  410.1107; (3) has displayed a 
pattern of severity of behavior, either prior to entering ORR custody 
or while in ORR care, that requires an increase in supervision by 
trained staff; (4) has a non-violent criminal or delinquent history not 
warranting placement in a secure facility, such as isolated or petty 
offenses as described previously; or (5) is assessed as ready for step-
down from a secure facility, including an RTC. ORR stated that it 
believes each of these proposed criteria identifies pertinent 
background and behavioral concerns that may warrant heightened 
supervision, rather than placement in a secure facility, including an 
RTC, consistent with the purpose of heightened supervision facilities.
    ORR proposed in the NPRM at Sec.  410.1105(c) the criteria it would 
consider for placing an unaccompanied child in an RTC, as defined at 
proposed Sec.  410.1001. ORR stated in the NPRM that it would place an 
unaccompanied child in an RTC only if it is the least restrictive 
setting that is in the best interest of the unaccompanied child and 
appropriate to the unaccompanied child's age and individualized needs, 
consistent with the TVPRA at 8 U.S.C. 1232(c)(2)(A) (``an unaccompanied 
alien child shall be promptly placed in the least restrictive setting 
that is in the best interest of the child.''). Similar to other secure 
facilities and heightened supervision facilities, ORR proposed in the 
NPRM that an unaccompanied child may be placed at an RTC both as an 
initial placement upon referral from another agency or department of 
the Federal Government, and upon transfer from another care provider 
facility. In addition, ORR proposed in the NPRM at Sec.  410.1105(c)(1) 
that an unaccompanied child who has serious mental or behavioral health 
issues may be placed in an RTC only if the unaccompanied child is 
evaluated and determined to be a danger to self or others by a licensed 
psychologist or psychiatrist consulted by ORR or a care provider 
facility, which includes a determination by clear and convincing 
evidence documented in the unaccompanied child's case file or referral 
documentation by a licensed psychologist or psychiatrist that an RTC is 
appropriate. ORR stated that this requirement is consistent with the 
factors the Secretary of HHS may consider under the TVPRA at 8 U.S.C. 
1232(c)(2)(A) in making placement determinations for unaccompanied 
children and was also included in the 2019 Final Rule at Sec.  
410.203(a)(4).\110\ ORR also noted that when it determines whether 
placement in an RTC, or any care provider facility is appropriate, it 
considers the best interests not only of the unaccompanied child being 
placed, but also the best interests of other unaccompanied children who 
are housed at the proposed receiving care provider facility, including 
their safety and well-being. ORR stated that it believes it is 
authorized to consider these factors under the TVPRA.\111\ ORR also 
noted that it considers the safety of care provider facility staff when 
making placement determinations for unaccompanied children, consistent 
with its duty to oversee the infrastructure and personnel of facilities 
in which unaccompanied children reside.\112\ ORR further stated that 
for an unaccompanied child with one or more disabilities, consistent 
with section 504, the determination whether to place the unaccompanied 
child in an RTC would need to consider whether reasonable modifications 
to policies, practices, and procedures in the unaccompanied child's 
current placement or any provision of auxiliary aids or services, could 
sufficiently reduce the danger to the child or others. However, ORR 
noted that it is not required to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
program or activity. Finally, consistent with its existing policies, 
ORR proposed in the NPRM at Sec.  410.1105(c)(1) that it would use the 
criteria for placement in a secure facility described at Sec.  
410.1105(a) to assess whether the unaccompanied child is a danger to 
self or others. ORR stated that it believes it is appropriate to apply 
these criteria in making this assessment in the context of RTC 
placement because all secure facilities (including RTCs) are intended 
for unaccompanied children who pose a danger to self and others 
(although RTCs are intended for unaccompanied children who also have a 
serious mental health or behavioral health issue that warrants 
placement in an RTC).
    Consistent with existing policies, under Sec.  410.1105(c)(2), ORR 
proposed in the NPRM that it would be able to place an unaccompanied 
child at an out-of-network (OON) RTC when a licensed clinical 
psychologist or psychiatrist consulted by ORR or a care provider 
facility has determined that the unaccompanied child requires a level 
of care only found in an OON RTC (either because the unaccompanied 
child has identified needs that cannot be met within the ORR network of 
RTCs or no placements are available within ORR's network of RTCs), or 
that an OON RTC would best meet the unaccompanied child's identified 
needs. Also consistent with existing policies, ORR noted that in these 
circumstances, even though an unaccompanied child would be physically 
located at the OON RTC, the unaccompanied child would remain in ORR's 
legal custody. ORR stated that it would monitor the unaccompanied 
child's progress and ensure the unaccompanied child is receiving 
required services. ORR explained that OON RTCs are vetted prior to 
placement to ensure that the program is in good standing and is 
complying with all

[[Page 34425]]

applicable State welfare laws and regulations and all State and local 
building, fire, health, and safety codes. ORR further explained that it 
also may confer with other Federal agencies and non-governmental 
stakeholders, such as the protection and advocacy (P&A) systems, when 
vetting OON RTCs to determine, in its discretion, the appropriateness 
of such OON RTCs for placement of unaccompanied children. ORR noted 
that it appreciates that P&As may have valuable information relating to 
the vetting process because they may have prior experience with certain 
facilities with respect to their past care and treatment of individuals 
with disabilities (e.g., findings of abuse and neglect, compliance 
issues).
    ORR proposed in the NPRM at Sec.  410.1105(c)(3) that the criteria 
for placement in or transfer to an RTC would also apply to transfers to 
or placements in OON RTCs (that is, the clinical criteria considered in 
placing an unaccompanied child at an RTC level of care would not change 
regardless of whether the RTC is in ORR's network or OON). ORR proposed 
in the NPRM at Sec.  410.1105(c)(3) to permit care provider facilities 
to request that ORR transfer certain unaccompanied children to RTCs. 
ORR noted that proposed Sec.  410.1601(d) further addresses when a care 
provider facility may make such a request.
    Comment: Several commenters expressed support for ORR's proposal to 
reduce the use of restrictive placements and establish clearer 
guidelines for when such placements are deemed appropriate, in 
accordance with the terms of the FSA. These commenters noted that 
restrictive placements can have a lasting impact on the well-being of 
unaccompanied children and should be considered a measure of last 
resort. Commenters stated that by undertaking measures to minimize 
their use and providing explicit guidelines for their application, as 
well as processes for contesting these placement decisions, ORR is 
taking a commendable step in safeguarding the rights and safety of 
these vulnerable children.
    One commenter specifically agreed with the proposal to exclude 
language from Sec.  410.1105(a)(3)(i) that would allow ORR to make 
determinations regarding secure facility placement based on whether an 
unaccompanied child is ``chargeable.''
    Response: ORR notes that for the reasons set forth in the NPRM (88 
FR 68923), ORR is finalizing proposed Sec.  410.1105(a)(3)(i), which 
excludes language that would allow ORR to make determinations regarding 
secure facility placement based on whether an unaccompanied child is 
``chargeable.''
    Comment: One commenter urged ORR to prioritize locating restrictive 
programs in geographic locations where there exists a continuum of care 
that includes all levels of placement, including community-based care, 
stating that this would allow for children in restrictive care who are 
ready to transition to less restrictive settings (including community-
based care) to be easily and quickly stepped-down. The commenter 
further noted that this would also enable co-located programs in the 
same region to share resources, build expertise in the needs of 
unaccompanied children, and gain greater familiarity with local 
programs in ways that can better support children's timely transfer to 
less restrictive care settings.
    Response: ORR believes this suggestion is worthy of greater 
consideration and may consider it in future policymaking. ORR also 
notes that Sec.  410.1103(f) and (g), as finalized in this rule, will 
help to ensure that children in restrictive placements who are assessed 
by ORR and the care provider facility as ready to step down to a less 
restrictive placement (including community-based care) are promptly 
transitioned to appropriate facilities consistent with their best 
interests. In each case, ORR takes into account the factors set forth 
at Sec.  410.1103 to the extent relevant, as well as the factors set 
forth at Sec.  410.1105 as appropriate, in determining and planning 
such transitions to ensure a safe and appropriate placement. In this 
manner, ORR facilitates prompt placement of unaccompanied children, 
including children with disabilities, in the least restrictive, most 
integrated setting appropriate to their needs as mandated by the TVPRA 
and as is consistent with section 504.
    Comment: Many commenters expressed the view that proposed Sec.  
410.1105 uses undefined and vaguely worded provisions, including the 
terms ``unacceptably disruptive,'' ``severity of behavior,'' 
``malicious,'' and other critical terms, and various assessments for 
agency decision points. One commenter specifically noted their concern 
that the reliance on subjective assessments and the absence of clear 
benchmarks allows for differing interpretations among staff, which 
could lead to inconsistencies in decision-making or manipulation of the 
rules which may put children at risk.
    While many commenters appreciated that the NPRM at Sec.  
410.1105(a)(3)(iii) limited the ``unacceptably disruptive'' criteria 
for secure placement to behavior that occurs in a restrictive 
placement, such that for example unacceptably disruptive behavior in a 
shelter would not lead to immediate step-up to a secure facility, they 
expressed that the ``unacceptably disruptive'' criteria for placement 
in either a secure or heightened supervision facility was 
inappropriately vague and created a high risk that children would be 
punished through step-up to more restrictive facilities for behaviors 
that are a manifestation of their disabilities.
    Several commenters stated that if a child with a disability is 
considered for step-up to a more restrictive facility based on their 
behavior, the rule should require a ``manifestation determination'' 
(which could be similar to the determination under the Individuals with 
Disabilities Education Act (IDEA)) to determine whether the child's 
behavior is linked to their disability and/or is the result of a 
failure to provide the child with reasonable modifications and 
services. These commenters stated that if a child's behavior is a 
manifestation of their disability, ORR must conduct a functional 
behavioral assessment and develop (or review) a behavior intervention 
plan for the child instead of changing their placement.
    Some commenters noted that children in secure facilities often have 
unmet behavioral health needs or unaddressed mental health 
disabilities. Commenters also expressed that a child whose behavior is 
deemed disruptive should be assessed by trained professionals and given 
services and supports necessary to meet their individualized needs 
instead of being stepped up to a more restrictive setting. One 
commenter noted that ``disruptive'' behavior is often a child's way of 
communicating that they feel disrespected, unheard, or that their needs 
are not being met. Furthermore, the commenter noted that Black children 
and children from other marginalized groups are more likely to be 
considered ``disruptive'' due to systemic racism. The commenter noted 
that this bias can be compounded if there is a lack of cultural 
humility and competency on the part of ORR subcontracted staff.
    One commenter expressed the view that criteria such as risk of 
flight, danger to self or others, or criminal history were broad and 
vague, stating that this would violate the children's right to liberty 
and placement in the least restrictive setting and expose them to 
harmful and traumatic conditions.
    Many commenters expressed the view that Sec.  410.1105(b)(2)(v) is 
ambiguous and greater guidance is needed. The commenters recommended 
the

[[Page 34426]]

development of specific behavioral criteria to indicate the need for a 
heightened supervision setting or a return to a standard shelter 
setting, which could include failure of an established behavior 
management plan, behavioral reports of threats of safety to self or 
others, or conversely the absence of such reports and completion of an 
established behavior plan.
    Response: ORR believes that the ``unacceptably disruptive'' 
criterion, as it relates to both secure facilities (that are not RTCs) 
(at Sec.  410.1105(a)(3)(iii)) and heightened supervision facilities 
(at Sec.  410.1105(b)(2)(i)), is consistent with the TVPRA, under which 
the Secretary may consider danger to self and community in making 
placements, and reasonably reflects pertinent behavioral concerns that 
may warrant placement in such restrictive settings. Further, as noted 
in the NPRM, this ``unacceptably disruptive'' criterion for placement 
in secure facilities (that are not RTCs) is consistent with paragraph 
21 of the FSA. ORR notes that Sec.  410.1105(a)(3)(iii) provides 
specific requirements and guardrails with respect to the circumstances 
in which placement in a secure facility (that is not an RTC) may be 
warranted where a child's behavior, while in a restrictive placement 
(but not a shelter), has proven to be unacceptably disruptive of the 
normal functioning of a care provider facility. In order for an 
unaccompanied child's disruptive behavior to warrant placement in a 
secure facility (that is not an RTC), removal of the child from the 
less restrictive facility must be necessary to ensure the welfare of 
others, as determined by the staff of the care provider facility (e.g., 
stealing, fighting, intimidation of others, or sexually predatory 
behavior), and ORR must determine that the child poses a danger to 
others. Similarly, Sec.  410.1105(b)(2)(i), addressing heightened 
supervision facilities, provides additional guidance with respect to 
the application of this criterion, providing that a child must be 
unacceptably disruptive to the normal functioning of a shelter such 
that transfer to the heightened supervision facility is necessary to 
ensure the welfare of the child or others. Applying this criterion 
requires care provider facility staff and ORR to make determinations 
based on individual circumstances and in the best interests of both the 
child whose placement is at issue and the best interests of other 
children in the relevant facility. As a result, ORR believes it 
promotes necessary flexibility in application of this criterion to not 
include a definition of the term ``unacceptably disruptive.''
    ORR notes that it has protections in place to ensure that children 
with identified or suspected disabilities are assessed by trained 
professionals and given services and supports necessary to meet their 
individualized needs. As provided by Sec.  410.1106, ORR must assess 
each unaccompanied child in its care, including any child with a 
disability, to determine whether the unaccompanied child requires 
particular services and treatment by staff, or particular equipment to 
address their individualized needs. If so, ORR must place the 
unaccompanied child, whenever possible, in a standard program in which 
the unaccompanied child with individualized needs can interact with 
children without those individualized needs to the fullest extent 
possible, but which provides services and treatment, or equipment for 
such individualized needs. Additionally, pursuant to the new Sec.  
410.1105(d), and consistent with section 504 and Sec.  410.1311(c), 
ORR's determination under Sec.  410.1105 whether to place an 
unaccompanied child with one or more disabilities in a restrictive 
placement (or to transfer an unaccompanied child to such a placement) 
shall include consideration of whether there are any reasonable 
modifications to the policies, practices, or procedures of an available 
less restrictive placement (which could be the child's current 
placement) or any provision of auxiliary aids and services that would 
allow the unaccompanied child to be placed in that less restrictive 
facility. However, ORR is not required to take any action that it can 
demonstrate would fundamentally alter the nature of a program or 
activity.
    In response to commenters' specific recommendation for a 
``manifestation determination'' to determine whether the child's 
behavior is linked to their disability and/or is the result of a 
failure to provide the child with reasonable modifications and 
services, ORR notes that, while the IDEA does not govern the placement 
of children with disabilities in ORR custody, as is consistent with the 
new Sec.  410.1105(d), ORR will assess whether a child's behavior is 
related to the child's disability or failure to receive the necessary 
reasonable modifications and services. ORR may consider commenters' 
recommendations concerning functional behavioral assessments and 
behavior intervention plans in future policymaking, which may be 
informed by the anticipated year-long comprehensive disability needs 
assessment that ORR will undertake working with experts, and the 
development of a disability plan. In addition, ORR refers readers to 
Sec.  410.1304 for discussion of its requirements regarding behavioral 
management strategies and interventions.
    In response to comments regarding the need to be sensitive to 
factors such as racial or cultural bias that could potentially 
influence whether a child is determined to be ``unacceptably 
disruptive,'' both the NPRM and this final rule include provisions to 
specifically require that within all placements, unaccompanied children 
are treated with dignity, respect, and special concern for their 
particular vulnerability; to ensure services are provided based on 
their individualized needs and best interests; and to ensure that care 
provider facilities deliver services in a manner that is sensitive to 
the age, culture, native language, and complex needs of unaccompanied 
children.\113\
    With respect to the terms risk of flight, danger to self or others, 
or criminal history, which one commenter stated are vague or broad, 
consideration of these terms is consistent with the TVPRA, which 
provides that ORR may, in determining the least restrictive placement 
in a child's best interest, consider danger to self, danger to the 
community, and risk of flight in making placements and states that a 
child may not be placed in a secure facility absent a determination 
that the child poses a danger to self or others or has been charged 
with a criminal offense.\114\
    With respect to the recommendation to provide greater guidance 
regarding Sec.  410.1105(b)(2)(v) through the development of specific 
behavioral criteria to indicate the need for a heightened supervision 
setting or a return to a standard shelter setting, ORR will consider 
the commenters' recommendations and may provide further instruction in 
future policymaking.
    Comment: Several commenters recommended that the clear and 
convincing standard of proof should be added to Sec. Sec.  410.1105(a) 
and 410.1105(b), consistent with the standard in Sec. Sec.  410.1901(a) 
and 410.1105(c)(1), to clarify that clear and convincing evidence is 
required not just in RTC placement determinations, but in all other 
restrictive placement determinations as well.
    Response: As reflected in Sec.  410.1901(a), in all cases involving 
placement in a restrictive setting, including placement in secure 
facilities (including RTCs) and heightened supervision facilities, ORR 
must determine, based on clear and

[[Page 34427]]

convincing evidence, that sufficient grounds exist for stepping up or 
continuing to hold an unaccompanied child in a restrictive placement. 
ORR agrees that for clarity and consistency, the clear and convincing 
evidence standard of proof should be added to Sec.  410.1105(a) and 
(b). Thus, ORR is finalizing revisions to Sec.  410.1105(a)(1) and 
(b)(1) to state that the placement determinations under paragraphs (a) 
and (b) must be made based on clear and convincing evidence documented 
in the unaccompanied child's case file.
    Comment: Several commenters urged ORR to remove the use of secure 
facilities from its provider network and eliminate reference to such 
facilities in the final rule, because in their view children housed in 
secure facilities face disparate treatment and lasting harm. The 
commenters also stated that ORR is under no statutory or judicial 
obligation to create a regulatory scheme that places children in secure 
facilities (e.g., under the TVPRA or the FSA). One commenter further 
stated that ORR provided no justification for failing to apply the 
standards delineated in Sec.  410.1302 to secure facilities.
    One commenter asserted that the continuing use of secure facilities 
under the proposed rule will place children at high risk of ongoing 
constitutional rights violations, expressing concern that unaccompanied 
children placed in such facilities lack appropriate mental health 
evaluations and services, and could be subjected to mechanical 
restraints or seclusion, as well as discriminatory verbal abuse.
    A few commenters expressed concern that unaccompanied children are 
placed in secure facilities at the discretion of Federal officials, 
rather than by a judge's order in a proceeding where the child is 
represented, which one commenter noted is required for children placed 
in these kinds of restrictive facilities in other contexts.
    Response: In response to commenters' requests that ORR discontinue 
the use of secure facilities, ORR notes that although neither the TVPRA 
nor the FSA require the placement of children in secure facilities, 
both 8 U.S.C. 1232(c)(2)(A) and paragraph 21 of the FSA nevertheless 
contemplate the placement of children in secure facilities in certain 
limited circumstances. ORR continues to believe that in certain rare 
situations it may be necessary to place children in such facilities to 
ensure the safety and well-being of the child or others. Thus, Sec.  
410.1105(a), as finalized in this rule, includes criteria, consistent 
with the TVPRA and the FSA, for placing an unaccompanied child in a 
secure facility (that is not an RTC). ORR notes that, consistent with 
the TVPRA, in all cases where an unaccompanied child is placed in a 
secure facility (including an RTC), such a setting must be the least 
restrictive setting that is in the best interests of the child and 
appropriate to the child's age and individualized needs, which is 
assessed taking into account numerous factors to the extent they are 
relevant to such a placement, including danger to self, danger to 
community/others, and criminal background.
    ORR stresses that secure facilities will be required to meet the 
standards set forth at subpart D, including the minimum standards under 
Sec.  410.1302. The standards at subpart D include many of the 
protections that commenters have requested, including significant ones 
addressing minimum standards applicable at standard and secure 
facilities, monitoring and quality control, behavior management, staff 
trainings, language access, child advocates, legal services, health 
care services, and children with disabilities.\115\ For example, ORR 
notes that the final regulations prohibit the use or threatened use of 
corporal punishment (Sec.  410.1304(a)(1)), prohibit the use of prone 
physical restraints, chemical restraints, or peer restraints for any 
reason in any care provider facility setting (Sec.  410.1304(a)(3)), 
and allow secure facilities, that are not RTCs, to use personal 
restraints, mechanical restraints, and/or seclusion in emergency safety 
situations, and as consistent with State licensure requirements (Sec.  
410.1304(e)(1)). ORR believes that restraints and seclusion should only 
be used after de-escalation strategies and less restrictive approaches 
have been attempted and failed. As discussed in the NPRM (88 FR 68942), 
in secure facilities, not including RTCs, there may be situations where 
an unaccompanied child becomes a danger to other unaccompanied 
children, care provider facility staff, or property. As a result, such 
secure facilities may need to employ more restrictive forms of behavior 
management than shelters or other types of care provider facilities in 
emergency safety situations or during transport to or at immigration 
court or asylum interviews when there are certain imminent safety 
concerns.
    With respect to protecting children from verbal abuse, ORR notes 
that within all placements, unaccompanied children must be treated with 
dignity, respect, and special concern for their particular 
vulnerability (Sec. Sec.  410.1003(a), 410.1300) and that the 
definition of ``significant incidents'' includes abuse or neglect 
(Sec.  410.1001). Additionally, if ORR determines that any such staff 
behavior is occurring, it has authority to take actions including 
stopping placement and actions pursuant to 45 CFR part 75 (e.g., 45 CFR 
75.371).
    In response to the concern that unaccompanied children are placed 
in secure facilities by Federal officials rather than by a judge's 
order, ORR notes that the TVPRA provides for placement by the Secretary 
and does not require a judge's order. Specifically, the TVPRA requires 
the Secretary to place unaccompanied children in its custody in the 
least restrictive setting that is in the best interest of the child, 
and states that such placements may be in restrictive settings if 
certain conditions are met (that is, a child may not be placed in a 
secure facility absent a determination that the child poses a danger to 
self or others or has been charged with having committed a criminal 
offense).\116\ Nevertheless, to guard against the inappropriate 
placement of a child in a secure facility, this final rule also 
provides for review of decisions to place unaccompanied children in 
restrictive placements.\117\
    Comment: One commenter recommended removing Sec.  410.1105 in its 
entirety, stating that ORR will violate section 504 and the Supreme 
Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999) by placing 
children, especially children with disabilities, in segregated, secure 
facilities (including RTCs). The commenter asserted that section 504's 
implementing regulations require that a public entity administer 
services, programs, and activities in the most integrated setting 
appropriate to the needs of qualified individuals with disabilities 
with the ``most integrated setting'' being one that ``enables 
individuals with disabilities to interact with nondisabled persons to 
the fullest extent possible.''
    Furthermore, the commenter stated that placing unaccompanied 
children who are a danger to themselves in secure facilities means that 
children with mental health disabilities can be placed in more 
restrictive settings simply because of their disability, which the 
commenter asserted violates both the letter and the spirit of section 
504. The commenter also noted that although proposed Sec.  
410.1105(c)(1) requires a dangerousness determination for children with 
``serious'' mental or behavioral issues by licensed clinicians in the 
RTC context, there is no similar requirement for other secure 
facilities, or other restrictive placements. The commenter further 
expressed that there is no definition for what a ``serious'' mental or 
behavioral issue is versus a ``non-serious'' one, and there is no

[[Page 34428]]

information about who will make that determination prior to referring 
the child for evaluation to a licensed professional. Thus, the 
commenter stated that ORR's new rule would not protect children with 
disabilities from inappropriately remaining in overly restrictive 
settings, and that Sec.  410.1105(a)(1) will put children with 
disabilities and those with the most need for community care in the 
most restrictive settings.
    Finally, the commenter expressed the view that ORR does not conduct 
a sufficient individualized, fact-dependent inquiry in each case, or 
provide any information about how children may obtain such 
accommodations, nor what kind of accommodations can be provided that 
are rooted in community care.
    Response: ORR does not agree that the final rule will violate 
section 504 or the Supreme Court's decision in Olmstead v. L.C., 527 
U.S. 581 (1999) by providing for placement of unaccompanied children, 
including children with mental health or other disabilities, in secure 
facilities (including RTCs), in the limited circumstances provided in 
Sec.  410.1105. As noted above, ORR is adding new Sec.  410.1105(d) to 
state that for an unaccompanied child with one or more disabilities, 
consistent with section 504 and Sec.  410.1311(c), as revised in this 
rule, ORR's determination under Sec.  410.1105 whether to place the 
unaccompanied child in a restrictive placement (or to transfer an 
unaccompanied child with one or more disabilities to such a placement) 
shall include consideration whether there are any reasonable 
modifications to the policies, practices, or procedures of an available 
less restrictive placement (which could be the child's current 
placement) or any provision of auxiliary aids and services that would 
allow the unaccompanied child to be placed in that less restrictive 
facility. However, ORR is not required to take any action that it can 
demonstrate would fundamentally alter the nature of a program or 
activity. Furthermore, pursuant to Sec.  410.1311(a), ORR shall provide 
notice to the unaccompanied child of the protections against 
discrimination under section 504 and HHS implementing regulations at 45 
CFR part 85 assured to children with disabilities and notice of 
available procedures for seeking reasonable modifications or making a 
complaint about alleged discrimination. Thus, the final rule includes 
provisions to prevent children with disabilities, including those with 
mental health needs, from being placed in the most restrictive 
placements simply by virtue of needing specialized care, and to 
facilitate placement in the least restrictive, most integrated setting 
consistent with their best interests and appropriate to their age and 
individualized needs. ORR will consider providing additional guidance 
regarding the placement of children with disabilities, including 
information regarding what kind of accommodations can be provided that 
are rooted in community care, as requested by commenters, in future 
policymaking which may be informed by the findings of the anticipated 
year-long comprehensive disability needs assessment and the development 
of the disability plan as discussed at Section III.B.4.
    Moreover, the final rule includes certain guardrails such as the 
clear and convincing evidence standard at Sec.  410.1901, that serve to 
protect children from being inappropriately placed in restrictive 
facilities (both as an initial matter, and upon review at least every 
30 days). For a child with a serious mental or behavioral issue in 
particular, Sec.  410.1105(c)(1) specifies that the child may be placed 
in an RTC only if the child is evaluated and determined to be a danger 
to self or others by a licensed clinical psychologist or psychiatrist, 
which includes a determination by clear and convincing evidence that 
RTC placement is appropriate. Thus, a trained mental health 
professional will make the determination regarding whether RTC 
placement is appropriate. In regard to the clear and convincing 
evidence standard applicable to placement in RTCs under Sec.  
410.1105(c)(1), ORR clarifies that its intent is that there must be a 
determination of clear and convincing evidence before placing any child 
in an RTC. To clarify this requirement, ORR is finalizing revisions to 
Sec.  410.1105(c)(1) to provide that the child must be evaluated and 
determined to be a danger to self or others by a licensed psychologist 
or psychiatrist consulted by ORR or a care provider facility, which 
includes a determination by clear and convincing evidence documented in 
the unaccompanied child's case file, including documentation by a 
licensed psychologist or psychiatrist that placement in an RTC is 
appropriate.
    Comment: One commenter opposed the use of both secure facilities 
and heightened supervision facilities, stating that the use of secure 
facilities, and heightened supervision facilities where there is not an 
individualized assessment indicating how the child's best interests are 
best served there, are impermissible restrictions on liberty and 
dangerous and detrimental to the well-being of unaccompanied children. 
The commenter recommended that, in accordance with international 
standards (e.g., the United Nations Convention on the Rights of the 
Child; United Nations High Commissioner for Refugees (UNHCR), Refugee 
Children: Guidelines on Protection and Care; UNHCR Position Regarding 
the Detention of Refugee and Migrant Children in the Migration 
Context), ORR should end the use of all secure facilities and limit the 
use of heightened supervision facilities to programs that provide 
specialized therapeutic care to children for whom it is determined to 
be in their best interests. The commenter encouraged ORR to develop 
additional alternatives to detention, such as specialized post-release 
services and specialized transitional homes designed to support 
children to return to community living. The commenter also recommended 
that, rather than placing unaccompanied children with behavioral 
problems in restrictive settings, ORR should adopt a psychosocial/
social work approach based on best interests assessments to help them 
improve behavior.
    In addition, the commenter recommended strengthening the assessment 
of the child's best interest in cases involving prolonged detention/
family separation, using an individualized assessment rather than 
generalized criteria or factors, and reviewing the practices utilized 
for assessing and weighing community risk. The commenter also 
recommended that while use of secure and heightened supervision 
continues to exist, ORR should take all necessary steps to place 
children in the least restrictive setting for the shortest period of 
time and prioritize appointment of child advocates and legal 
representation for all children in secure and heightened supervision 
facilities.
    Response: ORR appreciates the commenter's concerns, but for the 
same reasons explained in previous responses to comments related to 
secure facilities, ORR does not believe the use of secure or heightened 
supervision facilities in the limited circumstances set forth at Sec.  
410.1105 will constitute an impermissible restriction on liberty or 
will be dangerous and detrimental to the well-being of unaccompanied 
children. As discussed further in subpart D of this final rule, both 
secure facilities and heightened supervision facilities will be 
required to meet the standards set forth at subpart D, including the 
minimum standards under Sec.  410.1302. ORR continues to believe that 
in certain situations it may be necessary to place children in such 
facilities to ensure the safety and well-being of the child or

[[Page 34429]]

others. ORR notes that, consistent with the TVPRA and Sec.  410.1103, 
in all cases, such settings must be the least restrictive setting that 
is in the best interests of the child and appropriate to the child's 
age and individualized needs, which are assessed on an individual basis 
for each child considering numerous factors to the extent they are 
relevant to such a placement, including danger to self, danger to 
community/others, and criminal background.
    Comment: A few commenters recommended that ORR remove the clause, 
``provided that the unaccompanied child does not pose a danger to self 
or others'' from Sec.  410.1105(a)(2). The commenters asserted that 
because ``danger to self or others'' is already a requirement for 
secure placement (at Sec. Sec.  410.1105(a)(3), (c)), this additional 
clause (``provided that the unaccompanied child does not pose a danger 
to self or others'') renders Sec.  410.1105(a)(2) meaningless. The 
commenters further stated that this additional language is unnecessary 
because paragraph 23 of the FSA and Sec.  410.1105(a)(2) of the NPRM 
already limit alternative placements to those that are ``available and 
appropriate under the circumstances,'' noting that ORR is not required 
to make an unsafe placement because such a placement would not be 
``appropriate.'' The commenters also cautioned that a child who poses a 
danger to self or others at one point in time can sometimes be safely 
and appropriately placed in a less restrictive setting with reasonable 
modifications that mitigate danger. These commenters also recommended 
that ORR remove this clause from Sec.  410.1105(a)(2) because it 
suggests ORR considers a staff-secure facility an alternative to a 
secure facility. However, the commenters noted that a child who is not 
a danger to self or others does not qualify to be placed in an RTC or 
secure facility, therefore staff secure is not an alternative to 
placement in a secure facility. The commenters stated that the final 
rule should mirror the language of paragraph 23 of the FSA and 
eliminate this clause, ``provided that the unaccompanied child does not 
pose a danger to self or others.'' Some commenters also recommended 
that ORR update language throughout Sec.  410.1105 by removing ``danger 
to self'' as a criterion for placement in a secure facility (that is 
not an RTC), noting that ORR policy and practice has typically been to 
place children who pose a danger to self in an RTC or staff secure 
setting rather than a secure facility that is not an RTC.
    Response: ORR appreciates the commenter's recommendations and 
agrees that a child who poses a danger to self or others at one point 
in time can be stepped down to a less restrictive facility at a later 
time. ORR also acknowledges that a child's danger to self should not be 
the sole basis for placement in a secure facility (that is not an RTC). 
Therefore, in this final rule, ORR is amending Sec.  410.1105(a)(2) to 
state that it shall place an unaccompanied child in a heightened 
supervision facility or other non-secure facility as an alternative to 
a secure facility (that is not an RTC), provided that the unaccompanied 
child does not ``currently'' pose a danger to others and does not need 
placement in an RTC pursuant to Sec.  410.1105(c). ORR agrees to make a 
clarifying edit in the regulatory text by striking reference to 
``danger to self'' in Sec.  410.1105(a)(2) and Sec.  410.1105(a)(3)(i), 
(ii), and (iii), as well as adding an affirmative statement in Sec.  
410.1105(a)(1) that a finding that a child poses a danger to self shall 
not be the sole basis for a child's placement in a secure facility 
(that is not an RTC). In addition, because ORR is striking ``danger to 
self'' in Sec.  410.1105(a)(3)(iii), ORR is deleting ``substance or 
alcohol use'' from the examples of ``unacceptably disruptive'' conduct 
addressed in that paragraph. Finally, because the criteria for 
assessing dangerousness under Sec.  410.1105(a) and (c) now differ, ORR 
is revising Sec.  410.1105(c)(1) to remove the last sentence (``In 
assessing danger to self or others, ORR shall use the criteria for 
placement in a secure facility at paragraph (a) of this section). To 
help ensure that a child in a restrictive placement is promptly stepped 
down to a less restrictive placement if appropriate and in the child's 
best interest, ORR notes that at Sec.  410.1901(d), ORR is required to 
ensure the following automatic administrative reviews: (1) at minimum, 
a 30-day administrative review for all restrictive placements; and (2) 
a more intensive 90-day review by ORR supervisory staff for 
unaccompanied children in secure facilities.
    Comment: Many commenters provided other recommendations with 
respect to language in proposed Sec.  410.1105(a)(2). While many 
commenters supported ORR's proposal that, consistent with section 504, 
ORR would consider whether there are any reasonable modifications to 
the policies, practices, or procedures of an available less restrictive 
placement or any provision of auxiliary aids and services that would 
allow an unaccompanied child with a disability to be placed in that 
less restrictive facility, some commenters stated that the proposed 
rule should mandate an analysis of reasonable modifications and 
auxiliary aids and services to permit a child to be placed in a less 
restrictive facility. These commenters stated that to adequately 
protect children's rights, the consideration of reasonable 
modifications and auxiliary aids and services to facilitate less 
restrictive placement must be explicitly incorporated into the 
regulation text and apply both to an initial transfer decision and to a 
child's 30-day restrictive placement case review under proposed 
Sec. Sec.  410.1105, 410.1601, and 410.1901.
    A few commenters stated that, consistent with DOJ's position on 
section 504's integration mandate, the final rule should also specify 
that the consideration of less restrictive alternatives will include 
consideration of community-based placement options such as individual 
foster homes, noting that children who struggle in congregate care 
placements often do much better in a community placement.
    Finally, one commenter noted that in proposed Sec.  410.1105(a)(2), 
secure placements must be appropriate under the circumstances and in 
the best interests of the child, but stated that this is contradictory, 
as secure placements will almost never be in the best interest of the 
child, especially when they have a disability and that no accommodation 
in secure detention could adequately meet the needs of children with 
disabilities. The commenter stated that these children require 
professional care by licensed providers in the community.
    Response: ORR agrees that the consideration of reasonable 
modifications and auxiliary aids and services to facilitate less 
restrictive placement should be explicitly incorporated into the 
regulation text and apply both to an initial transfer decision and to a 
child's 30-day restrictive placement case review under proposed 
Sec. Sec.  410.1105, 410.1601, and 410.1901. Accordingly, as noted, ORR 
is adding new Sec.  410.1105(d) to state that for an unaccompanied 
child with one or more disabilities, consistent with section 504, ORR's 
determination under Sec.  410.1105 whether to place the unaccompanied 
child in a restrictive placement shall include consideration whether 
there are any reasonable modifications to the policies, practices, or 
procedures of an available less restrictive placement or any provision 
of auxiliary aids and services that would allow the unaccompanied child 
to be placed in that less restrictive facility. Section 410.1105(d) 
further states that ORR's

[[Page 34430]]

consideration of reasonable modifications and auxiliary aids and 
services to facilitate less restrictive placement shall also apply to 
transfer decisions under Sec.  410.1601 and will be incorporated into 
restrictive placement case reviews under Sec.  410.1901. In addition, 
Sec.  410.1105(d) clarifies that ORR is not required to take any action 
that it can demonstrate would fundamentally alter the nature of a 
program or activity.
    In response to the recommendation that the final rule also specify 
that the consideration of less restrictive alternatives will include 
consideration of community-based placement options, ORR agrees that the 
consideration of less restrictive alternatives under Sec.  
410.1105(a)(2) would include consideration of non-restrictive 
community-based alternatives, such as individual foster homes, as 
available and appropriate under the circumstances. However, ORR does 
not believe it is necessary to include this provision in the regulation 
text at Sec.  410.1105(a)(2). ORR believes that under Sec.  410.1102, 
it is sufficiently clear that community-based placements such as 
individual family homes and groups homes, are among the types of less 
restrictive placement alternatives available for unaccompanied children 
based on an assessment of a child's best interest, age, and 
individualized needs, as well as the best interests of others. ORR also 
agrees that there are many advantages to community-based care, and as 
discussed previously in the preamble to this final rule, ORR is 
currently studying and developing a community-based care model for 
future implementation.
    ORR emphasizes its preference to not place unaccompanied children 
in secure placements except in limited circumstances where the safety 
and well-being of the child or other unaccompanied children in care 
requires it, and refers the commenter to its response to the comments 
above concerning secure and heightened supervision placements, and the 
placement of children with disabilities in such settings. ORR is 
committed to placing children in the least restrictive setting in their 
best interests and ensuring that such placements are able to meet the 
individualized needs of children with disabilities.
    Comment: Several commenters recommended that ORR eliminate the use 
of secure facilities, but in the alternative recommended that ORR make 
certain revisions to the criteria at Sec.  410.1105(a)(3) to implement 
substantial additional safeguards.
    First, commenters recommended that ORR revise Sec.  
410.1105(a)(3)(i) to delete ``or is the subject of delinquency 
proceedings, delinquency charge, or has been adjudicated delinquent,'' 
stating that the TVPRA and Supreme Court precedent provide 
justification for not considering delinquency records (whether in the 
form of charges or adjudications) in placing children in restrictive 
settings. Commenters noted that Congress omitted any reference to 
juvenile delinquency adjudications in the TVPRA, instead requiring that 
ORR refrain from placing children in secure settings absent 
dangerousness or a criminal charge which indicated that Congress did 
not view delinquency charges or adjudications as pertinent to 
restrictive placements. Further, the commenters cited Roper v. Simmons, 
543 U.S. 551, 569-70 (2005), to assert that the Supreme Court has 
recognized that children lack maturity and responsibility and as a 
result engage in impulsive actions and are more susceptible to negative 
influences. Commenters concluded that, as such, children's criminal or 
delinquent history should have little, if any, bearing on placement 
decisions, and that ORR must not draw conclusions about a child's 
character based on violations of the law, even in in the context of 
criminal convictions.
    Second, commenters recommended that ORR amend the end of Sec.  
410.1105(a)(3)(i) to state ``and where ORR determines by clear and 
convincing evidence that those circumstances demonstrate that the 
unaccompanied child poses a danger to self or others,'' stating that 
this would better align with the proposed rule's goal to codify the use 
of placement review panels under proposed Sec.  410.1901(a). Commenters 
further stated that ORR must make a measured, supported assessment to 
ensure that no child is harmed by an improper transfer.
    Third, commenters stated that ORR should delete Sec.  
410.1105(a)(3)(ii), because its consideration is already captured under 
the dangerousness assessment under Sec.  410.1105(a)(3)(i) and the 
evaluation of maliciousness goes beyond ORR's expertise and is best 
suited for law enforcement agencies.
    Fourth, commenters recommended that ORR delete Sec.  
410.1105(a)(3)(iii), which they stated is similarly redundant of the 
dangerousness assessment ORR performs in each case and in the view of 
these commenters, has led to improper placement of children in 
restrictive settings.
    Response: ORR declines to make commenters' recommended revisions to 
Sec.  410.1105(a)(3).
    First, inclusion of the phrase at Sec.  410.1105(a)(3)(i), ``or is 
the subject of delinquency proceedings, delinquency charge, or has been 
adjudicated delinquent,'' is consistent with the TVPRA and the FSA at 
paragraph 21. The TVPRA provides that a child ``shall not be placed in 
a secure facility absent a determination that the child poses a danger 
to self or others or has been charged with having committed a criminal 
offense . . .''.\118\ ORR believes this language encompasses 
consideration of whether the unaccompanied child is the subject of 
delinquency proceedings, a delinquency charge, or has been adjudicated 
delinquent. In addition, delinquency proceedings, charges, or 
adjudications may be relevant to determining whether a child ``poses a 
danger to self or others.'' \119\ Furthermore, ORR notes that the 
language identified by the commenters is consistent with paragraph 21 
of the FSA.\120\ ORR continues to believe that it is imperative to 
consider a child's criminal background, including delinquency 
proceedings, delinquency charges, or delinquency adjudications, in 
order to determine the least restrictive placement in the best 
interests of the child, as appropriate to the child's age and 
individualized needs and to protect the safety and well-being of other 
children in ORR's care and custody.
    Second, in response to the recommendation that ORR amend Sec.  
410.1105(a)(3)(i), ORR is adding an explicit reference to the clear and 
convincing evidence standard to Sec.  410.1105(a)(1) and thus it is not 
necessary to revise Sec.  410.1105(a)(3)(i) as requested by the 
commenters.
    Third, ORR does not agree that Sec.  410.1105(a)(3)(ii) should be 
deleted. The language at Sec.  410.1105(a)(3)(ii) is intended to 
capture circumstances that are not covered under paragraph (a)(3)(i)--
that is, where a child has not been charged with or convicted of a 
crime, and is not the subject of delinquency proceedings, does not have 
a delinquency charge, and has not been adjudicated delinquent, but has 
engaged in behavior that would justify placement in a secure facility 
(that is not an RTC) based on danger to others. With respect to the 
concern regarding the term ``malicious,'' due to the individualized 
nature of placement determinations, including placements in restrictive 
settings, ORR believes it is necessary to allow for flexibility in its 
interpretation and application of this term for purposes of Sec.  
410.1105(a), to allow for a complete assessment of each case and to 
accommodate the different circumstances in which such behavior

[[Page 34431]]

may occur. ORR also notes that while Sec.  410.1105(a)(3) describes the 
circumstances under which an unaccompanied child may be placed in a 
secure facility (that is not an RTC), any placement determination must 
be consistent with the TVPRA requirement that it be in the least 
restrictive setting that is in the best interest of the child. As a 
result, ORR reviews multiple relevant factors when placing a child in a 
secure facility (that is not an RTC), not only the factors described at 
Sec.  410.1105(a)(3).
    Fourth, in response to the commenters' recommendation to delete 
Sec.  410.1105(a)(3)(iii), ORR believes that paragraph (a)(3)(iii) is 
necessary to encompass additional situations that may not be covered 
under paragraphs (a)(3)(i) and (a)(3)(ii), that may warrant a 
determination that placement in a secure facility (that is not an RTC) 
is necessary because of danger to others, such as stealing, fighting, 
intimidation of others, or sexually predatory behavior. In response to 
the commenters concern that the language at Sec.  410.1105(a)(3)(iii) 
has led to improper placement of children in restrictive settings, ORR 
refers readers to responses to similar comments in this section 
addressing the use of the term ``unacceptably disruptive.''
    Comment: Several commenters asserted that a dangerousness 
determination for placement of a child with a disability in a secure 
facility should be consistent with section 504. Commenters stated that 
the proposed rule should therefore specify that a child with a 
disability will not be deemed to pose a danger to self or others unless 
they pose a ``direct threat'' which cannot be eliminated by a 
modification of policies, practices or procedures, or by the provision 
of auxiliary aids or services.
    A number of commenters recommended that if ORR determines that a 
child with a disability's placement in a less restrictive setting 
amounts to a direct threat, even with reasonable modifications, the 
child should be placed in a Qualified Residential Treatment Program 
(QRTP),\121\ rather than a secure juvenile detention facility which the 
commenters stated is harmful to children and especially inappropriate 
for children with disabilities. These commenters further stated that 
updated assessments must be conducted regularly, including when a 
child's placement is in a segregated setting, to determine if a more 
integrated setting, such as a family placement, is appropriate.
    Response: ORR agrees with commenters that the determination 
relating to danger for placing a child with a disability in a secure 
facility including an RTC should be consistent with section 504. ORR 
notes that the TVPRA, 8 U.S.C. 1232(c)(2)(A) permits consideration of 
whether the child is a danger to self or others in any placement 
determination, and specifically states that a child may not be placed 
in a secure facility absent a determination that the child poses a 
danger to self or others or has been charged with a criminal offense. 
Thus, ORR believes it is appropriate to consider whether the child is a 
danger to self or others in order to identify a placement that best 
protects the safety and well-being of the child and others. However, as 
noted in a previous response in this section, ORR acknowledges that a 
child's danger to self should not be the sole basis for placement in a 
secure facility (that is not an RTC) and is making edits in the 
regulatory text by striking reference to ``danger to self'' in Sec.  
410.1105(a)(2) and Sec.  410.1105(a)(3)(i), (ii), and (iii) as well as 
adding an affirmative statement to that effect in Sec.  410.1105(a). In 
addition, as discussed previously, before placing any child in a secure 
facility, including an RTC, ORR determines if less restrictive 
alternatives in the best interest of the child are available and 
appropriate, and in doing so, ORR will consider whether there are any 
reasonable modifications to the policies, practices, or procedures of 
an available less restrictive placement or any provision of auxiliary 
aids and services that would allow an unaccompanied child with a 
disability to be placed in that less restrictive facility, consistent 
with section 504. ORR refers the reader to prior responses to comments 
concerning the placement of children with disabilities in restrictive 
facilities.
    ORR will consider the commenters' recommendations regarding 
incorporation of the ``direct threat'' standard and placement in QRTPs 
and may address them further in future policymaking. Further, ORR notes 
that placements in restrictive settings are regularly reviewed to 
determine if a less restrictive placement is appropriate. As provided 
in Sec.  410.1901, and finalized in this rule, ORR will conduct a 
review of all restrictive placements, including RTCs, at least every 30 
days, and reviews of RTC placements must involve a psychiatrist or 
psychologist to determine whether the child should remain in 
restrictive residential care. ORR must also ensure a more intensive 90-
day review by ORR supervisory staff for children in secure facilities.
    Comment: Many commenters recommended revisions to Sec.  
410.1105(c). First, commenters recommended that the term ``serious 
mental health and behavioral issues'' should be replaced by ``serious 
mental health and behavioral needs'' to focus on the child's needs and 
reduce stigma. Second, commenters recommended that ORR add the 
following language to Sec.  410.1105(c): ``ORR shall not consent to a 
child's placement in an RTC when the child has a disability and, with 
services or reasonable modifications, the child can be served in a more 
integrated setting.''
    Response: ORR does not believe it is necessary or appropriate to 
change the term ``serious mental health and behavioral issues'' to 
``serious mental health and behavioral needs.'' ORR believes that the 
term ``serious mental health and behavioral issues'' encompasses an 
assessment of whether there are ``serious mental health and behavioral 
needs'' and does not detract from a consideration of the child's needs. 
However, as noted above, ORR is adding new Sec.  410.1105(d) to state 
that for an unaccompanied child with one or more disabilities, 
consistent with section 504 and Sec.  410.1311(c), ORR's determination 
under Sec.  410.1105 whether to place the unaccompanied child in a 
restrictive placement such as an RTC shall include consideration 
whether there are any reasonable modifications to the policies, 
practices, or procedures of an available less restrictive placement or 
any provision of auxiliary aids and services that would allow the 
unaccompanied child to be placed in that less restrictive facility. 
Finally, per Sec.  410.1105(c), an unaccompanied child with serious 
mental health or behavioral health issues may only be placed into an 
RTC if the unaccompanied child is evaluated and determined to be a 
danger to self or others by a licensed psychologist or psychiatrist 
consulted by ORR or a care provider facility, which includes a 
determination by clear and convincing evidence documented in the 
unaccompanied child's case file, including documentation by a licensed 
psychologist or psychiatrist that an RTC is appropriate.
    Comment: One commenter recommended that ORR provide interpretation 
for Indigenous children to ensure Indigenous children are not being 
placed in restrictive placements due to misunderstandings arising from 
difficulties in communication between the child and ORR staff, 
discrimination, or intimidation.
    Response: ORR provides access to interpretation services as 
provided in Sec.  410.1306. In particular, standard programs and 
restrictive placements

[[Page 34432]]

must prioritize the ability to provide in-person, qualified 
interpreters for unaccompanied children who need them, particularly for 
rare or indigenous languages. After the standard programs and 
restrictive placements make reasonable efforts to obtain in-person, 
qualified interpreters, then they may use professional telephonic 
interpreter services.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1105 with the following modifications. First, ORR 
is revising Sec.  410.1105(a) to provide that all determinations to 
place an unaccompanied child in a secure facility (that is not an RTC) 
will be reviewed and approved by ORR Federal field staff. Second, ORR 
is revising Sec.  410.1105(a)(1) and (b)(1) to state that the placement 
determinations under paragraphs (a) and (b) must be made based on clear 
and convincing evidence documented in the unaccompanied child's case 
file. Third, ORR is removing references to ``danger to self'' in Sec.  
410.1105(a)(2) and Sec.  410.1105(a)(3)(i), (ii), and (iii) and is 
adding an affirmative statement to Sec.  410.1105(a)(1) that a finding 
that a child poses a danger to self shall not be the sole basis for a 
child's placement in a secure facility that is not an RTC. Fourth, 
because ORR is striking ``danger to self'' in Sec.  
410.1105(a)(3)(iii), ORR is deleting ``substance or alcohol use'' from 
the examples of ``unacceptably disruptive'' conduct addressed in that 
paragraph. Fifth, ORR is amending Sec.  410.1105(a)(2) to state that it 
``shall'' place an unaccompanied child in a heightened supervision 
facility or other non-secure facility as an alternative to a secure 
facility (that is not an RTC), provided that the unaccompanied child 
does not ``currently'' pose a danger to others and does not need 
placement in an RTC pursuant to the standard set forth at Sec.  
410.1105(c). Sixth, at the end of the first sentence of Sec.  
410.1105(c)(1), ORR is revising the phrase ``that RTC is appropriate'' 
to state ``that placement in an RTC is appropriate'' to clarify that 
the determination made in that paragraph relates to placement. Seventh, 
to clarify that there must be a determination of clear and convincing 
evidence for each child placed in an RTC, ORR is finalizing revisions 
to Sec.  410.1105(c)(1) to provide that the child must be evaluated and 
determined to be a danger to self or others by a licensed psychologist 
or psychiatrist consulted by ORR or a care provider facility, which 
includes a determination by clear and convincing evidence documented in 
the unaccompanied child's case file, including documentation by a 
licensed psychologist or psychiatrist that placement in an RTC is 
appropriate. Eighth, ORR is revising Sec.  410.1105(c)(1) to remove the 
last sentence (``In assessing danger to self or others, ORR shall use 
the criteria for placement in a secure facility at paragraph (a) of 
this section.''). Finally, ORR is adding new Sec.  410.1105(d) to state 
that for an unaccompanied child with one or more disabilities, 
consistent with section 504, ORR's determination under Sec.  410.1105 
whether to place the unaccompanied child in a restrictive placement 
shall include consideration whether there are any reasonable 
modifications to the policies, practices, or procedures of an available 
less restrictive placement or any provision of auxiliary aids and 
services that would allow the unaccompanied child to be placed in that 
less restrictive facility. Section 410.1105(d) further states that 
ORR's consideration of reasonable modifications and auxiliary aids and 
services to facilitate less restrictive placement shall also apply to 
transfer decisions under Sec.  410.1601 and will be incorporated into 
restrictive placement case reviews under Sec.  410.1901. Section 
410.1105(d) further clarifies that ORR is not required to take any 
action that it can demonstrate would fundamentally alter the nature of 
a program or activity. ORR is otherwise finalizing Sec.  410.1105 as 
proposed.
Section 410.1106 Unaccompanied Children Who Need Particular Services 
and Treatment
    ORR proposed in the NPRM at Sec.  410.1106 to codify the 
requirements for ORR when placing unaccompanied children assessed to 
have a need for particular services, equipment, and treatment by staff 
(88 FR 68925). This section implements and updates paragraph 7 of the 
FSA, which requires ORR to assess unaccompanied children to determine 
if they have ``special needs,'' and, if so, to place such unaccompanied 
children, whenever possible, in licensed programs in which ORR places 
unaccompanied children without ``special needs,'' but which provide 
services and treatment for such ``special needs.'' As indicated by the 
definition for ``special needs unaccompanied child'' from the FSA and 
included in NPRM at Sec.  410.1001, an unaccompanied child is 
considered to have ``special needs'' if ORR determines that the 
unaccompanied child has a mental and/or physical condition that 
requires particular services and treatment by staff. ORR may determine 
that an unaccompanied child needs particular services and treatment by 
staff for a variety of reasons including, but not limited to, those 
delineated within the definition of ``special needs unaccompanied 
child'' and specified in paragraph 7 of the FSA. For this reason, ORR 
proposed this section in the NPRM without limiting its scope to 
``special needs unaccompanied child.'' ORR noted that an unaccompanied 
child may need particular services and treatment due to a disability, 
as defined at Sec.  410.1001, but not all unaccompanied children with 
disabilities necessarily require particular services and treatment by 
staff. Likewise, an unaccompanied child does not need to have been 
identified as having a disability to be determined to require 
particular services and treatment to meet their individualized needs.
    To avoid confusion, ORR refers in this section to unaccompanied 
children with ``individualized needs'' rather than using the outdated 
``special needs'' terminology found in the FSA at paragraph 7. As noted 
above regarding Sec.  410.1103, the term ``special needs'' has created 
confusion and may imply that in determining placement, ORR considers 
only a limited range of needs that fall within a special category. 
Instead, in assessing the appropriate placement of an unaccompanied 
child, ORR proposed in the NPRM to consider any need it becomes aware 
of that is specific to each unaccompanied child being assessed, 
regardless of the nature of that need. The examples provided in this 
section of individualized needs that may require particular services, 
equipment, and treatment by staff are illustrative, and not exhaustive. 
Furthermore, as also discussed at Sec. Sec.  410.1001 and 410.1103, ORR 
was concerned about using the term ``special needs'' given its 
association as a placeholder or euphemism for disability whereas this 
section does not apply only to unaccompanied children with disabilities 
who require particular services and treatment.
    ORR also noted that this section incorporates the preference for 
inclusive placements that serve unaccompanied children with a diversity 
of needs, including the need for particular services or treatments, 
whenever possible, as provided in paragraph 7 of the FSA, and 
particular equipment. This section is distinct from, but in alignment 
with, HHS's implementing regulation for section 504 at 45 CFR 85.21(d) 
that prohibits discrimination on the basis of disability by requiring 
that the agency administer programs and activities in the most 
integrated setting appropriate to the needs of individuals with 
disabilities. The most

[[Page 34433]]

integrated setting appropriate to the needs of an individual with a 
disability is a setting that enables individuals with disabilities to 
interact with individuals without disabilities to the fullest extent 
possible.\122\
    Comment: One commenter recommended that the individualized 
assessment be evidence-based, trauma-informed, developmentally 
appropriate, culturally competent, and conducted in the child's 
preferred language. Additionally, the commenter recommended ORR adopt a 
strength-based needs assessment for children whose behavior indicates a 
need for services and/or supports and the possible strengths to assist 
with treatment to address the child's behavioral issues and needs. The 
commenter also recommended that a qualified individual with expertise 
or experience with the unaccompanied child's particular disability (as 
applicable) and who is known and trusted by the child conduct the 
assessment in a comfortable community-based setting to effectively 
identify a child's needs for particular services, equipment, and 
treatment. Lastly, the commenter recommended that needs assessments and 
integrated placement determinations be completed in a timely manner for 
children with and without disabilities.
    Response: As clarified in Sec.  410.1000, ORR does not intend 45 
CFR part 410 to govern or describe the entire UC Program, including the 
specific procedures for how ORR is to assess an unaccompanied child to 
identify the child's individualized needs during placement. Where the 
regulations contain less detail, ORR plans to issue subregulatory 
guidance and other communications from ORR to care provider facilities 
to provide specific guidance on requirements. To the extent the 
commenter's recommendations do not reflect existing ORR policies, ORR 
may consider them for future policymaking.
    Comment: One commenter expressed concern that Sec.  410.1106 is 
unclear whether it incorporates evaluations for disability, as required 
by the anticipated Lucas R. settlement, into the assessment that 
determines whether the child needs particular services and treatment. 
Additionally, several commenters recommended a more formal evaluation 
for disability, stating this is required to ensure ORR protects the 
child's rights under section 504. These commenters recommended that the 
final rule require a prompt evaluation of an unaccompanied child 
suspected of having a disability by a qualified professional in 
circumstances where the child: (1) requests an evaluation for 
disability, (2) is psychiatrically hospitalized or evaluated for 
psychiatric hospitalization, or (3) is being considered for transfer to 
a restrictive setting based on danger to self or others. According to 
the commenters, such an evaluation for disability should consider the 
child's need for reasonable modifications and auxiliary aids and 
services. Further, a few commenters recommended including in the final 
rule a requirement that the child's attorney or child advocate can 
request an evaluation of the child for disability by a provider of 
their choice at no cost to the child. Finally, these commenters 
recommended that individualized assessments for unaccompanied children 
with disabilities or suspected disabilities be based on current medical 
knowledge and the best available objective evidence, which include 
evaluations of the services and supports that would enable children to 
live with their family.
    Response: Consistent with its discussion of the Lucas R. litigation 
at section III.B.4, ORR is not incorporating the requirements related 
to more formal evaluations for disability in the proposed disability 
class settlement, or other recommended requirements for such 
evaluations in this final rule. However, ORR will continue to evaluate 
possible policy updates as the anticipated settlement is implemented, 
and the year-long needs assessment process is completed, and the 
disability plan developed.
    Comment: Several commenters recommended ORR clarify that 
assessments or evaluations for disability do not delay a child's 
release.
    Response: ORR clarifies in this final rule that an assessment of 
the unaccompanied child for particular services and treatment by staff 
or equipment to address their individualized needs should not delay the 
child's release. This is consistent with Sec.  410.1311(e)(3), which 
prohibits ORR from delaying release of a child with one or more 
disabilities solely because post-release services are not in place 
before or following the child's release.
    Comment: A few commenters recommended ORR clarify Sec.  410.1106 
with respect to whether unaccompanied children with individualized 
needs are placed in integrated placements which provide services and 
treatment for such individualized needs. One commenter recommended ORR 
clarify whether the last sentence of the regulation text should refer 
to unaccompanied children with individualized needs instead of 
unaccompanied children with disabilities. Another commenter recommended 
ORR clarify what ``reasonable modifications to the program'' means.
    Response: Consistent with FSA paragraph 7, ORR is clarifying in the 
final rule that if ORR determines that an unaccompanied child's 
individualized needs require particular services and treatment by staff 
or particular equipment, ORR shall place the unaccompanied child, 
whenever possible, in a standard program in which the unaccompanied 
child with individualized needs can interact with children without 
those individualized needs to the fullest extent possible, but which 
provides services and treatment or equipment for such individualized 
needs. ORR has removed the reference to ``reasonable modifications'' 
for clarity and notes that this language has been incorporated into 
Sec.  410.1311(c).
    Comment: One commenter requested ORR clarify how care provider 
facilities would communicate transfers of unaccompanied children who 
need particular services and treatment and whether or not ORR would 
mandate that care provider facilities accept these children if the 
facilities have capacity. The commenter recommended ORR require care 
provider facilities to accept transfers or emergency transfers and not 
unnecessarily delay placement on the basis that they are unable to meet 
the children's needs. Further, the commenter requested ORR clarify how 
a care provider facility protects other children in the facility when 
there is no placement available for a child with emergency behavioral 
health needs and how the facility can ensure proper care of that child 
in the interim. Specifically, the commenter requested that ORR clarify 
what circumstances may warrant psychiatric hospitalization and what 
support ORR would provide to the care provider facility to make 
transfer decisions.
    Response: ORR appreciates the commenter's request for 
clarification. ORR's transfer process for unaccompanied children, 
including children who need particular services and treatment is 
described at Sec.  410.1601, which discusses ORR's finalized 
requirements regarding the transfer process, including communication 
about the timeframe, alternate placement recommendations at Sec.  
410.1601(a)(1), medical clearance at Sec.  410.1601(a)(2), and advanced 
notification at Sec.  410.1601(a)(3). Additionally, ORR notes that it 
does not intend this final rule to govern or describe the entire UC 
Program, and where a regulation contains less detail, additional detail 
to implement the

[[Page 34434]]

requirement may be issued in subregulatory guidance. To the extent the 
commenter's recommendations are not already captured in this final 
rule, ORR may consider them for future policymaking.
    Final Rule Action: After consideration of public comments, ORR is 
making the following modifications to Sec.  410.1106. ORR is revising 
the first sentence of Sec.  410.1106 by adding ``and custody'' to 
clarify that unaccompanied child requires particular services and 
treatment by staff to address their individual needs while in the care 
``and custody'' of the UC Program. ORR is revising the last sentence of 
Sec.  410.1106 to state ``If ORR determines that an unaccompanied 
child's individualized needs require particular services and treatment 
by staff or particular equipment, ORR shall place the unaccompanied 
child, whenever possible, in a standard program in which the 
unaccompanied child with individualized needs can interact with 
children without those individualized needs to the fullest extent 
possible, but which provides services and treatment or equipment for 
such individualized needs.'' Otherwise, it is finalizing Sec.  410.1106 
as proposed in the NPRM.
Section 410.1107 Considerations When Determining Whether an 
Unaccompanied Child is a Runaway Risk for Purposes of Placement 
Decisions
    ORR proposed in the NPRM at Sec.  410.1107 to codify factors that 
it considers in determining whether an unaccompanied child is a runaway 
risk for purposes of placement decisions (88 FR 68925 through 68926). 
As described in Sec.  410.1001, the FSA and ORR policy currently use 
the term ``escape risk,'' and ORR proposed in the NPRM to update the 
terminology to ``runaway risk'' and also proposed to update the 
definition provided in the FSA. ORR noted that the TVPRA provides that 
HHS ``may'' consider ``risk of flight,'' among other factors, when 
making placement determinations.\123\ (ORR notes that 8 U.S.C. 
1232(c)(2)(A) does not list risk of flight as a ground for placing an 
unaccompanied child in a secure facility. Therefore, even though 
paragraph 21D of the FSA states that being an escape risk (or runaway 
risk as finalized in this rule) is a ground upon which ORR may place an 
unaccompanied child in a secure facility, ORR did not propose in the 
NPRM that runaway risk is a basis for placement in a secure facility.). 
ORR proposed in the NPRM to interpret ``risk of flight,'' which is used 
in immigration law regarding an individual's risk of not appearing for 
their immigration proceedings, as including runaway risk. In its 
discretion, ORR considers these runaway risk factors when evaluating 
whether to transfer an unaccompanied child to another care provider 
facility, in accordance with Sec.  410.1601. For example, an 
unaccompanied child may be transferred from a non-secure level of care 
to a heightened supervision facility where there is higher staff ratio 
and a secure perimeter (stepped up) if ORR determines the unaccompanied 
child is a runaway risk in accordance with Sec.  410.1107.
    ORR proposed in the NPRM at Sec.  410.1107(a) through (c) to codify 
the risk factors to consider when evaluating whether an unaccompanied 
child is a runaway risk for purposes of placement. These factors are 
consistent with paragraph 22 of the FSA, which are also included in the 
2019 Final Rule at Sec.  410.204. Specifically, ORR proposed in the 
NPRM to consider the following factors: (a) whether the unaccompanied 
child is currently under a final order of removal (i.e., the 
unaccompanied child has a legal duty to report for deportation); (b) 
whether the unaccompanied child's immigration history includes: (1) a 
prior breach of bond, (2) a failure to appear before DHS or the 
immigration court, (3) evidence that the unaccompanied child is 
indebted to organized smugglers for their transport, or (4) a previous 
removal from the U.S. pursuant to a final order of removal; and (c) 
whether the unaccompanied child has previously absconded or attempted 
to abscond from State or Federal custody. ORR noted that under 
paragraph 22B of the FSA, a voluntary departure from the U.S. by the 
unaccompanied child is also listed as a risk factor. Based on ORR's 
experience in placing unaccompanied children, ORR did not propose to 
codify whether the child's immigration history includes a voluntary 
departure because this factor has not been relevant in determining 
whether the child is a runaway risk.
    ORR noted that paragraph 22 of the FSA provides a non-exhaustive 
list of factors to consider when evaluating runaway 
risk.124 125 Consistent with this language, as well as with 
ORR's authority generally to consider runaway risk in making placement 
determinations, ORR proposed in the NPRM additional factors at Sec.  
410.1107(d) and (e) for ORR to consider when determining whether an 
unaccompanied child is a runaway risk for purposes of placement 
decisions. ORR proposed in the NPRM at Sec.  410.1107(d) to require ORR 
to consider whether the unaccompanied child has displayed behaviors 
indicative of flight or has expressed intent to run away. ORR proposed 
in the NPRM at Sec.  410.1107(e), to consider evidence that the 
unaccompanied child is indebted to, experiencing a strong trauma bond 
to, or is threatened by a trafficker in persons or drugs, in 
determining whether the unaccompanied child is a runaway risk. ORR 
developed this proposal through its practical experience of making 
runaway risk placement decisions and believes it is appropriate to add 
as an additional factor to consider. ORR sought public comment on these 
proposed factors and welcomed feedback on other factors ORR should or 
should not consider when determining if an unaccompanied child is a 
runaway risk for purposes of placement decisions.
    Comment: ORR received comments in support of ORR's proposal to not 
codify voluntary departure as a runaway risk factor, which is an 
immigration history factor from paragraph 22 of the FSA. One commenter 
stated the factors listed in the FSA are aids to assess the likelihood 
a child will abscond from ORR custody and are not determinative. The 
commenter stated there is no reason to include a factor in the final 
rule if it is not useful in predicting whether the child will attempt 
to abscond from ORR custody.
    Response: ORR agrees that voluntary departure from the United 
States by the unaccompanied child is not a relevant factor in 
determining whether the child is a runaway risk and has not included an 
immigration history that includes a voluntary departure as a factor in 
Sec.  410.1107.
    Comment: A few commenters recommended that ORR not finalize the 
immigration history factors in Sec.  410.1107(b) that ORR proposed in 
the NPRM to use when determining whether an unaccompanied child is a 
runaway risk for placement. These commenters expressed concern that an 
unaccompanied child's immigration history is outside of the child's 
control and is not predictive or useful in determining whether the 
child is a runaway risk. One commenter stated that the immigration 
factors ORR proposed in the NPRM at Sec.  410.1107(b) are unnecessary 
as they reflect the immigration enforcement role of the former INS and 
are not appropriate to ORR's distinct role as a custodian of 
unaccompanied children. Another commenter recommended that ORR not 
assess flight risk based on an unaccompanied child's negative prior 
immigration history because, as ORR acknowledged in the preamble in the 
NPRM, it is not a law enforcement

[[Page 34435]]

agency. Additionally, this commenter stated that in their experience 
serving unaccompanied children, they have not seen any correlation 
between a prior receipt of a final order of removal or a failure to 
appear and the risk that children will run away from care provider 
facilities. Instead, the commenter stated children are more likely to 
stay in the care provider facilities and work with their legal services 
provider, attorney, or representative to resolve the prior receipt of a 
final order of removal. A separate commenter expressed concern that ORR 
conflates two different risks of flight in Sec.  410.1107, stating a 
``runaway risk'' from a shelter program is different from risk of 
flight in immigration proceedings; the commenter stated risk of flight 
exceeds ORR's purview, authority, and expertise. Specifically, the 
commenter stated that ORR conflates actions taken by others on the 
child's behalf (e.g., prior breach of bond or failure to appear) with 
actions taken by the child (e.g., child has previously absconded or 
attempted to abscond from State or Federal custody).
    Response: ORR thanks the commenters for their recommendations to 
not finalize the immigration history factors at Sec.  410.1107(b). ORR 
agrees that these factors are typically outside an unaccompanied 
child's control and do not predict whether a child will run away from a 
care provider facility based on ORR's experience in placing 
unaccompanied children. Similar to ORR's reasoning for not finalizing 
voluntary departure as a factor, it is ORR's experience that the 
unaccompanied child's immigration history has not been relevant in 
determining whether the child is a runaway risk. Accordingly, ORR is 
not finalizing the immigration history factors at Sec.  410.1107(b).
    Comment: ORR received comments related to how ORR weighs the 
factors listed at proposed Sec.  410.1107(c) and (d) when determining 
an unaccompanied child's runaway risk. One commenter agreed that ORR 
should consider an unaccompanied child's prior escape when making a 
placement decision. Another commenter recommended ORR make a 
determination of runaway risk based on the totality of the 
circumstances and not base its determination on the child's attempt to 
run away, stating the proposed runaway risk factors are overbroad and 
do not reflect whether the unaccompanied child is a runaway risk. A 
different commenter expressed concern that the proposal at Sec.  
410.1107(d) is overbroad and asserted that a statement from the child 
that the child is going to leave does not require a step-up to a more 
restrictive placement but better services and a better care 
environment.
    Response: ORR has provided a definition of ``runaway risk'' at 
Sec.  410.1001 of this rule, pursuant to which ORR's determination that 
an unaccompanied child is a runaway risk must be made in view of a 
totality of the circumstances and should not be based solely on a past 
attempt to run away or a statement from the child that the child is 
going to leave or runaway. ORR applies this ``totality of the 
circumstances'' standard when making determinations under Sec.  
410.1107. ORR will monitor implementation of this regulation and, if 
needed, will take the commenter's recommendations into consideration 
for future policymaking. ORR further notes that an unaccompanied child 
is only placed in a heightened supervision facility after consideration 
of the criteria at Sec.  410.1105(b)(2) and based on clear and 
convincing evidence supporting the placement change.
    Comment: One commenter recommended removing all references to 
indebtedness in proposed Sec.  410.1107(b)(3) and (e) because 
indebtedness does not relate to flight risk and the commenter stated 
this is an unacceptable rationale for placing a child in a restrictive 
placement. The same commenter recommended that ORR not incorporate the 
term ``trauma bond'' in proposed Sec.  410.1107(e) because there is 
``no medical standard for diagnosis . . . nor any agreed upon 
definition.''
    Response: ORR is not finalizing the factors at Sec.  410.1107(b), 
which includes indebtedness to smugglers at Sec.  410.1107(b)(3). 
Additionally, ORR agrees with the commenter that indebtedness to a 
trafficker in persons or drugs is not relevant in determining whether 
the unaccompanied child is a runaway risk. Similar to ORR's reasoning 
for not finalizing voluntary departure and immigration history as 
factors, whether the unaccompanied child is indebted to a trafficker in 
persons or drugs has not been relevant in ORR's experience in 
determining whether the child is a runaway risk. Accordingly, ORR is 
revising Sec.  410.1107(e) as proposed in the NPRM to remove ``indebted 
to.''
    Additionally, ORR does not agree with the commenter's 
recommendation to not incorporate the term ``trauma bond'' Sec.  
410.1107(e) as proposed in the NPRM and believes that it is appropriate 
to use the term ``trauma bond'' in Sec.  410.1107(e), which is 
consistent with how the Department of State's Office to Monitor and 
Combat Trafficking in Persons defined the term in its factsheet, Trauma 
Bonding in Human Trafficking.\126\ ORR believes there is a generally 
accepted definition of ``trauma bond'' and defined the term at Sec.  
410.1001 so that readers can understand how ORR uses the term in 45 CFR 
part 410.
    Comment: A number of commenters opposed ORR codifying runaway risk 
factors for placement determinations at Sec.  410.1107, stating ORR 
does not have the capacity to make this assessment because, as ORR 
stated in the preamble for Sec.  410.1105(a)(3), that ``because it is 
not a law enforcement agency, unlike the former INS, ORR is not in a 
position to make determinations such as whether an unaccompanied child 
is `chargeable.' ''
    Response: As an initial matter, ORR notes that it is unclear 
whether commenters were challenging ORR's authority to assess whether 
an unaccompanied child is a runaway risk or ORR's ability to do so when 
exercising such authority. Under the HSA and TVPRA, ORR is responsible 
for the care and placement of unaccompanied children. The TVPRA, at 8 
U.S.C. 1232(c)(2), provides that ORR may consider the child's risk of 
flight in determining the least restrictive setting to place the child 
that is in the child's best interest. Therefore, ORR clarifies that it 
has the legal authority to determine whether an unaccompanied child is 
a runaway risk. ORR's statement in the NPRM preamble for Sec.  
410.1105(a)(3) relates to its proposal to not codify that an 
unaccompanied child may be placed in a secure facility if the 
unaccompanied child is ``chargeable with a delinquent act.'' As stated 
in the preamble to the NPRM, ORR is not a law enforcement agency and is 
therefore unable to make a probable cause determination whether a child 
is ``chargeable'' (88 FR 68923). However, the language at Sec.  
410.1105(a)(3) does not have bearing on ORR's authority or ability to 
assess an unaccompanied child's runaway risk; when ORR assesses runaway 
risk it is not deciding whether an unaccompanied child is ``chargeable 
with a delinquent act.''
    Final Rule Action: After consideration of public comments, ORR is 
making the following modifications. ORR is not finalizing Sec.  
410.1107(b) as proposed in the NPRM. ORR is updating the numbering for 
proposed Sec.  410.1107(c) through (e) and finalizing as Sec.  
410.1107(b) through (d). ORR is revising proposed Sec.  410.1107(e), 
which is now Sec.  410.1107(d), to state ``Evidence that the 
unaccompanied child is experiencing a strong trauma bond to or is 
threatened by a trafficker in persons

[[Page 34436]]

or drugs.'' ORR is otherwise finalizing Sec.  410.1107 as proposed in 
the NPRM.
Section 410.1108 Placement and Services for Children of Unaccompanied 
Children
    ORR proposed in the NPRM at Sec.  410.1108, the requirements for 
the placement of children of unaccompanied children and services they 
would receive while in ORR care (88 FR 68926). ORR believes that when 
unaccompanied children are parents of children, it is in the best 
interests of the children to be placed in the same facility as their 
parents, who are also unaccompanied children. Accordingly, ORR proposed 
in the NPRM at Sec.  410.1108(a) to codify its existing policy that it 
will place unaccompanied children and their children together at the 
same care provider facilities, except in unusual or emergency 
situations. ORR considered limiting the proposal to the biological 
children of unaccompanied children. However, at the time of intake and 
placement, it may not be known whether the children are the biological 
children of the unaccompanied children. Accordingly, ORR did not limit 
the proposal to the biological children of unaccompanied children and 
instead proposed broader language to allow for flexibility in placing 
unaccompanied children and their children to account for other 
situations (for example, the unaccompanied child may not be the 
biological parent of a child but is the child's caretaker).
    Consistent with existing policy, and with its responsibility to 
consider the best interests of children in making placement decisions, 
ORR proposed in the NPRM that unusual or emergency situations would 
include, but not be limited to: hospitalization or need for a 
specialized care or treatment setting that cannot provide appropriate 
care for the child of the unaccompanied child; a request by the 
unaccompanied child for alternate placement of the child of the 
unaccompanied child; and when the unaccompanied child is the subject of 
substantiated allegations of abuse or neglect against the child of the 
unaccompanied child (or temporarily in urgent cases where there is 
sufficient evidence of child abuse or neglect warranting temporary 
separation for the child's protection). ORR proposed in the NPRM to 
codify these requirements into regulation at Sec.  410.1108(a)(1) 
through (3).
    ORR is aware that children of unaccompanied children may not be 
unaccompanied children within the definition provided in the HSA at 6 
U.S.C. 279(g)(2). For example, a child born in the United States will 
likely be a U.S. citizen at birth under section 1401(a) of the INA, 8 
U.S.C. 1401(a), and the U.S. Constitution, as amended, XIV section 2. 
Additionally, a noncitizen child who is in the custody of a parent who 
is an unaccompanied child who is available to provide care and physical 
custody, may not be an unaccompanied child. ORR understands that it has 
custody of the unaccompanied child, consistent with its statutory 
authorities, and that the unaccompanied child has custody of their 
child. ORR does not seek to place the parent and child in different 
facilities or shelters except in the limited circumstances noted above. 
ORR understands this to be consistent with its responsibility to 
consider the interests of unaccompanied children.\127\ If the child who 
is in the custody of their unaccompanied child parent has another 
parent who is a citizen present in the U.S., ORR would consider whether 
it is in the best interests of the child to place the child with the 
unaccompanied child parent or the parent who is a U.S. citizen. ORR 
requested comments regarding this interpretation of its authorities 
under the TVPRA and the HSA, because neither statute expressly 
contemplates scenarios where an unaccompanied child is a parent.
    ORR proposed in the NPRM at Sec.  410.1108(b) to describe 
requirements for providing services to children of unaccompanied 
parenting children while in ORR care. ORR proposed in the NPRM at Sec.  
410.1108(b)(1), that children of unaccompanied children would receive 
the same care and services as ORR provides to the unaccompanied 
children, as appropriate, regardless of the children's immigration or 
citizenship status. Additionally, U.S. citizen children of 
unaccompanied children would be eligible for mainstream public benefits 
and services to the same extent as other U.S. citizens (for example, 
Medicaid). Application(s) for public benefits and services shall be 
submitted on behalf of the U.S. citizen children of unaccompanied 
children by the care provider facilities. This may include, but is not 
limited to, helping file for birth certificates or other legal 
documentation as necessary. Further, ORR proposed in the NPRM at Sec.  
410.1108(b)(2), that utilization of those public benefits and services 
should be exhausted to the greatest extent practicable for U.S. citizen 
children of unaccompanied children before ORR-funded services are 
utilized for these children.
    Comment: A number of commenters expressed concerns about the 
possibility under Sec.  410.1108(a) of the NPRM that ORR might separate 
parenting unaccompanied children from their own children under unusual 
or emergency circumstances. Some commenters recommended that ORR not 
provide for such separations under any circumstances, with some 
recommending relying on State child welfare agencies for any 
determination of the need to separate parenting unaccompanied children 
from their own children. Others recommended that ORR revise Sec.  
410.1108(a) to specify that ORR may only separate an unaccompanied 
parenting child from their child in unusual or in emergency situations 
where keeping the parenting child and child together poses an immediate 
danger to the children's safety. Some commenters recommended that a 
separation should occur only if there has been an adjudication using 
clear and convincing evidence that the unaccompanied child poses an 
immediate danger to their child that cannot be mitigated. Commenters 
also recommended that if such separations were to occur, ORR should 
address due process concerns, specify who will make the decision, and 
build in a requirement for prior authorization from ORR before care 
provider staff are able to separate unaccompanied sibling children or 
an unaccompanied parenting child from their child. One commenter 
recommended that in the event of a separation, ORR should provide 
guidance on the circumstances when ORR would separate unaccompanied 
parenting children from their children, the basis for separating them, 
how long that separation could last, and whether the parenting 
unaccompanied child can challenge the separation. Commenters also 
discussed the importance of legal counsel for a parent facing 
separation and their recommendation to discuss the rights of parents 
during a period of separation, and recommended ORR require immediate 
notification to the unaccompanied parenting child's attorney or child 
advocate, if appointed, of the separation. Some commenters noted the 
importance of services to facilitate unifications.
    Additionally, commenters recommended that ORR incorporate 
provisions describing the ability of parenting unaccompanied children 
to continue making parental decisions on behalf of their child, as 
appropriate, including making informed decisions about health, diet, 
religion, and other matters. Commenters also recommended ORR require 
documentation of the recommendation to separate parenting unaccompanied 
children from their

[[Page 34437]]

children, as well as include provisions describing the swift 
unification of parenting unaccompanied children with their children 
where appropriate. Finally, some commenters recommended that 
separations on the basis of medical need be permitted only upon the 
recommendation of health care professionals, and the placement of 
parenting unaccompanied children, or their child, be as close as 
possible to where the underlying medical care is taking place.
    Response: ORR's guiding policy is to maintain family unity of the 
parenting unaccompanied child and their child. ORR wants to clearly 
state that it would not separate a parenting unaccompanied child from 
their own child absent compelling circumstances where the life or 
safety of a child is at risk or the parent or child needs 
hospitalization or specialized care. Having said this, the commenters 
raised concerns that have led ORR to conclude that further policy 
development is needed to address the extreme circumstances noted in the 
NPRM, and therefore, ORR is not adopting Sec.  410.1108(a) as proposed 
in the NPRM. Instead, ORR is codifying its general policy at Sec.  
410.1108(a) that ORR shall accept referrals for placement of parenting 
unaccompanied children who arrive with children of their own to the 
same extent that it receives referrals of other unaccompanied children 
and shall prioritize placing and keeping the parent and child together 
in the interest of family unity.
    Comment: One commenter expressed concern about the requirement that 
the public benefits and services for U.S. citizen children of 
unaccompanied parenting children must be utilized and exhausted to the 
greatest extent practicable before utilizing ORR-funded services. 
Specifically, the commenter expressed concern that delays in public 
benefit applications, or lack of eligibility for services, could impede 
these children from timely accessing medical and psychiatric services 
while in ORR care and custody. To address this concern, the commenter 
recommended ORR clarify in the final rule that public benefits and 
services shall be exhausted to the greatest extent practicable before 
utilizing ORR-funded services unless doing so causes a delay or 
material change in the quality of necessary medical or psychiatric 
treatment of the child.
    Response: ORR does not expect that delays in public benefit 
applications and ineligibility for services would impede the ability of 
a child of an unaccompanied parenting child to access medical and 
mental health services. ORR will monitor implementation of this 
regulation for any unintended consequences and as needed, will consider 
the commenter's recommendation for future policymaking.
    Final Rule Action: For the reasons stated, ORR is revising Sec.  
410.1108(a) to state ``ORR shall accept referrals for placement of 
parenting unaccompanied children who arrive with children of their own 
to the same extent that it receives referrals of other unaccompanied 
children and shall prioritize placing and keeping the parent and child 
together in the interest of family unity.'' ORR is not finalizing Sec.  
410.1108(a)(1) through (3) as proposed in the NPRM. Otherwise, it is 
finalizing Sec.  410.1108 as proposed in the NPRM.
Section 410.1109 Required Notice of Legal Rights
    ORR proposed in the NPRM at Sec.  410.1109(a), that it would be 
required to promptly provide each unaccompanied child in its custody 
with the information described in Sec.  410.1109(a)(1) through (3) in a 
language and manner the unaccompanied child understands (88 FR 68926 
through 68927). First, ORR proposed in the NPRM at Sec.  
410.1109(a)(1), to require that unaccompanied children in ORR custody 
be promptly provided with a State-by-State list of free legal service 
providers compiled and annually updated by ORR and that is provided to 
unaccompanied children as part of a Legal Resource Guide for 
unaccompanied children. This requirement is consistent with TVPRA at 8 
U.S.C. 1232(c)(5) (requiring that HHS ``ensure, to the greatest extent 
practicable and consistent with section 292 of the Immigration and 
Nationality Act (8 U.S.C. 1362), that all unaccompanied alien children 
who are or have been in the custody of the Secretary or the Secretary 
of Homeland Security, and who are not described in subsection 
(a)(2)(A), have counsel to represent them in legal proceedings or 
matters and protect them from mistreatment, exploitation, and 
trafficking,'' and that to the greatest extent practicable HHS ``make 
every effort to utilize the services of pro bono counsel who agree to 
provide representation to such children without charge.''). In 
addition, the requirement is consistent with the HSA at 6 U.S.C. 
279(b)(1)(I) (requiring ORR to compile, update, and publish ``at least 
annually a State-by-State list of professionals or other entities 
qualified to provide guardian and attorney representation services for 
unaccompanied alien children.''). ORR noted that the list of free legal 
service providers may also be compiled and updated by an ORR contractor 
or grantee.
    ORR proposed in the NPRM at Sec.  410.1109(a)(2), that it would 
also be required to provide the following explanation of the right of 
potential review: ``ORR usually houses persons under the age of 18 in 
the least restrictive setting that is in an unaccompanied child's best 
interest, and generally not in restrictive placements (which means 
secure facilities, heightened supervision facilities, or residential 
treatment centers). If you believe that you have not been properly 
placed or that you have been treated improperly, you may call a lawyer 
to seek assistance. If you cannot afford a lawyer, you may call one 
from the list of free legal services given to you with this form.'' ORR 
noted in the NPRM that this requirement updates language described in 
the requirement to deliver a similar notice under Exhibit 6 of the 
FSA,\128\ to reflect current placement requirements detailed in this 
rule. The FSA language, for example, refers to the former INS, instead 
of ORR, and to ``detention facilities'' rather than restrictive 
settings or placements.
    ORR also proposed at Sec.  410.1109(a)(3) that a presentation 
regarding their legal rights would be provided to each unaccompanied 
child as provided under Sec.  410.1309(a)(2). ORR referred readers to 
Sec.  410.1309(a) for additional information regarding this 
presentation. ORR stated that it would take appropriate steps to ensure 
that the information it presents to unaccompanied children is 
communicated effectively to individuals with disabilities, including 
through the provision of auxiliary aids and services as required by 
section 504 and HHS's implementing regulations at 45 CFR 85.51. ORR 
also stated that it would take reasonable steps to ensure that 
individuals with limited English proficiency have a meaningful 
opportunity to access information and participate in ORR programs, 
including through the provision of interpreters or translated 
documents. ORR requested comments on steps ORR should take to ensure 
that it provides effective communication to unaccompanied children who 
are individuals with disabilities. ORR also requested comment on steps 
ORR should take to ensure meaningful access to unaccompanied children 
who are limited English proficient regarding information about and 
participation in ORR programs.
    Finally, ORR proposed in the NPRM that under Sec.  410.1109(b), 
consistent with ORR's existing policy, ORR shall not engage in 
retaliatory actions against

[[Page 34438]]

legal service providers or any other practitioner because of advocacy 
or appearance in an action adverse to ORR. ORR proposed in the NPRM 
this text, notwithstanding the general presumption that government 
agencies and officials act with integrity and regularity,\129\ to 
further express ORR's intent to promote and protect unaccompanied 
children's ability to access legal counsel. As noted below, in this 
final rule, ORR is deleting Sec.  410.1109(b) because it is redundant 
of Sec.  410.1309(e). For discussion regarding the availability of 
administrative review of ORR placement decisions, ORR referred readers 
to subpart J.
    Comment: One commenter recommended that proposed Sec.  
410.1109(a)(1) (which requires that ORR provide each child in its 
custody with a State-by-State list of free legal service providers 
compiled and annually updated by ORR) be strengthened by adding that 
information will also be made accessible by other means, and not solely 
via a printed list. The commenter cautioned that printed lists that 
require regular updating become quickly outdated and that accessibility 
of written information may be hindered for children with limited 
literacy. In addition, the commenter noted that many unaccompanied 
children communicate and receive information via WhatsApp, Facebook 
Messenger, or other apps. Finally, the commenter noted that 
supplementary means of making information accessible, such as through 
The International Rescue Committee's ORR-funded ImportaMi program, have 
been very effective for ensuring children's greater access to critical 
information.
    Response: ORR appreciates the commenter's recommendations and will 
consider making the list required under Sec.  410.1109(a)(1) accessible 
by electronic means as well as enhancing access to such information. 
The specific requirement at Sec.  410.1109(a)(1) for a list does not 
preclude ORR from making this information available through other means 
as there are continuing developments in technologies.
    Comment: One commenter recommended that Sec.  410.1109 be more 
precise so that the unaccompanied child is proactively assigned a 
lawyer or authorized immigration advocate at the Government's expense 
and a translator to explain and act in the child's best interest.
    Response: As described at Sec.  410.1109(a)(1), ORR shall provide 
each unaccompanied child in its custody, in a language and manner the 
unaccompanied child understands, with a State-by-State list of free 
legal service providers compiled and annually updated by ORR and that 
is provided to unaccompanied children as part of a Legal Resource Guide 
for unaccompanied children. ORR refers readers to the discussion of 
Sec. Sec.  410.1306 and 410.1309 in this final rule for more 
information about language access services (including translator 
services) and legal services available to unaccompanied children.
    Comment: Several commenters stated that proposed Sec.  
410.1109(a)(2) provides for a notice of rights that includes some 
language similar to FSA Exhibit 6 but omits providing a statement of 
the right to ask a Federal judge to review the child's case, and thus 
recommended that the final rule include a statement informing the 
unaccompanied child of the right to seek review of a placement 
determination or noncompliance with FSA Exhibit 1 standards in a United 
States District Court with jurisdiction. The commenters noted that the 
preamble states the proposed rule does not expressly provide for 
judicial review of placement or compliance because a regulation cannot 
confer jurisdiction on a Federal court (88 FR 68975). However, the 
commenters contended that this limitation is not an obstacle to 
informing children of their right to potential judicial review in a 
court with jurisdiction and venue.
    Response: Section 410.1109(a)(2) provides an explanation of the 
right to contact a lawyer to receive advice about challenging a 
placement determination or improper treatment. As noted by the 
commenters, the language in Sec.  410.1109(a)(2) is slightly different 
than the language in FSA Exhibit 6. The final rule language, however, 
more accurately accounts for recent changes in the law and current 
placement requirements. For instance, as a result of the Lucas R. case, 
ORR now has a nationwide and more robust process for administrative 
review of restrictive placements which unaccompanied children may avail 
themselves of as discussed further in Sec.  410.1902. At the time the 
FSA was approved, no such administrative review existed. Unaccompanied 
children are also entitled to a risk determination hearing in some 
cases, as discussed further in Sec.  410.1903. FSA Exhibit 6 simply 
advised that the child ``may ask a federal judge to review [their] 
case'' and ``may call a lawyer to help [them] do this.'' The final rule 
recognizes the complexities of the current process and advises that the 
child ``may call a lawyer to seek assistance and get advice about your 
rights to challenge this action.'' During that call, the lawyer would 
be able to explain to the child the placement review panel process 
detailed in Sec.  410.1902, or the risk determination hearing process 
in Sec.  410.1903, for example, or other potential avenues for relief. 
ORR believes that the explanation of the right of potential review 
provided in Sec.  410.1109(a)(2) is more accurate than the language in 
FSA Exhibit 6.
    Comment: Many commenters recommended that ORR take additional steps 
and that the rule include additional details to ensure adequate 
communication assistance and access so that unaccompanied children 
understand their legal rights. Specifically, these commenters 
recommended that ORR take the following steps to ensure adequate 
communication access to unaccompanied children with disabilities: (1) 
Identify community members who can facilitate communication with 
children with disabilities (such as sign language interpreters, 
advocates for persons with disabilities, inclusive education or special 
education teachers, or other caregivers of children with disabilities, 
or speech therapists); (2) For children with visual disabilities, 
describe the surroundings and introduce people present, and ask 
permission if offering to guide or touch the child or his or her 
assistive devices, such as wheelchairs or white canes; (3) For children 
with hearing disabilities, provide sign language interpreters and use 
visual aids; (4) If the child has difficulty communicating or 
understanding messages (such as children with disabilities), ensure the 
use of clear verbal communication and simple language, ask children to 
repeat information back and repeat as many times as necessary, in 
different ways and check for their understanding; (5) For children for 
whom there are concerns regarding capacity to make decisions regarding 
their case, ensure that children are quickly referred for a child 
advocate.
    Response: ORR thanks commenters for their recommendations. As 
proposed, under Sec.  410.1109(a)(3), ORR will provide unaccompanied 
children a presentation regarding their legal rights as provided under 
Sec.  410.1309(a)(2). In providing this presentation, ORR will take 
appropriate steps to ensure that the information it presents to 
unaccompanied children is communicated effectively to children with 
disabilities, including through the provision of auxiliary aids and 
services as required by section 504 and HHS's implementing regulations 
at 45 CFR 85.51. ORR will also take reasonable steps to ensure that 
individuals with limited English proficiency have a

[[Page 34439]]

meaningful opportunity to access information and participate in ORR 
programs, including through the provision of interpreters or translated 
documents. ORR appreciates the specific steps recommended by commenters 
and will consider including these recommendations in future 
policymaking. ORR refers readers to proposed Sec.  410.1309(a) for 
additional information regarding the legal rights presentation.
    Comment: One commenter recommended that Sec.  410.1109(a)(3) 
include a clarification that the legal rights presentation is funded 
and provided through a contracted provider separate from the care 
provider facility and that this must be provided within a certain 
number of days.
    Response: Section 410.1309(a)(2)(A), as finalized in this rule, 
provides that the legal rights presentation shall be provided by an 
independent legal service provider that has appropriate qualifications 
and experience, as determined by ORR, to provide such a presentation, 
and Sec.  410.1309(a)(2)(B) provides the timeframe within which such 
presentation must be provided. As such, ORR does not believe it is 
necessary to include this information in Sec.  410.1109, as finalized 
in this rule. ORR refers readers to proposed Sec.  410.1309(a) for 
additional information regarding the legal rights presentation.
    Final Rule Action: After consideration of public comments, ORR is 
amending the notice described at Sec.  410.1109(a)(2), adding to the 
second sentence of the notice that an unaccompanied child may call a 
lawyer to seek assistance ``and to get advice about your rights to 
challenge this action.'' In addition, ORR is not finalizing Sec.  
410.1109(b) because it is redundant of Sec.  410.1309(e). ORR believes 
that eliminating this redundancy will enhance clarity as to the 
applicable requirements regarding retaliation against legal service 
providers and prevent potential confusion.

Subpart C--Releasing an Unaccompanied Child From ORR Custody

Section 410.1200 Purpose of This Subpart
    This subpart describes ORR's policies and procedures regarding 
release, without unnecessary delay, of an unaccompanied child from ORR 
custody to a vetted and approved sponsor. ORR proposed in the NPRM to 
define release in subpart A as the ORR-approved transfer of an 
unaccompanied child from ORR care and custody to a vetted and approved 
sponsor in the United States. Accordingly, ORR stated that release does 
not include discharge for other reasons, including but not limited to 
the child turning 18, attaining legal immigration status, or being 
removed to their home country.
    As discussed in this subpart of the NPRM, once an unaccompanied 
child is released by ORR to a sponsor, that unaccompanied child is no 
longer in ORR's custody (88 FR 68927). The TVPRA distinguishes 
unaccompanied children in HHS custody from those released to ``proposed 
custodians'' determined by ORR to be ``capable of providing for the 
child's physical and mental well-being.'' \130\ In addition, under the 
FSA, once an unaccompanied child is released to a sponsor, the sponsor 
assumes physical custody.\131\ ORR stated in the NPRM that this subpart 
includes the process for determining that sponsors are able to care for 
the child's physical and mental well-being.
    In the NPRM, subpart C also proposed notice and appeal processes 
and procedures that certain potential sponsors will be afforded (88 FR 
68927). ORR proposed in the NPRM that parents or legal guardians of an 
unaccompanied child who are denied sponsorship of that unaccompanied 
child be afforded the ability to appeal such denials. ORR noted that 
because issues relating to procedures for non-parent relatives are 
currently in litigation in the Lucas R. case, they are not part of this 
rulemaking. For the purposes of this final rulemaking, ORR has made 
certain updates relevant to release of unaccompanied children, 
consistent with its discussion of the Lucas R. case at Section III.B.4 
above.
    Comment: One commenter stated the proposed rule is silent on 
planning for transition-age youth who will age-out from ORR custody. 
The commenter recommended that ORR develop plans for every 
unaccompanied child in its custody at least 60 days in advance of their 
18th birthday, and the plans should identify safe placement, social 
support services, employment assistance, and public benefits. 
Additionally, the commenter recommended ORR develop plans in 
conjunction with the unaccompanied child and their families, track the 
plans to ensure effectiveness, and regularly review and evaluate the 
plans for any necessary changes.
    Response: ORR thanks the commenter for their recommendations. ORR 
notes that under current policies, which are consistent with this final 
rule, it requires care provider facilities to create written plans 
regarding unaccompanied children expected to turn 18 while still in ORR 
custody. Consistent with ORR's current policies, each post-18 plan 
should, at a minimum, identify an appropriate non-secure placement for 
the child and identify any necessary social support services for the 
child. Additionally, the plan is to include an assessment and 
recommendation of any ongoing supporting social services the youth may 
require, an assessment of whether the youth is a danger to the 
community or risk of flight, identification of any special needs, and 
arrangements for transportation after the youth ages out to either the 
non-secure placement option or to DHS where appropriate. Such plans 
must be completed at least two weeks before an unaccompanied child 
turns 18. ORR will study the commenter's recommendations and may 
consider them for future policymaking.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed.
Section 410.1201 Sponsors to Whom ORR Releases an Unaccompanied Child
    ORR proposed in the NPRM at Sec.  410.1201 the sponsors to whom ORR 
may release an unaccompanied child and criteria that ORR employs when 
assessing a potential sponsor (88 FR 68927 through 68928). As 
discussed, the HSA makes ORR responsible for making and implementing 
placement determinations for unaccompanied children.\132\ In addition 
to these statutory requirements, the FSA establishes a general policy 
favoring release of unaccompanied children to sponsors, and further 
describes a preferred order of release, which ORR has incorporated into 
its policies.\133\
    Consistent with its statutory authority and the FSA, ORR proposed 
in the NPRM at Sec.  410.1201(a) potential sponsors in order of release 
preference. ORR noted that this order of preference reflects its strong 
belief that, generally, placement with a vetted and approved family 
member or other vetted and approved sponsor, as opposed to placement in 
an ORR care provider facility, whenever feasible, is in the best 
interests of unaccompanied children. ORR proposed in the NPRM, at Sec.  
410.1201(a) to codify the following order of preference for release of 
unaccompanied children: (1) to a parent; (2) to a legal guardian; (3) 
to an adult relative; (4) to an adult individual or entity, designated 
by the parent or legal guardian as capable and willing to care for the 
unaccompanied child's well-being through a declaration signed by the 
parent or legal guardian under penalty of perjury before an immigration 
or consular officer, or through such

[[Page 34440]]

other document(s) that establish(es) to the satisfaction of ORR, in its 
discretion, the affiant's maternity, paternity, or guardianship; (5) to 
a standard program willing to accept legal custody of the unaccompanied 
child; or (6) to an adult individual or entity seeking custody, in the 
discretion of ORR, when it appears that there is no other likely 
alternative to long term custody and release to family members does not 
appear to be a reasonable possibility. ORR stated that possible 
scenarios in which ORR envisions (6) may be applicable include, for 
example, foster parents or other adults who have built or are building 
a relationship with an unaccompanied child while in ORR care, such as a 
teacher or coach, and in which it is possible to ensure that a healthy 
and viable relationship exists between the unaccompanied child and 
potential sponsor. However, under current ORR policy, care provider 
staff, contractors, and volunteers may not have contact with any 
unaccompanied children outside of the care provider facility beyond 
that necessary to carry out job duties while the child is in ORR care. 
ORR proposed in the NPRM at Sec.  410.1202, as discussed below, sponsor 
suitability assessment process, which includes an assessment of the 
potential sponsor's previous and existing relationship with the 
unaccompanied child.
    ORR proposed in the NPRM under Sec.  410.1201(b), consistent with 
existing policy, that it would not disqualify potential sponsors based 
solely on their immigration status. In addition, ORR proposed in the 
NPRM that it shall not collect information on immigration status of 
potential sponsors for law enforcement or immigration enforcement 
related purposes. ORR stated that it will not share any immigration 
status information relating to potential sponsors with any law 
enforcement or immigration related entity at any time. ORR further 
stated that to the extent ORR does collect information on the 
immigration status of a potential sponsor, it would be only for the 
purposes of evaluating the potential sponsor's ability to provide care 
for the child (e.g., whether there is a plan in place to care for the 
child if the potential sponsor is detained).
    ORR proposed in the NPRM under Sec.  410.1201(c), that, in making 
determinations regarding the release of unaccompanied children to 
potential sponsors, ORR shall not release unaccompanied children on 
their own recognizance.
    Comment: Several commenters supported the proposal at Sec.  
410.1201(a) to prioritize placement with family members. One commenter 
appreciated the preference provided to family members, stating that 
placement with family members provides connection to the child's 
language, culture, and community. This commenter further recommended 
that ORR apply the principles of the Indian Child Welfare Act (ICWA) to 
the care and placement of unaccompanied children, ensuring their 
continued connection to their language, culture, traditions, and 
community. Another commenter recommended placing unaccompanied children 
with sponsors who are members of the Indigenous community from which 
the child originates and who understand the specific needs of an 
Indigenous child to ensure the child's welfare and rights are 
protected. One commenter specifically supported the proposed rule's 
presumption of unifying unaccompanied children with their parents 
because the commenter believed that it comports with international 
standards under Article 9 of the Convention on the Rights of the Child.
    Response: ORR thanks the commenters for their recommendations, and 
believes that the potential sponsors prioritized under Sec.  
410.1201(a)(1) through (4) reflect the preference to place an 
unaccompanied child with a potential sponsor who will likely be able to 
provide a connection to the unaccompanied child's language, culture, 
and community by virtue of the fact that they are known to the 
unaccompanied child because they are a family member or legal guardian, 
or known to the unaccompanied child's parent or legal guardian. In 
reference to Indigenous children, ORR notes that ICWA does not govern 
the UC program. However, ORR notes that under current policies it 
considers the linguistic and cultural background of the unaccompanied 
child and sponsor.
    Comment: A few commenters expressed strong support for the list of 
potential sponsors and order of release preference proposed at Sec.  
410.1201(a), stating that that it aligns with central principles of the 
FSA.
    Response: ORR agrees that the list of potential sponsors and order 
of release preference proposed at Sec.  410.1201(a) aligns with central 
principles of the FSA.
    Comment: One commenter recommended that ORR explicitly state that 
unification with family is the primary goal for unaccompanied children 
whenever possible.
    Response: ORR agrees that it is obligated to ensure that programs 
make prompt and continuous efforts toward family unification and 
release of children consistent with FSA paragraph 14 and the 
TVPRA,\134\ and this remains unchanged in this final rule at Sec.  
410.1201(a). ORR also reiterates its strong belief, expressed in the 
NPRM, that placement with a vetted and approved family member or other 
vetted and approved sponsor, as opposed to continued placement in an 
ORR care provider facility, is generally in the best interests of 
unaccompanied children whenever feasible.\135\
    Comment: One commenter was encouraged to see that ORR has 
explicitly included youth participation in decision-making as a 
foundational principle that applies to the care and placement of 
unaccompanied children in Sec.  410.1003(d) and stated that this 
principle should also apply to releases to sponsors.
    Response: ORR thanks the commenter for their recommendation and 
will take it into consideration in future policymaking in this area. 
ORR notes that Sec.  410.1202(c) provides that ORR's sponsor 
suitability assessments shall take into consideration the wishes and 
concerns of the unaccompanied child.
    Comment: Many commenters opposed the release of unaccompanied 
children to unrelated or distantly related sponsors. A few commenters 
expressed concern that non-relative or distant relative sponsors are 
not sufficiently vetted by ORR prior to release, which commenters 
believed could lead to increased risk of child trafficking and 
exploitation. One commenter recommended that ORR only release 
unaccompanied children to parents or legal guardians to ensure that 
unaccompanied children are not released to strangers, potential 
criminals, traffickers, and abusers. Several commenters expressed 
concern that proposed Sec.  410.1201(b) could result in placement with 
unknown sponsors, without sufficient follow-up or enforcement to ensure 
children are protected from trafficking.
    Response: ORR emphasizes its commitment to prevention of child 
trafficking and exploitation and believes that codifying these 
protective measures, many of which already exist in policy guidance, 
will strengthen its ability to do so. Specifically, ORR emphasizes that 
decisions to place a child with a sponsor are undertaken in accordance 
with its responsibility to ensure the safety and best interest of the 
child and only after the sponsor has been thoroughly vetted and 
approved by ORR, consistent with statutory requirements set forth in 
the TVPRA and further elaborated in this subpart. Consistent with the 
FSA, ORR agrees that priority should be given to a parent, legal 
guardian, or adult relative of the

[[Page 34441]]

child. However, as is also consistent with the FSA, in some cases 
individuals who are closely related to the child are either unable or 
unwilling to provide care. In such cases, ORR next prioritizes 
placement with another adult designated by the child's parent or legal 
guardian as verified by a signed declaration or other documentation 
that establishes a parental relationship per Sec.  410.1201(a)(4)(i) 
through (ii). This usually necessitates that the individual is known to 
the parent or legal guardian and therefore is not a stranger. 
Furthermore, at Sec.  410.1202(d), ORR stated that ORR may deny release 
to unrelated individuals who have applied to be a sponsor but who have 
no pre-existing relationship with the child or the child's family prior 
to the child's entry into ORR custody. Consistent with the FSA, ORR 
notes that a lack of a pre-existing relationship with the child would 
not categorically disqualify a potential sponsor, but lack of such 
relationship may be a factor in ORR's overall suitability assessment 
and when determining whether placing the child with a vetted and 
approved family member or other vetted and approved sponsor, as opposed 
to remaining in an ORR care provider facility, is in the best interests 
of the child. In addition, at Sec.  410.1202(e), ORR provides that ORR 
shall consider the sponsor's motivation for sponsorship; the 
unaccompanied child's preferences and perspective regarding release to 
the potential sponsor; and the unaccompanied child's parent's or legal 
guardian's preferences and perspective on release to the potential 
sponsor, as applicable.
    Comment: Many commenters expressed concern with proposed Sec.  
410.1201(a)(6), which may permit the release of unaccompanied children 
to potential sponsors with whom an unaccompanied child has built a 
healthy and viable relationship while in ORR care. The commenters 
believed that an unaccompanied child and a potential sponsor cannot 
develop a bond over 14-30 days that would be sufficient to be awarded 
custody and noted that ORR has not included bonding thresholds into any 
stage of the release process.
    Response: ORR thanks the commenters for their concern. ORR first 
notes that Sec.  410.1201(a)(6) is consistent with the FSA at paragraph 
14. Further, ORR notes that it did not require a specific minimum 
timeframe to determine if there is a relationship between the child and 
prospective sponsor seeking custody because a decision on such a 
threshold alone is likely to be arbitrary. ORR notes that there are 
additional substantive factors to consider to ensure that a healthy and 
viable relationship exists between the unaccompanied child and 
potential sponsor. ORR notes that every prospective sponsor is subject 
to a sponsor suitability assessment under Sec.  410.1203(d). 
Furthermore, at Sec.  410.1202(d), ORR stated that ORR shall assess the 
nature and extent of the potential sponsor's previous and current 
relationship with the unaccompanied child, and the unaccompanied 
child's family, if applicable. Lack of a pre-existing relationship with 
the child does not categorically disqualify a potential sponsor, but 
lack of such a relationship may be a factor in ORR's overall 
suitability assessment. ORR emphasizes that the criteria for ensuring a 
healthy and viable relationship with a non-relative prospective sponsor 
only apply when a parent, guardian, or relative is unable or unwilling 
to sponsor within 30 days of the child being in ORR care. ORR believes 
that it is important to consider placements with non-relatives who are 
assessed as suitable sponsors to avoid the child's placement in 
institutional care for longer than necessary.
    Comment: Several commenters expressed concern with the 
interpretation of ``standard program'' as proposed under Sec.  
410.1201(a)(5). Several commenters noted that the language in proposed 
Sec.  410.1201(a) mirrors that of paragraph 14 of the FSA, except that 
paragraph (a)(5) refers to ``a standard program willing to accept legal 
custody'' as opposed to ``a licensed program willing to accept legal 
custody.'' These commenters expressed concern that the proposed rule's 
elimination of the FSA's ``licensed program'' requirement in the 
release context would allow an unaccompanied child to be released from 
ORR custody for long-term placement in a facility that is not licensed 
or monitored by any State. Commenters further stated that it is not 
clear what ``a standard program willing to accept legal custody'' means 
in the release context because the proposed rule defines ``standard 
program'' within the framework of ORR care providers.
    Response: ORR thanks the commenters for their input. ORR notes that 
it is updating the language at Sec.  410.1201(a)(5) of this final rule 
to replace ``standard program,'' as used in the NPRM, with ``licensed 
program,'' consistent with the FSA.
    Comment: Many commenters expressed support for Sec.  410.1201(b). 
Many commenters stated that disclosing a sponsor's immigration status 
to immigration authorities or other law enforcement agencies, including 
DHS, could have a chilling effect on an eligible individual who wants 
to sponsor a child and may lead to a prolonged stay in ORR custody 
because qualified sponsors would be discouraged from coming forward to 
care for the child. One of these commenters further stated that this 
proposal would encourage more suitable individuals, including 
relatives, with cultural competency to sponsor a child without fear of 
adverse immigration action.
    Response: ORR thanks the commenters for their feedback.
    Comment: Many commenters, while strongly supporting proposed Sec.  
410.1201(b), made recommendations that they believed would strengthen 
the provision. First, these commenters urged ORR to clarify that it 
will not share any sponsor information with law enforcement or 
immigration enforcement entities except as needed to complete 
background checks or by judicial order. In addition, the commenters 
recommended that ORR make clear that both the unaccompanied child's and 
sponsor's personal information and ORR case files (including counseling 
and case management notes and records) will be maintained separately 
from the child or sponsor's immigration files (``A-files'') and will be 
provided to law enforcement or immigration enforcement only at the 
request of the individual (child or sponsor) or by judicial order. The 
commenters explained that without this protection, children and their 
sponsors' engagement with ORR in the unification process could easily 
be used to undermine sponsor placements that would otherwise be safe 
and stable. The commenters further noted that such protections would be 
consistent with ORR's clear mandate as a child welfare entity rather 
than as an arm or extension of law or immigration enforcement entities. 
One commenter stated that while they support ORR's decision to not ask 
about immigration status of a potential sponsor, it was concerned about 
ORR's ability to effectively implement this protection. Specifically, 
the commenter stated that ORR's ability to verify a sponsor's 
employment essentially serves as an immigration status verification, 
which it believed poses a risk for undocumented sponsors if their 
employers are contacted by ORR. The commenter was concerned that this 
provision will prevent potential sponsors from coming forward to take 
custody of an unaccompanied child. One commenter recommended that ORR 
include a specific and clear exception to share information with law 
enforcement

[[Page 34442]]

in the case a sponsor is a trafficker or could otherwise harm the 
child.
    Response: ORR appreciates the commenters' recommendations. ORR 
notes that it proposed in the NPRM that it shall not collect 
information on immigration status of potential sponsors for law 
enforcement or immigration enforcement related purposes (88 FR 68928). 
ORR further stated in this paragraph that it will not share any 
immigration status information relating to potential sponsors with any 
law enforcement or immigration related entity at any time. To the 
extent ORR does collect information on the immigration status of a 
potential sponsor, it would be only for the purposes of evaluating the 
potential sponsor's ability to provide care for the child (e.g., 
whether there is a plan in place to care for the child if the potential 
sponsor is detained). ORR prioritizes the prevention of human 
trafficking and the best interests of children but does not believe it 
is necessary to establish a specific exception in this section to allow 
disclosures to law enforcement if there is evidence of human 
trafficking because ORR already has policies in place to refer such 
cases to the proper Federal agency. Current ORR policies require the 
ORR NCC to report, as appropriate, matters of concern to ORR, local law 
enforcement, and/or local child protective services, and refers 
potential victims of human trafficking or smuggling to OTIP, and that a 
child be referred to a child advocate for support if a historical 
disclosure is made related to labor or sex trafficking. ORR further 
notes that the purpose of verification of the identity and income of 
the individuals offering support is to ensure the care and safety of 
the child and not to confirm immigration status. As a matter of 
practice, ORR notes that it does not routinely contact employers unless 
that information is provided as a source of verification of income on a 
sponsor application. ORR also notes that records in the case file are 
only related to services provided and case management of the child and 
not the child or sponsor's immigration status and are required to be 
protected from unauthorized disclosure. ORR does not maintain ``A-
files'' on either unaccompanied children or potential sponsors, as that 
is a function performed by other Federal agencies, which are 
responsible for immigration enforcement.
    Comment: One commenter expressed support for proposed Sec.  
410.1201(b), noting that it would prohibit use of sponsors' information 
in ways that are contrary to children's best interests and enable ORR 
to remain focused on the well-being and safety of unaccompanied 
children and its child protection mission, rather than diverting this 
critical attention to immigration enforcement purposes that are the 
purview of DHS. This commenter further urged ORR to add provisions 
codifying restrictions on the sharing of information or notes from 
mental health counseling provided to children in ORR custody, noting 
that past sharing of ORR information with ICE or EOIR has undermined 
children's rights, including the right to due process, as information 
collection intended to help identify children's protection needs and to 
aid them in healing from trauma were misused against children in 
removal proceedings.
    Response: ORR thanks the commenter for their support and 
appreciates the commenter's recommendations. Safeguarding and 
maintaining the confidentiality of unaccompanied children's case file 
records is critical to carrying out ORR's responsibilities under the 
HSA and the TVPRA. ORR notes that confidentiality of the child's 
records including mental health treatment are protected from disclosure 
at care provider facilities, and PRS providers may not release 
unaccompanied children's case file records or information contained in 
the case files for purposes other than program administration without 
prior approval from ORR. As stated at finalized Sec.  410.1303(h)(2), 
however, limited disclosures of mental health treatment are authorized 
for program administration purposes, such as to expeditiously provide 
emergency services and routine treatment, without waiting for approval 
from ORR.
    Comment: Many commenters opposed proposed Sec.  410.1201(b). Many 
commenters believed this information should be used to make sponsor 
assessments and should be shared with other agencies to protect 
unaccompanied children. One commenter expressed concern that the 
proposed provision could result in placing a child with a person 
currently under a deportation order, or not communicating to law 
enforcement that a potential sponsor had been ordered removed due to 
criminal convictions or illegally re-entry. Another commenter opposed 
proposed Sec.  410.1201(b), stating that immigration status should be 
an important part of vetting sponsors to ensure safety of unaccompanied 
children and compliance with immigration proceedings. One commenter 
stated that the proposed rule should facilitate, not restrict, 
information sharing between Federal Government agencies and State and 
local law enforcement and that the proposed restrictions at Sec.  
410.1201(b) are overbroad.
    Response: ORR thanks the commenters for their concern, and 
emphasizes that assessment of suitability of a sponsor includes a 
thorough background check to assess whether the sponsor has a criminal 
history, or any other factors that call into question the suitability 
of the sponsor. ORR also notes that at Sec.  410.1210(i)(4)(i), this 
final rule also requires PRS providers concerned about an unaccompanied 
child's safety and well-being to document and report a Notification of 
Concern (NOC) to ORR and, as applicable, to other investigative 
agencies (e.g., law enforcement or child protective services). However, 
ORR notes that it is not an immigration enforcement agency, and does 
not have statutory authorization to investigate the immigration status 
of potential sponsors. The HSA and the TVPRA do not make any mention of 
a sponsor's potential immigration status as a prerequisite to receive 
an unaccompanied child into their custody and do not imbue ORR with the 
authority to inquire into immigration status as a condition for 
sponsorship. As a result, to the extent ORR does collect information on 
the immigration status of a potential sponsor, it would be only for the 
purpose of evaluating the potential sponsor's ability to provide care 
for the child (e.g., whether there is a plan in place to care for the 
child if the potential sponsor is detained). ORR does not share 
immigration status information relating to potential sponsors with any 
law enforcement or immigration entity at any time. In reference to the 
comment concerning misrepresentation of an individual's age, in cases 
where ORR reasonably suspects that an individual in its custody is not 
a minor and subsequently determines that such individual has reached 
the age of 18, ORR follows all required procedures including referral 
for a transfer evaluation with DHS/ICE. If the individual is determined 
to be an adult based on the age determination, the individual is 
transferred to the custody of DHS/ICE.
    Comment: One commenter recommended that ORR amend its proposal to 
prioritize uniting unaccompanied children with their families in their 
home countries. This commenter stated that ORR should work with DHS to 
ensure that all unaccompanied children are united safely in their home 
countries, stating that repatriating and uniting unaccompanied children 
in their home

[[Page 34443]]

countries, rather than in the United States, is the most humane policy 
that maintains the integrity of the immigration system, consistent with 
Federal immigration law. The commenter further stated that this policy 
would eliminate any incentive to send minors alone or with smugglers to 
cross the border and mitigate the humanitarian crisis that has strained 
the immigration system's limited resources. Furthermore, the commenter 
stated that amending this proposal to prioritize the repatriation of 
unaccompanied children furthers congressional intent in enacting the 
TVPRA as set forth at 8 U.S.C. 1232(a)(5).
    Response: ORR acknowledges the commenter's concern, and notes that 
unaccompanied children generally remain in ORR custody until they are 
released to a parent or other sponsor in the United States, are 
repatriated to their home country by DHS, obtain legal status, or 
otherwise no longer meet the statutory definition of unaccompanied 
child (e.g., turn 18). ORR notes that it is not an immigration 
enforcement agency and is not authorized to make decisions regarding 
repatriating individuals in their country of origin; such decisions are 
in the purview of DHS and DOJ. In cases where appropriate, ORR may 
unite children with a parent abroad. ORR believes, consistent with its 
statutory responsibilities, that placement with a vetted and approved 
family member or other vetted and approved sponsor is generally in the 
best interest of the child. Subject to vetting and approval, if a 
parent or legal guardian is already in the United States, ORR does not 
believe delaying placement with a sponsor for the sake of uniting 
children with a parent abroad would necessarily be in the best interest 
of the child.
    Comment: A few commenters commented on the verification of familial 
relationships under proposed Sec.  410.1201. A few commenters 
recommended that ORR explain how it will verify familial relationships 
without DNA testing. Another commenter recommended that ORR amend 
proposed Sec.  410.1201 to make any adult who claims a familial 
relationship with an unaccompanied child but fails a DNA test or 
provides false identity documentation, barred from sponsoring an 
unaccompanied child.
    Response: ORR thanks the commenters for their recommendations. ORR 
recognizes the utility of DNA testing in the context of law enforcement 
activities undertaken by other agencies. ORR notes that the TVPRA 
requires ORR's sponsor suitability determination to include, ``at a 
minimum,'' verification of the custodian's identity and relationship to 
the child, if any, as well as an independent finding that the 
individual has not engaged in any activity that would indicate a 
potential risk to the child.\136\ However, the use of DNA testing 
raises multiple issues and is outside the scope of this rule. ORR does 
not agree that it should implement a regulation barring any sponsor who 
claims a familial relationship with a child that cannot be proven 
through analysis of DNA since ORR accepts other evidence of a familial 
or pre-existing relationship, including a child's birth certificate and 
sponsor identity documentation. While DNA testing may establish a 
biological relationship, not all familial relationships are biological. 
While a parent or other adult relatives are given priority when 
evaluating release to a sponsor, ORR also releases children to willing 
and able adults designated by the child's parent or guardian and vetted 
and approved by ORR when there is no parent or other adult relative 
willing or able to care for the minor's well-being in order to protect 
the best interests of the child. In reference to false identity 
documentation, Sec.  410.1202 provides that to ensure the best interest 
of the child, ORR may require a positive result in a suitability 
assessment of an individual or program prior to releasing an 
unaccompanied child to that individual or entity, which includes 
discretion to deny sponsorship if identity cannot be verified. Under 
current ORR policy, in the case of a potential sponsor who is neither a 
parent or legal guardian, nor a close relative, and lacks a bona fide 
relationship to the child, if a sponsor, household member, or adult 
caregiver provides any false information in the sponsor application 
and/or accompanying documents or submits fraudulent documents for the 
purposes of obtaining sponsorship of the child, ORR will report the 
incident to HHS Office of the Inspector General (OIG).
    Final Rule Action: After consideration of public comments, ORR is 
finalizing the language of Sec.  410.1201 as proposed in the NPRM.
Section 410.1202 Sponsor Suitability
    Before releasing an unaccompanied child to a sponsor, ORR has a 
responsibility to ensure that the sponsor is capable of providing for 
the child's physical and mental well-being and has not engaged in 
activity that would indicate a potential risk to the child.\137\ 
Further, under the FSA, ORR may require a positive result in a 
suitability assessment of an individual or program prior to releasing 
an unaccompanied child to that individual or entity, which may include 
an investigation of the living conditions in which the unaccompanied 
child would be placed, the standard of care the child would receive, 
verification of the identity and employment of the individuals offering 
support, interviews of members of the household, and a home visit. The 
FSA also provides that any such assessment should also take into 
consideration the wishes and concerns of the minor. In the NPRM, ORR 
stated that it believes this assessment of suitability may also include 
review of the potential sponsor's or adult household member's past 
criminal history, if any, and fingerprint background checks, as 
discussed subsequently in this section (88 FR 68928).
    Consistent with statutory authorities, the FSA, and existing 
policy, ORR proposed in the NPRM at Sec.  410.1202(a) to require 
potential sponsors to complete an application package to be considered 
as a sponsor for an unaccompanied child (88 FR 68928). ORR stated that 
an application package will be made available in the potential 
sponsor's native or preferred language from either the care provider 
facility or from ORR directly.
    Also consistent with existing policy, ORR proposed in the NPRM at 
Sec.  410.1202(b) to establish that suitability assessments will be 
conducted for all potential sponsors prior to release of a child to 
such a potential sponsor and described the minimum requirements for a 
suitability assessment (88 FR 68928). Consistent with ORR's 
responsibilities under 8 U.S.C. 1232(c)(3)(A), and with its current 
policies, ORR stated that suitability assessments would, at minimum, 
consist of review of the potential sponsor's application package 
described in Sec.  410.1202(a), including verification of the potential 
sponsor's identity and the potential sponsor's relationship to the 
child. ORR further stated that it may consult with the issuing agency 
(e.g., consulate or embassy) of the sponsor's identity documentation to 
verify the validity of the sponsor identity document presented and may 
also conduct a background check on the potential sponsor.
    ORR proposed in the NPRM at Sec.  410.1202(c) through (i) 
additional requirements or discretionary provisions related to 
completion of a suitability assessment (88 FR 68928 through 68929). 
These proposed requirements were in addition to those described in the 
TVPRA at 8 U.S.C. 1232(c)(3)(A) (describing ``minimum'' requirements 
for suitability assessments), and ORR proposed such

[[Page 34444]]

requirements in the NPRM consistent with its authority to implement 
policies regarding the care and placement of unaccompanied children as 
described at 6 U.S.C. 279(b)(1)(E). ORR proposed in the NPRM under 
Sec.  410.1202(c) to utilize discretion to evaluate the overall living 
conditions into which the unaccompanied child would be placed upon 
release to the potential sponsor. Proposed paragraph (c) therefore 
provided that ORR may interview members of the potential sponsor's 
household, conduct a home visit or home study pursuant to Sec.  
410.1204, and conduct background and criminal records checks, which may 
include biometric checks such as fingerprint-based criminal record 
checks on a potential sponsor and on adult household members, 
consistent with the TVPRA requirement to make an independent finding 
that the potential sponsor has not engaged in any activity that would 
indicate a potential risk to the child. ORR proposed in the NPRM at 
Sec.  410.1202(c) to permit ORR to verify the employment, income, or 
other information provided by the individuals offering support. The 
TVPRA at 8 U.S.C. 1232(c)(3) does not require a verification of the 
sponsor's employment. However, ORR proposed in the NPRM including this 
as a permissible consideration as part of the suitability assessment to 
ensure sponsors can show they have resources to provide for the child's 
physical and mental well-being upon release. ORR stated in the NPRM 
that although it believes this information may be relevant, it would 
not automatically deny an otherwise qualified sponsor solely on the 
basis of low income or employment status (either formal or informal). 
Finally, ORR proposed in the NPRM under Sec.  410.1202(c) to require 
that any suitability assessment also take into consideration the wishes 
and concerns of the unaccompanied child, consistent with FSA paragraph 
17.
    As part of a suitability assessment and the determination whether a 
potential sponsor is capable of providing for an unaccompanied child's 
physical and mental well-being, ORR proposed in the NPRM including 
additional assessment components to evaluate the environment into which 
the unaccompanied child may be placed. ORR proposed in the NPRM under 
Sec.  410.1202(d) to assess the nature and extent of the sponsor's 
previous and current relationship with the unaccompanied child and, if 
applicable, the child's family. ORR proposed in the NPRM that it would 
be able to deny release of an unaccompanied child to unrelated sponsors 
who have no pre-existing relationship with the child or the child's 
family prior to the child's entry into ORR custody. ORR stated that it 
intended that this language be read consistently with proposed Sec.  
410.1201(a)(4), such that ORR may release an unaccompanied child to an 
individual with no pre-existing relationship with the child if the 
individual is designated by the child's parent or legal guardian, but 
ORR would not be required to do so. Additionally, ORR proposed in the 
NPRM under Sec.  410.1202(e) to consider the sponsor's motivation for 
sponsorship; the opportunity for the potential sponsor and 
unaccompanied child to build a healthy relationship while the child is 
in ORR care; the unaccompanied child's preferences and perspective 
regarding release to the sponsor; and the unaccompanied child's 
parent's or legal guardian's preferences and perspective on release to 
the sponsor, as applicable.
    ORR proposed in the NPRM at Sec.  410.1202(f) considering risks and 
concerns specific to the individual child that should be evaluated in 
conjunction with the child's current functioning and strengths (88 FR 
68929). ORR proposed in the NPRM that these shall include risks or 
concerns such as: (1) whether the unaccompanied child is a victim of 
sex or labor trafficking or other crime, or is considered to be at risk 
for such trafficking due to, for example, observed or expressed current 
needs (e.g., expressed need to work or earn money because of 
indebtedness or financial hardship); (2) the child's history of 
involvement with the criminal justice system or juvenile justice system 
(including evaluation of the nature of the involvement, such as whether 
the child was adjudicated and represented by counsel, and the type of 
offense), or gang involvement; (3) the child's history of behavioral 
issues; (4) the child's history of violence; (5) any individualized 
needs, including those related to disabilities or other medical or 
behavioral/mental health issues; (6) the child's history of substance 
use; and/or (7) the child is either a parent or is pregnant.
    ORR proposed in the NPRM at Sec.  410.1202(g) a non-exhaustive list 
of factors that it would consider when evaluating a potential sponsor's 
ability to ensure the physical or mental well-being of a child (88 FR 
68929). ORR proposed in the NPRM considering the potential sponsor's 
strengths and resources in conjunction with any risks or concerns 
including: (1) the potential sponsor's criminal background; (2) the 
potential sponsor's current illegal drug use or history of abuse or 
neglect; (3) the physical environment of the home; and/or (4) other 
child welfare concerns. ORR noted that the term ``other child welfare 
concerns'' is intentionally broad to allow for discretion and notes 
that the term may include the well-being of any other unaccompanied 
children currently or previously under the potential sponsor's care. 
Pursuant to section 504 and HHS's implementing regulations at 45 CFR 
part 85, ORR noted that it shall not discriminate against a qualified 
individual with a disability when evaluating their capability to serve 
as a sponsor. In addition, ORR noted that it does not consider these 
listed risks or concerns as necessarily disqualifying to potential 
sponsorship. However, in keeping with its responsibility to ensure the 
safety and well-being of the child, ORR must assess the extent to which 
any of these risks or concerns could be detrimental to, or seriously 
impede a potential sponsor's capability to, provide for the 
unaccompanied child's physical and emotional well-being. ORR must give 
thorough consideration to the sponsor's specific situation and whether 
reasonable adaptations could be made to a release plan to ensure the 
unaccompanied child's safety and well-being as required by proposed 
Sec.  410.1202(i).
    ORR proposed in the NPRM at Sec.  410.1202(h) to assess the 
potential sponsor's understanding of the unaccompanied child's needs, 
plan to provide the child with adequate care, supervision, and housing, 
understanding and awareness of responsibilities related to compliance 
with the unaccompanied child's immigration court proceedings, school 
attendance, and U.S. child labor laws, as well as awareness of and 
ability to access community resources (88 FR 68929).
    Finally, ORR proposed in the NPRM at Sec.  410.1202(i) to develop a 
release plan that could enable a safe release to the potential sponsor 
through the provision of post-release services, if needed (88 FR 
68929).
    Comment: Several commenters supported the proposed changes to the 
sponsor suitability assessment, stating the additional vetting process 
ensures specific standards and services are met, considers the 
unaccompanied child's wishes and concerns in the sponsor suitability 
assessment, and ensures the child's safety. One commenter noted that 
these changes recognize the right of the child's effective 
participation in this process and comply with international standards.
    Response: ORR thanks the commenters for their comments.

[[Page 34445]]

    Comment: One commenter supported the increased focus on the 
vulnerability of unaccompanied children to child labor exploitation, 
specifically the proposal requiring an unaccompanied child's potential 
sponsor to demonstrate understanding and awareness of the sponsor's 
responsibilities related to compliance with the child's immigration 
court proceedings, school attendance, and U.S. child labor laws. The 
commenter stated these proposals will ensure unaccompanied children and 
their sponsors are informed of their rights with respect to safe and 
appropriate work for children.
    Response: ORR thanks the commenter for their feedback.
    Comment: A few commenters expressed concern that the potential 
sponsor suitability assessment criteria are vague, unclear, may not 
directly relate to the safety of the unaccompanied child, and may be 
overly burdensome and prohibitive to potential sponsors. One of these 
commenters recommended ORR evaluate the list of sponsor suitability 
assessment criteria and remove all those not directly related to the 
safety of the unaccompanied child. Another commenter recommended ORR 
provide clear and predictable criteria to assess sponsor suitability 
applications to lead to clear and predictable decisions.
    Response: ORR believes that all the factors considered are directly 
related to ORR's statutory responsibility under the TVPRA to make the 
requisite determination whether a potential sponsor is capable of 
providing for the unaccompanied child's physical and mental well-
being.\138\ The potential sponsor is subjected to an evaluation of 
their criminal background, substance use or history of abuse or 
neglect; the physical environment of the home; and/or other child 
welfare concerns. ORR added other child welfare concerns to account for 
policy changes or individualized needs that this rule may not 
anticipate. ORR studied best practices in child welfare in other 
contexts and adapted them to ORR's unique context involving the care of 
unaccompanied children, specifically with respect to evaluating the 
unaccompanied child's current functioning and strengths in conjunction 
with any risks or concerns such as sex or labor trafficking, and any 
individualized needs, including those related to disabilities or other 
medical or behavioral/mental health issues. ORR will continue to study 
and monitor the effectiveness of these suitability assessment criteria 
as they are implemented and may engage in future policymaking to 
continue to improve them, as appropriate.
    Comment: Several commenters had recommendations for verifying the 
sponsor's suitability, including identification documents, additional 
scrutiny of the sponsor's application, and other requirements. A few 
commenters recommended verifying the sponsor's identification with the 
issuing Government. A few commenters also recommended other State, 
local, or Federal agencies verify the sponsors' identity. One commenter 
recommended that State and local law enforcement should have a role in 
verifying sponsors, stating this would increase accountability. Another 
commenter also recommended that DHS conduct sponsor vetting. One 
commenter recommended a single entity conduct the verification process 
for the validity of sponsor identity documents and verify identity 
documents with the issuing Government when there is doubt. Another 
commenter recommended routinely validating the sponsor's identity 
documentation with the issuing agency, consulate, or embassy, 
regardless of whether there is doubt. One commenter recommended 
requiring the sponsor to present at least two identity documents. One 
commenter recommended a requirement that a potential sponsor who is not 
a biological parent or court-ordered legal guardian submit themselves 
and the unaccompanied child to a family court for a formal legal 
determination.
    Response: ORR proposed in the NPRM at Sec.  410.1202(d) that it 
would conduct a suitability assessment to verify at a minimum the 
sponsor's identity among other elements in the potential sponsor's 
application package. ORR notes that even though it does not specify 
required types or the quantity of identification documents that must be 
submitted, in the NPRM ORR proposed that, as appropriate in individual 
cases, it may consult with the issuing agency (e.g., consulate or 
embassy) of the sponsor's identity documentation to verify the validity 
of the sponsor identity document presented and may also conduct a more 
extensive background check on the potential sponsor (88 FR 68928). 
However, ORR believes that requiring all of these approaches in every 
case would be unnecessary and would likely result in unnecessary delays 
in placement of the child with a suitable sponsor, particularly when 
ORR is often able to verify identity without consulting with other 
agencies. ORR notes that as the Federal custodian it--as opposed to 
local family courts--is the agency statutorily responsible under the 
TVPRA for making suitability determinations of potential sponsors 
seeking the release of unaccompanied children to them.\139\
    Comment: One commenter recommended that potential sponsors provide 
evidence they are respected and responsible citizens, and if they have 
previously sponsored children, how many they have sponsored, records of 
sponsorship, the location of the children, and the children's current 
health and well-being.
    Response: ORR notes that the TVPRA only requires that potential 
sponsors be determined to be capable of providing for the physical and 
mental well-being of the unaccompanied children that they sponsor. ORR 
emphasizes that, consistent with the TVPRA, the suitability assessment 
required at Sec.  410.1202 will include consideration of the following: 
the potential sponsor's strengths and resources in conjunction with any 
risks or concerns that could affect their ability to function as a 
sponsor including: (1) criminal background; (2) substance use or 
history of abuse or neglect; (3) the physical environment of the home; 
and/or (4) other child welfare concerns, which may include the well-
being of other children currently or previously under the potential 
sponsor's care. ORR further notes that, as required under Sec.  
410.1204 and consistent with existing policy, ORR will conduct a home 
study before releasing any child to a potential non-relative sponsor 
who is seeking to sponsor multiple children or who has previously 
sponsored children.
    Comment: Several commenters emphasized the importance of thoroughly 
vetting sponsors to ensure the safety and well-being of unaccompanied 
children. However, some of these commenters did not support the 
potential sponsor suitability assessment process at Sec.  410.1202 
because commenters believed the verification process is inadequate to 
protect children from sponsors who may abuse, exploit, or victimize 
them. Additionally, commenters expressed concern that the sponsors may 
submit false or invalid documentation, that ORR may be unable to verify 
the relationship between the unaccompanied children and the sponsors, 
and that ORR may be unable to detect sponsor fraud. One commenter did 
not support the sponsor suitability proposals because they think the 
measures provide too much discretion in evaluating suitability, require 
a minimal review of the potential sponsor's application, and place too 
much trust in the potential sponsor's

[[Page 34446]]

statements in the application without independent verification.
    Response: ORR notes that verification of documentation submitted in 
the sponsor application may include an investigation of the living 
conditions and standards of care in which the unaccompanied child would 
be placed, verification of the identity and employment of the 
individuals offering support, interviews of members of the household, 
and a home visit. ORR also notes that Sec.  410.1202(c), consistent 
with the FSA, provides that a sponsor suitability assessment should 
take into consideration the wishes and concerns of the minor. ORR notes 
that all assessments of suitability include review of past criminal 
history, if any, and a background check, which may include 
fingerprinting of the sponsor and household members.
    Comment: Several commenters expressed concern that the proposed 
background checks are insufficient to vet sponsors and recommended 
stricter background checks, including an FBI fingerprint check, for all 
potential sponsors. One commenter recommended background checks of 
abductions or alerts as part of the sponsor's suitability assessment, 
while another commenter recommended local law enforcement conduct 
investigations of sponsors. In addition to recommending more stringent 
background checks, one commenter recommended that if a potential 
sponsor refuses to submit to a security and background check, ORR 
should bar the potential sponsor from receiving custody of the 
unaccompanied child.
    Response: ORR thanks the commenters for their recommendations. ORR 
emphasizes that it utilizes critical background check requirements for 
potential sponsors in all cases. What varies however, is which 
combination of background check requirements apply to individual 
sponsors or a sponsor household given specific factors, including the 
closeness of the relationship between the sponsor and the child. For 
example, measures such as public records checks and sex offender 
registry checks (through the U.S. Department of Justice National Sex 
Offender registry) are conducted for all sponsors. Other measures like 
the FBI background check are conducted for some sponsors, which per 
current ORR policy includes proposed sponsors who are unrelated, more 
distant relatives, or immediate relatives (e.g., aunt, uncle, first 
cousin) who were not previously the child's primary caregiver.
    Comment: One commenter expressed concern that ORR is releasing 
children to sponsors prior to a response from ACF's OTIP.
    Response: In placing a child with a sponsor, ORR stated in the NPRM 
that at minimum, a sponsor suitability review shall consist of 
verification of the potential sponsor's identity, physical environment 
of the sponsor's home, relationship to the unaccompanied child, if any, 
and an independent finding that the individual has not engaged in any 
activity that would indicate a potential risk to the unaccompanied 
child (88 FR 68985). Independent findings include information such as 
Government reports, background check results from other entities (like 
the FBI), third-party reviews of the case by a social worker not 
employed by the care provider, and information from state databases 
such as sex offender registry lists. ORR notes that it requires that 
OTIP be notified if during their initial intake, the unaccompanied 
child's responses to questions during any examination or assessment 
indicate the possibility that the unaccompanied child may have been a 
victim of human trafficking or labor exploitation. ORR also notes that 
its case managers are trained to identify common human trafficking 
indicators through their sponsor assessments, identity verification 
processes, and interviews, and ORR works closely with OTIP whenever 
there are any potential signs of trafficking in a case. If ORR has no 
further concerns about a release to a sponsor upon investigation of 
issues that come up during assessment, placement with a sponsor may 
move forward; however, a home study may be warranted, pursuant to the 
requirements and procedures at Sec.  410.1204 below.
    Comment: A number of commenters expressed concern that ORR releases 
unaccompanied children to unemployed sponsors, stating this is an 
indicator for trafficking. Some commenters expressed concern that ORR 
does not require potential sponsors to have a means to support 
unaccompanied children. Other commenters, however, recommended ORR 
clarify in the final rule that the risks and concerns listed in Sec.  
410.1202 do not necessarily disqualify a potential sponsor. Another 
commenter recommended ORR clarify that a potential sponsor's financial 
situation does not disqualify the potential sponsor unless it is so 
severe as to raise concerns about the sponsor's ability to meet the 
unaccompanied child's basic needs.
    Response: ORR notes that while the TVPRA at 8 U.S.C. 1232(c)(3) 
does not require verification of the sponsor's employment, the FSA does 
include employment as one possible factor in sponsor suitability. ORR 
proposed in the NPRM at Sec.  410.1202 to include this as a permissible 
consideration as part of the suitability assessment to ensure sponsors 
can show they have adequate resources to provide for the child's 
physical and mental well-being (88 FR 68928 through 68929). However, 
ORR will not deny an otherwise qualified sponsor solely on the basis of 
low income or employment status.
    Comment: A few commenters expressed concern about ORR releasing 
unaccompanied children to non-relative sponsors due to safety and well-
being concerns about the children. One of these commenters recommended 
ORR revise Sec.  410.1202 to bar potential non-relative sponsors who 
already have custody of an unaccompanied child from receiving custody 
of other non-relative unaccompanied children to decrease the risk that 
ORR releases these unaccompanied children to sponsors who may traffic, 
abuse, or exploit them. Another commenter recommended additional 
assessment of non-relative sponsors who are responsible for several 
unaccompanied children and involving other agencies when further 
investigation is needed, especially in cases of suspected smuggling or 
trafficking.
    Response: ORR believes that the policies codified in this section 
provide important protections which decrease the risk of release to 
sponsors who would traffic, abuse, or exploit children. Specifically, 
under Sec.  410.1202(d), ORR will assess the nature and extent of the 
potential sponsor's previous and current relationship with the 
unaccompanied child, and the unaccompanied child's family, if 
applicable, and may deny release to unrelated individuals who have 
applied to be a sponsor but who have no preexisting relationship with 
the child or the child's family prior to the child's entry into ORR 
custody Furthermore, ORR will consider the potential sponsor's 
motivation for sponsorship; the unaccompanied child's preferences and 
perspective regarding release to the potential sponsor; and the 
preferences of the unaccompanied child's parent or legal guardian and 
perspective on release to ORR. While ORR does not believe it would be 
able to serve the best interests of children in their custody by 
broadly excluding non-relative sponsors who already have custody of 
another unaccompanied child, under ORR policy such sponsorships are 
subject to a mandatory home study. ORR notes that under Sec.  
410.1205(a), a sponsorship would be denied if, as part of the sponsor 
assessment process described at

[[Page 34447]]

proposed Sec.  410.1202 or the release process described at Sec.  
410.1203, ORR determines that the potential sponsor is not capable of 
providing for the physical and mental well-being of the unaccompanied 
child or that the placement would result in danger to the unaccompanied 
child or the community.
    Comment: One commenter expressed concern that the proposed rule did 
not contain any protocols or information sharing requirements when ORR 
determines that an adult has fraudulently claimed to be a parent or 
relative of an unaccompanied child. Another commenter suggested that 
fraudulent representations made by a potential sponsor regarding their 
relationship to the unaccompanied child should be a crime and that such 
representations should be reported to ICE and applicable State law 
enforcement agency.
    Response: Under current ORR policy, in the case of a potential 
sponsor who is neither a parent or legal guardian, nor a close 
relative, and who lacks a bona fide pre-existing relationship with the 
unaccompanied child, or if a sponsor, household member, or adult 
caregiver provides any false information in the sponsor application 
and/or accompanying documents or submits fraudulent documents for the 
purposes of obtaining sponsorship of the child, ORR will report the 
incident to the HHS Office of the Inspector General (OIG). ORR also 
notes that notification of fraud is further addressed in current ORR 
policy, which provides that ORR may deny release if it is determined 
that fraudulent documents were submitted during the sponsor application 
process.
    Comment: One commenter recommended that if an unaccompanied child 
refuses a DNA test, the child should remain in ORR's custody.
    Response: ORR refers readers to the response above in Sec.  
410.1201 on using DNA to identify relationships between unaccompanied 
children and potential sponsors and reiterates that ORR releases 
children to willing and able adults designated by the child's parent or 
guardian who may not have a biological relationship with the child, and 
thus such relationships are not DNA-confirmable. ORR vets and approves 
such non-biological relative sponsors when there is no parent or other 
adult relative capable of providing for the child's physical and mental 
well-being. Furthermore, ORR believes that it is important that any 
disclosure of unaccompanied children's information is compatible with 
program goals and protects the safety and privacy of unaccompanied 
children.
    Comment: Several commenters expressed a belief and concern that 
case managers are not allowed to ask potential sponsors how many 
children they have sponsored, stating this question is necessary to 
ensure there is no child trafficking. A few commenters also expressed 
the belief that case managers are prohibited from fully investigating 
sponsors and are instead compelled to expedite unifications without 
conducting comprehensive safety assessments of the placement. A few 
commenters expressed concern that they believe case managers may risk 
termination if they call law enforcement to investigate sponsors and 
suspicious activities. One commenter recommended that case managers who 
report such concerns should not be subject to disciplinary action, 
including termination.
    Response: ORR notes that current policy not only permits case 
managers to evaluate if a potential sponsor has served as a sponsor 
before, but actually requires such an evaluation. Section 410.1202 sets 
out parameters that specifically require certain issues be evaluated, 
considered, or assessed, and ORR policy requires an evaluation of 
information relating to prior sponsorship as a vital part of the case 
manager's role in the sponsor assessment process. ORR's decision not to 
include detailed standards about all of the areas of potential inquiry 
by case managers in this regulation is not indicative of an inability 
or unwillingness to collect such vital information. ORR also notes that 
it provides for ongoing case management services and disagrees that 
case managers are compelled to expedite release to a sponsor. ORR 
further notes that its sponsor suitability assessment process has no 
effect on existing whistleblower protections, which remain in place and 
continue to be a key mechanism for ensuring the safety and well-being 
of all children in ORR care. Moreover, case managers are required to 
report safety concerns to local law enforcement and other appropriate 
investigative authorities (e.g., child protection agencies) in the 
course of reviewing a potential sponsor's application. In addition, 
independent of case manager communications and findings, current ORR 
policy requires additional scrutiny of potential sponsors who have 
previously sponsored children, such as through mandatory home studies.
    Comment: Many commenters expressed concern that ORR does not 
propose to vet all members of each potential sponsor's household. 
Several commenters recommended that ORR vet and conduct background 
checks on all other adults that may be present in any potential 
sponsor's household to ensure the safety of unaccompanied children from 
unlawful employment and trafficking.
    Response: ORR notes that proposed Sec.  410.1202(c) requires 
background and criminal records checks, which when safety concerns are 
present, may include a fingerprint-based background check on the 
potential sponsor and on any adult resident of the potential sponsor's 
household. Details regarding background check requirements and 
applicability to specific categories of potential sponsors, adult 
household members, and adults identified in the sponsor care plan are 
discussed further in the ORR Policy Guide. ORR also uses home visits 
and home studies in mandatory and discretionary cases to further 
evaluate the suitability of a home to receive unaccompanied children. 
ORR additionally notes that its case managers are specially trained to 
look for indicators of human trafficking in a household while they 
complete sponsor vetting. Those requirements are now codified in this 
final rule. In addition, ORR is further clarifying at Sec.  410.1202(c) 
to state that the sponsor suitability assessment shall include all 
needed steps to determine that the potential sponsor is capable of 
providing for the unaccompanied child's physical and mental well-being.
    Comment: One commenter expressed concern about ORR's ability to 
thoroughly assess potential sponsors' suitability within 10 to 20 days 
to allow for release of the unaccompanied children within 30 days of 
placement at a care provider facility.
    Response: ORR has found that 10 to 20 days is generally sufficient 
to thoroughly assess sponsor suitability and notes that additional time 
may be needed for a home study or other background checks in some 
cases. ORR is finalizing revisions to Sec.  410.1205(b) to include that 
it will adjudicate the completed sponsor application of a parent or 
legal guardian or brother, sister, or grandparent, or other close 
relative sponsor within 10 calendar days of receipt of that 
application, absent an unexpected delay (such as a case that requires 
completion of a home study). ORR will also adjudicate the completed 
sponsor application for other close relatives who were not previously 
the child's primary caregiver within 14 calendar days of receipt of 
that application, absent an unexpected delay (such as a case that 
requires completion of a home study).
    Comment: A few commenters expressed concern that proposed

[[Page 34448]]

Sec.  410.1202(d) denies release to an unrelated individual with whom 
the unaccompanied child does not have a pre-existing relationship. One 
of these commenters stated the proposal is inconsistent with the FSA 
because it would make the release priorities in paragraph 14D and 14F 
of the FSA optional for ORR and the FSA does not permit ORR to decline 
consideration of a potential sponsor due to a lack of a pre-existing 
relationship with the child. Additionally, the commenter stated this 
proposal is not needed to ensure safe placement and could result in 
unnecessary delays to release. The commenter also noted that the 
proposed rule does not include the opportunity for a potential sponsor 
to build a relationship with the unaccompanied child as described in 
ORR's current policy. To be consistent with the FSA and ORR policy, the 
commenter recommended the final rule state the potential sponsor's lack 
of a pre-existing relationship will not automatically disqualify a 
potential sponsor from consideration and, if necessary to ensure a safe 
release, ORR will provide an opportunity for a potential sponsor to 
establish a relationship with an unaccompanied child while the child is 
in ORR custody.
    Response: Under Sec.  410.1202(d), ORR will assess the nature and 
extent of the sponsor's previous and current relationship with the 
unaccompanied child and, if applicable, the child's family. ORR 
proposed in the NPRM that it would be able to deny release of an 
unaccompanied child to unrelated sponsors who have no pre-existing 
relationship with the child or the child's family prior to the child's 
entry into ORR custody (88 FR 68929). The final rule at Sec.  
410.1201(a)(4) recognizes, however, that lack of a pre-existing 
relationship with the child does not categorically disqualify a 
potential sponsor, but the lack of such relationship may be a factor in 
ORR's overall suitability determination. ORR notes, to further clarify 
its explanation in the preamble to the NPRM, that it intends that this 
proposed language be read consistently with proposed Sec.  
410.1201(a)(4) and (6), which implement FSA paragraphs 14D and F, 
respectively, such that ORR may release an unaccompanied child to an 
individual with no pre-existing relationship with the child after a 
suitability assessment, but ORR would not be required to do so. 
Additionally, Sec.  410.1202(e) requires ORR to consider the sponsor's 
motivation for sponsorship; the opportunity for the potential sponsor 
and unaccompanied child to build a healthy relationship while the child 
is in ORR care; the unaccompanied child's preferences and perspective 
regarding release to the sponsor; and the unaccompanied child's 
parent's or legal guardian's preferences and perspective on release to 
the sponsor, as applicable (88 FR 68929).
    Comment: One commenter recommended the sponsor suitability 
assessment consider the child's best interests in making any 
unification decisions, including the harm to the child's well-being of 
continued Federal custody and the benefits of release to a community 
placement. The commenter also recommended consideration of the 
sponsor's ability to provide for the child's welfare. This commenter 
expressed concern that the proposal at Sec.  410.1202(f)(1) to evaluate 
the unaccompanied child's risk of labor trafficking, including observed 
or expressed need to work or earn money, are overly broad risk 
assessment factors that do not adequately consider cultural norms in 
the families of unaccompanied children. The commenter recommended ORR 
identify and adopt a verified assessment tool to determine whether a 
child is at risk for trafficking in order to avoid prolonged Federal 
custody for a child while the suitability assessment process ensues.
    Response: ORR notes that a child expressing the need to work would 
not alone be considered a disqualifying factor but may warrant further 
inquiry during the sponsor suitability assessment. ORR is required to 
consider the best interest of the child and identify risk for child 
trafficking when making placements. A child's desire to make money is 
potentially an indicator that they are more vulnerable to exploitation 
and are at heightened risk. With respect to assessment tools, ORR notes 
that it utilizes several standardized screening tools for sex and labor 
trafficking available to federal agencies.
    Comment: A few commenters expressed concern that, without more 
context and explanation of what it means to evaluate the unaccompanied 
child's individualized needs related to any disability as part of ORR's 
assessment of a potential sponsor, care provider facilities could 
discriminate against children with disabilities by adding obstacles not 
faced by children without disabilities. The commenters recommended the 
final rule state that consideration of a child's disability or 
disabilities must explicitly consider the potential benefit to the 
child of release to a community placement with a sponsor and the 
potential harm to the child of continued ORR custody. Further, the 
commenters recommended the final rule clearly state that a child's 
disability is not a reason to delay or deny release to a sponsor unless 
the sponsor is determined to be incapable of providing for the child's 
physical and mental well-being despite documented efforts by ORR to 
educate the sponsor about the child's needs and to assist the sponsor 
in accessing and coordinating post-release services and supports. 
Lastly, the commenters recommended the final rule require that when the 
sponsor needs support or training to meet the child's disability-
related needs, such support and training should be provided as a 
reasonable modification for the child and to enable the child to live 
in the most integrated setting appropriate to their needs.
    Response: ORR notes that it has a statutory duty under the TVPRA to 
assess the suitability of a potential sponsor before releasing a child 
to that person,\140\ and such an assessment must necessarily include an 
assessment of the potential sponsor's ability to meet the child's 
disability-related needs (which may also require the provision of PRS). 
ORR agrees that under this subpart, a potential sponsor's capability to 
provide for the physical and mental well-being of the child must 
necessarily include explicit consideration of the impact of the child's 
disability or disabilities, and whether PRS are needed to meet the 
child's disability-related needs. Correspondingly, ORR must consider 
the potential benefits to the child of release to a community-based 
setting. Thus, under Sec.  419.1202(f)(5), ORR is finalizing that it 
will assess any individualized needs of the unaccompanied child, 
including those related to disabilities or other medical or behavioral/
mental health issues, and under Sec.  410.1202(h)(1) will assess the 
sponsor's understanding of the child's needs as a part of determining 
the sponsor's suitability. ORR notes that Sec.  410.1311(e)(2) as 
proposed in the NPRM states that ORR will affirmatively assist sponsors 
in accessing PRS to support the disability-related needs of a child 
upon release (88 FR 68952). ORR believes that a child's disability is 
not a reason to delay or deny release to a sponsor unless there is a 
significant risk to the health or safety of the child that cannot be 
mitigated through the provision of services and reasonable 
modifications, and ORR has documented its efforts to educate the 
sponsor about the child's disability-related needs and coordinated PRS. 
Additionally, unaccompanied children with disabilities should have an 
equal opportunity for prompt release, and for

[[Page 34449]]

that reason ORR proposed under Sec.  410.1311(c)(3) that release will 
not be delayed solely because PRS is not in place. ORR also agrees that 
consideration must be given to the explicit benefits of community-based 
settings and is therefore modifying Sec.  410.1311(e)(1) to state that 
ORR must consider the potential benefits to the child of release to a 
community-based setting.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing its proposal as proposed, with amendments to Sec.  
410.1202(c), clarifying that ORR's suitability assessment of potential 
sponsors ``shall include taking all needed steps to determine that the 
potential sponsor is capable of providing for the unaccompanied child's 
physical and mental well-being;'' and Sec.  410.1202(d), clarifying 
that lack of a pre-existing relationship with the child does not 
categorically disqualify a potential sponsor, but the lack of such 
relationship will be a factor in ORR's overall suitability assessment. 
ORR will use its discretion to review the totality of the evidence.
Section 410.1203 Release Approval Process
    ORR proposed in the NPRM under Sec.  410.1203 a process for 
approving an unaccompanied child's release (88 FR 68929 through 68930). 
ORR proposed in the NPRM at Sec.  410.1203(a) to codify the FSA 
requirement that ORR make and record timely and continuous efforts 
towards safe and timely release of unaccompanied children. These 
efforts include intakes and admissions assessments and the provision of 
ongoing case management services to identify potential sponsors.
    ORR proposed in the NPRM at Sec.  410.1203(b), that if a potential 
sponsor is identified, ORR would provide an explanation to both the 
unaccompanied child and the potential sponsor of the requirements and 
procedures for release.
    ORR proposed in the NPRM at Sec.  410.1203(c) the information that 
a potential sponsor must provide to ORR in the required sponsor 
application package for release of the unaccompanied child. ORR 
proposed in the NPRM that information requirements include supporting 
information and documentation regarding: the sponsor's identity; the 
sponsor's relationship to the child; background information on the 
potential sponsor and the potential sponsor's household members; the 
sponsor's ability to provide care for the child; and the sponsor's 
commitment to fulfill the sponsor's obligations in the Sponsor Care 
Agreement. ORR noted that the Sponsor Care Agreement, which ORR 
proposed in the NPRM shall be made available in a potential sponsor's 
native or preferred language pursuant to Sec.  410.1306(f), requires a 
potential sponsor to commit to (1) provide for the unaccompanied 
child's physical and mental well-being; (2) ensure the unaccompanied 
child's compliance with DHS and immigration courts' requirements; (3) 
adhere to existing Federal and applicable State child labor and truancy 
laws; (4) notify DHS, EOIR at the Department of Justice, and other 
relevant parties of changes of address; (5) provide notice of 
initiation of any dependency proceedings or any risk to the 
unaccompanied child as described in the Sponsor Care Agreement; and (6) 
in the case of sponsors other than parents or legal guardians, notify 
ORR of a child moving to another location with another individual or 
change of address. ORR also proposed that in the event of an emergency 
(for example, a serious illness or destruction of the sponsor's home), 
a sponsor may transfer temporary physical custody of the unaccompanied 
child, but the sponsor must notify ORR as soon as possible and no later 
than 72 hours after the transfer. ORR noted that this departs from the 
2019 Final Rule and the FSA to the extent that ORR did not propose to 
require the sponsor to seek ORR's permission to transfer custody of the 
unaccompanied child. ORR further noted that this departure reflects 
that ORR does not retain legal custody of an unaccompanied child after 
the child is released to a sponsor. However, ORR retains an interest in 
knowing this information for the provision of post-release services, 
tracking concerns related to potential trafficking, and for potential 
future sponsor assessments should the child's sponsor step forward to 
sponsor a different child.\141\
    ORR proposed in the NPRM at Sec.  410.1203(d), to conduct a sponsor 
suitability assessment consistent with the requirements of Sec.  
410.1202.
    ORR proposed in the NPRM at Sec.  410.1203(e), consistent with 
existing policies, to not release an unaccompanied child to any person 
or agency it has reason to believe may harm or neglect the 
unaccompanied child, or that it has reason to believe will fail to 
present the unaccompanied child before DHS or the immigration courts 
when requested to do so. For example, ORR stated that it would deny 
release to a potential sponsor if the potential sponsor is not willing 
or able to provide for the unaccompanied child's physical or mental 
well-being; the physical environment of the home presents risks to the 
unaccompanied child's safety and well-being; or the release of the 
unaccompanied child to that potential sponsor would present a risk to 
the child or others.
    Furthermore, ORR proposed in the NPRM at Sec.  410.1203(f), that 
ORR shall educate the potential sponsor about the needs of the 
unaccompanied child as part of the release process and would also work 
with the sponsor to develop an appropriate plan to care for the 
unaccompanied child if the child is released to the sponsor. ORR stated 
that such plans would cover a broad range of topics including providing 
the unaccompanied child with adequate care, supervision, access to 
community resources, housing, and education. Regarding education, ORR 
understands that under the laws of every State, children up to a 
certain age must attend school and have a right to attend public 
school. Public schools may not refuse to enroll children, including 
unaccompanied children, because of their (or their parents or 
sponsors') immigration status or race, color, or national origin.\142\ 
ORR also understands that school districts may not insist on 
documentation requirements that effectively prevent enrollment of an 
unaccompanied child.\143\
    For purposes of this final rule, ORR notes that it typically begins 
to identify and assess potential sponsors for unaccompanied children as 
soon as they are physically transferred to ORR custody. But consistent 
with current policies,\144\ in some exceptional circumstances (e.g., 
when ORR takes part in interagency humanitarian missions and other 
similar special operations), when notified by another federal agency 
with custody of the child that that the child will likely be determined 
to be unaccompanied, ORR may begin vetting potential sponsors for a 
child before the child is physically transferred to ORR custody. In 
these cases, ORR would not wait for the child to be placed in an ORR 
care provider facility to begin the release process. Nevertheless, the 
release process for these unaccompanied children would continue to be 
governed by the TVPRA and HSA.
    Comment: A few commenters expressed concerns and made 
recommendations regarding the release approval timeframe. A few 
commenters expressed concern that the proposed rule does not specify 
how long an unaccompanied child can stay in ORR custody before being 
released to a sponsor or another appropriate placement. The commenters 
stated that this creates uncertainty and

[[Page 34450]]

inconsistency in the release process, which could potentially prolong 
the detention of some children who could be safely released sooner, and 
that the rule should establish a clear and reasonable timeframe for the 
release of unaccompanied children from ORR custody. One commenter 
specified that the timeframe should consider children's best interests, 
safety, and well-being, and should also provide for exceptions and 
extensions to the timeframe in certain circumstances, such as when 
there are delays in identifying or verifying a sponsor, when there are 
pending legal proceedings, or when there are individualized needs or 
circumstances of the child. This commenter suggested adding a new 
paragraph to Sec.  410.1203 that would specify requirements regarding 
the timeframe for release approval.
    Response: Under proposed Sec.  410.1203(a), which ORR is finalizing 
in this final rule, ORR or the care provider facility providing care 
for the unaccompanied child must make and record the prompt and 
continuous efforts on its part toward family unification and release of 
the child. ORR notes that transfer of physical custody of the child 
must occur as soon as possible once an unaccompanied child is approved 
for release. ORR acknowledges that the final rule does not specify how 
long an unaccompanied child can stay in ORR custody before being 
released to a sponsor or another appropriate placement. However, ORR 
makes every effort to quickly and safely release unaccompanied children 
to a sponsor determined by ORR to be suitable pursuant to the 
procedures in subpart C. Rather than specifying a particular timeframe 
for release, ORR believes that flexibility is necessary to consider the 
individual circumstances of each case, including delays in identifying 
or verifying a sponsor, pending legal proceedings, or individualized 
needs or circumstances of the child, including any individualized needs 
of a child with a disability, to ensure that children are placed with 
suitable sponsors who are capable of providing for their physical and 
mental well-being. ORR notes that on average, most releases occur much 
earlier than 90 days from ORR gaining custody with an average time of a 
27-day length of stay in ORR's custody prior to release in fiscal year 
2023.\145\ ORR notes that, in the interest of the timely and efficient 
placement of unaccompanied children with sponsors, Sec.  410.1207, as 
revised in this final rule, requires ORR supervisory staff who 
supervise field staff to conduct automatic review of all pending 
sponsor applications. The first automatic review shall occur within 90 
days of an unaccompanied child entering ORR custody to identify and 
resolve the reasons that a sponsor application remains pending in a 
timely manner, as well as to determine possible steps to accelerate the 
children's safe release.
    Comment: Many commenters recommended that the final rule include a 
provision specifically requiring that ORR and care provider facilities 
engage in release planning for youth who will age out of ORR custody at 
age 18 beginning on their 17th birthday, or if they enter custody after 
that time, as soon as they enter custody. The commenters stated that 
prompt and timely age-out planning is important because children in ORR 
custody who age out face the possibility of being transferred to adult 
detention in an ICE facility, and abrupt transitions out of a child 
welfare setting without sufficient planning and support can further 
traumatize children and leave them vulnerable to homelessness, 
exploitation, and trafficking.
    Response: ORR agrees that prompt and timely age out planning is 
important. ORR's existing requirements in subregulatory guidance 
include after care planning to prepare unaccompanied children for post-
ORR custody. Under current ORR policies, care provider facilities 
create long term plans to address the individualized needs of each 
unaccompanied child following release from ORR, and whenever possible, 
this involves releasing an unaccompanied child to the care of a family 
member. However, in some situations, release to a family member is not 
an option for the child. In those instances, the care provider facility 
must explore other planning options for the future. These include 
planning for teenagers turning 18 years of age, and ``aging out'' of 
ORR custody. ORR, however, has not designated a specific timeframe 
within which such planning must start as it believes that flexibility 
is necessary based on the individualized needs and circumstances of 
each child. ORR will consider commenters' recommendations and may 
further address them in future policymaking.
    Comment: A few commenters stated that the final rule should further 
clarify that a child's disability is not a reason to delay or deny 
release to a sponsor unless there is a significant risk to the health 
or safety of the child that cannot be mitigated through the provision 
of services and reasonable modification. The commenters emphasized that 
this assistance must be directly tied to the sponsor evaluation process 
to make clear that sponsors should not be denied prior to such support 
being offered.
    Response: ORR agrees that a child's disability is not a reason to 
delay or deny release to a sponsor unless there is a significant risk 
to the health or safety of the child that cannot be mitigated through 
the provision of services and reasonable modifications. Thus, under 
Sec.  419.1202(f)(5), ORR is finalizing that it will evaluate any 
individualized needs of the unaccompanied child, including those 
related to disabilities or other medical or behavioral/mental health 
issues, and under Sec.  410.1202(h)(1) will assess the sponsor's 
understanding of the child's needs as a part of determining the 
sponsor's suitability. ORR notes that Sec.  410.1311(e)(2) as proposed 
in the NPRM states that ORR will affirmatively assist sponsors in 
accessing PRS to support the disability-related needs of a child upon 
release. ORR agrees that unaccompanied children with disabilities 
should have an equal opportunity to be promptly released, and for that 
reason proposed under Sec.  410.1311(c)(3) that release will not be 
delayed solely because PRS is not in place.
    Comment: Many commenters did not support the proposal in the NPRM 
at Sec.  410.1203(c) that the sponsor application must include 
background information on the potential sponsor's household members 
because ORR has stated previously this is not mandatory. In addition, 
the commenters did not support the proposal that the sponsor 
application must include information regarding the sponsor's identity, 
because commenters believe that ORR does not impose requirements for a 
standard form of identity or accept expired documents.
    Response: ORR is required under the TVPRA to verify the sponsor's 
identity and the sponsor application is a means for ORR to collect 
standard forms of identification that can be verified by the issuing 
agency. With respect to information about an individual's household 
members, ORR is required to establish the number and identity of 
individuals in the household in order to perform background checks and 
to evaluate the environment into which the unaccompanied child may be 
placed. With respect standardization of documentation of identity, ORR 
notes Government-issued identification is consistent with international 
standards and since it may come in various forms from a multitude of 
countries, ORR does not believe it is practical to require 
standardization of identity documents if

[[Page 34451]]

they serve to identify the individual in their country of origin.
    Comment: A few commenters expressed concern that there is 
insufficient oversight of sponsors after an unaccompanied child is 
released and that the proposed rule does not require ORR to terminate 
custody agreements when sponsors fail to adhere to them. Specifically, 
commenters stated that ORR should be required to terminate custody 
agreements where it is determined that the child's safety or well-being 
is at risk (e.g., in cases where the sponsor has abused or trafficked a 
child) or the potential sponsor has committed fraud to acquire custody.
    Response: ORR notes that although its custody terminates when a 
child is released to a sponsor, ORR may assist children after release 
by providing post-release services (PRS) as mandated or authorized by 
the TVPRA for children who can benefit from ongoing assistance from 
social service providers in their community. At Sec.  410.1210(b)(1) as 
proposed in the NPRM and finalized, ORR will require that PRS providers 
work with sponsors to address challenges in parenting and caring for 
unaccompanied children. This may include guidance about maintaining a 
safe home; supervision of unaccompanied children; protecting 
unaccompanied children from threats by smugglers, traffickers, and 
gangs; and information about child abuse, neglect, separation, grief 
and loss, and how these issues affect unaccompanied children. ORR notes 
that custody determinations involving released children fall within the 
jurisdiction and applicable law of the state in which the released 
child resides.
    Comment: Many commenters strongly supported the proposed regulation 
at Sec.  410.1203(c)(3) requiring potential sponsors to adhere to 
existing Federal and State child labor laws as part of the Sponsor Care 
Agreement, stating that this was a much-needed step toward ensuring 
that unaccompanied children and their sponsors are informed of their 
rights with respect to safe and appropriate work for children.
    Response: ORR thanks the commenters for their support.
    Comment: A few commenters expressed concern regarding proposed 
Sec.  410.1203(c)(5) which requires sponsors to provide notice of 
initiation of any dependency proceedings. One commenter believed that 
ORR has no authority to mandate ongoing updates by sponsors, 
particularly given that ORR has acknowledged in the preamble that once 
a child is released from care, they are no longer in ORR custody and 
ORR has not placed a time limit after which sponsors would no longer be 
required to make such notifications. This commenter recommended that 
ORR strike paragraph (c)(5) from Sec.  410.1203, or at a minimum 
require notifications only within a specified, reasonable time limit, 
such as 30 days, or only require them of children receiving PRS 
mandated by the TVPRA. Another commenter stated that the proposed 
notification requirement would be burdensome to sponsors because 
custody or dependency proceedings are often started to seek the 
judicial determinations required for Special Immigrant Juvenile (SIJ) 
classification. The commenter further noted that while ORR states that 
it has an interest in this information for PRS, to address any 
trafficking concerns, or for potential future sponsor assessments 
regarding the same sponsor, to accomplish this goal, it should be 
sufficient for the sponsor to notify ORR if a case has been opened 
regarding the unaccompanied child with the State's child welfare agency 
due to allegations of abuse, abandonment, or neglect.
    Response: ORR believes that, although it does not retain custody of 
a child post-release, it has authority under the TVPRA to ask that 
sponsors provide notice on an ongoing basis of the initiation of any 
dependency proceedings involving the child in order to provide PRS if 
needed, to address any trafficking concerns, or for potential future 
sponsor assessments regarding the same sponsor. ORR does not believe 
there is enough of a distinction between the burden of notifying ORR if 
a case has been opened with the State's child welfare agency and the 
initiation of proceedings in family court to require one but not the 
other. With respect to requiring notifications only with a specified, 
reasonable limit, ORR believes that this would result in an undue delay 
in addressing any potential concerns if such a case moves forward 
within whatever timeframe ORR were to specify before ORR has knowledge 
of it.
    Comment: Many commenters expressed concern regarding the 
requirements at proposed Sec.  410.1203(c)(6) for a sponsor to notify 
ORR post-release that a child is moving to another location with 
another individual or of a change of address. Many commenters opposed 
proposed Sec.  410.1203(c)(6) because the proposed notification 
requirements do not go far enough to protect unaccompanied children. 
Some of these commenters expressed concern that, in their view, ORR 
assumes no role or responsibility in preventing a child's sponsor from 
transferring responsibility for the child's care after placement. 
Another commenter expressed concern specifically regarding the proposed 
72-hour notification requirement at Sec.  410.1203(c)(6) when a sponsor 
transfers physical custody of the unaccompanied child in the event of 
an emergency. The commenter stated that by providing the sponsor three 
days to notify ORR of the transfer, ORR may lose the child's location 
and lose the ability to prevent the re-trafficking of the child and 
noted that there may be little recourse against the sponsor. In 
contrast, a few commenters expressed concern that the notification 
requirements at proposed Sec.  410.1203(c)(6) go too far. One commenter 
sought clarification regarding the purpose, scope, and penalty for non-
compliance with the requirement at Sec.  410.1203(c)(6), expressing 
concern that the proposed notification requirements amount to 
unwarranted Government intrusion where there is no evidence of a safety 
concern to justify continued oversight or monitoring. The commenter 
further stated that this proposed policy is inconsistent with ORR's 
past statements that its obligation to the unaccompanied child ends 
with the release of that child to a sponsor. Another commenter opposed 
proposed Sec.  410.1203(c)(6), stating that ORR has no authority to 
mandate ongoing updates by sponsors, particularly given that ORR has 
acknowledged in the preamble that once a child is released from its 
care, they are no longer in ORR legal custody and that ORR has not 
placed a time limit after which sponsors would no longer be required to 
make such notifications. The commenter further stated that the proposed 
change of address notifications are duplicative, given that children 
and their sponsors have an independent responsibility to notify EOIR 
and the DHS of any change of address under proposed Sec.  
410.1203(c)(4). Thus, the commenter recommended that ORR strike 
paragraph (c)(6) from Sec.  410.1203, or at a minimum require 
notifications only within a specified, reasonable time limit, such as 
30 days, or only require them of children receiving PRS mandated by the 
TVPRA.
    Response: ORR disagrees that it has no authority to specify, as a 
condition of release, that a sponsor agree to a 72-hour notification 
requirement when transferring custody of a child. Furthermore, ORR 
believes 72 hours is a reasonable time in which to inform ORR of a 
transfer of custody and that it is sufficient for maintaining an 
ability to contact the child to initiate or continue to provide PRS. 
ORR notes that while

[[Page 34452]]

certain cases mandate PRS, all released children are still eligible to 
receive PRS. ORR does not consider this notification part of monitoring 
as it does not propose to impose penalties or take specific action 
related to the transfer of custody. ORR acknowledges that it cannot 
require sponsors to seek permission to transfer custody of a child from 
the sponsor to someone else because ORR no longer has custody over 
children after they are discharged from its care. However, ORR needs to 
maintain and update records of the child's location in order to be able 
to provide PRS on a mandatory or discretionary basis while the child 
remains eligible for such services during the pendency of their removal 
proceedings.
    Comment: Many commenters recommended that the proposed rule include 
a provision codifying ORR's ability to keep families together by 
expediting the release of unaccompanied children to relatives with whom 
they are traveling who qualify as close relative sponsors. 
Specifically, the commenters stated that instead of separating families 
and causing additional trauma, ORR staff could meet with children and 
relatives at the border and begin the process of qualifying the adult 
family member as a close relative sponsor, including verifying family 
relationships and ensuring that adult relatives do not pose a risk of 
trafficking or other immediate danger to the child. The commenters 
recommended that if the adult relative is approved as a close relative 
sponsor, CBP would release the adult and ORR would release the child 
into the custody of the family member (with the child designated as 
unaccompanied, which the commenter stated provides critical protections 
to children during their immigration case).
    Response: ORR notes that it is not an immigration enforcement 
agency, and its statutory authority is limited to the care and 
placement of unaccompanied children transferred by other Federal 
departments or agencies to ORR custody. ORR, therefore, cannot evaluate 
sponsors or relatives the child has traveled with upon the child's 
entry to the United States at the border before the child has been 
identified as an unaccompanied child within the definition of this 
rule. ORR agrees that if a parent or adult relative is in the United 
States and able, willing and qualified to sponsor a child, they are 
first in the order of priority for those eligible to be sponsors. ORR 
also notes that its policy is not to separate family members that 
arrive at the border together; DHS refers children to ORR within the 
parameters of the TVPRA but the vetting process for sponsorship is not 
immediate. Further, ORR notes that it has a pilot project with DHS 
under which it attempts to quickly reunify unaccompanied children with 
accompanying relatives, consistent with both agencies' authorities. 
However, it is outside the scope of ORR's statutory authority to codify 
in this final rule practices that pertain to DHS operations.
    Comment: One commenter noted that the proposed rule does not 
specify what the best interests of the child are when there are 
conflicting claims from different sponsors, which could lead to putting 
the child back into a potentially dangerous situation.
    Response: ORR notes that when there are multiple potential 
sponsors, ORR observes the following order of priority: parent, legal 
guardian, adult relative, or another adult designated by the parent or 
legal guardian as capable and willing to care for the minor's well-
being, as is consistent with the FSA paragraph 14. ORR notes that at 
Sec.  410.1001 contains a non-exhaustive list of factors that ORR 
considers when evaluating what is in a child's best interests. Included 
on this list are the unaccompanied child's expressed interests, in 
accordance with the unaccompanied child's age and maturity; the 
unaccompanied child's mental and physical health; the wishes of the 
unaccompanied child's parents or legal guardians; the intimacy of 
relationship(s) between the unaccompanied child and the child's family, 
including the interactions and interrelationship of the unaccompanied 
child with the child's parents, siblings, and any other person who may 
significantly affect the unaccompanied child's well-being. ORR would 
therefore balance these and additional factors stated at Sec.  410.1001 
and in this section when considering sponsor suitability, including 
when there are multiple potential sponsors. ORR further notes that 
pursuant to Sec.  410.1203(e), ORR shall not be required to release an 
unaccompanied child to any person or agency it has reason to believe 
may harm or neglect the unaccompanied child or fail to facilitate the 
unaccompanied child's appearance before DHS or the immigration courts 
when required to do so.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed.
Section 410.1204 Home Studies
    The TVPRA requires a home study be performed for the release of an 
unaccompanied child in certain circumstances.\146\ Therefore, ORR 
proposed in the NPRM both required and discretionary home studies 
depending upon specific circumstances, including when the safety and 
well-being of the child is in question (88 FR 68930 through 68931).
    ORR proposed in the NPRM at Sec.  410.1204(a), that, as part of its 
sponsor suitability assessment, it may require a home study which 
includes an investigation of the living conditions in which the 
unaccompanied child would be placed, the standard of care the child 
would receive, and interviews with the potential sponsor and others in 
the sponsor's households. If ORR requires a home study, it shall take 
place prior to the child's physical release.
    ORR proposed in the NPRM at Sec.  410.1204(b), three circumstances 
in which a home study shall be required. First, ORR proposed that a 
home study be required under the conditions identified in the TVPRA at 
8 U.S.C. 1232(c)(3)(B) which include, `` . . . a child who is a victim 
of a severe form of trafficking in persons, a special needs child with 
a disability (as defined in section 12102 of title 42), a child who has 
been a victim of physical or sexual abuse under circumstances that 
indicate that the child's health or welfare has been significantly 
harmed or threatened, or a child whose proposed sponsor clearly 
presents a risk of abuse, maltreatment, exploitation, or trafficking to 
the child based on all available objective evidence.''
    Second, ORR proposed that a home study be required before releasing 
any child to a non-relative sponsor who is seeking to sponsor multiple 
children, or who has previously sponsored or sought to sponsor a child 
and is seeking to sponsor additional children. Third, ORR proposed that 
a home study be required before releasing any child who is 12 years old 
or younger to a non-relative sponsor. ORR believes that these latter 
two categories are consistent with the statutory requirement that HHS 
determine that a potential sponsor ``is capable of providing for the 
child's physical and mental well-being,'' \147\ and to ``establish 
policies and programs to ensure that unaccompanied alien children in 
the United States are protected from traffickers and other persons 
seeking to victimize or otherwise engage such children in criminal, 
harmful, or exploitative activity.'' \148\
    ORR proposed in the NPRM at Sec.  410.1204(c), to have the 
discretion to initiate home studies if it determines that a home study 
is likely to provide additional information which could assist in 
determining that the potential sponsor is able to care for the health, 
safety, and well-being of the unaccompanied child.

[[Page 34453]]

    ORR proposed in the NPRM at Sec.  410.1204(d), that the care 
provider would inform a potential sponsor whenever it plans to conduct 
a home study, explain the scope and purpose of the study to the 
potential sponsor, and answer questions the potential sponsor has about 
the process. ORR also proposed that it would provide the home study 
report to the potential sponsor if the request for release is denied, 
as well as any subsequent addendums, if created.
    Finally, ORR proposed in the NPRM at Sec.  410.1204(e) that an 
unaccompanied child for whom a home study is conducted shall receive 
post-release services as described at Sec.  410.1210. This requirement 
would be consistent with 8 U.S.C. 1232(c)(3)(B), which states that 
``The Secretary of Health and Human Services shall conduct follow-up 
services, during the pendency of removal proceedings, on children for 
whom a home study was conducted and is authorized to conduct follow-up 
services in cases involving children with mental health or other needs 
who could benefit from ongoing assistance from a social welfare 
agency.''
    Comment: A number of commenters strongly supported proposed Sec.  
410.1204(b), which requires home studies under conditions specified in 
the TVPRA at 8 U.S.C. 1232(c)(3)(B) and codifies existing ORR policy to 
conduct home studies for children in additional vulnerable situations 
as specified at Sec.  410.1204(b)(2) and (3), stating that such 
provisions would provide additional safeguards and care for 
unaccompanied children. One commenter specifically commended the 
requirement at Sec.  410.1204(b)(2) to conduct a home study prior to 
releasing a child to a non-relative sponsor who intends to sponsor 
multiple children, or has previously sponsored or sought to sponsor a 
child and is seeking to sponsor additional children, and for tender age 
children, noting that this not only ensures a suitable environment for 
multiple children but also promotes sponsor compliance with the child 
welfare standards of ORR and State jurisdictions and helps to prevent 
trafficking and other exploitative situations.
    Response: ORR thanks the commenters for their support.
    Comment: A number of commenters expressed concern regarding various 
aspects of proposed Sec.  410.1204(b), recommending that home studies 
be mandated in additional situations. A number of commenters 
recommended that ORR be required to conduct home studies for all 
potential sponsor placements, not just those set forth in proposed 
Sec.  410.1204(b), with one commenter recommending an automated process 
for home studies. A number of commenters recommended that home studies 
should be required for all potential placements with sponsors who are 
not parents, legal guardians, or close relatives. Several commenters 
stated that a home study should be required whenever a child is being 
released to a non-parent or non-family member. One commenter stated 
that although some discretion regarding waiver of home studies may be 
appropriate where the potential sponsor is a close relative of the 
child, any stranger or potential sponsor not previously approved for 
placement should always be subject to a home study to reduce the risk 
of an abusive sponsorship and the re-exploitation of the child. One 
commenter stated that a home study should be required before releasing 
any child who is 12 years old or younger regardless of the relationship 
to the sponsor.
    Response: At Sec.  410.1204(b), ORR is finalizing circumstances 
that would mandate home studies that are authorized under the TVPRA 
(i.e., Sec.  410.1204(b)(1)) or that ORR believes are consistent with 
the statutory requirement that HHS determine that a potential sponsor 
``is capable of providing for the child's physical and mental well-
being,'' \149\ and to ``establish policies and programs to ensure that 
unaccompanied alien children in the United States are protected from 
traffickers and other persons seeking to victimize or otherwise engage 
such children in criminal, harmful, or exploitative activity.'' \150\
    Additionally, ORR is finalizing at Sec.  410.1204(c) a provision 
providing ORR with the discretion to initiate home studies if it 
determines that a home study is likely to provide additional 
information which could assist in determining that the potential 
sponsor is able to care for the health, safety, and well-being of the 
unaccompanied child. ORR believes that this requirement provides ORR 
the flexibility to determine whether there are additional circumstances 
that warrant a home study to ensure the unaccompanied child's safety 
and well-being post-release, which may encompass some of the 
circumstances commenters described. Finally, as ORR implements the 
regulations, it will take into consideration the commenters' 
recommendations and determine whether additional policymaking is 
needed. Therefore, ORR declines to finalize additional circumstances 
beyond what it proposed in the NPRM.
    Comment: A number of commenters noted that Sec.  410.1204(b)(1)(i) 
in the NPRM does not clearly define ``severe'' human trafficking and 
recommended that this qualifier be removed since, in their view, all 
forms of human trafficking are inherently severe. The commenter further 
noted that if the intention is to align with the TVPRA, they believed 
the existing proposed provisions adequately cover these requirements, 
making the specification of ``severe'' redundant.
    Response: ORR clarifies in the final rule that it intends for the 
meaning of ``severe form of trafficking'' to have the same meaning as 
defined at 22 U.S.C. 7102(11) (``severe form of trafficking'' means 
``(A) sex trafficking in which a commercial sex act is induced by 
force, fraud, or coercion, or in which the person induced to perform 
such act has not attained 18 years of age; or (B) the recruitment, 
harboring, transportation, provision, or obtaining of a person for 
labor or services, through the use of force, fraud, or coercion for the 
purpose of subjection to involuntary servitude, peonage, debt bondage, 
or slavery.'').
    Comment: Some commenters expressed concern that children will be 
released to persons who will exploit them since ORR has no mechanism to 
determine if a child has been sexually abused other than question-
answer testimony.
    Response: ORR disagrees that it has no mechanisms in place to 
determine if a child has been a victim of sexual abuse and harassment 
and may be exploited by a potential sponsor(s). ORR has long screened 
all unaccompanied children for potential sexual abuse and harassment 
concerns, including during intake, assessments, sponsor assessments, 
and Significant Incident Reports. Under Sec.  410.1204(b)(1)(ii), if 
the unaccompanied child has been a victim of sexual abuse under 
circumstances that indicate that the child's health or welfare has been 
significantly harmed or threatened, ORR requires a home study to assess 
the suitability of the sponsor. Additionally, as part of the sponsor 
suitability assessment under Sec.  410.1202(c), and further described 
in ORR polices, ORR vets potential sponsors by conducting background 
checks of all potential sponsors and adult household members to 
determine if they have engaged in any activity that would indicate a 
potential risk to the child's safety and well-being, and these 
background checks include searches of State child abuse and neglect 
registries. Further, while ORR does not retain legal custody post-
release, ORR notes that for a child receiving PRS, the PRS provider

[[Page 34454]]

assesses the child's risk factors, including sexual abuse and/or 
harassment, and educates the child and sponsor on these risks, and will 
submit a NOC to ORR and report to the appropriate State and local 
authorities if the PRS provider becomes aware of any sexual abuse. 
Based on the above, ORR has mechanisms in place to evaluate whether the 
unaccompanied child may have been a victim of sexual abuse and/or 
harassment or is at risk of being a victim, and to evaluate whether a 
sponsor may pose a risk to the child's safety and well-being.
    Comment: A number of commenters recommended that ORR limit the 
circumstances in which home studies would be mandated. A number of 
commenters recommended that home studies required by the TVPRA due to 
trafficking concerns be limited to cases where there has been a formal 
designation by OTIP, expressing concern that care provider facilities 
and ORR staff have an overly broad perspective of trafficking, which 
may lead to home studies that derail sponsorships for reasons not 
related to the safety of the child. In addition, these commenters 
stated that the rule should not require home studies in circumstances 
beyond those identified in the TVPRA, stating that home studies should 
be recommended but not mandatory in circumstances where a child may be 
released to a non-relative sponsor who is seeking to sponsor multiple 
children, or who has previously sponsored or sought to sponsor a child 
and is seeking to sponsor additional children; or where the child is 12 
years old or younger and being released to a nonrelative sponsor. These 
commenters expressed concern that ORR defines ``non-relative'' very 
broadly, including for example, godparents or close family friends, to 
the detriment of the child's well-being, and recommended that the 
proposed rule leave space for ORR to make common sense decisions based 
on the individual circumstances of the child in situations where home 
studies are not mandatory under the TVPRA. Furthermore, a number of 
commenters recommended limiting the use of home studies to the most 
serious circumstances, stating that while home studies can be valuable 
in certain limited circumstances, they should be used relatively rarely 
because they are intrusive and risk causing unnecessary delays in 
release and unification which may exacerbate a child's trauma. These 
commenters recommended that the proposed regulations include an 
explicit requirement that decision-making around home studies take into 
consideration the effect that prolonged custody and separation from 
family will have on the well-being of the child, noting that it is 
often the traumatizing effects of detention and detention fatigue that 
cause the mental or behavioral health issues that trigger the home 
study.
    Response: ORR notes that it has been its policy since 2015 to 
require a home study before releasing any child to a non-relative 
sponsor who is seeking to sponsor multiple children, or who has 
previously sponsored or sought to sponsor a child and is seeking to 
sponsor additional children, or before releasing any child who is 12 
years old or younger to a non-relative sponsor. ORR proposed in the 
NPRM to codify these factors at Sec.  410.1204(b)(2) and (3) because it 
believes they are consistent with HHS's authority under the TVPRA and 
HSA.\151\ Based on ORR's experience under current policy, the 
circumstances under Sec.  410.1204(b)(2) and (3) are important 
circumstances where there may be potential risk to the unaccompanied 
child if released to these types of potential sponsors, and ORR 
requires additional information to determine that the sponsor is able 
to care for the health, safety, and well-being of the child. 
Accordingly, ORR declines in this final rule to limit the situations 
mandating a home study to only those required under the TVPRA.
    Comment: A number of commenters generally expressed concern with 
the limited circumstances in which home studies are mandated under 
proposed Sec.  410.1204(b) and ORR's proposed discretionary approach 
under proposed Sec.  410.1204(c), suggesting that under the proposed 
rule there may be potential gaps in ensuring the welfare of 
unaccompanied children. A number of commenters further noted that ORR 
is not an investigative agency, recommending that responsibility for 
home studies be assigned to an agency equipped for this purpose.
    Response: As stated above, at Sec.  410.1204(b), ORR is finalizing 
circumstances that would mandate home studies that are authorized under 
the TVPRA (i.e., Sec.  410.1204(b)(1)) or that it has determined are 
consistent with HHS's authority under the TVPRA and HSA.\152\ 
Similarly, ORR is exercising this authority under Sec.  410.1204(c) to 
specify that ORR would have the discretion to initiate home studies if 
it determines that a home study is likely to provide additional 
information which could assist in determining that the potential 
sponsor is able to care for the health, safety, and well-being of the 
unaccompanied child. ORR believes that this requirement provides ORR 
the flexibility to determine whether a home study is warranted if 
additional information could be gathered to ensure the unaccompanied 
child's safety and well-being post-release. ORR will take into 
consideration the commenters' recommendations and determine whether 
future policymaking is needed.
    Lastly, ORR acknowledges the commenters' recommendation that ORR is 
not an investigative agency and another agency should perform the home 
studies. However, ORR disagrees with this recommendation since it is 
ORR's statutory duty under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to 
perform home studies in certain circumstances. ORR also notes that it 
engages with qualified home study providers to conduct home 
studies.\153\
    Comment: A number of commenters expressed concern that proposed 
Sec.  410.1204(c) uses language on discretionary home studies that is 
overly expansive and recommended that ORR adopt more limiting language. 
Specifically, the commenters noted that the language, ``is likely to 
provide additional information which could assist in determining'' 
sponsor suitability, is too broad. The commenters stated that home 
studies should only be used in the most serious circumstances due to 
their intrusive nature and the risk of causing unnecessary delays to 
release and unification.
    Response: ORR declines to finalize more limiting language. As 
stated above, it is ORR's statutory duty under the TVPRA at 8 U.S.C. 
1232(c)(3)(B) to perform home studies in certain circumstances to 
protect the health and welfare of unaccompanied children. ORR's policy 
is that even in circumstances where a home study is not required, a 
home study may be conducted if it is likely to provide additional 
information to determine that the sponsor is able to care for the 
health, safety and well-being of the child. Based on ORR's experience, 
ORR believes that it is necessary for it to have the flexibility to 
determine whether a home study is likely to provide additional 
information, which could assist in assessing the sponsor's suitability 
and sponsor suitability assessments vary by each assessment.
    Additionally, ORR declines to limit Sec.  410.1204(c) to the ``most 
serious circumstances'' as recommended by commenters. ORR believes this 
language is too limiting and may result in some potential sponsors not 
receiving a home study when they should have.
    Comment: A number of commenters expressed concern with ORR's 
proposal

[[Page 34455]]

at Sec.  410.1204(d) to inform the potential sponsor whenever it plans 
to conduct a home study and explain the scope and purpose of the study. 
Specifically, the commenters expressed concern that this notification 
may negatively impact the validity of some home studies by allowing 
sponsors time to prepare.
    Response: ORR declines to update its long-standing policy under 
which it informs the sponsor when it plans to conduct a home study. ORR 
believes it is important to inform the sponsor that a home study will 
be conducted so that it can be timely scheduled and completed 
expeditiously. Additionally, it is important that the sponsor is 
informed about the home study's scope and purpose because the sponsor 
may not have previously participated in a home study nor understand 
what it entails.
    Comment: A number of commenters expressed concern about sharing 
home study reports with sponsors who were denied because such reports 
may contain confidential information related to the child's history, 
noting that sharing such information with a denied sponsor without the 
child's consent is in violation of ORR's own policies. Commenters 
expressed concern that children often are referred for home studies due 
to past abuse, neglect, or trauma, and that, depending on their age, 
they may not consent to having their information shared with the 
potential sponsor in the home study report. These commenters 
recommended that the child's wishes always be considered when it comes 
to sharing confidential information with sponsors, particularly with 
nonparent sponsors; and in the case of a parent or relative, these 
commenters recommended ORR provide a summary with general reasoning as 
to why the release request was denied to assist parents/family in 
understanding what has occurred while also protecting the child's 
information. Other commenters stated that sponsors should receive an 
explanation as to why they were denied, but that ORR should protect the 
child's right to confidentiality, and in cases where it is determined 
that the sponsor's intentions may be malicious, the report should not 
be shared at all.
    Response: ORR is revising Sec.  410.1204(d) to remove that the home 
study report, as well as any subsequent addendums if created, will 
routinely be provided to the potential sponsor if the release request 
is denied, although in some cases it may need to be disclosed in whole 
or in part, subject to legally required redactions or child welfare 
considerations, as a part of the evidentiary record.
    Comment: A number of commenters recommended limiting the scope of 
home studies and setting time limits for completing them. These 
commenters recommended that ORR adopt policies that tailor the scope of 
the home study to the reason that it is required, providing, as an 
example, that if a home study is required based on a child's 
disability, the home study should be limited in scope to uncover only 
information relevant to what services, supports, referrals, or 
information that ORR and PRS providers can give to the sponsor to meet 
the child's disability-related needs (noting that ORR should not 
require FBI fingerprint background checks of other adults in the home 
in home studies related to disability). These commenters also 
recommended placing time limits on the home study process to mitigate 
the tendency of home studies to prolong the unification process and the 
child's time in custody, recommending that, at a minimum, ORR should 
codify the time limits in the current version of the ORR Policy Guide, 
which require the home study report to be completed within 10 days. The 
commenters further recommended that the regulations include an explicit 
provision stating that a delay in completing a home study will not 
delay the release of a child to a sponsor. A number of commenters also 
noted that the proposed rule does not include information regarding 
ORR's existing time limits related to completing a home study and the 
3-day deadline for accepting a case and requested clarification 
regarding why this provision was omitted.
    Response: ORR disagrees with the commenters' recommendation to 
tailor the home study to the reason requiring a home study. In the 
commenter's example that an unaccompanied child and potential sponsor 
who are mandated to receive a home study because the child has a 
disability, the home study may uncover other risks that impact whether 
the sponsor is able to care for the health, safety, and well-being of 
the child. Additionally, ORR declines to limit the background check 
process for adult household members because this requirement provides 
important additional information related to the home environment post-
release, to help ensure the child's safety and well-being after 
release.
    ORR did not finalize a time limit on the home study and is choosing 
to leave such requirement as subregulatory guidance which will allow 
ORR to make more appropriate, timely, and iterative updates to its 
policies. This allows ORR to keep with best practices and be responsive 
to the needs of unaccompanied children.
    Lastly, the TVPRA requires a home study be performed for the 
release of an unaccompanied child in certain circumstances. ORR does 
not believe it is appropriate to release these unaccompanied children 
before a home study is performed due to the other circumstances 
described in Sec.  410.1204(b)(2) and (c) because the home study is an 
important safeguard to ensure the potential sponsor is able to take 
care of the health, safety, and well-being of the child.
    Final Rule Action: After consideration of public comments, ORR is 
making the following modifications to regulatory language at Sec. Sec.  
410.1204(b) and 410.1204(e). ORR is revising Sec.  410.1204(b) to state 
that ORR ``shall require'' home studies in order to clarify the 
mandatory nature of its obligation under this section. Additionally, 
ORR is revising Sec.  410.1204(b)(1)(ii) to remove ``special needs'' 
and add at the end of the sentence ``who needs particular services or 
treatment.'' ORR notes that this revision is consistent with ORR's 
update to Sec.  410.1001 removing the term ``special needs 
unaccompanied child.'' ORR is revising Sec.  410.1204(d) to remove the 
following language from the proposed regulatory text: ``In addition, 
the home study report, as well as any subsequent addendums if created, 
will be provided to the potential sponsor if the release request is 
denied.'' Finally, ORR is revising Sec.  410.1204(e) to state ``An 
unaccompanied child for whom a home study is conducted shall receive an 
offer of post-release services as described at Sec.  410.1210.'' This 
update is consistent with ORR's modified language at Sec.  
410.1210(a)(3), which clarifies that PRS are voluntary for the 
unaccompanied child and sponsor and is revised to state in its 
discretion, ORR may offer PRS for all released children. ORR is 
otherwise finalizing this section as proposed.
Section 410.1205 Release Decisions; Denial of Release to a Sponsor
    ORR proposed in the NPRM under Sec.  410.1205 to address the 
situations in which ORR denies the release of an unaccompanied child to 
a potential sponsor (88 FR 68931). ORR proposed in the NPRM at Sec.  
410.1205(a), that a sponsorship would be denied if, as part of the 
sponsor assessment process described at Sec.  410.1202 or the release 
process described at Sec.  410.1203, ORR determines that the potential 
sponsor is not capable of providing for the physical and mental well-
being of the unaccompanied child or that the placement would result in 
danger to the

[[Page 34456]]

unaccompanied child or the community.
    ORR proposed in the NPRM at Sec.  410.1205(b), that if ORR denies 
release of an unaccompanied child to a potential sponsor who is a 
parent or legal guardian, ORR must notify the parent or legal guardian 
of the denial in writing. ORR stated that such Notification of Denial 
letter would include (1) an explanation of the reason(s) for the 
denial; (2) evidence and information supporting ORR's denial decision, 
including the evidentiary basis for the denial; (3) instructions for 
requesting an appeal of the denial; (4) notice that the potential 
sponsor may submit additional evidence, in writing before a hearing 
occurs, or orally during a hearing; (5) notice that the potential 
sponsor may present witnesses and cross-examine ORR's witnesses, if 
such witnesses are willing to voluntarily testify; and (6) notice that 
the potential sponsor may be represented by counsel in proceedings 
related to the release denial at no cost to the Federal Government. 
Relatedly, ORR proposed in the NPRM in Sec.  410.1205(c), that if a 
potential sponsor who is the unaccompanied child's parent or legal 
guardian is denied, ORR shall inform the unaccompanied child, the child 
advocate, and the unaccompanied child's attorney of record or DOJ 
Accredited Representative (or if the unaccompanied child has no 
attorney of record or DOJ Accredited Representative, the local legal 
service provider) of that denial.
    ORR proposed in the NPRM at Sec.  410.1205(d) that if the sole 
reason for denial of release is a concern that the unaccompanied child 
is a danger to self or the community, ORR must send the unaccompanied 
child a copy of the Notification of Denial letter, in a language that 
the child understands, described at Sec.  410.1205(b). ORR also 
proposed that if the potential sponsor who has been denied is the 
unaccompanied child's parent or legal guardian and is not already 
seeking appeal of the decision, the unaccompanied child may appeal the 
denial.
    ORR proposed in the NPRM at Sec.  410.1205(e) to recognize that 
unaccompanied children may have the assistance of counsel, at no cost 
to the Federal Government, with respect to release or the denial of 
release to a potential sponsor.
    ORR noted that as part of the Lucas R. litigation, it is currently 
subject to a preliminary injunction that includes certain requirements 
regarding notification and appeal rights for individuals who have 
applied to sponsor unaccompanied children, including certain potential 
sponsors who are not an unaccompanied child's parent or legal guardian. 
ORR noted that it is complying with the requirements of applicable 
court orders and has issued subregulatory policy guidance to do so. ORR 
stated that once the Lucas R. litigation is resolved, ORR would 
evaluate whether further rulemaking is warranted.
    Comment: As to providing written notice to potential close relative 
sponsors, a number of commenters criticized the provisions in proposed 
Sec.  410.1205 because they did not fully incorporate the terms of the 
Lucas R. preliminary injunction and recommended that the final rule 
require full written notice to not only parents or legal guardians but 
also close relative sponsors. In particular, commenters expressed 
concern that Sec.  410.1205(b) does not afford full written notice of a 
sponsorship denial to potential close relative sponsors, which is 
inconsistent with the Lucas R. preliminary injunction.
    Response: ORR agrees with the commenters that potential close 
relative sponsors should be afforded full written notice of a denial 
decision. The court in Lucas R. found that these additional procedures 
``would reduce the risk that [unaccompanied children] will be 
erroneously deprived of their interest in (1) familial association with 
parents and close family members and (2) being free from physical 
restraint in the form of unnecessarily prolonged detention, when a 
sponsor is available.'' \154\ Accordingly, ORR has revised Sec.  
410.1205(c) (redesignated) to require the ORR Director or their 
designee who is a neutral and detached decision maker to promptly 
notify a potential sponsor who is a parent or legal guardian or close 
relative of a denial in writing via a Notification of Denial Letter. 
ORR notes that consistent with existing policy and the Lucas R. 
preliminary injunction, ORR is finalizing at Sec.  410.1001 the 
following definition of ``close relative'': ``Close relative means a 
brother, sister, grandparent, aunt, uncle, first cousin, or other 
immediate biological relative, or immediate relative through legal 
marriage or adoption, and half-sibling.''
    While ORR also agrees that the denial letter to parents, legal 
guardians, and close relatives should contain the information specified 
in Sec.  410.1205(c), ORR has also modified Sec.  410.1205(c)(2) 
(redesignated) to advise the potential sponsor that they have the 
opportunity to examine the evidence upon request but to recognize that 
ORR may not provide evidence and information, or part thereof, to the 
potential sponsor if ORR determines that providing such evidence and 
information would compromise the safety and well-being of the 
unaccompanied child or is not permitted by law. ORR has encountered 
instances where a child requests not to be released to a close relative 
due to prior sexual abuse (e.g., by the close relative's children). As 
the court in Lucas R. noted, ``[d]enials of sponsorship applications 
can be based on sensitive grounds . . . that could cause distress to 
the minor. Release of such information . . . may . . . cause 
unnecessary pain to all parties involved.'' \155\ In those instances, 
ORR will nevertheless notify the unaccompanied child and the 
unaccompanied child's attorney of the denial and will provide them with 
the opportunity to request to inspect the evidence, so the child's 
``interests are sufficiently protected.'' \156\
    Comment: Commenters also noted that proposed Sec.  410.1205(d) did 
not provide the notice required by the Lucas R. preliminary injunction 
to an unaccompanied child denied release solely on the basis of danger 
to self or others, and also fails to provide notice to the 
unaccompanied child's attorneys.
    Response: ORR acknowledges that the Lucas R. preliminary injunction 
also requires that if the sole reason for denial of release is a 
concern that the unaccompanied child is a danger to self or others, ORR 
must provide the child and their counsel full written notice of the 
denial and the right to appeal, regardless of the relationship between 
the potential sponsor and child. ORR agrees with the commenters and is 
clarifying at Sec.  410.1205(f) (as redesignated in this final rule) 
that if a denial is solely due to a concern that the unaccompanied 
child is a danger to self or others, ORR will provide the child and 
their counsel, if the child is represented by counsel, a copy of the 
Notification of Denial Letter, and that the child may seek an appeal of 
the denial.
    Comment: Some commenters stated that ORR should do more than the 
minimum required by the Lucas R. preliminary injunction to extend the 
notification and appeal procedures to all unaccompanied children. These 
commenters recommended that ORR provide full written notice of 
sponsorship denials to all affected potential sponsors and 
unaccompanied children because all unaccompanied children, regardless 
of the type of potential sponsor, have a constitutional liberty 
interest, and a significant liberty interest derived from the TVPRA in 
family placement and freedom from

[[Page 34457]]

institutional restraints. Some commenters stated that, for 
unaccompanied children seeking release to any sponsor irrespective of 
the sponsor's relationship with the child, written justification of 
sponsorship denial is particularly important since the unaccompanied 
child may have few, if any, other release options. Commenters noted 
that providing written justifications of sponsorship denials to all 
sponsors aligns with the principle that ORR, unaccompanied children, 
and their potential sponsors share a strong interest in preventing 
erroneous sponsorship denials. These commenters stated that 
unaccompanied children and potential sponsors should receive formal 
notice of sponsorship denials and the reasons underlying the decisions, 
unless there are particularized child welfare reasons to withhold 
specific information, because unaccompanied children often are 
uncertain about the status of their sponsorship applications or lack 
clear understanding of why it is delayed or denied, which can severely 
impact the unaccompanied child's mental health. Commenters noted that 
there is minimal burden on ORR to provide written notice of denial to 
all affected sponsors and unaccompanied children compared to the 
importance of adequate notice and accurate release decisions.
    Response: ORR is committed to ensuring that unaccompanied children 
are promptly released to sponsors who are capable of providing for 
their physical and mental well-being, as required by the TVPRA and 
other authorities. ORR has affirmed at Sec.  410.1205 and Sec.  
410.1206 its longstanding commitment to providing potential parent and 
legal guardian sponsors full written notification of a denial and the 
right to appeal a denial decision. ORR has also affirmed its commitment 
at Sec.  410.1205 and Sec.  410.1206 to extending those same rights to 
close relative sponsors. At this time, ORR is not incorporating into 
this rulemaking the same requirements for other potential sponsors, 
such as distant relatives and unrelated adult individuals, which the 
court in Lucas R. did not require, because ORR continues to assess the 
administrative burden and appropriateness of providing full written 
notice and appeal rights to potential sponsors who may have an 
attenuated relationship with the unaccompanied child they are seeking 
to sponsor. Notably, the court in Lucas R. found that unaccompanied 
children with potential sponsors who are distant relatives or unrelated 
individuals designated by parents, and children without any identified 
sponsors, ``require little or no additional procedural protection.'' 
\157\
    Comment: Some commenters stated that Sec.  410.1205(b) does not 
meet the requirements in the Lucas R. preliminary injunction because it 
only provides a deadline for adjudicating parent and legal guardian 
sponsorship applications but fails to provide a deadline for 
adjudicating close relative sponsorship applications, which the 
commenters stated can result in delays in release that violate due 
process. Commenters noted that the preliminary injunction requires that 
completed sponsorship applications for parents or legal guardians, 
siblings, grandparents, or other close relatives who previously served 
as the child's primary caregiver be processed within 10 days and that 
sponsorship applications for other immediate relatives who have not 
previously served as the child's primary caregiver be processed within 
14 days. These commenters recommended ORR adopt in the final rule the 
sponsorship application adjudication timeframes set forth in the Lucas 
R. preliminary injunction.
    Response: ORR agrees with the commenters that providing timeframes 
for adjudicating completed sponsorship applications ensures timely 
releases of unaccompanied children to parents, legal guardians, and 
other close family members. Accordingly, consistent with the Lucas R. 
preliminary injunction, ORR is finalizing revisions to Sec.  
410.1205(b) to include that it will adjudicate the completed sponsor 
application of a potential parent or legal guardian or brother, sister, 
or grandparent, or other close relative sponsor who has been the 
child's primary caregiver within 10 calendar days of receipt of that 
application. ORR will also adjudicate the completed sponsor application 
for other close relatives who were not previously the child's primary 
caregiver within 14 calendar days of receipt of that application. If 
there are unexpected delays such as a case that requires the completion 
of a home study, background checks, or other required assessments, ORR 
is not required to complete its adjudication in the timeframes 
provided. Furthermore, a completed application is one in which a 
sponsor has submitted the application along with all required 
supporting documentation.
    Comment: Commenters also recommended the final rule require that 
the ORR Director, or a designee who is a neutral and detached decision 
maker, automatically review all denials of sponsorship applications 
submitted by parents or legal guardians and close relative potential 
sponsors, which they stated is an important safeguard to protect 
against erroneous release denials, avoid the need for appeal, and 
prevent any consequential delays in the unaccompanied child's release 
to a suitable sponsor.
    Response: ORR agrees and is adding Sec.  410.1205(d) to require 
automatic review of those sponsor application denials by the ORR 
Director or a neutral and detached designee.
    Comment: Commenters expressed concern that Sec.  410.1205(c) does 
not provide unaccompanied children the right to inspect the evidence 
underlying ORR's release denial decisions as required by the Lucas R. 
preliminary injunction. These commenters recommended ORR update the 
final rule with this notice provision.
    Response: ORR agrees and has included at Sec.  410.1205(e) 
(redesignated) new language that requires ORR to inform an 
unaccompanied child, the unaccompanied child's child advocate, and the 
child's counsel (or if the unaccompanied child has no attorney of 
record or DOJ Accredited Representative, the local legal service 
provider) of a denial of release to a potential parent or legal 
guardian or close relative sponsor and inform them that they have the 
right to inspect the evidence underlying ORR's decision upon request 
unless ORR determines that providing the evidence is not permitted by 
law.
    Comment: Many commenters expressed concern that it is infeasible 
and problematic to expect an unaccompanied child to retain counsel at 
no cost to the Government.
    Response: Under proposed Sec.  410.1205(e), which ORR is finalizing 
in this rule as Sec.  410.1205(g), ORR must permit an unaccompanied 
child to have the assistance of counsel, at no expense to the Federal 
Government, with respect to release or the denial of release to a 
potential sponsor. This provision was not intended to set forth an 
expectation that the child retain counsel, but rather to require ORR to 
permit the child to retain counsel if the child chooses to do so at no 
expense to the Federal Government. ORR refers readers to the discussion 
of Sec.  410.1309 for additional information regarding legal services.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1205 with the following modifications. ORR is 
revising the beginning of Sec.  410.1205(a) to state: ``A potential 
sponsorship shall be denied . . .'' ORR is finalizing revisions to 
Sec.  410.1205(b) to require ORR to adjudicate the completed sponsor

[[Page 34458]]

application of a parent or legal guardian; brother, sister or 
grandparent; or other close relative who has been the child's primary 
caregiver within 10 calendar days of receipt of that application, 
absent an unexpected delay (such as a case that requires completion of 
a home study) and to require ORR to adjudicate the completed sponsor 
application of other close relatives who were not the unaccompanied 
child's primary caregiver within 14 calendar days of receipt of that 
application, absent an unexpected delay (such as a case that requires 
completion of a home study). ORR is adding a new Sec.  410.1205(c), 
which includes portions of proposed Sec.  410.1205(b), to recognize 
that if ORR denies release of an unaccompanied child to a potential 
parent or legal guardian or close relative sponsor, the ORR Director or 
their designee who is a neutral and detached decision maker shall 
promptly notify the potential sponsor of the denial in writing via a 
Notification of Denial Letter. ORR is also finalizing revisions to 
Sec.  410.1205(c)(2) (redesignated) to recognize that it shall provide 
the potential parent or legal guardian or close relative sponsor the 
evidence and information supporting ORR's denial decision and shall 
advise the potential sponsor that they have the opportunity to examine 
the evidence upon request, unless ORR determines that providing the 
evidence and information, or part thereof, to the potential sponsor 
would compromise the safety and well-being of the unaccompanied child 
or is not permitted by law. ORR is also revising Sec.  410.1205(c)(3) 
to clarify that sponsors will receive notice that they may request an 
appeal of a denial to the Assistant Secretary for Children and 
Families, or a designee who is a neutral and detached decision maker, 
as well as instructions for doing so, in order to be consistent with 
the Lucas R. preliminary injunction. ORR is also revising Sec.  
410.1205(c)(5) (redesignated) to clarify that both the potential 
sponsor's and ORR's witnesses must be willing to voluntarily testify. 
This paragraph now states that the Notification of Denial letter must 
include notice that the potential sponsor may present witnesses and 
cross-examine ORR's witnesses, if such sponsor and ORR witnesses are 
willing to voluntarily testify. Additionally, ORR is adding a new Sec.  
410.1205(d) to specify that the ORR Director, or a designee who is a 
neutral and detached decision maker, shall review denials of completed 
sponsor applications submitted by parent or legal guardian or close 
relative potential sponsors. ORR is also clarifying at Sec.  
410.1205(e) (as redesignated in the final rule) that it will inform the 
unaccompanied child, the unaccompanied child's child advocate, and the 
unaccompanied child's counsel (or if the unaccompanied child has no 
attorney of record or DOJ Accredited Representative, the local legal 
service provider) of a denial of release to the unaccompanied child's 
parent or legal guardian or close relative potential sponsor and inform 
them that they have the right to inspect the evidence underlying ORR's 
decision upon request unless ORR determines that disclosure is not 
permitted by law. Finally, ORR is finalizing revisions to Sec.  
410.1205(f) (as redesignated in this final rule) to state that if the 
sole reason for denial of release is a concern that the unaccompanied 
child is a danger to self or others, ORR shall provide the child and 
their counsel (if represented by counsel) full written notice of the 
denial (regardless of the relationship of the child to the sponsor), 
and to state that the child has the right to appeal the denial. ORR is 
also redesignating proposed Sec.  410.1205(e) as Sec.  410.1205(g).
Section 410.1206 Appeals of Release Denials
    ORR proposed in the NPRM at Sec.  410.1206 to establish procedures 
for parents and legal guardians of unaccompanied children to appeal a 
release denial (88 FR 68931). As discussed above, ORR is responsible 
for making and implementing placement determinations for unaccompanied 
children and must do so in a manner that protects the best interest of 
the unaccompanied children.\158\ Further, the TVPRA requires HHS, among 
other agencies, to establish policies and programs to ensure that 
unaccompanied children in the United States are protected from 
traffickers and other persons seeking to victimize or otherwise engage 
such children in criminal, harmful, or exploitative activity.\159\ ORR 
also recognized the strong interest of parents and legal guardians in 
custody of their children. Consistent with its statutory 
responsibilities and existing policy, ORR proposed in the NPRM to 
create an administrative appeal process for parents and legal guardians 
who are denied sponsorship of an unaccompanied child. Subject to the 
availability of resources, as determined by ORR, ORR stated that it may 
consider providing language services to parents and legal guardians 
during the appeals process, if the parent or guardian is unable to 
obtain such services on their own.
    ORR proposed in the NPRM at Sec.  410.1206(a) that parents and 
legal guardians of unaccompanied children who are denied sponsorship by 
ORR may seek an appeal of ORR's decision by submitting a written 
request to the Assistant Secretary of ACF or the Assistant Secretary's 
neutral and detached designee.
    ORR proposed in the NPRM at Sec.  410.1206(b), that parents and 
legal guardians of unaccompanied children who are denied sponsorship by 
ORR may seek an appeal either with or without a hearing and pursuant to 
processes described by ORR in agency guidance. ORR proposed in the NPRM 
that the Assistant Secretary or their neutral and detached designee 
will acknowledge the request for appeal within a reasonable time.
    Additionally, ORR proposed in the NPRM at Sec.  410.1206(c) to 
establish a procedure for the unaccompanied child to also appeal a 
release denial if the sole reason for denial is a concern that the 
unaccompanied child poses a danger to self or others. In such a case, 
ORR proposed in the NPRM that the unaccompanied child may seek an 
appeal of the denial as described in Sec.  410.1206(a), and if the 
unaccompanied child expresses a desire to appeal, the unaccompanied 
child may consult with their attorney of record or a legal service 
provider for assistance with the appeal. ORR also proposed that the 
unaccompanied child may seek such appeal at any time after denial of 
release while still in ORR custody.
    Comment: A few commenters expressed concern that limiting the 
potential sponsor's right to appeal a sponsorship denial to parents and 
legal guardians directly conflicts with the Lucas R. preliminary 
injunction which extended notice and appeal procedures to other 
immediate relative sponsors, and these commenters recommended the final 
rule clarify that immediate relative sponsors have a right to appeal a 
sponsorship denial. Additionally, the commenters stated that ORR has 
not identified any administrative burden from broadening eligibility to 
appeal sponsorship denials to close relative sponsors, and the 
commenters stated that extending the appeals process to unaccompanied 
children with potential close relative sponsors will not result in 
substantial additional burden to ORR.
    Response: ORR is revising Sec.  410.1206 to provide that parents 
and legal guardians and close relative potential sponsors to whom ORR's 
Director or their designee, who is a neutral and detached decision 
maker, must send Notification of Denial letters pursuant to Sec.  
410.1205 may seek an appeal of ORR's

[[Page 34459]]

denial decision by submitting a written request to the Assistant 
Secretary of ACF, or their neutral and attached designee.
    Comment: A number of commenters recommended that ORR expand the 
ability to appeal a release denial to all other potential sponsors 
including distant relatives and unrelated adult individuals, expressing 
that essential procedural protections must be available to all 
unaccompanied children in the unification process, with the assistance 
of their potential sponsors if desired.
    Response: ORR is finalizing this rule to provide potential parent 
and legal guardian and close relative sponsors the right to appeal a 
denial decision, which is incorporated at Sec.  410.1206 and is 
consistent with the Lucas R. preliminary injunction. At this time, ORR 
is not incorporating additional procedures related to other potential 
sponsors because ORR continues to assess the administrative burden and 
appropriateness of providing appeals to potential sponsors who may have 
an attenuated relationship, or no relationship at all, with the 
unaccompanied child they are seeking to sponsor.\160\
    Comment: A few commenters stated that Sec.  410.1205(c) omits three 
critical procedural protections required under the Lucas R. preliminary 
injunction to ensure a meaningful sponsor appeal process that complies 
with due process. First, the commenters stated that Sec.  410.1205(c) 
does not fully incorporate the Lucas R. preliminary injunction because 
it does not contain deadlines for appeal processing and casefile 
delivery consistent with ORR's legal obligations under the injunction 
and stated that these timing requirements are meant to avoid prolonged 
delays in adjudication, which can constitute a deprivation of due 
process. The commenters noted that Sec.  410.1206(c) requires only that 
the Assistant Secretary, or their neutral and detached designee, 
``acknowledge the request for appeal within a reasonable time'' and 
does not provide any timeline to complete the appeal process.
    Next, these commenters expressed concern that Sec.  410.1205(c) 
does not fully incorporate the Lucas R. preliminary injunction because 
it does not contain the obligation for ORR to deliver an unaccompanied 
child's casefile, apart from legally required redactions, to the 
potential sponsor's or the unaccompanied child's counsel within a 
reasonable timeframe, and the commenters believed this requirement is 
critical ``to effectuate'' an unaccompanied child's right to counsel 
and facilitate their due process rights. The commenters noted that 
Sec.  410.1309(c)(2) provides for release of a child's casefile to 
their counsel, but it does not specify a reasonable timeframe for 
delivery. The commenters recommended that at a minimum, a child's 
casefile must be provided to counsel a reasonable time before the 
hearing.
    Lastly, the commenters stated that Sec.  410.1205(c) does not fully 
incorporate the Lucas R. preliminary injunction because the proposed 
rule does not provide for a written decision or any notice at all to 
the potential sponsor and the child of the outcome of the appeal 
process.
    Response: ORR thanks the commenters for their concerns and 
recommendations. ORR notes that the commenters' concerns and 
recommendations related to Sec.  410.1205(c) have been addressed by ORR 
in Sec.  410.1206, which relates to the appeals process for denials of 
releases to parents and legal guardians and close relative potential 
sponsors.
    To address the commenters' concerns that the proposed rule did not 
contain deadlines for appeal processing at Sec.  410.1206(b), ORR is 
specifying that the Assistant Secretary, or their neutral and detached 
designee, will acknowledge a request for an appeal within five (5) 
business days of receipt. Further, to be consistent with the Lucas R. 
preliminary injunction, ORR is specifying at Sec.  410.1206(c) that the 
unaccompanied child may consult with their attorney of record at no 
cost to the Federal Government when the child expresses a desire to 
seek an appeal.
    Additionally, under new Sec.  410.1206(d), ORR is codifying that it 
will deliver the evidentiary record, including any countervailing or 
otherwise unfavorable evidence, apart from any legally required 
redactions, to a denied parent or legal guardian or close relative 
potential sponsor within a reasonable timeframe to be established by 
ORR, unless ORR determines that providing the evidentiary record, or 
part(s) thereof, to the potential sponsor would compromise the safety 
and well-being of the unaccompanied child. Although the Lucas R. 
preliminary injunction states that ORR ``shall deliver a minor's 
complete case file'' to the parent or legal guardian or close relative 
potential sponsor, ORR is instead incorporating a requirement that it 
will automatically provide to the potential sponsor the evidentiary 
record including any countervailing or otherwise unfavorable evidence, 
and not the complete case file. ORR is adopting this approach because 
it has become clear to ORR that automatically providing a child's 
entire case file--which may include records related to mental health, 
medical decisions, sensitive family information, sexual abuse, and 
other sensitive information--to a potential sponsor is not only 
unnecessary but also presents potential safety and well-being concerns 
for the unaccompanied child and does not provide additional procedural 
protections for the unaccompanied child or the potential sponsor. For 
instance, in many cases a denial is due to a potential sponsor's 
criminal history. Automatically providing the child's complete case 
file to those potential sponsors is unnecessary and offers them no 
additional procedural protections as the only document at issue is the 
potential sponsor's criminal history report (which would be provided as 
part of the evidentiary record). Additionally, ORR believes that 
automatically providing the evidentiary record to denied parent or 
legal guardian or close relative potential sponsors is consistent with 
the Lucas R. Court's holding that ``[s]o long as a minor and minor's 
counsel are notified of the denial and have the opportunity to request 
to inspect the evidence, minor's interests are sufficiently 
protected.'' For those reasons, ORR will automatically provide the 
evidentiary record to parent or legal guardian or close relative 
potential sponsors, but not the child's entire case file, which 
includes many records that are sensitive and often irrelevant to the 
hearing and disclosure would be potentially damaging to the child. 
Notably, ORR has committed to ensuring that the potential sponsor has 
all information and evidence related to ORR's denial decision including 
information that may be considered countervailing information and that 
may support the denied potential sponsor's argument on appeal, as 
stated at Sec.  410.1206(d).
    Consistent with the Lucas R. preliminary injunction, in the case of 
a parent or legal guardian potential sponsor, ORR is codifying at Sec.  
410.1206(e) that it will provide the parent or legal guardian potential 
sponsor with the child's complete case file, but only upon request and 
within a reasonable timeframe to be established by ORR. In many cases, 
it is unnecessary for a parent or legal guardian potential sponsor to 
review the child's entire case file in order to effectively challenge a 
release denial. Therefore, ORR is codifying that it will only provide 
the unaccompanied child's complete case file, apart from any legally 
required redactions, to a parent

[[Page 34460]]

or legal guardian potential sponsor if requested, unless providing the 
complete case file, or part(s) thereof, would compromise the safety and 
well-being of the unaccompanied child. For the reasons noted above, ORR 
will not provide upon request a child's complete case file to a 
potential close relative sponsor since case files contain many records 
that are sensitive and irrelevant to the hearing and disclosure of the 
entirety of the case file would be potentially damaging to the child. 
Also, consistent with the Lucas R. preliminary injunction, ORR is 
codifying that it will provide the unaccompanied child and their 
counsel the unaccompanied child's complete case file, apart from any 
legally required redactions, but only upon request. ORR recognizes that 
delivery of the evidentiary record and complete case file (if 
requested, and as applicable) must occur to provide sufficient time for 
review of the materials in advance of the hearing.
    Further, at Sec.  410.1206(f), ORR is codifying that the appeal 
process, including the notice of the decision on appeal sent to the 
potential sponsor, shall be completed within 30 calendar days of the 
potential sponsor's request for an appeal, unless an extension of time 
is granted by the Assistant Secretary or their designee for good cause. 
Under Sec.  410.1206(g), ORR is codifying that the appeal of a release 
denial shall be considered, and any hearing shall be conducted, by the 
Assistant Secretary, or their neutral and detached designee. Further, 
ORR is codifying at Sec.  410.1206(g) that upon making a decision to 
reverse or uphold the decision denying release to the potential 
sponsor, the Assistant Secretary or their neutral and detached 
designee, shall issue a written decision, either ordering release to 
the potential sponsor or denying release to the potential sponsor 
within the timeframe described in Sec.  410.1206(f). Additionally, at 
Sec.  410.1206(g), ORR is codifying that if the Assistant Secretary, or 
their neutral and detached designee, denies release to the potential 
sponsor, the decision shall set forth detailed, specific, and 
individualized reasoning for the decision. ORR is also codifying at 
Sec.  410.1206(g) that ORR shall notify the unaccompanied child and the 
child's attorney of the denial. At Sec.  410.1206(g), ORR is codifying 
that ORR shall inform the potential sponsor and the unaccompanied child 
of any right to seek review of an adverse decision in the United States 
District Court. ORR is codifying at Sec.  410.1206(i) that if a child 
is released to another sponsor during the pendency of an appeal under 
this section, the appeal will be deemed moot. At Sec.  410.1206(j)(1), 
ORR is codifying that a denied parent or legal guardian or close 
relative potential sponsor to whom ORR must send Notification of Denial 
letters pursuant to Sec.  410.1205, has the right to be represented by 
counsel in proceedings related to the release denial, including at any 
hearing, at no cost to the Federal Government, which is consistent with 
the Lucas R. preliminary injunction. Lastly, at Sec.  410.1206(j)(2), 
ORR is codifying that the unaccompanied child has the right to consult 
with counsel during the potential sponsor's appeal process at no cost 
to the Federal Government.
    Comment: A few commenters recommended that ORR guarantee access to 
interpreters in the final rule for unaccompanied children and their 
potential sponsors during sponsorship appeals and provide written 
decisions translated into the sponsors' and the unaccompanied 
children's preferred language(s). These commenters stated that the 
additional cost of providing interpretation and translation services 
during sponsorship appeals is unlikely to create undue burden on ORR 
because it is already providing these services to unaccompanied 
children. Commenters further asserted that, in their view, the minimal 
burden on ORR to provide interpretation and translation services to 
unaccompanied children and sponsors during sponsorship appeals 
outweighs the significant due process concerns if they are unable to 
meaningfully engage in the appeals process. These commenters stated 
that ORR's decision-makers will also be deprived of relevant 
information if potential sponsors and children cannot communicate 
during the appeals process.
    Response: ORR thanks the commenters for their recommendations. ORR 
agrees that unaccompanied children and their potential sponsors should 
have language access services during the appeal process and that 
language access is a critical component of procedural due process. 
Accordingly, ORR is adding Sec.  410.1206(h) to require that ORR shall 
make qualified interpretation and/or translation services available to 
unaccompanied children and denied parent or legal guardian or close 
relative potential sponsors upon request for the purpose of appealing 
denials of release. Such services shall be available to unaccompanied 
children and denied parent or legal guardian or close relative 
potential sponsors in enclosed, confidential areas.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1206 with modifications. ORR is revising the 
beginning of Sec.  410.1206(a) to state ``Denied parents and legal 
guardians and close relative potential sponsors to whom ORR's Director 
or their designee, who is a neutral and detached decision maker, must 
send Notification of Denial letters . . .'' ORR is revising Sec.  
410.1206(b) to remove ``will'' and replace with ``shall'' and to remove 
``a reasonable time'' and replace with ``five business days of 
receipt.'' ORR is revising the second sentence of Sec.  410.1206(c) to 
add ``at no cost to the Federal Government'' after ``attorney of 
record.'' ORR is adding Sec.  410.1206(d) to state ``ORR shall deliver 
the full evidentiary record including any countervailing or otherwise 
unfavorable evidence, apart from any legally required redactions, to 
the denied parent or legal guardian or close relative potential sponsor 
within a reasonable timeframe to be established by ORR, unless ORR 
determines that providing the evidentiary record, or part(s) thereof, 
to the potential sponsor would compromise the safety and well-being of 
the unaccompanied child.'' ORR is adding at Sec.  410.1206(e) to state 
``ORR shall deliver the unaccompanied child's complete case file, apart 
from any legally required redactions, to a parent or legal guardian 
potential sponsor on request within a reasonable timeframe to be 
established by ORR, unless ORR determines that providing the complete 
case file, or part(s) thereof, to the parent or legal guardian 
potential sponsor would compromise the safety and well-being of the 
unaccompanied child. ORR shall deliver the unaccompanied child's 
complete case file, apart from any legally required redactions, to the 
unaccompanied child and the unaccompanied child's attorney on request 
within a reasonable timeframe to be established by ORR.''
    ORR is adding Sec.  410.1206(f) to state ``The appeal process, 
including notice of decision on appeal sent to the potential sponsor, 
shall be completed within 30 calendar days of the potential sponsor's 
request for an appeal, unless an extension of time is granted by the 
Assistant Secretary or their designee for good cause.'' ORR is adding 
Sec.  410.1206(g) to state ``The appeal of a release denial shall be 
considered, and any hearing shall be conducted, by the Assistant 
Secretary, or their neutral and detached designee. Upon making a 
decision to reverse or uphold the decision denying release to the 
potential sponsor, the Assistant Secretary or their neutral and 
detached designee, shall issue a written decision, either ordering 
release or denying release to the

[[Page 34461]]

potential sponsor within the timeframe described in Sec.  410.1206(f). 
If the Assistant Secretary, or their neutral and detached designee, 
denies release to the potential sponsor, the decision shall set forth 
detailed, specific, and individualized reasoning for the decision. ORR 
shall also notify the unaccompanied child and the child's attorney of 
the denial. ORR shall inform the potential sponsor and the 
unaccompanied child of any right to seek review of an adverse decision 
in the United States District Court.'' ORR is adding Sec.  410.1206(h) 
to state ``ORR shall make qualified interpretation and/or translation 
services available to unaccompanied children and denied parent or legal 
guardian or close relative potential sponsors upon request for the 
purpose of appealing denials of release. Such services shall be 
available to unaccompanied children and denied parent or legal guardian 
or close relative potential sponsors in enclosed, confidential areas.'' 
ORR is adding Sec.  410.1206(i) to state ``If a child is released to 
another sponsor during the pendency of the appeal process, the appeal 
will be deemed moot.'' ORR is adding Sec.  410.1206(j)(1) to state 
``Denied parent or legal guardian or close relative potential sponsors 
to whom ORR must send Notification of Denial letters pursuant to Sec.  
410.1205 have the right to be represented by counsel in proceedings 
related to the release denial, including at any hearing, at no cost to 
the Federal Government.'' Lastly, ORR is adding Sec.  410.1206(j)(2) to 
state ``The unaccompanied child has the right to consult with counsel 
during the potential sponsor's appeal process at no cost to the Federal 
Government.'' ORR is otherwise finalizing the proposals as proposed.
Section 410.1207 Ninety (90)-day Review of Pending Sponsor Applications 
\161\
    In the interest of the timely and efficient placement of 
unaccompanied children with vetted and approved sponsors, ORR proposed 
in the NPRM, at Sec.  410.1207, a process to review sponsor 
applications that have been pending for 90 days (88 FR 68931 through 
68932). Consistent with existing policy, ORR proposed in the NPRM that 
Sec.  410.1207(a) would require ORR Federal staff, who supervise case 
management services performed by ORR grantees and contractors, to 
review all pending sponsor applications for unaccompanied children who 
have been in ORR custody for 90 days after submission of the completed 
sponsor application or in order to identify and resolve the reasons 
that a sponsor application remains pending in a timely manner, as well 
as to determine possible steps to accelerate the children's safe 
release.
    ORR proposed in the NPRM at Sec.  410.1207(b) that, upon completion 
of the review, UC Program case managers or other designated agency or 
care provider staff must update the potential sponsor and unaccompanied 
child on the status of the case and explain the reasons that the 
release process is incomplete. ORR proposed in the NPRM that UC Program 
case managers or other designated agency or care provider staff would 
work with the potential sponsor, relevant stakeholders, and ORR to 
address the portions of the sponsorship application that remain 
unresolved.
    Further, to ensure that timeliness of placement remains a priority, 
for cases that are not resolved after the initial 90-day review, ORR 
proposed in the NPRM that ORR Federal staff supervising the case 
management process would conduct additional reviews at least every 90 
days until the pending sponsor application is resolved as described in 
Sec.  410.1207(c).
    Comment: A few commenters expressed concern that Sec.  410.1207(a) 
does not meet the requirements in the Lucas R. preliminary injunction 
because by requiring the FFS with responsibility for the child's case 
to conduct a 90-day review, this provision fails to meet the 
injunction's requirement to elevate problems to more senior officials 
and is wholly inconsistent with the need for supervisory review in the 
first place. These commenters recommended that ORR clarify in the final 
rule that the 90-day review will be conducted by ORR staff with 
supervisory responsibilities over the program's regularly assigned FFS.
    Response: ORR agrees with the commenters that ORR supervisory 
staff, not the FFS, should conduct the 90-day review because it affords 
neutral and detached review by senior staff. ORR also notes that this 
is consistent with the Lucas R. preliminary injunction. Accordingly, 
ORR is revising Sec. Sec.  410.1207(a) and (c) to require ORR 
supervisory staff who supervise field staff to perform the 90-day 
review of pending sponsor applications.
    For consistency with both the Lucas R. preliminary injunction and 
ORR's current policy,\162\ ORR is finalizing additional revisions to 
Sec.  410.1207(a) to clarify when the first automatic review occurs 
after the potential sponsor submits a sponsor application. ORR is 
finalizing at Sec.  410.1207(a) that ORR supervisory staff who 
supervise field staff shall conduct an automatic review of all pending 
sponsor applications. Although the Lucas R. preliminary injunction 
states that the ``first automatic review shall occur 90 days after the 
[sponsor application] is submitted . . .,'' ORR is instead 
incorporating a requirement that the first automatic review shall occur 
within 90 days of an unaccompanied child entering ORR custody to 
identify and resolve in a timely manner the reasons that a sponsor 
application remains pending and to determine possible steps to 
accelerate the unaccompanied child's safe release. ORR notes that this 
requirement means that the first automatic review will usually occur 
earlier than what the Lucas R. preliminary injunction requires--but in 
no case later than what the preliminary injunction requires.
    Comment: One commenter recommended updates to the 90-day review of 
pending sponsor applications, including reviewing the unaccompanied 
child's case to determine whether there are any barriers to release and 
actions to be taken to expedite a child's release. The commenter also 
recommended ongoing reviews every 90 days until release.
    Response: ORR thanks the commenter for the recommendations to 
update the 90-day review of pending sponsor applications. ORR agrees 
with the recommendation to review an unaccompanied child's case to 
determine whether there are any barriers to release and actions to be 
taken to expedite a child's release. Accordingly, at Sec.  410.1207(c), 
ORR is finalizing a cross-reference to Sec.  410.1207(a) to require 
that for cases that are not resolved after the initial 90-day review, 
ORR supervisory staff who supervise field staff shall conduct 
additional reviews at least every 90 days to resolve in a timely manner 
the reasons that a sponsor application remains pending and to determine 
possible steps to accelerate the unaccompanied child's safe release 
until the pending sponsor application is resolved. ORR also notes that 
this requirement is consistent with the Lucas R. preliminary 
injunction. Finally, ORR notes that the final rule provides for 
additional reviews ``at least'' every 90 days, which ORR believes 
addresses the commenter's recommendation, and ORR intends to provide 
reviews more frequently than 90 days when appropriate.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1207 with modifications. ORR is making technical 
corrections to the heading and regulation text of Sec.  410.1207 by 
replacing ``release application(s)'' with the term ``sponsor

[[Page 34462]]

application(s).'' ORR is revising Sec.  410.1207(a) to state ``ORR 
supervisory staff who supervise field staff shall conduct an automatic 
review of all pending sponsor applications. The first automatic review 
shall occur within 90 days of an unaccompanied child entering ORR 
custody to identify and resolve in a timely manner the reasons that a 
sponsor application remains pending and to determine possible steps to 
accelerate the unaccompanied child's safe release.'' ORR is revising 
Sec.  410.1207(b) and (c) to remove ``or FRP.'' ORR is revising Sec.  
410.1207(c) to remove ``ORR Federal staff supervising the case 
management process'' and replace with ``ORR supervisory staff who 
supervise field staff.'' ORR is also revising Sec.  410.1207(c) to add 
``as provided in Sec.  410.1207(a)'' after ``additional reviews.'' ORR 
is otherwise finalizing its proposal as proposed.
Section 410.1208 ORR's Discretion to Place an Unaccompanied Child in 
the Unaccompanied Refugee Minors Program
    ORR proposed in the NPRM, at Sec.  410.1208, specific eligibility 
criteria for release of an unaccompanied child to the Unaccompanied 
Refugee Minors (URM) Program (88 FR 68932). The TVPRA permits ORR to 
place unaccompanied children in a URM Program, pursuant to section 
412(d) of the INA, if a suitable family member is not available to 
provide care.\163\ ORR proposed in the NPRM, at Sec.  410.1208(a), that 
unaccompanied children may be eligible for services through the ORR URM 
Program, including unaccompanied children in the following categories: 
(1) Cuban and Haitian entrant as defined in section 501 of the Refugee 
Education Assistance Act of 1980, 8 U.S.C. 1522 note, and as provided 
for at 45 CFR 400.43; (2) an individual determined to be a victim of a 
severe form of trafficking as defined in 22 U.S.C. 7105(b)(1)(C); (3) 
an individual DHS has classified as a Special Immigrant Juvenile (SIJ) 
under section 101(a)(27)(J) of the INA, 8 U.S.C. 1101(a)(27)(J), and 
who was either in the custody of HHS at the time a dependency order was 
granted for such child or who was receiving services pursuant to 
section 501(a) of the Refugee Education Assistance Act of 1980, 8 
U.S.C. 1522 note, at the time such dependency order was granted; (4) an 
individual with U nonimmigrant status under 8 U.S.C. 1101(a)(15)(U), as 
authorized by TVPRA, pursuant to section 1263 of the Violence Against 
Women Reauthorization Act of 2013, which amends section 235(d)(4) of 
the TVPRA to add individuals with U nonimmigrant status who were in ORR 
custody as unaccompanied children eligible for the URM Program; or (5) 
other populations of children as authorized by Congress.
    ORR proposed in the NPRM that with respect to unaccompanied 
children described in proposed paragraph (a) of this section, under 
Sec.  410.1208(b), ORR would evaluate each case to determine whether it 
is in an unaccompanied child's best interests to be referred to the URM 
Program.
    ORR noted in the NPRM that under Sec.  410.1208(c), when it 
discharges an unaccompanied child pursuant to this section to receive 
services through the URM Program, relevant requirements of the ORR 
Refugee Resettlement Program regulations would apply, including the 
requirement that the receiving entity establish legal responsibility of 
the unaccompanied child, including legal custody or guardianship, under 
State law.\164\ ORR proposed in the NPRM at Sec.  410.1208(c), that 
until such legal custody or guardianship is established, the ORR 
Director would retain legal custody of the child.
    Comment: Many commenters requested that ORR retain legal custody of 
children released under the URM Program out of concern for and to 
ensure protection of unaccompanied children.
    Response: ORR appreciates the concern for the well-being of 
unaccompanied children; however, ORR does not retain legal custody of 
children placed in the URM program in accordance with the URM program's 
statutory design. Pursuant to 8 U.S.C. 1522(d)(2)(B)(ii), ``[t]he 
Director [of ORR] shall attempt to arrange for the placement under the 
laws of the States of such unaccompanied refugee children, who have 
been accepted for admission to the United States, before (or as soon as 
possible after) their arrival in the United States. During any interim 
period while such a child is in the United States or in transit to the 
United States but before the child is so placed, the Director shall 
assume legal responsibility (including financial responsibility) for 
the child, if necessary, and is authorized to make necessary decisions 
to provide for the child's immediate care.''
    At Sec.  410.1208(c), ORR clarifies that the ORR Director shall 
retain legal custody of an unaccompanied child until the required legal 
custody or guardianship is established under State law. ORR believes 
that it protects and benefits the child to clarify ORR's ongoing 
responsibility as the child's custodian during the transition into the 
URM Program until the State or its designee establishes legal 
responsibility. ORR evaluates each case to determine whether it is in 
the child's best interest to be placed in the URM Program. This best 
interest determination involves the consideration of a variety of 
factors, including, among others, the child's mental and physical well-
being and individualized needs, to ensure they are protected from 
traffickers and other persons seeking to victimize or otherwise engage 
them in criminal, harmful, or exploitative activity.\165\
    For further clarity, ORR is revising Sec.  410.1208 to replace 
``release and ``discharge'' with ``place'' to better reflect how those 
terms are defined at Sec.  410.1001 and the requirements finalized at 
Sec.  410.1208. ORR is also revising ``referred to'' with ``placed in'' 
at Sec.  410.1208(b) to reflect this clarification.
    Comment: One commenter expressed concern that the use of the term 
``dependency order'' in proposed Sec.  410.1208(a)(3) will cause 
confusion because there are other types of orders in cases involving 
SIJ classification, and recommended that ORR update the language to 
``dependency and/or custody order'' to align with SIJ classification 
regulations and other Government resources such as the United States 
Citizenship and Immigration Services' (USCIS) Policy Manual and to 
clarify URM eligibility for SIJ-classified noncitizens.
    Response: ORR notes that the TVPRA, at 8 U.S.C. 1232(d)(4)(A), uses 
the term ``dependency order'' in describing categories of children who 
are eligible for placement and services in the URM Program under 8 
U.S.C. 1522(d). ORR appreciates the commenter's recommendation but 
believes that the term ``dependency order'' is sufficiently clear to 
identify the children that may be eligible for services through the URM 
Program.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1208 as proposed with the following modifications. 
ORR is revising the heading of Sec.  410.1208 by replacing ``release'' 
with ``place,'' and ``to'' with ``in.'' ORR is revising Sec.  
410.1208(b) by replacing ``will'' with ``shall'' and ``referred to'' 
with ``placed in.'' ORR is revising Sec.  410.1208(c) by replacing 
``discharges'' with ``places'' and adding ``shall'' after ``ORR 
Director.'' ORR is revising Sec.  410.1208(a)(2) to replace ``22 U.S.C. 
7105(b)(1)(C)'' with ``22 U.S.C. 7102(11).'' The definitions used 
within 28 U.S.C. Chapter 78, including 22 U.S.C. 7105(b)(1)(C), are set 
forth at 22 U.S.C. 7102. As such, ORR determined that 22 U.S.C. 
7102(11), which sets forth the definition of ``severe forms of

[[Page 34463]]

trafficking in persons,'' is a more appropriate citation for what 
constitutes a victim of a severe form of trafficking as the term is 
used at Sec.  410.1208(a)(2).
Section 410.1209 Requesting Specific Consent From ORR Regarding Custody 
Proceedings
    ORR proposed in the NPRM at Sec.  410.1209 to address the specific 
consent process as informed by the TVPRA. Specific consent is a process 
through which an unaccompanied child in ORR custody obtains consent 
from HHS to have a State juvenile court make decisions concerning the 
unaccompanied child's placement or custody (88 FR 68932 through 68933). 
As relevant to this section, ORR noted that the TVPRA modified section 
101(a)(27)(J) of the INA, concerning SIJ classification.\166\ To obtain 
SIJ classification under the TVPRA modifications, a child must be 
declared dependent or legally committed to, or placed under the custody 
of, an individual or entity by a State juvenile court. However, an 
unaccompanied child in ORR custody who seeks to invoke the jurisdiction 
of a State juvenile court to determine or alter their custody status or 
placement must first receive ``specific consent'' from HHS to such 
jurisdiction. For example, if an unaccompanied child wishes to have a 
State juvenile court of competent jurisdiction, not HHS, move them out 
of HHS custody and into a State-funded foster care home, the 
unaccompanied child must first receive ``specific consent'' from HHS to 
go before the State juvenile court. If the unaccompanied child wishes 
to go to State juvenile court to be declared dependent in order to 
petition for SIJ classification (i.e., receive an ``SIJ-predicate 
order'') in accordance with applicable statutory eligibility 
requirements, the unaccompanied child does not need HHS's consent. 
Although the TVPRA transferred authority to grant specific consent from 
DHS to ORR, DHS retains sole authority over the ultimate determination 
on SIJ classification. ORR notes that although the TVPRA refers to 
special immigrant ``status,'' \167\ in this final rule ORR uses the 
term special immigrant ``classification,'' consistent with current 
USCIS policy.\168\ For this reason, ORR will use ``SIJ classification'' 
in its discussion for consistency even where commenters used the 
synonymous terms Special Immigrant Juvenile Status or SIJS.
    ORR proposed in the NPRM at Sec.  410.1209(a) that an unaccompanied 
child in ORR custody is required to request specific consent from ORR 
if the unaccompanied child seeks to invoke the jurisdiction of a State 
juvenile court to determine or alter the child's custody status or 
release from ORR custody.
    ORR proposed in the NPRM that under Sec.  410.1209(b), if an 
unaccompanied child seeks to invoke the jurisdiction of a State 
juvenile court for a dependency order so that they can petition for SIJ 
classification or to otherwise permit a State juvenile court to 
establish jurisdiction regarding placement, but does not seek the State 
juvenile court's jurisdiction to determine or alter the child's custody 
status or release, the unaccompanied child would not need to request 
specific consent from ORR.
    ORR proposed in the NPRM at Sec.  410.1209(c) through (g) the 
process to make a specific consent request to ORR. ORR proposed in the 
NPRM at Sec.  410.1209(c), that prior to a State juvenile court 
determining or altering the unaccompanied child's custody status or 
release from ORR, attorneys or others acting on behalf of an 
unaccompanied child would be required to complete a request for 
specific consent. ORR proposed in the NPRM at Sec.  410.1209(d) to 
acknowledge receipt of the request within two business days.
    ORR proposed in the NPRM at Sec.  410.1209(e) that it will consider 
whether ORR custody is required to (1) ensure a child's safety; or (2) 
ensure the safety of the community. ORR noted in the NPRM that, as ORR 
does not consider runaway risk for purposes of release, it did not 
intend to do so here for purposes of adjudicating specific consent 
requests (88 FR 68932). ORR noted that such requirements would be 
consistent with 8 U.S.C. 1232(c)(2)(A) (stating that when making 
placement determinations, HHS ``may consider danger to self, danger to 
the community, and risk of flight.'').
    ORR proposed in the NPRM at Sec.  410.1209(f), that ORR shall make 
determinations on specific consent requests within 60 business days of 
receipt. ORR proposed in the NPRM that it shall attempt to expedite 
urgent requests when possible.
    ORR proposed in the NPRM at Sec.  410.1209(g), that it shall inform 
the unaccompanied child, the unaccompanied child's attorney, or other 
authorized representative of the unaccompanied child of the decision on 
the specific consent request in writing, along with the evidence used 
to make the decision.
    Finally, ORR proposed in the NPRM at Sec.  410.1209(h) and (i) 
detailed procedures related to a request for reconsideration in the 
event ORR denies specific consent. ORR proposed in the NPRM at Sec.  
410.1209(h), that the unaccompanied child, the child's attorney of 
record, or other authorized representative would be able to request 
reconsideration of ORR's denial with the Assistant Secretary for ACF 
within 30 business days of receipt of the ORR notification of denial of 
the request. The unaccompanied child, the child's attorney, or the 
child's authorized representative may submit additional (including new) 
evidence to be considered with the reconsideration request.
    ORR proposed in the NPRM at Sec.  410.1209(i), that the Assistant 
Secretary for ACF or designee would consider the request for 
reconsideration and any additional evidence and send a final 
administrative decision to the unaccompanied child, the child's 
attorney, or the child's other authorized representative, within 15 
business days of receipt of the request.
    Comment: In response to ORR stating in the preamble for Sec.  
410.1209 that specific consent is a process through which an 
unaccompanied child in ORR custody obtains consent from HHS to have a 
State juvenile court make decisions concerning the unaccompanied 
child's placement or custody, a number of commenters recommended that 
ORR should demonstrate to all 50 States a quantified analysis before 
finalizing any changes proposed to this section.
    Response: ORR appreciates the commenters' recommendation and thinks 
it is important to codify the existing process into the final rule. ORR 
will continue to study its policies and propose future changes to this 
section if it determines changes are necessary.
    Comment: A few commenters recommended revising proposed Sec.  
410.1209(b) to prevent unintended immigration consequences for a child 
in ORR custody who is petitioning for SIJ classification. Specifically, 
the commenters recommended replacing the proposed language at Sec.  
410.1209(b) with the following: ``An unaccompanied child in ORR custody 
need not request ORR's specific consent before a juvenile court 
exercises jurisdiction to enter findings or orders that do not alter 
the child's custody status or placement with ORR.''
    Response: ORR appreciates the commenters for their recommended 
revisions to Sec.  410.1209(b). The language proposed at Sec.  
410.1209(b) is consistent with the language ORR uses in its current 
policy guidance, such as ORR's Program Instruction ``Specific Consent 
Requests,'' \169\ which was issued on December 24, 2009. In this final 
rule,

[[Page 34464]]

ORR declines to revise Sec.  410.1209(b) and will consider whether 
revisions are needed in future policymaking. Accordingly, ORR is 
finalizing Sec.  410.1209(b) as proposed.
    Comment: One commenter recommended ORR revise Sec.  410.1209(b) and 
(c) to remove the term ``determining'' and only use the term 
``altering'' because the term ``altering'' is consistent with Sec.  
410.1209(a) and the SIJ classification regulations, and use of 
``determining'' may cause confusion and prevent a State court from 
making a factual determination that the child is in ORR custody. 
Additionally, to clarify that specific consent is only required when 
there is a request to alter the child's custody status or release from 
ORR, the commenter recommended ORR add a subsection requiring that when 
ORR is considering whether specific consent is required, it must make 
an assessment taking into account the proposed alternative custody 
arrangement, if any, specified in the request for specific consent that 
the child would be seeking from the juvenile court.
    Response: ORR appreciates the commenters' recommendation, however, 
ORR notes that the current language reflects its longstanding policy in 
this area.\170\ ORR also notes that the INA, at 8 U.S.C. 
1101(a)(27)(J)(iii)(I), uses ``determine,'' providing: ``[N]o juvenile 
court has jurisdiction to determine the custody status or placement of 
an alien in the custody of the Secretary of Health and Human Services 
unless the Secretary of Health and Human Services specifically consents 
to such jurisdiction.'' ORR declines to change the language it has used 
for so long without thoroughly reviewing the need to do so, which will 
require additional ORR time and resources. Accordingly, ORR is 
finalizing Sec.  410.1209(b) and (c) as proposed.
    ORR notes that its proposal in the NPRM at Sec.  410.1209(a) to 
only use the term ``alter'' was a technical error. As explained in the 
preamble to the NPRM, ORR intended Sec.  410.1209(a) to state that an 
unaccompanied child in ORR custody is required to request specific 
consent from ORR if the unaccompanied child seeks to invoke the 
jurisdiction of a State juvenile court to determine or alter the 
child's custody status or release from ORR custody (88 FR 68932). ORR 
is codifying in the final rule at Sec.  410.1209(a) the language ``to 
determine or alter'' and not only ``to alter.'' Additionally, ORR 
appreciates the commenter's recommendation to add that when ORR 
considers whether specific consent is required, ORR should make an 
assessment taking into account the proposed alternative custody 
arrangement. At Sec.  410.1209(f), ORR is finalizing that it will make 
a determination on specific consent. ORR clarifies that when making the 
determination, ORR would assess the specific consent, including any 
proposed alternative custody arrangement, before it issues its 
determination. ORR does not believe it is necessary to codify this as a 
new paragraph under Sec.  410.1209. ORR will consider whether to issue 
additional subregulatory guidance, as needed, to provide more detail.
    Comment: A few commenters recommended ORR narrow the timeframe in 
Sec.  410.1209(f) within which ORR must determine whether to provide 
specific consent to 30 business days of receipt of a request to do so. 
Additionally, the commenters recommended that, for children expected to 
age out of ORR care and custody in 14 days or less, ORR must make a 
determination within 72 hours of the specific consent request. Lastly, 
the commenters recommended ORR add language to Sec.  410.1209(f) to 
explicitly state that ORR must make its best efforts to expedite urgent 
requests.
    Response: ORR thanks the commenters for their recommendations. ORR 
believes that 60 days is a reasonable timeframe for it to make 
determinations on specific consent requests. The 60-day timeframe 
allows time for thorough review, to make any requests for additional 
information if needed, and for the unaccompanied child, the child's 
attorney, or others acting on the child's behalf, to submit such 
additional information. Additionally, ORR notes that 60 days is the 
maximum amount of time that ORR would take to review a specific consent 
request, and ORR may make a determination in less than 60 days.
    Additionally, ORR explains that under Sec.  410.1209(f), an 
unaccompanied child expected to age out of ORR care and custody within 
14 days or less may ask ORR to expedite their request. ORR believes 
this standard is appropriate to ensure it makes an immediate 
determination for unaccompanied children expected to age out of ORR 
care and custody when ORR has the resources to do so. As ORR implements 
the requirements under Sec.  410.1209(f), it will monitor for any 
unintended consequences and consider the commenters' recommendations 
for future policymaking, as needed.
    Comment: One commenter recommended a technical correction to 
proposed Sec.  410.1209(i) to update the numbering to Sec.  
410.1209(h)(1).
    Response: ORR appreciates the commenter's recommendation and 
clarifies that it intentionally numbered the section as Sec.  
410.1209(i) and not Sec.  410.1209(h)(1) because it intended for it to 
be the lower-case letter ``i'' and not the roman numeral ``i.''
    Comment: A few commenters recommended ORR add a new paragraph to 
Sec.  410.1209 stating: ``A child who has been released by ORR to a 
sponsor is no longer in the actual or constructive custody of ORR, and 
therefore, ORR's specific consent is not required before a juvenile 
court exercises jurisdiction over the child's custody or placement.''
    Response: ORR thanks the commenter for their recommendation and 
believes it is unnecessary to codify that ORR's specific consent is not 
required once the child is released from ORR custody. ORR believes that 
Sec.  410.1209(a) is clear that the specific consent request 
requirements only apply when the unaccompanied child is in ORR's 
custody (e.g., Sec.  410.1209(a) states ``[a]n unaccompanied child in 
ORR custody is required to request specific consent from ORR. . .'').
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1209 as proposed with the following changes. ORR 
is making a technical correction to add ``determine or'' to Sec.  
410.1209(a) to codify the rule as explained in the preamble to the NPRM 
at Sec.  410.1209(a) to state: ``An unaccompanied child in ORR custody 
is required to request specific consent from ORR if the unaccompanied 
child seeks to invoke the jurisdiction of a State juvenile court to 
determine or alter the child's custody status or release from ORR 
custody.'' ORR is revising the beginning of Sec.  410.1209(i) to state: 
``The Assistant Secretary, or their designee, shall consider . . .''.
Section 410.1210 Post-Release Services.
    ORR proposed in the NPRM at Sec.  410.1210 the requirements for 
post-release services (PRS) (88 FR 68933 through 68936). The TVPRA 
authorizes, and in some cases requires, HHS to provide follow-up 
services during the pendency of removal proceedings for certain 
unaccompanied children.\171\ ORR provides PRS by funding providers to 
facilitate access to relevant services. ORR believes that providing 
necessary services after an unaccompanied child's release from ORR care 
is essential to promote the child's safety and well-being.
    As further discussed below, ORR notes that since it published the 
NPRM, ORR revised its policies regarding

[[Page 34465]]

PRS.\172\ ORR's updated PRS policies are consistent with the 
description of potential updates described in the NPRM and with the 
provisions of this final rule. Additionally, ORR's updated PRS policies 
are consistent with ORR's discussion of expanded PRS as described in 
the preamble to the NPRM (e.g., with respect to updating ``levels'' of 
PRS). ORR refers to the policies in several places below to indicate 
existing practices that respond to concerns expressed in various 
comments. Further, ORR is incorporating various updates to Sec.  
410.1210 to align with its updated PRS policies--notably at Sec. Sec.  
410.1210(a)(2) and (3); (e); (g)(1) and (2); (h)(1) and (2); and 
(i)(5)--and its statutory authority.\173\ In some instances, updates in 
this final rule further clarify provisions described in the NPRM or 
respond to comments received in response to the NPRM. ORR also notes 
that the expansion of PRS described in this final rule are responsive 
to concerns raised by multiple commenters about the importance of 
improving and strengthening PRS. Finally, ORR notes that updates 
expressed in this final rule will not adversely affect any third 
party's reliance interests because all PRS providers have followed 
ORR's updated policies since January 2024.
    ORR proposed in the NPRM at Sec.  410.1210(a)(1), that consistent 
with existing policy, care provider facilities would work with sponsors 
and unaccompanied children to prepare them for an unaccompanied child's 
safe and timely release, to assess the sponsors' ability to access 
community resources, and to provide guidance regarding safety planning 
and accessing services (88 FR 68933).
    ORR proposed in the NPRM at Sec.  410.1210(a)(2) and (3), 
circumstances when ORR would be required to provide PRS to 
unaccompanied children (88 FR 68933). Consistent with 8 U.S.C. 
1232(c)(3)(B), under Sec.  410.1210(a)(2), ORR proposed in the NPRM to 
conduct follow-up services, or PRS, during the pendency of removal 
proceedings for unaccompanied children for whom a home study was 
conducted. ORR proposed in the NPRM to apply this requirement to any 
case where a home study is conducted, including home studies that are 
explicitly required by the TVPRA and those that ORR performs under 
other circumstances as described at Sec.  410.1204. ORR proposed in the 
NPRM, at Sec.  410.1210(a)(3), that it would have the discretion, to 
the extent ORR determines that appropriations are available, to provide 
PRS to unaccompanied children with mental health or other needs who 
would benefit from the ongoing assistance of a community-based service 
provider, even if their case did not involve a home study pursuant to 
Sec.  410.1204. ORR noted that Sec.  410.1210(c) further lists certain 
situations where ORR may, within its discretion, refer unaccompanied 
children for PRS. ORR proposed in the NPRM to expand upon the 
situations whereby ORR may provide PRS. ORR stated in the NPRM that 
ORR's then current practice, described in the ORR Policy Guide at 
section 6.2,\174\ required ORR to provide PRS for an unaccompanied 
child whose sponsor required a home study \175\ or for whom ORR 
determines the release is safe and appropriate but the unaccompanied 
child and sponsor would benefit from ongoing assistance from a 
community-based service provider. ORR also proposed in the NPRM that 
PRS furnished to these unaccompanied children may include home visits 
by the PRS provider. ORR sought public comment on proposed Sec.  
410.1210(a)(2) and (3), particularly with respect to the possible 
expansion of PRS to additional unaccompanied children.
    ORR is aware of concerns that, in some cases, release of 
unaccompanied children to sponsors may be unduly delayed by a lack of 
available PRS providers and services near the sponsor. Accordingly, ORR 
proposed in the NPRM in Sec.  410.1210(a)(4) that ORR would not delay 
the release of an unaccompanied child if PRS are not immediately 
available (e.g., due to a referral delay or waitlist for PRS). ORR 
noted that Sec.  410.1210(g) specifies the timeframes in which PRS 
providers are required to start PRS for unaccompanied children once 
they are released from ORR care.
    ORR proposed in the NPRM at Sec.  410.1210(b), the types of 
services that would be available as part of PRS, and stated the 
services were as described in ORR policies (88 FR 68933).\176\ ORR 
proposed in the NPRM that PRS providers would be required to ensure PRS 
are furnished in a manner that is sensitive to the individual needs of 
the unaccompanied child and in a way the child effectively understands 
regardless of spoken language, reading comprehension, or disability to 
ensure meaningful access for all eligible children, including those 
with limited English proficiency. ORR proposed in the NPRM that the 
comprehensiveness of PRS shall depend on the extent appropriations are 
available. Specifically, ORR proposed in the NPRM to codify the 
availability of PRS to support unaccompanied children and sponsors in 
accessing services in the following areas: placement and stability; 
immigration proceedings; guardianship; legal services; education; 
medical services; individual mental health services; family 
stabilization and counseling; substance use; gang prevention; education 
about employment laws and workers' rights; and other specialized 
services based on need and at the request of unaccompanied children. In 
addition, ORR believed that PRS should specifically include service 
areas such as: assisting in school enrollment, including connecting 
unaccompanied children and sponsors to educational programs for 
students with disabilities where appropriate; ensuring access to family 
unification and medical support services, including support and 
counseling for the family and mental health counseling; supporting 
sponsors in obtaining necessary medical records and necessary personal 
documentation; and ensuring that sponsors of unaccompanied children 
with medical needs receive support in accessing appropriate medical 
care. ORR noted in the NPRM that it proposed to codify at Sec.  
410.1210(b) services areas as covered in its policies.\177\ As stated 
in the NPRM, in conducting PRS, ORR and any entities through which ORR 
provides PRS shall make reasonable modifications in their policies, 
practices, and procedures if needed to enable released unaccompanied 
children with disabilities to live in the most integrated setting 
appropriate to their needs, such as with a sponsor. ORR is not 
required, however, to take any action that it can demonstrate would 
fundamentally alter the nature of a program or activity. Additionally, 
ORR is aware of the importance of health literacy for unaccompanied 
children to increase awareness of health issues and to ensure 
continuity of care after their release, and so proposed at Sec.  
410.1210(b)(7) that PRS providers would be required to provide 
unaccompanied children and sponsors with information and services 
relevant to health-related considerations for the unaccompanied child. 
In the NPRM, ORR sought public comment on this paragraph, specifically 
on how to protect the comprehensiveness of PRS against significant 
reductions in funding allocated to PRS while still balancing the need 
to maintain funding for capacity during emergencies and influxes. ORR 
also sought public comment on what other services should be within the 
scope of PRS.
    ORR proposed in the NPRM at Sec.  410.1210(c) to require that 
unaccompanied children with specific

[[Page 34466]]

needs receive additional consideration of those needs and may be 
referred for PRS to address those needs (88 FR 68934). Consistent with 
8 U.S.C. 1232(c)(3)(B), ORR proposed in the NPRM that unaccompanied 
children who would receive additional consideration include those who 
are especially vulnerable, such as unaccompanied children in need of 
particular services or treatment; unaccompanied children with 
disabilities; unaccompanied children with LGBTQI+ status or identity; 
unaccompanied children who are adjudicated delinquent or have been 
involved in, or are at high risk of involvement with, the juvenile 
justice system; unaccompanied children who entered ORR care after being 
separated from a parent or legal guardian by DHS; unaccompanied 
children who are victims of human trafficking or other crimes; 
unaccompanied children who are victims of worker exploitation; 
unaccompanied children who are at risk of labor trafficking; 
unaccompanied children enrolled in school who are chronically absent or 
retained at the end of their school year; and certain parolees. ORR 
typically considers certain parolees who are also unaccompanied 
children to include unaccompanied Afghan children, unaccompanied 
Ukrainian children, and other children who are in the UC Program (such 
as those eligible for humanitarian parole). ORR noted that it may refer 
unaccompanied children for PRS, based on these concerns, even after 
they have been released. Such referrals may be made pursuant to ORR 
becoming aware of the situations listed above--e.g., through post-
release Notifications of Concern (NOC) or calls to the NCC. In that 
event, ORR would require the relevant PRS provider to follow up with 
the child and assess whether PRS would be appropriate.
    ORR proposed in the NPRM, at Sec.  410.1210(d), that the PRS 
provider assigned to a particular unaccompanied child's case would 
assess the released unaccompanied child and sponsor for services needed 
and document the assessment (88 FR 68934). The assessment would be 
developmentally appropriate for the unaccompanied child, meaning the 
PRS provider would be required to tailor it to the released 
unaccompanied child's level of cognitive, physical, and emotional 
ability. Further, ORR proposed that the assessment be trauma-informed, 
as defined in Sec.  410.1001, and consistent with the 6 Guidelines To A 
Trauma-Informed Approach developed by the CDC in collaboration with the 
SAMHSA.\178\ ORR proposed that during the assessment, PRS providers 
would also identify any traumatic events and symptoms by using 
validated screening measures developed for use when screening and 
assessing trauma in children.
    In the preamble to the NPRM, ORR noted that under existing policy, 
ORR provides Safety and Well-Being Follow Up Calls (SWB calls) for all 
unaccompanied children who are released to sponsors. The purpose of SWB 
calls is to determine whether the child is still residing with the 
sponsor, is enrolled in and/or attending school, is aware of upcoming 
court dates, and is safe. ORR understands that these calls are 
authorized under 8 U.S.C. 1232(c)(3)(B), as a form of follow-up 
service. Although ORR proposed in the NPRM to continue conducting SWB 
calls, ORR did not propose to codify them, so as to preserve its 
flexibility in making continuous improvements to the reach and nature 
of the SWB calls, and in integrating them into the suite of available 
PRS. ORR sought public comment on whether it should codify SWB calls in 
this final rule or in future rulemaking and whether it should integrate 
SWB call into PRS, and if so, what factors ORR should consider in 
integrating SWB calls into PRS. ORR notes that in this final rule, it 
is not codifying SWB calls.
    ORR considered codifying a requirement that the PRS provider's 
assessment include a recommendation regarding the ``level'' of PRS to 
be provided in direct response to the unaccompanied child's and the 
sponsor's needs, based on regular and repeated assessments. In the NPRM 
at Sec.  410.1210(b), ORR proposed that PRS include a range of services 
(88 FR 68933). But ORR noted that unaccompanied children and sponsors 
receiving PRS do not necessarily require follow-up services in every 
service area, but rather have individual needs reflecting their own 
circumstances. Similarly, ORR believes that the appropriate level of 
involvement by the PRS provider in coordinating the delivery of those 
services should accord with the unaccompanied child's and/or sponsor's 
individual needs. Consistent with this approach, in the NPRM, ORR 
stated that at the time, it provided two ``levels'' of PRS--Level One 
and Level Two.\179\ Level One services included assessments of the 
needs of unaccompanied children and their sponsors in accessing 
community services, including enrolling in school. Further, 
unaccompanied children and their sponsors received Level One services 
if they did not require intensive case management as provided with 
Level Two PRS. Unaccompanied children and their sponsors received Level 
Two services if they received Level One Services, and the PRS providers 
assessed them to need more intensive case management, or the 
unaccompanied children required a higher level of services as assessed 
during the unaccompanied children's release from ORR care (e.g., during 
the sponsor suitability assessment). Level Two services provided a 
higher level of engagement between the PRS provider and the 
unaccompanied child and sponsor and included regularly scheduled home 
visits (at least once a month), ongoing needs assessments of the 
unaccompanied child, comprehensive case management, and access to 
therapeutic support services. In the NPRM, ORR considered updating the 
levels of PRS available to unaccompanied children and sponsors, from a 
framework that contains two levels of PRS to a framework that contains 
three levels, and stated further, that ORR was considering codifying 
this PRS level framework. To that end, ORR sought input from the public 
on one potential way to update its policies to incorporate additional 
levels, as described below.
    ORR considered requiring the PRS provider's assessment to include 
the level of PRS recommended to be provided in direct response to the 
unaccompanied child's and the sponsor's needs, based on regular and 
repeated assessments. Under a revised framework for PRS levels, ORR 
considered an option in which Level One PRS would include safety and 
well-being virtual check-ins; \180\ Level Two PRS would cover case 
management services; and Level Three PRS would include intensive home 
engagements. Additionally, ORR considered requiring that a released 
unaccompanied child may receive one or more levels of PRS depending on 
the needs and circumstances of the unaccompanied child and sponsor. ORR 
considered codifying a requirement that PRS providers would be required 
to furnish specific levels of PRS to unaccompanied children required to 
receive PRS under the TVPRA to ensure the safety and well-being of 
these unaccompanied children post-release and their successful 
transition into the community. ORR noted that it was considering time 
limits on the availability of PRS at each level that the PRS provider 
would furnish to the unaccompanied child and sponsor, which at a 
minimum would be furnished for six months after release.

[[Page 34467]]

For example, an unaccompanied child and sponsor referred to Level Three 
PRS would receive this level of service for at least six months after 
release, and ORR would subsequently assess every 30 days thereafter 
whether services are still needed. Further, ORR considered requiring 
PRS providers to furnish levels of PRS to unaccompanied children 
required to receive PRS under the TVPRA and their sponsors for 
timeframes that may continue beyond the timeframes to be established 
for the levels. ORR noted that the timeframes for providing PRS would 
not extend past the circumstances in which PRS would be terminated as 
specified in Sec.  410.1210(h).
    ORR notes, however, that this final rule does not codify these 
updates. ORR believes it is more appropriate for this final rule to 
establish general standards for the provision of PRS, rather than 
specific methods of implementing PRS. As with other topics not codified 
in this rule, ORR believes that this approach will enable it to make 
more frequent, iterative policy updates, in keeping with best practices 
and to allow continued responsiveness to the needs of unaccompanied 
children and PRS providers, as informed by the implementation of its 
updated policies and this final rule.
    ORR proposed in the NPRM at Sec.  410.1210(e)(1), that the PRS 
provider would, in consultation with the unaccompanied child and 
sponsor, decide the appropriate methods, timeframes, and schedule for 
ongoing contact with the released unaccompanied child and sponsor based 
on the level of need and support needed (88 FR 68935). PRS providers 
would be required in Sec.  410.1210(e)(2) to make, at a minimum, 
monthly contact with their assigned released unaccompanied children and 
their sponsors, either in person or virtually for six months after 
release. ORR considered limiting the minimum monthly contact to 
unaccompanied children and sponsors receiving Level Two and/or Level 
Three PRS. ORR sought public comment on this proposal including 
consideration of applicable factors that should be included in 
determining how often PRS providers would be required to contact their 
assigned unaccompanied children and sponsors after release. ORR 
proposed in the NPRM at Sec.  410.1210(e)(3), that PRS providers would 
be required to document all ongoing check-ins and in-home visits as 
well as the progress and outcomes of those home visits.
    ORR proposed in the NPRM at Sec.  410.1210(f)(1), that PRS 
providers would work with released unaccompanied children and their 
sponsors to ensure they can access community resources (88 FR 68935). 
ORR opted not to enumerate ways that PRS providers could comply with 
this requirement, because the nature of such assistance would vary by 
case. ORR anticipates that PRS providers could assist unaccompanied 
children and sponsors with issues such as making appointments; 
communicating effectively with their service provider; requesting 
interpretation services, if needed; understanding a service's costs, if 
applicable; enrollment in school, or where accessible and needed, 
preschool or daycare; and other issues relevant to accessing relevant 
services. ORR also anticipated that PRS providers would assist released 
unaccompanied children and sponsors in accessing the following 
community-based resources: legal services; education and English 
classes; youth- and community-based programming; medical care and 
behavioral healthcare; services related to the unaccompanied children's 
cultural and other traditions; and supporting unaccompanied children's 
independence and integration.
    ORR proposed in the NPRM at Sec.  410.1210(f)(2), that PRS 
providers would be required to document any community resource 
referrals and their outcomes (88 FR 68935).
    ORR proposed in the NPRM at Sec.  410.1210(g) to codify timeframes 
for when PRS providers would be required to start PRS (88 FR 68935). 
ORR noted that although the TVPRA mandates PRS in certain cases, it 
does not address the timing of providing PRS. In the NPRM, ORR proposed 
in the NPRM at Sec.  410.1210(g)(1) to codify its policies specifying a 
timeframe for the delivery of PRS to released unaccompanied children 
who are required to receive PRS pursuant to the TVPRA at 8 U.S.C. 
1232(c)(3)(B).\181\ Upon finalization, PRS providers would be required, 
to the greatest extent practicable, to start services within two (2) 
days of the unaccompanied children's release from ORR care. Further, as 
proposed in the NPRM, PRS shall start no later than 30 days after 
release if PRS providers are unable to start services within two (2) 
days of release. At Sec.  410.1210(g)(2) of the NPRM, ORR proposed to 
codify its policy \182\ that for released unaccompanied children who 
are referred to PRS but who are not mandated to receive PRS following a 
home study, PRS providers would be required, to the greatest extent 
practicable, to start services within two (2) days of accepting a 
referral.
    ORR proposed in the NPRM at Sec.  410.1210(h) the circumstances 
required for termination of PRS, which ORR stated in the NPRM were 
based on ORR's policies (88 FR 68935).\183\ At Sec.  410.1210(h)(1), 
ORR proposed in the NPRM to require that PRS for an unaccompanied child 
required to receive PRS pursuant to the TVPRA at 8 U.S.C. 1232(c)(3)(B) 
would continue until the unaccompanied child turns 18 or the 
unaccompanied child is granted voluntary departure or lawful 
immigration status, or the child receives an order of removal. In the 
event an unaccompanied child is granted voluntary departure or receives 
an order of removal, PRS would be discontinued until the child is 
repatriated, and PRS would end once the unaccompanied child's case is 
closed. ORR proposed in the NPRM at Sec.  410.1210(h)(2), to require 
that PRS for an unaccompanied child receiving PRS, but who is not 
required to receive PRS following a home study, would continue for not 
less than six months or until the unaccompanied child turns 18, 
whichever occurs first; or until the PRS provider assesses the 
unaccompanied child and determines PRS are no longer needed, but in 
that case for not less than six months.
    Finally, at Sec.  410.1210(i) of the NPRM, ORR proposed records and 
reporting requirements for PRS providers (88 FR 68935 through 68936). 
Keeping accurate and confidential records is important to ensure the 
security of all information the PRS provider documents about the 
unaccompanied child and sponsor. Accordingly, ORR proposed in the NPRM 
at Sec.  410.1210(i)(1)(i), to require PRS providers to maintain 
comprehensive, accurate, and current case files that are kept 
confidential and secure, and that are accessible to ORR upon request. 
PRS providers would be required to keep all case file information 
together in the PRS provider's physical and electronic files. Section 
410.1210(i)(1)(ii) would also require PRS providers to upload all 
documentation related to services provided to unaccompanied children 
and sponsors to ORR's case management system, as available, within 
seven (7) days of completion of the services.
    To prevent unauthorized access to electronic and paper records, ORR 
proposed in the NPRM at Sec.  410.1210(i)(2)(i) to require PRS 
providers establish and maintain written policies and procedures for 
organizing and maintaining the content of active and closed case files 
(88 FR 68936). Under Sec.  410.1210(i)(2)(ii), prior to providing PRS, 
PRS providers would be required to have established administrative and 
physical controls to prevent unauthorized access to the records that 
include keeping sensitive

[[Page 34468]]

health information in a locked space when not in use. ORR believes that 
any information collected from the unaccompanied child or sponsor 
should not be shared for any other purposes except for coordinating 
services for them. ORR therefore proposed at Sec.  410.1210(i)(2)(iii) 
to codify a requirement that PRS providers may not release records to 
any third party without the prior approval of ORR. If a PRS provider is 
no longer providing PRS for ORR, ORR proposed in the NPRM that the PRS 
provider would be required to provide all active and closed case file 
records in their original format to ORR according to ORR's 
instructions.
    ORR proposed in the NPRM at Sec.  410.1210(i)(3) requirements to 
protect the privacy of all unaccompanied children receiving PRS (88 FR 
68936). Under Sec.  410.1210(i)(3)(i), PRS providers would be required 
to have a written policy and procedure that protects the sensitive 
information of released unaccompanied children from access by 
unauthorized users, such as encrypting electronic communications 
(including, but not limited to, email and text messaging) containing 
sensitive healthcare or identifying information of released 
unaccompanied children. PRS providers would be required under Sec.  
410.1210(i)(3)(ii) to explain to released unaccompanied children and 
their sponsors how, when, and under what circumstances sensitive 
information may be shared during the course of their PRS. PRS providers 
would also be required to have appropriate controls on information 
sharing within the PRS provider network. ORR believes these controls 
are necessary to ensure that sensitive information is not exploited by 
unauthorized users to the detriment of the released unaccompanied 
children.
    ORR proposed in the NPRM that if a PRS provider is concerned about 
the unaccompanied child's safety and well-being, it must notify ORR and 
other appropriate agencies of such concerns (88 FR 68936). Section 
410.1210(i)(4)(i) covers the procedures and requirements regarding such 
NOCs. A PRS provider concerned about an unaccompanied child's safety 
and well-being would be required to document and report a NOC to ORR 
and, as applicable, to other investigative agencies (e.g., law 
enforcement or child protective services). ORR stated in the NPRM, 
consistent with current policies,\184\ that it anticipated that 
situations when PRS providers would submit a NOC would include: an 
emergency; a current case of human trafficking; abuse, abandonment, 
neglect, or maltreatment; a possible exploitative employment situation; 
kidnapping, disappearance, or a runaway situation; alleged criminal 
activity; involvement of child protective services; potential fraud, 
such as document fraud or the charging of unlawful fees; a behavioral 
incident involving the unaccompanied child that raises safety concern; 
media attention; a sponsor declines services; contact or involvement 
with organized crime; the PRS provider is unable to contact the 
unaccompanied child within 30 days of release; or when the PRS provider 
loses contact with a child who is receiving PRS, and there are safety 
concerns. Consistent with ORR's PRS policies,\185\ it clarifies in this 
final rule that PRS providers would also submit a NOC if they suspect: 
human trafficking; abuse abandonment, or maltreatment; or contact or 
involvement with organized crime.
    Additionally, under Sec.  410.1210(i)(4)(ii) of the NPRM, ORR 
proposed that a PRS provider would be required to submit a NOC to ORR 
within 24 hours of first knowledge or suspicion of events raising 
concerns about the unaccompanied child's safety and well-being, and to 
document the NOC (88 FR 68936).
    ORR proposed in the NPRM at Sec.  410.1210(i)(5) to codify 
requirements for PRS providers regarding case closures (88 FR 68936). 
ORR proposed that a case file be formally closed when the PRS are 
terminated by ORR, and that ORR would supply instructions, including 
relevant forms, that the PRS provider would be required to follow when 
closing out a case. For example, similar to current practice, ORR 
anticipates that it may require PRS providers to complete a case 
closure form and upload it to ORR's online case management system 
within 72 hours of a case's closure.
    Comment: A few commenters supported ORR codifying requirements for 
PRS because these services support the unaccompanied children's 
successful transition into their community. Additionally, a few 
commenters supported ORR's proposal at Sec. Sec.  410.1210(a)(2) and 
410.1204(e) that all children for whom a home study was conducted would 
receive PRS. Notably, a commenter stated these unaccompanied children 
present a high level of risk and need continued services after release 
to maintain their safety and well-being. A few commenters also 
supported the proposal at Sec.  410.1210(a)(4) that ORR would not delay 
release if PRS were not immediately available for the child.
    Response: ORR thanks the commenters for their support.
    Comment: A commenter expressed concern that the language at Sec.  
410.1210(a)(2) where ORR proposed that an unaccompanied child who 
receives a home study and PRS ``may'' also receive home visits by a PRS 
provider, seemingly makes home visits optional and recommended making 
home visits required.
    Response: ORR clarifies that the use of the word ``may'' in this 
sentence does not mean that home visits are optional for children 
receiving PRS. ORR uses the term ``may'' to accommodate children who 
receive virtual visits, such as those that receive Level One PRS under 
ORR's revised PRS policies. ORR clarifies that under existing policies, 
Level One PRS includes virtual visits and Level Two and Three PRS 
includes in-home visits.
    Comment: Several commenters urged that PRS should always be 
voluntary and not required of the child and sponsor. Further, another 
commenter recommended changing the language from ``shall'' to ``may'' 
or ``as needed'' throughout Sec.  410.1210(b) to allow PRS providers to 
assist based on their discretion, resources, and the children's and 
sponsors' needs.
    Response: ORR agrees, and notes that it lacks statutory authority 
to make PRS mandatory. It was not ORR's intent in the NPRM to suggest 
that PRS be mandatory. Further, ORR notes that although it is 
statutorily required to provide follow-up services to unaccompanied 
children in certain circumstances,\186\ it cannot force children or 
their sponsors to accept PRS. Accordingly, ORR is not finalizing Sec.  
410.1210(a)(2) as proposed and is revising this section to state that 
ORR shall offer PRS for unaccompanied children for whom a home study 
was conducted pursuant to Sec.  410.1204. Additionally, ORR is revising 
Sec.  410.1210(g)(1), (g)(2), (h)(1), and (h)(2) to reflect that PRS 
are voluntary by adding ``an offer of PRS,'' and ORR is clarifying at 
Sec.  410.1210(h)(1) and (h)(2) that PRS are offered until one of the 
termination conditions are met. Further, ORR is removing the proposed 
language ``during the pendency of removal hearings'' at Sec.  
410.1210(a)(2) to align with the language used in Sec.  410.1204.
    Because ORR is updating Sec.  410.1210(a)(2) to reflect that PRS 
services are voluntary for sponsors and unaccompanied children, ORR 
does not agree with the commenter's recommendations to also update 
Sec.  410.1210(b) from ``shall'' to ``may'' and clarifies that Sec.  
410.1210(b) lists the minimum service areas that PRS includes but does 
not require all unaccompanied children and sponsors to receive these 
services. During the PRS provider's assessment of the

[[Page 34469]]

unaccompanied child and sponsor, ORR intends under this final rule that 
the PRS provider will determine which specific PRS are appropriate 
based on the unaccompanied child's and sponsor's needs.\187\
    Comment: A number of commenters supported ORR expanding access to 
PRS to all unaccompanied children after release from ORR care and 
custody because PRS would benefit all children. Specifically, a few 
commenters stated that expanding access to all unaccompanied children 
fosters their safe integration into their local communities by 
assisting them in obtaining critical services, including education, 
legal services, health insurance, mental health services and 
counseling. Another commenter stated that PRS are vital to ensure 
children and sponsors have access to services after release because 
they support safe and stable home placements.
    Additionally, a few commenters supported extending PRS home visits 
to children with mental health or other needs who could benefit from 
ongoing assistance from a community-based provider. A few other 
commenters recommended ORR clarify that children with mental health or 
other needs who did not receive a home study are eligible for PRS.
    Lastly, one commenter expressed concern that ORR proposed in the 
NPRM to limit additional consideration for PRS to vulnerable and/or 
high-risk unaccompanied children at Sec.  410.1210(c), and the 
commenter recommended not limiting PRS to this population of children 
and expanding access to all children who need PRS.
    Response: ORR thanks the commenters and agrees that PRS can benefit 
all unaccompanied children by assisting them with obtaining critical 
services to support their safe integration into their local communities 
and safe and stable home placements. Further, ORR believes the TVPRA 
authorizes it to offer PRS to all released unaccompanied children, 
because in its experience all releases from ORR custody ``involve[e] 
children with mental health or other needs who could benefit from 
ongoing assistance from a social welfare agency.'' \188\ Accordingly, 
ORR is not finalizing Sec.  410.1210(a)(3) as proposed in the NPRM, and 
is instead revising this section to state that to the extent that ORR 
determines appropriations are available, and in its discretion, ORR may 
offer PRS for all released children.
    Additionally, ORR clarifies that all unaccompanied children, even 
if they did not receive a home study, are eligible for PRS, subject to 
available appropriations.
    Finally, ORR acknowledges the commenter's concern regarding 
limiting PRS to unaccompanied children who require additional 
consideration under Sec.  410.1210(c). ORR believes that expanding PRS 
to all children, to the extent appropriations are available, addresses 
the commenter's concern. To the extent appropriations are unavailable, 
ORR is clarifying at Sec.  410.1210(a)(3) that it may give additional 
consideration, consistent with Sec.  410.1210(c), for PRS cases 
involving unaccompanied children with mental health needs or other 
needs who could particularly benefit from ongoing assistance from a 
community-based service provider, to prioritize cases as needed.
    Comment: A few commenters also recommended that ORR create a 
publicly accessible plan for achieving universal PRS by 2025 due to 
concerns about ORR's funding levels and PRS provider capacity. Another 
commenter recommended the public plan include guidelines to ensure 
children can make meaningful decisions about receiving PRS where the 
sponsor decides not to participate. A separate commenter recommended 
the public plan explain how ORR plans to expand PRS providers' capacity 
to meet that goal. Further, a few commenters had recommendations on ORR 
expanding its network of PRS providers to provide universal PRS and 
reduce delays. One commenter recommended ORR leverage its existing 
networks with national, State, and community-based providers to expand 
access to PRS for all unaccompanied children and their sponsors. 
Another commenter recommended PRS providers that are easily accessible, 
available in various locations, and able provide culturally appropriate 
services.
    Response: ORR does not believe a regulatory mandated plan is 
necessary to move forward efforts to expand PRS to the extent 
appropriations allow. However, it will take these recommendations into 
consideration as needed as it develops future policies in this area.
    ORR also appreciates the recommendation to leverage existing 
networks but notes that detailing specific plans to leverage existing 
networks of organizations and providers to broaden access to PRS is 
outside the scope of this rule. ORR will take the recommendation into 
consideration for future policymaking in this area.
    Comment: A commenter recommended that ORR use a standardized 
assessment to assess an unaccompanied child's mental and behavioral 
health prior to release and use the information gathered in the 
assessment to make evidence-informed decisions to determine the level 
of need and whether PRS are necessary.
    Response: Under current policy, ORR determines the appropriate 
level for which to refer all children to PRS depending on the needs and 
the circumstances of the case. Although the design of a standardized 
assessment is outside the scope of this rule, ORR will take the 
recommendation into consideration for future policymaking in this area.
    Comment: A few commenters expressed concern about ORR not delaying 
release if PRS are not immediately available for an unaccompanied 
child. One commenter asserted that ORR's sole focus is speed of 
release. Another commenter expressed concern that the unavailability of 
PRS combined with a policy to not postpone release due to such 
unavailability could mean that thousands of unaccompanied children will 
be released to sponsors with no PRS.
    Response: ORR does not agree that ORR's sole focus is speed nor 
that this will increase the number released children without PRS. ORR 
prioritizes the safety and well-being of all unaccompanied children 
when releasing them to sponsors, consistent with its statutory 
responsibilities, and notes that pursuant to subpart C, ORR is 
explicitly codifying measures to protect the safety of children it 
releases from custody (e.g., to support children being released to 
thoroughly vetted sponsors who can take care of children's safety and 
well-being post-release).
    Further, in the NPRM, ORR acknowledged that it was aware of 
concerns that, in some cases, release of unaccompanied children to 
sponsors may be unduly delayed by a lack of available PRS providers and 
services near the sponsor and therefore proposed at Sec.  
410.1210(a)(4), that it would not delay release if PRS are not 
immediately available (88 FR 68933).
    Comment: A few commenters had recommendations for how PRS providers 
should furnish PRS. One commenter recommended updating the language in 
Sec.  410.1210(b) that states ``in a way they effectively understand 
regardless of spoken language, reading comprehension, or disability to 
ensure meaningful access for all eligible children, including those 
with limited English proficiency'' to read, ``in a developmentally, 
culturally, and trauma-informed way that ensures effective 
understanding, regardless of

[[Page 34470]]

age, reading comprehension, or disability to ensure meaningful access 
for all eligible children, including those with limited English or 
Spanish proficiency.'' This commenter recommended the changed language 
to recognize that many children may speak an Indigenous language as 
their preferred language. Further, a separate commenter recommended 
that ORR guarantee language access in PRS so that PRS take place in the 
child and the sponsor's preferred language(s).
    Another commenter recommended PRS be furnished in a manner 
sensitive to the individual needs of the sponsor in addition to the 
individual needs of the unaccompanied child. This commenter also 
recommended that PRS be furnished in a way that sponsors effectively 
understand regardless of spoken language, reading comprehension, or 
disability to ensure meaningful access for sponsors. Additionally, this 
commenter recommended adding ``or preferred languages other than 
English'' after ``with limited English proficiency.''
    Response: As previously stated, ORR is articulating here the broad 
policies governing PRS and not all of the operational specifics of PRS 
implementation. With respect to more detailed requirements for PRS 
providers, ORR notes that many of the commenters' recommendations are 
reflected in its revised PRS policies. For example, under current ORR 
policy, which is consistent with this final rule, PRS providers must 
use evidence-based child welfare best practices that are culturally- 
and linguistically- appropriate to the unique needs of each child and 
are grounded in a trauma-informed approach. Additionally, under ORR 
policy, PRS providers must make every effort to conduct PRS in the 
preferred language of the released child, which would include languages 
other than English as recommended by the commenter. If the PRS provider 
is not highly proficient in the child's preferred language, they must 
use an interpreter. ORR policy also requires that PRS case managers may 
help connect children with communities, groups, and activities that 
foster the growth of their personal beliefs and practices and that 
celebrate their cultural heritage.\189\
    ORR recognizes its obligation under applicable laws, regulations, 
and guidance from the Department, and as set forth in Executive Order 
13166, Improving Access to Services for Persons with Limited English 
Proficiency, to ensure meaningful access to its programs and services 
for individuals with limited English proficiency (LEP); this obligation 
extends to LEP sponsors when communicating with PRS providers and 
participating in PRS. As noted above, ORR did not intend for this 
section to describe all of the specific requirements of implementation 
of PRS requirements. ORR appreciates and will consider the 
recommendations received for further improving access to and 
participation by sponsors with respect to PRS in future policymaking in 
this area.
    Comment: One commenter recommended ORR revise Sec.  410.1210(b)(1) 
through (12) to require PRS providers to deliver education, 
information, and assistance to unaccompanied children and sponsors and 
not just sponsors. This commenter stated that the children may be 
responsible for many aspects of their care or need the information 
provided to the sponsors. Another commenter recommended ORR revise 
Sec.  410.1210(b)(12) to make additional service areas at the request 
of the sponsor in addition to the unaccompanied child.
    Response: ORR agrees that PRS providers should deliver education, 
information, and assistance to unaccompanied children in addition to 
the sponsors when appropriate. Accordingly, ORR is revising Sec.  
410.1210(b)(1), (b)(3) through (6), and (b)(8) through (11) to state 
that the PRS provider will deliver education, information, and 
assistance, where appropriate, to the unaccompanied children in 
addition to the sponsors.
    ORR declines to add ``children'' into the PRS services listed at 
Sec.  410.1210(b)(2) and (7) because these service areas focus on the 
sponsor to ensure the unaccompanied child's safety and well-being after 
release. Specifically, the PRS services at Sec.  410.1210(b)(2) and (7) 
address legal related actions the sponsor may have to take regarding 
the unaccompanied child's immigration status and actions the sponsor 
must take to ensure the child receives medical services. ORR notes that 
it is finalizing at Sec.  410.1210(b)(7), as proposed in the NPRM, that 
PRS providers shall provide the child and sponsor with information and 
referrals to services relevant to health-related considerations for the 
unaccompanied child (88 FR 68934). ORR also notes that it provides 
additional guidance regarding the delivery of certain education, 
information, and assistance to children after release in its revised 
PRS policies, which is consistent with this final rule.\190\ ORR will 
monitor implementation of the regulations and consider the commenters' 
recommendations for future policymaking in this area.
    Lastly, regarding the commenter's recommendation to revise Sec.  
410.1210(b)(12) to include the sponsor, ORR agrees with this 
recommendation and is revising Sec.  410.1210(b)(12) to specify that 
the sponsor can also request the services.
    Comment: A commenter recommended ORR develop standardized training 
for PRS grantees to ensure consistent provision of PRS that is 
sensitive to the child's individual needs, in a way the child 
understands (regardless of language or ability), and meets the child's 
needs.
    Response: ORR will evaluate whether standardized training is 
needed, but believes it is neither necessary nor appropriate to specify 
such training in regulation.
    Comment: A few commenters had recommendations for funding PRS. One 
commenter supported the PRS service areas and recommended that ORR 
allocate funds for specific services. For example, the commenter 
recommended that instead of PRS providers referring children for mental 
health services, ORR should fund mental health services for children 
who are most at-risk and ineligible or unable to access health 
insurance programs. Another commenter recommended that ORR not reduce 
funding for the PRS services listed at Sec.  410.1210(b) based on the 
availability of appropriations.
    Response: As discussed in section VI., funding for the UC Program's 
services is dependent on annual appropriations from Congress and 
accordingly, Sec.  410.1210(b) specifically mentions that PRS are 
limited to the extent appropriations are available. ORR will consider 
the commenters' recommendations if funding for UC Program services 
changes.
    Comment: Several commenters recommended that ORR include additional 
service areas that PRS should support, or requested that ORR clarify 
the PRS service areas described at Sec.  410.1210(b). One commenter 
recommended that PRS providers should help sponsors apply for patient 
assistance or charity care programs, which the commenter stated is 
critical for children released to sponsors in States where the child 
does not qualify for medical insurance, such as Medicaid, due to 
immigration status. Another commenter recommended including dental 
services as a required PRS service area. Another commenter recommended 
clarifying Sec.  410.1210(b)(3) to reflect that sponsors may need 
additional assistance to effectuate decision-making in addition

[[Page 34471]]

to guardianship, such as parental power of attorney and complying with 
education and medical consent laws. Additionally, a commenter expressed 
the importance of children receiving education and support so they can 
continue attending school and pursuing safe and healthy work 
opportunities appropriate for minors. This commenter recommended PRS 
include connection to legal service providers to ensure children and 
families receive assistance if a child is in an exploitive job, stating 
that this would help protect children from exploitive labor. One 
commenter recommended adding housing as a PRS area, stating that 
housing is often a significant area of stress for sponsors and a reason 
that children may need to work. Another commenter recommended PRS 
providers provide sponsors and unaccompanied children information about 
alternative temporary housing and emergency and crisis response 
resources. One commenter expressed concern that the list of PRS did not 
include services for children who go missing, cultural traditions, and 
supporting integration and independence, and requested that ORR clarify 
if these areas are no longer considered PRS. Another commenter 
recommended ORR expand the scope of PRS to explicitly include 
acculturation and integration services to help unaccompanied children 
cope with stressors by connecting them to organizations that offer 
culturally and linguistically responsive services. A few commenters 
recommended PRS include health care resources for LGBTQI+ youth.
    Response: Section 410.1210(b) provides a non-exhaustive list of 
service areas that PRS providers may support, and ORR notes that Sec.  
410.1210(b)(12) states that PRS providers may assist the sponsor and 
unaccompanied child with accessing ``other services'' not specifically 
enumerated. ORR believes this language is sufficiently broad to cover 
services such as those recommended by commenters. Lastly, ORR notes 
that its revised PRS policies further describe some of the services 
recommended by commenters.\191\
    Comment: A few commenters did not support guardianship as a PRS 
service. Specifically, a commenter did not support including 
guardianship because, the commenter suggested, it will likely create 
confusion in States where the term ``guardianship'' has different 
meanings and/or States use different terms to refer to an adult's legal 
responsibility to care and make decisions for a child. Further, this 
commenter stated that they have seen well-meaning community service 
providers advise children and their relatives to seek custody or 
guardianship without first consulting with an attorney to understand 
the impact that custody or guardianship might have on the child's 
eligibility for immigration relief. Additionally, another commenter did 
not support including guardianship and stated that ORR should not 
interfere with issues that arise with a state's child protective 
services agency when a sponsor is not a legal guardian or custodian. 
The commenter instead recommended that ORR provide training to child 
protective services workers on challenges faced by unaccompanied 
children, the family unification process, and the difference between 
sponsorship and legal guardianship or custody, and the commenter also 
recommended that ORR create a hotline for child protective services 
workers to call with questions related to unaccompanied children. 
Additionally, the commenter recommended legal service providers educate 
child protective services workers on immigration relief for 
unaccompanied children and how those workers can support these 
children. Another commenter recommended that instead of PRS providers 
educating sponsors on guardianship, PRS providers should advise 
sponsors to seek legal counsel to understand options and the legal 
requirements within the applicable State. This commenter stated that 
PRS providers providing sponsors recommendations on legal guardianship 
could be construed as providing legal advice and noted the variations 
in legal guardianship requirements and uses among States.
    Response: ORR disagrees that PRS services should not include 
guardianship because this is an important service for unaccompanied 
children and sponsors who do not have legal guardianship of the 
children in their care. ORR acknowledges that guardianship has 
different meanings and requirements among the States, and accordingly 
proposed in the NPRM at Sec.  410.1210(b)(3) that a PRS provider may 
assist the sponsor in identifying the legal resources to obtain 
guardianship, which would include legal service providers that could 
assist the sponsor on understanding the options and legal requirements 
in the applicable State (88 FR 68988).\192\ ORR appreciates the 
commenters' recommendations to educate and train child protective 
services workers and have a hotline available for these workers. ORR 
notes that it has an existing hotline, the ORR NCC, that PRS providers, 
and any interested party caring for an unaccompanied child, may call to 
be connected with relevant information. With respect to training child 
protective services workers on various aspects of the post-release 
needs of unaccompanied children, although these recommendations are 
outside the scope of this final rule, ORR will take them into 
consideration for future policymaking in this area.
    Lastly, ORR does not agree with the comment that a PRS provider 
educating the sponsor and child on guardianship could be construed as 
legal advice. As proposed at Sec.  410.1210(b)(3), the PRS provider 
educates the sponsor and child on the benefits of obtaining legal 
guardianship and then refers the sponsor to legal resources if the 
sponsor is interested in pursuing legal guardianship. ORR notes that 
under Sec.  410.1309(b), unaccompanied children would have access to 
legal services, to the extent funding is available, and children and 
their sponsors could consult with legal counsel about guardianship.
    Comment: A few commenters recommended ORR provide a definition of 
``additional consideration'' at Sec.  410.1210(c) as proposed in the 
NPRM. These commenters also recommended ORR provide specifics regarding 
PRS eligibility for unaccompanied children requiring additional 
consideration should ORR have inadequate appropriations to achieve 
universal PRS by 2025.
    Response: ORR clarifies that ``additional consideration'' means 
that ORR may prioritize referring unaccompanied children with certain 
needs listed at Sec.  410.1210(c)(1) through (10) for PRS if 
appropriations are not available to offer PRS to all children. To 
clarify this in the regulation, ORR is finalizing revisions to Sec.  
410.1210(c) to state ``Additional considerations for prioritizing 
provision of PRS. ORR may prioritize referring unaccompanied children 
with the following needs for PRS if appropriations are not available 
for it to offer PRS to all children.'' ORR also notes that it is 
clarifying at Sec.  410.1210(a)(3) that ORR may give additional 
consideration, consistent with Sec.  410.1210(c), for cases involving 
unaccompanied children with mental health or other needs who could 
particularly benefit from ongoing assistance from a community-based 
service provider, to prioritize potential cases as needed. 
Additionally, ORR proposed the non-exhaustive list at this section of 
the NPRM to describe categories of unaccompanied children who, based on 
their particular needs or circumstances, would particularly benefit 
from PRS (88 FR 68934). ORR

[[Page 34472]]

notes this list is distinguishable from Sec.  410.1210(b) in this final 
rule, which describes a non-exhaustive list of potential PRS service 
areas. Lastly, ORR appreciates the commenters' recommendation to 
provide specifics regarding PRS eligibility for unaccompanied children 
requiring additional consideration should ORR have inadequate 
appropriations to achieve universal PRS by 2025. ORR will take this 
recommendation into consideration for purposes of future policymaking 
in this area.
    Comment: A commenter recommended ORR clarify that unaccompanied 
children with disabilities included children with developmental delays 
and mental/health behavioral health issues.
    Response: ORR thanks the commenter for their recommendation and 
agrees that unaccompanied children with disabilities include children 
with developmental and mental health behavioral health issues. ORR is 
not codifying this clarification at Sec.  410.1210(c)(2), but refers 
the commenter to the definition of disability, as used in this rule, at 
Sec.  410.1001.
    Comment: A few commenters supported the inclusion of unaccompanied 
children identifying as LGBTQI+ requiring additional consideration for 
PRS. One commenter recommended changing ``unaccompanied children with 
LGBTQI+ status'' to ``unaccompanied children who identify as LGBTQI+.''
    Response: ORR thanks the commenters for their support. ORR has 
revised Sec.  410.1210(c)(3) to ``unaccompanied children who identify 
as LGBTQI+,'' and is finalizing this revision at Sec.  410.1210(c)(3).
    Comment: A few commenters requested that ORR clarify how 
considering LGBTQI+ status or identity for PRS would impact faith-based 
organizations that provide PRS to unaccompanied children.
    Response: ORR is committed to providing services described in this 
section to all unaccompanied children, including those who identify as 
LGBTQI+. Section 410.1210(c) provides a non-exhaustive list of 
unaccompanied children who may be referred by ORR to PRS based on their 
individual needs. ORR expects PRS providers, including faith-based 
organizations, to provide services listed in Sec.  410.1210(b) to 
unaccompanied children, including those who identify as LGBTQI+. ORR 
wishes to make clear that it operates the UC Program in compliance with 
the requirements of Federal religious freedom laws, including the 
Religious Freedom Restoration Act, and applicable Federal conscience 
protections, as well as all other applicable Federal civil rights laws 
and applicable HHS regulations. HHS regulations state, for example: ``A 
faith-based organization that participates in HHS awarding-agency 
funded programs or services will retain its autonomy; right of 
expression; religious character; and independence from Federal, State, 
and local governments, and may continue to carry out its mission, 
including the definition, development, practice, and expression of its 
religious beliefs.'' \193\ These regulations also make clear that HHS 
may make accommodations, including for religious exercise, with respect 
to one or more program requirements on a case-by-case basis in 
accordance with the Constitution and laws of the United States.\194\ 
ORR will continue to conduct its work consistent with these 
protections.
    Comment: A few commenters recommended additional privacy 
protections for unaccompanied children who require additional 
consideration under Sec.  410.1210(c). A commenter recommended PRS care 
providers honor a child's privacy to allow the child to voluntarily 
access the services the child needs if they are unable or unwilling to 
obtain the sponsor's or guardian's consent to receive PRS.
    Response: At Sec.  410.1210(i)(3), ORR is finalizing privacy 
protections for unaccompanied children and their sponsors, which 
includes requiring the PRS providers to have in place policies and 
procedures to protect information from being released and appropriate 
controls for information sharing. ORR notes that it did not intend for 
45 CFR part 410 to govern or describe the entire UC Program, and that 
its updated PRS policies provide additional guidance on privacy 
protections for unaccompanied children and sponsors receiving PRS. As 
ORR implements these regulations, ORR will monitor and evaluate whether 
additional policymaking is necessary with respect to privacy 
protections.
    Additionally, ORR agrees that in certain circumstances, 
unaccompanied children should have access to PRS even if they are 
unable or unwilling to obtain the consent of their sponsors; however, 
ORR disagrees that this should apply to all sponsor types. Accordingly, 
ORR is codifying its policy at new Sec.  410.1210(h)(3) that if an 
unaccompanied child's sponsor (not including a parent or legal 
guardian) chooses to disengage from PRS and the child wishes to 
continue receiving PRS, ORR may continue to make PRS available to the 
child through coordination between the PRS provider and a qualified ORR 
staff member.\195\
    Comment: A few commenters recommended additional categories of 
unaccompanied children who should have additional consideration for PRS 
at Sec.  410.1210(c). Specifically, a few commenters recommended ORR 
add pregnant and parenting unaccompanied children to the list of 
unaccompanied children who receive additional consideration for PRS. 
Another commenter recommended ORR add unaccompanied children (infants 
through 12 years of age) to the list.
    Response: At Sec.  410.1210(a)(3), ORR is finalizing that it may 
offer PRS to all unaccompanied children and this will include the 
categories of unaccompanied children recommended by commenters--
children who are pregnant and parenting and children under 12 years of 
age. ORR also notes that Sec.  410.1210 describes a non-exhaustive 
list. ORR does not think it is necessary to codify additional 
categories in the final rule but will monitor implementation of this 
regulation to determine whether future policymaking is appropriate in 
this area.
    Comment: A few commenters recommended ORR clarify how an 
unaccompanied child and sponsor would be referred for PRS when ORR 
receives a call to the ORR NCC and the child and sponsor are the 
subjects of situations that would have necessitated a NOC if they were 
receiving PRS. This commenter noted that if ORR receives a NOC from the 
PRS provider, ORR requires the PRS provider to follow-up with the child 
and sponsor and assess whether PRS is appropriate.
    Response: ORR notes that the comment is outside the scope of this 
rule, which does not codify the operation of the ORR NCC. But ORR notes 
that its updated PRS policies provide that ORR may, at its discretion, 
also refer a released child to PRS at any point during the pendency of 
the child's immigration case and while the child is under age 18, if it 
becomes aware (e.g., through a NOC, or a call to the ORR NCC) of a 
situation warranting such referral. In that event, ORR would require 
the relevant PRS provider to follow up with the child and assess 
whether PRS would be appropriate.\196\
    Comment: A few commenters supported developmentally appropriate 
assessments for children as described in the NPRM at Sec.  410.1210(d). 
One of these commenters also supported the requirement that PRS 
providers use trauma-informed and child-focused assessments to 
determine the child's level of care needed, stating that this approach 
supports early intervention, is

[[Page 34473]]

consistent with best practices, and ensures the individual needs of the 
child and sponsor are met and that they receive appropriately tailored 
services.
    Response: ORR thanks the commenters for their support.
    Comment: One commenter had a recommendation for how ORR can improve 
assessments for PRS, as proposed in the NPRM at Sec.  410.1210(d). 
Specifically, the commenter recommended the assessment indicate the 
child's current level of need or care to ensure PRS are appropriately 
tailored to their diverse and evolving needs and aligns with the 
child's specific challenges and strengths.
    Response: ORR agrees with the commenter's recommendation that the 
assessment for PRS must indicate the unaccompanied child's current 
level of need or care to ensure PRS are tailored to the child's 
individualized needs. ORR is revising Sec.  410.1210(a)(3) to require 
ORR to make an initial determination of the level and extent of PRS, if 
any, based on the needs of the unaccompanied child and the sponsor to 
the extent appropriations are available. Additionally, ORR is 
clarifying at Sec.  410.1210(a)(3) that PRS providers may conduct 
subsequent assessments of the needs of the unaccompanied child and 
sponsor that may result in a modification to the level and extent of 
PRS assigned. As a result, ORR does not believe further revisions are 
needed at Sec.  410.1210(d).
    Comment: A few commenters recommended ORR require the assessment be 
culturally appropriate. Specifically, one commenter recommended that a 
culturally appropriate assessment would protect the child's right to 
preservation of culture and identity. Another commenter recommended the 
assessment also be linguistically appropriate. This commenter also 
recommended ORR issue guidance regarding the use of professional 
interpreters during assessments.
    Response: ORR again notes that it does not intend 45 CFR part 410 
to govern or describe the entire UC Program. However, with respect to 
the commenters' recommendations, ORR notes that its revised PRS 
policies, which are consistent with these final regulations, require 
the use of evidence-based child welfare best practices that are 
culturally and linguistically appropriate to the unique needs of each 
child and are grounded in a trauma-informed approach. ORR also thanks 
the commenter for their recommendation that ORR issue guidance 
regarding the use of professional interpreters during assessments. 
Although ORR also declines to codify this recommendation in this final 
regulation, it notes that under its updated PRS policies, if the PRS 
provider is not highly proficient in the child's preferred language, 
they must use a qualified interpreter.\197\
    Comment: A few commenters recommended ORR collaborate with PRS 
providers to develop a standardized assessment for all PRS providers, 
stating that variations within assessments have caused complications 
and resulted in PRS providers experiencing issues with data collection 
and in how PRS providers assess the need for PRS, which may result in 
discrepancies and protection gaps. One commenter recommended ORR 
provide guidance on suggestions and/or examples of appropriate 
standardized or validated assessments and tools and examples of 
culturally adapted or cross-cultural assessments, mentioning as 
examples the Refugee Health Screener-15 \198\ and the Trauma History 
Profile.\199\
    Response: Although the development of specific screening tools is 
outside the scope of this rule, ORR will continue to assess the 
effectiveness of the regulations and take these recommendations into 
consideration for future policymaking in this area.
    Comment: A few commenters either did not support or expressed 
concern about PRS providers identifying traumatic events and symptoms. 
One commenter stated that discussing traumatic events and symptoms with 
children risks re-traumatizing them and instead, mental health 
professionals or pediatricians with trauma-informed training should 
conduct trauma screening. Another commenter stated this is outside the 
scope of PRS case managers' work; PRS providers do not have the 
requisite experience, education, and training to assess childhood 
trauma; and they cannot provide support when screening measures uncover 
trauma, except in cases of Level Three PRS, as described in ORR's 
updated PRS policies, where support includes clinical services.
    Response: ORR declines to remove ``trauma-informed'' from the 
assessment because it is important for PRS providers' assessments to 
include a trauma-informed approach to accurately assess the 
unaccompanied child and the sponsor for their individualized needs so 
they can receive appropriate services to address those needs and ensure 
the safety and well-being of the child post-release. For example, ORR's 
revised policies for PRS services state that the impact of childhood 
trauma, in addition to other factors, must be part of the PRS 
provider's assessment of the child's medical and behavioral health 
needs so that they can refer the child to community health centers and 
healthcare providers. If the assessment did not include a trauma-
informed approach, the PRS provider may not refer the child to services 
appropriate to the child's individualized needs. ORR also notes that it 
did not intend for Sec.  410.1210 to describe all requirements for PRS 
providers and the revised PRS policies provide more guidance to PRS 
providers on how to work with children who have experienced trauma.
    ORR also acknowledges the recommendation that mental health 
professionals or appropriately trained pediatricians conduct trauma 
screening. Although not included in this final rule, ORR notes that its 
updated PRS policies, which are consistent with this final rule, 
provide that PRS case managers may connect children, along with their 
sponsor family, with specialized services and provide psychoeducation 
on trauma and on the short- and long-term effects of adverse childhood 
experiences on the children and family.\200\ However, this is done 
after screening the child. As ORR implements these regulations, it will 
monitor for any unintended consequences and consider the commenter's 
recommendations if it determines that future policymaking in this area 
is needed.
    Finally, ORR acknowledges the commenter's concern that PRS case 
workers do not have the requisite experience, education, and training 
to assess trauma. Although not codified in this final rule, ORR notes 
under its updated PRS policies, a core competency for PRS providers is 
having a foundational knowledge of trauma-informed care and initial 
training for PRS providers must include childhood trauma and its long-
term effects.\201\ ORR believes that this updated policy will result in 
PRS case managers being appropriately trained to perform trauma-
informed assessments.
    Comment: A few commenters requested that ORR release additional 
guidance related to on-going check-ins and in-home visits, including 
the structure of such check-ins and visits. One commenter requested 
that ORR provide guidance to PRS providers on what actions the 
providers must follow if they are unable to contact the child after the 
child's release.
    Response: ORR notes that its updated PRS policies provide further 
guidance on the structure for ongoing check-ins and in-home visits, as 
well as the actions PRS providers must follow if they are unable to 
contact the child after release.\202\ For example, ongoing contact with 
the unaccompanied child and sponsor should be determined by the

[[Page 34474]]

level of need and support required, in consultation with the child and 
sponsor. With respect to home visits provided for in Levels Two and 
Three PRS, after the first in-home visit, PRS case managers must make 
monthly visits for six (6) months. Monthly visits may occur in-person 
or if there are no safety concerns, virtually. Further, at minimum, in-
person contact in the sponsor's home must be established every 90 
calendar days for Level Two PRS and weekly for the first 45 to 60 
calendar days for Level Three PRS. ORR's updated policies further 
provide that the nature of home visits may vary depending on the 
extensiveness or level of PRS provided. Finally, with respect to loss 
of contact, ORR's updated policies provide that if the PRS case manager 
is unable to reach the child or sponsor by phone through reasonable 
attempts or if the child or sponsor declines an in-home visit, the PRS 
case manager should document all attempts made and the reasons, if 
known, for why contact was not made or services were declined (e.g., 
child is safe and secure and no longer requires services, sponsor's 
working schedule conflicts with case manager's schedule for an in-home 
visit, etc.). If the PRS provider is concerned about the child's safety 
(i.e., potential child abuse, maltreatment, or neglect), the PRS 
provider must follow the mandated reporting guidelines for the locality 
in which they are providing service. Further, PRS providers must submit 
a NOC if they are unable to contact the released child within 30 days 
of release or referral acceptance.
    Comment: One commenter expressed concern that involving a sponsor 
in determining the appropriate methods, timeframes, and schedule for 
ongoing contact with the released unaccompanied child gives too much 
power to the sponsor, and also expressed concern about the lack of an 
enforcement mechanism.
    Response: ORR appreciates the commenter's concern and believes the 
final rule, read together with its updated PRS policies, appropriately 
balances the need for sponsor involvement in the delivery of PRS with 
the need for protective measures for children. Proposed Sec.  
410.1210(e)(1) requires the PRS provider, not the sponsor, to make a 
determination regarding the appropriate methods, timeframes, and 
schedule for ongoing contact with the released unaccompanied child and 
sponsor. Additionally, ORR notes that its revised PRS policies provide 
additional guidance for PRS providers regarding the required methods, 
timeframes, and schedule for ongoing contact.\203\
    Comment: Several commenters had recommendations regarding the 
duration of PRS in response to ORR proposing in the NPRM at Sec.  
410.1210(e)(2) and (h)(2) that PRS continue for six (6) months after 
release. Specifically, one commenter recommended all children receive 
PRS for at least three (3) months to ensure their successful transition 
into the community with regular face-to-face visits to continuously 
reassess the children. This commenter recommended higher risk children, 
such as those released to non-relative sponsors, receive at least six 
months of PRS and extending services as needed. Another commenter 
recommended ORR clarify that PRS can be provided to a released child 
for a full six months from the time the child's case is accepted by a 
PRS provider because a child's case is not always immediately accepted 
by a PRS provider due to capacity issues. One commenter recommended ORR 
provide each child with a discharge plan and PRS for at least six 
months. Another commenter recommended ORR provide all children with PRS 
for one-year post-release because all children would benefit from PRS 
and waitlists for PRS can be six months or more. Additionally, one 
commenter recommended that ORR be flexible in the duration of PRS based 
on the needs of the child and sponsor, stating that some cases may 
require longer-term support and six months of PRS may be insufficient. 
Another commenter recommended unaccompanied children be eligible to 
receive PRS until they become 21 years of age, which the commenter 
stated is consistent with the definition of a child under INA Sec.  
101(b)(1)(A), or they are granted voluntary departure or issued an 
order of removal, whichever occurs first.
    Response: ORR agrees with the commenters' recommendations to 
consider longer timeframes and be flexible in the duration of PRS based 
on the needs of the unaccompanied child and sponsor. Accordingly, ORR 
is not finalizing Sec.  410.1210(e)(2) as proposed in the NPRM (88 FR 
68989). To allow for flexibility in how long PRS are furnished to 
children and their sponsors, ORR is revising Sec.  410.1210(h)(2) to 
remove ``PRS for the unaccompanied child shall presumptively continue 
for not less than six months'' and clarifying that PRS may be offered 
until the unaccompanied child turns 18 or the unaccompanied child is 
granted voluntary departure or lawful immigration status, or the child 
leaves the United States pursuant to a final order of removal.
    Lastly, ORR declines to revise Sec.  410.1210(h) to state that 
unaccompanied children are eligible to receive PRS until they turn 21 
because this would be inconsistent with the definition of 
``unaccompanied child'' that ORR is finalizing at Sec.  410.1001 (``has 
not attained 18 years of age''), which is consistent with the 
definition under the HSA, 6 U.S.C. 279(g)(2).
    Comment: A few commenters supported ORR's proposal to require PRS 
providers to make monthly contact with released children for up to six 
(6) months, as originally proposed in the NPRM at Sec.  410.1210(e)(2). 
Additionally, a commenter further supported the use of technology to 
facilitate the check-ins, i.e., virtual check-ins. This commenter 
stated the check-ins are crucial to ensure the sponsor is complying 
with ORR's requirements and properly caring for the child; prevent and 
detect any child labor, abuse, or trafficking; assess whether the child 
needs adjustment to the child's support; and ensure new PRS providers 
comply with ORR standards and provide timely and relevant support to 
the child and sponsor. Another commenter recommended a monthly in-
person check-in with the child, which is confidential and outside the 
sponsor's presence, to assess the child's risk of abuse, neglect, 
trafficking, and other concerns. Lastly, a commenter recommended ORR 
set a standard timeframe and schedule of contact that would include, at 
a minimum, two check-ins for the first six months and then monthly for 
the next six months.
    Response: ORR notes that in response to comment to consider longer 
timeframes and be flexible in the duration of PRS based on the needs of 
the unaccompanied child and sponsor, ORR is not finalizing Sec.  
410.1210(e)(2) as proposed in the NPRM (88 FR 68988 through 68989). To 
allow for flexibility in how long PRS are furnished to children and 
their sponsors, ORR is revising Sec.  410.1210(h)(2) to remove ``PRS 
for the unaccompanied child shall presumptively continue for not less 
than six months'' and clarifying that PRS may be offered until the 
unaccompanied child turns 18 or the unaccompanied child is granted 
voluntary departure or lawful immigration status, or the child leaves 
the United States pursuant to a final order of removal. ORR will take 
the commenters' recommendations into consideration for future 
policymaking in this area.
    Comment: A few commenters expressed concern about the requirement 
at Sec.  410.1210(e)(3), as proposed in the NPRM, that PRS providers 
document ongoing check-ins and home visits as well as the progress

[[Page 34475]]

and outcomes of those visits. These commenters also expressed concern 
about PRS providers documenting community resource referrals and their 
outcomes as described in the NPRM at Sec.  410.1210(f)(2). These 
commenters stated increased data gathering on children post-release is 
problematic for privacy reasons without objectives on such data and the 
infrastructure to support data gathering. Further, these commenters 
requested that ORR clarify why ORR wants this data and how ORR plans to 
use it.
    Response: ORR proposed in the NPRM, documentation requirements at 
Sec.  410.1210(e)(3) and (f)(2) to ensure PRS providers keep accurate 
and comprehensive records of the services they provide to unaccompanied 
children and their sponsors (88 FR 68935). ORR's updated PRS policies 
are consistent with this requirement as well.\204\ Further, at Sec.  
410.1210(i)(3) in this final rule, ORR is codifying privacy protections 
for unaccompanied children and their sponsors, which includes requiring 
PRS providers have in place policies and procedures to protect 
information from being released and appropriate controls for 
information sharing. ORR notes that its revised PRS policies provide 
additional guidance on privacy protections for unaccompanied children 
and sponsors receiving PRS, which are consistent with this 
section.\205\ ORR believes these privacy protections reasonably address 
the commenters' concerns regarding protection of unaccompanied 
children's information. Additionally, ORR is finalizing at Sec.  
410.1210(i)(1)(i) that PRS providers must upload information into ORR's 
online case management system within seven (7) days of completion of 
the services. ORR notes that it provides consistent oversight of all 
components of a PRS provider's program and clarifies for commenters 
that it plans to review information uploaded into ORR's online case 
management system to monitor the PRS providers' activities under ORR 
policies and Sec.  410.1210 to ensure quality care for children.\206\
    Comment: A few commenters supported ORR's proposal that PRS 
providers connect the sponsor and unaccompanied child to community 
resources for the child, as needed, following the child's release. 
Another commenter supported the requirement that PRS providers document 
the referral and outcome of community resources, stating documentation 
is essential for understanding the scope and uptake of services 
accessed by children and sponsors to help identify potential gaps in 
services, and better understand whether the services meet the 
children's and sponsors' needs.
    Response: ORR thanks the commenters for their support.
    Comment: A few commenters expressed concern that ORR did not 
propose to enumerate the ways PRS providers should work with children 
and their sponsors to access community resources. A commenter 
recommended ORR specify what PRS providers should assess and when needs 
are identified, provide support in those areas of need. This commenter 
further recommended ORR require a minimum standard of what PRS 
providers should ensure regarding school enrollment, connection to 
legal services, and medical, dental, and mental health services. 
Another commenter expressed concern that the requirement is inadequate 
to address the potential challenges and barriers children and sponsors 
face in accessing education, health care, social services, and legal 
assistance in their communities, which may impact the integration and 
well-being of children and their sponsors, and recommended ORR 
facilitate their access and participation in such services. This 
commenter further recommended PRS providers provide children and their 
sponsors with information on the availability of community resources to 
support unaccompanied children and their sponsors.
    Response: As ORR stated in the NPRM preamble for proposed Sec.  
410.1210(f)(1), ORR has opted not to enumerate ways that PRS providers 
could comply with this proposed requirement in the regulation, because 
the nature of such assistance varies by case (88 FR 68935). ORR further 
notes that PRS can also vary by the community and/or State where 
unaccompanied children and their sponsors are located. To provide PRS 
providers with additional guidance on how to work with unaccompanied 
children and sponsors to access community resources, ORR has issued 
updated PRS policies that include many of the recommendations from 
commenters.\207\ Nevertheless, ORR will monitor implementation of this 
final rule and take these recommendations into consideration with 
respect to potential future policymaking in this area.
    Comment: A number of commenters requested clarity on why ORR is 
unable to collect data on what specific Government resources children 
access.
    Response: ORR clarifies that at Sec.  410.1210(i)(1)(i), ORR is 
finalizing requirements for PRS providers to upload information, 
including any referrals to community resources and their outcomes at 
Sec.  410.1210(f)(2), into ORR's case management system.
    Comment: Several commenters expressed concern that the requirement 
at proposed Sec.  410.1210(g)(1), that TVPRA-mandated PRS begin within 
30 days, is too long and recommended that ORR require PRS providers to 
start services no later than 14 days after release. A few other 
commenters expressed concern that PRS providers currently do not have 
capacity to access PRS cases in real time and recommended continued 
efforts to clear the existing backlog of waitlisted cases so that new 
cases could be accepted as close to release as possible. These 
commenters also recommended that care provider facilities make 
referrals for PRS prior to release, stating that facilities refer most 
cases for PRS the day of release. Lastly, a few commenters stated that 
the timeframes in which ORR proposes PRS providers start PRS are nearly 
fully dependent on appropriations and available providers, and if ORR 
cannot guarantee funding, these commenters requested ORR clarify how to 
mitigate the impacts on these timeframes.
    Response: ORR agrees with the commenters' concerns about the 
capacity of PRS providers and is revising Sec.  410.1210(g)(1) to state 
PRS shall, to the greatest extent possible, start no later than 30 days 
after release if PRS providers are unable, to the greatest extent 
practicable, start services within two (2) days of release. ORR 
believes that this strikes the appropriate balance of the PRS 
providers' capacity concerns while ensuring unaccompanied children who 
are legally-mandated under the TVPRA to be offered PRS receive such 
services in a timely manner to ensure the child's safety and well-being 
after release. ORR will monitor implementation of Sec.  410.1210 and 
will take into consideration the commenters' recommendations for 
policymaking, as needed, to specify the timeframes for starting PRS.
    Additionally, ORR acknowledges the commenter's concerns about 
clearing the backlog of PRS referrals and funding PRS. ORR notes that 
it is committed to pursuing additional capacity based on resources 
allocated by Congress.
    Comment: One commenter recommended ORR clarify whether children who 
receive an order of removal have their PRS discontinued and recommended 
removing this clause if PRS continues after an order of removal.
    Response: ORR's historic policy has been that PRS would end upon 
the receipt of an order of removal. However,

[[Page 34476]]

after considering the commenter's recommendation, ORR is revising Sec.  
410.1210(h)(1) and (h)(2) to state that PRS shall continue until the 
child is granted voluntary departure, granted immigration status, or 
leaves the United States pursuant to a final order of removal, 
whichever occurs first. Providing PRS until a child leaves the United 
States pursuant to a final order of removal will promote their safety 
and well-being post-release.
    Comment: A few commenters supported the records and retention 
proposals for PRS providers and offered some additional 
recommendations. Specifically, one commenter supported requiring PRS 
providers to have established administrative and physical controls to 
prevent unauthorized electronic and physical access to records and 
recommended ORR update the terminology ``controls,'' as used at Sec.  
410.1210(i)(2) in the NPRM, to external, national standards describing 
best practices for securely handling and maintaining sensitive and 
restricted information. Additionally, a few commenters recommended ORR 
provide technical support for the submission and maintenance of files 
and to address any questions or complications that may arise. These 
commenters also requested ORR consider the additional burden of sharing 
hard files for the relevant record retention period.
    Response: ORR thanks the commenters for their support and 
recommendations for ORR's record and retention proposals at Sec.  
410.1210(i). ORR declines to change the terminology used at Sec.  
410.1210(i)(2), ``controls,'' because it believes the existing term 
reasonably describes standards ORR may establish, including any 
relevant external, national standards in current or future 
policymaking. With respect to the recommendation that ORR provide 
technical support, ORR will take that recommendation into consideration 
for future policymaking in this area. Lastly, ORR acknowledges the 
request to consider the additional burden of sharing hard files and 
will take this into consideration for future policymaking.
    Comment: Several commenters did not support the requirement for PRS 
providers to upload all PRS documentation on completed services 
provided to unaccompanied children and sponsors to ORR's case 
management system within seven (7) days of completion of the services, 
and recommended alternative timeframes. A few commenters noted that 
current ORR policy requires PRS providers to upload case closure 
reports to ORR's case management system within 30 days of case closure, 
and the commenters recommended ORR finalize the 30-day policy to allow 
PRS providers additional time. A separate commenter recommended 
fourteen (14) days from the completion of services to upload all PRS 
documentation, stating 14 days is more manageable and appropriate for 
PRS providers. Another commenter stated the current timing in Sec.  
410.1210(i)(1) is ambiguous and recommends ORR clarify that 
``completion of the services'' means completion of individual service 
activities and not the overall completion of the PRS provider's 
services to a child, i.e., when the PRS provider closes the child's 
case.
    Response: ORR notes PRS providers are already operating under a 7-
day timeframe, pursuant to its updated PRS policies.\208\ ORR is thus 
codifying existing practice. ORR notes that the 30-day timeframe the 
commenter mentioned relates to closing a case and that this is also 
existing practice under ORR's revised PRS policies.\209\ ORR is 
finalizing Sec.  410.1210(i)(1) as it was originally proposed in the 
NPRM to ensure PRS providers upload information for individual services 
in a timely manner. ORR will monitor implementation of Sec.  
410.1210(i)(1) to determine if any unforeseen consequences necessitate 
further policymaking.
    Additionally, ORR clarifies that ``completion of the services'' in 
Sec.  410.1210(i)(1) means the individual service provision (e.g., 
client case notes, referral summaries, assessments, etc.), and that 
this provision codifies existing practice under its revised PRS 
policies.\210\
    Comment: A commenter requested that ORR clarify whether the record 
management and retention requirements apply only to PRS providers or to 
other types of ORR programs such as standard programs, restrictive, 
influx care facilities, and heightened supervisions facilities.
    Response: ORR clarifies that the record management and retention 
requirements at Sec.  410.1210(i) apply to PRS providers. ORR is 
finalizing recordkeeping requirements for care provider facilities at 
redesignated Sec.  410.1303(h) and (i).
    Comment: A few commenters did not support providing PRS record 
access to ORR upon request and sharing information regarding released 
children and their sponsors. Specifically, one commenter did not 
support ORR obtaining access to PRS files upon request, PRS providers 
uploading documentation into ORR's case management system, and PRS 
providers providing active or closed case files to ORR, stating that 
ORR has relinquished physical and legal custody of the child. Another 
commenter did not support information sharing between ORR and PRS 
providers due to concerns that it will discourage children and sponsors 
from using PRS. A separate commenter recommended that PRS providers 
provide only aggregated nonidentifying data to ORR and further 
recommended that ORR not consider PRS casefiles to be ORR property 
because PRS providers are subject to different laws and best practices 
regarding ownership of children's records that may prohibit sharing 
records with ORR.
    Response: Although ORR does not retain custody of unaccompanied 
children after releasing them from its custody, ORR has the authority 
under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to conduct follow-up services 
for unaccompanied children. ORR funds PRS providers to provide these 
follow-up services and because PRS providers are ORR grantees, under 
grant administration requirements, ORR is authorized to access grantee 
records. ORR also notes that requiring access to PRS records is 
consistent with HHS's Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for HHS Awards, codified at 45 CFR 
part 75.\211\ ORR's updated PRS policies further clarify that PRS 
providers may not release these records without prior approval from ORR 
except for limited program administration purposes.\212\ These privacy 
and confidentiality requirements implement the TVPRA requirement to 
protect children from victimization and exploitation.
    Additionally, ORR acknowledges the commenter's concern regarding 
PRS providers uploading information into ORR's case management system. 
At Sec.  410.1210(i)(1)(i), ORR is finalizing that PRS providers must 
upload information into ORR's online case management system within 
seven (7) days of completion of the services. ORR believes it is 
necessary for PRS providers to upload this information to keep an 
electronic record that is accessible to ORR to facilitate ORR's 
oversight and monitoring of PRS providers to ensure they comply with 
ORR policies and the requirements under Sec.  410.1210.
    Further, as discussed above, ORR is finalizing privacy protections 
for unaccompanied children and their sponsors at Sec.  410.1210(i)(3), 
which includes requiring PRS providers to have policies and procedures 
in place to protect information from being released to unauthorized 
users and have appropriate controls in place for

[[Page 34477]]

information sharing. ORR refers the commenters to previous discussions 
of these protections.
    Comment: A few commenters opposed the requirement for PRS providers 
to obtain prior ORR approval before releasing records to third parties. 
One commenter opposed ORR approval for release to third parties because 
PRS providers' security and confidentiality controls prevent release of 
records to potentially dangerous parties. Another commenter opposed ORR 
approval for release to third parties and stated all records must be 
available upon request by any law enforcement agency and susceptible to 
FOIA requests including third-party agencies.
    Response: ORR notes that it funds PRS providers to provide these 
follow-up services. Because PRS providers are ORR grantees, the records 
of unaccompanied children are the property of ORR, whether in the 
possession of ORR or its grantees, and ORR grantees may not release 
these records without prior approval from ORR. ORR is revising Sec.  
410.1210(i)(2)(iii) to clarify that PRS providers may not release 
records to any third party without prior approval from ORR, except for 
program administration purposes, which is consistent with the revised 
PRS policies.\213\ ORR has these protections in place to ensure 
information is not exploited by unauthorized users to the detriment of 
released unaccompanied children. ORR notes that it will continue to 
adhere to the Privacy Act, and its related System of Records Notice 
(SORN), under which it may release records to law enforcement and other 
entities for certain authorized uses.\214\ Finally, ORR notes that it 
will evaluate requests to release information to determine if the 
request is appropriate and may approve the request.
    Comment: A commenter recommended that ORR exclude parents or legal 
custodians from the term ``third party'' at Sec.  410.1210(i)(3)(iii) 
due to the commenter's concern that ORR's approval prior to a PRS 
provider releasing records interferes with the custodial rights of 
sponsors, particularly parents. The commenter stated parents and legal 
custodians have the authority to obtain records related to their 
children and to determine what type of information should be shared 
with third parties.
    Response: ORR notes that consistent with the definition of ``case 
file'' set forth at Sec.  410.1001, all records of unaccompanied 
children are the property of ORR. Such requirement is essential to 
ORR's ability to provide care and custody to unaccompanied children 
pursuant to its statutory authorities, including appropriately managing 
disclosures of children's information to protect from potentially 
harmful disclosures. ORR notes, with respect to parents, however, that 
as established in its SORN, unaccompanied child case file information, 
including PRS records, are treated as ``mixed'' systems of record that 
are subject to the Privacy Act.\215\ Consistent with the Privacy Act, 
the parents and legal guardians of minors may act on behalf of their 
children for purposes of the Act--including requesting their records 
from ORR.\216\
    Comment: A commenter requested that ORR clarify how Sec.  
410.1210(i)(3)(i) and Sec.  410.1210(i)(2)(ii), as proposed in the 
NPRM, differ substantively. On the one hand, as proposed in the NPRM, 
Sec.  410.1210(i)(3)(i) requires PRS providers to have written policies 
and procedures to protect information from being accessed by 
unauthorized users. On the other hand, as proposed in the NPRM, Sec.  
410.1210(i)(2)(ii) requires PRS providers to have established 
``administrative and physical controls'' to prevent unauthorized access 
to both electronic and physical records.
    Response: ORR notes that proposed Sec.  410.1210(i)(2)(ii) and 
(i)(3)(i) contain similar requirements because they both require PRS 
providers to have administrative controls in place to protect against 
unauthorized use of information. ORR clarifies that Sec.  
410.1210(i)(2)(ii) contains general records management and retention 
requirements for PRS providers and Sec.  410.1210(i)(3) contains 
additional privacy protections that PRS providers shall have in their 
written policies and procedures to safeguard the unaccompanied child's 
information.
    Comment: A few commenters recommended ORR strengthen the privacy 
protections for children and their sponsors. A few of these commenters 
recommended that the children's and sponsors' information and data may 
not be released to third parties, including law and immigration 
enforcement agencies, without the written request or consent of the 
child and/or sponsor who is subject to the information request or a 
judicial order. Another commenter expressed concern that PRS providers 
will use non-secure communication channels and recommended PRS 
providers conduct services in-person.
    Response: ORR notes that its updated PRS policies require PRS 
providers to encrypt electronic communications (including, but not 
limited to, email and text messaging) containing healthcare or 
identifying information of released children.\217\ ORR also notes that 
it will continue to adhere to the Privacy Act, under which it may 
release records to law enforcement for the purposes described in the 
Privacy Act,\218\ and the UC Program SORN.
    Comment: A few commenters had recommendations regarding Sec.  
410.1210(i)(4), as proposed in the NPRM, regarding NOCs. One commenter 
recommended including a short, exhaustive list of situations that 
require a NOC in the regulatory text. Further, a separate commenter 
recommended ORR clearly define the criteria for NOC to help identify 
risks and respond to the risk promptly to ensure the safety of released 
children. Another commenter recommended ORR clarify the language in the 
preamble discussing situations that require a NOC and specifically 
recommended updating ``potential fraud'' to mean ``being a victim of 
fraud'' and clarifying what ORR means by ``media attention.'' Finally, 
a commenter recommended elimination of the situations that require a 
NOC, stating several of the situations are vague and not connected to 
the imminent safety of the child. This commenter recommended ORR 
instead require PRS providers to issue NOCs exclusively for concerns, 
based on reliable evidence, about the imminent safety of the released 
child.
    Response: ORR clarifies that it intentionally did not propose in 
the NPRM to codify a list of situations in which PRS providers would be 
required to submit NOCs, to allow ORR the flexibility to specify the 
reasons in subregulatory guidance. ORR notes that its updated PRS 
policies currently describe such guidance.\219\ ORR believes it would 
be more appropriate to issue subregulatory guidance because it 
anticipates that the types of situations where NOCs would be 
appropriate may evolve over time and are highly fact-dependent. 
Delineating subregulatory guidance would allow ORR to make iterative 
updates that correspond to emerging issues in the UC Program.
    Comment: A commenter requested that ORR clarify the PRS provider's 
obligations once the provider submits a NOC and recommended the PRS 
provider conduct increased home visits and follow-ups until the PRS 
provider is satisfied that the issue has been resolved.
    Response: ORR notes that although it has not codified its 
requirements in the final rule, such requirements are described in its 
policies. These policies describe, for example, the PRS provider's 
obligations once it submits a NOC.\220\ ORR may also refer a released 
child to PRS at any point during the pendency of the child's 
immigration

[[Page 34478]]

case and while the child is under age 18, if ORR becomes aware (e.g., 
through a NOC, or a call to the ORR NCC) of a situation warranting such 
referral. ORR would then require the relevant PRS provider to follow up 
with the child and assess whether PRS would be appropriate. ORR will 
determine the appropriate level for which to refer all children to PRS 
depending on the needs and the circumstances of the case and will make 
PRS referrals accordingly. Under its updated PRS policies, ORR 
specifies the check-ins and home visits required depending on the level 
of PRS ORR determines appropriate.\221\
    Comment: One commenter requested ORR to clarify the purpose of 
requiring PRS providers to submit NOCs after a child is released and 
requested ORR clarify what it intends to do with NOCs given ORR does 
not have custody of a child after release.
    Response: Although ORR does not retain custody of unaccompanied 
children after releasing them from its custody, ORR has the authority 
under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to conduct follow-up services 
for unaccompanied children. A significant reason for requiring NOCs is 
to promote the safety of unaccompanied children, even out of ORR's 
legal custody, consistent with its statutory obligations.\222\ As 
further set forth in its policies, ORR may refer NOCs to appropriate 
authorities where a child's welfare may be at risk. It is also 
important for ORR to receive NOCs as a matter of responsible program 
administration, particularly with respect to services funded by the 
agency. Finally, ORR notes that its updated PRS policies further 
describe what ORR does with NOCs once received.\223\
    Comment: A commenter recommended that PRS providers document NOCs 
within three (3) business days of first suspicion or knowledge of the 
event(s) instead of the proposed 24-hour turnaround time, stating this 
would allow PRS caseworkers to carry out an intervention with the child 
and family, report the event(s) to the appropriate investigative 
agencies, and document the event(s) for ORR in a case note.
    Response: Due to the serious nature of the reasons for concern 
necessitating the PRS provider to submit a NOC, ORR does not agree with 
the commenter's recommendation to lengthen the amount of time for PRS 
providers to submit a NOC. ORR is finalizing at Sec.  
410.1210(i)(4)(ii) that PRS providers shall document and submit NOCs to 
ORR within 24 hours of first suspicion or knowledge of the event(s) to 
ensure the child's safety and well-being post-release.
    ORR did not receive any comments regarding the amount of time PRS 
providers would have under the case closure proposal at Sec.  
410.1210(i)(5) and notes that in the NPRM, it notified interested 
parties that ORR anticipated that it may require PRS providers to 
complete a case closure form and upload it to ORR's online case 
management system within 72 hours of a case's closure (88 FR 68936). 
ORR is finalizing at Sec.  410.1210(i)(5)(iii) a requirement that PRS 
providers must upload any relevant forms into ORR's case management 
system within 30 calendar days of a case's closure. Based on the 
feedback ORR received in response to the seven (7) day timeframe for 
submitting information under Sec.  410.1210(i)(1), ORR believes 30 days 
is an appropriate amount of time to allow PRS providers to review and 
finalize documentation for case closures.
    Comment: ORR sought public comment on whether it should consider 
codifying SWB calls in this final rule or in future rulemaking and 
whether ORR should integrate SWB calls into PRS, including the factors 
that should be considered in doing so. A few commenters supported ORR 
integrating SWB calls in PRS stating this could enhance their 
effectiveness because PRS providers work with children post-release and 
research and find resources, develop relationships and partnerships, 
and engage with community stakeholders where children are released.
    In contrast, a few commenters opposed ORR integrating SWB calls 
into PRS because PRS providers lack capacity to provide these calls and 
instead, recommended ORR codify SWB calls and require ORR to be 
responsible for SWB calls. Several commenters expressed concern that 
due to current funding levels of PRS and limited provider capacity, 
integrating SWB calls into PRS would place additional strain on PRS 
providers and lengthen the waitlist for PRS, and the commenters 
recommended additional funding if SWB calls are integrated into PRS.
    Several commenters had recommendations for how ORR could improve 
SWB calls. One commenter recommended ORR provide various means of 
communication for SWB calls, rename them ``SWB checks,'' and permit 
communication via SMS text or other texting services. This commenter 
recommended ORR continue to refine SWB checks to optimize 
accessibility, cultural competency, building trust, and connection to 
services. Another commenter recommended SWB calls provide an 
opportunity to children and/or sponsors to communicate with a neutral 
individual to request assistance, a change in PRS provider or services, 
or to decline services. Additionally, the commenter recommended 
personnel who conduct the SWB checks should have proficiency in 
languages other than English, access to qualified interpreters, 
experience working with youth and immigrant families, and training in 
child welfare and other relevant areas.
    Another commenter recommended that SWB calls focus on the interim 
time between an unaccompanied child's release and the start of PRS. 
Lastly, a few commenters expressed concern regarding the rate of 
unanswered SWB calls, the unknown whereabouts of released children, and 
sponsors reporting children as runaways or missing while under their 
care. One of these commenters recommended ORR conduct an analysis of 
ways to address released minors who are reported missing by their 
sponsors.
    Response: ORR thanks the commenters for their support, 
recommendations, and concerns. After considering the comments received, 
ORR is not codifying SWB calls into this final rule and will take into 
consideration the commenters' concerns and recommendations for future 
policymaking in this area.
    Comment: ORR sought public comment on updating its policies to 
three levels of PRS, as described in the preamble above. Several 
commenters supported ORR updating its policies to provide three levels 
of PRS, stating the levels benefit children and address their needs, 
strengthen PRS providers' delivery and management of PRS, and foster 
standardization and consistency among PRS providers. Additionally, a 
few of these commenters also supported codifying PRS levels in this 
final rule. A few commenters supporting the three levels of PRS also 
expressed concern about each level having different levels of 
engagement, stating the language is vague and presumes the amount of 
contact rather than variation in service. These commenters recommended 
ORR specify the type and frequency of contact for each level. One 
commenter asked ORR to clarify how and when it determines levels, 
stating it was unclear whether levels are assigned prior to referring 
for PRS.
    A few commenters expressed concern about PRS Level One SWB checks. 
Specifically, a commenter expressed concern about PRS providers 
conducting Level One PRS SWB check-ins virtually. Another commenter 
expressed concern with describing Level One services as SWB checks,

[[Page 34479]]

stating these are insufficient for all children, and recommended SWB 
checks be distinct from PRS because they do not align with the goals of 
PRS. Instead, the commenter recommended that Level One PRS allow for 
virtual case management due to the complexity of the child's case. This 
commenter also stated that more unaccompanied children would benefit 
from Level Two PRS.
    Additionally, a few commenters had recommendations or requested 
clarity for Level Three PRS. A few commenters requested ORR clarify 
intensive home engagements and the desired outcome for Level Three PRS. 
One commenter recommended revising the current policy for Level Three 
providers and aligning requirements with available resources. This 
commenter also stated that ORR's updated PRS policies imply the 
preferred intervention for Level Three PRS is from PRS providers with 
Trauma-Focused Cognitive Behavioral Therapy (TFCBT) training. The 
commenter expressed concern that TFCBT training is unattainable for PRS 
providers due to lack of ORR funding and recommended ORR fund PRS 
providers to obtain this training and hire qualified clinical staff to 
supervise this level of intervention.
    A few commenters had recommendations and concerns regarding 
assessments and re-evaluations for PRS. Specifically, one commenter 
supported the PRS provider's assessment including the level of PRS to 
be provided and stated this aligned with the international law 
requirement to integrate unaccompanied children in the community. The 
commenter recommended extra measures in the assessment to tailor PRS to 
address the child's needs. Another commenter recommended ORR outline in 
its subregulatory guidance the frequency with which ORR requires PRS 
providers to re-evaluate the child's level of care, stating monthly 
evaluations are adequate unless the PRS provider anticipates 
significant changes and recommended ORR provide examples of factors PRS 
providers should consider when deciding the frequency of contact. A few 
separate commenters expressed concern about having different 
assessments for PRS providers, stating each provider will have varying 
definitions of cases that merit Level One, Two, or Three PRS and 
recommended uniform assessments.
    Further, a commenter recommended ORR require that Level Three PRS 
include weekly contact for 45-60 days, or longer if necessary. Another 
commenter recommended extending the proposal that PRS providers make at 
least monthly contact, either in-person or virtually, for six months 
after release to all unaccompanied children and their sponsors 
regardless of the PRS Level because it allows PRS providers to 
regularly assess level of care. One commenter recommended that all 
children and sponsors who would like a PRS case manager have access to 
one for at least six months, including in-home visits if desired.
    Response: ORR thanks the commenters for their support, 
recommendations, and concerns. As stated above, in this final rule, ORR 
is not codifying standards related to differing levels of PRS. Rather, 
ORR has updated its PRS policies to describe three levels of PRS in 
alignment with ORR's discussion in the preamble to the NPRM (88 FR 
68934 through 68935).
    Additionally, in this final rule, ORR is revising Sec.  
410.1210(a)(3) to require ORR to make an initial determination of the 
level and extent of PRS, if any, based on the needs of the 
unaccompanied child and the sponsor and the extent appropriations are 
available. ORR is clarifying at Sec.  410.1210(a)(3) that PRS providers 
may conduct subsequent assessments based on the needs of the 
unaccompanied child and the sponsor that may result in a modification 
to the level and extent of PRS assigned. ORR notes that these revisions 
are aligned with its updated PRS policies, which specify additional 
guidance on the assessment requirements. As ORR continues to make 
refinements to its PRS policies and will take into consideration the 
commenters' concerns and recommendations to inform that process.
    Comment: One commenter recommended that when PRS providers 
discharge children and their sponsors from PRS, the PRS providers 
should connect the children and sponsors to local community-based 
organizations to ensure an established support network and readily 
accessible services if needed.
    Response: ORR thanks the commenter for the recommendation and notes 
that PRS providers refer unaccompanied children and sponsors to 
community resources pursuant to Sec.  410.1210(f), as recommended by 
the commenter. Further, ORR expects that even if ORR-funded PRS cease, 
unaccompanied children and sponsors referred to such community 
resources may continue receiving services from those resources. 
However, ORR will monitor implementation of this final rule and 
consider this recommendation for future policymaking in this area as 
appropriate.
    Comment: A few commenters recommended non-parent sponsors have 
access to PRS. These commenters stated non-parent sponsors should 
receive PRS because they may need assistance with enrolling children 
into school or daycare, obtaining medical treatment for the children, 
securing signed power of attorney forms from parents, complying with 
educational and medical consent laws, and/or securing court orders of 
custody or guardianship.
    Response: ORR clarifies that Sec.  410.1210 does not limit PRS to 
only parent sponsors and uses the term ``sponsor'' to include all types 
of sponsors.
    Comment: A number of commenters expressed concern that ORR does not 
know the whereabouts of a large number of unaccompanied children 
released from its care, with some recommending a formal audit and 
investigation into the children's whereabouts before finalizing the 
rule. Additionally, several commenters expressed concern about 
following up with released children to ensure their safety and well-
being. A few commenters expressed concern about the lack of ORR follow-
up after a child has been released to a sponsor, with some commenters 
emphasizing the need to hold sponsors accountable in cases where they 
violate the terms of the Sponsor Agreement or abuse, neglect, or 
traffic children. Another commenter expressed their view that ORR 
conducts minimal follow-up on releases and the proposed rule would make 
follow-up discretionary. A few commenters recommended the Government 
check in on children after release, and one commenter recommended more 
routine and frequent checks to ensure the safety and well-being of 
released children. Another commenter recommended the Government 
physically check on the children through unannounced visits several 
times per year and coordinate with local law enforcement. One commenter 
recommended ORR document follow-ups with children after they are 
released.
    Response: ORR understands that concerns that ORR does not know the 
whereabouts of a large number of unaccompanied children was in 
reference to media reporting regarding children with whom ORR was 
unable to make direct contact during follow-up calls after they were 
released from ORR custody. Although ORR's custodial authority ends when 
a child is released from ORR care, ORR has the authority under the 
TVPRA at 8 U.S.C. 1232(c)(3)(B) to conduct follow-up services for 
unaccompanied children.
    Pursuant to Sec.  410.1203(c), a sponsor agrees to provide for an 
unaccompanied

[[Page 34480]]

child's physical and mental well-being, ensure the child's compliance 
with DHS and immigration court requirements, adhere to Federal and 
applicable State child labor and truancy laws, and notify appropriate 
authorities of a change of address, among other things. ORR has 
policies in place to promote unaccompanied children's safety and well-
being after they have been released from ORR care to the sponsor. For 
example, as provided in Sec.  410.1210(a)(2) and (3), ORR provides PRS 
to certain unaccompanied children, and subject to available funds, all 
unaccompanied children are eligible for PRS. Additionally, under 
existing ORR policies, ORR care provider facilities are required to 
make at least three SWB calls to speak with the child and sponsor 
individually to determine if the child is still residing with the 
sponsor, enrolled or attending school, aware of any upcoming court 
dates, and otherwise safe, as well as to assess if either the child or 
the sponsor would benefit from additional support or services. Although 
many sponsors and children may choose not to answer a call from an 
unknown phone number or because they may be fearful of Government 
entities, or they may simply miss the call, in FY 2022, ORR care 
provider facilities made contact with either the child, the sponsor, or 
both in more than 81 percent of households. Additionally, some children 
who have not answered a SWB call, have still been accounted for through 
the provision of PRS, legal services, or the ORR NCC.
    Further, ORR notes that its revised PRS policies describe 
additional requirements for the frequency of on-going contact during 
PRS, which varies based on the level, with in-person visits required 
for Levels Two and Three PRS.\224\ Additionally, pursuant to its 
updated PRS policies, if PRS providers are unable to reach the child 
and sponsor, and there is a safety concern related to potential child 
abuse, maltreatment, or neglect, PRS providers must follow the mandated 
reporting guidelines for the locality in which they are providing 
services, which may involve contacting local law enforcement and 
requesting a well-being check on the child, in addition to submitting a 
NOC. Finally, ORR will monitor the implementation of the regulations. 
If additional protections are needed for unaccompanied children after 
release, ORR will take the commenters' recommendations into 
consideration for future policymaking.
    Comment: One commenter recommended ORR hold monthly listening 
sessions with at least one representative from each PRS provider so 
that providers could provide feedback on ORR policy changes and inform 
ORR on potential issues that could impact the proposed policies. 
Additionally, this commenter recommended ORR solicit feedback in 
formats such as surveys, questionnaires, and digital suggestion boxes, 
and ORR timely respond to this feedback.
    Response: ORR regularly engages with PRS providers, including 
through ORR staff assigned to liaise with and oversee PRS providers. 
Further, although the recommendation that ORR hold monthly listening 
sessions with at least one representative from each PRS provider is 
outside the scope of this final rule, ORR will take it into 
consideration for future policymaking.
    Comment: A commenter recommended ORR require a formal review 
conducted by an independent party within the first six months after 
release to assess the sponsor's ability and willingness to care for the 
released child until the child reaches age 18.
    Response: This recommendation would represent a significant change 
from PRS as contemplated in the NPRM, and is outside the scope of this 
final rule. Nevertheless, ORR will take this into consideration for 
future policymaking regarding PRS.
    Comment: A commenter supported ORR's updates to its PRS policies to 
allow children to continue to receive PRS if the child's sponsor 
chooses not to continue. This commenter recommended ORR create 
guidelines to ensure an unaccompanied child can make meaningful and 
confidential decisions about receiving PRS when the sponsor has decided 
not to participate and to include protections PRS providers will follow 
to ensure they safely and confidentially maintain contact with the 
child. Further, this commenter recommended ORR issue specific 
regulations requiring the recorded affirmative participation of 
unaccompanied children in the decision-making process to receive PRS. 
Lastly, the commenter recommended the guidelines be consistent with the 
applicable State and Federal law.
    Response: ORR thanks the commenter for the support of its updated 
PRS policies. With respect to the recommendation that ORR create 
guidelines to ensure that unaccompanied children can make meaningful 
and confidential decisions about receiving PRS when the sponsor has 
decided not to participate, and to describe requirements on PRS 
providers in such situations, ORR wishes to clarify that unaccompanied 
children can continue to receive PRS even when sponsors, who are not 
parents or legal guardians, choose not to, and ORR is codifying this at 
Sec.  410.1210(h)(3).
    With respect to the recommendation that ORR issue specific 
regulations requiring the recorded affirmative participation of 
unaccompanied children in the decision-making process to receive PRS, 
and that such guidelines be consistent with applicable State and 
Federal law, ORR declines to implement the recommendation in this final 
rule. However, ORR will consider reviewing its revised PRS policies to 
determine how it would implement this recommendation, as well as the 
burden of implementing it, to inform future policymaking.
    Comment: One commenter expressed concern that there are no 
penalties for PRS providers failing to meet the requirements in Sec.  
410.1210.
    Response: ORR did not propose penalties in the NPRM, and has not 
incorporated them in this final rule, because it does not intend 45 CFR 
410 to govern or describe the entire UC Program. ORR notes that all its 
grantees both agree to abide by ORR regulations and policies, but are 
also subject to requirements set forth at 45 CFR part 75.\225\ Further, 
ORR notes that its revised PRS policies specify other follow-up and 
corrective actions that ORR may take if a PRS provider is found to be 
out of compliance with ORR policies or procedures, and ORR will 
communicate the concerns in writing to the Program Director or 
appropriate person through a written monitoring or site visit report, 
with corrective actions and child welfare best practice 
recommendations.\226\
    Final Rule Action: After consideration of public comments, ORR is 
making the following modifications to Sec.  410.1210. ORR is revising 
the first sentence of proposed Sec.  410.1210(a)(2) to state, ``ORR 
shall offer post-release services (PRS) for unaccompanied children for 
whom a home study was conducted pursuant to Sec.  410.1204.'' ORR is 
revising the end of the first sentence of Sec.  410.1210(a)(3) to 
state, ``ORR may offer PRS for all released children.'' ORR is revising 
the second sentence of Sec.  410.1210(a)(3) to state, ``ORR may give 
additional consideration, consistent with paragraph (c), for cases 
involving unaccompanied children with mental health or other needs who 
could particularly benefit from ongoing assistance from a community-
based service provider, to prioritize potential cases as needed.'' ORR 
is revising the beginning of the third sentence of Sec.  410.1210(a)(3) 
to state, ``ORR shall make an initial determination of the level . . 
.'' ORR is adding a sentence to

[[Page 34481]]

the end of Sec.  410.1210(a)(3) to state, ``PRS providers may conduct 
subsequent assessments based on the needs of the unaccompanied children 
and the sponsors that result in a modification to the level and extent 
of PRS assigned to the unaccompanied children.'' ORR is revising Sec.  
410.1210(b)(1), (4), and (6) to add ``and unaccompanied children'' 
after ``sponsors.'' ORR is revising the first sentence of Sec.  
410.1210(b)(3) to add ``and unaccompanied child'' after ``sponsor.'' 
ORR is revising the first sentence of Sec.  410.1210(b)(5) to add 
``shall assist the sponsors and unaccompanied children'' after ``with 
school enrollment and . . .'' Due to a drafting error, ORR is revising 
the second sentence of Sec.  410.1210(b)(5) to state ``exceed the 
State's maximum age requirement for mandatory school attendance.'' ORR 
is revising the first sentence of Sec.  410.1210(b)(8) to add ``and 
unaccompanied child'' after ``sponsor.'' ORR is revising Sec.  
410.1210(b)(9), (10), and (11) to add ``and unaccompanied child'' after 
``sponsor.'' ORR is revising Sec.  410.1210(b)(12) to add at the end of 
the sentence ``or sponsor.'' ORR is revising the paragraph heading for 
Sec.  410.1210(c) to state ``Additional considerations for prioritizing 
the provision of PRS.'' ORR is revising Sec.  410.1210(c) to state 
``ORR may prioritize referring unaccompanied children with the 
following needs for PRS if appropriations are not available for it to 
offer PRS to all children: . . .'' ORR is revising Sec.  410.1210(c)(3) 
to state ``Unaccompanied children who identify as LGBTQI+.'' ORR is not 
finalizing Sec.  410.1210(e)(2) as proposed in the NPRM, and as a 
result, is updating the numbering for proposed Sec.  410.1210(e)(3) and 
finalizing it as Sec.  410.1210(e)(2). ORR is revising Sec.  
410.1210(g)(1) to state ``For a released unaccompanied child who is 
required under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to receive an offer 
of PRS . . . PRS shall, to the greatest extent possible, start no later 
than 30 days after release.'' ORR is revising Sec.  410.1210(g)(2) to 
state ``. . . but is not required to receive an offer of PRS following 
a home study . . .'' ORR is revising Sec.  410.1210(h)(1) to state 
``For a released unaccompanied child who is required to receive an 
offer of PRS under the TVPRA at 8 U.S.C. 1232(c)(3)(B), PRS shall be 
offered for the unaccompanied child until the unaccompanied child turns 
18 or the unaccompanied child is granted voluntary departure, granted 
immigration status, or the child leaves the United States pursuant to a 
final order of removal, whichever occurs first.'' ORR is revising Sec.  
410.1210(h)(2) to state ``For a released unaccompanied child who is not 
required to receive an offer of PRS under the TVPRA at 8 U.S.C. 
1232(c)(3)(B), but who receives PRS as authorized under the TVPRA, PRS 
may be offered for the unaccompanied child until the unaccompanied 
child turns 18, or the unaccompanied child is granted voluntary 
departure, granted immigration status, or the child leaves the United 
States pursuant to a final order of removal, whichever occurs first.'' 
ORR is adding Sec.  410.1210(h)(3) to state ``If an unaccompanied 
child's sponsor, except for a parent or legal guardian, chooses to 
disengage from PRS and the child wishes to continue receiving PRS, ORR 
may continue to make PRS available to the child through coordination 
between the PRS provider and a qualified ORR staff member.'' ORR is 
revising Sec.  410.1210(i)(1) to remove ``keep'' and replace with 
``maintain''. ORR is revising Sec.  410.1210(i)(3)(i) to remove 
``sensitive.'' ORR is revising Sec.  410.1210(i)(3)(iii) to include at 
the end, ``except for program administration purposes.'' ORR is 
revising Sec.  410.1210(i)(5) to add Sec.  410.1210(i)(5)(iii) to state 
``PRS providers must upload any relevant forms into ORR's case 
management system within 30 calendar days of a case's closure.'' ORR is 
otherwise finalizing the proposals as proposed.

Subpart D--Minimum Standards and Required Services

Section 410.1300 Purpose of This Subpart
    In order to ensure that all unaccompanied children receive the same 
minimum services and a specified level of quality of those services, 
ORR proposed in the NPRM a set of minimum standards and required 
services (88 FR 68936 through 68952). ORR proposed in the NPRM to 
establish these standards and requirements consistent with its 
authorities at 6 U.S.C. 279(b)(1) (making ORR responsible for, among 
other things, ensuring that the interest of unaccompanied children are 
considered in decisions and actions relating to their care and custody, 
implementing policies with respect to the care and placement of 
unaccompanied children, and overseeing the infrastructure and personnel 
of facilities in which unaccompanied children reside), and 8 U.S.C. 
1232(c) (requiring HHS to establish policies and programs to ensure 
that unaccompanied children are protected from certain risks, and 
requiring placement of unaccompanied children in the least restrictive 
setting that is in their best interest). As proposed at Sec.  410.1300, 
the purpose of the subpart would be to establish the standards and 
services that care provider facilities must meet and provide in keeping 
with the principles of treating unaccompanied children in ORR care with 
dignity, respect, and special concern for their particular 
vulnerability. ORR welcomed public comment on this proposal.
    Comment: Although a few commenters supported ORR setting standards 
for unaccompanied children, many commenters stated the standards in 
subpart D fall short in addressing the full scope of unaccompanied 
children's current needs and the standards do not align with present 
demographics and short stays in ORR care.
    Response: Regarding concerns that the standards do not align with 
unaccompanied children's needs, in drafting the proposals, ORR reviewed 
its current policies that describe the services care provider 
facilities must provide to address the needs of unaccompanied children. 
Additionally, in this final rule, ORR has taken into consideration the 
additional feedback provided by commenters and finalized additional 
provisions based on that feedback.
    Comment: One commenter expressed the need for additional funding to 
provide Indigenous language safeguards and assessment of minimum 
standards relevant to Indigenous unaccompanied children in ORR's care.
    Response: ORR believes that it is important to provide language 
access services, including translation and interpretation for all 
unaccompanied children, including Indigenous children, as well as 
services designed to meet the individualized needs of unaccompanied 
children in its UC Program. For this reason, ORR is finalizing 
requirements at Sec.  410.1306 that standard programs and restrictive 
placements must offer interpretation and translation services in an 
unaccompanied child's native or preferred language.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1300 as proposed.
Section 410.1301 Applicability of This Subpart
    ORR believes that care provider facilities serving unaccompanied 
children should be required to meet standards and requirements tailored 
to their particular placement setting so that children receive at least 
the same standard of care within a given placement setting. ORR 
proposed in the NPRM, at Sec.  410.1301, to apply these

[[Page 34482]]

care provider facility standards to all standard programs and to non-
standard programs where specified (88 FR 68936).
    Comment: Many commenters recommended that secure facilities should 
be included within the scope of subpart D. These commenters believe 
that requiring secure facilities to meet the required minimum services 
proposed for other ORR care provider facilities will help to ensure 
that these facilities are held to the same minimum standards of care.
    Response: Because ORR believes that all unaccompanied children 
should receive the same minimum services and at least a specified level 
of quality of those services, ORR proposed in the NPRM a set of minimum 
standards and required services tailored to particular placement 
settings (88 FR 68936). ORR notes, however, that its existing practice 
is to require secure facilities to apply the minimum standards required 
in the FSA at Exhibit 1, which are implemented in this final rule at 
subpart D. Therefore, in this final rule, ORR is revising Sec.  
410.1301 to state that subpart D is applicable to standard programs and 
secure facilities, as well as to other care provider facilities and PRS 
providers where specified. ORR notes that it is not changing any 
requirements that were proposed in the NPRM for PRS providers, and is 
merely adding ``PRS providers'' to reflect requirements that were 
previously specified. Notwithstanding this change to the final rule 
text, to make subpart D applicable to secure facilities as a general 
matter, ORR notes that under this final rule, secure facilities may be 
subject to other standards that do not apply to standard facilities. 
For example, as discussed in Sec.  410.1304(d) and Sec.  410.1304(e), 
secure facilities that are not RTCs are subject to different standards 
as compared to standard facilities and RTCs with respect to the use of 
restraints (88 FR 68942). ORR believes that establishing requirements 
in this way is consistent with its authorities under the TVPRA and HSA, 
as well as the requirements under the FSA.
    Final Rule Action: After consideration of public comments, ORR 
modifying Sec.  410.1301 to state ``This subpart applies to all 
standard programs and secure facilities. This subpart is applicable to 
other care provider facilities and to PRS providers where specified.''
Section 410.1302 Minimum Standards Applicable to Standard Programs and 
Secure Facilities
    ORR proposed in the NPRM, at Sec.  410.1302, minimum standards of 
care and services applied to standard programs (88 FR 68936 through 
68939). These standards are consistent with the HSA and TVPRA, and 
meet, and in some cases, exceed the minimum standards of care listed in 
Exhibit 1 of the FSA, with the exception of considerations relating to 
State licensing discussed below.
    ORR proposed in the NPRM at Sec.  410.1302(a), to require that 
standard programs be licensed by an appropriate State or Federal 
agency, or meet other requirements specified by ORR if licensure is 
unavailable in a State to programs providing services to unaccompanied 
children, to provide residential, group, or foster care services for 
dependent children (88 FR 68937). As discussed above, however proposed 
Sec.  410.1302(a) has been revised in this final rule to provide that 
if a standard program is located in a State that will not license care 
provider facilities that care or propose to care for unaccompanied 
children, such care provider facilities must nevertheless meet the 
licensing requirements that would apply in that State if the State was 
willing to license ORR facilities.
    Additionally, because there are other State and local laws and 
other ORR requirements that are critical to ensuring safe and sanitary 
conditions at care provider facilities, ORR proposed in the NPRM at 
Sec.  410.1302(b), to further require that standard programs comply 
with all applicable State child welfare laws and regulations and all 
State and local building, fire, health and safety codes, or other 
requirements specified by ORR if licensure is unavailable in their 
State to standard programs providing services to unaccompanied children 
(88 FR 68937). Again, in this final rule, even if a standard program is 
located in a State that will not license care provider facilities that 
care or propose to care for unaccompanied children, the facility must 
comply with all State and local building, fire, health and safety 
codes--in addition to other requirements if specified by ORR. The 
proposed rule provided that if there is a potential conflict between 
ORR's regulations and State law, ORR will review the circumstances to 
determine how to ensure that it is able to meet its statutory 
responsibilities. The NPRM also provided that if a State law or 
license, registration, certification, or other requirement conflicts 
with an ORR employee's duties within the scope of their ORR employment, 
the ORR employee is required to abide by their Federal duties.\227\
    In order to ensure that each unaccompanied child receives the same 
minimum services that are necessary to support their safety and well-
being for daily living while in ORR care, ORR proposed in the NPRM, at 
Sec.  410.1302(c), to establish the services that standard programs 
must provide or arrange for each unaccompanied child in care (88 FR 
68937). ORR proposed in the NPRM, at Sec.  410.1302(c)(1), to establish 
minimum requirements related to the provision of proper physical care 
and maintenance, including suitable living accommodations, food, 
drinking water, appropriate clothing, personal grooming and hygiene 
items, access to toilets and sinks, adequate temperature control and 
ventilation, and adequate supervision to protect unaccompanied children 
from others. In the NPRM, ORR also proposed to require that food be of 
adequate variety, quality, and in sufficient quantity to supply the 
nutrients needed for proper growth and development according to the 
U.S. Department of Agriculture (USDA) Dietary Guidelines for 
Americans,\228\ and appropriate for the child and activity level, and 
that drinking water always be available to each unaccompanied child.
    ORR notes that access to routine medical and dental care, and other 
forms of healthcare described in the FSA at Exhibit 1 paragraph 2 were 
set forth at Sec.  410.1307 of the NPRM, and will be codified in that 
section for purposes of this final rule.
    ORR believes that the unique needs and background of each 
unaccompanied child should be assessed by standard programs to ensure 
that these needs are being addressed and supported by the standard 
program. Therefore, ORR proposed in the NPRM, under Sec.  
410.1302(c)(2), and consistent with ORR's existing policy and practice, 
to require that each unaccompanied child receive an individualized 
needs assessment that includes: various initial intake forms; essential 
data relating to identification and history of the unaccompanied child 
and their family; identification of any special needs the unaccompanied 
child may have, including any specific problems that appear to require 
immediate intervention; an education assessment and plan; whether an 
Indigenous language speaker; an assessment of family relationships and 
interaction with adults, peers and authority figures; a statement of 
religious preference and practice; assessment of personal goals, 
strengths, and weaknesses; and identifying information regarding 
immediate family members, other relatives, or friends who may be 
residing in the United States and may be able to assist in the safe and 
timely release of the unaccompanied child to a sponsor (88 FR 68937). 
ORR noted that the use of ``special needs'' in this

[[Page 34483]]

paragraph is being included to match Appendix 1 of the FSA; it was 
ORR's preference, for the reasons articulated in the preamble to 
Sec. Sec.  410.1103 and 410.1106, to update the language to 
``individualized needs,'' and ORR solicited comments on such 
substitution.
    Access to education services for unaccompanied children in care 
from qualified professionals is critical to avoid lost instructional 
time while in care and ensure unaccompanied children are receiving 
appropriate social, emotional, and academic supports and services. ORR 
proposed in the NPRM, at Sec.  410.1302(c)(3), to require standard 
programs to provide educational services appropriate to the 
unaccompanied child's level of development, communication skills, and 
disability, if applicable (88 FR 68937). ORR believes that this 
requirement helps ensure that educational services are tailored to meet 
the educational and developmental needs of unaccompanied children, 
including children with disabilities who may require program 
modifications (such as specialized instruction), reasonable 
modifications, or auxiliary aids and services. ORR also proposed that 
educational services be required to take place in a structured 
classroom setting, Monday through Friday, which concentrate primarily 
on the development of basic academic competencies and secondarily on 
English Language Training (ELT). The educational services must include 
instruction and educational and other reading materials in such 
languages as needed. Basic academic areas must include science, social 
studies, math, reading, writing, and physical education. The services 
must provide unaccompanied children with appropriate reading materials 
in languages other than English and spoken by the unaccompanied 
children in care for use during their leisure time. ORR noted that 
under 45 CFR 85.51, care provider facilities shall also ensure 
effective communication with unaccompanied children with disabilities. 
This means the communication is as effective as communication with 
children without disabilities in terms of affording an equal 
opportunity to participate in the UC Program and includes furnishing 
appropriate auxiliary aids and services such as qualified sign language 
interpreters, Braille materials, audio recordings, note-takers, and 
written materials, as appropriate for the unaccompanied child. ORR also 
specified additional staffing requirements inclusive of the provision 
of educational and other services proposed under Sec.  410.1305.
    ORR strongly believes that time for recreation is essential to 
supporting the health and well-being of unaccompanied children. ORR 
proposed in the NPRM, at Sec.  410.1302(c)(4), to require standard 
programs to have a recreation and leisure time plan that includes daily 
outdoor activity, weather permitting, and at least 1 hour per day of 
large muscle activity and 1 hour per day of structured leisure time 
activities, which does not include time spent watching television (88 
FR 68937). Activities must be increased to at least three hours on days 
when school is not in session.
    Psychological and emotional well-being are important components of 
the overall health and well-being of unaccompanied children, and 
therefore, consistent with existing policy and practice, ORR proposed 
in the NPRM that these needs must be met by standard programs. ORR 
proposed in the NPRM at Sec.  410.1302(c)(5) to require standard 
programs to provide counseling and mental health supports to 
unaccompanied children that includes at least one individual counseling 
session per week conducted by certified counseling staff with the 
specific objectives of reviewing the unaccompanied child's progress, 
establishing new short and long-term objectives, and addressing both 
the developmental and crisis-related needs of each unaccompanied child 
(88 FR 68937 through 68938). Group counseling sessions are another way 
that the psychological and emotional well-being of unaccompanied 
children can be supported while in ORR care. Therefore, ORR proposed in 
the NPRM to require under Sec.  410.1302(c)(6) that group counseling 
sessions are provided at least twice a week. These sessions can be 
informal and can take place with all unaccompanied children present, 
providing a time when new unaccompanied children are given the 
opportunity to get acquainted with the staff, other children, and the 
rules of the program. Group counseling sessions can provide an open 
forum where each unaccompanied child has an opportunity to speak and 
discuss what is on their minds and to resolve problems. Group 
counseling sessions can be informal and designed so that unaccompanied 
children do not feel pressured to discuss their private issues in front 
of other children. Daily program management may be discussed at group 
counseling sessions, allowing unaccompanied children to be part of the 
decision-making process regarding recreational and other program 
activities, for example. In addition, ORR noted that additional mental 
health and substance use disorder treatment services are provided to 
unaccompanied children based on their medical needs, including 
specialized care, as appropriate, and in person and virtual options, 
depending on what best fits the child's needs.
    ORR proposed in the NPRM at Sec.  410.1302(c)(7) to require that 
unaccompanied children receive acculturation and adaptation services 
that include information regarding the development of social and inter-
personal skills that contribute to those abilities necessary to live 
independently and responsibly (88 FR 68938). ORR believes these 
services are important to supporting the social development and meeting 
the cultural needs of unaccompanied children in standard programs.
    Establishing an admissions process that includes assessments that 
unaccompanied children should receive upon admission to a standard 
program helps ensure the immediate needs of unaccompanied children are 
met in a consistent way, that other needs are identified and can be 
supported while in ORR care, and that all unaccompanied children are 
provided a standardized orientation and information about their care in 
ORR custody. ORR therefore proposed to require at Sec.  
410.1302(c)(8)(i) of the NPRM that upon admission, standard programs 
must address unaccompanied children's immediate needs for food, 
hydration, and personal hygiene, including the provision of clean 
clothing and bedding (88 FR 68938). At Sec.  410.1302(c)(8)(ii), ORR 
proposed in the NPRM that standard programs must conduct an initial 
intakes assessment covering the biographic, family, migration, health 
history, substance use, and mental health history of the unaccompanied 
child. If the unaccompanied child's responses to questions during any 
examination or assessment indicate the possibility that the 
unaccompanied child may have been a victim of human trafficking or 
labor exploitation, the care provider facility must notify the ACF 
Office of Trafficking in Persons within twenty-four (24) hours. Care 
providers must also provide unaccompanied children with a comprehensive 
orientation in formats accessible to all children regarding program 
intent, services, rules (provided in writing and orally), expectations, 
the availability of legal assistance, information about U.S. 
immigration and employment/labor laws, and services from the Office of 
the

[[Page 34484]]

Ombuds that were proposed in Sec.  410.2002 in simple, non-technical 
terms and in a language and manner that the child understands, if 
possible, under Sec.  410.1302(c)(8)(iii) of the NPRM. In conjunction 
with services supporting visitation and contact with family members 
required under Sec.  410.1302(c)(10), ORR proposed that newly admitted 
unaccompanied children receive assistance with contacting family 
members, following ORR guidance and the standard program's internal 
safety procedures under proposed Sec.  410.1302(c)(8)(iv) of the NPRM. 
ORR noted that medical needs upon admission are required to be assessed 
comprehensively under Sec.  410.1307. Finally, in the NPRM, ORR noted 
that standard programs are required under 45 CFR 411.33 to provide 
orientation information related to sexual abuse and sexual harassment, 
and must follow 45 CFR part 411, subpart E, regarding assessment of an 
unaccompanied child's risk of sexual victimization and abusiveness.
    ORR believes the cultural, religious, and spiritual needs of 
unaccompanied children should be provided for while in ORR care. 
Therefore, at Sec.  410.1302(c)(9) of the NPRM ORR proposed to require 
that standard programs, whenever possible, provide access to religious 
services of an unaccompanied child's choice, celebrate culture-specific 
events and holidays, are culturally aware in daily activities as well 
as food menus, choice of clothing, and hygiene routines, and cover 
various cultures in educational services (88 FR 68938). ORR noted that 
it operates the UC Program in compliance with the requirements of the 
Religious Freedom Restoration Act and other applicable Federal 
conscience protections, as well as all other applicable Federal civil 
rights laws and applicable HHS regulations.\229\
    Under Sec.  410.1302(c)(10) of the NPRM, ORR proposed to require 
standard programs provide unaccompanied children with visitation and 
contact with family members (regardless of their immigration status), 
structured to encourage such visitation, such as offering visitation 
and contact at regular, scheduled intervals throughout the week (88 FR 
68938). As proposed in the NPRM, standard programs should provide 
unaccompanied children with at least 15 minutes of phone or video 
contact three times a week with parents and legal guardians, other 
family members, and caregivers located in the United States and abroad, 
in a private space that ensures confidentiality and at no cost to the 
unaccompanied child, parent, legal guardian, family member, or 
caregiver. ORR emphasized that this is the minimum amount of phone or 
video time that standard programs must provide to unaccompanied 
children and that standard programs may provide additional time over 
and above this requirement, like daily phone or video calls. Standard 
programs would also be required to respect an unaccompanied child's 
privacy during visitation while reasonably preventing unauthorized 
release of the child. ORR noted that standard programs should also 
encourage in-person visitation between unaccompanied children and their 
parents, legal guardians, family members, or caregivers (unless there 
is a documented reason to believe there is a safety concern) and have 
policies in place to ensure the safety and privacy of unaccompanied 
children and staff, such as an alternative public place for visits.
    To facilitate the safe and timely release of unaccompanied children 
to sponsors or their family, under Sec.  410.1302(c)(11) of the NPRM, 
ORR proposed to require standard programs to assist with family 
unification services designed to identify and verify relatives in the 
United States as well as in foreign countries and assistance in 
obtaining legal guardianship when necessary for release of the 
unaccompanied children.
    Under Sec.  410.1302(c)(12) of the NPRM, ORR proposed to require 
standard programs to provide unaccompanied children with information on 
legal services, including the availability of free legal assistance and 
notification that they may be represented by counsel at no expense to 
the government; the right to a removal hearing before an immigration 
judge; the ability to apply for asylum with USCIS in the first 
instance; and the ability to request voluntary departure in lieu of 
removal (88 FR 68939). These services are foundational to ensuring that 
unaccompanied children are aware of their legal rights and have access 
to legal resources.
    Finally, under Sec.  410.1302(c)(13) of the NPRM, ORR proposed to 
require standard programs provide information about U.S. child labor 
laws and permissible work opportunities in a manner that is sensitive 
to the age, culture, and native language of each unaccompanied child 
(88 FR 68939).
    Cultural competency among ORR standard programs is considered an 
important component of a successful program by ORR and under the FSA. 
Under Sec.  410.1302(d) of the NPRM, ORR proposed that standard 
programs would be required to deliver the services included in Sec.  
410.1302(c) in a manner that is sensitive to the age, culture, native 
language, and the complex needs of each unaccompanied child (88 FR 
68939).
    Finally, under Sec.  410.1302(e) of the NPRM, ORR proposed that 
standard programs would be required to develop a comprehensive and 
realistic individual service plan for each unaccompanied child in 
accordance with the child's needs as determined by the individualized 
needs assessment (88 FR 68939). Individual plans would be implemented 
and closely coordinated through an operative case management system. To 
ensure that service plans are addressing meaningful and appropriate 
goals in partnership with unaccompanied children, ORR proposed in the 
NPRM that service plans should identify individualized, person-centered 
goals with measurable outcomes and note steps or tasks to achieve the 
goals, be developed with input from the children, and be reviewed and 
updated at regular intervals. Under current practice, this is every 30 
days the child is in custody following the child's case review. 
Unaccompanied children aged 14 and older should be given a copy of the 
plan, and unaccompanied children under age 14 should be given a copy of 
the plan when appropriate for that particular child's development. As 
proposed in the NPRM, Sec.  410.1302(e) would also require that 
individual plans be in the child's native language or other mode of 
auxiliary aid or services and/or by the use of clear, easily understood 
language, using concise and concrete sentences and/or visual aids and 
checking for understanding where appropriate.
    As discussed in response to public comments received at Sec.  
410.1301 and ORR's revision to apply subpart D to secure facilities, 
ORR is revising Sec.  410.1302 to specify that ``standard programs and 
secure facilities'' shall deliver the minimum standards and services 
within this section. ORR is accordingly revising the section title of 
Sec.  410.1302 to ``Minimum standards applicable to standard programs 
and secure facilities.'' Further, for consistency, ORR is revising 
Sec.  410.1302(c)(10) to remove the reference to standard programs.
    Before proceeding to specific comments on Sec.  410.1302, ORR would 
like to discuss a key issue raised by commenters relating to this 
section, where ORR has made important revisions in response to these 
comments. Section 410.1001 replaces the term ``licensed program'' used 
in the FSA with the term ``standard program.'' The NPRM had specified 
that standard program means ``any program, agency, or organization that 
is licensed by an

[[Page 34485]]

appropriate State agency, or that meets other requirements specified by 
ORR if licensure is unavailable in the State to a program providing 
services to unaccompanied children, to provide residential, group, or 
transitional or long-term home care services for dependent children, 
including a program operating family or group homes, or facilities for 
special needs unaccompanied children.'' (88 FR 68982). As stated in the 
preamble to the NPRM, the proposed definition of ``standard program'' 
was broader in scope than the FSA definition of ``licensed placement'' 
to account for circumstances where State licensure is unavailable to 
ORR care provider facilities in a State because the facility cares for 
unaccompanied children (88 FR 68915 through 68916). Several commenters 
expressed concern that the proposed language ``or that meets other 
requirements specified by ORR'' was not sufficiently specific or clear 
and could lead to allowing programs to avoid licensure requirements 
even in a State where licensing is available. In response, ORR is 
revising its requirement under Sec.  410.1302(a) to make clear that if 
a standard program is in a State that does not license care provider 
facilities because they serve unaccompanied children, the standard 
program must still meet the State licensing requirements that would 
apply if the State allowed for licensure. Similarly, ORR is revising 
Sec.  410.1302(b) to remove references to other additional requirements 
specified by ORR if licensure is unavailable in their State to care 
provider facilities providing care and services to unaccompanied 
children. ORR notes that it has revised Sec.  410.1302 to require 
standard programs and secure facilities meet the requirements of that 
section but is not including secure facilities in the discussion here 
of State licensure because no State has ceased licensing secure 
facilities that care for or propose to care for unaccompanied children.
    The FSA requires placement of unaccompanied children in State-
licensed facilities, subject to certain exceptions, a goal that ORR has 
long shared.\230\ The FSA also requires ORR to make ``reasonable 
efforts'' to place unaccompanied children in ``those geographical areas 
where the majority of minors are apprehended, such as southern 
California, southeast Texas, southern Florida and the northeast 
corridor.'' \231\ For most of the years in which the UC Program has 
operated since the program came to ORR in 2003, there was no tension 
between these requirements. In fact, over the last two decades, ORR 
built a large share of its care provider facility network in Texas, 
Florida, and California, consistent with the FSA requirement that 
unaccompanied children be placed in areas where the majority of minors 
are apprehended. Today, Texas represents at least half of all UC 
Program bed capacity.
    On May 31, 2021, the Governor of the State of Texas issued a 
proclamation directing the Texas Health and Human Service Commission 
(HHSC) to amend its regulations to ``discontinue state licensing of any 
child-care facility in this state that shelters or detains 
[unaccompanied children] under a contract with the Federal 
government.'' \232\ Subsequently, HHSC exempted ORR care provider 
facilities from the State's licensing requirements.\233\ Four months 
later, the Governor of the State of Florida issued an Executive Order 
that directed the Florida Department of Children and Families (DCF) to 
de-license ORR care provider facilities.\234\ Accordingly, DCF then de-
licensed ORR's care provider facilities. These actions were historic 
and unforeseen; never have States not licensed child-care facilities 
simply because they serve migrant youth. Since then, ORR has 
significantly enhanced monitoring of care provider facilities in Texas 
and Florida and has required that care provider facilities in those 
States continue to abide by the State licensing standards. ORR, 
however, has not stopped placements in those States. As a practical 
matter, ORR cannot currently operate the UC Program without using care 
provider facilities in Texas and Florida.
    ORR also notes that on April 12, 2021, the Governor of South 
Carolina issued an Executive Order that ``prevent[s] placements of 
unaccompanied migrant children . . . into residential group care 
facilities or foster care facilities located in, and licensed by, the 
State of South Carolina.'' \235\ At the time, ORR did not operate any 
shelter facilities in South Carolina. ORR currently operates three 
transitional foster care facilities in South Carolina that remain 
licensed by the State.
    In 2021 when Texas and Florida de-licensed ORR care provider 
facilities, ORR was also facing a significant increase in referrals of 
unaccompanied children. Since 2021, annual referrals to ORR have been 
in the range of 120,000 or more.\236\ As a result, it is now impossible 
for ORR to accommodate 120,000 or more referred unaccompanied children 
each year while also limiting placements to licensed programs in States 
that agree to license ORR's care provider facilities.
    Shuttering facilities in Texas and Florida would result in the loss 
of the significant expertise that has been developed over decades in 
many care provider facilities in Texas and Florida. New facilities may 
not have staff that have worked with this population of children and 
new facilities may not have the same cultural competency that 
longstanding facilities in Texas and Florida offer. Moreover, the vast 
majority of unaccompanied children are apprehended at the Southwest 
border, usually along the Texas-Mexico border. Shuttering facilities in 
Texas, in particular, would lead to longer wait times for unaccompanied 
children in DHS custody because the children would need to be 
transported much longer distances. And in fiscal year 2023, nearly one-
quarter of all releases of unaccompanied children was to sponsors in 
Texas and Florida; \237\ ceasing to operate programs in those States 
would be enormously disruptive to efforts to promptly place children 
with their parents or other appropriate sponsors.
    Although ORR has not stopped placements in Texas and Florida, it 
continues to look for ways to expand its capacity in States other than 
Texas and Florida. However, ORR cannot maintain needed capacity to 
receive referrals of unaccompanied children and find shelter for them 
without continued reliance on Texas and Florida.
    In the meantime, ORR is committed to ensuring that the protections 
afforded through State licensing continue to be provided to 
unaccompanied children placed in ORR's care provider facilities in 
Texas and Florida. ORR is currently providing enhanced monitoring of 
its care provider facilities in Texas and Florida to ensure that they 
are in compliance with FSA Exhibit 1 and ORR's policies. Enhanced 
monitoring includes on-site visits and desk monitoring. In the final 
rule, ORR has committed to continuing this enhanced monitoring by 
requiring at new Sec.  410.1303(e) (as redesignated) that ORR will 
provide enhanced monitoring of standard programs in States that do not 
allow State-licensing of programs providing care and services to 
unaccompanied children, and of emergency or influx facilities.
    ORR also notes that under the terms and conditions of their Federal 
grants, unless waived by ORR, standard programs agree to obtain 
accreditation by a nationally recognized accreditation organization 
approved by ORR. Accreditation requires organizations to regularly 
demonstrate on an ongoing basis that their organization adheres to 
established best practice standards for

[[Page 34486]]

all levels of organizational operations. This includes governance and 
management, financial operations, risk management, performance and 
quality improvement, and policy. It also includes best practice 
standards for each type of service an organization provides and the 
staffing associated with that service (i.e., foster care, homes 
studies, staff/child ratios, caseload size, training, supervisory 
ratios). The organization completes an extensive initial ``self-study'' 
assessing itself against these best practice standards, and then the 
accrediting body reviews it, and conducts a week-long site visit using 
peer reviewers to assess true implementation of the standards 
themselves. For each renewal cycle, the organization updates its self-
assessment, assuring any updates to best practice standards are 
incorporated into their operations, and again undergoes a lengthy peer 
review site visit. Generally speaking, licensing standards are viewed 
as ``minimum basic standards'' and accreditation is a seal of 
excellence that indicates an organization is committed to implementing 
and sustaining the implementation of best practices in their field 
(i.e., child welfare, mental health, residential treatment, etc.). 
Accreditation organizations recognized by ORR include the Council on 
Accreditation (COA), the Joint Commission (TJC), the Commission on 
Accreditation of Rehabilitation Facilities (CARF), and the American 
Correctional Association (ACA). As an explicit requirement under 
standard programs' grants, ORR monitors for compliance with this 
requirement, pursuant to Sec.  410.1303; further, failure to maintain 
accreditation may subject standard programs to enforcement actions, 
including remedies for noncompliance as described at 45 CFR 75.371.
    The language in this final rule pertaining to ``standard'' programs 
is intended to reflect the substantially changed circumstances since 
the parties entered into the FSA. When the parties entered into the FSA 
in 1997, the number of unaccompanied children entering federal custody 
was less than 3,000, and the agreement contemplated the availability of 
State licensure at facilities serving unaccompanied children. As noted 
above, in recent years the number of referrals to ORR has been around 
120,000 a year, and it would be impossible to operate the program, at 
least for the foreseeable future, without programs in the States that 
now do not license facilities that serve unaccompanied children. 
Accordingly, ORR has adjusted by requiring programs in those States to 
continue to meet their State licensing standards and by substantially 
enhancing monitoring of facilities in those states. ORR continues to 
believe it would be preferable if all States continued to license 
facilities serving unaccompanied children, but ORR believes the actions 
it has taken are necessary adjustments to these changed circumstances.
    To be clear, under this final rule, standard programs must be 
State-licensed if State licensure is available in their State; or if 
State licensure is not available, standard programs must meet the 
State's licensing requirements. This requirement replaces the NPRM's 
reference to ``other requirements specified by ORR'' at Sec.  
410.1302(a) and ``other additional requirements'' at Sec.  410.1302(b).
    Comment: ORR received several comments that objected to its 
proposal to use the term ``standard program,'' as defined at proposed 
Sec.  410.1001, instead of ``licensed program,'' as defined in the FSA. 
In particular, some commenters asserted that State licensure is a 
material requirement of the FSA and that the proposed rule did not 
fully incorporate the FSA's State-licensing requirement by allowing 
care providers to ``meet[ ] other requirements specified by ORR if 
licensure is unavailable in the State.'' These same commenters asserted 
that the final rule must reintroduce a State licensing requirement in 
every provision where the FSA requires State-licensed placement. 
Commenters also stated that proposed Sec.  410.1302(a) and Sec.  
410.1302(b) appeared to allow programs to avoid State licensing 
requirements, even in States that have a licensing framework available, 
which is inconsistent with the State licensing requirement of the FSA. 
Two commenters expressed concern that removing the State licensure 
requirement would relax the minimum standards for the care and 
placement of unaccompanied children.
    Response: ORR refers readers to the previous discussion of licensed 
placements in the preamble. As explained, ORR must have a framework 
that allows for placements in States that do not license facilities 
because they serve unaccompanied children. ORR notes that by codifying 
the term ``standard program,'' instead of ``licensed program'' as used 
in the FSA, ORR does not intend for, and the final rule does not 
permit, care provider facilities to avoid State licensure requirements. 
ORR reiterates that in response to the comments received, ORR is 
revising its requirement under Sec.  410.1302(a) to make clear that if 
a standard program is in a State that does not license care provider 
facilities because they serve unaccompanied children, the standard 
program must still meet the State licensing requirements that would 
apply if the State allowed for licensure.
    Comment: A group of commenters recommended that ORR revise Sec.  
410.1302(b) to read ``(b) Comply with all applicable State child 
welfare laws, regulations, and standards, all State and local building, 
fire, health, and safety codes, and other requirements specified by ORR 
if licensure is unavailable in their State to care provider facilities 
providing services to unaccompanied children.'' Several other 
commenters expressed concern that proposed Sec.  410.1302(b) did not 
require standard programs to follow State child welfare laws and State 
and local building, fire, health, and safety codes. The same commenters 
also expressed concern that the proposed rule included several Federal 
preemption provisions, including in proposed Sec.  410.1302(b), and 
these provisions could be interpreted broadly to give ORR discretion to 
ignore State licensing requirements if the agency perceives a conflict 
with State law.
    Response: ORR has revised Sec.  410.1302(b) to clarify that all 
standard programs and secure facilities must comply with child welfare 
laws and regulations (such as mandatory reporting of abuse) and all 
State and local building, fire, health, and safety codes. However, ORR 
is not adding reference to ``standards'' in this final rule because it 
believes ``standards'' are included within its references to ``laws and 
regulations'' as well as ``codes.''
    The intent of the language commenters referred to as a Federal 
preemption provision had been intended to convey that if a State took 
action to reduce or curtail protections of unaccompanied children under 
Federal law, ORR would take needed actions to ensure that Federal 
protections were preserved. However, in reviewing comments, it became 
clear to ORR that that intent had not been effectively conveyed, and in 
the interest of clarity, ORR has also removed the Federal preemption 
statement from the final rule at Sec.  410.1302(b).
    Comment: Several commenters stated that because the proposed rule 
did not include a preference for State-licensed placements over 
unlicensed placements, Sec.  410.1103(e) may be read as prioritizing 
unlicensed placements in Texas over licensed placements in other 
geographic areas, which undermines the purpose of paragraph 6 of the 
FSA. Another commenter noted that facilities in States

[[Page 34487]]

without a licensing requirement could make more competitive bids due to 
potentially lower operating expenses, lower-cost environments, and the 
ability to provide more beds. The commenter expressed concern that ORR 
might also expand existing programs in States that no longer license 
ORR care provider facilities for those same reasons. One commenter also 
highlighted that facilities may opt-out of State licensure because of 
perceived burdens, additional requirements, or higher operating costs. 
This commenter was also concerned that ORR would treat State licensure 
and the ``other standards'' described in the NPRM as functionally 
equivalent, and that this construction would allow latitude for care 
provider facilities to meet the lowest of the available standards, 
including unlicensed care provider facilities in States that do offer 
licensure to facilities caring for unaccompanied children. Further, 
several commenters stated that requiring State licensure, in addition 
to FSA compliance, would ensure that State and local licensing agencies 
are able to monitor ORR facilities.
    Response: ORR appreciates the commenters' concerns and reiterates 
its commitment to ensuring that all standard programs comply with State 
licensing requirements, as required in Sec. Sec.  410.1302(a) and (b), 
whether or not specific States will license programs that serve 
unaccompanied children. Thus, all standard programs are similarly 
situated in that they are required under the final rule to comply with 
State licensing requirements. Also, consistent with paragraph 6 of the 
FSA, ORR has revised Sec.  410.1103(e) to require ORR to ``make 
reasonable efforts to provide licensed placements in those geographical 
areas where DHS encounters the majority of unaccompanied children.''
    Moreover, ORR is providing enhanced monitoring of its care provider 
facilities in Texas and Florida to ensure that they are in compliance 
with ORR's policies. In lieu of its regular monitoring of each facility 
every two years, ORR is currently providing enhanced monitoring of its 
care provider facilities in Texas and Florida to ensure that they are 
in compliance with FSA Exhibit 1 and ORR's policies. Enhanced 
monitoring may include on-site visits and desk monitoring. In the final 
rule, ORR has committed to continuing this additional monitoring by 
requiring at Sec.  410.1303(e) (as redesignated) that ORR will provide 
enhanced monitoring of standard programs in States that do not allow 
State-licensing of programs providing care and services to 
unaccompanied children, and of emergency or influx facilities. ORR 
notes that this enhanced monitoring makes it more expensive and 
resource-intensive for ORR to operate programs in Texas and Florida, 
not less.
    Comment: Multiple commenters recommended that ORR enhance its care 
provider staff training requirements to require training that ensures 
services are provided to unaccompanied children in a child-friendly, 
trauma-informed way. Several commenters also recommended that staff who 
conduct individualized assessments under Sec.  410.1302(c)(2) be 
trained in trauma-informed practices. One commenter recommended that 
those staff also be trained professionals in medical and mental 
healthcare so that they can make referrals for appropriate services. 
Finally, one commenter suggested that ORR expressly require programs to 
provide services in a way that recognizes a child's culture and 
identity.
    Response: Section 410.1302(d) requires that standard programs and 
secure facilities provide services in a way that is sensitive to the 
unaccompanied child's age, culture, native or preferred language, and 
their complex needs. Also, ORR is requiring at Sec.  410.1305(a) that 
standard programs, restrictive placements, and post-release service 
providers provide training to staff, contractors, and volunteers that 
is tailored to the unique needs, attributes, and gender of 
unaccompanied children. The training also must be responsive to the 
challenges faced by staff and unaccompanied children. ORR agrees with 
commenters that staff, contractors, and volunteers should be trained in 
trauma-informed practices and intends for the training requirement to 
require training to provide services and individualized assessments in 
a trauma-informed manner. Additionally, ORR expects that training 
topics will include how to provide services in a child-friendly way and 
how to effectively communicate with unaccompanied children. ORR notes 
that it included a training requirement for standard programs and 
restrictive placements to ensure that staff are appropriately trained 
on behavior management strategies, including de-escalation techniques, 
as a proposed requirement in the preamble discussion of Sec.  410.1304 
(88 FR 68942) and Sec.  410.1305(a) (88 FR 68943), but the training 
requirement was omitted in error in the regulation text of Sec.  
410.1305(a). Therefore, ORR is finalizing the requirement under Sec.  
410.1305(a) that ``Standard programs and restrictive placements shall 
ensure that staff are appropriately trained on its behavior management 
strategies, including de-escalation techniques, as established pursuant 
to Sec.  410.1304.'' ORR is not, however, specifying other training 
topics in the final rule but may do so in subregulatory guidance, which 
will allow ORR to make more frequent, iterative updates to its training 
requirements in order to ensure that training remains up to date on 
best practices and is responsive to changing needs of unaccompanied 
children in ORR custody.
    Comment: Several commenters recommended that ORR provide a minimum 
standard requirement that recognizes an unaccompanied child's 
reasonable right to privacy and autonomy. Several commenters asserted 
that proposed Sec.  410.1302(c) lacks a guarantee of a reasonable right 
to privacy as required by the FSA. They pointed out that Exhibit 1 of 
the FSA includes ``the right to: (a) wear his or her own clothes, when 
available; (b) retain a private space in the residential facility, 
group or foster home for the storage of personal belongings; (c) talk 
privately on the phone, as permitted by the house rules and 
regulations; (d) visit privately with guests, as permitted by the house 
rules and regulations; and (e) receive and send uncensored mail unless 
there is a reasonable belief that the mail contains contraband.'' They 
noted that proposed rule Sec.  410.1801(b)(12) included this 
requirement for children placed in EIFs, but proposed rule Sec.  
410.1302(c) did not include this requirement for standard programs.
    Response: ORR agrees with the commenters that the FSA requires that 
unaccompanied children have a reasonable right to privacy, and ORR 
agrees that ensuring a reasonable right to privacy is appropriate as a 
matter of policy. ORR is therefore revising the final rule, consistent 
with Exhibit 1 of the FSA, to additionally require at Sec.  
410.1302(c)(14) that unaccompanied children must have a reasonable 
right to privacy, which includes the right to wear the child's own 
clothes when available, retain a private space in the residential 
facility, group or foster home for the storage of personal belongings, 
talk privately on the phone and visit privately with guests, as 
permitted by the house rules and regulations, and receive and send 
uncensored mail unless there is a reasonable belief that the mail 
contains contraband.
    Comment: Several commenters recommended further ways to strengthen 
the minimum services required under proposed Sec.  410.1302(c). Several 
commenters recommended that ORR incorporate minimum physical

[[Page 34488]]

space requirements as applicable to standard programs. Several 
commenters expressed support for requiring that unaccompanied children 
receive weekly individual counseling sessions. One commenter 
recommended that care provider facilities should be required to ensure 
all unaccompanied children have access to mental health services. One 
commenter supported the proposed requirement that upon admission, 
standard programs must address unaccompanied children's immediate needs 
for food, hydration, and personal hygiene, and recommended that ORR 
specify that this includes feminine hygiene products.
    Response: As an initial matter, except as to the licensing 
requirements previously discussed, the final rule fully incorporates 
the minimum standards of care and services required in Exhibit 1 of the 
FSA. ORR has also exceeded those minimum standards. For example, ORR 
requires at Sec.  410.1302(c) that unaccompanied children must be 
provided with personal grooming and hygiene items, access to toilets 
and sinks, adequate temperature control and ventilation, and adequate 
supervision. Additionally, the final rule requires that food be of 
adequate variety, quality, and in sufficient quantity to supply the 
nutrients needed for proper growth and development and that water be 
always available to each unaccompanied child. Related to physical space 
requirements, ORR agrees that it is important that children have access 
to outdoor and indoor spaces that allow them to exercise, socialize, 
and move freely. ORR notes that the requirement of weekly counseling is 
a minimum requirement, and that group counseling is also available to 
support the needs of unaccompanied children. Further, Sec.  410.1307(a) 
requires that unaccompanied children have access to appropriate routine 
medical care, which includes access to mental healthcare. And under 
Sec.  410.1307(b)(1), ORR requires standard programs and restrictive 
placements to establish a network of licensed healthcare providers, 
which must include mental health practitioners. While ORR notes that 
the requirement to provide for immediate personal hygiene needs 
includes the provision of feminine hygiene products, ORR is revising 
Sec.  410.1302(c)(1) to explicitly state these items and other items as 
follows: ``. . . personal grooming and hygiene items such as soap, 
toothpaste and toothbrushes, floss, towels, feminine care items, and 
other similar items.''
    Comment: Many commenters proposed ways that ORR could enhance its 
requirements related to how unaccompanied children communicate with 
their families. One commenter recommended that ORR require standard 
programs to provide unaccompanied children with an individualized case 
management plan that includes family finding and outreach services. 
Several commenters identified that the proposed phone call requirements 
in Sec.  410.1302(c)(10) have been superseded by policy changes to 
require daily minimum 10-minute calls Monday through Friday (or 50 
minutes of phone time throughout the weekdays), as well as 45-minute 
calls on weekends, holidays, and the child's birthday, and additional 
calls as needed in exceptional circumstances. One commenter supported 
the proposed requirement that unaccompanied children be provided at 
least 15 minutes of phone or video contact three times a week with 
family members, and that this should be a minimum requirement, as daily 
contact is ideal. One commenter expressed support for the proposed 
rule's specific mention of in-person visitation as well as the 
provision of a private space for communications. A few commenters 
recommended that ORR codify visitation and communication standards that 
apply to unaccompanied children who have parents, caregivers, or family 
members in Federal custody. Finally, many commenters noted that the 
ability to provide unaccompanied children with video contact may be 
limited for security reasons.
    Response: As an initial matter, ORR encourages and supports contact 
between unaccompanied children and their families. ORR believes that 
unaccompanied children should be assisted as soon as possible upon 
their admission into ORR custody with contacting their family members 
and has included in Sec.  410.1302(c)(8)(iv) a requirement that 
unaccompanied children be assisted with contacting family members as 
part of the admissions process. Also, ORR appreciates the commenters' 
concerns that its current policy as reflected in the ORR Policy Guide 
provides for more opportunities for phone calls than was specified in 
the proposed regulation. ORR emphasizes that the requirements under 
Sec.  410.1302(c)(10) are the minimum requirements that care provider 
facilities must meet and that standard programs and secure facilities 
may provide additional phone call time over and above this requirement, 
such as daily phone or video calls or calls for a longer length of 
time. ORR intends to continue to apply its subregulatory guidance to 
require additional phone call time above the requirements of this part. 
Also, ORR intends for Sec.  410.1302(c)(10) to apply to calls with 
family members who may be in Federal custody. Finally, ORR notes that 
care provider facilities may provide phone calls if video calls are not 
feasible due to security concerns.
    Comment: One commenter expressed concern that foster care 
facilities, or ``long-term home care'' facilities as referenced in this 
final rule, may not be able to meet the standards for standard 
programs.
    Response: ORR notes that the standards under this section are 
consistent with its existing policies and procedures that are required 
for long-term home care facilities, such that meeting the requirements 
under this section will not pose an additional burden for care provider 
facilities. ORR believes that all unaccompanied children in standard 
programs and secure facilities should receive the same minimum services 
and at least a specified level of quality of those services, and for 
that reason is establishing the same minimum standards for all standard 
programs and secure facilities.
    Comment: Some commenters expressed concern that the NPRM 
contemplated placement of unaccompanied children in OON placements, 
which were not defined as meeting either State licensing or ``standard 
program'' requirements. One commenter recommended that the final rule 
must provide that any OON placement shall be State-licensed and meet 
the other requirements for licensed facilities outlined in the FSA, 
including the minimum standards in Exhibit 1. The same commenter 
recommended that the final rule state that a child may be placed in an 
OON placement only if it is in the least restrictive placement 
appropriate, consistent with paragraph 11 of the FSA, and that any 
secure OON placement must satisfy the secure placement criteria in 
paragraph 21 of the FSA. One commenter recommended requiring that OON 
facilities be State-licensed and comply with FSA minimum standards 
requirements.
    Response: As noted by the commenters, ORR is finalizing, at Sec.  
410.1001, a definition of care provider facility that does not include 
OON placements. ORR refers readers to the discussion in response to 
comments at Sec.  410.1001. ORR further notes that under existing 
policies, ORR thoroughly vets OON placements prior to placing 
unaccompanied children at such placements. Moreover, the final rule 
expressly provides that OON placements must be State licensed

[[Page 34489]]

under Sec.  410.1001. As part of its vetting of OON placements, ORR 
conducts monitoring of OON placements to ensure they are in good 
standing with State licensing authorities and are complying with all 
applicable State child welfare laws and regulations and all State and 
local building, fire, health, and safety codes.
    Comment: Some commenters expressed concern that under the NPRM ORR 
proposed to permit unlicensed placements of unaccompanied children 
without safeguards established in the FSA at paragraph 12A (requiring 
that ``minors shall be separated from delinquent offenders''). 
Specifically, these commenters recommended that the final rule specify 
that until an unaccompanied child is placed in a program licensed by 
the State to provide services for dependent children, the child ``shall 
be separated from delinquent offenders,'' consistent with paragraph 12A 
of the FSA, except as provided in paragraph 21 of the FSA.
    Response: ORR refers commenters to ORR's previous response to 
similar comments at Sec.  410.1103, as well as its discussion of 
revisions made to the final rule at Sec.  410.1102.
    Comment: Many commenters recommended that ORR explicitly protect 
LGBTQI+ unaccompanied children from discriminatory treatment and abuse 
as a minimum standard, noting that such an obligation would align with 
current ORR policies. One commenter recommended increasing safeguards 
by requiring standard programs and secure facilities to consider 
factors relating to gender and sexual orientation under Sec.  
410.1302(c)(2). A number of commenters recommended that ORR require 
that unaccompanied children be provided with clothing that reflects a 
child's gender identity and hygiene items that reflect their identity 
and needs.
    Response: ORR believes that protecting unaccompanied children from 
discriminatory treatment is important. ORR's existing policies for the 
care of LGBTQI+ unaccompanied children require that all children in ORR 
care are entitled to human rights protections and freedom from 
discrimination and abuse.\238\ For example, care providers must ensure 
that children who identify as LGBTQI+ are fairly treated and served 
during their time in ORR custody. ORR's existing policy also 
establishes zero tolerance for discrimination or harassment of all 
children, including LGBTQI+ children, a prohibition on segregating or 
isolating children on the basis of their sexual orientation or gender 
identity, and ensures confidentiality of personal information unless 
disclosure is necessary for medical or mental health treatment or the 
child requests it to be shared. ORR notes that, as set forth at Sec.  
410.1302(c)(2)(iii), each unaccompanied child must receive an 
assessment that includes identification of individualized needs, which 
may include needs based on the child's sexual orientation or gender 
identity. ORR notes that while some children affirmatively identify as 
LGBTQI+ and readily share this information unprompted or when asked, 
other children may not be comfortable providing this information as a 
part of the individualized needs assessment or otherwise. As such, ORR 
will continue to consider how to best identify LGBTQI+ children so that 
they may be cared for fairly and with sensitivity. Further, section 
410.1302(c)(8)(i) of this final rule requires that ORR establish an 
admissions process that meets each unaccompanied child's immediate 
needs for food, hydration, and personal hygiene, including clean 
clothing and bedding, and ORR has existing policies that require care 
provider facilities to provide unaccompanied children with clothing of 
their choice.
    Comment: One commenter recommended that ORR add a provision to 
Sec.  410.1302(c), requiring ORR to conduct post-18 planning, to 
include sufficient lead time to prevent any child 17 or older from 
aging out of ORR custody without a concrete and actionable post-18 plan 
that takes into account the child's resources and needs.
    Response: As noted previously, ORR's existing policies already 
include requirements regarding post-18 planning, and ORR believes these 
policies are sufficient to meet the needs of children who ``age out'' 
of ORR care. Through the post-18 planning process, care provider 
facilities explore other planning options for the future of 
unaccompanied children if release to a sponsor is not an option. ORR 
declines to further amend the final rule in response to these comments 
at this time and will take them into consideration as part of its 
continuous evaluation of its existing policies and potential future 
updates to this part. ORR notes that addressing these concerns through 
its policies in particular allows ORR to make more frequent, iterative 
updates in keeping with best practices, to communicate its requirements 
in greater detail, and to be responsive to the needs of unaccompanied 
children and care provider facilities.
    Comment: One commenter recommended that group counseling under 
Sec.  410.1302(c)(6) include language and supports appropriate for 
LGBTQI+ unaccompanied children, and that counseling groups specifically 
for LGBTQI+ children should be available and implemented by trained 
staff. Another commenter stated that unaccompanied children should have 
access to age-appropriate professional counseling services that 
respects Catholic Church teachings.
    Response: ORR believes that care providers should affirmatively 
support LGBTQI+ unaccompanied children in their placement settings, and 
notes that existing policies require that LGBTQI+ unaccompanied 
children be treated with dignity and respect, receive recognition of 
their sexual orientation and gender identity, not be discriminated 
against or harassed based on actual or perceived sexual orientation or 
gender identity, and be cared for in an inclusive and respectful 
environment.\239\
    With respect to the second comment, ORR believes that counseling 
services should respect the religious and cultural beliefs of 
unaccompanied children. For example, it is ORR's existing policy that 
if an unaccompanied child requests religious information or other 
religious items, such as religious texts, books, or clothing, the care 
provider must provide the applicable materials in the unaccompanied 
child's native language, as long as the request is reasonable. 
Unaccompanied children also have access to religious services whenever 
possible under Sec.  410.1302(c)(9), and ORR notes that this can 
include religious counseling.
    Comment: One commenter recommended that ORR expressly include the 
child's religious and cultural background in the lists of factors for 
conducting an individualized needs assessment under proposed Sec.  
410.1302(c)(2) in order to ensure that all appropriate measures are 
taken to preserve the child's culture and identity. One commenter 
recommended that ORR include language to ensure that unaccompanied 
children have access to ``culturally responsive and religiously 
appropriate'' meals and freely available snacks to ensure that 
unaccompanied children are receiving adequate nutrition. One commenter 
recommended that ORR add language guaranteeing that unaccompanied 
children have better access to laundry and clean clothing and are 
provided with clothing that is sensitive to the unaccompanied child's 
cultural and religious identity. One commenter recommended that ORR 
include access to cultural and religious hygiene needs as a requirement 
under Sec.  410.1302(c)(1).
    Response: ORR agrees it is important to respect unaccompanied 
children's

[[Page 34490]]

religious and cultural identities and practices. For that reason, ORR 
proposed under Sec.  410.1302(c)(2) that each unaccompanied child 
receive an individualized needs assessment that includes identification 
and history of the unaccompanied child and their family, the 
identification of any individualized needs the unaccompanied child may 
have, and religious preferences and practices, among other requirements 
(88 FR 68937). ORR is finalizing clarifying edits to Sec.  
410.1302(c)(2)(v) to state ``Identification of whether the child is an 
Indigenous language speaker'' instead of ``whether an Indigenous 
language speaker.'' ORR agrees that it is important that unaccompanied 
children receive adequate nutrition, and therefore proposed to require 
that food be of adequate variety, quality, and in sufficient quantity 
to supply the nutrients needed for proper growth and development 
according to the USDA Dietary Guidelines for Americans, and appropriate 
for the child and activity level, and that drinking water is always 
available to each unaccompanied child. ORR notes that its existing 
policies further require that care provider facilities must establish 
procedures to accommodate dietary restrictions, food allergies, health 
issues, and religious or spiritual requirements, and that part 410 is 
not intended to govern or describe the entire UC Program. ORR notes 
that Sec.  410.1302(c)(8)(i) of this final rule provides as a minimum 
standard an admissions process including meeting unaccompanied 
children's needs to, among other things, ensure that children have 
appropriate clean clothing and bedding. Further, at Sec.  
410.1302(c)(9), the final rule requires standard programs and secure 
facilities to practice cultural awareness in, among other areas, choice 
of clothing. ORR agrees that children should be provided with personal 
hygiene and grooming items that reflect their needs and identities, 
including their religious needs and identities. Under existing 
policies, ORR requires care provider facilities to provide religious or 
spiritual items in the child's native or preferred language, as long as 
the request for items in the particular language is reasonable, as 
further discussed in the response to public comment at Sec.  
410.1306(e).
    Comment: One commenter expressed concern that proposed Sec.  
410.1302(c)(9) is not sufficiently responsive to meeting unaccompanied 
children's religious and cultural needs, recommending that ORR delete 
``Whenever possible'' from proposed Sec.  410.1302(c)(9) to ensure that 
unaccompanied children have access to individualized religious and 
cultural services.
    Response: ORR notes that the requirement to provide religious and 
cultural services of a child's choice ``whenever possible'' is 
consistent with the requirements under the FSA at Exhibit 1 and ORR's 
existing practice in the Policy Guide. Under existing policies, ORR 
requires care provider facilities to provide opportunities for 
unaccompanied children to observe and practice their spiritual or 
religious beliefs, and to comply with any requested religious or 
spiritual items as long as the request is reasonable. ORR encourages 
care provider facilities to proactively create opportunities to support 
children's religious and cultural needs, to provide access to religious 
services, and to provide transportation to outside places of worship or 
specific items or information if the requests are reasonable.
    Comment: One commenter expressed concern around the conditions of 
care provider facilities and their ability to provide children with 
basic services such as bathrooms, recommending that ORR inspect 
facilities to ensure sufficient access to clean bathrooms and clean 
running hot/cold water.
    Response: ORR thanks the commenter for their recommendation and is 
making edits to clarify, consistent with ORR's original intent, that 
Sec.  410.1302(c)(1) includes that access to showers must be provided, 
in addition to toilets and sinks as proposed in the NPRM, and requires 
that care provider facilities maintain safe and sanitary conditions 
that are consistent with ORR's concern for the particular vulnerability 
of children. ORR is also requiring at Sec.  410.1302(c)(1), among other 
things, that care provider facilities must provide suitable living 
accommodations and provide drinking water that is always available. As 
also clarified in this section, all standard programs and secure 
facilities must meet State licensing requirements as well as all local 
building, fire, health, and safety codes.
    Comment: Many commenters recommended that ORR list the specific 
initial intake forms, or otherwise include language that ORR will 
develop specific policies and procedures based on this rule. One 
commenter recommended that self-identification for Indigenous peoples 
should be considered in intake forms.
    Response: ORR has opted to not provide specific descriptions of 
forms in these regulations because the forms and their contents, will 
necessarily change over time to be responsive and adaptive to the 
evolving needs of the UC Program. ORR thanks the commenter for the 
recommendation related to the self-identification of Indigenous peoples 
on intake forms and will take this feedback into consideration as it 
continues to update its forms.
    Comment: Many commenters expressed the view that the proposed 
educational services do not adequately prioritize the skills that 
unaccompanied children will need following their release from ORR care 
or to integrate into schools in the United States. Many commenters 
recommended that educational instruction for children with extremely 
short lengths of stay be primarily focused on acculturation, 
psychosocial education, self-regulation techniques, and beginning 
language learning, with a secondary focus on the standard academic 
subjects. For example, they recommended that education focus not on 
basic academic competencies or subject matter education, but rather on 
intensive English language immersion to help prepare unaccompanied 
children for their transition to their community school after release 
and on other forms of learning and healthy routines that would prepare 
them for release given the average short stay in ORR custody. 
Commenters also suggested a number of subjects that should be covered 
in ORR-provided education, as well as resources including books in 
preferred languages and the ability to earn transferable academic 
credits.
    Many commenters recommended that ORR strengthen its standard of 
care to, at a minimum, meet the current standards provided to 
unaccompanied children in ORR care, noting that the ORR Policy Guide 
requires a minimum of six hours of structured education, Monday through 
Friday. Many commenters recommended that ORR should not limit education 
to Monday through Friday because this limits educational programming 
for short stay unaccompanied children.
    One commenter supported the provision of educational services to 
the extent that such educational services aligned with international 
standards under the Convention on the Rights of the Child. However, the 
commenter expressed concern that proposed educational services do not 
extend to secure facilities. Additionally, the commenter noted that the 
proposed rule provides a much narrower description of the education 
services that standard programs must provide to unaccompanied children 
than what international standards require.
    Response: ORR expects care provider facilities to tailor their 
education offerings to meet the educational and

[[Page 34491]]

developmental needs of unaccompanied children to ensure they are 
receiving appropriate social, emotional and academic supports and 
services. Further, ORR believes that acculturation skills and other 
life skills are necessary for unaccompanied children to prepare them 
for release to a sponsor, and as such, is finalizing the rule to state 
that educational services are required to take place in a structured 
classroom setting, Monday through Friday, and should concentrate on the 
development of basic academic competencies and on English Language 
Training (ELT), as well as acculturation and life skills development. 
The educational services must include instruction and education and 
other reading materials in such languages as needed. Basic academic 
areas may include such subjects as science, social studies, math, 
reading, writing, and physical education.
    Comment: A number of commenters expressed support for adaptation of 
educational services to a child's disability and requested that the 
final rule include explicit language to ensure that unaccompanied 
children with disabilities receive program modifications, auxiliary 
aids, and services and that care provider facilities must communicate 
as effectively with children with disabilities as with children without 
disabilities to ensure they have an equal opportunity to engage in the 
program. The commenters recommended that needs for educational 
modifications should be documented in the child's individual service 
plan (ISP). The commenter also recommended referencing the Department 
of Education's section 504 regulations for requirements for educational 
programs.
    Response: Under Sec.  410.1311(c), as revised in this final rule, 
ORR shall provide reasonable modifications to the UC Program, including 
the provision of services, equipment, and treatment, so that an 
unaccompanied child with one or more disabilities can have equal access 
to the UC Program in the most integrated setting appropriate to their 
needs, as is consistent with section 504 and HHS implementing 
regulations at 45 CFR part 85. ORR notes that it is not, however, 
required to take any action that it can demonstrate would fundamentally 
alter the nature of a program or activity. ORR is further requiring 
that any program modifications be documented in the child's case file 
under Sec.  410.1311(d).
    Comment: One commenter expressed support for the proposal to 
require facilities to provide recreation services to unaccompanied 
children because it provides them with learning, exercise, and 
socialization. Additionally, the commenter noted that these activities 
provide an important outlet and routine for children to occupy 
themselves, and help manage their anxiety.
    Response: ORR agrees that recreation and outdoor activities are 
important to children's development, and thanks the commenter for their 
support.
    Comment: One commenter expressed concern that group counseling 
sessions proposed under Sec.  410.1302(c)(6) are not sufficient to meet 
the needs of unaccompanied children in ORR care, recommending that ORR 
consider factors such as the size of the group and the age ranges in 
the group to ensure that the forum is appropriate for group counseling 
sessions.
    Response: ORR notes that this standard is consistent with FSA 
Exhibit 1 minimum standards. Further, as also consistent with FSA 
Exhibit 1, ORR is finalizing the provision of weekly individual 
counseling, under Sec.  410.1302(c)(5). Further, under Sec.  
410.1307(b), as finalized, ORR must ensure unaccompanied children have 
access to appropriate routine medical and dental care, including 
addressing the mental health needs of unaccompanied children.
    Comment: One commenter recommended that the requirement at Sec.  
410.1302(c)(8)(iii) of the NPRM requiring that the comprehensive 
orientation presentation given to unaccompanied children including 
information about the Ombuds be made mandatory for all programs, and 
not limited to those meeting the definition of ``standard program.''
    Response: ORR notes that ORR is expanding the applicability of 
410.1302(c)(8)(iii) to secure facilities and that this requirement is 
included at Sec.  410.1800(b)(9) for EIFs.
    Comment: A few commenters requested clarification regarding whether 
Sec.  410.1302(c)(10) as proposed in the NPRM applies to EIFs.
    Response: Section 410.1302(c)(10) as finalized is applicable to 
standard programs and secure facilities. Requirements for EIFs are in 
subpart I, and ORR refers comments to that section for further 
discussion on requirements ORR is finalizing.
    Comment: Many commenters recommended that Sec.  410.1302(c)(13) 
provide information to unaccompanied children regarding the purposes of 
the Legal Services Provider, and their scope of work and authority, and 
focus on providing information on practical areas such as the 
employment approval process, permissible and prohibited work, human 
trafficking awareness, and how to remain safe when engaging in 
employment. Many commenters expressed concern that ORR may 
miscommunicate information on child labor laws and work opportunities 
and therefore requested examples of how ORR will convey this 
information.
    Response: ORR agrees that information related to the scope of LSPs, 
and practical information relating to employment and labor laws are 
important for unaccompanied children. ORR is engaging in a partnership 
with the Department of Labor to effectively provide communications, 
such as Know Your Rights videos and information, to unaccompanied 
children and their sponsors.\240\
    Comment: Many commenters expressed support for the proposed 
requirement that individual service plans for each unaccompanied child 
be developed under Sec.  410.1302(e).
    Response: ORR thanks the commenter for their comment.
    Comment: Several commenters recommended the final rule include 
specific provisions for individual service plans and section 504 
service plans for unaccompanied children with disabilities. This 
includes identification of disability-related needs, and a description 
of services, supports, and modifications the child will receive 
including a plan for release. These commenters stated that ISPs should 
also include services for children with mental health disabilities. 
Commenters recommended that the child should be included in the 
development of their ISP along with others knowledgeable about the 
child, such as the unaccompanied child's parent/legal guardian, child 
advocate, LSP, and treating professionals. Commenters recommended that 
the final rule require, consistent with the Lucas R. settlement 
agreement regarding disabilities, that the service plan of an 
unaccompanied child with disabilities be reviewed every six months or 
within 30 days of any of the following: (a) a transfer to a more 
restrictive placement; (b) psychiatric hospitalization of the 
unaccompanied child (unless the plan has already been reviewed within a 
3-month period); or (c) upon the recommendation of a licensed medical 
or mental health provider, including the unaccompanied child's 
clinician. Commenters also recommended that, if an unaccompanied child 
has one or more disabilities, the unaccompanied child's individual 
service plan should include any triggers of the unaccompanied child's 
disability-related behaviors and identify individualized responses 
staff should attempt to de-escalate a situation. Commenters further 
recommended that

[[Page 34492]]

if an unaccompanied child with disabilities exhibits persistent 
behaviors that affect their safety or that of others, this should 
trigger a re-evaluation of their individual service plan by the same 
group of knowledgeable persons that developed the plan. The commenters 
requested that a pending service plan not delay the release of a child. 
With regard to changes in placement to more segregated settings, the 
commenter requested that a new assessment and review of the ISP take 
place before placement changes when possible.
    Response: Consistent with the discussion of the Lucas R. litigation 
above at section III.B.4, ORR is not incorporating in this rule all 
aspects of the disability settlement agreement. However, ORR will be 
assessing implementation of the relevant portions of the agreement, and 
will evaluate future policymaking in this area, which may be informed 
by the anticipated year-long comprehensive disability needs assessment 
that ORR will be undertaking in collaboration with subject matter 
experts, and ORR's development of a disability plan.
    Comment: One commenter recommended that care provider facilities 
provide the ISP in the unaccompanied child's primary language. The 
commenter also recommended that given the complexity of ISPs, such 
documents should be applied to unaccompanied children in restrictive or 
longer-term placements, not standard or EIFs placements.
    Response: ORR agrees that if the child's native language is not 
their preferred language, then the ISP should be provided in the 
preferred language as this is consistent with language access 
requirements under Sec.  410.1306. ORR is therefore, in this final 
rule, requiring that the ISP be provided in the child's native or 
preferred language. Consistent with this, ORR is finalizing this change 
to ``native or preferred language'' throughout Sec.  410.1302 
(specifically at Sec.  410.1302(d) and Sec.  410.1302(c)(13)), rather 
than ``native language'' as ORR had proposed. ORR also emphasizes that 
the finalized requirements under Sec.  410.1302(e) pertain to standard 
programs and secure facilities, and that ORR's existing requirement is 
that all care provider facilities provide ISPs for each child in their 
care. ORR did not propose to adopt each of its existing requirements 
into this rule because of the sheer number and detail of those 
requirements and because keeping those requirements at the 
subregulatory level will allow ORR to make more appropriate, timely, 
and iterative updates in keeping with best practices and to allow 
continued responsiveness to the needs of unaccompanied children and 
care provider facilities.
    Final Rule Action: After consideration of public comments, ORR is 
revising the section title of Sec.  410.1302 to ``Minimum standards 
applicable to standard programs and secure facilities''; Sec.  410.1302 
to add ``secure facilities'' to standard programs so that secure 
facilities are required to provide the minimum standards under this 
section; Sec.  410.1302(a) to require standard programs and secure 
facilities be licensed by an appropriate State agency, or meet the 
requirements of State licensing if located in a State that does not 
allow State licensing of programs that care or propose to care for 
unaccompanied children; Sec.  410.1302(b) to require standard programs 
and secure facilities to comply with all State child welfare laws and 
regulations (such as mandatory reporting of abuse) and all State and 
local building, fire, health, and safety codes and by removing ``and 
other additional requirements specified by ORR if licensure is 
unavailable in their State to care provider facilities providing 
services to unaccompanied children'' and removing ``If there is a 
potential conflict between ORR's regulations and State law, ORR will 
review the circumstances to determine how to ensure that it is able to 
meet its statutory responsibilities. If a State law or license, 
registration, certification, or other requirement conflicts with an ORR 
employee's duties within the scope of their ORR employment, the ORR 
employee is required to abide by their Federal duties;'' Sec.  
410.1302(c)(2)(iii) to use the term ``individualized needs'' instead of 
``special needs'' as was finalized in this final rule at Sec.  
410.1001; Sec.  410.1302(c)(1) to specify that personal grooming and 
hygiene items include items ``such as soap, toothpaste and 
toothbrushes, floss, towels, feminine care items, and other similar 
items,'' to include access ``showers'' in addition to toilets and 
sinks, and to include ``maintenance of safe and sanitary conditions 
that are consistent with ORR's concern for the particular vulnerability 
of children;'' Sec.  410.1302(c)(2)(v) to state ``Identification of 
whether the child is an Indigenous language speaker'' instead of 
``whether an Indigenous language speaker;'' Sec.  410.1302(c)(3) to 
replace ``concentrate primarily on the development of basic academic 
competencies and secondarily on English Language Training (ELT), 
including: . . .'' with '' concentrate on the development of basic 
academic competencies and on English Language Training (ELT), as well 
as acculturation and life skills development, including . . .;'' Sec.  
410.1302(c)(13) to state ``native or preferred language instead of 
``native language;'' Sec.  410.1302(c)(14) to add a requirement that 
unaccompanied children must have a reasonable right to privacy, which 
includes the right to wear the child's own clothes when available, 
retain a private space in the residential facility, group or foster 
home for the storage of personal belongings, talk privately on the 
phone and visit privately with guests, as permitted by the house rules 
and regulations, and receive and send uncensored mail unless there is a 
reasonable belief that the mail contains contraband; Sec.  410.1302(d) 
to state ``native or preferred language'' instead of ``native 
language;'' and Sec.  410.1302(e) to state ``native or preferred 
language'' instead of ``native language;'' and is otherwise finalizing 
this section as proposed in the NPRM.
Section 410.1303 Reporting, Monitoring, Quality Control, and 
Recordkeeping Standards
    ORR conducts ongoing monitoring of all components of care provider 
facilities' activities. These efforts ensure consistent oversight, 
accountability standards, and put in place checkpoints at regular 
intervals, consistent with ORR's authorities.\241\ ORR proposed in the 
NPRM language at Sec.  410.1303 to describe how ORR would ensure that 
care provider facilities are providing required services (88 FR 68939 
through 68941). Under Sec.  410.1303(a), ORR proposed in the NPRM to 
monitor all care provider facilities for compliance with the terms of 
the regulations in parts 410 and 411. ORR proposed in the NPRM the 
types of monitoring activities that it would perform: desk monitoring, 
routine site visits, site visits in response to ORR or other reports, 
and monitoring visits. Desk monitoring would include ongoing oversight 
from ORR headquarters. Examples of desk monitoring include monthly 
check-ins by ORR Federal staff with the care provider facility, regular 
record and report reviews, financial/budget statements analysis, 
ongoing reviews of staff background checks and vetting of employees, 
subcontractors, and grantees, and communications review. Routine site 
visits would be day-long visits to facilities to review compliance for 
policies, procedures, and practices and guidelines. Typically, routine 
site visits occur on a once or twice monthly basis, both unannounced 
and announced. Site visits in response to ORR or other requests would 
be visits for a specific purpose or investigation

[[Page 34493]]

(e.g., regarding a corrective action plan). Routine monitoring visits 
would be conducted as part of comprehensive reviews of all care 
provider facilities. Typically, these may be week-long visits and are 
usually conducted by ORR not less than every two (2) years.
    When care provider facilities are out of compliance with ORR 
policies and procedures, ORR issues a corrective action. A list of 
corrective actions may be communicated by ORR to care provider 
facilities, for example, as part of a report provided to the care 
provider facility after a monitoring visit. Under Sec.  410.1303(b), 
ORR proposed in the NPRM to issue corrective actions to care provider 
facilities when it finds that a care provider facility is out of 
compliance with ORR regulations and subregulatory policies, including 
guidance and terms of its contracts and cooperative agreements (88 FR 
68939). If ORR finds a care provider facility to be out of compliance, 
it would communicate the concerns in writing to the care provider 
facility's director or appropriate person through a written monitoring 
or site visit report, with a list of corrective actions and child 
welfare best practice recommendations, as appropriate. ORR would 
request a response to the corrective action findings from the care 
provider facility and specify a timeframe for resolution and the 
disciplinary consequences for not responding within the required 
timeframes. Examples of disciplinary consequences would include 
stopping placements at the care provider facility until all corrective 
actions have been addressed or possible non-renewal of the grant for 
the program, as appropriate.\242\
    ORR proposed in the NPRM, language at Sec.  410.1303(c) describing 
additional monitoring activities that ORR would conduct at secure 
facilities. In addition to other monitoring activities, consistent with 
existing policy and practice, ORR would review individual unaccompanied 
children's case files to ensure unaccompanied children placed in secure 
facilities are assessed at least every 30 days for the possibility of a 
transfer to a less restrictive setting (88 FR 68939).
    ORR proposed in the NPRM, language at Sec.  410.1303(d) describing 
monitoring of long-term home care and transitional home care facilities 
(88 FR 68939 through 68940). ORR proposed that long-term and 
transitional foster care homes be subject to the same types of 
monitoring as other ORR care but tailored to the foster care 
arrangement. For example, under Sec.  410.1303(d), ORR proposed in the 
NPRM that during on site monitoring visits, ORR would be able to 
schedule a visit with the staff of a particular home care facility to 
conduct a first-hand assessment of the home environment and the care 
provider's oversight of the home. In addition to ORR monitoring, ORR 
proposed in the NPRM that ORR long-term home care and transitional home 
care facilities that provide services through a sub-contract or sub-
grant be responsible for conducting annual monitoring or site visits of 
the sub-recipient, as well as weekly desk monitoring. Finally, ORR 
proposed to require that care providers provide the findings of such 
reviews to the designated ORR point of contact.
    ORR proposed in the NPRM at Sec.  410.1303(e),) that the care 
provider facilities develop quality assurance assessment procedures 
that accurately measure and evaluate service delivery in compliance 
with the requirements of this part, as well as those delineated in 45 
CFR part 411 (88 FR 68940).
    ORR proposed in the NPRM under Sec.  410.1303(f), to establish care 
provider facility reporting requirements (88 FR 68940). The purpose of 
such reporting is to help ensure that incidents involving unaccompanied 
children are documented and responded to in a way that protects the 
best interests of children in ORR care, including their safety and 
well-being. Reporting requirements increase safety for children in 
ORR's care, and promote transparency and accuracy, and improve the care 
provided. ORR would require care provider facilities to report any 
emergency incident, significant incident, or program-level event to 
ORR, and in accordance with any applicable Federal, State, and local 
reporting laws. Accurately documenting incidents and program-level 
events is essential to ensuring the health and well-being of all 
unaccompanied children in care.
    ORR proposed in the NPRM under Sec.  410.1303(f)(1) to require that 
care provider facilities document incidents and events with sufficient 
detail to ensure that any relevant entity can facilitate any required 
follow-up; document incidents in a way that is trauma-informed and 
grounded in child welfare best practices; and update the report with 
any findings or documentation that are made after the fact (88 FR 
68940). Additionally, proposed Sec.  410.1303(f)(2) states that care 
provider facilities must never fabricate, exaggerate, or minimize 
incidents; use disparaging or judgmental language about unaccompanied 
children in incident reports; use incident reporting or the threat of 
incident reporting as a way to manage the behavior of unaccompanied 
children or for any other illegitimate reason. By ``illegitimate 
reason,'' ORR means a reason that is unrelated to the purposes of 
incident reporting, which as stated above are to help ensure that 
incidents involving unaccompanied children are documented and responded 
to in a way that protects the best interest of children in ORR care, 
including their safety and well-being. Further, illegitimate reasons 
include those that would be inconsistent with ORR's statutory 
responsibilities (e.g., to ensure that the interest of the child are 
considered in decisions and actions relating to the care and custody of 
an unaccompanied child, to place unaccompanied children in the least 
restrictive setting that is in the best interest of the child); or 
inconsistent with these regulations and subregulatory policies, 
including ORR guidance and the terms of its contracts or cooperative 
agreements.
    ORR proposed in the NPRM, limitations on how certain reports may be 
used by ORR or care provider facilities (88 FR 68940). ORR believes 
that these limitations will protect the best interests of unaccompanied 
children and put their safety first as well as help ensure that reports 
do not become a potential hindrance to placement in the least 
restrictive setting. Under Sec.  410.1303(f)(3), ORR proposed in the 
NPRM to prohibit care provider facilities from using reports of 
significant incidents as a method of punishment or threat towards any 
child in ORR care for any reason. Under Sec.  410.1303(f)(4), ORR 
proposed in the NPRM that the existence of a report of a significant 
incident may not be used by ORR as a basis for an unaccompanied child's 
step-up to a restrictive placement or as the sole basis for a refusal 
to step a child down to a less restrictive placement. Care provider 
facilities would likewise be prohibited from using the existence of a 
report of a significant incident as a basis for refusing an 
unaccompanied child's placement in their facilities. Reports of 
significant incidents could be used as examples or citations of 
concerning behavior. However, the existence of a report itself would 
not be sufficient for a step-up, a refusal to step-down, or a care 
provider facility to refuse a placement.
    ORR noted that 45 CFR part 411, subpart G, requires reporting to 
ORR of any allegation, suspicion, or knowledge of sexual abuse, sexual 
harassment, inappropriate sexual behavior, and Staff Code of Conduct 
\243\ violations occurring in ORR care, along with any retaliatory 
actions resulting from reporting such incidents; ORR also noted that 
part 411

[[Page 34494]]

requires compliance with required staff background checks at subpart B.
    ORR also proposed at Sec.  410.1307(c) of the NPRM to require that 
ORR monitor compliance with the requirements to issue required notices 
and documentation for medical services requiring heightened ORR 
involvement, as well as the other listed requirements. ORR proposed in 
the NPRM to initiate a Graduated Corrective Action Plan, with reporting 
requirements increasing along with oversight measures if programs 
remain non-compliant. ORR refers readers to Sec.  410.1307(c) for 
additional discussion.
    Safeguarding and maintaining the confidentiality of unaccompanied 
children's case file records is critical to carrying out ORR's 
responsibilities under the HSA and the TVPRA. The HSA places 
responsibility on ORR for implementing policies with respect to the 
care and placement of unaccompanied children, ensuring that the 
interests of the child are considered in decisions and actions relating 
to their care and custody, overseeing the infrastructure and personnel 
of facilities in which unaccompanied children reside, and maintaining 
data on unaccompanied children.\244\ Additionally, the TVPRA places 
responsibility for the care and custody of unaccompanied children on 
HHS and requires HHS to ``establish policies and programs to ensure 
that unaccompanied alien children in the United States are protected 
from traffickers and other persons seeking to victimize or otherwise 
engage such children in criminal, harmful, or exploitative activity, 
including policies and programs reflecting best practices in witness 
security programs.'' \245\ These program statutes recognize that ORR is 
responsible for maintaining and safeguarding unaccompanied children's 
records and data and that unaccompanied children are vulnerable 
persons, and therefore, the privacy and confidentiality of their 
records is paramount. Unaccompanied children may have histories of 
abuse, may be seeking safety from threats of violence, or may have been 
trafficked or smuggled into the U.S. Accordingly, HHS's longstanding 
policy is to protect from disclosure information about unaccompanied 
children that could compromise the children's and sponsors' location, 
identity, safety, and privacy.
    Consistent with its statutory responsibilities, ORR proposed in the 
NPRM in Sec.  410.1303(g) that all care provider facilities must 
develop, maintain, and safeguard the individual case file records of 
unaccompanied children (88 FR 68941). The provisions in Sec.  
410.1303(g) would apply to all care provider facilities responsible for 
the care and custody of unaccompanied children, whether the program is 
a standard program or not. ORR noted that under its current policies 
the records of unaccompanied children generated in the course of post-
release services (PRS) are not always considered to be included in the 
individual case files of unaccompanied children. However, ORR has 
determined that all unaccompanied children's records, including those 
produced for PRS, should be included in the individual case file 
records of unaccompanied children, whether generated while the child is 
in ORR custody or after release to their sponsor.\246\ PRS records are 
created by, or on behalf of, ORR and assist ORR in coordinating 
supportive services for the child and their sponsor in the community 
where the child resides, as authorized under 8 U.S.C. 1232(c)(3)(B), 
which provides HHS authority to ``conduct follow-up services in cases 
involving children with mental health or other needs who could benefit 
from ongoing assistance from a social welfare agency.'' ORR facilitates 
the provision of PRS services through its network of PRS providers 
under cooperative agreements with ORR.
    Under Sec.  410.1303(g)(1) of the NPRM, ORR proposed to require 
care provider facilities and PRS providers to maintain the 
confidentiality of case file records and protect them from unauthorized 
use or disclosure (88 FR 68941). ORR also proposed in Sec.  
410.1303(g)(2) that the records in unaccompanied children's case files 
are the property of ORR, whether in the possession of ORR, a care 
provider facility, or PRS provider, including those entities that 
receive funding from ORR through cooperative agreements, and care 
provider facilities and PRS providers may not release unaccompanied 
children's case file records or information contained in the case files 
for purposes other than program administration without prior approval 
from ORR. This provision allows ORR to ensure that disclosure of 
unaccompanied children's records is compatible with program goals, to 
ensure the safety and privacy of unaccompanied children, to not 
discourage unaccompanied children from disclosing information relevant 
to their care and placement, and to prevent potential sponsors from 
being deterred from sponsoring unaccompanied children. Further, under 
proposed Sec.  410.1303(g)(3), ORR would require care provider 
facilities and PRS providers to provide the case files of unaccompanied 
children to ORR immediately upon ORR's request.
    Under Sec.  410.1303(g)(4) of the NPRM, ORR proposed that 
employees, former employees, or contractors of a care provider facility 
or PRS provider must not disclose unaccompanied children's case file 
records or provide information about unaccompanied children, their 
sponsors, family or household members to anyone except for purposes of 
program administration, without first providing advance notice to ORR 
of the request, allowing ORR to ensure that disclosure of unaccompanied 
children's information is compatible with program goals and ensures the 
safety and privacy of unaccompanied children (88 FR 68941). 
Safeguarding unaccompanied children's information is consistent with 
ORR's responsibilities under its program statutes, including 8 U.S.C. 
1232(c)(1), which requires the Secretary to establish ``policies and 
programs reflecting best practices in witness security programs,'' and 
House Report 116-450 recommendations to restrict sharing certain 
information with other Federal agencies. A request for an unaccompanied 
child's case file information must be made directly to ORR, allowing 
ORR to consider whether disclosure meets these requirements, is in the 
best interest of the unaccompanied child, safeguards the unaccompanied 
child's and their sponsor's, family and household member's personally 
identifiable and protected health information, and is compatible with 
statutory program goals and all applicable Federal laws and 
regulations.
    For purposes of facilitating efficient program administration, ORR 
policy is to allow certain limited disclosures by ORR grantees and 
contractors for program administration purposes without attaining prior 
ORR approval such as (1) registration for school and for other routine 
educational purposes; (2) routine medical, dental, or mental health 
treatment; (3) emergency medical care; (4) to obtain services for 
unaccompanied children in accordance with ORR policies; and (5) 
pursuant to any applicable whistleblower protection laws. These record 
safeguarding policies allow ORR to protect the privacy and safety of 
each unaccompanied child while also ensuring that certain routine and 
emergency services and treatment are provided expeditiously without 
waiting for approval from ORR.
    ORR proposed in the NPRM at Sec.  410.1303(h) to require standard 
programs to maintain adequate records and make regular reports as 
required by ORR that permit ORR to monitor and

[[Page 34495]]

enforce the regulations in parts 410 and 411 and other requirements and 
standards as ORR may determine are in the best interests of each 
unaccompanied child (88 FR 68941). ORR welcomed public comment on these 
proposals.
    Finally, ORR notes that as mentioned previously in the preamble in 
relation to Sec.  410.1302, this final rule includes a new Sec.  
410.1303(e), requiring enhanced monitoring of unlicensed standard 
programs and EIFs. Under this new paragraph, ORR will require enhanced 
monitoring, including on-site visits and desk monitoring, in addition 
to other requirements of this section, for all standard programs that 
are not State-licensed because the State does not allow State licensing 
of programs providing care and services to unaccompanied children, and 
emergency or influx facilities. Accordingly, paragraphs (e) through (h) 
as published in the NPRM have been redesignated in this final rule.
    Comment: Several commenters expressed concern that the proposed 
rule does not indicate the frequency, duration, or scope of ORR's 
monitoring and emphasized the need for more regular and rigorous 
monitoring of all care provider facilities by ORR to ensure risks to 
children and corrective actions are addressed in a timely manner. A few 
commenters recommended incorporating more details from the ORR Policy 
Guide for consistent implementation across all care provider facility 
types, for example stating that routine site visits described in the 
NPRM at Sec.  410.1303(a)(2) occur at ``every facility'' rather than at 
``facilities,'' to avoid leaving open the possibility for ORR to not 
monitor facilities. They requested additional information on what 
``desk monitoring'' or ``ongoing oversight'' entails, how often such 
oversight occurs, or who is part of such oversight. One commenter noted 
that the language in the NPRM only describes monitoring activities but 
does not directly require monitoring activities under Sec.  
410.1303(a).
    Response: ORR thanks the commenters for their feedback. ORR will 
continue to use and update its existing guidance to provide more 
detailed requirements for care provider facilities related to 
monitoring. ORR notes that its existing policies provide more detailed 
descriptions of desk monitoring and the ongoing monitoring activities 
that are part of it. ORR opted for this approach so that it can remain 
agile and provide more frequent iterative updates to its monitoring 
requirements in keeping with best practices and to allow continued 
responsiveness to the needs of unaccompanied children and care provider 
facilities. Where the regulations contain less detail, other guidance 
and communications from ORR to care provider facilities will provide 
specific guidance on requirements. Related to the concern about 
requiring monitoring at Sec.  410.1303(a), ORR is revising to ``ORR 
shall monitor'' rather than ``ORR monitors'' to more accurately reflect 
that monitoring of care provider facilities is indeed a requirement for 
ORR. Similarly, ORR is revising Sec.  410.1303(c) to state ``ORR shall 
review'' instead of ``ORR reviews'' to reflect that this is a 
requirement of ORR; and new Sec.  410.1303(f) (previously Sec.  
410.1303(e) in the NPRM) to state ``Care providers shall'' instead of 
``ORR shall require care providers to'', new Sec. Sec.  410.1303(g)(1) 
through (4) (previously Sec. Sec.  410.1303(f)(1) through (4) in the 
NPRM) to state ``shall'' instead of ``must'' and ``shall not'' instead 
of ``must never'' or ``are prohibited from'', new Sec. Sec.  
410.1303(h)(1) through (4) (previously Sec. Sec.  410.1303(g) (1) 
through (4) in the NPRM) to state ``shall'' instead of ``must'' or 
``may'', and new Sec.  410.1303(i) (previously Sec.  410.1303(h) in the 
NPRM) to state ``shall'' instead of ``must'', to reflect that they are 
requirements of care provider facilities and PRS providers, where 
specified.
    With respect to the commenter's suggested revision to Sec.  
410.1303(a)(2), ORR does not believe the revision is necessary because 
paragraph Sec.  410.1303(a), as codified in this final rule, already 
states that ORR shall monitor ``all care provider facilities.''
    Comment: One commenter expressed concern that the rule weakens 
monitoring standards by limiting the role of independent monitors and 
child advocates. Similarly, one commenter expressed concern about the 
credibility and impartiality of ORR if it is the same entity being 
monitored and strongly supported the creation of independent, 
contracted interdisciplinary teams for oversight of all ORR facilities 
in order to ensure compliance with ORR standards and provide 
recommendations for performance improvements.
    Response: ORR acknowledges the commenters' concerns but does not 
agree that the proposed regulation text weakens monitoring standards. 
ORR first clarifies that while it has legal responsibility for the care 
and custody of unaccompanied children in its custody by reason of their 
immigration status, ORR carries out this responsibility by funding care 
provider facilities to physically house children and provide direct 
care and services. ORR monitoring is therefore an essential component 
of ensuring care provider facilities adhere to relevant requirements 
set out in statute, these final regulations, and other guidance 
established by ORR. ORR is not in this sense monitoring itself; rather 
it is monitoring grantees and contractors it funds. Care provider 
facilities are also subject to performance and financial monitoring and 
reporting as described at 45 CFR part 75, but as stated at Sec.  
410.1303(a), this final rule codifies programmatic monitoring 
specifically with respect to care provider facilities' adherence to 
this part and with 45 CFR part 411. ORR also notes that Sec.  410.1303 
codifies existing policies regarding monitoring. ORR notes that its 
existing policies set out more detailed guidance describing ORR's 
monitoring activities and the requirements related to monitoring that 
care provider facilities must comply with. With respect to commenters' 
suggestion of an independent form of oversight for the program, ORR 
notes that at subpart K of this final rule, ORR is finalizing the 
creation of the UC Office of the Ombuds. In creating the Ombuds Office, 
ORR aims to provide an independent and impartial body that can receive 
reports and grievances regarding the care, placement, services, and 
release of unaccompanied children, and make recommendations to ORR 
regarding its policies and procedures, specific to protecting 
unaccompanied children in the care of ORR. ORR refers commenters to 
subpart K for more detailed discussion of the Ombuds.
    Comment: A few commenters were concerned that the proposed rule 
limits ORR's monitoring to ``care provider facilities,'' as defined 
under Sec.  410.1001 which do not include out of network placements 
(OON or OONs). One commenter stated that children placed in OONs often 
have more significant needs and relatively longer lengths of placement 
than children who are not and stated that it is essential that ORR 
monitor OON placements. One commenter recommended adding language in 
this section stating that ORR monitors all care provider facilities and 
OON placements for compliance with the terms of the regulations in this 
part and 45 CFR part 411.
    Response: ORR thanks the commenters for their comments and 
emphasizes that it is current practice to conduct regular monitoring at 
OON placements, and it will continue to do so. Part 410 will not govern 
or describe the entire UC Program, and ORR will continue to use and 
update its existing policies to provide more detailed

[[Page 34496]]

requirements. ORR's monitoring activities at OON placements largely 
mirror the monitoring requirements that ORR uses at in-network 
facilities and are collaboratively conducted by the monitoring team, 
Federal Field Specialists, contracted field specialists, and case 
managers to ensure maximum visibility and compliance with all 
applicable standards of care at OON placements. ORR is not adding a 
requirement at this time under this section because the unique nature 
of each OON placement requires a collaborative and unique monitoring 
approach from ORR, and ORR does not believe a ``one size fits all'' 
monitoring approach would be appropriate given the array of types of 
OON placements, such as hospitals or other types of restrictive 
settings. Even still, monitoring activities at OON placements in 
practice largely mirror the monitoring requirements that ORR uses at 
in-network facilities and are conducted to ensure maximum visibility 
and compliance with all applicable standards of care at the OON 
placement. ORR also notes that OON placements are not required to meet 
the requirements of subpart D as they are not included in ORR's 
definition of care provider facilities.
    Comment: A few commenters were concerned that the corrective 
actions and described process in proposed Sec.  410.1303(b) address 
violations only on a case-by-case basis and that the proposed rule 
appears not to contemplate contractors or other entities who violate 
regulations regularly or systematically unless the violations are 
criminal in nature because it takes each violation as a singular event 
without relationship to other events or, potentially, to higher-level 
decisions.
    The commenters stated that both ORR and children's interests are 
served when regulations are followed by care provider facilities, when 
systematic problems are identified early and resolved, and when actors 
who have consistently acted contrary to the best interests of children 
no longer have access to Federal contracts to care for children. The 
commenters suggested that to identify problem entities, the first step 
is to collect data on incidents, particularly on the more serious 
incidents, and aggregate incidents at the facility level as well as the 
grantee and contractor level. The commenters suggested that ORR follow 
Senate Finance Committee recommendations from 2021 stating ORR should 
utilize drawdowns and the discontinuation or non-continuation of 
grants/contracts to providers that do not effectively safeguard 
children in their care. One commenter recommended adding text to Sec.  
410.1303(b) requiring ORR to collect and aggregate data on violations 
and resulting corrective actions for both facilities and grantees. The 
commenter further suggested that ORR require such data to be used in 
ongoing monitoring and in consideration of the future composition of 
the ORR network, including to inform decisions regarding initiation, 
renewal, or discontinuation of contracts or cooperative agreements.
    Response: ORR believes that data collection can play a pivotal role 
in facilitating the identification of potential issues, including 
potentially systematic issues, related to the care of unaccompanied 
children, and for that reason is finalizing requirements under Sec.  
410.1501 to require ORR to collect data, and care provider facilities 
to report data, under Sec.  410.1501(g) that is necessary to evaluate 
and improve the care and services for unaccompanied children. It is 
ORR's existing practice to consider this aggregate data in its care 
provider facility scorecard reviews and ORR's Acquisition Requirements 
Team, the General Services Administration, and the Office of 
Acquisition Management Services also oversee performance under 
contracts and take appropriate action when contractors do not meet 
ORR's requirements for serving unaccompanied children. Additionally, 
ORR consults its Office of Grants Management and Office of General 
Counsel regarding performance issues for the grantee network. ORR 
additionally notes that under Sec.  410.2002(c)(5), ORR is required to 
provide the data it maintains to the finalized UC Office of the Ombuds, 
and that the Ombuds is also empowered to provide recommendations and 
publish reports, among other duties, based on its findings. With 
respect to the Senate Finance Committee recommendations from 2021,\247\ 
ORR notes that ACF already has authority to take such actions, as 
described at 45 CFR part 75,\248\ and regularly exercises this 
authority (e.g., through audits and enforcement actions).
    Comment: Due to their concerns about potential lawsuits and 
treatment of children in secure placements within ORR's network, a few 
commenters suggested that ORR increase its monitoring requirements for 
secure facilities to ensure that routine site visits occur at a minimum 
of once per month and that weeklong monitoring visits are conducted 
yearly. The commenters also recommended that ORR review children's case 
files at least every 14 days to determine if the child is ready for a 
less restrictive placement, instead of at 30-day intervals, which they 
believe is in closer compliance with ORR's statutory and child welfare 
mandate.
    Response: ORR has not specified specific time intervals for the 
various types of monitoring it conducts for all care provider 
facilities, including secure facilities, under Sec.  410.1303(a) 
because, as previously discussed, ORR's existing policies provide more 
detailed descriptions of desk monitoring and the ongoing monitoring 
activities that are part of it. ORR opted for this approach so that it 
can remain agile and provide more frequent iterative updates to its 
monitoring requirements in keeping with best practices and to allow 
continued responsiveness to the needs of unaccompanied children and 
care provider facilities.
    Comment: One commenter recommended including monitoring 
requirements under Sec.  410.1303(d) for care provider facilities that 
are unable to be licensed through their State to ensure best practices 
and the safety of children in care.
    Response: ORR is finalizing a requirement under Sec.  410.1302(a) 
that all standard programs and secure facilities be licensed by their 
State or meet the requirements of State licensing if located in a State 
that does not allow State licensing of programs providing or proposing 
to provide care services to unaccompanied children. ORR conducts 
monitoring of all care provider facilities, regardless of whether they 
are in a State that allows or does not allow State licensing for ORR 
care provider facilities. ORR notes that it already conducts enhanced 
monitoring which includes regular on-site visits and desk monitoring of 
any care provider facilities where a State will not license the 
facility because it cares for or proposes to care for unaccompanied 
children.
    Comment: One commenter was concerned that there is ambiguity about 
whether monitoring by a prime contractor is intended to supplement or 
replace ORR's monitoring of subrecipient long-term home care and 
transitional home care facilities. The commenter recommended that ORR 
directly monitor long-term home care and transitional home care 
facilities with the activities described in Sec.  410.1303(a), which 
may be tailored to the foster care arrangement, and recommended that 
ORR long-term home care and transitional home care facilities that 
provide services through a sub-contract or sub-grant are responsible 
for conducting annual monitoring or site visits of the sub-recipient, 
as well as weekly desk monitoring. The commenter further recommended

[[Page 34497]]

including a requirement that upon request, care provider facilities 
must provide findings of such reviews to the designated ORR point of 
contact.
    Response: ORR directly monitors all care provider facilities that 
it funds. If a care provider facility, including a long-term home or 
transitional home care facility, subawards ORR funds to another entity 
to carry out care and custody of unaccompanied children, then 
consistent with 45 CFR 75.352(d) the prime recipient of ORR funds is 
responsible for monitoring its subrecipients ``as necessary to ensure 
that the subaward is used for authorized purposes, in compliance with 
Federal statutes, regulations, and the terms and conditions of the 
subaward; and that subaward performance goals are achieved.''
    Comment: A few commenters did not support the provisions at 
proposed Sec.  410.1303(f)(4), stating that they are too limiting for 
case managers and their ability to perform essential functions.
    Response: ORR acknowledges the commenters concerns but notes that 
the various requirements described at proposed Sec.  410.1303(f)(4) in 
the NPRM (redesignated at Sec.  410.1303(g)(4) in the final rule) 
concern placement decisions, and that ORR has statutory authority to 
make placement determinations. Care provider facilities, including case 
managers, do not decide on the placement of unaccompanied children in 
ORR custody. Further, as stated in the NPRM preamble, ORR believes that 
these provisions will protect the best interests of unaccompanied 
children and put their safety first as well as help ensure that reports 
do not become a potential hindrance to placement in the least 
restrictive setting (88 FR 68940).
    Comment: A few commenters shared concerns that ORR care provider 
facilities often engage in over-reporting of incidents and that many 
SIRs frequently document minor rule infractions or developmentally 
appropriate child or adolescent behavior such as when children fail to 
follow facility rules, test boundaries, appropriately express 
frustration, or engage in horseplay or recreational activities. The 
commenters stated that SIRs frequently fail to contextualize children's 
behavior within the stressful circumstances, conditions, and length of 
time in government custody, or the trauma experienced. One commenter 
therefore recommended that regulatory language at proposed Sec.  
410.1303(f)(4) additionally state that care provider facilities may 
deny a placement only on the basis of the reasons and in accordance 
with the procedures set forth in Sec.  410.1103(f) through (g). The 
commenter further recommended that ORR add language to Sec.  
410.1303(f)(4) to directly state that these reports are not complete or 
comprehensive and information in the reports may not be fully verified, 
and that staff should also consider that ORR does not intend for an 
incident report to provide complete context of the incident described 
or a child's experience in home country, journey, or time in care.
    Response: ORR proposed in the NPRM at Sec. Sec.  410.1303(f)(1) and 
(2) (redesignated at Sec. Sec.  410.1303(g)(1) and (2) in the final 
rule) to provide additional parameters around the information contained 
in such reports to help ensure that incidents involving unaccompanied 
children are documented and responded to in a way that protects the 
best interests of children in ORR care, including their safety and 
well-being. ORR intends to continue to use its subregulatory guidance 
to provide additional details and requirements for care provider 
facilities. ORR notes, as stated by the commenters, that SIRs are not 
intended to provide complete context because they are internal records 
that contain information that may not be fully verified about a given 
incident or of the child's experience in home country, journey, or time 
in care.
    Comment: Several commenters recommended revisions to Sec.  
410.1303(g), as proposed in the NPRM (redesignated as Sec.  410.1303(h) 
in the final rule), to limit unauthorized access, use and disclosure of 
information and to preserve confidentiality of children's data and 
information. One commenter stated that the final rule should safeguard 
the personal information of unaccompanied children and their sponsors 
from unauthorized access, use, or disclosure, and include examples of 
parameters for what privacy and confidentiality should include, such as 
only collecting information that is necessary for the purposes of the 
UC Program and reporting privacy breaches to affected individuals. 
Commenters further recommended that ORR require compliance with 
applicable Federal and State laws and regulations regarding privacy and 
confidentiality because unaccompanied children may be vulnerable to 
discrimination, harassment, or retaliation based on their immigration 
status or background and face risks due to their personal information 
being accessed, used, or disclosed without their knowledge or consent. 
A few commenters stated that the proposed rule should not only prohibit 
the mishandling of unaccompanied children's information but also 
require organizations to implement policies and procedures to reduce 
the risk of mishandling such as proactively ensuring the privacy, 
security, and confidentiality of program data in accordance with 
national standards for protecting sensitive and restricted data. 
Another commenter recommended that proposed Sec.  410.1303(g)(4) 
(redesignated to Sec.  410.1303(h)(4) in the final rule) be expanded to 
address both unauthorized use and unauthorized disclosure of the 
sensitive information it describes. One commenter recommended that 
where the proposed rule uses the phrase ``unauthorized use or 
disclosure'' or a similar phrase, to include the terms unauthorized 
access, unauthorized use, misuse, and improper disclosure, stating that 
authorized users fulfilling job-related functions can still misuse 
private and sensitive data about children, and improper disclosure of 
the protected information in a case file (or elsewhere) does not 
require access to the file itself.
    Response: ORR notes that the requirements under proposed Sec.  
410.1303(g) in the NPRM (redesignated to Sec.  410.1303(h) in the final 
rule) are supplemented by existing policies that speak to many of these 
concerns, particularly related to care provider facilities policies for 
maintaining case files and for record management, retention and 
safekeeping. ORR notes that care provider facilities must ensure 
compliance with all requirements imposed by Federal statutes concerning 
the collection and maintenance of records that includes personal 
identifying information. With regard to compliance with national 
standards and State laws, ORR further notes, consistent with Sec.  
410.1302(a) as codified in this final rule, that standard care provider 
facilities must follow State licensing requirements, even if they are 
in a State that does not license facilities that care for unaccompanied 
children; further, all care provider facilities must follow the 
requirements of part 410, and ORR policies and procedures.
    Comment: A few commenters stated concerns that ORR's proposal to 
share information about the children and their sponsors with other 
Federal agencies, such as DHS, for immigration enforcement purposes 
would violate the children's privacy rights and deter potential 
sponsors from coming forward, resulting in prolonged detention and 
increased costs for ORR.
    Response: ORR clarifies that proposed Sec.  410.1303(g) in the NPRM 
(redesignated to Sec.  410.1303(h) in the final rule) also prohibits 
the sharing of information with other Federal agencies without prior 
approval from ORR. This

[[Page 34498]]

provision, like ORR's current policies, is consistent with provisions 
in House Report 116-450,\249\ and restricts sharing certain case-
specific information with EOIR and DHS that may deter a child from 
seeking relief through their legal service provider.
    Comment: A few commenters noted that the ownership of records 
including case files of unaccompanied children is a complicated issue 
in part because many organizations are direct providers of different 
types of services for unaccompanied children, and that different 
providers are subject to different laws and best practices concerning 
the ownership of children's records. One commenter recommended that 
this section should address the different types of records kept by 
language access services providers, stating that some may be protected 
by attorney-client privilege. One commenter stated that while they 
agree that there is good reason for ORR to have ultimate responsibility 
for safeguarding some unaccompanied children's records, such as case 
files maintained by care provider facilities and PRS providers, the 
same approach may not be appropriate for ownership of other types of 
records such as a birth certificate, which belongs to the child and the 
child's parent or legal guardian, and the document and its contents can 
be shared with the child's or parent's consent. The commenter also 
included examples where ORR ownership would not apply, such as records 
maintained by legal services providers, which are protected by 
attorney-client privilege and cannot be shared with ORR, or medical or 
sensitive personal information protected by Federal and State policies. 
The commenter recommended that proposed Sec.  410.1303(g)(2) in the 
NPRM, which identifies ORR as the owner of unaccompanied children's 
case files, should instead be addressed by a separate section not 
intended to establish a single rule for all records kept by all types 
of providers. The commenter also stated that the ownership of 
children's records is unnecessarily tied to restrictions on how 
providers may access or share information about a child and that the 
provision of services by particular providers may require explicit 
carve-outs from certain aspects of the uniform standards. The commenter 
therefore recommended that ORR include a new section in the rule which 
addresses the ownership of records maintained by different types of 
service providers, arguing that this would affirm ORR's ultimate 
responsibility for case files and other records kept by care provider 
facilities and PRS providers and its right to oversee and to regulate 
its grantees' and contractors' policies and procedures. The commenter 
recommended that ORR explicitly state that records maintained by legal 
service providers are not the property of ORR and address relevant 
issues raised by providers of other types of services in a manner that 
preserves their ability to efficiently serve unaccompanied children 
according to the relevant legal regimes and best practices of their 
field.
    Response: ORR acknowledges the commenters' concerns related to 
legal service providers or other types of service providers that have 
records pertaining to unaccompanied children in ORR care. ORR clarifies 
that the requirements related to privacy and confidentiality of 
unaccompanied children's case file records under part 410 apply to care 
provider facilities and PRS providers, and do not apply to legal 
service providers. ORR notes that it includes privacy and 
confidentiality requirements in its grants, cooperative agreements, and 
contracts with other types of service providers, including legal 
service providers. This allows ORR to ensure all record keeping, 
privacy, and confidentiality terms are tailored as appropriate to the 
nature of the grant or contract. ORR further emphasizes that 
disclosures can be made, consistent with Sec.  410.1303(g)(2), in 
accordance with law or for program administration purposes.
    Comment: A few commenters noted that proposed Sec.  410.1210(i) 
contains similar language to that found in proposed Sec.  410.1303(g) 
in the NPRM and therefore recommended consolidating the general 
guidelines of proposed Sec. Sec.  410.1303(g) through (h) in the NPRM 
(redesignated to Sec. Sec.  410.1303(h) through (i) in the final rule) 
with the provisions of Sec.  410.1210(i)(1) through (3) so that 
provisions currently focused solely on records managed by PRS providers 
will also apply to other types of service providers. One commenter 
stated that the proposed guidelines for the management, retention, and 
privacy of records maintained by PRS providers are both stronger and 
more detailed than the more general requirements proposed at Sec.  
410.1303(g) through (h) (redesignated to Sec. Sec.  410.1303(h) through 
(i) in the final rule) that apply to care providers and suggested that 
the PRS provider facilities as well. Another commenter encouraged ORR 
to consolidate Sec.  410.1210(i) with proposed Sec.  410.1303(g) in the 
NPRM by using the version with stronger privacy and confidentiality 
protections, notably Sec.  410.1210(i)(2)(iii). A few commenters, 
noting that proposed Sec.  410.1210(i)(3)(iii) states that PRS 
providers' controls on information-sharing within the PRS provider 
network shall extend to subcontractors, similarly suggested extending 
safeguards from unauthorized access, inappropriate access, misuse, and 
inappropriate disclosure to subcontractors of all agencies and stated 
that the explicit inclusion of subcontractors is an important 
clarification that should be incorporated into other sections that 
safeguard children's information.
    Response: ORR has many detailed subregulatory requirements for care 
provider facilities related to the privacy and confidentiality of the 
case file records of unaccompanied children, but did not propose to 
adopt each of its existing requirements into this rule because of the 
length and detail of those requirements and because maintaining those 
requirements in subregulatory guidance will allow ORR to make more 
appropriate, timely, and iterative updates to record management and 
privacy policy in keeping with best practices and to allow continued 
responsiveness to the evolving needs of unaccompanied children and care 
provider facilities. In contrast, ORR does not have as many 
subregulatory requirements for PRS providers related to the privacy and 
confidentiality of the case file records of unaccompanied children, and 
notes that the circumstances are different because the children served 
by PRS providers are no longer in ORR custody. For this reason, ORR 
chose to include more detail in the requirements under Sec.  
410.1210(i)(2) for PRS providers. ORR thanks the commenters for 
highlighting the nuances between Sec.  410.1210(i) and proposed Sec.  
410.1303(g) in the NPRM (redesignated to Sec.  410.1303(h) in the final 
rule) but does not believe these nuances cause a conflict between the 
requirements under this part or in ORR's existing policies pertaining 
to care provider facilities.
    Comment: A few commenters expressed concern that the proposed rule 
does not have uniformly high standards for all entities who may keep 
records regarding unaccompanied children's personally identifiable 
information (PII), and that the sections contemplating data collection 
and safeguarding should be aligned to a high standard of protection and 
made consistent across different types of service providers and 
information. One commenter stated that, in contrast to the requirements 
listed in proposed Sec.  410.1303(g) in the NPRM (redesignated to Sec.  
410.1303(h) in the

[[Page 34499]]

final rule), the proposed rule's guidelines for the handling of PII by 
child advocates under Sec.  410.1308(f) and the providers of language 
access services under Sec.  410.1306(i) are sparse. One commenter 
suggested that ORR should revise any text describing what organizations 
are subject to the guidelines of proposed Sec.  410.1303(g) in the NPRM 
(redesignated to Sec.  410.1303(h) in the final rule), to ensure 
consistent inclusion of PRS providers and to ensure that other types of 
service providers that encounter or handle records involving 
unaccompanied children's PII are following best practices for 
developing, maintaining, and safeguarding them. A few commenters noted 
that, while the rule contemplates information and data that ORR 
receives via its network of grantees and contractors, the proposed rule 
fails to contemplate information and data that arrives via other means 
and that implicates the continued well-being of children or safety and 
security of children's placements.
    Response: ORR includes privacy and confidentiality requirements in 
its cooperative agreements and contracts with other types of service 
providers and prefers to keep these requirements subregulatory so they 
can be tailored, as appropriate, to the nature of a particular contract 
or cooperative agreement. Related to data and information that ORR 
receives via its network of grantees and contractors, ORR notes that 
its requirements apply to all information contained in an unaccompanied 
child's case file record, regardless of how it was received.
    Comment: A few commenters stated concerns that ORR's policies in 
this section would limit children's and their family's access to their 
records of their treatment, thereby posing a potential infringement on 
parental and family rights. One commenter expressed concern that the 
provisions for prior approval and advance notice from ORR for 
disclosure of case file records improperly limit the access of the 
unaccompanied child, child's attorney, and child advocate to the case 
file, stating that the child, their attorney, and their child advocate 
should have unrestricted access to all non-classified records. The 
commenter stated that unrestricted access to all documents will help 
ensure that children are generally informed about their case. The 
commenter suggested that the child, child's attorney, and child 
advocate be afforded unrestricted access to the case file and that 
advance notice or approval only be required before disclosing the case 
file information to anyone else for any purpose.
    Response: ORR does not agree that its proposed policies under Sec.  
410.1303(g) in the NPRM (redesignated to Sec.  410.1303(h) in the final 
rule) limit access to case files for unaccompanied children, children's 
families, or children's LSPs, attorneys of record, or child advocates. 
As stated above, regarding the definition of ``case file,'' ORR notes 
that, consistent with the Privacy Act, codified at 5 U.S.C. 552a, the 
UC Program's System of Records Notice (SORN), and ORR policies, 
unaccompanied children have access to, and are entitled to copies of, 
their own case file records.\250\ As such, both unaccompanied children 
and their parents or legal guardians may request their own files. ORR 
further notes that pursuant to the TVPRA, child advocates are 
``provided access to materials necessary to effectively advocate for 
the best interest of the child,'' \251\ and that under current ORR 
policies, child advocates have immediate access to children's case 
files without needing to submit a formal request to ORR. Further, under 
current ORR policies, unaccompanied children's attorneys may request 
their clients' case files, including on an expedited timeframe, as 
needed. ORR notes that its existing subregulatory guidance contains 
more detailed requirements related to the disclosure of records for 
these individuals, and the process for requesting access to case files 
or records. ORR believes that its established process for requesting 
access to case files safeguard and maintain the confidentiality of 
unaccompanied children's case file records consistent with ORR's 
responsibilities under the HSA and the TVPRA, as stated in the preamble 
discussion. Further, ORR believes that its proposed policies under 
Sec.  410.1303(g) in the NPRM (redesignated to Sec. Sec.  410.1303(h) 
in the final rule) recognize that unaccompanied children are vulnerable 
persons, and therefore, the privacy and confidentiality of their 
records is paramount, and carry out ORR's responsibility for 
maintaining and safeguarding unaccompanied children's records and 
information under the HSA and the TVPRA.
    Comment: One commenter recommended that ORR require care provider 
facilities to keep detailed records of any circumstance in which they 
believe an unaccompanied child to have been separated from, a parent, 
legal guardian, or other family member at the time of apprehension into 
Federal custody. The commenter suggested that even if the separation 
cannot be substantiated, care provider facilities must collect all 
available information relating to the biographical information of the 
separated parent, legal guardian, or family member, the specific facts 
of the separation, documentation of notification to the child of the 
child's rights, and documentation of a referral for a child advocate.
    Response: ORR thanks the commenter for the recommendation, and 
notes that under Sec.  410.1302(c)(2)(ii) it is finalizing a 
requirement that essential data relating to the identification and 
history of the unaccompanied child and family be collected upon the 
referral of an unaccompanied child by another Federal department or 
agency into the custody of ORR. ORR also notes that it is already 
required to collect and share significant amounts of information 
relating to separated children as part of a Settlement Agreement 
reached in the class action Ms. L. litigation.\252\ The settlement 
requires that ORR receive the information described by the commenter at 
or near the time of such child's transfer to ORR custody. ORR further 
notes that this information will be part of the separated child's case 
file.
    Comment: Several commenters stated concerns that the requirement to 
provide advance notice to ORR prior to disclosure of information under 
proposed Sec.  410.1303(g)(4) in the NPRM (redesignated to Sec.  
410.1303(h)(4) in the final rule) would violate the Whistleblower 
Protection Act, its subsequent amendments, and 5 U.S.C. 7211 and the 
right of employees to furnish information to Congress without 
interference. One commenter stated that proposed Sec.  410.1303(g)(4) 
in the NPRM (redesignated to Sec.  410.1303(h)(4) in the final rule) 
appears to formalize a blanket prohibition on certain personnel from 
releasing information without ORR's prior approval and without 
consideration for whistleblower protection and disclosure laws. One 
commenter stated that, because ORR is requiring care provider 
facilities and PRS providers to furnish records immediately, ORR should 
be able to provide this same information to state and local agencies 
for oversight of ORR.
    Response: ORR emphasizes that no portion of this regulation impacts 
the rights, protections, and vital work of whistleblowers in providing 
information for the protection of children in ORR custody and for the 
general public interest. Section 410.1303(g) as proposed in the NPRM 
(redesignated to Sec.  410.1303(h)(4) in the final rule) has no bearing 
on whistleblower policy and protections in any way and does not intend 
to infringe upon them. ORR will continue to comply with all required 
whistleblower

[[Page 34500]]

protection laws and encourages all whistleblowers to come forward as 
necessary and appropriate. Whistleblowers can initiate the process to 
report concerns to appropriate authorities, such as OIG or Congress. If 
case records are needed, OIG or Congress can request them from ORR. ORR 
discusses in the preamble of the NPRM its pre-approval of certain 
limited disclosures for the purposes of facilitating efficient program 
administration, and notes that it includes disclosures pursuant to all 
available whistleblower protection laws. ORR is committed to fully 
respecting and enforcing whistleblower protections, and nothing in part 
410 should be read as removing or weakening those protections and 
rights. ORR's policy of allowing certain limited disclosures by ORR 
grantees and contractors without attaining prior ORR approval allows 
ORR to protect the privacy and safety of each unaccompanied child while 
also ensuring that certain routine and emergency services and treatment 
are provided expeditiously without waiting for approval from ORR, and 
it ensures that whistleblowing is not hindered or discouraged. ORR's 
intention with these requirements is first and foremost to protect the 
privacy and confidentiality of unaccompanied children and their 
families. It is in their interest, broad child welfare interest, and 
the public interest to ensure that their information is not freely or 
erroneously shared with others. These information sharing requirements 
have no bearing on existing whistleblower protections, which remain in 
place and continue to be a key mechanism for ensuring the safety and 
well-being of all children in ORR care. In order to make this clear, in 
this final rule, ORR is amending proposed Sec.  410.1303(g)(4) in the 
NPRM (redesignated to Sec.  410.1303(h)(4) in the final rule) to 
explicitly state that the provision is subject to applicable 
whistleblower protection laws.
    Comment: Several commenters stated that providing a file to ORR 
``immediately'' on request will likely be problematic for many programs 
and requested that ORR include a reasonable standard of within 4 
business days for routine requests and 4 business hours for urgent 
requests. One commenter stated that the rationale for requiring 
immediate access to a case file for a child in ORR's custody would not 
necessarily apply to PRS providers, noting that the current policy of 
ORR does not always consider PRS to be included in the case file and 
that the proposed rule would be an expansion intended to apply to PRS 
providers and files. While the commenter expressed support for the 
expansion of PRS services, they did not believe that such an expansion 
necessitated that ORR be given immediate access to all PRS case files 
and noted that a requirement for immediate access could cause 
difficulties with the stated goals of providing the expanded services.
    Response: ORR acknowledges the commenters' concerns related to the 
immediate provision of case files to ORR but believes the immediate 
provision of case files is necessary to ensure ORR has timely and 
accurate information. ORR will continue to monitor the impact of these 
requirements as they are implemented and may provide additional 
guidance related to the timelines for the immediate provision of case 
file information.
    As to the concern about this requirement applying to PRS providers, 
ORR notes that it provides PRS to unaccompanied children by funding 
organizations through cooperative agreements. As a matter of prudent 
program management, ORR requires access to PRS provider records. ORR 
notes this requirement is also consistent with HHS regulations 
requiring agencies to have access to grantee records.\253\ ORR also 
reiterates its discussion in the preamble that PRS records are created 
by, or on behalf of, ORR and assist ORR in coordinating supportive 
services for the child and their sponsor in the community where the 
child resides, as authorized under 8 U.S.C. 1232(c)(3)(B), which 
provides HHS authority to ``conduct follow-up services in cases 
involving children with mental health or other needs who could benefit 
from ongoing assistance from a social welfare agency.'' Lastly, it was 
unclear from the comments why an ORR requirement for immediate access 
to PRS records would cause difficulties with expanding services. 
However, ORR notes that it may provide additional subregulatory 
guidance as necessary to support the implementation of expanded PRS 
while ensuring ORR access to information as requested.
    Comment: One commenter agreed that the language at proposed Sec.  
410.1303(g)(4) in the NPRM (redesignated to Sec.  410.1303(h)(4) in the 
final rule) prohibiting certain individuals from disclosing sensitive 
information is appropriately strong and wide-ranging, but believed the 
term ``program administration'' is ambiguous. The commenter recommended 
that this should refer only to the administration of ORR's own 
programs, and not to the administration of programs of other agencies, 
such as those operated by U.S. Immigration and Customs Enforcement. The 
commenter suggested that individuals affiliated with ORR-funded service 
providers should not be allowed to communicate sensitive information 
about a child or their family for purposes other than the care and 
well-being of a child and that ORR should specify here that the named 
exception applies only to its own programs.
    Response: ORR clarifies that ``program administration'' refers to 
administration of the UC Program and routine disclosures that are 
necessary to provide relevant services to unaccompanied children. ORR 
refers the commenter to its discussion above describing ORR's policy of 
allowing certain limited disclosures by ORR grantees and contractors 
without attaining prior ORR approval (noting examples such as 
registration for school and for other routine educational purposes; 
routine medical, dental, or mental health treatment; emergency medical 
care; and otherwise obtaining services for unaccompanied children in 
accordance with ORR policies). ORR reiterates that the provisions in 
Sec.  410.1303(h) as codified in this final rule apply to all care 
provider facilities responsible for the care and custody of 
unaccompanied children, whether the program is a standard program or 
not. ORR also notes that its authority to regulate does not extend to 
the programs of other agencies, and thus records requirements, along 
with any of the requirements described in this final rule, apply only 
to the ORR UC Program.
    Comment: One commenter stated that it is unclear how accountability 
systems for preserving the confidentiality of children's information 
and protecting their records from unauthorized use or disclosure at 
Sec.  410.1801(b)(17) in the NPRM (redesignated as Sec.  
410.1801(c)(13) in the final rule) should be integrated with similar 
requirements proposed at Sec.  410.1303(g) through (h) (redesignated to 
Sec. Sec.  410.1303(h) through (i) in the final rule) that apply to all 
care providers, including emergency facilities.
    Response: The requirements at proposed Sec.  410.1801(b)(17) in the 
NPRM (redesignated as Sec.  410.1801(c)(13) in the final rule) state 
that emergency or influx facilities maintains records of case files and 
make regular reports to ORR and must have accountability systems in 
place which preserve the confidentiality of client information and 
protect the records from unauthorized use or disclosure. ORR notes that 
proposed Sec.  410.1303(g) through (h) in the NPRM, finalized at 
redesignatedSec.  410.1303(h)

[[Page 34501]]

through (i), provides more detailed requirements for all care provider 
facilities, and in the case of emergency or influx facilities, provides 
additional parameters for the accountability systems that the EIFs must 
have in place. However, ORR agrees that accountability to ensure that 
EIFs faithfully follow these recordkeeping requirements is important. 
Therefore, ORR will move the provision that was proposed at Sec.  
410.1801(b)(17) in the NPRM (``The EIF shall maintain records of case 
files and make regular reports to ORR. EIFs must have accountability 
systems in place, which preserve the confidentiality of client 
information and protect the records from unauthorized use or 
disclosure.'') into the newly designated Sec.  410.1801(c)(13) so that 
the provision is non-waivable for EIFs.
    Comment: One commenter stated that the rule should also provide for 
mechanisms to inform, obtain consent, and redress any breaches of 
privacy and confidentiality, and recommended including language in this 
section to explicitly address that.
    Response: ORR notes that it has requirements related to informing 
and obtaining consent for record disclosure in its existing 
subregulatory guidance. In addition, as described above, ORR considers 
unaccompanied children's records to be subject to the Privacy Act. 
Therefore, it understands that unlawful disclosures may be subject to 
remedies described in that Act. ORR further notes that the Office of 
the Ombuds, as finalized and described under subpart K, may make 
efforts to resolve complaints or concerns raised by interested parties 
as it relates to ORR's implementation or adherence to Federal law or 
ORR policy, including any concerns reported to the Ombuds related to 
privacy and confidentiality. However, ORR will continue to monitor the 
impact of these requirements as they are implemented.
    Final Rule Action: After consideration of public comments, ORR is 
revising Sec.  410.1303(a) to state ``ORR shall monitor'' rather than 
``ORR monitors;'' Sec.  410.1303(c) to state ``ORR shall review'' 
instead of ``ORR reviews;'' and new Sec.  410.1303(f) (previously Sec.  
410.1303(e) in the NPRM) to state ``Care providers shall'' instead of 
``ORR shall require care providers to;'' new Sec. Sec.  410.1303(g)(1) 
through (4) (previously Sec. Sec.  410.1303(f)(1) through (4) in the 
NPRM) to state ``shall'' instead of ``must'' and ``shall not'' instead 
of ``must never'' or ``are prohibited from;'' new Sec. Sec.  
410.1303(h)(1) through (4) (previously Sec. Sec.  410.1303(g) (1) 
through (4) in the NPRM) to state ``shall'' instead of ``must'' or 
``may;'' and new Sec.  410.1303(i) (previously Sec.  410.1303(h) in the 
NPRM) to state ``shall'' instead of ``must.'' ORR is also adding a new 
paragraph, (e), requiring enhanced monitoring of unlicensed standard 
programs and emergency or influx facilities, which states, ``In 
addition to the other requirements of this section, for all standard 
programs that are not State-licensed for the care of unaccompanied 
children and for emergency or influx facilities, ORR shall conduct 
enhanced monitoring, including on-site visits and desk monitoring.'' 
The remaining paragraphs of Sec.  410.1303 have been redesignated 
accordingly. Additionally, ORR makes a clarifying revision at new Sec.  
410.1303(h) (previously Sec.  410.1303(g) in the NPRM) to delete 
``whether the program is a standard program or not'' as both standard 
and non-standard programs are already included in the definition of 
care provider facilities. ORR makes grammatical revisions to the 
previous Sec.  410.1303(g)(2) in the NPRM, now Sec.  410.1303(h)(2), 
and divides this provision into two sentences. It now states ``The 
records included in an unaccompanied child's case files are ORR's 
property, regardless of whether they are in ORR's possession or in the 
possession of a care provider facility or PRS provider. Care provider 
facilities and PRS providers may not release those records or 
information within the records without prior approval from ORR except 
for program administration purposes.'' ORR is revising the previous 
Sec.  410.1303(g)(4) in the NPRM, now Sec.  410.1303(h)(4), to add that 
ORR's requirements to not disclose case file records or information are 
``subject to applicable whistleblower protection laws.'' ORR is also 
revising the previous Sec.  410.1303(h) in the NPRM, now Sec.  
410.1303(i), to specify that care provider facilities and PRS providers 
shall maintain adequate records in the unaccompanied child case file. 
ORR is otherwise finalizing Sec.  410.1303 as proposed.
Section 410.1304 Behavior Management and Prohibition on Seclusion and 
Restraint
    ORR proposed in the NPRM language at Sec.  410.1304 describing the 
requirements for behavior management and the prohibition on seclusion 
and restraint (88 FR 68941 through 68942). ORR proposed in the NPRM 
these requirements consistent with its statutory responsibilities to 
implement policies with respect to the care and placement of 
unaccompanied children, to place unaccompanied children in the least 
restrictive setting available that is in their best interest, and to 
ensure the interest of unaccompanied children are considered in 
decisions and actions related to their care and custody. ORR 
understands that its responsibilities apply to each unaccompanied child 
in its care, including unaccompanied children who are subject to 
behavioral interventions, as well as to other unaccompanied children 
placed at the same care provider facility as an unaccompanied child who 
is subject to behavioral interventions.
    Effective behavior management is critical to supporting the health, 
safety, and well-being of unaccompanied children in ORR care and can 
help prevent emergencies and safety situations. Consistent with ORR's 
statutory responsibilities, ORR proposed in the NPRM at Sec.  
410.1304(a) to incorporate FSA paragraph 11 requirements and child 
welfare best practices by requiring care provider facilities to have 
behavior management strategies that include techniques for care 
provider facilities to follow. Under Sec.  410.1304(a), ORR proposed in 
the NPRM that care provider facilities must develop behavior management 
strategies that include evidence-based, trauma-informed, and 
linguistically responsive program rules and behavior management 
policies that take into consideration the range of ages and maturity of 
unaccompanied children in the program and that are culturally sensitive 
to the needs of each unaccompanied child. Examples of evidence-based 
standards and approaches may include setting clear and healthy 
expectations and limits for their behaviors and the behaviors of 
others; creating a healthy structured environment with routines and 
schedules; utilizing positive reinforcement strategies and avoiding 
negative reinforcement strategies; and fostering a supportive 
environment that encourages cooperation, problem-solving, healthy de-
escalation strategies, and positive behavioral management skills. 
Further, ORR proposed in the NPRM that the behavior management 
strategies must not use any practices that involve negative 
reinforcement or involve consequences or measures that are not 
constructive or not logically related to the behavior being regulated. 
This would include, as proposed under Sec.  410.1304(a)(1), prohibiting 
the use or threatened use of corporal punishment, significant incident 
reports as punishment, and unfavorable consequences related to family/
sponsor unification or legal matters (e.g., immigration relief). It 
would also include prohibiting the use of forced chores or other 
activities that serve no

[[Page 34502]]

purpose except to demean or humiliate an unaccompanied child, search an 
unaccompanied child's personal belongings solely for the purpose of 
behavior management, and medical interventions that are not prescribed 
by a medical provider acting within the usual course of professional 
practice for a medical diagnosis or that increase risk of harm to the 
unaccompanied child or others. Under Sec.  410.1304(a)(2), ORR proposed 
in the NPRM to require that any sanctions employed not adversely affect 
either an unaccompanied child's health or physical, emotional, or 
psychological well-being; or deny an unaccompanied child meals, 
hydration, sufficient sleep, routine personal grooming activities, 
exercise (including daily outdoor activity), medical care, 
correspondence or communication privileges, or legal assistance. ORR 
noted that under Sec.  410.1305 of the NPRM it proposed requiring 
training for care provider facility staff on behavior management 
strategies, including the use of de-escalation strategies. Under Sec.  
410.1304(a)(3), ORR proposed in the NPRM to prohibit the use of prone 
physical restraints, chemical restraints, or peer restraints for any 
reason in any care provider facility setting.
    ORR proposed in the NPRM, language at Sec.  410.1304(b), requiring 
that involvement of law enforcement would be a last resort and a call 
by a care provider facility to law enforcement may trigger an 
evaluation of staff involved regarding their qualifications and 
training in trauma-informed, de-escalation techniques. ORR noted that 
calls to law enforcement are not considered a behavior management 
strategy, and care provider facilities are expected to apply other 
means to de-escalate concerning behavior. But in some cases, such as 
emergencies or where the safety of unaccompanied children or staff are 
at issue, care provider facilities may need to call 9-1-1. ORR also 
noted that Sec.  410.1302(f) describes requirements for care provider 
facilities regarding the sharing of information about unaccompanied 
children. Additionally, because ORR would like to ensure law 
enforcement is called in response to an unaccompanied child's behavior 
only as a last resort in emergencies or where the safety of 
unaccompanied children or staff are at issue, ORR requested comments on 
the process ORR should require care provider facilities to follow 
before engaging law enforcement, such as the de-escalation strategies 
that must first be attempted and the specific sets of behaviors 
exhibited by unaccompanied children that warrant intervention from law 
enforcement.
    ORR proposed in the NPRM at Sec.  410.1304(c) to prohibit standard 
programs and RTCs from the use of seclusion as a behavioral 
intervention. ORR noted that this prohibition on the use of seclusion 
specifically relates to its potential use as a behavioral intervention, 
and not to a medical need for isolation or quarantine, as discussed in 
Sec.  410.1307(a)(10). Standard programs and RTCs would also be 
prohibited from using restraints, except as described at proposed Sec.  
410.1304(d) and (f). In emergency safety situations only, ORR proposed 
in the NPRM that standard programs and RTCs should be permitted to use 
personal restraints under Sec.  410.1304(d). ORR believes that 
emergency safety situations should be prevented wherever possible and 
that personal restraints should only be used after de-escalation 
strategies and less restrictive approaches have been attempted and 
failed. As such, ORR emphasized in its proposed requirements under 
Sec.  410.1304(a) that behavior management strategies used by care 
provider facilities be evidence-based, trauma-informed, and 
linguistically responsive. ORR further emphasized in its requirements 
under proposed Sec.  410.1305 that staff must be trained in these 
behavior management strategies, including de-escalation techniques.
    In secure facilities, not including RTCs, there may be situations 
where an unaccompanied child becomes a danger to themselves, other 
unaccompanied children, care provider facility staff, or property. As a 
result, secure facilities may need to employ more restrictive forms of 
behavior management than shelters or other types of care provider 
facilities in emergency safety situations or during transport to or 
from immigration court or asylum interviews when there are certain 
imminent safety concerns. ORR noted that under proposed Sec.  
410.1303(f) in the NPRM and ORR's current policy, all care provider 
facilities, regardless of setting, are required to report any emergency 
incident, significant incident, or program-level event to ORR, and in 
accordance with any applicable Federal, State, and local reporting 
laws.
    Therefore, ORR proposed in the NPRM under Sec.  410.1304(e)(1) to 
allow secure facilities except for RTCs to use personal restraints, 
mechanical restraints, and/or seclusion in emergency safety situations. 
ORR noted under proposed Sec.  410.1304(a)(3) that the use of prone 
physical restraints, chemical restraints, or peer restraints is 
prohibited for any reason for all care provider facilities, including 
secure facilities. ORR proposed in the NPRM at Sec.  410.1304(e)(2) to 
allow secure facilities to restrain an unaccompanied child for their 
own immediate safety or that of others during transport to an 
immigration court or an asylum interview. ORR proposed in the NPRM at 
Sec.  410.1304(e)(3) that secure facilities may restrain an 
unaccompanied child while at an immigration court or asylum interview 
if the child exhibits imminent runaway behavior, makes violent threats, 
demonstrates violent behavior, or if the secure facility has made an 
individualized determination that the child poses a serious risk of 
violence or running away if the child is unrestrained in court or the 
interview. ORR noted that while secure facilities may have safety or 
runaway risk concerns for which they deem restraints necessary for 
certain unaccompanied children, immigration judges retain discretion to 
provide input as to whether the unaccompanied child should remain in 
restraints while in their courtroom. ORR proposed in the NPRM to 
require under Sec.  410.1304(e)(4) that secure facilities must provide 
all mandated services under this subpart to an unaccompanied child, to 
the greatest extent practicable under the circumstances, while ensuring 
the safety of the unaccompanied child, other unaccompanied children at 
the secure facility, and others. Finally, under Sec.  410.1304(f) ORR 
proposed in the NPRM to allow care provider facilities to use soft 
restraints (e.g., zip ties and leg or ankle weights) only during 
transport to and from secure facilities, and only when the care 
provider believes a child poses a serious risk of physical harm to self 
or others or a serious risk of running away from ORR custody.
    Comment: One commenter wrote that proposed Sec.  410.1304(a) aligns 
with many State laws and recommended that ORR require care provider 
facilities to employ trauma-informed, evidence-based de-escalation and 
intervention techniques when responding to the behavior. The commenter 
recommended an additional provision under Sec.  410.1304(b) requiring 
that trauma-informed, evidence-based de-escalation and intervention 
techniques be exhausted before resorting to law enforcement, and that 
facilities should develop collaborative relationships with community-
based service organizations that provide culturally relevant and 
trauma-informed services to the children served by the facility.
    Response: Section 410.1304(a) of this final rule provides that care 
provider facilities must develop behavior

[[Page 34503]]

management strategies that include evidence-based, trauma-informed, and 
linguistically responsive program rules and behavior management 
policies, and notes that the requirements for these strategies include 
behavior intervention techniques utilized by care provider facilities. 
As discussed in the preamble of the NPRM, examples of evidence-based 
standards and approaches may include setting clear and healthy 
expectations and limits for their behaviors and the behaviors of 
others, creating a healthy structured environment with routines and 
schedules, utilizing positive reinforcement strategies and avoiding 
negative reinforcement strategies, and fostering a supportive 
environment that encourages cooperation, problem-solving, healthy de-
escalation strategies, and positive behavioral management skills (88 FR 
68941). ORR notes that under Sec.  410.1305 it is finalizing a 
requirement for training for staff at standard programs and restrictive 
placements on the behavior management strategies, including the use of 
de-escalation strategies. ORR is revising Sec.  410.1304(a) to state 
``shall'' instead of ``must'' and ``care provider facilities shall'' 
instead of ``the behavior management strategies must'' to reflect that 
these are requirements of care provider facilities. ORR is also 
revising Sec.  410.1304(a)(1) to replace ``family/sponsor'' with 
``sponsor,'' as family in this context is redundant of sponsor.
    Related to the recommendations for Sec.  410.1304(b), ORR 
reiterates its discussion in the NPRM that ORR expects care provider 
facilities to apply other means to de-escalate concerning behavior 
before a call to law enforcement is made. ORR notes that it requested 
comments in the NPRM on the process ORR should require care provider 
facilities to follow before engaging law enforcement, such as the de-
escalation strategies that must first be attempted and the specific 
sets of behaviors exhibited by unaccompanied children that warrant 
intervention from law enforcement.
    Comment: One commenter recommended that access to privacy should 
not be routinely used as an incentive or punishment for behavior 
management because they believe it is ineffective.
    Response: ORR believes that having a reasonable right to privacy is 
important for unaccompanied children and is in line with the 
requirements under Exhibit 1 of the FSA, and for that reason has 
further revised its proposal to add Sec.  410.1302(c)(14) to require a 
reasonable right to privacy as a minimum standard. ORR believes its 
revisions at Sec.  410.1302(c)(14) establishing a reasonable right to 
privacy as a minimum standard adequately protects unaccompanied 
children's access to privacy related to behavior management as well.
    Comment: A few commenters supported the prohibition of certain 
practices under Sec.  410.1304(a)(2)(ii) and recommended that that the 
provision should also state that limiting access to religious services 
should not be a punishment for behavior, as children who miss religious 
services often report anxiety and frustration.
    Response: ORR believes that access to religious services is an 
important source of support for unaccompanied children and is therefore 
revising Sec.  410.1304(a)(2)(ii) to include religious observation and 
services as part of the activities and items care provider facilities 
shall not deny as part of behavior management strategies.
    Comment: In response to ORR's request in the NPRM for comments on 
the process ORR should require care provider facilities to follow 
before engaging law enforcement, one commenter recommended factors to 
consider before a call to law enforcement, including the nature, 
duration, and severity of the risk; the probability that the potential 
injury will actually occur; and whether reasonable modifications of 
policies, practices, or procedures or the provision of auxiliary aids 
or services will mitigate the risk without the involvement of law 
enforcement. Another commenter recommended ORR implement a trauma-
informed care system that begins at the moment a child first enters ORR 
custody, rather than in the midst of a crisis that warrants 
intervention. Another commenter recommended that ORR implement 
behavioral support systems that are fair, consistent, and equitably 
enforced, with consideration for individualized needs and unconscious 
bias.
    Response: ORR thanks the commenters for their feedback related to 
ORR's request for comments on the procedures that care provider 
facilities should be required to follow before engaging law 
enforcement. ORR may consider these suggestions for future policymaking 
in this area.
    Comment: Several commenters did not support Sec.  410.1304(b) as 
proposed in the NPRM and were concerned that it would disincentivize 
staff from contacting law enforcement with safety concerns or reporting 
escalating behavior. Some commenters were concerned that a call to law 
enforcement could trigger an evaluation of the staff involved, but not 
an evaluation of the child's behavior or the care provider facility's 
policies or procedures. One commenter stated that law enforcement could 
be effective in preventing children from being involved in emergencies 
and are better equipped to respond to such situations. One commenter 
noted that in some cases, like emergencies, care provider facilities 
may need to call 9-1-1. Other commenters did not support the proposal 
under Sec.  410.1304(b) and were concerned that it would impede the 
ability of law enforcement to investigate child trafficking.
    Response: ORR disagrees that engaging law enforcement is an 
effective first-line strategy to prevent emergency safety situations 
arising from behaviors, because as stated in the preamble to the NPRM, 
ORR does not believe that calls to law enforcement are an effective 
behavior management strategy, and care provider facilities are expected 
to apply other means to de-escalate concerning behavior (88 FR 68942). 
ORR reiterates that it does believe that calls to law enforcement may 
sometimes be necessary when other less restrictive approaches have been 
tried and failed, when there is an emergency, or when the safety of 
children or staff are at issue, and that care provider facilities may 
need to call 9-1-1 as a last resort. ORR's proposal is intended to 
ensure that calls to law enforcement occur only in these limited 
scenarios, and that an evaluation of staff may be required to determine 
compliance with this proposal.
    ORR notes that it is finalizing under Sec.  410.1303(g) that all 
care provider facilities, regardless of setting, are required to report 
any emergency incident, significant incident, or program-level event to 
ORR, and in accordance with any applicable Federal, State, and local 
reporting laws. ORR routinely reviews all such reports and determines 
whether further follow-up or corrective actions are necessary when care 
providers are out of compliance with ORR's requirements. Further, ORR 
is finalizing behavior management requirements under Sec.  410.1304(a) 
pursuant to which care providers shall use evidence-based, trauma-
informed, and linguistically responsive program rules and behavior 
management policies.
    Comment: A few commenters supported the proposal under Sec.  
410.1304(b) and had recommendations related to calls to law enforcement 
for unaccompanied children with disabilities. Recommendations included 
that a call to law enforcement should trigger a mandatory evaluation of 
the involved staff and of compliance with

[[Page 34504]]

the requirements of the child's current ISP, as well as a re-assessment 
of the child's ISP and whether the child needs additional services or 
reasonable modifications.
    Response: ORR will study these important issues further and will 
consider the commenters' recommendations in future policymaking, which 
may be informed by the anticipated comprehensive disability needs 
assessment that ORR will be undertaking in collaboration with subject 
matter experts, and ORR's development of a disability plan.
    Comment: One commenter was concerned that the proposal would impede 
whistleblowers and limit outside accountability.
    Response: ORR does not believe that requiring a call to law 
enforcement be a last resort to address behavior issues impedes the 
ability of whistleblowers, and notes that this requirement under Sec.  
410.1304(b) is specific to behavior management. ORR wishes to emphasize 
that no portion of this regulation impacts the rights, protections, and 
vital work of whistleblowers in protecting children in ORR custody and 
for the general public interest. ORR notes that it is finalizing its 
proposal to require, under Sec.  410.1303(g), reporting of all program-
level events, significant incidents, and emergency incidents consistent 
with any applicable Federal, State, and local reporting laws because 
ORR believes such reporting can increase safety for children in ORR's 
care, and promote transparency and improve the care provided. 
Specifically related to child trafficking, ORR's current policies, as 
outlined in the ORR Policy Guide, require that care provider facilities 
report suspicions about the possibility of human trafficking or 
smuggling to OTIP within 24 hours, and that a child be referred to a 
child advocate for support if a historical disclosure is made related 
to labor or sex trafficking. Lastly, ORR is finalizing its proposal 
under Sec.  410.2000 to establish a UC Office of the Ombuds; its goals 
in doing so are to provide an independent and impartial body that can 
receive reports and grievances regarding the care, placement, services, 
and release of unaccompanied children.
    Comment: One commenter stressed that special consideration should 
be given to Indigenous children when calling law enforcement due to 
historical and ongoing trauma of Indigenous peoples in their countries 
of origin.
    Response: ORR thanks the commenter for their feedback. ORR agrees 
that culturally sensitive and trauma-informed approaches should be 
exhausted first before resorting to a call to law enforcement for all 
unaccompanied children, including Indigenous children, and that 
individual needs assessments, outlined at Sec.  410.1302(c)(2), are an 
important part of taking the historical and cultural backgrounds of 
children into account when developing goals and plans for the children 
while in ORR care.
    Comment: A few commenters supporting the proposal had additional 
recommendations, including requiring that a child's contact with law 
enforcement trigger a referral for mental health services; requiring an 
evaluation of staff in all instances of calls to law enforcement due to 
the impact of unconscious bias and potential harm to children from 
unnecessary interactions with the police; requiring staff to apply 
other trauma-informed, evidence-based, age appropriate and strengths-
based means to deescalate concerning behavior, and principles for 
effective de-escalation, such as requiring a mental health response for 
a mental health crisis. One commenter recommended that ORR clarify that 
law enforcement should only be called in emergency safety situations.
    Response: ORR believes that the mental health needs of 
unaccompanied children should be supported, and for that reason is 
finalizing at Sec.  410.1307(a)(1) that care provider facilities must 
have mental health professionals as part of their network of licensed 
healthcare providers to ensure access to such healthcare services, and 
at Sec. Sec.  410.1302(c)(5) and (6) that individual and group 
counseling must be provided to unaccompanied children. ORR believes 
that calls to law enforcement should only be made as a last resort, 
such as emergencies or where the safety of unaccompanied children or 
staff are at issue. ORR is not requiring staff evaluations in all 
instances of calls to law enforcement out of concern that this could 
prevent staff from calling law enforcement when it is indeed 
appropriate (i.e., in emergency safety situations when it is a last 
resort and other, less restrictive methods have been tried and failed).
    Comment: One commenter recommended that ORR require documentation 
of the use of restraints and seclusion, including the type of restraint 
used, if applicable, and the justification to align with external 
standards. The commenter also recommended that ORR clarify that any use 
of restraints should be treated as an emergency incident, significant 
incident, or program-level event subject to documentation under 
proposed Sec.  410.1303(f) in the NPRM. A few commenters recommended 
that ORR require documentation of any use of a restraint on a child, 
including the evidence the staff relied upon in determining that the 
use of a restraint or seclusion of a child was warranted. They 
recommended every instance in which a restraint is used on a child be 
reviewed and evaluated for compliance and staff qualification and 
training, noting that this can be used to determine whether any 
corrective action is warranted at the staff or facility-level.
    Response: ORR is finalizing under Sec.  410.1303(g) that all care 
provider facilities, regardless of setting, are required to report any 
emergency incident, significant incident, or program-level event to 
ORR, and in accordance with any applicable Federal, State, and local 
reporting laws. ORR notes that the definition of significant incident 
expressly includes the use of safety measures, such as restraints, and 
the definition of emergency incident means an urgent situation in which 
there is an immediate and severe threat to a child's safety and well-
being that requires immediate action. Accordingly, all uses of 
restraints or seclusion must be appropriately documented and reported 
to ORR, consistent with Sec.  410.1303(g). ORR believes these reporting 
requirements are sufficient to document the use of restraints and 
seclusion with enough detail to enable further incident review.
    ORR emphasizes that, as finalized under Sec.  410.1304(e)(1), 
mechanical restraints are permitted only in secure facilities (that are 
not RTCs), in emergency safety situations, and consistent with State 
licensure requirements. ORR notes that under Sec.  410.1001 it is 
finalizing the definition of emergency safety situation to mean a 
situation in which a child presents a risk of imminent physical harm to 
themselves, or others, as demonstrated by overt acts or expressed 
threats. ORR is further clarifying in the definition of mechanical 
restraints at Sec.  410.1001 by adding that, ``For purposes of the 
Unaccompanied Children Program, mechanical restraints are prohibited 
across all care provider types except in secure facilities, where they 
are permitted only as consistent with State licensure requirements.''
    ORR reiterates that, as discussed in the preamble of this final 
rule addressing subpart D and as it proposed in the NPRM, it believes 
that mechanical restraints should only be used after de-escalation 
strategies and less restrictive approaches have been attempted and 
failed (88 FR 68942). ORR further emphasizes that it is finalizing, 
under Sec.  410.1305(a), that

[[Page 34505]]

standard programs and restrictive placements (which include secure 
facilities) shall ensure that staff are appropriately trained on 
behavior management strategies, including de-escalation techniques. In 
addition, under Sec.  410.1303(g), all uses of mechanical restraint as 
well as personal restraint and seclusion must be appropriately 
documented and reported to ORR. ORR will use these reports to closely 
examine each use by a secure facility of restraints or seclusion to 
ensure that it comports with these regulations as well as governing 
Federal constitutional and statutory requirements.
    Comment: One commenter recommended that ORR adopt a requirement to 
frequently monitor a child during the use of restraints or seclusion, 
and that staff should use only the minimum amount of force for the 
minimum amount of time necessary to gain control of the child and that 
restraints should never be used in a manner that causes physical, 
emotional, or psychological pain, extreme discomfort, or injury. The 
commenter noted that this is in alignment with external standards.
    Response: For standard programs and RTCs, ORR reiterates that it is 
finalizing under Sec.  410.1304(c) that seclusion and restraint are 
prohibited, except for the circumstances under Sec.  410.1304(d) which 
permit the use of personal restraint only in emergency safety 
situations. ORR is revising Sec.  410.1304(c) to remove the phrase ``as 
a behavioral intervention'' because ORR believes seclusion is already 
distinct, by definition, from medical isolation. ORR reiterates 
believes that personal restraints should only be used after de-
escalation strategies and less restrictive approaches have been 
attempted and have failed.
    Related to secure facilities, ORR first notes that it is replacing 
``except for RTCs'' with ``(that are not RTCs)'' for consistency with 
phrasing throughout the regulation text of part 410. Furthermore, ORR 
is finalizing at Sec.  410.1304(e)(1) that personal restraint, 
mechanical restraint, and/or seclusion are permitted in emergency 
safety situations, and as consistent with State licensure requirements. 
ORR believes that adding ``and as consistent with State licensure 
requirements'' emphasizes how ORR requirements are intended to 
complement State requirements related to the use of restraints and 
seclusion in secure facilities that are not RTCs. Additionally, ORR is 
adding at Sec.  410.1304(e)(1) that ``All instances of seclusion must 
be supervised and for the short time-limited purpose of ameliorating 
the underlying emergency risk that poses a serious and immediate danger 
to the safety of others.'' ORR also notes that it is revising the 
definition of seclusion at Sec.  410.1001 to ``the involuntary 
confinement of a child alone in a room or area from which the child is 
instructed not to leave or is physically prevented from leaving'' by 
adding ``is instructed not to leave or.'' ORR believes that the use of 
restraints or seclusion should only be utilized in emergency safety 
situations, that staff should use only the minimum amount of force for 
the minimum amount of time necessary to gain control of the child, and 
that restraints and seclusion should never be used in a manner that 
causes physical, emotional, or psychological pain, extreme discomfort, 
or injury, but believes its policy otherwise as proposed is sufficient 
to protect children from improper use of restraints or seclusion. This 
policy is based on ORR's existing practices, and ORR prefers to keep 
the details of its policy in subregulatory guidance so ORR can make 
timely updates as best practices continue to evolve.
    Comment: One commenter wrote that unaccompanied children with 
disabilities are at a higher risk of being subjected to restraints or 
seclusion due to their disability-related behavior. While the commenter 
opposed the use of seclusion in any care provider setting, they 
recommended, at minimum, that any use of personal restraints or 
seclusion of a child with a disability trigger an evaluation of the 
staff involved, including an evaluation for compliance with the child's 
ISP and an assessment whether reasonable modifications could have 
eliminated the need for the use of restraint or seclusion. Finally, the 
commenter recommended that ORR delineate specific factors that staff 
should consider when deciding whether it is appropriate to utilize 
restraint or seclusion, such as the nature, duration, and severity of 
the risk presented by the child's behavior and develop guidance to 
ensure the child's physical health and safety and guard against the use 
of restraint or seclusion where contraindicated based on the child's 
individualized needs.
    Response: ORR agrees that a child's disability is an important 
factor to consider when determining whether restraint or seclusion is 
appropriate. As noted in the background discussion at III.B.4 and 
responses to previous comments, ORR is intending to work with experts 
to undertake a year-long comprehensive needs assessment to evaluate the 
adequacy of services, supports, and resources currently in place for 
unaccompanied children with disabilities in ORR's custody across its 
network, and to identify gaps in the current system, which will inform 
the development of a disability plan and future policymaking that best 
address how to effectively meet the needs of children in ORR's care and 
custody. These efforts will provide ORR with an opportunity to consider 
commenters' recommendations in greater depth.
    Comment: One commenter supported ORR's provision limiting the use 
of personal restraints to emergency safety situations. A few commenters 
wrote that ORR should ensure personal restraints are used only when 
absolutely necessary in emergency safety situations when the child 
presents an imminent risk of physical harm to self or others. One 
commenter recommended that ORR clarify that emergency safety situations 
should be prevented wherever possible; that alternative interventions 
to de-escalate emergency safety situations be exhausted, including 
following a child's ISP; that decisions on whether a situation 
necessitates personal restraints be made by staff with appropriate 
training and child welfare expertise; that care providers only be 
permitted to use a restraint for as long as necessary to ensure the 
safety of the child or others and use of the restraint must immediately 
end upon the cessation of the safety threat, with a maximum duration of 
15 minutes.
    Response: ORR agrees that emergency safety situations should be 
prevented wherever possible, and that personal restraint should only be 
used after de-escalation strategies and less restrictive approaches, 
such as any detailed in a child's ISP, have been attempted and failed. 
ORR also agrees that personal restraint should only be used when 
absolutely necessary in emergency safety situations and for that 
reason, is finalizing at Sec.  410.1304(d) that standard programs and 
RTCs may use personal restraint only in emergency safety situations. 
ORR further notes that under Sec.  410.1001 it is finalizing the 
definition of emergency safety situation to mean a situation in which a 
child presents a risk of imminent physical harm to themselves, or 
others, as demonstrated by overt acts or expressed threats.
    ORR notes that it included a training requirement for standard 
programs and restrictive placements to ensure that staff are 
appropriately trained on behavior management strategies, including de-
escalation techniques, as a proposed requirement in the preamble 
discussion of Sec.  410.1304 (88 FR 68942) and Sec.  410.1305(a) (88 FR 
68943), but the training requirement was omitted in

[[Page 34506]]

error in the regulation text of Sec.  410.1305(a). As such, ORR is 
finalizing the requirement under Sec.  410.1305(a) that ``Standard 
programs and restrictive placements shall ensure that staff are 
appropriately trained on its behavior management strategies, including 
de-escalation techniques, as established pursuant to Sec.  410.1304.'' 
As previously discussed, ORR is not specifying further training topics 
in this rule so it can provide more timely, frequent, and iterative 
updates through its existing policies. However, ORR agrees that 
training on the use of restraints, including how to determine when a 
situation necessitates restraints, is a type of training that may be 
appropriately required of staff pursuant to Sec.  410.1305. ORR 
appreciates the commenters' feedback relating to potential time 
limitations on personal restraint and decisions by staff on whether 
restraint is necessitated.
    Comment: One commenter was concerned, related to Sec.  
410.1304(e)(2), that an unaccompanied child that is a danger to self or 
others during secure transport has that same level of risk regardless 
of the destination, and requested clarification.
    Response: While placed at secure facilities (that are not RTCs), 
children will rarely have the occasion to be transported for 
circumstances other than for appearances in immigration court or asylum 
interviews. However, because there could be other circumstances in 
which transportation is needed, we have revised 410.1304(e)(2) to apply 
to transportation generally. ORR notes that Sec.  410.1304(f) provides 
for the use of soft restraints during transport to and from secure 
facilities when the care provider facility believes a child poses a 
serious risk of physical harm to self or others or a serious risk of 
running away from ORR custody.
    Comment: One commenter was concerned about the use of restraints 
while unaccompanied children appear in immigration court or at an 
asylum interview and recommended that ORR include a requirement for 
staff to demonstrate that no reasonable alternative is available before 
using restraints in court proceedings.
    Response: ORR thanks the commenter for their feedback. ORR 
reiterates that secure facilities may have safety or runaway risk 
concerns for which they deem restraints necessary for certain 
unaccompanied children. Further, the conduct of an immigration court 
proceedings or asylum interviews are outside the scope of this rule. 
Therefore, ORR does not adopt the commenter's recommendation.
    Comment: One commenter was concerned about the qualifications of 
staff determining whether to use restraints during transport and while 
at immigration court or asylum hearings, noting that there is a risk of 
harm from unnecessary use of restraints and trauma-informed approaches 
are available instead. They recommended that the decision whether to 
use restraints be made by a licensed psychologist or psychiatrist and 
include a confirmation that there are no other alternatives available. 
Finally, the commenter recommended that ORR require care provider 
facilities to notify ORR, the child, and the legal services provider 
when restraints are being considered to coordinate with children and 
their legal representatives if assistance is requested to reschedule 
hearings or interviews or for other accommodations; and documenting any 
use of restraints.
    Response: ORR agrees that trauma-informed and less restrictive 
approaches should be attempted and failed before an unaccompanied child 
is restrained. ORR thanks the commenters for their feedback related to 
the qualifications of staff making determinations for the use of 
restraints and notifications related to the potential use or use of 
restraints. ORR is not requiring advanced notification related to the 
use of restraints because such decisions may be time-sensitive and in 
response to emergency safety situations or behaviors by the child that 
demonstrate a risk of harm. ORR notes that it is finalizing 
requirements requiring the reporting and documentation of any emergency 
incident, significant incident, or program level event, which include 
the documentation of the use of any restraints, and ORR has existing 
policies on the reporting of certain significant incidents to attorneys 
of record and legal service providers, among other individuals.
    Comment: One commenter was concerned about the use of restraints 
and seclusion in secure facilities under Sec.  410.1304(e), noting that 
the limitation to emergency safety situations is too vague and does not 
limit their use to exceptionally rare circumstances when there is no 
reasonable alternative to prevent escape or physical injury, as 
required by external standards. A few commenters opposed the provision 
because mechanical restraints and seclusion are not permitted in other 
placement types, due to concern over past alleged improper use of 
mechanical restraints and seclusion in secure facilities, because 
mechanical restraints and seclusion can cause harm even in emergency 
safety situations, and finally, because the commenter asserted that 
children in secure facilities have the greatest need for supports and 
services, mechanical restraints and seclusion are particularly 
inappropriate.
    Response: ORR reiterates that it proposed in the NPRM to only allow 
the use of mechanical restraints and seclusion in emergency safety 
situations, and that it believes that they should only be used after 
de-escalation strategies and less restrictive approaches have been 
attempted and failed (88 FR 68942). ORR notes that under Sec.  410.1001 
it is finalizing the definition of emergency safety situation to mean a 
situation in which a child presents a risk of imminent physical harm to 
themselves, or others, as demonstrated by overt acts or expressed 
threats, and is finalizing the definition of mechanical restraint to 
add ``For purposes of the Unaccompanied Children Program, mechanical 
restraints are prohibited across all care provider types except in 
secure facilities, where they are permitted only as consistent with 
State licensure requirements.''
    Final Rule Action: After consideration of public comments, ORR is 
revising Sec.  410.1304(a) by replacing ``must,'' as used in the NPRM, 
to ``shall'' and ``care provider facilities shall'' instead of ``the 
behavior management strategies must.'' ORR is revising Sec.  
410.1304(a)(1) to replace ``family/sponsor'' with ``sponsor.'' In 
addition, ORR is revising Sec.  410.1304(a)(2)(ii) to include 
``religious observation and services'' as one of the activities that 
care providers are prohibited from denying to unaccompanied children 
and is otherwise finalizing this section as proposed. Finally, ORR is 
revising Sec.  410.1304(e)(1) by adding ``and as consistent with State 
licensure requirements,'' and ``All instances of seclusion must be 
supervised and for the short time-limited purpose of ameliorating the 
underlying emergency risk that poses a serious and immediate danger to 
the safety of others;'' and by replacing ``except for RTCs'' with 
``(that are not RTCs).'' Finally, ORR is revising Sec.  410.1304(e)(2) 
to apply to transportation generally.
Section 410.1305 Staff, Training, and Case Manager Requirements
    Having requirements for staff, training, and case managers is in 
the best interest of unaccompanied children and is supportive to their 
health and development while in ORR care. ORR proposed in the NPRM at 
Sec.  410.1305 to establish certain requirements consistent with ORR's 
authority to oversee the infrastructure and personnel of facilities in 
which unaccompanied

[[Page 34507]]

children reside (88 FR 68942 through 68943).\254\ Under Sec.  
410.1305(a), ORR proposed in the NPRM to require that standard 
programs, restrictive placements, and post-release service providers, 
must provide training to all staff, contractors, and volunteers; and 
that training ensures that staff, contractors, and volunteers 
understand their obligations under ORR regulations and policies and are 
responsive to the challenges faced by staff and unaccompanied children 
at the facility. ORR anticipated that examples of training topics under 
this paragraph would include the rights of unaccompanied children, 
including to educational services, creating bias-free environments, 
supporting children with disabilities, supporting the mental health 
needs of unaccompanied children, trauma, child development, prevention 
of sexual abuse, the identification of victims of human trafficking, 
and racial and cultural sensitivity. Standard programs and restrictive 
placements would also be required to ensure that staff are 
appropriately trained on its behavior management strategies, including 
de-escalation techniques, as established pursuant to proposed Sec.  
410.1304. All trainings would be required to be tailored to the unique 
needs, attributes, and gender of the unaccompanied children in care at 
the individual care provider facility. For example, staff who work with 
early childhood unaccompanied children should be provided with training 
in early childhood care best practices. Additionally, case managers 
should be trained on child welfare best practices before providing 
services to children.\255\ Care provider facilities must document the 
completion of all trainings in personnel files. In addition to 
training, ORR would require all staff to complete background check 
requirements and vetting for their respective roles prior to service 
provision and care provider facilities would need to provide 
documentation to ORR of compliance.
    Under Sec.  410.1305(b), ORR proposed in the NPRM that standard 
programs and restrictive placements would be required to meet the 
staff-to-child ratios established by their respective States or other 
licensing entities, or ratios established by ORR if State licensure is 
unavailable. Under current practice, ORR generally requires staffing 
ratios of a minimum of 1 staff to 8 unaccompanied children during the 
day and 1 staff to 16 unaccompanied children at night while children 
are sleeping. If, however, State requirements require a stricter staff-
to-child ratio, then under Sec.  410.1305(b), ORR proposed in the NPRM 
to require the care provider to abide by that smaller ratio.
    Standard programs and restrictive placements must provide case 
management services in their facilities. Effective case management 
systems and policy are important to ensuring care provider facilities 
are effective in attaining positive outcomes for unaccompanied 
children. Areas for attention include specifying case manager-to-
unaccompanied-child ratios that take the occupancy level of the 
facility into account, ensuring that case management staff are site-
based and provide their services in person, and ensuring that case 
management staffing levels are appropriate to meet ORR's standards for 
the length of care of unaccompanied children. ORR proposed in the NPRM 
to require under Sec.  410.1305(c) that standard programs and 
restrictive placements have case managers based at the facility's site. 
To meet the unique needs of a given facility, ORR could then determine 
the appropriate ratio of case managers-per-unaccompanied-child through 
its cooperative agreements and contracts with care provider facilities, 
as appropriate. This will allow ORR to include changes in the staffing 
ratio relative to the occupancy of unaccompanied children at the 
facility and consider the policies related to unaccompanied children's 
length of stay.
    Before proceeding to discuss comments on Sec.  410.1305, ORR would 
like to discuss a key issue raised by commenters relating to Sec.  
410.1302 that pertain to Sec.  410.1305 as well. Several commenters 
expressed concern that the proposed language ``or that meets other 
requirements specified by ORR'' at Sec.  410.1302(a) was not 
sufficiently specific or clear and could lead to allowing programs to 
avoid licensure requirements even in a State where licensing is 
available. In response, ORR revised its requirement under Sec.  
410.1302(a) to make clear that if a standard program is in a State that 
does not license care provider facilities because they serve 
unaccompanied children, the standard program must still meet the State 
licensing requirements that would apply if the State allowed for 
licensure. Similarly, ORR is revising Sec.  410.1305(b), to remove ``or 
ratios established by ORR if State licensure is unavailable'' and to 
apply to ``care provider facilities'' to replace ``standard programs 
and restrictive placements.'' Therefore, ORR is requiring at Sec.  
410.1305(b) that care provider facilities shall meet the staff-to-child 
ratios established by their respective States or other licensing 
entities.
    Comment: One commenter recommended that ORR require standard 
programs that are congregate care facilities to have registered or 
licensed nurse and other licensed clinical and child welfare staff 
onsite.
    Response: ORR thanks the commenter for their recommendation. ORR 
includes requirements for care provider facilities to have clinician 
and lead clinician positions within its cooperative agreements and 
believes this is sufficient to ensure clinical oversight at standard 
programs.
    Comment: Several commenters recommended all staff and contractors 
interacting with children in ORR custody receive training in trauma-
informed care approaches. A few commenters noted that such training 
improves awareness of trauma-related symptoms, promotes an emotionally 
safe environment, and provides interventions to mitigate the effects of 
trauma. Several commenters recommended that ORR mandate training on 
comprehensive, trauma-informed, culturally, and linguistically best 
practices for all staff and providers who have access to unaccompanied 
children.
    Response: ORR notes that it included a proposed training 
requirement in the preamble discussion of Sec.  410.1304 (88 FR 68942) 
and Sec.  410.1305(a) (88 FR 68943) for standard programs and 
restrictive placements to ensure that staff are appropriately trained 
on its behavior management strategies, including de-escalation 
techniques; however, the training requirement was omitted in error in 
the regulation text of Sec.  410.1305(a). As such, ORR is adding the 
requirement under Sec.  410.1305(a) that ``Standard programs and 
restrictive placements shall ensure that staff are appropriately 
trained on its behavior management strategies, including de-escalation 
techniques, as established pursuant to Sec.  410.1304.'' ORR further 
notes that the preamble to the NPRM describes examples of trainings 
that standard programs and restrictive placements may provide, 
including: the rights of unaccompanied children, including to 
educational services, creating bias-free environments, supporting 
children with disabilities, supporting the mental health needs of 
unaccompanied children, trauma, child development, prevention of sexual 
abuse, the identification of victims of human trafficking, and racial 
and cultural sensitivity (88 FR 68943). ORR notes that it is also 
revising Sec.  410.1305(a) to remove the phrase ``at

[[Page 34508]]

the facility'' for clarity because it is a requirement for PRS 
providers, but PRS providers are not facility-based.
    Comment: One commenter recommended that ORR require congregate care 
facilities to conduct criminal records checks and checks on any State 
child abuse and neglect registries for adults working in the facility. 
A few commenters expressed concern that proposed Sec.  410.1305 does 
not include standards for minimum training or prohibitive background 
criteria.
    Response: ORR believes that thorough background checks for all care 
provider facility staff and contractors are a critical element of the 
UC Program. For that reason, ORR is finalizing at Sec.  410.1305(a) 
that standard programs and restrictive placements complete and document 
completion of background check requirements. Further, ORR's existing 
policies for care provider facilities require complete background 
investigations on staff, contractors, and volunteers, and a national 
criminal history fingerprint check if not already required by State 
law. ORR notes that 45 CFR part 411 sets forth the relevant background 
check requirements that staff at care provider facilities must undergo 
prior to being hired, which include criminal background checks, child 
protective services check, and in addition, staff must undergo periodic 
criminal background check updates every five years. These standards 
continue to apply. ORR will continue to use and update its existing 
guidance to provide more detailed requirements regarding background 
checks for care provider facilities. This includes having procedures in 
place to help care provider facilities navigate circumstances in which 
care provider facilities are awaiting the background check results of 
prospective personnel. ORR has encountered issues with some state 
public safety agencies that refuse to either conduct child safety 
background checks or conduct them in a timely manner. Because of this, 
ORR has memorialized into policy that care provider facility staff 
whose FBI background checks, sex offender registry checks, and 
reference checks are complete but whose Federal suitability 
investigation and Federally required State-based child abuse and 
neglect checks are not yet fully adjudicated must either be supervised 
by direct care staff whose checks are complete or satisfy the 
provisional hiring requirements that ORR has established in policy 
pursuant to 45 CFR part 411. Details on how ORR utilizes child welfare 
best practices and robust background check measures to onboard staff 
are further provided in ORR policy.
    Therefore, ORR is removing the proposed text ``prior to service 
provision'' and finalizing, ``All staff, contractors, and volunteers 
must have completed required background checks and vetting for their 
respective roles required by ORR'' in order to provide for the 
efficient onboarding of staff even if there is a delay in the 
completion of background checks due to circumstances outside the 
control of the care provider facility or staff member.
    Comment: A few commenters recommended that ORR require staff 
receive cultural competency training. One commenter specifically 
requested that such cultural competency training include indigenous 
cultural competency.
    A few commenters recommended that ORR mandate training on 
unaccompanied children's rights and responsibilities. One commenter 
recommended that ORR require care providers to provide their staff with 
quarterly Know Your Rights trainings to ensure that unaccompanied 
children, and Indigenous unaccompanied children in particular, are 
protected from human trafficking and other crimes while in ORR care. A 
few commenters recommended ORR mandate training on language access 
services and linguistically best practices for all staff and providers 
who have access to unaccompanied children.
    Many commenters recommended that ORR include staff training on 
gender identity and sexual orientation in order to support the needs of 
unaccompanied children in ORR care who identify as LGBTQI+.
    Many commenters recommended that ORR incorporate staff training on 
the impact of racial discrimination on sponsor communities and the 
criminal justice system, in order to inform the use of such information 
in unification decisions.
    Response: ORR thanks the commenters for their feedback and declines 
to accept commenter's recommendations to specify training topics. ORR 
believes these recommendations are consistent with the examples 
provided of training topics in the NPRM at 88 FR 68943, which included 
the rights of unaccompanied children, including to educational 
services, creating discrimination-free environments, supporting 
children with disabilities, supporting the mental health needs of 
unaccompanied children, trauma, child development, prevention of sexual 
abuse, the identification of victims of human trafficking, and racial 
and cultural sensitivity. ORR requires at Sec.  410.1305(a) that 
trainings provided are responsive to the challenges faced by staff and 
unaccompanied children. ORR believes that keeping the topics of 
trainings in subregulatory guidance will allow ORR to make more 
appropriate, timely, and iterative updates in keeping with best 
practices and to allow continued responsiveness to the needs of 
unaccompanied children and care provider facilities.
    Comment: One commenter expressed support for codifying an 
expectation of onsite case management but recommended that ORR 
strengthen the language in proposed Sec.  410.1305(c) to explicitly 
require that all case management occur in-person and onsite. This 
commenter expressed concern that the current language may be 
interpreted to permit virtual case management services, which commenter 
believes is insufficient to meet the needs of each individual 
unaccompanied child.
    Response: ORR believes its requirement at Sec.  410.1305(c) that 
standard programs and restrictive placement must have case managers 
based on site at the facility is sufficient for ensuring that case 
management services occur onsite, and for that reason is updating this 
requirement at Sec.  410.1305(c) to apply to all care provider 
facilities. ORR believes this requirement provides care provider 
facilities some flexibility to meet the needs for case management of 
unaccompanied children while balancing the potential operational 
infeasibility of providing onsite services for all case management. ORR 
encourages care provider facilities to provide onsite services to the 
fullest extent possible.
    Final Rule Action: After consideration of public comments, ORR is 
revising Sec.  410.1305(a) to remove the phrases ``at the facility'' 
and ``prior to service provision'' and to replace ``and must provide 
documentation to ORR of compliance'' with ``required by ORR.'' So that 
it states ``All staff, contractors, and volunteers must have completed 
required background checks and vetting for their respective roles 
required by ORR, '' instead of ``All staff, contractors, and volunteers 
must have completed all required background checks and vetting for 
their respective roles prior to service provision and care provider 
facilities must provide documentation to ORR of compliance,'' and to 
replace ``standard programs and restrictive placements'' with ``care 
provider facilities.'' ORR is adding the requirement under Sec.  
410.1305(a) that ``Standard programs and restrictive placements shall 
ensure that staff are appropriately trained on its

[[Page 34509]]

behavior management strategies, including de-escalation techniques, as 
established pursuant to Sec.  410.1304.'' ORR is revising Sec.  
410.1305(b) to remove the phrase ``or ratios established by ORR if 
State licensure is not available'' and to apply to ``care provider 
facilities'' to replace ``standard programs and restrictive 
placements.'' ORR is revising Sec.  410.1305(c) to apply to ``care 
provider facilities'' to replace ``standard programs and restrictive 
placements.'' ORR is otherwise finalizing Sec.  410.1305 as proposed.
Section 410.1306 Language Access Services
    ORR described under Sec.  410.1306 proposed requirements to provide 
language accessibility for unaccompanied children (88 FR 68943 through 
68945). ORR believes that it is important to establish specific, 
minimum language access requirements, which are critical to ensuring 
that unaccompanied children understand their rights, the release 
process, and the services they may receive while in ORR care. In the 
NPRM, ORR's proposed requirements under Sec.  410.1306 applied to 
standard programs and restrictive placements. As discussed later in 
this section, ORR's finalized language access service requirements 
apply to all care provider facilities.
    Under Sec.  410.1306(a), ORR proposed in the NPRM that standard 
programs and restrictive placements would be required, to the greatest 
extent practicable, to consistently offer all unaccompanied children 
the option of interpretation and translation services in their native 
or preferred language, depending on their preference, and in a way they 
understand to the greatest extent practicable (88 FR 68943). ORR noted 
in the NPRM that under 45 CFR 85.51, standard programs and restrictive 
placements shall also ensure effective communication with unaccompanied 
children with disabilities (88 FR 68945). This includes furnishing 
appropriate auxiliary aids and services such as qualified sign language 
interpreters, Braille materials, audio recordings, note-takers, and 
written materials, as appropriate for the unaccompanied child. In the 
NPRM, ORR stated that under its existing policies, standard programs 
and restrictive placements are required to make every effort possible 
to provide interpretation and translation services (88 FR 68943). 
However, ORR noted in the NPRM its belief that it was important to 
propose the additional requirement that standard programs and 
restrictive placements consistently offer each unaccompanied child the 
option of effective interpretation and translation services to ensure 
meaningful and timely access to these services. ORR stated in the NPRM 
that if standard programs and restrictive placements are unable to 
obtain a qualified interpreter or translator in the unaccompanied 
children's native or preferred language, depending on their preference, 
after taking reasonable efforts, standard programs and restrictive 
placements would then be required to consult with qualified ORR staff 
(under current policy, the Federal Field Specialist and Project 
Officer) for guidance on how to provide meaningful access to their 
programs and activities to children with limited English proficiency 
(88 FR 68943). Under the proposals in the NPRM, standard programs and 
restrictive placements would be permitted to use professional 
telephonic interpreter services after they take reasonable efforts to 
obtain in-person, qualified interpreters (as defined). In the NPRM, ORR 
stated its belief that the proposals struck a good balance between the 
importance of interpretation and translation services and the reality 
of the vast array of language access needs of unaccompanied children. 
In the NPRM, ORR stated that standard programs and restrictive 
placements would also be required to translate all documents and 
materials shared with unaccompanied children in their native or 
preferred language, depending on their preference, and in a timely 
manner.
    To ensure efficient and reliable access to necessary interpretation 
and translation services during placement, ORR stated in the NPRM that 
under Sec.  410.1306(b) it would be required to make placement 
decisions informed by language access considerations (88 FR 68943). In 
the NPRM, ORR proposed that to the extent it is appropriate and 
practicable, giving due consideration to unaccompanied child's 
individualized needs, ORR would place unaccompanied children with 
similar language needs within the same standard program or restrictive 
placement. ORR stated its belief that this would further ensure the 
efficient use of resources while also considering the need for timely 
and appropriate placement.
    ORR proposed in the NPRM at Sec.  410.1306(c) to codify language 
access requirements during intake, orientation, and while informing 
unaccompanied children of their rights to confidentiality and limits of 
confidentiality of information while in ORR care (88 FR 68944). ORR 
stated in the NPRM that under current ORR practice, among other things, 
standard programs and heightened supervision facilities complete an 
initial intakes assessment of an unaccompanied child; provide a 
standardized orientation that is appropriate for the age, culture, 
language, and accessibility needs of the unaccompanied child; and 
complete a UC Assessment that covers biographic, family, legal/
migration, medical, substance use, and mental health history and is 
subject to ongoing updates. ORR stated in the NPRM that under current 
practice, standard programs and restrictive placements provide 
unaccompanied children with a Disclosure Notice, which is an ORR 
document explaining the limits to the confidentiality of information 
unaccompanied children share while in ORR care and custody, as well as 
the types of information that standard programs and restrictive 
placements and ORR must share if disclosed by the unaccompanied 
children for the safety of the unaccompanied children or for the safety 
of others.
    ORR proposed in the NPRM under Sec.  410.1306(c)(1) to require that 
standard programs and restrictive placements both provide a written 
notice of the limits of confidentiality they share while in ORR care 
and custody, and to orally explain the contents of the written notice 
to the unaccompanied children, in their native preferred language, 
depending on their preference, and in a way they can effectively 
understand (88 FR 68944). Under the proposals in the NPRM, standard 
programs and restrictive placements would be required to do both prior 
to the completion of the UC Assessment, and prior to unaccompanied 
children starting counseling services as proposed at Sec.  
410.1302(c)(5) and (6).
    ORR proposed in the NPRM under Sec.  410.1306(c)(2), to require 
that standard programs and restrictive placements would be required to 
ensure assessments and initial medical exams are conducted in the 
unaccompanied children's native or preferred language, depending on 
their preference, and in a way they effectively understand (88 FR 
68944). ORR proposed in the NPRM under Sec.  410.1306(c)(3) to require 
that standard programs and heightened supervision facilities provide a 
standardized and comprehensive orientation to all unaccompanied 
children within 48 hours of admission in the unaccompanied children's 
native or preferred language and in a way they effectively understand 
regardless of spoken language, reading comprehension level, or 
disability. Further, under Sec.  410.1306(c)(4), ORR proposed in the 
NPRM for all step-ups to and step-downs from restrictive

[[Page 34510]]

placements, standard programs and restrictive placements would be 
required to specifically explain to the unaccompanied children why they 
were placed in a restrictive placement or, if stepped down, why their 
placement was changed, while doing so in the unaccompanied children's 
native or preferred language, and in a way they effectively understand.
    Under Sec.  410.1306(c)(5), ORR proposed in the NPRM that if the 
unaccompanied children are not literate, or if documents provided 
during intakes and/or orientation are not in a language that they can 
read and effectively understand, standard programs and restrictive 
placements would be required to have a qualified interpreter orally 
translate or sign language translate and explain all the documents in 
the unaccompanied children's native or preferred language, depending on 
their preference, and confirm with the unaccompanied children that they 
fully comprehend all materials (88 FR 68944). Additionally, at Sec.  
410.1306(c)(6) and (7), ORR proposed in the NPRM that standard programs 
and restrictive placements would be required to provide unaccompanied 
children information regarding grievance reporting and ORR's sexual 
abuse and harassment policies and procedures in the unaccompanied 
children's native or preferred language, based on their preference, and 
in a way they effectively understand. Under Sec.  410.1306(c)(8), ORR 
proposed in the NPRM that standard programs and restrictive placements 
would be required to notify the unaccompanied children that standard 
programs and restrictive placements will accommodate the unaccompanied 
children's language needs while they remain in ORR care.
    Under Sec.  410.1306(c)(9), with respect to all requirements 
described in Sec.  410.1306(c), ORR proposed in the NPRM to require 
standard programs and restrictive placements to document in each 
unaccompanied children's case file that they acknowledged that they 
effectively understand what was provided to them (88 FR 68944).
    Under Sec.  410.1306(d), ORR described proposed requirements 
regarding language access and education. In order to provide meaningful 
education services to unaccompanied children, ORR believes that it is 
important to ensure that educational services are presented to 
unaccompanied children in a language that is accessible to them. In the 
NPRM, ORR proposed at section 410.1306(d)(1) to require standard 
programs and heightened supervision facilities to provide educational 
instruction and relevant materials in a format and language accessible 
to all unaccompanied children, regardless of their native or preferred 
language, including by providing in-person interpretation, professional 
telephonic interpretation, and written translations, all by qualified 
interpreters or translators. ORR proposed in the NPRM under Sec.  
410.1306(d)(2) to require standard programs and heightened supervision 
facilities to provide recreational reading materials in formats and 
languages accessible to all unaccompanied children, which would 
facilitate their out-of-class enrichment and engagement. ORR proposed 
in the NPRM under Sec.  410.1306(d)(3) to require standard programs and 
heightened supervision facilities to translate all ORR-required 
documents provided to unaccompanied children for use in educational 
lessons, in formats and languages accessible to all unaccompanied 
children.
    ORR believes that it is important to ensure that the unaccompanied 
children's religious and cultural expressions, practices, and 
identities are accommodated to the extent practicable. Accordingly, 
under Sec.  410.1306(e), when an unaccompanied child makes a reasonable 
request for religious and/or cultural information or other religious/
cultural items, such as books or clothing, ORR proposed in the NPRM the 
standard program or restrictive placement would be required to provide 
the applicable items, in the unaccompanied child's native or preferred 
language, depending on the unaccompanied child's preference. At the 
same time, with respect to the obligations of care provider facilities, 
ORR noted that it operates the UC Program in compliance with the 
requirements of the Religious Freedom Restoration Act and other 
applicable Federal conscience protections, as well as all other 
applicable Federal civil rights laws and applicable HHS regulations (88 
FR 68944).\256\
    ORR proposed in the NPRM in Sec.  410.1306(f) that standard 
programs and restrictive placements would be required to utilize any 
necessary professional interpretation or translation services needed to 
ensure meaningful access by an unaccompanied child's parent(s), 
guardian(s), and/or potential sponsor(s). Under the proposals in the 
NPRM, standard programs and restrictive placements would also be 
required to translate all documents and materials shared with the 
parent(s), guardian(s), and/or potential sponsors in their native or 
preferred language, depending on their preference. ORR noted in the 
NPRM that under 45 CFR 85.51, standard programs and restrictive 
placements shall also ensure effective communication with parent(s), 
guardian(s), and/or potential sponsor(s) with disabilities (88 FR 
68944).
    In the NPRM, ORR acknowledged the importance of making appropriate 
interpretation and translation services available to all unaccompanied 
children while receiving healthcare services so that they understand 
the services that are being offered and/or provided (88 FR 68945). 
Under Sec.  410.1306(g), while unaccompanied children are receiving 
healthcare services, ORR proposed in the NPRM to require that standard 
programs and restrictive placements ensure that unaccompanied children 
are able to communicate with physicians, clinicians, and other 
healthcare staff in their native or preferred language, depending on 
their preference, and in a way they effectively understand, 
prioritizing services from an in-person, qualified interpreter before 
using professional telephonic interpretation services.
    In the NPRM, Sec.  410.1306(h) proposed language access 
requirements for standard programs and restrictive placements while 
unaccompanied children receive legal services. To facilitate 
unaccompanied children receiving effective legal services, ORR stated 
its belief that it is essential that unaccompanied children understand 
the legal services offered to them and the process for participation in 
removal proceedings post-release, and accordingly, unaccompanied 
children should be provided with meaningful access to language services 
as relates to legal services (88 FR 68945). ORR proposed in the NPRM to 
require that standard programs and restrictive placements make 
qualified interpretation and translation services available upon 
request to unaccompanied children, child advocates, and legal service 
providers while unaccompanied children are being provided with legal 
services. Additionally, ORR proposed in the NPRM in Sec.  410.1306(i) 
that interpreters and translators would be required to keep information 
about the unaccompanied children's cases and/or services confidential 
from non-ORR grantees, contractors, and Federal staff.
    Comment: A number of commenters supported ORR's proposals for 
language access services, stating the proposals ensure unaccompanied 
children can effectively communicate with their caregivers, legal 
representatives, and other service providers. One commenter 
specifically supported the requirement that care provider facilities 
offer all unaccompanied children the option of interpretation and 
translation services

[[Page 34511]]

in their native or preferred language, depending on their preference, 
and in a way they understand to the greatest extent practicable. 
Another commenter supported consistently offering all unaccompanied 
children the option of interpretation and translation services; 
language access considerations informing placement decisions; and 
providing educational instruction, relevant materials, appropriate 
recreational reading materials, and documents that are part of the 
educational lessons in a format and language accessible to all 
children. This commenter stated that language access is critical to 
ensure unaccompanied children can fully participate in available 
services and effectively communicate with their caregivers about their 
needs and reduce the isolation that comes with being unable to 
communicate. Another commenter supported providing language access 
services when an unaccompanied child received legal services, stating 
legal service providers and child advocates cannot render effective 
services without quality interpretation and translation, and the 
commenter also supported providing interpretation and translation 
services for children who speak indigenous dialects, which the 
commenter stated has been a problem.
    Response: ORR thanks the commenters for their support. As described 
in the NPRM, ORR's proposed requirements under Sec.  410.1306 applied 
to standard programs and restrictive placements. Upon further review of 
this section and other finalized requirements, ORR is revising Sec.  
410.1306 such that the language access service requirements apply to 
all care provider facilities.
    Comment: A few commenters recommended ORR clarify how care provider 
facilities will identify an unaccompanied child's native or preferred 
language. One commenter recommended that ORR specify the methods and 
tools care provider facilities should use to comprehensively assess an 
unaccompanied child's language proficiency, which the commenter stated 
ensures an accurate understanding of the child's language needs. 
Another commenter expressed concern that unaccompanied children may 
feel intimidated or be unaware of their language access rights and 
recommended care provider facility staff proactively approach the 
children at the earliest point of contact at the facility to correctly 
identify the children's ``primary'' or preferred language and evaluate 
the children's language throughout the duration of their care. A 
separate commenter recommended that ORR take specific steps to assess 
an unaccompanied child's language needs in a culturally competent and 
child sensitive manner.
    Response: ORR does not intend Sec.  410.1306 to describe all 
requirements related to language access services, including procedures 
care provider facilities should implement. Where Sec.  410.1306 
contains less detail, ORR will consider issuing policy guidance, if 
needed, to provide specific guidance to address the commenters' 
recommendations.
    Comment: One commenter expressed concern about Sec.  410.1306(a)(1) 
and treating interpretation and translation services as an option 
offered to unaccompanied children without more guidance may not be 
enough to ensure that these services are utilized by children. The 
commenter recommended that care provider facilities specifically offer 
each child interpreter and translation services to alleviate the burden 
on the child to request those services.
    Response: As revised, section 410.1306(a)(1) states that, to the 
greatest extent practicable, care provider facilities shall 
consistently offer interpretation and translation services to 
unaccompanied children. ORR believes that this requirement addresses 
the commenter's concern that care provider facilities specifically 
offer each child these services. ORR clarifies that this requirement 
places the burden on the care provider facilities to ensure children 
are aware of their ability to access and receive these services so that 
the burden is not on children to request these services. Further, ORR 
believes the language ``to the greatest extent possible'' and 
``consistently offer'' are appropriate safeguards to guarantee that 
care provider facilities ensure unaccompanied children are aware of 
their ability to access and receive interpretation and translation 
services.
    Comment: A commenter recommended ORR focus on ``language justice'' 
by prioritizing the provision of services in the child's preferred 
language as much as possible, rather than using translators and 
interpreters, to ensure children can effectively and confidently access 
services in their preferred language. This commenter also stated that 
language justice is critical with highly sensitive and personal 
services, such as health care, where a child may feel uncomfortable 
disclosing information to a third party or important details may get 
lost in translation. Lastly, the commenter recommended that when 
providing services in the child's preferred language is not possible, 
in-person interpreter services should be used with an aim of minimizing 
their necessity.
    Response: ORR understands ``language justice,'' as used by the 
commenter, to mean ``the right everyone has to communicate, to 
understand, and to be understood in [their] language(s)'' and ``entails 
a commitment to facilitating equitable communication across languages 
in spaces where no language will dominate over any other.'' \257\ ORR 
acknowledges the importance of ensuring unaccompanied children can 
communicate in the language they feel comfortable speaking and/or 
reading and feel respected in their language choice. However, in this 
final rule, ORR declines to codify the commenter's recommendation to 
prioritize the provision of services in the child's preferred language 
as much as possible, rather than using qualified translators and 
interpreters, because this standard is not required by any applicable 
laws, regulations, or guidance. Instead, ORR provides, and will 
continue to provide, meaningful access to its programs and services to 
LEP individuals through language access services as required by 
applicable laws, regulations, and guidance from the Department, and as 
set forth in Executive Order 13166, Improving Access to Services for 
Persons with Limited English Proficiency. Accordingly, ORR is 
finalizing, under Sec.  410.1306(a)(1), that care provider facilities 
must, to the greatest extent practicable, consistently offer 
unaccompanied children the option of interpretation and translation 
services in their native or preferred language, depending on the 
unaccompanied children's preference, and in a way they effectively 
understand.
    Lastly, ORR notes that it is finalizing language access 
requirements related to education services at Sec.  410.1306(e), 
healthcare services at Sec.  410.1306(g), and legal services at Sec.  
410.1306(h), so that unaccompanied children understand the services 
that are being offered and/or provided. ORR's policies prohibit staff, 
contractors, and volunteers from engaging in or permitting 
discriminatory treatment or harassment of anyone on the basis of their 
language, which ensures unaccompanied children feel respected in their 
choice of language.\258\ Finally, ORR will monitor implementation of 
the regulations and will consider additional revisions if needed in 
future policymaking to ensure all unaccompanied children have 
meaningful access to the program regardless of the child's language, 
are provided the option of interpretation and translation services in 
their native or preferred language to the greatest

[[Page 34512]]

extent practicable, and are respected in their language choice.
    Comment: One commenter recommended clarifying the phrase ``in a way 
they effectively understand'' used throughout Sec.  410.1306 by adding 
to the phrase ``given the child's level of literacy, cultural 
background, age, and developmental stage'' to ensure better 
understanding.
    Response: ORR clarifies that ``in a way they effectively 
understand'' includes consideration of the child's level of literacy, 
cultural background, age, and developmental stage, as recommended by 
the commenter but believes it is unnecessary to revise Sec.  410.1306 
to state so explicitly. ORR will monitor implementation of the 
regulation to assess whether any additional clarification is needed in 
future policymaking.
    Comment: One commenter recommended ORR authorize the engagement of 
qualified and vetted interpreters, regardless of whether they are 
located within or outside the United States, and potentially require 
interpreters be affiliated with a licensed business within the United 
States.
    Response: ORR declines to codify this level of detail at Sec.  
410.1306 as it did not intend for this regulation to govern or describe 
all requirements for language access services. ORR will consider 
whether any additional clarification is needed in future policymaking.
    Comment: A few commenters had recommendations for ORR to improve 
unaccompanied children's access to language access services when the 
children's native or preferred language is less commonly spoken. One 
commenter recommended ORR work with the Guatemalan government to ensure 
that certified individuals conduct interpretation and translation of 
Mayan, Xinca, and Garilima languages. Another commenter recommended 
that for less commonly spoken languages, interpretation services should 
allow staff to communicate with the interpreter in Spanish and not just 
English because there may be a limited number of available interpreters 
due to the rarity of some dialects. This commenter also recommended 
that interpretation services for indigenous individuals should 
encompass their native language and not just English and Spanish.
    Response: ORR appreciates the recommendations for how to best 
implement the rule when unaccompanied children's native or preferred 
language is less commonly spoken. At Sec.  410.1306(a), ORR is 
finalizing the requirement that interpretation and translation services 
be offered in the child's native or preferred language, depending on 
the child's preference, which could include the Mayan, Xinca, and 
Garilima languages as mentioned by the commenter.
    Additionally, ORR notes that currently staff could communicate with 
qualified interpreters in Spanish and not just English. However, ORR 
declines to codify this recommendation in Sec.  410.1306 because it did 
not intend for the final regulation to contain this level of detail, 
and where the regulation contains less detail, ORR will consider the 
recommendation during future policymaking.
    Comment: One commenter recommended several revisions and additions 
to Sec.  410.1306 to ensure each unaccompanied child and sponsor can 
communicate effectively and respectfully with ORR staff and providers, 
regardless of their language or dialect, and receive language access 
services while in ORR custody. Specifically, this commenter recommended 
definitions for the following terms: language access services, 
interpretation services, translation services, multilingual materials, 
and cultural competency training. The commenter also recommended ORR 
provide language access services in a timely, confidential, and 
culturally appropriate manner. Additionally, the commenter recommended 
that ORR provide language access services in accordance with applicable 
laws and regulations, such as Title VI of the Civil Rights Act of 1964 
and Executive Order 13166, and follow the standards and guidelines 
issued by HHS and DOJ. Lastly, this commenter recommended each 
unaccompanied child and sponsor receive services and care that are 
respectful and responsive to their cultural and linguistic diversity, 
staff and providers receive cultural competency training in accordance 
standards and guidelines issued by HHS and DOJ, and ORR hire staff and 
providers who are competent and sensitive to the cultural and 
linguistic diversity of unaccompanied children and sponsors.
    Response: As finalized, ORR is requiring care provider facilities 
to adhere to many of these recommendations, as reflected in this final 
rule. ORR did not propose to codify all terms used in the NPRM, 
including those that have generally accepted definitions like 
interpretation and translation services. ORR believes the meaning of 
the identified terms is generally accepted and can be further 
clarified, if needed, through future policymaking. Additionally, ORR 
notes that it is finalizing confidentiality requirements for 
interpreters and translators under Sec.  410.1306(i), and standards for 
``qualified interpreter'' and ``qualified translator'' at Sec.  
410.1001.
    ORR provides, and will continue to provide, meaningful access to 
its programs and services to LEP individuals through language access 
services in accordance with applicable laws, regulations, and guidance 
from the Department, and as set forth in Executive Order 13166, 
Improving Access to Services for Persons with Limited English 
Proficiency. ORR did not propose to add language in this rule stating 
it adheres to existing sources of authority. Further, ORR notes that 
under its current policies it requires care provider facilities to 
respect and support the cultural identity of unaccompanied children 
when providing services. ORR also requires that care provider facility 
staff, contractors, and volunteers receive cultural competency and 
sensitivity training.\259\ ORR will continue to monitor its 
requirements for language access services as they are implemented and 
will consider whether additional clarification is needed through future 
policymaking.
    Comment: One commenter recommended virtual interpretation, noting 
that other care provider organizations prefer virtual over in-person.
    Response: ORR notes, first, that although the NPRM Sec.  410.1306 
used the term ``professional telephonic'' interpretation, the 
definition of ``qualified interpreter'' at Sec.  410.1001 refers to 
``remote'' interpretation. For the sake of consistency and accuracy, 
ORR is revising the use of ``professional telephonic'' to ``qualified 
remote interpretation'' throughout Sec.  410.1306. Regarding the use of 
in-person versus remote interpretation, ORR is finalizing as proposed 
in the NPRM at Sec.  410.1306(a)(2), (d)(1) and (3), and (g) that care 
provider facilities utilize in-person interpretation before using 
qualified remote interpretation to ensure unaccompanied children 
effectively understand what is being communicated to them. By using in-
person interpretation, qualified interpreters can read non-verbal cues 
(e.g., body language and facial expressions), they can build trusting 
relationships with the unaccompanied children and sponsors, and they 
can securely discuss sensitive information (e.g., health information 
and legal services). In-person qualified interpreters are better able 
to accomplish these important aspects of

[[Page 34513]]

interpretation services than interpreters using visual forms of remote 
communication. Further, ORR clarifies that care provider facilities may 
utilize qualified remote, or virtual, interpreters if they undertake 
reasonable efforts to secure qualified in-person interpreters and are 
unable to do so, provided that the qualified remote interpreters meet 
the requirements set forth in ORR's policies.\260\
    Comment: One commenter opposed the proposal at Sec.  410.1306(a)(3) 
that all posted materials must be in every unaccompanied child's 
preferred language, stating this poses challenges to care provider 
facilities that serve children whose native or preferred languages span 
four to six different languages. Instead, the commenter recommended 
that all posted materials be in the majority of languages with a 
provision for additional language support as needed.
    Response: ORR will monitor implementation of the regulation and 
will take into consideration the concerns raised during future 
policymaking if needed.
    Comment: One commenter recommended ORR make grammatical revisions 
to the regulation text at Sec.  410.1306(c)(1) to clarify that the 
limits of confidentiality are related to the information they share 
while in ORR care and custody.
    Response: ORR appreciates the commenter's concern, but believes the 
current regulatory text clearly states care provider facilities must 
provide a written notice of the limits of confidentiality they share 
while in ORR care and custody to the unaccompanied children and no 
further revision is necessary.
    Comment: One commenter recommended Sec.  410.1306(c)(6) state that 
other grievance reporting policies and procedures must be provided in a 
manner accessible to unaccompanied children with disabilities. 
Additionally, this commenter recommended Sec.  410.1306(c)(6) require 
care provider facilities to adopt grievance reporting procedures 
consistent with 45 CFR 84.7.
    Response: ORR agrees that grievance reporting policies and 
procedures must be provided in a manner accessible to unaccompanied 
children with disabilities, and therefore is adding that to Sec.  
410.1306(c)(6) as finalized. Additionally, while ORR acknowledges that 
care provider facilities must adopt grievance reporting procedures 
consistent with 45 CFR 84.7, ORR is not explicitly adding such a 
requirement that otherwise exists to this final rule.
    Comment: One commenter recommended ORR require at Sec.  
410.1306(c)(7) that care provider facilities educate unaccompanied 
children on ORR's sexual abuse and sexual harassment policies in an 
age-appropriate manner.
    Response: ORR is not incorporating this recommendation at Sec.  
410.1306(c)(7) because the existing regulations governing ORR at Sec.  
411.33 already provide that unaccompanied children be notified and 
informed of ORR's sexual abuse and sexual harassment policies in an age 
and culturally appropriate fashion and in accordance with Sec.  411.15. 
Additionally, ORR is finalizing at Sec.  410.1306(c)(7) that 
unaccompanied children be educated in a way they effectively 
understand, which includes in an age-appropriate manner.
    Comment: One commenter recommended ORR define or provide examples 
of what would constitute an unreasonable request for religious 
accommodations at Sec.  410.1306(e), stating the standard, as proposed, 
subjects programs to multiple interpretations of what actions are 
acceptable.
    Response: ORR notes that Sec.  410.1306(e) pertains specifically to 
the language in which requested religious and/or cultural information 
or items are provided to an unaccompanied child. ORR clarifies that a 
request for religious and/or cultural information or items in the 
unaccompanied child's native or preferred language, depending on the 
child's preference, may be unreasonable, for example, if the request 
would require the care provider facility to obtain a voluminous text 
not published in the preferred language, or items that could not be 
imported into the United States without great expense. ORR facilitates 
the free exercise of religion by unaccompanied children in its Federal 
custody and, in accordance with Sec.  410.1302(c)(9), ORR provides 
access to religious services whenever possible. As such, ORR is 
revising Sec.  410.1306(e) to remove ``accommodation'' to avoid 
confusion with the distinct standard that applies under Religious 
Freedom Restoration Act (RFRA). ORR is making clarifying edits to 
reflect that Sec.  410.1306(e) concerns ``Religious and cultural 
observation and services.''
    Finally, ORR notes that it operates and will continue to operate 
the UC Program in compliance with the requirements of the RFRA, Title 
VII of the Civil Rights Act of 1964, and all applicable Federal 
conscience protections, as well as all applicable Federal civil rights 
laws and HHS regulations.
    Comment: One commenter stated that some unaccompanied children have 
waited three weeks or more to have an initial conversation with their 
parents or other family members because the care provider facilities 
were unable to obtain interpretation services in the relevant language 
to approve contact. This commenter also expressed concern that there 
are delays in unification due to delays in translating birth 
certificates or other identity documents. Additionally, the commenter 
stated that these delays unnecessarily detain unaccompanied children 
for longer lengths of stay and impact the children's mental health and 
well-being. To address delays in interpretation and translation 
services, the commenter recommended revising Sec.  410.1306(f) to 
require care provider facilities make all efforts to expeditiously 
obtain interpretation and translation services needed to approve 
contact between children, their family, and potential sponsors, and not 
delay contact approval due to the children's language. The commenter 
also recommended that care provider facilities must secure timely 
translation services needed for documents required to complete the 
unification process. Lastly, the commenter recommended care provider 
facilities immediately notify ORR if they need translation and 
interpretation services to facilitate family contact or unification, 
and ORR would expeditiously provide such assistance.
    Response: At Sec.  410.1306(a)(1), ORR is finalizing the 
requirement that care provider facilities must make all efforts to 
consistently offer interpretation and translation services to 
unaccompanied children. ORR is also finalizing at Sec.  410.1306(a)(1) 
that if after taking reasonable efforts, care provider facilities are 
unable to obtain a qualified interpreter or translator for the 
unaccompanied children's native or preferred language, depending on the 
children's preference, care provider facilities shall consult with 
qualified ORR staff for guidance on how to ensure meaningful access to 
their programs and activities for the children, including those with 
limited English proficiency. ORR notes that if the care provider 
facility is unable to secure qualified in-person interpretation, the 
facilities may use qualified remote interpreter services. ORR believes 
these requirements will improve unaccompanied children's access to 
language access services and alleviate the commenter's concerns. 
Lastly, ORR will consider the commenter's recommendations during future 
policymaking if needed to improve

[[Page 34514]]

unaccompanied children's access to language access services.
    Comment: ORR received a few comments supporting privacy and 
confidentiality requirements for interpreters at Sec.  410.1306(i) but 
seeking further clarification and recommending additional requirements 
to protect unaccompanied children receiving translation and 
interpretation services. A few commenters recommended that ORR clarify 
whether ORR requires interpreters to keep information confidential from 
ORR personnel and stated the current language is not clear. Another 
commenter recommended that ORR clarify the list of entities to whom 
language access services providers are prohibited from disclosing 
information about children's cases and/or services.
    A few commenters recommended that interpreters involved in 
communications between unaccompanied children and legal 
representatives, or child advocates, must maintain confidentiality of 
such communications. One of these commenters recommended additional 
confidentiality protections for unaccompanied children receiving legal 
services, stating that when an unaccompanied child receives legal 
services, including consultations, meetings, or other communications 
between the child and the child's attorney, accredited representative, 
or legal service provider, interpreters must keep all information 
confidential. Additionally, this commenter recommended that the 
unaccompanied child's case file should not include interpretation 
provided during legal services and that the interpreter or translator 
should not disclose any information interpreted or translated during 
confidential communications between the child and the child's legal 
representative to any third party (including ORR staff or subcontracted 
staff).
    Finally, one commenter recommended additional safeguards for data 
that should apply to all language access service providers.
    Response: ORR agrees that it is important to protect the privacy 
and confidentiality of interpretation and translation services 
unaccompanied children receive.
    ORR clarifies that Sec.  410.1306(i) of this final rule requires 
interpreters and translators to keep all information about the 
unaccompanied children's cases and/or services, confidential from non-
ORR grantees, contractors, and Federal staff. ORR clarifies that 
interpreters and translators would be permitted to share information 
about the unaccompanied child's case and/or services to care provider 
facilities, care provider facility staff, ORR staff, ORR contractors, 
and others providing services under the direction of ORR.
    ORR also appreciates the recommendations to require additional 
safeguards for data and additional confidentiality requirements for 
communications made between unaccompanied children and their child 
advocate and/or legal service providers. ORR notes that in other 
sections of this final rule, it is finalizing confidentiality 
requirements that would apply to communications made to child advocates 
and legal services providers as well as data safeguard protections for 
the unaccompanied children's case files. ORR clarifies that these 
confidentiality requirements, discussed further below, will apply to 
information that interpreters and translators have concerning 
unaccompanied children's cases and/or services, and Sec.  410.1306(i) 
of this final rule should be read in congruence with these other 
confidentiality requirements.
    Under the definitions of qualified interpreters and qualified 
translators at Sec.  410.1001, ORR is finalizing the requirement that 
qualified interpreters and translators adhere to generally accepted 
ethics principles for interpreters and translators. At Sec.  
410.1303(h), ORR is finalizing data safeguard and confidentiality 
protections for the unaccompanied child's case file, which includes the 
requirement that care provider facilities preserve the confidentiality 
of the child's case and the facilities must protect the case file from 
unauthorized use or disclosure. Further, under Sec.  410.1309(a)(2)(v) 
and (vi), ORR is finalizing requirements that unaccompanied children 
receive a confidential legal consultation with a qualified attorney (or 
paralegal working under the direction of an attorney, or DOJ Accredited 
Representative), that is provided in an enclosed area that allows for 
confidentiality. ORR also notes that its current policies contain 
confidentiality requirements for care provider facilities that would be 
applicable to unaccompanied children receiving interpretation and 
translation services.\261\ ORR believes that the data safeguard and 
confidentiality requirements being finalized in this rule, and the 
additional requirements set forth in ORR's current policies, are 
sufficient to protect the confidentiality of the unaccompanied child's 
information. However, based on the concerns raised by the commenters, 
ORR is revising Sec.  410.1306(i) to clarify the requirements for 
interpreters and translators with respect to confidentiality of 
information. ORR is amending Sec.  410.1306(i) as follows: 
``Interpreter's and translator's responsibility with respect to 
confidentiality of information. Qualified interpreters and translators 
shall keep confidential all information they receive about the 
unaccompanied children's cases and/or services while assisting ORR, its 
grantees, and its contractors, with the provision of case management or 
other services. Qualified interpreters and translators shall not 
disclose case file information to other interested parties or to 
individuals or entities that are not employed by ORR or its grantees 
and contractors or that are not providing services under the direction 
of ORR. Qualified interpreters and translators shall not disclose any 
communication that is privileged by law or protected as confidential 
under this part unless authorized to do so by the parties to the 
communication or pursuant to court order.''
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section with the following modifications. ORR is 
revising Sec.  410.1306 to apply to all care provider facilities. ORR 
is revising Sec.  410.1306 to align with the definition of qualified 
interpreter at Sec.  410.1001 by replacing ``professional telephonic'' 
with ``qualified remote'' at Sec.  410.1306(a)(2), (d)(1), (d)(3), and 
(g). ORR is also making clarifying edits to Sec.  410.1306(e) to state 
``Religious and cultural observation and services'' instead of 
``Religious and cultural accommodations.'' Additionally, ORR is 
revising Sec.  410.1306(c)(6) to add the following sentence at the end: 
``Care provider facilities shall also provide grievance reporting 
policies and procedures in a manner accessible to unaccompanied 
children with disabilities.'' Finally, ORR is revising Sec.  
410.1306(i) by making clarifying edits, such that the provision now 
states: ``Interpreter's and translator's responsibility with respect to 
confidentiality of information. Qualified interpreters and translators 
shall keep confidential all information they receive about the 
unaccompanied children's cases and/or services while assisting ORR, its 
grantees, and its contractors, with the provision of case management or 
other services. Qualified interpreters and translators shall not 
disclose case file information to other interested parties or to 
individuals or entities that are not employed by ORR or its grantees 
and contractors or that are not providing services under the direction 
of ORR. Qualified interpreters and translators shall not disclose any 
communication

[[Page 34515]]

that is privileged by law or protected as confidential under this part 
unless authorized to do so by the parties to the communication or 
pursuant to court order.''
Section 410.1307 Healthcare Services
    The provision of healthcare to unaccompanied children is 
foundational to their health and well-being and to supporting their 
childhood development. Therefore, ORR proposed in the NPRM at Sec.  
410.1307(a) to codify that ORR shall ensure the provision of 
appropriate routine medical and dental care; access to medical services 
requiring heightened ORR involvement, consistent with Sec.  
410.1307(c); family planning services; and emergency health services 
(88 FR 68945 through 68946). ORR notes that it stated in error in the 
NPRM preamble that ORR shall ensure this access only ``in standard 
programs and restrictive placements'' (88 FR 68945), and clarifies that 
Sec.  410.1307(a), as reflected in the regulation text, applies to all 
unaccompanied children in all care provider facilities. This paragraph 
would codify corresponding requirements from Exhibit 1 of the FSA. ORR 
notes that Sec.  410.1307(b), as reflected in the regulation text, 
applies to standard programs and restrictive placements; corresponding 
requirements relating to emergency and influx facilities are discussed, 
infra, at subpart I. Further, under Sec.  410.1307(b), ORR proposed in 
the NPRM that standard programs and restrictive placements must 
establish a network of licensed healthcare providers, including 
specialists, emergency care services, mental health practitioners, and 
dental providers that will accept ORR's fee-for-service billing system 
under proposed Sec.  410.1307(b)(1). To assess the unique healthcare 
needs of each unaccompanied child, consistent with existing policy and 
practice, ORR included a requirement that unaccompanied children in 
standard programs and restrictive placements receive a complete medical 
examination (including screening for infectious disease) within two 
business days of admission unless an unaccompanied child was recently 
examined at another facility and if an unaccompanied child is still in 
ORR custody 60 to 90 days after admission, an initial dental exam, or 
sooner if directed by State licensing requirements under Sec.  
410.1307(b)(2).
    In order to prevent the spread of diseases and avoid preventable 
illness among unaccompanied children, ORR also proposed to require in 
standard programs and restrictive placements that children receive 
appropriate immunizations as recommended by the Advisory Committee on 
Immunization Practices' Child and Adolescent Immunization Schedule and 
approved by HHS's Centers for Disease Control and Prevention under 
proposed Sec.  410.1307(b)(3). To aid in the early detection of 
potential health conditions and ensure unaccompanied children's health 
conditions are appropriately managed, under proposed Sec.  
410.1307(b)(4) ORR would require an annual physical examination, 
including hearing and vision screening, and follow-up care for acute 
and chronic conditions. ORR noted in the NPRM that it facilitates an 
array of health services, such as medications, surgeries, or other 
follow-up care, that have been ordered or prescribed by a healthcare 
provider (88 FR 68945). ORR would require the administration of 
prescribed medication and special diets under Sec.  410.1307(b)(5) and 
appropriate mental health interventions when necessary, under Sec.  
410.1307(b)(6). ORR noted that it proposed in the NPRM to require 
routine individual and group counseling session at Sec.  410.1302(c)(5) 
and (6).
    There are a number of policies and procedures related to medical 
care and medications that ORR proposed in the NPRM to require in order 
to promote health and safety at their facilities. ORR proposed in the 
NPRM under Sec.  410.1307(b)(7), that standard programs and restrictive 
placements must have policies and procedures for identifying, 
reporting, and controlling communicable diseases that are consistent 
with applicable State, local, and Federal laws and regulations. ORR 
proposed in the NPRM under Sec.  410.1307(b)(8), that standard programs 
and restrictive placements must have policies and procedures that 
enable unaccompanied children, including those with language and 
literacy barriers, to convey written and oral requests for emergency 
and non-emergency healthcare services. Finally, under Sec.  
410.1307(b)(9), ORR proposed in the NPRM to require standard programs 
and restrictive placements have policies and procedures based on State 
or local laws and regulations to ensure the safe, discreet, and 
confidential provision of prescription and nonprescription medications 
to unaccompanied children, secure storage of medications, and 
controlled administration and disposal of all drugs. A licensed 
healthcare provider must write or orally order all nonprescription 
medications and oral orders must be documented in the unaccompanied 
child's file.
    At times, the use of medical isolation or quarantine for 
unaccompanied children may be required to prevent the spread of an 
infectious disease due to a potential exposure. ORR proposed in the 
NPRM under Sec.  410.1307(b)(10) to allow unaccompanied children to be 
placed in medical isolation and excluded from contact with general 
population when medically necessary to prevent the spread of an 
infectious disease due to a potential exposure, protect other 
unaccompanied children and care provider facility staff for a medical 
purpose or as required under State, local, or other licensing rules, as 
long as the medically required isolation is limited to only the extent 
necessary to ensure the health and welfare of the unaccompanied child, 
other unaccompanied children at a care provider facility and care 
provider facility staff, or the public at large. To ensure that 
unaccompanied children have access to necessary services during medical 
isolation, ORR proposed in the NPRM that standard programs and 
restrictive placements must provide all mandated services under this 
subpart to the greatest extent practicable under the circumstances of 
the medical isolation. A medically isolated unaccompanied child still 
must be supervised under State, local, or other licensing ratios, and, 
if multiple unaccompanied children are in medical isolation, they 
should be placed in units or housing together (as practicable, given 
the nature or type of medical issue giving rise to the requirement for 
isolation in the first instance).
    In Sec.  410.1307(c), ORR proposed in the NPRM requirements 
ensuring access to medical care for unaccompanied children. At Sec.  
410.1307(c)(1), consistent with the requirements of Sec.  410.1103, ORR 
proposed in the NPRM that to the greatest extent possible, an 
unaccompanied child whom ORR determines requires medical care or who 
reasonably requests such medical care will be placed in a care provider 
facility that has available and appropriate bed space, is able to care 
for such an unaccompanied child, and is in a location where the 
relevant medical services are accessible. ORR noted that the proposal 
aligns with subpart B, Determining the Placement of an Unaccompanied 
Child at a Care Provider Facility, which would require that ORR shall 
place unaccompanied children in the least restrictive setting that is 
in the best interest of the child and appropriate to the child's age 
and individualized needs, and that ORR considers ``any specialized 
services or treatment required'' when determining placement of all 
unaccompanied children.

[[Page 34516]]

    Additionally, ORR proposed in the NPRM that if an initial placement 
in a care provider facility that meets the requirements in Sec.  
410.1307(c)(1) is not immediately available or if a medical need or 
reasonable request, as described in Sec.  410.1307(c)(1), arises after 
the Initial Medical Exam, ORR shall transfer the unaccompanied child to 
a care provider facility that is able to accommodate the medical needs 
of the unaccompanied child. If the medical need is identified, or a 
reasonable request is received, after the Initial Medical Exam, the 
care provider facility shall immediately notify ORR. This proposal 
aligned with subpart G, Transfers, which would require transfer of an 
unaccompanied child within the ORR care provider facility network when 
it is determined that an alternate placement for the unaccompanied 
child that would best meet the child's individual needs. Care provider 
facilities would be required to follow the process proposed in subpart 
G such as submitting a transfer recommendation to ORR for approval 
within three (3) business days of identifying the need for a transfer.
    As described in the NPRM at Sec.  410.1307(c)(2), ORR proposed to 
codify requirements ensuring that unaccompanied children are provided 
transportation to access medical services, including across State lines 
if necessary, and associated ancillary services. This would ensure 
unaccompanied children can access appointments with medical specialists 
(e.g., neonatologists, oncologists, pediatric cardiologists, pediatric 
surgeons, or others), family planning services, prenatal services and 
pregnancy care, or care that may be geographically limited including 
but not limited to an unaccompanied child's need or request for medical 
services requiring heightened ORR involvement. ORR noted that the 
proposal was consistent with current policy, as noted in subpart E, 
Transportation of an Unaccompanied Child, that ORR, or its care 
provider facilities, provide transportation for purposes of service 
provision including medical services. ORR stated that if there is a 
potential conflict between ORR's regulations and State law, ORR would 
review the circumstances to determine how to ensure that it is able to 
meet its statutory responsibilities. The NPRM noted, however, that if a 
State law or license, registration, certification, or other requirement 
conflicts with an ORR employee's duties within the scope of their ORR 
employment, the ORR employee is required to abide by their Federal 
duties.
    These proposals maintained existing policy that ORR must not 
prevent unaccompanied children in ORR care from accessing healthcare 
services, which may include medical services requiring heightened ORR 
involvement or family planning services, and must make reasonable 
efforts to facilitate access to those services if requested by the 
unaccompanied child.\262\ This includes providing transport across 
State lines and associated ancillary services if necessary to access 
appropriate medical services, including access to medical specialists 
and medical services requiring heightened ORR involvement. Under these 
proposals, ORR will continue to facilitate access to medical services 
requiring heightened ORR involvement, including access to abortions, in 
light of ORR's statutory responsibility to ensure that the interests of 
the unaccompanied child are considered in decisions and actions 
relating to their care and custody, and to implement policies with 
respect to their care and placement.\263\ In the NPRM, ORR stated that 
it would continue to permit such access in a manner consistent with 
limitations on the use of Federal funds for abortions which are 
regularly included in HHS's annual appropriations, commonly referred to 
as the ``Hyde Amendment.'' \264\ For purposes of this final rule, 
consistent with current policy, ORR will continue to facilitate such 
access. ORR's policies are consistent with the Hyde Amendment. ORR 
further noted that it operates the UC Program in compliance with the 
requirements of the Religious Freedom Restoration Act and other 
applicable Federal conscience protections, as well as all other 
applicable Federal civil rights laws and applicable HHS 
regulations.\265\
    Lastly, ORR proposed in the NPRM a requirement in Sec.  410.1307(d) 
that care provider facilities shall notify ORR within 24 hours of an 
unaccompanied child's need or request for a medical service requiring 
heightened ORR involvement or the discovery of a pregnancy. This 
proposal was consistent with ORR's current policy requirements for 
notifying ORR of significant incidents and medical services requiring 
heightened ORR involvement.
    Comment: Many commenters expressed support for the proposed 
provisions that seek to protect and ensure access to medical services 
that require heightened ORR involvement in Sec.  410.1307(a), including 
access to abortion, citing the need to support unaccompanied children's 
health and safety.
    Response: ORR believes that providing access to medical care, 
including access to abortion, is essential in light of ORR's statutory 
responsibility to ensure that the interests of unaccompanied children 
are considered in decisions and actions relating to their care and 
custody.\266\ ORR also believes that the availability of medical 
services is foundational to the health and well-being of unaccompanied 
children.
    Comment: One commenter expressed concern that the proposed 
requirements do not adequately address the potential trauma and mental 
health needs of unaccompanied children, who may have experienced 
violence, abuse, or exploitation in their home countries or during 
their migration journey. The commenter recommended that ORR ensure that 
unaccompanied children receive appropriate health services related to 
trauma and mental health issues. One commenter expressed the need to 
have mental health care services available that are tailored to the 
specific needs of Indigenous children.
    Response: ORR believes that trauma-informed approaches should be 
used to support unaccompanied children in ORR custody. Under Sec.  
410.1304, ORR finalized that behavior management practices must include 
evidence-based and trauma-informed strategies. Under Sec.  
410.1302(c)(5) and Sec.  410.1302(c)(6), ORR finalized that at least 
one weekly individual counseling session and at least two weekly group 
counseling sessions must be provided to unaccompanied children in 
standard programs and secure facilities. Further, under Sec.  
410.1307(b), care providers must establish a network of licensed 
healthcare providers that includes mental health practitioners and that 
will accept ORR's fee-for-service billing system under Sec.  
410.1307(b)(1). ORR believes that, wherever possible, services should 
be tailored to the individualized needs of unaccompanied children, 
including Indigenous children.
    Comment: ORR received comments seeking clarity on the rule's impact 
on the provision of gender-affirming healthcare for unaccompanied 
children. A few commenters asked ORR to clarify whether ``medical 
services requiring heightened ORR involvement'' included gender-
affirming healthcare.
    A few commenters recommended that ORR explicitly state that gender-
affirming medical and mental care should be provided when medically 
necessary.
    A few commenters expressed concerns about providing

[[Page 34517]]

unaccompanied children with access to gender-affirming healthcare 
because they believe this care is not in the best interests of the 
unaccompanied children.
    Response: ORR is not changing the final rule to include provisions 
specific to gender-affirming healthcare because the NPRM did not 
address this topic.
    Comment: One commenter recommended that ORR add language requiring 
that ORR coordinate with other Federal, State, and local agencies as 
well as non-governmental organizations to ensure that unaccompanied 
children receive appropriate healthcare services while in ORR care. The 
commenter also recommended that ORR coordinate with other agencies and 
providers to facilitate the continuity of healthcare services for 
unaccompanied children after they are released from ORR custody.
    Response: ORR understands the commenter's recommendation for 
coordination to refer to efforts to communicate and partner with 
agencies and organizations to ensure that children receive healthcare. 
ORR believes such coordination is in alignment with the proposed 
requirements of Sec.  410.1307(b) for standard programs and restrictive 
placements to establish a network of licensed healthcare providers and 
encourages care provider facilities to engage in coordination with 
other Federal, State, and local agencies as well as non-governmental 
organizations to support the health care needs of unaccompanied 
children. Related to care after children are released from ORR custody, 
ORR notes that it has existing subregulatory requirements that allow 
for PRS case managers to provide referrals to community health centers 
and healthcare providers and inform released children and sponsor 
families of medical insurance options, including supplemental coverage, 
and assist them in obtaining insurance, if possible, so that the family 
is able to effectively manage the child's health-related needs. ORR 
prefers to keep these requirements subregulatory at this time so that 
they may evolve as needed to reflect best practices and the needs of 
unaccompanied children.
    Comment: One commenter recommended that ORR ensure that Indigenous 
unaccompanied children have access to their communities' traditional 
medicines as part of meeting their medical needs.
    Response: ORR encourages care provider facilities and PRS case 
managers to help connect children with communities, groups, and 
activities that foster the growth of their personal beliefs and 
practices and that celebrate their cultural heritage. ORR thanks the 
commenter for their feedback and may take it into further consideration 
for future policymaking.
    Comment: Many commenters recommended that ORR should help 
coordinate medical recordkeeping to ensure the continued accuracy of 
health records after release from ORR care, and one commenter 
recommended adding a requirement that vaccines be recorded in State 
immunization registries and that records of vaccinations be provided to 
sponsors upon the unaccompanied child's release. One commenter 
supported the proposed immunization requirements, and further 
recommended that any available vaccination records from other countries 
be reviewed and included in the U.S. vaccination record if they have 
been given at the appropriate age, dose, interval, and U.S. accepted 
format.
    Response: ORR agrees that accurate health care records, 
particularly related to vaccinations, are important for the continuity 
of care of unaccompanied children after their release from ORR custody. 
ORR notes that unaccompanied children are eligible for the Vaccine for 
Children (VFC) Program and must receive follow-up vaccinations in 
accordance with the Advisory Committee on Immunization Practices (ACIP) 
Catch-up schedule. ORR also notes that all health documents, including 
vaccine records, must be recorded in the UC Portal. ORR thanks the 
commenters for their support and feedback and may consider whether 
further policymaking is needed in this area.
    Comment: One commenter recommended clarifying that an exception to 
completing a medical examination within two business days of admission 
to a standard program or restrictive placement only be granted if the 
unaccompanied child was recently examined at another ORR facility. The 
commenter also suggested adding a requirement that the initial medical 
examination document all medications ordered by a health care provider 
in the unaccompanied child's file. The commenter further recommended 
that ORR require that providers ask about and document any medications 
and medical records the unaccompanied child arrived in the United 
States with during the initial medical examination.
    Response: Proposed Sec.  410.1307(b)(2) states that the medical 
examination shall be conducted within two business days of admission, 
excluding weekends and holidays, unless the child was recently examined 
at another facility. ORR's existing subregulatory guidance further 
clarifies that children who transfer between ORR care provider programs 
do not need to receive a new initial medical examination, however State 
licensing may require a new ``baseline'' medical examination. 
Additionally, existing ORR procedures require care provider facilities 
to request information from the referring agency about whether the 
child had any medication or prescription information, including how 
many days' supply of the medication will be provided with the child 
when transferred into ORR custody and suggests that clinicians and 
caseworkers ask unaccompanied children about medication they were 
taking.
    Comment: Many commenters expressed concern with the proposal to 
provide all unaccompanied children with routine dental care under Sec.  
410.1307(a), recommending that ORR update the provision to align with 
current practice that provides routine dental care to any children in 
ORR care beyond two months. One commenter recommended clarifying that 
an initial dental exam should occur if a dental concern arises, in 
addition to circumstances proposed under Sec.  410.1307(b)(2). One 
commenter expressed concern that the proposed timeframe for an initial 
dental examination was ambiguous and recommended that ORR clarify that 
an initial dental examination be provided to unaccompanied children who 
are still in ORR care 60 days after referral to ORR care, rather than 
admission to ORR care, as transfers may interrupt the timeline 
necessary to be eligible for dental care.
    Response: ORR clarifies that routine dental care, as specified in 
Sec.  410.1307(a), provided to unaccompanied children is provided 
consistent with proposed Sec.  410.1307(b)(2), which states that an 
initial dental exam is provided 60 to 90 days after admission, or 
sooner if directed by State licensing requirements. ORR thanks the 
commenter for the feedback related to the timeline, and notes that its 
existing subregulatory guidance states between 60 and 90 days after 
admission into ORR care, and this proposal is consistent with that 
requirement. Related to dental concerns that may arise, ORR notes that 
its existing subregulatory guidance further specifies that urgent 
dental care should be given as soon as possible. After considering 
public comments, ORR is codifying a new provision at Sec.  
410.1307(b)(11) that is consistent with its current policies to ensure 
that unaccompanied children experiencing urgent dental issues, such

[[Page 34518]]

as acute tooth pain, receive care as soon as possible and should not 
wait for the initial dental examination.
    Comment: One commenter recommended adding pharmacies to the network 
of licensed healthcare providers that must be established by standard 
programs and restrictive placements. The commenter also recommended 
adding a requirement that care providers meet State and local licensing 
as well as public health requirements, which the commenter noted would 
be consistent with existing ORR policies.
    Response: ORR agrees that health care providers must meet State and 
local licensing requirements and notes, as highlighted by the 
commenter, that this is a requirement under its existing subregulatory 
guidance. ORR thanks the commenter for the recommendations, and notes 
that it may continue to use and update its existing guidance to provide 
more detailed requirements for care provider facilities.
    Comment: One commenter recommended that medical isolation be 
appropriately tailored to a child's age and that young children should 
not be left alone when in medical isolation. The commenter also 
recommended adding a requirement that medical isolation be limited to 
the least amount of time possible, supported by expedited testing to 
determine diagnoses if necessary.
    Response: ORR agrees that medical care should be appropriate for a 
child's age and maturation, and that medical isolation should be 
limited to the least amount of time consistent with health care 
provider recommendations and best practices. ORR notes that, pursuant 
to its existing policies, during medical isolation, children should 
continue to receive tailored services (educational, recreational, 
social, and legal services) when feasible, and facilities must provide 
regular updates to ORR regarding the mental and physical health of 
children in isolation.
    Comment: Many commenters recommended that ORR ensure that 
unaccompanied children's reproductive healthcare is confidential and 
that children's consent must be obtained before sharing healthcare 
information with others. Commenters recommended that ORR update the 
list of services proposed under Sec.  410.1307(b) to include access to 
prenatal and postnatal care, which commenters believe is a critical 
aspect of ORR's commitment to the health of youth and also ensures that 
providers understand their duties.
    Response: ORR notes that it has existing subregulatory requirements 
related to the sharing of health care information, and that care 
provider facilities must follow applicable Federal and State laws 
regarding consent for release of medical or mental health records. As 
part 410 will not govern or describe the entire UC Program, ORR will 
continue to use and update its existing guidance to provide more 
detailed requirements for care provider facilities. ORR notes that 
medical care required under Sec.  410.1307(b) is inclusive of prenatal 
and postnatal care.
    Comment: Many commenters recommended that ORR strengthen and 
clarify its healthcare service provisions by specifying that it will 
use pediatric specialists and will also address health needs that arise 
outside of the envisioned care timeframes. These commenters also 
recommended that ORR align mental health interventions with Medicaid 
Early and Periodic Screening, Diagnostic, and Treatment benefit 
coverage when medically necessary.
    Response: ORR notes that the proposed requirement under Sec.  
410.1307(b) to establish a network of licensed healthcare providers 
includes specialists such as pediatric specialists, and mental health 
practitioners. ORR notes that Medicaid covered services vary by State, 
making it difficult for ORR to align interventions across the States it 
operates within. Nonetheless, ORR emphasizes that under Sec.  
410.1302(c)(5) and Sec.  410.1302(c)(6), at least one weekly individual 
counseling session and at least two weekly group counseling sessions 
must be provided to unaccompanied children in standard programs.
    Comment: One commenter recommended that Indigenous unaccompanied 
children must provide their consent to all medical procedures and 
medications due to historical sterilization practices and should also 
have a child advocate to help with medical decision making.
    Response: ORR agrees that consent is a critical component of the 
provision of all health care services for all unaccompanied children, 
including Indigenous unaccompanied children, and believes the current 
rule sufficiently protects the health interests of all children.
    Comment: Many commenters supported ORR's proposal at Sec.  
410.1307(c)(1)(ii) to transfer unaccompanied children to a care 
provider facility within three business days if medical services, 
specifically abortions, are unavailable at the initial placement to 
help ensure access to healthcare services regardless of geographic 
location.
    Response: ORR agrees and believes this proposal will help provide 
unaccompanied children with access to medical care, including medical 
services requiring heightened ORR involvement.
    Comment: Many commenters supported the proposal at Sec.  
410.1307(c) to provide access to medical care, including reproductive 
healthcare, noting that this proposal is consistent with ORR's Field 
Guidance #21--Compliance with Garza Requirements and Procedures for 
Unaccompanied Children Needing Reproductive Healthcare \267\ and J.D. 
v. Azar. One commenter supported the proposal but recommended the 
proposal specify that ORR provides access to ``pediatric'' medical 
specialists and providers.
    Response: ORR believes that providing access to medical care, 
whether prenatal services, pregnancy care, or abortion, is essential in 
light of ORR's statutory responsibility to ensure that the interests of 
unaccompanied children are considered in decisions and actions relating 
to their care and custody \268\ and that having access to these medical 
services is foundational to the health and well-being of unaccompanied 
children. Finally, ORR notes that medical providers and specialists can 
include, but are not limited to, pediatric-trained medical providers, 
such as pediatric cardiologists and pediatric surgeons, as discussed in 
the NPRM (88 CFR 68946).
    Comment: A few commenters requested that ORR provide more 
information on how ORR may facilitate access to medical care, 
specifically as it relates to abortion. For instance, commenters 
requested that ORR provide an estimate on the number of abortions ORR 
would facilitate under this proposal, the associated costs of such 
abortions, information on where abortions would take place, the types 
of abortion procedures that may be provided to unaccompanied children, 
and how ORR will determine whether abortions are in the best interests 
of unaccompanied children.
    Response: ORR notes that in Sec.  410.1307(c), ORR must make 
reasonable efforts to facilitate access to medical services requiring 
heightened ORR involvement, including access to abortion, if requested 
by the unaccompanied child. These efforts include considering relevant 
needs in initial placement and transfer decisions and providing 
transportation for medical services as needed. Any specific needs 
related to abortion will be determined on an individual basis, and ORR 
is unable to reliably estimate how many unaccompanied children in ORR

[[Page 34519]]

care may need an abortion and any associated transportation costs under 
this rule. Additionally, given the rapidly changing landscape of State 
abortion laws and access to abortion, ORR is unable to reliably 
estimate where abortions may take place.
    Comment: Many commenters expressed concerns about the availability 
and manner of abortion counseling. Some commenters believed that 
pregnant unaccompanied children should receive unbiased options 
counseling about alternatives to abortion. Finally, one commenter 
requested more information on the counseling available to pregnant 
unaccompanied children and victims of sexual assault, and the types of 
staff that will provide this counseling.
    Response: ORR acknowledges commenters' concerns and reiterates that 
unaccompanied children are provided with family planning services, 
which include non-directive options counseling among other services. 
ORR also notes that under its current policies,\269\ ORR specifies that 
pregnant minors will receive non-directive options counseling and 
referrals to specialty care, such as obstetricians, for further 
evaluation and services.
    For additional counseling services available to unaccompanied 
children, as discussed at Sec.  410.1302(c)(5), ORR is requiring 
standard programs and secure facilities to provide counseling and 
mental health supports to unaccompanied children that include at least 
one individual counseling session per week conducted by certified 
counseling staff. These counseling sessions would address both the 
developmental and crisis-related needs of each unaccompanied child. ORR 
notes that this requirement would apply to unaccompanied children who 
have experienced sexual abuse or assault. For further information on 
services for victims of sexual abuse, ORR refers readers to the interim 
final rule, Standards To Prevent, Detect, and Respond to Sexual Abuse 
and Sexual Harassment Involving Unaccompanied Children (79 FR 77768, 
codified under 45 CFR part 411).
    Comment: Many commenters did not support ORR's proposal to provide 
unaccompanied children with transportation and access to medical 
services requiring heightened ORR involvement, specifically abortion. 
Some commenters expressed their belief that providing access to 
abortion would violate the Hyde Amendment, an annual appropriations 
rider that prohibits the use of Federal funds for abortions subject to 
limited exceptions. Commenters also expressed the view that the Hyde 
Amendment extends to services that facilitate access to abortion, such 
as transportation. Further, commenters stated that ORR policies related 
to the Garza lawsuit, or any other policies that provide unaccompanied 
children with access to abortions, no longer apply in light of the 
Supreme Court's decision in Dobbs v. Jackson Women's Health 
Organization, which overturned Roe v. Wade and Planned Parenthood v. 
Casey.
    Response: ORR acknowledges commenters' concerns but reiterates that 
ORR policy, as set out in Sec.  410.1307(c), is consistent with 
limitations on the use of Federal funds for abortions. ORR must make 
reasonable efforts to facilitate access to medical services requiring 
heightened ORR involvement--which may include abortion--if requested by 
the unaccompanied child; these efforts include considering relevant 
needs in initial placement and transfer decisions and providing 
transportation for medical services as needed. Additionally, in order 
to fulfill its statutory responsibilities regarding the care of 
unaccompanied children, ORR staff and care provider facilities must not 
prevent unaccompanied children from accessing legal abortion and 
related services, and ORR staff and care provider facilities must make 
all reasonable efforts to facilitate lawful access to these services if 
requested by unaccompanied children. The U.S. Supreme Court's decision 
in Dobbs is not inconsistent with the terms of the Garza settlement, 
nor ORR's determination to maintain these previously-binding 
requirements. For further information, ORR refers readers to Field 
Guidance #21 \270\ and the Policy Memorandum on Medical Services 
Requiring Heightened ORR Involvement \271\ where ORR explains its 
responsibilities under Garza while complying with the Hyde Amendment.
    Regarding comments on the Hyde Amendment's implications for 
transportation, ORR refers readers to the September 2022 memo from the 
Department of Justice Office of Legal Counsel,\272\ which states that 
``the Hyde Amendment is best read to permit expenditures to fund 
transportation for women seeking abortions where HHS otherwise 
possesses the requisite authority and appropriations,'' and ``best read 
to prohibit only direct expenses for the'' discrete medical procedure 
of abortion ``itself and not indirect expenses, such as those for 
transportation to and from the medical facility where the procedure is 
performed.'' In light of OLC's interpretation, ORR's policy providing 
transportation for medical services is consistent with the Hyde 
Amendment.
    Comment: Many commenters did not support ORR's proposal to provide 
access to medical care, specifically abortion, because in their view 
abortions are not in the best interests of unaccompanied children and 
could have detrimental impacts on their health. Commenters expressed 
concern that ORR would force unaccompanied children to have unwanted 
abortions, including through potential miscommunication due to language 
barriers, or that the policy might encourage human traffickers to force 
unaccompanied children to have abortions.
    Response: ORR has determined that it should facilitate access to 
legal abortions for unaccompanied children in ORR custody in light of 
ORR's statutory responsibility to ensure that the interests of 
unaccompanied children are considered in decisions and actions relating 
to their care and custody and to implement policies with respect to the 
care of unaccompanied children.\273\ The unaccompanied child, in 
consultation with medical professionals, will make the decision whether 
to access legally-permissible medical services requiring heightened ORR 
involvement, including abortion. ORR also notes that this proposal 
pertains to unaccompanied children in ORR custody and therefore, ORR 
does not believe that there are human trafficking risks associated with 
this proposal.
    Regarding the commenter's concerns regarding language barriers, ORR 
reiterates that it is finalizing at Sec.  410.1306(g), that while 
unaccompanied children are receiving healthcare services, care provider 
facilities would be required to ensure that unaccompanied children are 
able to communicate with physicians, clinicians, and healthcare staff 
in their native or preferred language, depending on the unaccompanied 
children's preference, and in a way they effectively understand. 
Further, under Sec.  410.1801, ORR is finalizing that EIFs must deliver 
services, including medical services requiring heightened ORR 
involvement, in a manner that is sensitive to the age, culture, native 
language, religious preferences and practices, and other needs of each 
unaccompanied child. ORR believes these provisions protect 
unaccompanied children against miscommunication with care providers.
    Comment: A few commenters did not support ORR's proposal to provide 
access to medical care, specifically abortion, because they believed 
that this proposal may negatively impact unaccompanied children and 
their

[[Page 34520]]

families. Commenters believed that ORR would provide abortions to 
unaccompanied children without the knowledge or consent of their 
parents or legal guardians. Finally, commenters believed this proposal 
would limit families' ability to access records of unaccompanied 
children and that children may be separated from their siblings if one 
of them seeks an abortion.
    Response: Under current ORR policies, if a State-licensed physician 
seeks consent from ORR to provide an abortion to an unaccompanied 
child, neither ORR nor a care provider may provide consent to provide 
abortions to unaccompanied children.\274\ Rather, the child would need 
to obtain such consent from the appropriate individual identified under 
State law (typically the parent or legal guardian) or, if available, 
seek a judicial bypass of parental notification and consent. ORR 
Federal staff and ORR care providers are required to ensure 
unaccompanied children have access to medical appointments related to 
pregnancy in the same way they would with respect to other medical 
conditions.
    ORR believes that safeguarding and maintaining the confidentiality 
of unaccompanied children is critical to carrying out ORR's 
responsibilities under the HSA and TVPRA. For further information on 
confidentiality policies, ORR refers readers to the ORR Policy Guide, 
Policy Memorandum on Medical Services Requiring Heightened ORR 
Involvement, and Field Guidance #21 where ORR provides greater detail 
on information sharing policies and how ORR will address circumstances 
in which State laws may require parental notification. Finally, ORR 
notes that in the case of related children, where at least one of the 
related children is pregnant and requests an abortion, ORR will make 
every effort to keep related children together while considering the 
best interests of each child as described in Field Guidance #21.
    Comment: A few commenters did not support ORR's proposal to provide 
access to medical care, specifically abortion, because they believed 
that ORR should provide the fetus with the same level of care as 
provided to pregnant unaccompanied children.
    Response: ORR carries out its statutory responsibilities for the 
care and custody of unaccompanied children as established in the TVPRA 
and the HSA, and consistent with its responsibilities under the FSA. 
Under these authorities, ORR must prioritize the best interests and 
individualized needs of unaccompanied children, including pregnant 
youth, in ORR custody. This includes facilitating access to medical 
services, including access to abortions when requested by a pregnant 
individual in ORR custody, consistent with relevant appropriations 
restrictions (e.g., the ``Hyde Amendment'') and in compliance with the 
requirements of the RFRA, Title VII of the Civil Rights Act of 1964, 
and all applicable Federal conscience protections, as well as all 
applicable Federal civil rights laws and HHS regulations. To the extent 
the commenters are suggesting that ORR owes statutory duties to the 
fetus such that ORR facilitating pregnant individuals' access to 
abortion is legally impermissible, that theory is not supported by 
ORR's statutory authority.\275\
    Comment: Many commenters did not support ORR's proposal to provide 
unaccompanied children with transportation and access to medical care, 
specifically abortions, because they believed this policy violates or 
circumvents State laws that place restrictions on abortion. Commenters 
requested that ORR clarify the federalism implications of its proposals 
and whether this proposal means to preempt State laws. A few commenters 
expressed concerns regarding ORR's proposal to require ORR employees to 
abide by the Federal duties if there are conflicts between ORR's 
regulations and State law. Additionally, one commenter believed that if 
programs are State licensed as required by the FSA, then they must 
follow State licensure requirements if there are potential conflicts 
between ORR regulations and State law. One commenter requested ORR 
clarify if ``ORR employees'' includes grantee and contract staff, and 
another commenter believed that ORR has misconstrued the Supremacy 
Clause in a manner that enables ORR to overstep its authority by 
overriding State laws when conflicts arise.
    Response: ORR clarifies that the phrase ``ORR employees'' means 
Federal employees of ORR and does not include grantee and contract 
staff. Such individuals, who are care provider facility or other 
service provider staff, are not Federal employees. ORR notes that it 
expects and requires, under Sec. Sec.  410.1302(a) and (b) of this 
final rule, that standard program and secure facility employees will 
follow State licensure requirements. However, ORR Federal employees 
must abide by their Federal duties in the limited circumstances where 
ORR regulations and State laws may conflict, subject to Federal 
conscience protections discussed below. Further, ORR refers readers to 
the Regulatory Impact Analysis in the NPRM where ORR explains that the 
proposed regulations do not have significant federalism implications 
and would not substantially affect the relationship between the 
National Government and the States (88 FR 68976). In proposing these 
regulations, ORR was mindful of its obligations to ensure that it 
implements its statutory responsibilities while also minimizing 
conflicts between State law and Federal interests.
    ORR refers readers to its Policy Memorandum on Medical Services 
Requiring Heightened ORR Involvement and Field Guidance #21--Compliance 
with Garza Requirements and Procedures for Unaccompanied Children 
Needing Reproductive Healthcare for further information on alignment 
with State law. ORR does not intend for this rulemaking to preempt 
general State law restrictions on the availability of abortions. For 
example, this rulemaking does not authorize any pregnant individual in 
ORR custody to obtain an abortion in a State where the abortion is 
illegal under that State's laws. This rulemaking does contemplate, 
however, that State law cannot restrict ORR employees in carrying out 
their Federal duties, including, when appropriate and consistent with 
religious freedom and conscience protections, transferring pregnant 
individuals in ORR custody to States where abortion is lawful. This 
approach is fully consistent with principles of federalism, given 
States' different approaches to regulating abortion within their 
borders.
    Comment: Many commenters did not support ORR's proposal to provide 
unaccompanied children with transportation and access to medical care, 
specifically abortions, because they believed it does not adequately 
safeguard the religious freedom and conscience protections of ORR staff 
and requested that ORR modify this proposal to more expressly protect 
these rights. Commenters asserted that ORR staff and contractors would 
be required to facilitate access to abortions under this proposal, even 
if it violates their personal beliefs, religion, or conscience. 
Commenters requested that ORR discuss specific religious freedom and 
conscience protections such as the Religious Freedom Restoration Act, 
Title VII of the Civil Rights Act of 1964, and the First Amendment and 
explicitly explain how ORR will operate the UC Program in compliance 
with these laws. These commenters also requested that ORR incorporate 
these religious freedom and conscience protection provisions into the 
regulatory text, in addition to the preamble of the rule. One

[[Page 34521]]

commenter also expressed concerns that ORR will discriminate or 
disadvantage faith-based providers when awarding grants or contracts 
for the UC Program.
    Response: ORR reiterates that it operates and will continue to 
operate the UC Program in compliance with the requirements of RFRA, 
Title VII of the Civil Rights Act of 1964, and all applicable Federal 
religious freedom and conscience protections, as well as all applicable 
Federal civil rights laws and HHS regulations. Additionally, consistent 
with ORR's Policy Memorandum on Medical Services Requiring Heightened 
ORR Involvement \276\ and Field Guidance #21,\277\ ORR will provide 
legally required accommodations to care provider facilities who 
maintain a sincerely held religious objection to abortion. ORR also 
refers readers to other regulations, such as the Equal Participation of 
Faith-Based Organizations in the Federal Agencies' Programs and 
Activities Final Rule \278\ and the Safeguarding the Rights of 
Conscience as Protected by Federal Statutes Final Rule,\279\ which 
establish rules and mechanisms for ensuring religious freedom and 
conscience protections for faith-based providers participating in 
Federal programs, such as the UC Program. Moreover, as to its own 
employees, ORR highlights 29 CFR parts 1605 and 1614, which contain 
religious discrimination and accommodation protections available to 
Federal employees, including those of ORR. Pursuant to these 
regulations, ORR will continue to provide legally required religious 
accommodations to requesting employees. ORR anticipates that non-
objecting staff will be available to perform those duties. Given these 
existing protections for religious freedom for participating 
facilities, providers, and employees, ORR does not believe it is 
necessary to create new or additional policies. However, ORR is 
updating Sec.  410.1307(c) to clarify that ORR employees must abide by 
their Federal duties if there is a conflict between ORR's regulations 
and State law, subject to applicable Federal religious freedom and 
conscience protections.
    Final Rule Action: After consideration of public comments, ORR is 
codifying a provision at Sec.  410.1307(b)(11) to state that 
unaccompanied children experiencing urgent dental issues, such as acute 
tooth pain, should receive care as soon as possible and should not wait 
for the initial dental exam. ORR believes this addition is consistent 
with its current policies and will help ensure unaccompanied children 
receive necessary dental care that is foundational to their health and 
well-being. ORR is also amending Sec.  410.1307(c) in three ways. 
First, it is adopting clarifying language to include language that was 
in the preamble at Sec.  410.1307(c)(2) to the regulation text at Sec.  
410.1307(c) to underscore that ``ORR must not prevent unaccompanied 
children in ORR care from accessing healthcare services, including 
medical services requiring heightened ORR involvement and family 
planning services. ORR must make reasonable efforts to facilitate 
access to those services if requested by the unaccompanied child.'' 
Second, ORR is moving language previously included at Sec.  
410.1307(c)(2) to Sec.  410.1307(c), with edits such that in the final 
rule that paragraph contains the following additional sentences: 
``Further, if there is a potential conflict between the standards and 
requirements set forth in this section and State law, such that 
following the requirements of State law would diminish the services 
available to unaccompanied children under this section and ORR 
policies, ORR will review the circumstances to determine how to ensure 
that it is able to meet its responsibilities under Federal law. If a 
State law or license, registration, certification, or other requirement 
conflicts with an ORR employee's duties within the scope of their ORR 
employment, the ORR employee is required to abide by their Federal 
duties, subject to applicable Federal religious freedom and conscience 
protections, to ensure unaccompanied children have access to all 
services available under this section and ORR policies.'' Third, at 
Sec.  410.1307(c)(1)(i), ORR is amending the text to state that ORR 
``shall consider'' a child's individualized needs, in contrast to the 
NPRM text, which provided that ``ORR considers'' the child's 
individualized needs. ORR is finalizing all other paragraphs of Sec.  
410.1307 as proposed.
Section 410.1308 Child Advocates
    ORR proposed in the NPRM, at Sec.  410.1308(a), to codify standards 
and requirements relating to the appointment of independent child 
advocates for child trafficking victims and other vulnerable 
unaccompanied children (88 FR 68946 through 68948). The TVPRA, at 8 
U.S.C. 1232(c)(6), authorizes HHS to appoint child advocates for child 
trafficking victims and other vulnerable unaccompanied children. In 
2016, the Government Accountability Office (GAO) carried out an 
assessment of the ORR child advocate program \280\ and recommended 
improving ORR monitoring of contractor referrals to the program and 
improving information sharing with child advocates regarding the 
unaccompanied children assigned to them. ORR noted that the need for 
child advocates in helping to protect the interests of unaccompanied 
children has continued to grow over time, especially given the 
increasing numbers of unaccompanied children who are referred to ORR 
custody. Under Sec.  410.1308, ORR proposed in the NPRM to codify 
specific child advocates' roles and responsibilities which are 
currently described primarily in ORR policy documents.
    At Sec.  410.1308(b), ORR proposed in the NPRM to define the role 
of child advocates as third parties who identify and make independent 
recommendations regarding the best interests of unaccompanied children. 
The recommendations of child advocates are based on information 
obtained from the unaccompanied children and other sources (including 
the unaccompanied child's parents, family, potential sponsors/sponsors, 
government agencies, legal service providers, protection and advocacy 
system representatives in appropriate cases, representatives of the 
unaccompanied child's care provider, health professionals, and others). 
Child advocates formally submit their recommendations to ORR and/or the 
immigration court as written best interest determinations (BIDs). ORR 
considers BIDs when making decisions regarding the care, placement, and 
release of unaccompanied children, but it is not bound to follow BID 
recommendations.
    ORR considered several ways to strengthen or expand the role of 
child advocates, including: granting child advocates rights of access 
to ORR records and information on unaccompanied children (in order to 
advocate for unaccompanied children more effectively); allowing 
advocates to be present at all ORR hearings and interviews with their 
client (except meetings between an unaccompanied child and their 
attorney or DOJ Accredited Representative); and expanding the child 
advocates program to operate at more locations, or expanding 
eligibility for the program to allow unaccompanied children who age 
past their 18th birthday to continue receiving advocates' services. ORR 
noted that, as required by the TVPRA, it already provides child 
advocates with access to materials necessary to effectively advocate 
for the best interests of unaccompanied children. In particular, per 
current ORR policies, child advocates have access to their clients and 
to their clients' records.

[[Page 34522]]

Child advocates may access their clients' entire original case files at 
care provider facilities, or request copies from care providers. 
Further, they may participate in case staffings, which are meetings 
organized by an unaccompanied child's care provider with other relevant 
stakeholders to help discuss and plan for the unaccompanied child's 
care. In drafting the NPRM, ORR believed that the language at Sec.  
410.1308(b) (together with other paragraphs proposed in Sec.  410.1308) 
represented an appropriate balance in codifying the role of child 
advocates. ORR invited comment on these issues, and on the proposals of 
Sec.  410.1308(b).
    At paragraph Sec.  410.1308(c), ORR proposed in the NPRM to specify 
the responsibilities of child advocates, which include (1) visiting 
with their unaccompanied children clients; (2) explaining the 
consequences and potential outcomes of decisions that may affect the 
unaccompanied child; (3) advocating for the unaccompanied child 
client's best interest with respect to care, placement, services, 
release, and, where appropriate, within proceedings to which the child 
is a party; (4) providing best interest determinations, where 
appropriate and within a reasonable time to ORR, an immigration court, 
and/or other interested parties involved in a proceeding or matter in 
which the child is a party or has an interest; and (5) regularly 
communicating case updates with the care provider, ORR, and/or other 
interested parties in the planning and performance of advocacy efforts, 
including updates related to services provided to unaccompanied 
children after their release from ORR care.
    Consistent with the TVPRA at 8 U.S.C. 1232(c)(6)(A), ORR proposed 
in the NPRM under Sec.  410.1308(d), that it may appoint child 
advocates for unaccompanied children who are victims of trafficking or 
are especially vulnerable. Under Sec.  410.1308(d)(1), ORR proposed in 
the NPRM that an interested party may refer an unaccompanied child to 
ORR for a child advocate after notifying ORR that a particular 
unaccompanied child in or previously in ORR's care is a victim of 
trafficking or is especially vulnerable. As used in this section, 
``interested parties'' means individuals or organizations involved in 
the care, service, or proceeding involving an unaccompanied child, 
including but not limited to, ORR Federal or contracted staff; an 
immigration court judge; DHS staff; a legal service provider, attorney 
of record, or DOJ Accredited Representative; an ORR care provider; a 
healthcare professional; or a child advocate organization.
    Under Sec.  410.1308(d)(2), ORR proposed in the NPRM that it would 
make an appointment decision within five (5) business days of referral 
for a child advocate, except under exceptional circumstances including, 
but not limited to, natural disasters (such as hurricane, fire, or 
flood) or operational capacity issues due to influx which may delay a 
decision regarding an appointment. ORR typically would consider the 
available resources, including the availability of child advocates in a 
particular region, as well as specialized subject-matter expertise of 
the child advocate, including disability expertise, when appointing a 
child advocate for unaccompanied children in ORR care. ORR would 
appoint child advocates only for unaccompanied children who are 
currently in or were previously in ORR care.
    Under Sec.  410.1308(d)(3), ORR proposed in the NPRM that child 
advocate appointments would terminate upon the closure of the 
unaccompanied child's case by the child advocate, when the 
unaccompanied child turns 18, or when the unaccompanied child obtains 
lawful immigrant status. Regarding the appointment of child advocates, 
ORR considered allowing that any stakeholder should be able to make a 
confidential referral of an unaccompanied child for child advocate 
services, and also that any termination of such services should be 
determined in collaboration with the unaccompanied child and the 
unaccompanied child's parent or legal guardian (if applicable).
    In terms of referrals, proposed Sec.  410.1308(d) would allow for 
referrals for child advocate services from a broad range of possible 
individuals. Regarding terminating child advocate services, ORR 
considered making terminations contingent on a collaborative process 
between the child advocate, the unaccompanied child, and the 
unaccompanied child's sponsor, but ORR believed that the proposal at 
Sec.  410.1308(d)(3) would impose reasonable limits for the termination 
of child advocate services, and that termination itself otherwise falls 
within the role and responsibilities of child advocates when advocating 
for an unaccompanied child's best interests.
    Under Sec.  410.1308(e), ORR proposed in the NPRM standards 
concerning child advocates' access to information about unaccompanied 
children for whom they are appointed. After a child advocate is 
appointed for an unaccompanied child, the child advocate would be 
provided access to materials to effectively advocate for the best 
interest of the unaccompanied child.\281\ Consistent with existing 
policy, child advocates would be provided access to their clients 
during normal business hours at an ORR care provider facility in a 
private area, would be provided access to all their client's case file 
information, and may request copies of the case file directly from the 
unaccompanied child's care provider without going through ORR's 
standard case file request process, subject to confidentiality 
requirements described below. A child advocate would receive timely 
notice concerning any transfer of an unaccompanied child assigned to 
them.
    Under Sec.  410.1308(f), ORR proposed in the NPRM standards for a 
child advocate's responsibility with respect to confidentiality of 
information. Notwithstanding the access to their clients' case file 
information granted to child advocates under paragraph (e), child 
advocates would be required to keep the information in the case file, 
and information about the unaccompanied child's case, confidential. 
Child advocates would be prohibited from sharing case file information 
with anyone except with ORR grantees, contractors, and Federal staff. 
Child advocates would not be permitted to disclose case file 
information to other parties, including parties with an interest in a 
child's case. Other parties are able to request an unaccompanied 
child's case file information according to existing procedures. ORR 
proposed in the NPRM these protections consistent with its interest in 
protecting the privacy of unaccompanied children in its care, and for 
effective control and management of its records. Also, under Sec.  
410.1308(f), ORR proposed to establish that, with regard to an 
unaccompanied child in ORR care, ORR would allow the child advocate of 
that unaccompanied child to conduct private communications with the 
child, in a private area that allows for confidentiality for in-person 
and virtual or telephone meetings. In drafting Sec.  410.1308(f), ORR 
considered suggestions that a child advocate should be protected from 
compelled disclosure of any information concerning an unaccompanied 
child shared with them in the course of their advocacy work and that 
unaccompanied children and child advocates must have access to private 
space to ensure confidentiality of in-person meetings and virtual 
meetings. ORR noted that Sec.  410.1308(f) is to be read consistently 
with the TVPRA requirement that child advocates ``shall not be 
compelled to

[[Page 34523]]

testify or provide evidence in any proceeding concerning any 
information or opinion received from the child in the course of serving 
as a child advocate.'' \282\ Also, ORR sought comment on specific ways 
to ensure confidentiality of unaccompanied child-child advocate 
meetings, and invited public comment on that issue, in particular on 
appropriate ways to ensure privacy, as well as on the text of Sec.  
410.1308(f) generally.
    Under Sec.  410.1308(g), ORR proposed in the NPRM that it would not 
retaliate against a child advocate for actions taken within the scope 
of their responsibilities. For example, ORR would not retaliate against 
a child advocate because of any disagreement with a best interest 
determination or because of a child advocate's advocacy on behalf of an 
unaccompanied child. ORR noted that Sec.  410.1308(g) is intended to be 
read consistently with its statutory obligation to provide access to 
materials necessary to effectively advocate for the best interest of 
the child, and consistently with a presumption that the child advocate 
acts in good faith with respect to their advocacy on behalf of the 
child.\283\ At the same time, ORR has the responsibility and authority 
to effectively manage its unaccompanied children's program, which 
includes, for example, ensuring that the interests of the child are 
considered in decisions and actions relating to care and custody, 
implementing policies with respect to the care and placement of 
unaccompanied children, and overseeing the infrastructure and personnel 
of facilities in which unaccompanied children reside.\284\
    Comment: A few commenters expressed broad opposition to the Sec.  
410.1308 proposals concerning child advocates. One commenter opined 
that under historical practice, ORR has released unaccompanied children 
to sponsors prior to effectively coordinating with the Office on 
Trafficking in Persons, in order to determine whether an unaccompanied 
child has been trafficked. The commenter therefore concluded that ORR 
has demonstrated an inability and unwillingness to prevent child 
trafficking, such as to make moot the proposed standards concerning 
child advocates. Another commenter raised similar concerns, as well as 
concerns about expanding bureaucracy and inefficiency, in opposing 
proposed Sec.  410.1308 on child advocates.
    Response: As described more fully in comment responses under 
subpart A, under historical practice and consistent with statutory 
mandates under the TVPRA, ORR has long coordinated with other Federal 
authorities, including the Office on Trafficking in Persons, when 
carrying out its responsibility for caring for unaccompanied children 
in its custody. ORR is committed to protecting unaccompanied children 
in its care from any further victimization through child trafficking. 
The proposals under Sec.  410.1308, by codifying and strengthening the 
role of child advocates, will have the impact of protecting vulnerable 
children, particularly with regard to child trafficking risks. ORR 
believes that these proposals are well-calibrated to achieve this 
impact, and that the proposals will strengthen ORR's operations and 
care for unaccompanied children.
    Comment: A few commenters expressed general concern about the 
importance of independence for child advocates under the proposed rule. 
A few other commenters recommended strengthening the language of Sec.  
410.1308(b) on the role of child advocates, in order to better protect 
advocates' independence. In support of these recommendations, the 
commenters observed that the independence of child advocates from other 
service providers was sufficiently important that such independence was 
called out explicitly under the TVPRA. The commenters also recommended 
making additional changes to Sec.  410.1308, to ensure that best 
interests determinations are informed by trusted adults in children's 
lives, citing best practices in child-centered advocacy in support of 
this recommendation.
    Response: ORR agrees with the commenters that protecting the 
independence of child advocates is important, and ORR recognizes that 
TVPRA addresses this issue by authorizing the appointment of advocates. 
ORR, believes that proposed Sec.  410.1308 strikes the correct balance 
in outlining the role and responsibilities for child advocates, in ways 
that will enhance the independence of the child advocacy function, and 
thereby contribute to protecting the best interests of unaccompanied 
children. While ORR respects best practices in child-centered advocacy, 
ORR believes that proposed Sec.  410.1308 already stipulates that best 
interest determinations may draw on information from trusted adults in 
a child's life, and that the proposed rule is consistent with related 
best practices in child-centered advocacy. ORR will take under 
consideration issuing additional future guidance regarding child 
advocates, the standards for best interest determinations, and best 
practices in child-centered advocacy.
    Comment: One commenter recommended that all government actors be 
required to consider an unaccompanied child's best interests at each 
decision along the continuum of a child's case, from apprehension, to 
custody, to release.
    Response: ORR believes that it is beyond the scope of this rule, 
and also beyond the scope of ORR's authority, to mandate the use of 
best interest determinations by other government authorities, across a 
wide range of enforcement and judicial proceedings that might intersect 
with the full continuum of the case for any and all specific 
unaccompanied children.
    Comment: A few commenters recommended changes to the proposed rule 
at Sec.  410.1308(c), to codify that child advocates have an obligation 
to submit best interest determinations to any official or agency that 
has the power to make decisions about a child.
    Response: ORR believes that the language of Sec.  410.1308(c), as 
proposed, strikes the correct balance in outlining and illustrating the 
responsibilities for child advocates, but without limitation to those 
responsibilities. ORR will take under consideration issuing additional 
future guidance regarding child advocates, and standards for best 
interest determinations made by child advocates.
    Comment: A few commenters recommended changing proposed regulatory 
language at Sec.  410.1308(c), to remove any implication that children 
``belong'' to child advocates, by amending each reference to ``their 
child'' under the rule.
    Response: ORR believes that Sec.  410.1308(c) makes it clear that 
child advocates stand in a professional-to-client relationship with 
unaccompanied child clients, rather than in an ownership relationship 
with them. When read in its entirety, ORR does not believe that there 
is any implication of ownership in the phrasing of Sec.  410.1308. 
However, for clarity and consistency of expression, ORR has added the 
word ``client'' after ``unaccompanied child'' at the end of Sec.  
410.1308(c)(2).
    Comment: Several commenters recommended expanding ORR's obligations 
to appoint child advocates for unaccompanied children under Sec.  
410.1308(d) of the rule. A few commenters recommended making the 
appointment of child advocates mandatory for all unaccompanied 
children, on the grounds that all are vulnerable, and that all would 
benefit from having child advocates. Several commenters recommended 
making the appointment of child advocates

[[Page 34524]]

mandatory by ORR with regard to specific sub-groups of unaccompanied 
children, on grounds of heightened vulnerability, including a few 
commenters each recommending the appointment of child advocates for 
LGBTQI+ children; or for children who have been sex-trafficked; or for 
children lacking the capacity to make decisions regarding their own 
cases; or for certain youth beyond the age of 18 (when youth age is in 
dispute, or when the government's actions or inactions have put the 18-
year-old in a dangerous situation).
    Response: ORR recognizes the importance of child advocates in 
protecting the interests of child trafficking victims and other 
especially vulnerable unaccompanied children. As described in this 
final rule's discussion in subpart A, availability of child advocates 
is dependent on appropriations. For this reason, ORR believes that 
proposed Sec.  410.1308(d) strikes an important balance in seeking to 
align child advocacy services with the children who are most in need of 
them. Further, ORR specifically chose not to specify detailed standards 
under Sec.  410.1308(d) for exactly which children will be considered 
``especially vulnerable.'' ORR will consider addressing more detailed 
standards on this issue in future policymaking. Finally, ORR notes that 
the current language of Sec.  410.1308(d) makes it clear that child 
advocate appointments terminate when an unaccompanied child turns 18. 
In recognition of ORR's limited resources, statutory mandates, and the 
primary aim of Sec.  410.1308(d) in protecting especially vulnerable 
children, ORR believes that limiting child advocate appointments to 
unaccompanied children under the age of 18 is reasonable and 
appropriate under the rule.
    Comment: A few commenters recommended modifying Sec.  410.1308(d) 
to allow for appointment of child advocates to unaccompanied children 
who were never transferred to ORR custody, or else who passed through 
ORR custody only briefly, before being immediately reunified with 
accompanying adult family members. The commenters argued that the TVPRA 
statute, in authorizing the appointment of child advocates, did not 
specifically constrain this authority based on ORR custody. The 
commenters also argued that allowing for appointment of child advocates 
for vulnerable children without regard to ORR custody status could help 
to limit the number of children unnecessarily transferred to ORR 
custody when such transfer is not in a child's best interests, and when 
that transfer could result in a significant expense to the government.
    Response: ORR believes that as written, Sec.  410.1308(d) allows 
for appointment of child advocates for unaccompanied children who have 
passed through, but who are not currently in, ORR custody (subject to 
other applicable standards, such as being ``especially vulnerable''). 
As for the recommendation made by a few commenters to extend the 
appointment of child advocates to unaccompanied children who have never 
been in ORR custody, it is beyond the scope of this rule to address, 
since this rule focuses on children referred to ORR custody from other 
Federal agencies.
    Comment: One commenter expressed concern about the lack of 
requirements in proposed Sec.  410.1308(d) for the qualifications and 
training of child advocates in the appointments process. The commenter 
recommended that ORR add those requirements to the proposals in Sec.  
410.1308(d).
    Response: The child advocate program is operated through a contract 
that includes specific and comprehensive requirements for relevant 
qualifications and skills, which includes, but is not limited to, 
bilingual skills, minimum and advanced college degree requirements, and 
minimum years of experience in child and family welfare, immigration 
law, social work, trauma-informed approaches to advocacy, and program 
management. Additionally, ORR's child advocate contract requires the 
contractor to undergo and provide ongoing training and professional 
development in areas such as cultural competency, case confidentiality, 
child development theory, trauma-informed care, child abuse and neglect 
reporting, issues around family separation, human trafficking 
reporting, and health and mental health issues. Because standards for 
the qualification and training of child advocates are set by ORR under 
contract, ORR has chosen not to codify those standards as a part of 
this rule.
    Comment: A few commenters objected to the language of Sec.  
410.1308(d) of the proposed rule allowing ORR discretion to determine 
which unaccompanied cases are appointed child advocates, rather than 
empowering the child advocate contractor to make independent decisions 
about this. The commenters also argued that the proposed rule would 
require an unnecessarily duplicative process for an interested 
stakeholder to notify ORR of a referral before submitting the referral 
to the child advocate contractor, and that this would involve adding 
costs and delays to current ORR practice. The commenters recommended 
instead that ORR maintain the current, well-established system, in 
which the child advocate contractor receives all referrals, and then 
submits referrals to ORR for a decision to appoint or decline to 
appoint.
    Response: The language at Sec.  410.1308(d) that allows ORR to 
appoint child advocates is consistent with the TVPRA, which grants the 
Secretary of HHS the authority to appoint child advocates. As discussed 
in the background section, the Secretary's authority under the TVPRA 
has been delegated to the Director of ORR. It is ultimately ORR's 
responsibility and under its authority to appoint child advocates, and 
the language at Sec.  410.1308(d) is consistent with that.
    ORR has decided, after review, that the proposed language in Sec.  
410.1308(d) that described the referral process for child advocates was 
unnecessarily detailed, in a way that could unintentionally contribute 
to inefficiency in ORR's processes. Accordingly, ORR in this final rule 
has streamlined the language of Sec.  410.1308(d)(1), to say that ``an 
interested party may refer an unaccompanied child for a child advocate, 
when that unaccompanied child is or previously was in ORR's custody, 
and when that child has been determined to be a victim of trafficking 
or especially vulnerable.'' This rephrasing remains consistent with the 
intent of the original proposal language and is also consistent with 
ORR's operations and current policies in how referrals for child 
advocate appointments are carried out.
    Comment: A few commenters recommended adding proposal language to 
Sec.  410.1308(d), to allow for ORR to make child advocate appointment 
decisions more rapidly than the five-day standard, in specific time-
sensitive cases. The commenters recommended language allowing for ORR 
to make child advocate appointment decisions within 24 hours of 
receiving a recommendation to appoint, in time-sensitive cases 
including when unaccompanied children are at-risk of aging out of ORR 
custody, or have complex medical needs, or are facing upcoming court 
hearings or agency interviews.
    Response: There is nothing in Sec.  410.1308(d) to preclude ORR 
from making child advocacy appointment decisions more rapidly than the 
five-day standard, especially given the context of time-sensitive 
circumstances being referred to by commenters above. ORR

[[Page 34525]]

likewise believes that there is no conflict between Sec.  410.1308(d), 
and recent ORR practices concerning expedited appointment of child 
advocates in time-sensitive circumstances. For these reasons, ORR 
believes that the Sec.  410.1308(d) proposals are reasonable and 
appropriate in their current form.
    Comment: One commenter recommended that as a matter of equity under 
Sec.  410.1308(d), ORR should ensure that all stakeholders, community-
based service providers, consulates, other children in custody, and 
children's family members or proposed sponsors, are able to make 
referrals for child advocate services for an unaccompanied child.
    Response: As proposed, Sec.  410.1308(d) establishes that 
interested parties may refer an unaccompanied child to ORR for a child 
advocate, and then the proposal goes on to define ``interested 
parties'' broadly, including individuals or organizations involved in 
the care, service, or proceeding involving an unaccompanied child. ORR 
believes that the language of Sec.  410.1308(d) is appropriate and 
well-balanced as currently proposed and will allow a broad range of 
interested stakeholders to initiate referrals for child advocacy 
services.
    Comment: A few commenters recommended modifying the proposed Sec.  
410.1308(e), to ensure that child advocates will be able to access 
their unaccompanied child clients on weekends, evenings, and outside of 
business hours. The commenters observed that unaccompanied children 
often prefer to meet with their child advocates on weekends or 
evenings, when not in classes and when there tends to be less facility-
based programming. The commenters also noted that child advocates may 
need to meet with children on weekends or evenings to address urgent 
situations, such as transfers, releases, court dates, and other time-
sensitive matters.
    Response: Although proposed Sec.  410.1308(e) establishes that 
child advocates shall be provided access to their clients during normal 
business hours at an ORR care provider facility, the provision would 
not preclude or prevent care provider facilities from granting child 
advocates access to their clients outside of normal business hours or 
on weekends, particularly given the context of urgent situations such 
as transfers, releases, court dates, etc. ORR believes it is reasonable 
to only require access during business hours, given the potential 
burden on the facilities to provide access to the facilities on 
evenings or weekends, but will take under consideration addressing more 
detailed standards or considerations for access outside of formal 
business hours, in future policymaking, as necessary.
    Comment: A few commenters recommended that the provisions under 
Sec.  410.1308(e) be modified to emphasize that child advocates need to 
be given prompt access to all information related to a child's case. 
The commenters argued that child advocates may need to act urgently 
when a situation affecting a child's safety or well-being arises, which 
necessitates their having rapid access to the records, even outside of 
business hours. A few commenters also argued that timeliness of 
information access and advance notice for child advocates is critical 
in some situations, including before a child is transferred over their 
objection, is stepped up to a more restrictive facility, is required to 
appear in court to request voluntary departure, or is at risk of 
receiving a court order of removal.
    Response: ORR agrees that prompt access for child advocates to the 
case file records of their clients is important to protecting the 
interests of unaccompanied children, in a range of time-sensitive 
circumstances. The current language of Sec.  410.1308(e) establishes 
minimum requirements for access by child advocates to the case file 
records of their clients, including that advocates shall be provided 
access to such case file information during normal business hours at an 
ORR care provider facility, and that advocates may request copies of 
the case file directly from the care provider facility. This language 
does not preclude child advocates from accessing their clients' records 
quickly, nor does it exempt ORR care provider facilities from being 
responsive to requests by child advocates for rapid access to records 
(including outside of regular business hours) when time-sensitive 
circumstances create a need for such access. Again, ORR believes the 
requirements of Sec.  410.1308(e) are reasonable given the burden to 
care provider facilities. However, ORR will consider whether it should 
address more detailed standards or considerations for expedited access 
by child advocates to the case file records of their clients in ORR 
care facilities in future policymaking.
    Comment: One commenter recommended superseding and amending the 
proposal at Sec.  410.1308(e) with a new consolidated proposal on data 
safeguarding.
    Response: After considering different approaches to drafting the 
regulation, ORR concluded that the language of Sec.  410.1308(e) (on 
child advocates' access to information), Sec.  410.1303(h) (on 
safeguarding each individual unaccompanied child's case file) and at 
subpart F (on data and reporting requirements) is reasonable and 
appropriate, and offers clarity with regard to the intersection between 
data safeguarding issues, and with regard to the powers and 
responsibilities of child advocates, in particular. For these reasons, 
ORR has chosen to proceed with finalizing Sec.  410.1308(e), Sec.  
410.1303(h), and subpart F as described in this final rule.
    Comment: One commenter recommended that ORR should codify a legal 
obligation recently recognized in the Ms. L settlement agreement, to 
ensure that in cases where the Federal Government has separated a 
parent and child who traveled together, the Federal Government must 
provide ORR with information regarding the separation at the time of 
the child's transfer to ORR custody, and furthermore, that ORR is then 
required to provide this information within three business days to any 
appointed child advocate. The commenter argued that it is critical for 
child advocates of separated children in ORR custody to have access to 
all available information regarding the government's separation of the 
child from their parent.
    Response: ORR acknowledges the settlement agreement that addresses 
these issues but believes that there is no conflict or inconsistency 
between the proposed rule under Sec.  410.1308 and that settlement 
agreement.\285\
    Comment: Several commenters recommended that ORR revise its 
proposals at Sec.  410.1308(f) on the confidentiality obligations of 
child advocates, in order to establish that child advocates may 
disclose information in an unaccompanied child's case file, either with 
the child's consent or based on a best interests determination, for a 
variety of purposes, including in State court proceedings, in Federal 
court proceedings, as well as to attorneys considering representation 
of unaccompanied children, when such representation has been determined 
by a child advocate to be in a child's best interests. Several 
commenters also asserted that the proposed rule should reflect that 
child advocates shall keep communications with an unaccompanied child 
confidential, except where the child advocate determines that sharing 
of information is required to ensure the child's safety or otherwise to 
serve the child's best interests.
    Response: Under the language of Sec.  410.1308 as proposed, ORR did 
not intend for there to be any conflict

[[Page 34526]]

between Sec.  410.1308(c) (which establishes that the responsibilities 
of a child advocate include providing best interest determinations and 
advocating in a proceeding or matter in which the unaccompanied child 
is a party or has an interest) and Sec.  410.1308(f) (which otherwise 
imposes confidentiality requirements on child advocates, with respect 
to information in the unaccompanied child's case file). Per Sec.  
410.1308(c), child advocates have both the responsibility and authority 
to advocate in the manner and in proceedings as described under that 
paragraph. Apart from and beyond that responsibility, both ORR and 
child advocates also have broader duties to protect the confidentiality 
of the case file records of their unaccompanied child clients, as 
specified under Sec.  410.1308(f). In ORR's view, the language of 
Sec. Sec.  410.1308(c) and (f), read in totality, serves to empower 
child advocates to appropriately advocate for their unaccompanied child 
clients through best interest determinations and in a range of 
proceedings where those clients have an interest, while also imposing 
appropriate confidentiality obligations on child advocates in other 
contexts. Consistent with the originally proposed intent for Sec.  
410.1308(f), ORR has decided to clarify the language of that provision 
to read, in relevant part, ``Child advocates must keep the information 
in the case file, and information about the unaccompanied child's case, 
confidential. A child advocate may only disclose information from the 
case file with informed consent from the child, when this is in the 
child's best interests.'' These updates reflect ORR's dual intent (1) 
to emphasize that child advocates must be given appropriate access to 
materials necessary to effectively advocate for the best interest of 
the child, consistent with the TVPRA; and (2) to express ORR's 
responsibility to safeguard unaccompanied children's case files. See 
above preamble discussion regarding Sec.  410.1303(h). ORR may engage 
in additional policymaking to further refine the application of these 
principles, but for purposes of this rule ORR underscores its 
commitment to ensuring that child advocates retain their ability to 
effectively advocate for the best interest of the child.
    Comment: One commenter recommended modifying proposed Sec.  
410.1308(f) to prohibit a child advocate from being compelled to 
testify or otherwise provide evidence. That commenter specifically 
recommended that the proposed rule cross-reference the proceedings 
contemplated by proposed Sec. Sec.  410.1902 and 410.1903 and clarify 
that child advocates cannot be compelled to testify in these 
proceedings. The commenter stated that the statutory provisions of the 
TVPRA establish that child advocates shall not be compelled to testify 
or provide evidence in any proceeding concerning any information or 
opinion received from a child in the course of serving as a child 
advocate.
    Response: ORR acknowledges that the TVPRA states that a ``child 
advocate shall not be compelled to testify or provide evidence in any 
proceeding concerning any information or opinion received from the 
child in the course of serving as a child advocate.'' \286\ With regard 
to the proceedings contemplated by proposed Sec. Sec.  410.1902 and 
410.1903 of this rule, the intent of those proceedings is to provide an 
unaccompanied child review of a restrictive placement decision made by 
ORR. In these administrative proceedings, an unaccompanied child may 
ask their child advocate to assist in their representation. Neither the 
unaccompanied child nor ORR can compel a child advocate to testify or 
provide evidence in any proceeding concerning any information or 
opinion received from the child in the course of serving as a child 
advocate. However, a child advocate may choose to participate in the 
proceeding when doing so is in the child's best interest. ORR will 
consider providing more detailed standards for child advocates in these 
administrative proceedings in future guidance.
    Comment: A few commenters expressed support for the Sec.  
410.1308(g) proposal to protect child advocates from retaliation by 
ORR. The commenters noted that because child advocates make best 
interest determinations for unaccompanied children, this sometimes 
results in the advocates challenging ORR's decisions with regard to 
unaccompanied children. The commenters expressed appreciation for the 
inclusion by ORR of language in the rule to prohibit retaliation 
against child advocates, but also called for strengthening the proposal 
language to be consistent with other laws prohibiting retaliation. One 
commenter went further, by recommending the addition of specific 
regulatory language to define ``retaliation'' against a child advocate 
as including any adverse action impacting the child advocate's ability 
to fulfill their role, including with regard to access to unaccompanied 
children, referrals, or timely appointment decisions.
    Response: ORR recognizes the importance of non-retaliation against 
child advocates by ORR as a necessary foundation in order for child 
advocates to carry out their function. ORR believes that the proposed 
language of Sec.  410.1308(g) in protecting advocates from 
``retaliation for actions taken within the scope of their duties'' is 
both sufficient and well-tailored to accomplish this purpose.
    Final Rule Action: After consideration of public comments, ORR is 
revising Sec.  410.1308(c)(2) to add the word ``client'' after the 
phrase ``unaccompanied child;'' is revising Sec.  410.1308(d)(1) to 
clarify that an interested party may refer an unaccompanied child for a 
child advocate when the unaccompanied child is currently, or was 
previously in, ORR's care and custody; and is revising Sec.  
410.1308(f) to clarify that a child advocate may only disclose 
information from the case file with informed consent from the child 
when this is in the child's best interests. ORR is otherwise finalizing 
this section as proposed.
Section 410.1309 Legal Services
    ORR proposed in the NPRM, at Sec.  410.1309, standards and 
requirements relating to the provision of legal services to 
unaccompanied children following entry into ORR care (88 FR 68948 
through 68951). The proposals under Sec.  410.1309 also included 
standards relating to ORR funding for legal service providers for 
unaccompanied children.
    ORR believes that legal service providers who represent 
unaccompanied children undertake an important function by representing 
such children while in ORR care and in some instances after release. 
The proposals under Sec.  410.1309 are built on current ORR policies, 
which articulate standards for legal services for unaccompanied 
children. ORR strives for 100 percent legal representation of 
unaccompanied children and will continue to work towards that goal to 
the extent possible. ORR invited public comment as to whether and how 
to broaden representation for unaccompanied children (88 FR 68948).
    In the NPRM, ORR noted that under the TVPRA, at 8 U.S.C. 
1232(c)(5), the Secretary of HHS must ``ensure, to the greatest extent 
practicable and consistent with section 292 of the INA (8 U.S.C. 
1362),'' that all unaccompanied children who are or have been in its 
custody or in the custody of DHS, with exceptions for children who are 
habitual residents of certain countries, have counsel ``to represent 
them in legal proceedings or matters and protect them from 
mistreatment, exploitation, and trafficking.'' The Secretary of Health 
and

[[Page 34527]]

Human Services ``shall make every effort to utilize the services of pro 
bono counsel who agree to provide representation to such children 
without charge.'' The INA, 8 U.S.C. 1362, provides, ``In any removal 
proceedings before an immigration judge and in any appeal proceedings 
before the Attorney General from any such removal proceedings, the 
person concerned shall have the privilege of being represented (at no 
expense to the Government) by such counsel, authorized to practice in 
such proceedings, as he shall choose.''
    Thus, under the TVPRA, HHS has an obligation, ``to the greatest 
extent practicable,'' to ensure that unaccompanied children have 
counsel in (1) immigration proceedings and (2) to protect them from 
mistreatment, exploitation, and trafficking. Because 8 U.S.C. 
1232(c)(5) states these responsibilities are ``consistent with'' 8 
U.S.C. 1362, ORR read these provisions together as establishing that, 
while the statute establishes HHS's obligations in relation to legal 
services, there is not a right to government-funded counsel under 8 
U.S.C. 1232(c)(5). Rather, ORR understands that it has a duty to ensure 
to ``the greatest extent practicable'' that unaccompanied children have 
counsel at no expense to the government, for both purposes described by 
the TVPRA. Further, the second sentence of 8 U.S.C. 1232(c)(5) states 
that the Secretary of HHS shall, ``to the greatest extent 
practicable,'' make every effort to utilize the services of pro bono 
counsel. ORR understands this requirement as establishing the preferred 
means by which counsel is provided to unaccompanied children, but also 
that the Secretary has authority to utilize other types of services--
namely services that are not pro bono--in areas where pro bono services 
are not available. In summary, insofar as it is not practicable for the 
Secretary of HHS to utilize the services of pro bono counsel for all 
unaccompanied children specified at 8 U.S.C. 1232(c)(5), and insofar as 
appropriations are available, the Secretary has discretion under that 
section also to fund client representation for counsel for the 
unaccompanied children both (1) in immigration proceedings, and (2) to 
protect them from mistreatment, exploitation, and trafficking--as such 
concerns may arise outside the context of immigration proceedings 
(e.g., other discrete services outside the context of immigration 
proceedings as described in the paragraphs below).
    ORR proposed in the NPRM, at Sec.  410.1309(a)(1), that ORR would 
ensure, to the greatest extent practicable and consistent with section 
292 of the INA (8 U.S.C. 1362), that all unaccompanied children who are 
or have been in ORR care, and who are not subject to special rules for 
children from contiguous countries, have access to legal advice and 
representation in immigration legal proceedings or matters, consistent 
with current policy and as further described in this section. ORR 
stated in the NPRM that it understood ``to the greatest extent 
practicable'' to reflect that the provision of legal services must be 
subject to available resources, as determined by ORR, and otherwise 
practicable (88 FR 68949).
    ORR proposed in the NPRM, at Sec.  410.1309(a)(2), that an 
unaccompanied child in ORR care receive (1) a presentation concerning 
the rights and responsibilities of unaccompanied children in the 
immigration system, including information about protections under child 
labor laws and educational rights, presented in the language of the 
unaccompanied child and in an age-appropriate manner; (2) information 
regarding availability of free legal assistance, and that they may be 
represented by counsel, at no expense to the Government; \287\ (3) 
notification of the ability to petition for SIJ classification, to 
request that a State juvenile court determine dependency or placement, 
and notification of the ability to apply for asylum or other forms of 
relief from removal; (4) information regarding the unaccompanied 
child's right to a removal hearing before an immigration judge, the 
ability to apply for asylum with USCIS in the first instance, and the 
ability to request voluntary departure in lieu of removal; and (5) a 
confidential legal consultation with a qualified attorney (or paralegal 
working under the direction of an attorney, or DOJ Accredited 
Representative) to determine possible forms of legal relief in relation 
to the unaccompanied child's immigration case. ORR also proposed in 
Sec.  410.1309(a)(2) that an unaccompanied child in ORR care be able to 
communicate privately with their attorney of record, DOJ Accredited 
Representative, or legal service provider, in a private enclosed area 
that allows for confidentiality for in-person and virtual or telephone 
meetings. ORR noted that these proposed services go beyond that which 
is required under the FSA. For example, although both the FSA and 
proposed Sec.  410.1309(a)(2) require that unaccompanied children 
receive information regarding their legal rights and availability of 
free legal assistance, Sec.  410.1309(a)(2) would provide additional 
specificity about the type of information that would be provided. 
Additionally, ORR noted that Sec.  410.1309(a)(2) goes beyond the scope 
of what is required under the FSA by providing that unaccompanied 
children receive not just information regarding the availability of 
legal counsel, but also requiring that unaccompanied children receive a 
confidential legal consultation with a qualified attorney (or paralegal 
working under the direction of an attorney, or a DOJ Accredited 
Representative) to help them understand their individual immigration 
case. Finally, although the FSA requires that unaccompanied children 
have ``a reasonable right to privacy,'' which includes the right to 
talk privately on the phone and meet privately with guests (as 
permitted by the facility's house rules and regulations), FSA Exhibit 1 
at paragraph 12A, Sec.  410.1309(a)(2) would go beyond the FSA's 
requirement to make explicit that communications and meetings with the 
unaccompanied child's attorney of record, DOJ Accredited 
Representative, and legal service provider must be held in enclosed 
designated spaces, without reference to any limitation on such rights 
by the facility's house rules and regulations.
    With respect to the confidential legal consultation, ORR noted the 
importance of allowing unaccompanied children and their legal service 
providers, attorneys of record, or DOJ Accredited Representatives 
access to private space, to ensure that any communications or meetings 
about legal matters can be held confidentially. In addition, in 
developing the proposal to require a presentation on the rights of 
unaccompanied children in the immigration system, ORR considered 
including a requirement for additional presentations for unaccompanied 
children who remain in ORR care beyond six months.
    At Sec.  410.1309(a)(3), ORR proposed in the NPRM that it would 
require this information, regarding unaccompanied children's legal 
rights and access to services while in ORR care, to be posted in an 
age-appropriate format and translated into each child's preferred 
language consistent with proposed Sec.  410.1306, in any ORR contracted 
or grant-funded facility where unaccompanied children are in ORR care.
    ORR proposed in the NPRM, at Sec.  410.1309(a)(4), that to the 
extent that appropriations are available, and insofar as it is not 
practicable to secure pro bono counsel for unaccompanied children as 
specified at 8 U.S.C. 1232(c)(5), ORR would fund legal service 
providers to provide direct

[[Page 34528]]

immigration legal representation to certain unaccompanied children 
subject to ORR's discretion to the extent it determines appropriations 
are available. Examples of direct immigration legal representation 
include, but are not limited to, (1) for unrepresented unaccompanied 
children who become enrolled in ORR URM Programs, provided they have 
not yet obtained lawful status or reached 18 years of age at the time 
of retention of an attorney; (2) for unaccompanied children in ORR care 
who must appear before EOIR, including children seeking voluntary 
departure, or who must appear before U.S. Citizenship and Immigration 
Services (USCIS); (3) for unaccompanied children released to a sponsor 
residing in the defined service area of the same legal service provider 
who provided the child legal services in ORR care, to promote 
continuity of legal services; and (4) for other unaccompanied children, 
in ORR's discretion.
    Under Sec.  410.1309(b), ORR proposed in the NPRM that it would 
fund legal services for the protection of an unaccompanied child's 
interests in certain matters not involving direct immigration 
representation, consistent with its obligations under the HSA, 6 U.S.C. 
279(b)(1)(B), and the TVPRA, 8 U.S.C. 1232(c)(5). In addition to the 
direct immigration representation outlined in Sec.  410.1309(a)(4), to 
the extent ORR determines that appropriations are available and use of 
pro bono counsel is impracticable, ORR proposed in the NPRM that it may 
(but is not required to) make funding for additional access to counsel 
available for unaccompanied children in the following enumerated 
situations for proceedings outside of the immigration system when 
appropriations allow and subject to ORR's discretion in no particular 
order of prioritization: (1) ORR appellate procedures, including the 
Placement Review Panel (PRP) related to placement in restrictive 
facilities under Sec.  410.1902, risk determination hearings under 
Sec.  410.1903, and the denial of a release to the child's parent or 
legal guardian or close relative potential sponsor under Sec.  
410.1206; (2) for unaccompanied children upon their placement in ORR 
long-term home care or in an RTC outside a licensed ORR facility and 
for whom other legal assistance does not satisfy the legal needs of the 
individual child; (3) for unaccompanied children with no identified 
sponsor who are unable to be placed in ORR long-term home care or ORR 
transitional home care; (4) for purposes of judicial bypass or similar 
legal processes as necessary to enable an unaccompanied child to access 
certain lawful medical procedures that require the consent of the 
parent or legal guardian under State law and the unaccompanied child is 
unable or unwilling to obtain such consent; (5) for the purpose of 
representing an unaccompanied child in State juvenile court 
proceedings, when the unaccompanied child already possesses SIJ 
classification; and (6) for the purpose of helping an unaccompanied 
child to obtain an employment authorization document. ORR invited 
comment on these proposals under Sec.  410.1309(b), and with regard to 
how a mechanism might be incorporated into the rule to help prevent, or 
reduce the likelihood of, the zeroing-out of funding for legal 
representation, while also ensuring sufficient funding for capacity to 
address influxes.
    At Sec.  410.1309(c), ORR proposed in the NPRM to establish 
relevant requirements and expectations for the provision of the legal 
services described at Sec.  410.1309(a) and (b). ORR proposed in the 
NPRM at Sec.  410.1309(c)(1) that in the course of funding legal 
counsel for any unaccompanied children under Sec.  410.1309(a)(4) or 
(b)(2), in-person meetings would be preferred, although unaccompanied 
children and their representatives would be able to meet by telephone 
or teleconference as an alternative option when needed and when such 
meetings can be facilitated in such a way as to preserve the 
unaccompanied child's privacy. Either the unaccompanied child's 
attorney of record or DOJ Accredited Representative or an ORR staff 
member or care provider would always accompany the unaccompanied child 
to any in-person hearing or proceeding, in connection with any legal 
representation of an unaccompanied child pursuant to Sec.  410.1309.
    When developing Sec.  410.1309(c)(1), ORR considered the 
alternatives of enacting a requirement that an unaccompanied child's 
attorney of record or DOJ Accredited Representative always be required 
to attend court hearings and proceedings in-person with the 
unaccompanied child, or that the attorney of record or DOJ Accredited 
Representative always engage in in-person meetings with the 
unaccompanied child while representing them, absent a good cause reason 
not to do so (88 FR 68950). ORR concluded that the proposal at Sec.  
410.1309(c)(1) reflected a balance between ensuring that unaccompanied 
children have effective access to legal representation and services, 
while establishing a preference for in-person meetings, and ensuring 
that unaccompanied children will not have to walk into physical 
proceedings alone.
    Under Sec.  410.1309(c)(2), ORR proposed in the NPRM to require the 
sharing of certain information with an unaccompanied child's 
representative, including certain notices. Under paragraph (c)(2), upon 
receipt by ORR of (1) proof of representation and (2) authorization for 
release of records signed by the unaccompanied child or other 
authorized representative, ORR would, upon request, share the 
unaccompanied child's complete case file apart from any legally 
required redactions to assist with legal representation of that child. 
Section 410.1309(c)(2) reflected current ORR policy guidance describing 
the process by which an individual will be recognized by ORR as the 
attorney of record or DOJ Accredited Representative for an 
unaccompanied child. Under current practice, ORR recognizes an 
individual as an unaccompanied child's attorney of record or DOJ 
Accredited Representative through the submission of an ORR form, the 
ORR Notice of Attorney Representation. ORR noted that this form is not 
identified specifically in the proposed regulatory text to preserve 
operational flexibility for ORR to accept different forms of proof as 
appropriate. ORR also considered the importance of timely notice by ORR 
to the unaccompanied child's representative to allow for effective 
legal representation, in connection with law enforcement events, age 
redetermination processes, and allegations of sexual abuse or 
harassment.
    ORR sought public comment on these issues, including the scope of 
reportable events or interactions with law enforcement and scope of 
notice depending on the unaccompanied child's involvement in the 
reportable event (i.e., as an alleged victim, alleged perpetrator, or 
as a witness). With allegations or accusations of sexual abuse or 
harassment, ORR solicited public comment on privacy concerns and other 
considerations. ORR also solicited comments on the appropriate 
timeframes for various types of notification (88 FR 68950).
    As discussed in section III.B of this final rule, the Secretary's 
authority under 8 U.S.C. 1232 has been delegated to the ORR Director. 
As discussed above, ORR understands that in addition to expanding 
access to pro bono services and funding legal services in immigration-
related proceedings or matters, it may also promote pro bono services 
and fund legal services for

[[Page 34529]]

broader purposes that relate to protecting unaccompanied children from 
mistreatment, exploitation, and trafficking. Consistent with the TVPRA, 
ORR makes every effort to use pro bono legal services to the greatest 
extent practicable to secure counsel for unaccompanied children in 
these contexts. Specifically, ORR-funded legal service providers may 
help coordinate a referral to pro bono services, and ORR provides each 
unaccompanied child with lists of pro bono legal service providers by 
State and pro bono services available through a national organization 
upon admission into a care provider facility.\288\ That said, in some 
cases it is impracticable for ORR to secure pro bono legal services for 
unaccompanied children. For example, it may be impracticable to secure 
pro bono services if the demand for such services exceeds the supply of 
pro bono services, as may occur at certain locations or during times of 
influx. To the extent pro bono legal services are unavailable or 
impracticable to secure because ORR has limited resources, ORR must be 
selective in the kinds of legal services it funds. As a result, ORR 
proposed in the NPRM to establish its discretion to fund legal services 
for specific purposes, based on its judgment and priorities.
    In terms of funding legal services, at Sec.  410.1309(d), ORR also 
proposed, in its discretion and subject to available resources, to make 
available funds (if appropriated) to relevant agencies or organizations 
to provide legal services for unaccompanied children who have been 
released from ORR care and custody. ORR would establish authority to 
make available grants-including formula grants distributed 
geographically in proportion to the population of released 
unaccompanied children-or contracts for immigration legal 
representation, assistance, and related services to unaccompanied 
children.
    To prevent retaliation against legal service providers, at Sec.  
410.1309(e), ORR proposed in the NPRM that it shall presume that legal 
service providers are acting in good faith with respect to their 
advocacy on behalf of unaccompanied children, and ORR shall not 
retaliate against a legal service provider for actions taken within the 
scope of the legal service provider's responsibilities. For example, 
ORR shall not engage in retaliatory actions against legal service 
providers or any other representative for reporting harm or misconduct 
on behalf of an unaccompanied child. As noted at Sec.  410.1309(e), ORR 
will not retaliate against legal service providers; however, ORR has 
the responsibility and authority to effectively manage its 
unaccompanied children's program which includes, for example, ensuring 
that the interests of the child are considered in decisions and actions 
relating to care and custody, implementing policies with respect to the 
care and placement of unaccompanied children, and overseeing the 
infrastructure and personnel of facilities in which unaccompanied 
children reside.
    Comment: Several commenters suggested that ORR should provide 
additional language access to unaccompanied children by ensuring that 
legal services are provided in the child's ``native or preferred'' 
language. One commenter explained that this is especially important for 
indigenous unaccompanied children so that they can make informed legal 
decisions and file complaints with the correct oversight bodies.
    Response: ORR agrees with the commenters that good quality legal 
advice and representation for all children depends on the child's 
ability to effectively communicate with their attorney in their native 
or preferred language. After considering the public comments, ORR is 
revising Sec.  410.1309(a)(2)(i) to state ``native or preferred 
language of the unaccompanied child'' rather than ``the language of the 
unaccompanied child.''
    Comment: ORR sought public comments regarding whether and how to 
broaden representation for unaccompanied children in its care. ORR 
received multiple comments supporting the expansion of legal services 
for unaccompanied children and offering ideas about how ORR could do 
so. ORR also received multiple comments questioning ORR's legal 
authority to pay for legal services for unaccompanied children and 
suggesting that ORR not use taxpayer dollars to fund legal 
representation for unaccompanied children.
    Response: ORR recognizes that most unaccompanied children need 
legal services to resolve their immigration status and that 
representation appears to have a significant impact on both the court 
appearance rate and the outcome of cases for unaccompanied children. As 
ORR has explained, pursuant to the TVPRA, HHS has an obligation, ``to 
the greatest extent practicable,'' and consistent with section 292 of 
the Immigration and Nationality Act, to ensure that unaccompanied 
children have counsel in their immigration proceedings. But as 
explained in the preamble, the fact that the statute says that the 
Secretary shall make every effort to utilize the services of pro bono 
counsel to ``the greatest extent practicable'' makes clear that HHS 
also has authority to pay for legal services beyond what is available 
from pro bono counsel when meeting the Secretary's statutory 
obligations.\289\
    ORR understands that some commenters would like ORR to fully fund 
legal services to all unaccompanied children while others do not 
believe tax dollars should be spent on legal services for unaccompanied 
children. After reviewing the various comments, ORR has determined that 
its approach to providing legal services to unaccompanied children by 
enabling them to access pro bono counsel ``to the greatest extent 
practicable'' and funding legal services for additional unaccompanied 
children, as resources allow, is consistent with ORR's statutory 
obligations.
    ORR believes that the commenters who challenged whether ORR has the 
authority to pay for legal representation are mistaken. INA section 292 
does not prohibit ``aliens in removal proceedings'' from receiving 
Government-funded representation. Instead, section 292 establishes that 
aliens have a privilege to be represented by counsel of their choice, 
if the counsel is authorized to practice in immigration proceedings, 
but that the aliens do not have a right to counsel paid for by the 
Government. It does not place any limitation on the Government's 
discretion to fund client representation and therefore does not limit 
the Secretary's authority to fund such representation under section 
235(c)(5) of the TVPRA.
    Several commenters suggested that ORR should commit to fully 
funding legal representation for all unaccompanied children or should 
include language in the rule that requires appointment of an attorney 
for every child in ORR's custody.
    Response: While ORR does seek to expand legal representation for 
unaccompanied children and will continue to seek appropriations from 
Congress to make this possible,\290\ ORR cannot, by regulation, commit 
itself to pay for representation without regard to whether Congress has 
appropriated sufficient funds to do so. ORR has clarified at Sec.  
410.1309(a)(2), however, its responsibility to provide unaccompanied 
children with a list and contact information for pro bono attorneys and 
assist them with retaining an attorney as needed.
    Comment: Several commenters provided specific ideas for expanding 
access to legal services short of mandated funding. One commenter

[[Page 34530]]

suggested using collaborative intake hubs which co-locate legal 
services providers with other types of social services providers for 
unaccompanied children. The commenter argued that such hubs can reduce 
the need for children to engage in extensive outreach to numerous 
providers to access both legal and social services, and that hubs 
enable efficiencies in referring cases and screening children for 
eligibility for relief. Several commenters also encouraged the use of 
the ImportaMi program via Apps like WhatsApp, Facebook, and Facebook 
Messenger. These commenters argued that these modes of communication 
are more regularly used by unaccompanied children than telephone or 
email, and that children have had greater success in finding counsel 
with help from ImportaMi than by using ORR's conventional lists of 
legal service providers. Another comment suggested deepening and 
retaining pools of talented attorneys and legal staff through 
partnerships and fellowships dedicated to public interest immigration 
representation. The commenter also recommended convening regular 
stakeholder engagements on a local and regional basis to gather 
feedback about specific representation landscapes, barriers, and 
opportunities. Another commenter argued that trainings and outreach 
should be continuously available, with particular focus on trauma-
informed interviewing techniques, child-centered practices, cultural 
responsiveness, and fluency or proficiency in languages commonly spoken 
by unaccompanied children.
    Response: ORR is considering these and additional options but has 
deliberately not specified the specific mechanisms of service delivery 
or the technical details of the modes of communication that an 
unaccompanied child may use to communicate with or retain an attorney 
given that technology platforms and applications continuously change 
over time.
    Comment: Multiple commenters suggested expanding the scope of legal 
services orientations and information provided to children about their 
rights. One commenter recommended that children should be provided with 
information about avoiding exploitative situations, legal rights in the 
context of labor exploitation, and local resources where children can 
turn to for assistance. Several commenters recommended including in a 
legal rights orientation notice information regarding the right to 
counsel, steps for finding counsel, the right to confidential meetings 
with counsel, and the right to counsel in step-up proceedings.
    A few commenters indicated that telephonic and video legal services 
orientations should only be permitted in rare instances and only to 
protect the health and wellness of children in ORR's care. One 
commenter argued that telephonic and video orientations limit 
presenters' ability to gauge children's comprehension, engage children 
throughout the orientation, and minimize external distractions. A 
commenter pointed out that orientations serve to inform children of 
critical information about the legal process and their rights, but also 
lay a foundation for a child to begin to establish trust with a legal 
service provider.
    A few commenters offered feedback and recommendations on the 
posting of legal services orientation information. One commenter 
recommended that the rule should be expanded to incorporate specific 
examples of what age-appropriate legal rights postings should look 
like, for different age groups.
    Response: ORR is committed to ensuring that all unaccompanied 
children receive a comprehensive orientation and information about 
their legal rights in an age-appropriate format. ORR believes that the 
rule recognizes the minimal foundational requirements for the 
orientation and accessibility of information while also providing ORR 
with flexibility on how to operationalize it. Having said that, ORR 
recognizes the benefit of providing unaccompanied children specific 
notification of and information regarding their right to a risk 
determination hearing during such orientations to ensure that they are 
aware of this right and the process for exercising this right. Given 
the multiple comments suggesting that ORR expand the scope of legal 
services orientations and information provided to unaccompanied 
children about their rights, ORR is adding new paragraph (a)(2)(vii) to 
Sec.  410.1309 to provide that as part of a child's orientation, the 
child shall receive information regarding the child's right to a 
hearing before an independent HHS hearing officer, to determine, 
through a written decision, whether the unaccompanied child would 
present a risk of danger to self or to the community if released, as 
described at Sec.  410.1903(a) and (b).
    ORR appreciates the benefits of providing legal orientations in-
person. However, the feasibility of providing in-person orientations 
may vary, particularly given the need to do so in a timely manner, and 
the need to do so in each unaccompanied child's native or preferred 
language. ORR anticipates that sometimes there may be unavoidable 
trade-offs between providing a timely legal services orientation versus 
providing an in-person legal services orientation. Rather than 
establish detailed requirements or standards to address this issue, 
ORR's proposal under Sec.  410.1309(a)(2)(i)(A) deliberately leaves 
these details unspecified, in anticipation of future ORR guidance, 
contracting terms, and the likelihood that ORR's policies and standards 
regarding in-person versus telephonic or video legal services 
orientations may need to be updated over time.
    Comment: One commenter argued that the term ``in an age-appropriate 
manner'' in Sec.  410.1309(a)(2) does not adequately address the 
differences between age and development. The commenter recommended 
replacing this language with the phrase ``in an age, developmentally, 
and culturally appropriate matter.''
    Response: ORR intends that the phrase ``age-appropriate,'' as used 
in Sec.  410.1309(a)(2), is synonymous with the term ``developmentally 
appropriate.'' ORR is revising the paragraph to state that the required 
presentation must be presented in the native or preferred language of 
the unaccompanied child, which ORR believes would cover the language 
being culturally appropriate.
    Comment: One commenter expressed support for the proposal under 
Sec.  410.1309(a)(2) for confidential legal consultations for 
unaccompanied children, and for the proposal for a second consultation 
for some children once identified as falling into one of several 
enumerated, high-risk categories. Several commenters recommended 
modifying the proposals under Sec.  410.1309(a)(2) to require ORR to 
allow at least one additional legal consultation for all unaccompanied 
children to the extent practicable, rather than only to those children 
at heightened risk as specified under Sec.  410.1309(a)(2)(v). The 
commenters argued that, based on trauma-informed care experience, a 
substantial number of contacts with an unaccompanied child may be 
necessary to establish the rapport and trust needed for the child to 
feel safe enough to disclose the difficult details of the events that 
may make them eligible for various forms of relief. Another commenter 
argued that it was over-inclusive for the proposal to require a second 
legal consultation for those unaccompanied children at heightened risk 
as specified under Sec.  410.1309(a)(2)(v), because for many of those 
children, the heightened risk factors might already have been 
identified during the first legal consultation, so as to render a 
second consultation duplicative. The commenter recommended making the

[[Page 34531]]

second consultation subject to ORR's discretion, while adding an 
additional category of children for whom ORR could permit a second 
follow-up legal consultation to apply in other circumstances in which 
ORR learns of new information or particular vulnerabilities that 
suggest a child might benefit from additional information or advice 
about their legal options.
    Response: ORR believes that access to a confidential legal 
consultation under Sec.  410.1309(a)(2)(v) constitutes an important 
protection for the rights and welfare of unaccompanied children in ORR 
care, and that a second (repeated) legal consultation can be very 
valuable in protecting high-risk unaccompanied children, both by 
helping to establish trust through repeated contact, and also by 
allowing for more tailored discussion of an unaccompanied child's legal 
situation, as new facts and vulnerabilities concerning the child are 
discovered. In ORR's view, the current language of Sec.  
410.1309(a)(2)(v) strikes a reasonable balance in making confidential 
legal consultations available to unaccompanied children, while 
prioritizing mandatory access to a second consultation when children 
are identified as falling into a high-risk category. ORR also notes 
that Sec.  410.1309(a)(2)(v) says that legal consultations shall occur 
or shall be requested by ORR under stated conditions, but this does not 
preclude ORR from requesting additional legal consultations for other 
unaccompanied children, when deemed appropriate (e.g., when ORR learns 
of new information that suggests a child might benefit from additional 
advice about legal options). In sum, ORR believes that the current 
proposal language of Sec.  410.1309(a)(2)(v) provides flexibility for 
providing confidential legal consultations to unaccompanied children, 
based on their needs and sensitive to changing conditions and new 
information about the vulnerability of specific children in ORR 
custody.
    Comment: A few commenters recommended changing the proposal under 
Sec.  410.1309(a)(2), which requires a legal services orientation to 
occur within 10 business days of a child's admission to ORR, or 
transfer to a new ORR facility other than long-term home care or 
transitional home care. The commenters observed that the exception for 
unaccompanied children in long-term care makes sense, because most or 
all such children receive direct, full-scope representation by a legal 
service provider upon their placement. However, the commenters argued 
that the same is not true for children placed in transitional foster 
care, which is typically short term, and for which it does not make 
sense to forego the requirement for a timely refresher legal services 
orientation. The commenters therefore recommended dropping the 
exception regarding unaccompanied children placed in transitional home 
care.
    Response: In ORR's view, one of the defining attributes of a 
placement for an unaccompanied child in transitional home care is that 
such placements are short-term and will therefore typically be followed 
in the short-term by another transfer, or by placement into long-term 
home care, or by a release from ORR custody to a suitable sponsor. As 
written, the exception in Sec.  410.1309(a)(2) contemplates this and 
compels a follow-up legal services orientation to take place in the 
short-term, in those situations where an unaccompanied child is once 
again transferred by ORR out of the transitional home care setting, 
while remaining in ORR custody. Taken in this light, ORR believes that 
the Sec.  410.1309(a)(2) exception to the requirement for a legal 
services orientation, in the case of transfers to transitional home 
care, is reasonable and appropriate.
    Comment: One commenter recommended, regarding Sec.  410.1309(a)(2), 
that ORR should require facilities to set aside sufficient space for 
attorneys to meet confidentially with their clients. The commenter 
asserted that many facilities do not have designated space for legal 
screenings and scramble at the last minute to find such space. The 
commenter argued that as a result, legal screenings often take place in 
a variety of inappropriate spaces. The commenter further argued that to 
address these issues, ORR should provide clear guidelines to shelters 
about the number of appropriate confidential spaces for legal 
screenings and meetings that are needed, based on facility capacity.
    Response: ORR notes that Sec.  410.1309(a)(2)(vi) provides that an 
unaccompanied child in ORR care shall be able to conduct private 
communications with their attorney of record, DOJ Accredited 
Representative, or legal service provider in a private enclosed area 
that allows for confidentiality for in-person, virtual, or telephonic 
meetings. While ORR does agree with the importance of providing 
unaccompanied children with access to private spaces for the conduct of 
confidential legal meetings with counsel and is requiring it, ORR 
believes that it is beyond the scope of Sec.  410.1309(a)(2) to address 
this issue with detailed physical plant requirements for care 
facilities.
    Comment: One commenter recommended a change to the proposed 
language at Sec.  410.1309(a)(2)(v) (which requires a legal 
consultation meeting within 10 business days of a child's transfer to a 
new ORR facility, either with a qualified attorney, supervised 
paralegal, or DOJ Accredited Representative), by arguing that clarity 
would be enhanced by stating that an ORR care provider facility should 
not retain a child in its care solely to fulfill this requirement, if 
the child is ready for unification before the 10-day mark. Another 
commenter recommended revising the language of this proposal, by 
replacing the word ``paralegal'' with ``other legal professional 
working under the supervision of an attorney,'' regarding the types of 
professionals who can carry out legal consultation meetings with 
unaccompanied children. The commenter argued in support that many legal 
service providers now serving unaccompanied children employ qualified 
non-attorney legal services professionals who do not carry the specific 
title of ``paralegal.''
    Response: In ORR's view, there is nothing in the text of Sec.  
410.1309(a)(2)(v) to compel a provider to hold unaccompanied children 
in custody who are otherwise ready for unification for the sole purpose 
of ensuring that a legal consultation meeting occurs and it is not 
ORR's intent that a child otherwise ready to be released to a sponsor 
should ever remain in custody on the basis of the need for a legal 
services orientation. Regarding the use of the term ``paralegal'' in 
Sec.  410.1309(a)(2)(v), and those categories of persons who are 
authorized to engage in confidential legal consultations with an 
unaccompanied child: ORR intended, when using the term ``paralegal,'' 
to refer to legal services professionals with technical skills and 
experience akin to those possessed by a traditional paralegal. ORR will 
consider issuing more detailed technical guidance in the future, to 
address licensing, experience, and supervision requirements for legal 
services professionals in this context, including paralegals.
    Comment: One commenter expressed concern about the lack of quality 
standards for legal counsel to unaccompanied children under proposed 
Sec.  410.1309(a)(4). The commenter argued, by analogy, that in the 
commenter's view, there can be quality concerns within the criminal 
justice system regarding public defenders. The commenter questioned 
whether the same deficiencies might be

[[Page 34532]]

true of appointed counsel in unaccompanied children's immigration 
cases.
    Response: ORR notes that attorneys are licensed and monitored by 
State licensing authorities and that DOJ Accredited Representatives are 
accredited according to DOJ standards. It is beyond the scope of this 
rulemaking to address detailed quality standards for legal counsel to 
unaccompanied children in immigration cases.
    Comment: A few commenters expressed opposition to language in 
proposed Sec.  410.1309(a)(4) that would exclude from potential funding 
for legal representation unaccompanied children in the URM Program who 
have reached the age of 18. One commenter argued that under this 
proposed language, a child might turn 18 before being able to complete 
their applications for relief, and that this result would be contrary 
to the stated aims of the TVPRA statute. The commenter recommended 
that, in order to uphold both the TVPRA and the mission of the URM 
program, ORR should eliminate age-based restrictions on counsel for 
children in URM. Another commenter made several additional arguments 
against excluding children from legal representation based on turning 
18, including that there might not be LSP capacity to serve a child 
close to her 18th birthday; that indigenous language speakers might 
face greater challenges in communicating with LSPs, leading to added 
delays in accessing counsel; that the States are varied in recognizing 
the age of majority, such that some States do not recognize the age of 
majority until 21; and that recent neuroscientific evidence suggests 
that adult brain development and reasoning skills are not achieved 
until age 25. The commenter concluded that ORR should allow 
unaccompanied children in URM custody to continue to be eligible for 
legal representation until the age of 25, or at the very least until 
age 21.
    Response: ORR does recognize that the language in proposed Sec.  
410.1309(a)(4), with regard to unaccompanied children in the URM 
Program, may result in some children, who would otherwise be eligible 
for legal representation funded by ORR, turning 18 before attaining 
legal representation. However, ORR notes that similar problems could 
also arise under any other bright-line eligibility criterion, based on 
age, for access by unaccompanied children to legal counsel. Based on 
ORR's analysis of Sec.  235(c)(5) of the TVPRA and Sec.  292 of the 
INA, ORR believes that the language under Sec.  410.1309(a)(4) for 
funding for immigration legal counsel for unaccompanied children is 
reasonable and appropriate, including the exclusion from funding for 
legal representation of unaccompanied children in the URM Program who 
have reached the age of 18 before retention of an attorney.
    Comment: A few commenters recommended modifying the proposals at 
Sec.  410.1309(c)(2), to expand on ORR's obligations regarding 
disclosing information from an unaccompanied child's case file to the 
child's attorney. One commenter recommended adding an explicit list of 
types of information that ORR is required to disclose to a child's 
attorney, including all interactions with law enforcement; all 
allegations or accusations of sexual harassment or abuse; and any 
information that can or will be shared with any enforcement agencies. 
One commenter argued that the current proposal does not specify a 
reasonable timeframe for the delivery of the case file, and recommended 
that at a minimum, the case file must be provided to counsel in a 
reasonable timeframe before any applicable hearing. A few commenters 
recommended that information from the case file regarding contact with 
law enforcement or allegations of abuse and harassment should be turned 
over no later than 30 days after the incident, or in the case of 
investigations or reports, not more than 30 days after the creation of 
the document. These commenters went on to assert that all interactions 
with law enforcement or allegations of harassment should be shared with 
counsel for the child, because such interactions and allegations will 
likely be relevant to the child's immigration relief. A few commenters 
recommended that the proposed language in Sec.  410.1309(c)(2) 
(regarding disclosures of case file information by ORR to an 
unaccompanied child's legal counsel) should be harmonized with current 
ORR policy, which permits care provider facilities to share certain 
information directly with a child's attorney, subject to the child's 
consent and as related to the child's legal case.
    Response: Under Sec.  410.1309(c)(2), as proposed, ORR ``shall 
share, upon request, the unaccompanied child's complete case file, 
apart from any legally required redactions.'' In ORR's view, this 
language makes it clear that ORR will disclose, and is required to 
disclose, all aspects of an unaccompanied child's case file to that 
child's attorney of record, including, without limitation, contacts 
with law enforcement and abuse and harassment allegations. In order to 
clarify this point under the rule, ORR is revising Sec.  410.1309(c)(2) 
to read, in pertinent part, that ``. . . ORR shall share, upon request 
and within a reasonable timeframe to be established by ORR, the 
unaccompanied child's complete case file, apart from any legally 
required redactions, to assist in the legal representation of the 
unaccompanied child.'' Because the rule contemplates that ORR will 
disclose the entire case file to the attorney of record or DOJ 
Accredited Representative within a reasonable time frame, it is ORR's 
judgment and intent that this policy will usually result in full 
disclosure well before a 30-day disclosure deadline would apply. It is 
also ORR's judgment that it is better policy for ORR to retain 
discretion through future guidance about what constitutes a reasonable 
timeframe for disclosure of the complete case file upon request by the 
attorney of record or DOJ Accredited Representative, since this may 
need to be revisited by ORR from time to time, particularly as 
circumstances change.
    Furthermore, to clarify ORR's responsibility to provide access by 
unaccompanied children and their attorney of record or DOJ Accredited 
Representative to key documents from the case file on an expedited 
basis, in the context of time-sensitive proceedings, ORR is revising 
Sec.  410.1309(c) to add two new sub-paragraphs, to define what an 
``expedited basis'' situation refers to, and to establish that ``If an 
unaccompanied child's attorney of record or DOJ Accredited 
Representative properly requests their client's case file on an 
expedited basis, ORR shall, within seven calendar days, unless 
otherwise provided herein, provide the attorney of record with key 
documents from the unaccompanied child's case file, as determined by 
ORR.''
    In addition, ORR is also clarifying at Sec.  410.1309(c)(2) its 
responsibility to share with an attorney of record or DOJ Accredited 
Representative, upon request, the name and telephone number of all 
potential sponsors who have submitted a completed Family Reunification 
Application to ORR, if the sponsors have provided consent to release 
their information.
    Further, in response to comments about providing complete 
documentation to attorneys of record, DOJ Accredited Representatives, 
and unaccompanied children, ORR has clarified at Sec.  410.1309(c)(2) 
that it will allow an unaccompanied child to review, upon request and 
in the company of their attorney of record or DOJ Accredited 
Representative, if any, such papers or writings as the child possessed 
at the time they were

[[Page 34533]]

apprehended by DHS or came into the custody of the relevant Federal 
department or agency, if those papers or writings are in ORR's or an 
ORR care provider facility's possession. Specifically, ORR has revised 
Sec.  410.1309(c)(2) to include the following language: ``Absent a 
reasonable belief based upon articulable facts that doing so would 
endanger an unaccompanied child, ORR shall ensure that unaccompanied 
children are allowed to review, upon request and in the company of 
their attorney of record or DOJ Accredited Representative if any, such 
papers, notes, and other writings they possessed at the time they were 
apprehended by DHS, or another Federal department or agency, that are 
in ORR or an ORR care provider's possession.''
    Finally, and to ensure that ORR is aware of and responsive to any 
problems in timely disclosure of information to attorneys of record or 
DOJ Accredited Representatives, as well as any other complaints or 
problems from legal representatives regarding emerging issues, ORR is 
further revising Sec.  410.1309 by adding a new paragraph (f), as 
follows: ``Resource email box. ORR shall create and maintain a resource 
email box for feedback from legal services providers regarding emerging 
issues related to immediate performance of legal services at care 
provider facilities. ORR shall address such emerging issues as 
needed.''
    Comment: One commenter recommended that ORR should codify in the 
NPRM, at Sec.  410.1309(c)(2), certain requirements specified in the 
recent Ms. L litigation relating to family separations, including a 
requirement that where the Department of Homeland Security (DHS) has 
separated a parent and child who traveled together, DHS must provide 
ORR with information regarding the separation at the time of the 
child's transfer to ORR custody. This information includes information 
regarding DHS' reason for separation and the location and contact 
information for the parent or legal guardian. ORR is then required to 
provide this information, within three business days, to the facility 
where the child is being held, to the child's attorney of record and/or 
DOJ Accredited Representative, and to any appointed child advocate. The 
commenter argued that ORR should codify this legal obligation in the 
regulations to ensure that separated children's counsel and advocates 
are promptly provided with the information they need to effectively 
advocate for them, and to facilitate prompt unification of the child 
with their parent whenever possible.
    Response: ORR welcomed the judicial approval of the settlement in 
the Ms. L litigation, which, among other things, established important 
restrictions on future family separations and specified a set of 
significant procedural protections when separations do occur. ORR 
appreciates the importance of ORR receiving information about the 
reasons for separations and sharing that information with the child's 
attorney, child advocate, and the program in which a separated child is 
placed. ORR is not codifying requirements of the Ms. L settlement in 
this rule because they were not subject to notice and comment 
procedures, but intends to fully comply with those requirements, and 
believes that there is no conflict or inconsistency between the 
proposed rule under Sec.  410.1309(c)(2) and ORR's obligations under 
the settlement agreement.
    Comment: A few commenters recommended additional steps that ORR 
should take, moving beyond what is currently proposed under Sec.  
410.1309(d), in order to increase the likelihood of ORR meeting its 
goal of ensuring legal representation for all unaccompanied children by 
2027. A few commenters objected to the proposed funding mechanism 
described in the rule, ``based on the historic proportion of the 
unaccompanied child population in the State within a lookback period 
determined by the Director [of ORR].'' The commenters argued that 
reliance on past apportioning across States could fail to account for 
current referral volumes and recommended that ORR modify its proposal 
to determine grant funding to States based in part on current ORR and 
CBP referrals. The commenters also objected to giving discretion to the 
ORR Director to determine the lookback period for determining 
apportionment based on States' historical data, as creating another 
opportunity for bias and gaming in funding decisions.
    Response: Under Sec.  410.1309(d), ORR may make grants or 
contracts, in its discretion and subject to available resources--
including formula grants distributed geographically in proportion to 
the population of released unaccompanied children--as determined by ORR 
in accordance with the eligibility requirements outlined in the 
authorizing statute, for the purpose of providing legal representation. 
ORR would note that this language broadly describes what ORR may do, 
rather than what it must do, by way of grant and contract funding 
mechanisms for immigration legal services to unaccompanied children. In 
ORR's view, the proposal at Sec.  410.1309(d) is appropriate and 
consistent with its statutory authorities.
    Comment: A few commenters expressed support for the proposals at 
Sec.  410.1309(e), codifying ORR's duty not to retaliate against legal 
service providers who represent unaccompanied children. The commenters 
observed that this safeguard is needed to uphold children's right to 
receive independent legal counsel, and to ensure that their attorneys 
can exercise their professional and ethical obligations free of 
intimidation or interference.
    Response: ORR thanks the commenters for their support of proposed 
Sec.  410.1309(e) on non-retaliation against legal service providers. 
ORR is correcting a typo in the language of Sec.  410.1309(e), by 
adding an apostrophe to the expression ``for actions taken within the 
scope of the legal service provider's . . . responsibilities.''
    Final Rule Action: After consideration of public comments, ORR is 
revising Sec.  410.1309(a)(2)(i) to refer to the native or preferred 
language of the unaccompanied child; Sec.  410.1309(a)(2)(ii) to 
require that when an unaccompanied child requests legal counsel, ORR 
will ensure that the child is provided with a list and contact 
information for pro bono counsel, and reasonable assistance to ensure 
that the child is able to successfully engage an attorney at no cost to 
the Government; Sec.  410.1309(a)(2) to add new paragraph (a)(2)(vii) 
to provide that as part of a child's orientation, the child shall 
receive information regarding the child's right to a hearing before an 
independent HHS hearing officer, to determine, through a written 
decision, whether the unaccompanied child would present a risk of 
danger to self or to the community if released, as described at Sec.  
410.1903(a) and (b); Sec.  410.1309(c)(2) to clarify that ORR shall 
share, upon request and within a reasonable timeframe to be established 
by ORR, the unaccompanied child's complete case file, apart from any 
legally required redactions; Sec.  410.1309(c)(2) to require that ORR 
share information with an attorney of record or DOJ Accredited 
Representative, upon request, the name and telephone number of all 
potential sponsors who have submitted a completed Family Reunification 
Application, if the sponsors have provided consent to release their 
information; Sec.  410.1309(c)(2) to clarify that ORR shall, absent a 
reasonable belief based upon articulable facts that doing so would 
endanger an

[[Page 34534]]

unaccompanied child, ensure that unaccompanied children are allowed to 
review, upon request and in the company of their attorney of record or 
DOJ Accredited Representative, if any, such papers, notes, and other 
writings they possessed at the time they were apprehended by DHS or 
another Federal department or agency, that are in ORR or an ORR care 
provider's possession; Sec.  410.1309(c) by adding two new sub-
paragraphs (3) and (4), to define what an ``expedited basis'' situation 
refers to, and to establish that if an unaccompanied child's attorney 
of record or DOJ Accredited Representative properly requests their 
client's case file on an expedited basis, ORR shall, within seven 
calendar days, unless otherwise provided herein, provide the attorney 
of record or DOJ Accredited Representative with key documents from the 
unaccompanied child's case file, as determined by ORR; Sec.  
410.1309(e), by adding an apostrophe to the phrase ``legal service 
provider's,'' to clarify that ORR shall not retaliate against a legal 
service provider for actions taken within the scope of that person's 
responsibilities; and adding Sec.  410.1309(f) to state that ORR shall 
create and maintain a resource email box for feedback from legal 
services providers regarding emerging issues related to immediate 
performance of legal services at care provider facilities, and that ORR 
shall address such emerging issues as needed; and is otherwise 
finalizing this section as proposed.
Section 410.1310 Psychotropic Medications
    ORR proposed in the NPRM requirements related to the administration 
of psychotropic medications to unaccompanied children while in ORR care 
(88 FR 68951). ORR noted that the third of the five plaintiff classes 
certified by the United States District Court for the Central District 
of California in the Lucas R. case, as discussed in section III.B.4. of 
this final rule, is the ``drug administration class.'' The class is 
comprised of unaccompanied children in ORR custody ``who are or will be 
prescribed or administered one or more psychotropic medications without 
procedural safeguards[.]'' \291\ At the time of this writing, the 
parties in the Lucas R. case have negotiated a proposed settlement 
agreement that would resolve this claim. The settlement agreement was 
preliminarily approved by the Court on January 5, 2024,\292\ and the 
final approval hearing is scheduled for May 3, 2024.
    The proposed rule stated ORR's belief that psychotropic medications 
should only be administered appropriately and in the best interest of 
the child and with meaningful oversight (88 FR 68951). Therefore, ORR 
proposed in the NPRM in Sec.  410.1310(a) that, except in the case of a 
psychiatric emergency, ORR must ensure that, whenever possible, 
authorized individuals provide informed consent prior to the 
administration of psychotropic medications to unaccompanied children. 
In Sec.  410.1310(b), ORR proposed in the NPRM that it would ensure 
meaningful oversight of the administration of psychotropic 
medication(s) to unaccompanied children. Examples of such oversight are 
the review of cases flagged by care providers, and secondary 
retrospective reviews of the administration of psychotropic 
medication(s) in certain circumstances, such as based on the child's 
age, the number of psychotropic medications that have been prescribed, 
or the dosages of such psychotropic medications.
    Comment: One commenter recommended ORR strengthen due process 
protections for unaccompanied children and provide enhanced safeguards 
for children who are administered psychotropic medications.
    Response: ORR agrees that safeguards for unaccompanied children who 
are administered psychotropic medications are important and believes 
that ensuring unaccompanied children have assistance of legal counsel 
can help ensure their protection. Therefore, ORR is adding a new Sec.  
410.1310(c) that ORR shall permit unaccompanied children to have the 
assistance of counsel, at no cost to the Federal Government, with 
respect to the administration of psychotropic medications.
    Comment: A few commenters emphasized that in non-psychiatric 
emergencies, ORR must ensure that an authorized individual provides 
informed consent prior to the administration of psychotropic medication 
and requested that ORR removed the term ``whenever possible'' from 
Sec.  410.1310(a) since the regulatory text already includes an 
exception for psychiatric emergencies.
    Response: ORR agrees and is therefore removing the term ``whenever 
possible'' from Sec.  410.1310(a) so that it states, ``Except in the 
case of a psychiatric emergency, ORR shall ensure that authorized 
individuals provide informed consent prior to the administration of 
psychotropic medications to unaccompanied children.''
    Comment: Several commenters stated that ORR should define who can 
be an ``authorized consenter'' and recommended that it should be a 
child's parent or legal guardian, whenever reasonably available, 
followed by a close relative sponsor, and then the unaccompanied child 
themself (if the child is of sufficient age and permitted to consent 
under State law). They also stated that care provider staff must never 
be considered authorized individuals for the purpose of informed 
consent to psychotropic medication. One commenter requested 
clarification if ORR intended that authorized consent should be 
obtained according to authorized consent laws in the State where the 
program operates.
    Response: ORR agrees that additional detail regarding who can 
provide authorized consent would provide additional clarity. Therefore, 
ORR is clarifying at Sec.  410.1310(a)(1) that three categories of 
persons can serve as an ``authorized consenter'' and provide informed 
consent for the administration of psychotropic medication to 
unaccompanied children in ORR custody: the child's parent or legal 
guardian, followed by a close relative sponsor, and then the 
unaccompanied child themself if the child is of sufficient age and a 
doctor has obtained informed consent. ORR believes that this additional 
language clarifies that care provider facility staff are not 
``authorized consenters'' for the purposes of providing informed 
consent prior to the administration of psychotropic medications to 
unaccompanied children. Finally, ORR recognizes that medical providers 
are required to operate within their respective State's licensing laws 
and regulations.
    Comment: One commenter stated that ORR should require that consent 
be obtained voluntarily, without undue influence or coercion. A few 
commenters recommended that ORR include language that care provider 
facilities must not retaliate against an unaccompanied child or an 
authorized consenter for withholding consent or refusing to take any 
psychotropic medication, including, as noted by one commenter, when 
consent is initially given, but the unaccompanied child or authorized 
consenter later changes their mind. A few commenters also noted that 
refusing to consent should not be used to step-up youth to more 
restrictive placements or to coerce youth into taking medication as a 
condition of placement.
    Response: ORR agrees and is therefore incorporating a requirement 
at Sec.  410.1310(a)(2) that consent must be

[[Page 34535]]

obtained voluntarily, without undue influence or coercion, and ORR will 
not retaliate against an unaccompanied child or an authorized consenter 
for refusing to take or consent to any psychotropic medication. ORR 
notes that this would include when consent is initially given, but then 
retracted later. ORR further notes that it believes the terms 
``voluntarily, without undue influence or coercion'' encompasses that 
refusal to consent should not be used to step-up children to a more 
restrictive placement, or that taking medication should not be used as 
a condition of placement.
    Comment: A few commenters specified that ORR, in the instance of a 
psychiatric emergency, should require that any emergency administration 
of psychotropic medication be documented, that the child's authorized 
consenter be notified as soon as possible, and that the care provider 
and ORR review the incident to ensure compliance with ORR policies and 
avoid future emergency administrations of medication.
    Response: ORR agrees and is therefore adding Sec.  410.1310(a)(3) 
requiring that any emergency administration of psychotropic medication 
be documented, the child's authorized consenter be notified as soon as 
possible, and the care provider and ORR must review the incident to 
ensure compliance with ORR policies to reasonably avoid future 
emergency administrations of medication.
    Comment: One commenter emphasized that psychotropic medications 
should not be used as a behavior management tool in lieu of or as a 
substitute for identified psychosocial or behavioral supports required 
to meet an unaccompanied child's mental health needs. They noted that 
serious incidence reports have been used by care provider facilities to 
document psychotropic medication non-compliance in ways that suggest 
that youth who refuse to take their medications are being difficult or 
oppositional. One commenter expressed that care provider facilities 
should not use psychotropic medications to address an unaccompanied 
child's history of trauma.
    Response: ORR believes that a variety of behavioral supports and 
trauma-informed approaches should support unaccompanied children with 
mental health needs or those with a history of trauma, and that 
psychotropic medications should only be used when medically appropriate 
and when authorized consent is given by an authorized consenter. 
Accordingly, psychotropic medications should not be used as a 
replacement for effective and evidence-based behavior management tools. 
ORR notes that it is adding under Sec.  410.1310(a)(2) that consent 
must be obtained voluntarily, without undue influence or coercion, and 
ORR will not retaliate against an unaccompanied child or an authorized 
consenter for refusing to take or consent to any psychotropic 
medication, and further notes that this includes the use of serious 
incident reports as retaliation for refusing to take psychotropic 
medication and applies to how such refusal is documented by care 
provider facilities.
    Comment: One commenter requested that ORR provide additional 
clarification on what ``meaningful oversight'' will entail. The 
commenter recommended including examples such as reviewing cases 
flagged by care providers and conducting additional reviews of the 
administration of psychotropic medications in high-risk circumstances, 
including but not limited to cases involving young children, 
simultaneous administration of multiple psychotropic medications, and 
high dosages.
    Response: ORR agrees and is modifying Sec.  410.1310(b) to clarify 
that ``meaningful oversight'' includes reviewing cases flagged by care 
providers and conducting additional reviews of the administration of 
psychotropic medications in high-risk circumstances, including but not 
limited to cases involving young children, simultaneous administration 
of multiple psychotropic medications, and high dosages.
    Comment: A few commenters recommended that ORR must also engage a 
child and adolescent psychiatrist as part of its oversight function 
because they are qualified professionals who are able to oversee 
prescription practices and provide guidance to care providers.
    Response: ORR agrees that qualified professionals are needed for 
proper oversight of prescription practices and to provide guidance to 
care providers. These qualified professionals may include child and 
adolescent psychiatrists. Given the scarcity of child and adolescent 
psychiatrists around the country, ORR is retaining some flexibility to 
rely on other qualified professionals with similar backgrounds, 
expertise, and educational experiences to child and adolescent 
psychiatrists. Accordingly, ORR is revising Sec.  410.1310(b) to 
clarify that ORR will engage qualified professionals who are able to 
oversee prescription practices and provide guidance to care providers, 
such as a child and adolescent psychiatrist.
    Comment: One commenter recommended that ORR gather data on 
unaccompanied children who are administered psychotropic medications 
for oversight and so that ORR can understand how psychotropic 
medications are administered across its network and within individual 
care provider facilities. Another commenter expressed concern over 
ORR's ability to monitor and assess patterns and trends relating to 
unaccompanied children's needs for psychotropic medications.
    Response: ORR agrees is incorporating additional data collection 
requirements related to the administration of psychotropic medications 
at Sec.  410.1501 (Data on unaccompanied children). Specifically, ORR 
is requiring that care providers report information to ORR relating to 
the administration of psychotropic medications, including children's 
diagnoses, the prescribing physician's information, the name and dosage 
of the medication prescribed, documentation of informed consent, and 
any emergency administration of medication. Such data must be compiled 
and aggregated in a manner that enables ORR to track how psychotropic 
medications are administered across its network and in individual 
facilities. ORR believes this data collection will enable ORR to 
monitor potential patterns and trends related to the use of 
psychotropic medications.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing its proposal with the following modifications: At Sec.  
410.1310(a) ORR is removing the phrase ``whenever possible'' and is 
adding Sec.  410.1310(a)(1) that defines ``authorized consenter,'' 
which is a person who can provide informed consent for the 
administration of psychotropic medication to unaccompanied children in 
ORR custody: the child's parent or legal guardian, followed by a close 
relative sponsor, and then the unaccompanied child themself if the 
child is of sufficient age and a doctor has obtained informed consent; 
Sec.  410.1310(a)(2) requires that consent must be obtained 
voluntarily, without undue influence or coercion, and ORR will not 
retaliate against an unaccompanied child or an authorized consenter for 
refusing to take or consent to any psychotropic medication; and Sec.  
410.1310(a)(3) that requires that any emergency administration of 
psychotropic medication be documented, that the child's authorized 
consenter be notified as soon as possible, and that the care provider 
and ORR review the incident

[[Page 34536]]

to ensure compliance with ORR policies and avoid future emergency 
administrations of medication. ORR is also revising Sec.  410.1310(b) 
to require that ``meaningful oversight'' of the administration of 
psychotropic medication(s) to accompanied children includes reviewing 
cases flagged by care providers and conducting additional reviews of 
the administration of psychotropic medications in high-risk 
circumstances, including but not limited to cases involving young 
children, simultaneous administration of multiple psychotropic 
medications, and high dosages. Section 410.1310(b) also requires that 
ORR must engage qualified professionals who are able to oversee 
prescription practices and provide guidance to care providers, such as 
a child and adolescent psychiatrist. ORR is adding a new Sec.  
410.1310(c) that ORR shall permit unaccompanied children to have the 
assistance of counsel, at no cost to the Federal Government, with 
respect to the administration of psychotropic medications.
Section 410.1311 Unaccompanied Children With Disabilities
    ORR believes that protection against discrimination and equal 
access to the UC Program is inherent to ensuring that unaccompanied 
children with disabilities receive appropriate care while in ORR 
custody. In the NPRM, ORR noted that the Lucas R. case, discussed in 
the Background of this rule, is relevant to this topic area and that 
ORR will be bound by any potential future court decisions or 
settlements in the case (88 FR 68951). The fifth of the five plaintiff 
classes certified by the United States District Court for the Central 
District of California in Lucas R. is the ``disability class'' that 
includes unaccompanied children ``who have or will have a behavioral, 
mental health, intellectual, and/or developmental disability as defined 
in 29 U.S.C. 705, and who are or will be placed in a secure facility, 
medium-secure facility, or [RTC] because of such disabilities [(i.e., 
the `disability class')].'' \293\ The Court's Preliminary Injunction 
ordered on August 30, 2022, did not settle this claim and, as stated in 
the NPRM, as of April 2023, ORR remained in active litigation regarding 
this claim. ORR proposed in the NPRM requirements to ensure the UC 
Program's compliance with the HHS section 504 implementing regulations 
at 45 CFR part 85. ORR therefore proposed at Sec.  410.1311(a) to 
provide notice of the protections against discrimination assured to 
unaccompanied children with disabilities by section 504 at 45 CFR part 
85 while in the custody of ORR and the available procedures for seeking 
reasonable modifications or making a complaint about alleged 
discrimination against children with disabilities in ORR's custody (88 
FR 68951).
    ORR understands its obligations under section 504 to administer 
programs and activities in the most integrated setting appropriate to 
the needs of qualified unaccompanied children with disabilities.\294\ 
ORR proposed in the NPRM at Sec.  410.1311(b) to administer the UC 
Program in the most integrated setting appropriate to the needs of 
children with disabilities, in accordance with 45 CFR 85.21(d), unless 
ORR can demonstrate that this would fundamentally alter the nature of 
its UC Program. As noted, the most integrated setting is a setting that 
enables individuals with disabilities to interact with non-disabled 
individuals to the fullest extent possible.\295\
    ORR proposed in the NPRM at Sec.  410.1311(c) to provide reasonable 
modifications to the UC Program for each unaccompanied child with one 
or more disabilities as needed to ensure equal access to the UC 
Program. ORR would not, however, be required to take any action that it 
can demonstrate would fundamentally alter the nature of a program or 
activity. Under Sec.  410.1311(d), ORR proposed in the NPRM to require 
that services, supports, and program modifications being provided to an 
unaccompanied child with one or more disabilities be documented in the 
child's case file, where applicable.
    Under Sec.  410.1311(e), in addition to the requirements for 
release of unaccompanied children established elsewhere in this 
regulation and through any subregulatory guidance ORR may issue, ORR 
proposed in the NPRM requirements regarding the release of an 
unaccompanied child with one or more disabilities to a sponsor. Section 
410.1311(e)(1) would require that ORR's assessment under Sec.  410.1202 
of a potential sponsor's capability to provide for the physical and 
mental well-being of the unaccompanied child must include explicit 
consideration of the impact of the child's disability or disabilities. 
Under Sec.  410.1311(e)(2), in conducting PRS, ORR and any entities 
through which ORR provides PRS shall make reasonable modifications to 
their policies, practices, and procedures if needed to enable released 
unaccompanied children with disabilities to live in the most integrated 
setting appropriate to their needs, such as with a sponsor. ORR is not 
required, however, to take any action that it can demonstrate would 
fundamentally alter the nature of a program or activity. Additionally, 
ORR would affirmatively support and assist otherwise viable potential 
sponsors in accessing and coordinating appropriate post-release, 
community-based services and supports available in the community to 
support the sponsor's ability to care for the unaccompanied child with 
one or more disabilities, as provided for under Sec.  410.1210. Under 
Sec.  410.1311(e)(3), ORR would not delay the release of an 
unaccompanied child with one or more disabilities solely because post-
release services are not in place prior to the child's release.
    Comment: A few commenters recommended that ORR designate an ORR 
staff member as a section 504 coordinator to oversee ORR's compliance 
with section 504 and ORR's treatment of unaccompanied children with 
disabilities. These commenters also recommended this role have 
authority to respond to complaints and approve additional resources for 
unaccompanied children with disabilities. Many commenters also 
recommended that ORR coordinate with Protection and Advocacy agencies 
(P&As) to ensure independent oversight regarding the rights of 
unaccompanied children with disabilities. These commenters recommended 
that ORR cooperate with P&As across its network, providing reasonable 
access to facilities as well as information regarding disability law 
compliance.
    Response: ORR agrees that Protection and Advocacy agencies are 
often a valuable resource and partner considering their access to 
facilities and expertise in disability law compliance. ORR also refers 
readers to subpart K regarding the Office of Ombuds and its role in 
responding to complaints and independent oversight of ORR's compliance 
with applicable laws. Additionally, as noted in the Background section, 
ORR will work with experts to undertake a year-long comprehensive needs 
assessment to evaluate the adequacy of services, supports, and 
resources currently in place for children with disabilities in ORR's 
custody across its network, and to identify gaps in the current system, 
which will inform the development of a disability plan and future 
policymaking that best address how to meet the needs of children with 
disabilities in ORR's care and custody effectively. These efforts will 
provide ORR with an opportunity to consider commenters' recommendations 
in greater depth.
    Comment: Commenters recommended, consistent with the proposed Lucas 
R. settlement agreement related to children with disabilities in

[[Page 34537]]

ORR's custody, that ORR create a mailbox for concerns raised by or on 
behalf of unaccompanied children with suspected or identified 
disabilities, and that ORR respond to concerns within no more than 30 
days explaining what, if any, steps were taken or are planned to 
address the concerns.
    Response: Regarding the process for making a complaint, ORR again 
refers readers to the provisions related to the Office of the Ombuds at 
Sec.  410.2002(a)(1) that enables the Ombuds to receive ``reports from 
unaccompanied children, potential sponsors, other stakeholders in a 
child's case, and the public regarding ORR's adherence to its own 
regulations and standards.''
    Comment: Many commenters recommended that ORR include language 
requiring that notices of rights and procedures are provided to 
unaccompanied children in a manner accessible to children with 
disabilities.
    Response: ORR agrees that a notice of rights must be accessible to 
children with disabilities to be consistent with section 504. ORR is 
therefore adding a requirement to Sec.  410.1311(a) that the notice 
must be provided in a manner that is accessible to children with 
disabilities.
    Comment: Some commenters recommended that ORR specify it will set 
up procedural safeguards, which are analogous to 34 CFR 104.36, for 
requesting reasonable accommodations or modifications or for making a 
complaint about disability discrimination, including easily accessible, 
child-friendly procedures, and promptly respond to any requests or 
complaints. Commenters recommended that ORR have a clear process for 
requesting and receiving auxiliary aids or services in a timely manner 
as well as require training for providers to ensure effective 
communication.
    Response: ORR notes that 34 CFR 104.36 does not apply to ORR but 
appreciates that it is an example of the codification of procedural 
safeguards. ORR may consider commenters' feedback related to the 
process for requesting reasonable modifications or for making a 
complaint in future policymaking, which may be informed by the 
anticipated comprehensive disability needs assessment process, and the 
development of the disability plan.
    Comment: Many commenters expressed general support for the 
recognition of ORR's legal obligation to administer the UC Program in 
the most integrated setting appropriate to the needs of unaccompanied 
children and recommended that ORR adopt more specific requirements 
regarding unaccompanied children with disabilities. Many commenters 
recommended that ORR clarify that the most integrated setting for 
unaccompanied children with disabilities will always be in a community 
setting, and in a family setting wherever possible. Many commenters 
recommended that unaccompanied children with disabilities be 
prioritized for community-based placement to ensure that unaccompanied 
children with disabilities are served in the most integrated setting 
appropriate to their needs. These commenters also recommended that ORR 
prioritize grants and outreach to community-based care providers that 
can serve children with disabilities.
    Some commenters expressed concern that they believe placement 
decisions for unaccompanied children with disabilities are often made 
quickly, by staff without training and who have limited information on 
resources and services. These commenters requested that a review 
process be put in place to ensure stays in congregate care are as short 
as possible, believing that such placements can cause significant harm 
to unaccompanied children with disabilities. These commenters also 
noted that unaccompanied children with disabilities should never be 
placed in residential treatment centers for things like medication 
management and therapeutic services.
    Response: ORR prefers to place unaccompanied children in 
transitional and long-term foster care settings rather than large 
congregate care facilities when possible and is making efforts to move 
toward a community-based care model. Accordingly, ORR will provide 
children with disabilities equal access to community-based placements 
such as individual family homes and believes children with disabilities 
should be included among the groups prioritized for community-based 
placement. ORR intends to prioritize outreach and grants to community-
based care providers that can serve children with a variety of 
disabilities as part of its efforts to move towards a community-based 
care model. ORR's response to concerns expressed by commenters about 
placement of children with disabilities who have serious mental or 
behavioral health issues in RTCs are addressed at length in responses 
to comments under Sec.  410.1105.
    Comment: Although many commenters expressed support for the 
proposed requirements under Sec.  410.1311(c), these commenters 
recommended that the proposed regulations should set out more specific 
requirements for unaccompanied children with disabilities. These 
commenters also recommended that ORR explicitly incorporate the 
consideration of reasonable modifications and auxiliary aids and 
services to facilitate less restrictive placement. These commenters 
recommended that such a determination should be made by clear and 
convincing evidence that a less restrictive placement with additional 
modifications or services is not possible. Commenters also recommended 
that reasonable modifications for unaccompanied children with 
disabilities should include delivery of crisis intervention and 
stabilization services in a non-secure setting.
    Response: ORR is revising Sec.  410.1311(c) in this rule to state 
more explicitly that ORR shall make reasonable modifications to its 
programs, including the provision of services, equipment, and 
treatment, so that an unaccompanied child with one or more disabilities 
can have equal access to the program in the most integrated setting 
appropriate to their needs. In addition, ORR notes that it is 
finalizing Sec.  410.1105(a)(1) and (b)(1) to state that restrictive 
placement determinations under paragraphs (a) and (b) must be made 
based on clear and convincing evidence documented in the unaccompanied 
child's case file. ORR may also consider in future policymaking 
commenters' recommendation that reasonable modifications for 
unaccompanied children with disabilities should include delivery of 
crisis intervention and stabilization services in a non-secure setting, 
consideration which may be informed by the anticipated year-long 
comprehensive disability needs assessment and development of a 
disability plan.
    Comment: Commenters recommended that Sec.  410.1311(e)(1) specify 
more context and instruction on how ORR evaluates the unaccompanied 
child's disability as part of determining the potential sponsor's 
suitability because, the commenters argued, the provision as proposed 
could result in discrimination against unaccompanied children with 
disabilities by adding obstacles to release not faced by unaccompanied 
children without disabilities. These commenters noted that ORR has a 
legal obligation to ensure unaccompanied children with disabilities 
have an equal opportunity to prompt release. These commenters also 
recommended, consistent with the Lucas R. settlement agreement and 
caselaw, the final rule specify ORR's consideration of the impact of an 
unaccompanied child's disability or disabilities must also

[[Page 34538]]

include explicit consideration of the potential benefit to the 
unaccompanied child of release to a community placement and/or a 
sponsor.
    Response: ORR agrees that a potential sponsor's capability to 
provide for the physical and mental well-being of the child must 
necessarily include explicit consideration of the impact of the child's 
disability or disabilities. Under Sec.  410.1202(f)(5), ORR is 
finalizing that it will evaluate any individualized needs of the 
unaccompanied child, including those related to disabilities or other 
medical or behavioral/mental health issues, and under Sec.  
410.1202(h)(1) assess the sponsor's understanding of the child's needs 
as part of determining the sponsor's suitability. ORR agrees that 
unaccompanied children with disabilities should have an equal 
opportunity for prompt release, and for that reason proposed under 
Sec.  410.1311(e)(3) that release will not be delayed solely because 
PRS is not in place. Finally, ORR agrees that consideration must be 
given to the explicit benefits of community-based settings and is 
therefore modifying Sec.  410.1311(e)(1) to state that ORR must 
consider the potential benefits to the child of release to a community-
based setting.
    Comment: Many commenters expressed support for the proposed 
language in Sec.  410.1311(e)(2) requiring reasonable modifications in 
the provision of PRS to enable unaccompanied children to live in 
integrated settings with their sponsors. One commenter recommended that 
ORR revise the regulatory language to incorporate reasonable 
modifications for unaccompanied children with disabilities as part of 
the release and PRS planning process to ensure prompt release.
    Response: ORR agrees that reasonable modifications should be made 
as part of the release process. Accordingly, ORR is modifying Sec.  
410.1311(e)(2) to add ``planning for a child's release,'' so that it 
requires ORR and any entities through which ORR provides PRS to make 
reasonable modifications in their policies, practices, and procedures 
in planning for a child's release and conducting PRS.
    Comment: Many commenters recommended that unaccompanied children 
with disabilities who wish to receive more intensive PRS should receive 
service planning that develops a plan of services and supports such as 
case management, community-based mental health services, and medical 
care. Commenters recommended the final rule clarify that ORR document 
its efforts to educate the sponsor about the unaccompanied child's 
needs and assist the sponsor in accessing and coordinating PRS and 
supports, and recommended the final rule state that ORR will not deny 
release to sponsors prior to such education and assistance being 
offered. One commenter also recommended that ORR explicitly state that 
unaccompanied children will not be denied release solely based on a 
finding that the unaccompanied child is a danger to themself, and that 
ORR should affirmatively support sponsors in accessing PRS for 
unaccompanied children with serious mental health needs.
    Response: ORR notes that Sec.  410.1311(e)(2) as proposed in the 
NPRM states that ORR will affirmatively assist sponsors in accessing 
PRS to support the disability-related needs of a child upon release (88 
FR 68952, 68997). ORR believes that a child's disability is not a 
reason to delay or deny release to a sponsor unless there is a 
significant risk to the health or safety of the child that cannot be 
mitigated through the provision of services and reasonable 
modifications, and ORR has documented its efforts to educate the 
sponsor about the child's disability-related needs and coordinated PRS. 
Related to findings of dangerousness and release, ORR may take the 
commenter's feedback into consideration for future policymaking.
    Comment: One commenter noted that PRS would be especially important 
for unaccompanied children with disabilities, and that these services 
should include a focus on insurance eligibility in the State to which 
the child will be released.
    Response: ORR agrees that unaccompanied children may need 
particular services and treatment due to a disability but reiterates 
that not all unaccompanied children with disabilities necessarily 
require particular services and treatment. As such, ORR proposed in the 
NPRM under Sec.  410.1311(e)(2) that it would affirmatively support and 
assist otherwise viable potential sponsors in accessing and 
coordinating appropriate post-release, community-based services and 
supports available in the community to support the sponsor's ability to 
care for the unaccompanied child with one or more disabilities, as 
provided for under Sec.  410.1210. ORR notes that existing PRS services 
may include informing released children and sponsor families of medical 
insurance options, including supplemental coverage, and assist them in 
obtaining insurance, if possible, so that the family is able to manage 
the child's health-related needs effectively.
    Comment: Many commenters expressed support for proposed Sec.  
410.1311(e)(3) and recommended that ORR further specify that a pending 
assessment for unaccompanied children with a disability or service plan 
development will not delay a child's release to an otherwise suitable 
sponsor. One commenter also recommended that the final rule clarify 
that an unaccompanied child's disability is not a reason to delay or 
deny release to a sponsor unless there is a significant risk to the 
health or safety of the unaccompanied child that cannot be mitigated 
through the provision of services and reasonable modifications.
    Response: ORR agrees that a child's disability is not a reason to 
delay or deny release to a sponsor unless there is a significant risk 
to the health or safety of the child that cannot be mitigated through 
the provision of services and reasonable modifications, and ORR has 
documented its efforts to educate the sponsor about the child's 
disability-related needs and coordinated PRS. ORR further agrees that a 
pending assessment for an unaccompanied child should likewise not delay 
a child's release to an otherwise suitable sponsor. ORR notes that, 
pursuant to Sec.  410.1311(e)(2), ORR will affirmatively assist 
sponsors in accessing PRS to support the disability-related needs of a 
child upon release.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing its proposal as proposed with additions to Sec.  410.1311(a) 
to require that notices must be provided ``in a manner that is 
accessible to children with disabilities;'' to Sec.  410.1311(c) to 
specify that ``ORR shall make reasonable modifications to its programs, 
including the provision of services, equipment, and treatment, so that 
an unaccompanied child with one or more disabilities can have equal 
access to the UC Program in the most integrated setting appropriate to 
their needs,'' and to state more clearly that ``ORR is not required, 
however, to take any action that it can demonstrate would fundamentally 
alter the nature of a program or activity;'' to Sec.  410.1311(e)(1) to 
require ORR to correspondingly consider the potential benefits to the 
child of release to a community-based setting; and to Sec.  
410.1311(e)(2) to add ``planning for a child's release'' as an activity 
for which ORR is required to provide reasonable modifications in their 
policies, practices, and procedures, in addition to conducting PRS.

[[Page 34539]]

Subpart E--Transportation of an Unaccompanied Child

Section 410.1400 Purpose of This Subpart
    This subpart concerns the safe transportation of each unaccompanied 
child while in ORR's care (88 FR 68952). ORR noted in the NPRM that ORR 
generally does not provide transportation for initial placements upon 
referral from another Federal agency, but rather, it is the 
responsibility of other Federal agencies to transfer the unaccompanied 
child to ORR custody within 72 hours of determining the individual is 
an unaccompanied child.\296\ ORR, or its care provider facilities, 
provides transportation while the unaccompanied child is in its care 
including, in the following circumstances: (1) for purposes of service 
provision, such as for medical services, immigration court hearings, or 
community services; (2) when transferring between facilities or to an 
out-of-network placement; (3) group transfers due to an emergency or 
influx; and (4) for release of an unaccompanied child to a sponsor who 
is not able to pick up the unaccompanied child, as approved by ORR. 
Subpart E provides certain requirements for such transportation while 
unaccompanied children are under ORR care.
    Comment: One commenter requested clarification on the expected 
accountability of the transportation provider when transporting 
unaccompanied children from DHS to ORR and the expectations for 
communication between the transportation provider and care provider 
facility.
    Response: ORR reiterates that the TVPRA \297\ places the 
responsibility for the transfer of custody of unaccompanied children on 
referring Federal agencies. Therefore, the referring Federal agency 
with custody of the child is responsible for the transportation of the 
child to ORR and ensuring such accountability. ORR custody begins when 
it assumes physical custody of the unaccompanied child from the 
referring Federal agency as discussed at Sec.  410.1101(e). However, 
ORR does collaborate closely with referring Federal agencies during the 
referral of unaccompanied children to ORR custody. ORR refers readers 
to Sec.  410.1101 for further information on the placement and referral 
process. Also, ORR notes that the ORR Policy Guide provides more 
detailed information on placement and transfer of unaccompanied 
children in ORR care provider facilities. In this guidance, ORR states 
that it remains in contact with care provider facilities to identify, 
designate, and confirm placements during initial referrals.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1400 as proposed.
Section 410.1401 Transportation of an Unaccompanied Child in ORR's Care
    ORR proposed in the NPRM transportation requirements for care 
provider facilities to help ensure that unaccompanied children are 
safely transported during their time in ORR care (88 FR 68952). ORR 
proposed in the NPRM at Sec.  410.1401(a) to require care provider 
facilities to transport an unaccompanied child in a manner that is 
appropriate to the child's age and physical and mental needs, including 
proper use of car seats for young children, and consistent with 
proposed Sec.  410.1304. For example, individuals transporting 
unaccompanied children would be able to use de-escalation or other 
positive behavior management techniques to ensure safety, as explained 
in the discussion of proposed Sec.  410.1304(a). As discussed in Sec.  
410.1304(f), care provider facilities may only use soft restraints 
(e.g., zip ties and leg or ankle weights) during transport to and from 
secure facilities, and only when the care provider facility believes 
the child poses a serious risk of physical harm to self or others or a 
serious risk of running away from ORR custody. As discussed in Sec.  
410.1304(e)(2), secure facilities, except for RTCs, may restrain a 
child for their own immediate safety or that of others during 
transportation to an immigration court or an asylum interview. ORR 
stated that it believes the requirements at Sec.  410.1401(a) are 
important to ensuring the safety of unaccompanied children as well as 
those around them while being transported in ORR care.
    ORR proposed in the NPRM at Sec.  410.1401(b), to codify a 
requirement in the FSA that it assist without undue delay in making 
transportation arrangements where it has approved the release of an 
unaccompanied child to a sponsor, pursuant to Sec. Sec.  410.1202 and 
410.1203. ORR also proposed that it would have the authority to require 
the care provider facility to transport an unaccompanied child. In 
these circumstances, ORR may, in its discretion, reimburse the care 
provider facility or pay directly for the child and/or sponsor's 
transportation, as appropriate, to facilitate timely release.
    To further ensure safe transportation of unaccompanied children, 
ORR proposed in the NPRM at Sec.  410.1401(c) to codify existing ORR 
policy that care provider facilities shall comply with all relevant 
State and local licensing requirements and State and Federal 
regulations regarding transportation of children, such as meeting or 
exceeding the minimum staff/child ratio required by the care provider 
facility's licensing agency, maintaining and inspecting all vehicles 
used for transportation, etc. If there is a potential conflict between 
ORR's regulations and State law, ORR will review the circumstances to 
determine how to ensure that it is able to meet its statutory 
responsibilities. ORR proposed in the NPRM at Sec.  410.1401(d), 
however, that if a State law or license, registration, certification, 
or other requirement conflicts with an ORR employee's duties within the 
scope of their ORR employment, the ORR employee is required to abide by 
their Federal duties. ORR proposed in the NPRM at Sec.  410.1401(e), to 
require the care provider facility to conduct all necessary background 
checks for drivers transporting unaccompanied children, in compliance 
with Sec.  410.1305(a). Finally, ORR proposed in the NPRM at Sec.  
410.1401(f) to codify existing ORR policy that if a care provider 
facility is transporting an unaccompanied child, then at least one 
transport staff of the same gender as the unaccompanied child being 
transported must be present in the vehicle to the greatest extent 
possible under the circumstances.
    Comment: A few commenters supported ORR's proposals to provide safe 
transportation of unaccompanied children while in ORR care. Commenters 
believed these requirements will help ensure the safety and well-being 
of unaccompanied children, establish high minimum standards for 
facilities that transport unaccompanied children while in ORR care, and 
enhance public transparency on the operations of the UC Program. A few 
commenters specifically supported ORR's proposal at Sec.  410.1401(f) 
that would require transport staff and unaccompanied children to be of 
the same gender to the greatest extent possible under the 
circumstances.
    Response: ORR thanks commenters for their support. ORR agrees with 
commenters and believes that these requirements are important to 
ensuring the safety of unaccompanied children transported in ORR care.
    Comment: A few commenters requested clarification on ORR's 
proposals to provide for the safe transportation of unaccompanied 
children in ORR care. One commenter requested ORR provide more detail 
on the transportation of unaccompanied children to heightened security 
facilities, and another commenter

[[Page 34540]]

requested information on the payment and planning processes for 
transporting children. One commenter requested that ORR provide clarity 
on the proposal at Sec.  410.1401(d) that requires ORR employees to 
abide by their Federal duties if there are potential conflicts between 
ORR's regulations and State law and inquired as to whether ORR 
employees include care providers, grantees, and/or contractor staff. 
Additionally, one commenter requested more information on if the 
transportation requirements at proposed Sec.  410.1401(f) apply to 
transfers, releases, or all circumstances in which a child is being 
transported and whether children, deemed age-appropriate, are permitted 
to travel alone for unification purposes.
    Response: ORR refers commenters to the requirements proposed at 
Sec. Sec.  410.1401 and 410.1601 regarding the transportation and 
transfer of unaccompanied children to heightened supervision 
facilities, and notes that under current ORR policies, referring and 
receiving care providers will coordinate the logistics of the transfer. 
ORR also clarifies that ``ORR employees'' means Federal employees of 
ORR and does not include care provider facility staff or other service 
providers who are not employed by ORR. As described in Sec.  410.1400, 
ORR reiterates that the proposed transportation requirements would 
apply in all circumstances where unaccompanied children in ORR care 
require transportation, including: (1) for purposes of service 
provision; (2) when transferring between facilities or to an out-of-
network placement; (3) group transfers due to an emergency or influx 
and (4) for release of an unaccompanied child to a sponsor who is not 
able to pick up the unaccompanied child. The transportation 
requirements would apply while unaccompanied children are in ORR care, 
and therefore, children would not be able to travel alone, even for 
unification purposes. ORR believes this requirement is necessary to 
ensure the safe transportation of unaccompanied children while in ORR 
care. ORR also notes that subregulatory guidance and other 
communications from ORR to care provider facilities provide more 
detailed and specific guidance on transportation requirements, such as 
information regarding the planning and payment processes for 
transporting unaccompanied children.
    Comment: A few commenters requested that ORR make technical changes 
or clarifications to the rule. One commenter recommended that ORR 
include language at proposed Sec.  410.1401(c) to clarify that State-
licensed programs must follow State licensure requirements if there is 
a potential conflict between ORR's regulations and State law. Another 
commenter noted an inconsistency between the preamble and regulation 
text at proposed Sec.  410.1401(b). In the preamble, ORR states that it 
may have the authority to ``require'' a care provider facility to 
transport an unaccompanied child when releasing an unaccompanied child 
to a sponsor whereas the regulation text states that ORR may have the 
authority to ``request'' a care provider facility to transport an 
unaccompanied child. The commenter recommended using the term 
``require'' consistently in the preamble and regulation text. Lastly, 
one commenter recommended ORR define the term ``gender'' to provide 
clarification whether this term includes ``gender identity'' or to 
replace the word ``gender'' with ``sex.''
    Response: ORR has updated the language at Sec.  410.1401(b) to 
state that ORR may ``require'' a care provider facility to transport an 
unaccompanied child for release to a sponsor. ORR believes this update 
ensures consistency between the preamble and regulation text. Further, 
ORR reiterates that Sec.  410.1401(c) requires that care provider 
facilities comply with all relevant State and local licensing 
requirements and State and Federal regulations regarding transportation 
of children. Care provider facilities means any facility in which an 
unaccompanied child may be placed while in the custody of ORR and are 
operated by an ORR-funded program that provides residential services 
for children. Additionally, ORR clarifies that, consistent with Sec.  
410.1302(a), all standard programs and secure facilities are required 
to be State-licensed as long as State licensing is available where they 
are located. Even where State licensure is not available, under this 
final rule, such programs must still meet the requirements established 
by the relevant State licensing authority. ORR also expects and 
requires under Sec. Sec.  410.1302(a) and (b) of this final rule that 
standard program and secure facility employees will follow State 
licensure requirements. If a State law or license, registration, 
certification, or other requirement conflicts with an ORR employee's 
duties within the scope of their ORR employment, the ORR employee is 
required to abide by their Federal duties. Lastly, ORR notes that it 
uses the term ``gender'' in a way that aligns with its current policies 
and follows the definitions of the terms ``gender'' and ``sex'' as 
defined in existing Federal regulations governing ORR at 45 CFR 411.5.
    Comment: A few commenters expressed concerns related to the safety 
and well-being of unaccompanied children during transportation. One 
commenter expressed concern with the proposal regarding of the use of 
restraints while transporting unaccompanied children at Sec.  
410.1401(a). The commenter stated that the use of restraints could pose 
serious risk of harm to and traumatization of children and recommended 
that ORR conduct holistic evaluations of children's needs before using 
restraints during transportation. The commenter also recommended that 
ORR codify existing policies to ensure children are afforded due 
process when restraints are used, such as notifying the child's legal 
services provider when restraints are being considered for court 
appearances and documenting any use of restraints. Another commenter 
expressed concerns about the lack of staffing for providing 
unaccompanied children with transportation to religious services. The 
commenter recommended ORR add an explicit requirement to ensure care 
provider facilities maintain sufficient staffing to allow equal access 
to religious services. One commenter recommended that ORR establish 
additional safeguards to protect children during transportation, 
including equipping vehicles with GPS capabilities to enable facilities 
to track vehicles, requiring more than one staff person to accompany 
children during transportation, and notifying children's attorneys or 
legal representatives of the transportation schedule. Another commenter 
recommended that ORR transport children to an ORR care provider 
facility nearest to the location of the child's sponsor, while another 
recommended restricting the transportation of unaccompanied children 
with detained adults.
    Response: ORR notes that Sec.  410.1401(a) is aligned with existing 
ORR policy and with Sec.  410.1304, where ORR enumerates limited 
circumstances under which restraints may be used. For example, staff 
may only use soft restraints during transportation to and from secure 
facilities only when the care provider facility believes the child 
poses a serious risk of physical harm to self or others or is a serious 
risk of running away from ORR custody. Also, ORR staff will employ de-
escalation and positive behavior management techniques before using 
restraints during transportation. ORR believes these requirements 
regarding the use of restraints are important to ensure the safety of

[[Page 34541]]

unaccompanied children and those around them while being transported in 
ORR care. ORR policy describes additional guidance on the use of 
restraints during transportation, including due process protections. 
ORR did not propose to adopt each of its existing requirements into the 
Foundational rule because maintaining subregulatory guidance in this 
area will allow ORR to make more appropriate, timely, and iterative 
updates in keeping with best practices. It also allows ORR to continue 
to be responsive to the needs of unaccompanied children and care 
provider facilities.
    Regarding access to religious services, ORR reiterates that at 
Sec.  410.1305(b), care provider facilities are required to meet the 
staff-to-child ratios established by their respective States. ORR 
believes that this requirement would provide care provider facilities 
with adequate staff to ensure access to minimum standards, including 
religious services, as described at Sec.  410.1302(c)(9). Further, in 
the event ORR has identified a suitable sponsor for an unaccompanied 
child, ORR assists without undue delay in making transportation 
arrangements for release. Consistent with the FSA paragraph 26, ORR 
will provide assistance in making transportation arrangements for the 
release of unaccompanied children to the nearest location of the person 
or facility the child is released to, as described at Sec.  
410.1401(b). Additionally, ORR agrees with the commenter that 
unaccompanied children should not be transported with detained adults, 
consistent with the FSA. ORR does not have adults in custody. ORR 
reiterates that unaccompanied children's attorneys or legal 
representatives will be notified of all transfers within 48 hours prior 
to the unaccompanied child's physical transfer, as discussed at 
proposed Sec.  410.1601(a)(3). However, such advance notice is not 
required in unusual and compelling circumstances which are further 
detailed at proposed Sec.  410.1601(a)(3). Regarding commenters' 
requests for additional transportation safeguards, such as equipping 
vehicles with GPS capabilities, ORR notes that these are not required 
by statute or the FSA nor are they current ORR practice. ORR may 
consider the commenters' recommendations on additional transportation 
safeguards for future policymaking.
    Comment: A few commenters did not support the proposal to provide 
for the safe transportation of unaccompanied children while in ORR care 
due to concerns about the risk of child trafficking while transporting 
unaccompanied children.
    Response: ORR acknowledges the commenters' concerns, but ORR 
believes that the proposal will not increase the risk of child 
trafficking. Instead, ORR believes the proposal will help ensure the 
safety of unaccompanied children being transported in ORR care. For 
example, ORR believes that Sec.  410.1401(e), which requires care 
provider facilities to conduct background checks for all drivers, will 
help promote child safety and well-being and reduce the risk of child 
trafficking. ORR notes that it is updating Sec.  410.1401(e) to require 
care provider facilities or contractors to conduct background checks 
for all individuals who may be transporting unaccompanied children. ORR 
believes this revision reflects ORR's use of transportation contractors 
that are not operated by a care provider facility and encompasses 
various modes of transportation in addition to driving.
    Final Rule Action: After consideration of public comments, ORR is 
revising Sec.  410.1401(b) to state that ORR may ``require'' a care 
provider facility to transport an unaccompanied child when releasing a 
child to a sponsor. Also, at Sec.  410.1401(b), ORR is amending the 
text to state that ORR ``shall assist'' without undue delay in making 
transportation arrangements, in contrast to the NPRM text, which 
provided that ``ORR assists'' in making arrangements. ORR believes this 
revision ensures consistency with other requirements described in the 
rule. Additionally, ORR is updating Sec.  410.1401(d) to clarify that 
ORR employees must abide by their Federal duties if there is a conflict 
between ORR's regulations and State law, subject to applicable Federal 
religious freedom and conscience protections. Also, at Sec.  
410.1401(d), ORR is amending the text to state that ORR ``shall 
review'' the circumstances to determine how to ensure that it is able 
to meet its statutory responsibilities, in contrast to the NPRM text, 
which provided that ``ORR reviews'' the circumstances. Finally, ORR is 
revising Sec.  410.1401(e) to state that care provider facilities or 
contractors shall conduct all necessary background checks for 
individuals transporting unaccompanied children, in compliance with 
Sec.  410.1305(a). ORR is finalizing the remaining paragraphs of Sec.  
410.1401 as proposed.

Subpart F--Data and Reporting Requirements

    45 CFR part 410, subpart F, provides guidelines for care provider 
facilities to report information such that ORR may compile and maintain 
statistical information and other data on unaccompanied children (88 FR 
68952 through 68953).
Section 410.1500 Purpose of This Subpart
    The HSA requires the collection of certain data about the children 
in ORR's care and custody.\298\ Specifically, ORR is required to 
maintain statistical and other information on unaccompanied children 
for whom ORR is responsible, including information available from other 
Government agencies and including information related to a child's 
biographical information, the date the child entered Federal custody 
due to immigration status, documentation of placement, transfer, 
removal, and release from ORR facilities, documentation of and 
rationale for any detention, and information about the disposition of 
any actions in which the child is the subject.
    Comment: Many commenters expressed general support for the 
requirements proposed under subpart F. One commenter believed that 
codifying data requirements will improve accountability and public 
transparency.
    Response: ORR thanks the commenters for their support.
    Comment: Many commenters expressed concern that ORR is not capable 
of collecting and properly storing data on unaccompanied children. Many 
commenters also expressed concern regarding the reliability of data 
collected by ORR because commenters believe that ORR does not have 
appropriate data collection tools. Many commenters noted that sometimes 
case information may be contained in multiple systems and recommended 
that ORR use one official system of record to ensure data integrity.
    Response: ORR notes that subpart F generally codifies and 
implements existing ORR requirements under the HSA. ORR is already 
substantively complying with these data collection and recordkeeping 
requirements.
    Comment: Many commenters recommended that ORR publicly report 
aggregate data collected, noting that public data reporting is an 
important step towards transparency given the absence of FSA 
monitoring. Many commenters believed that ORR should require public 
reporting on the demographics of unaccompanied children, their status 
with respect to ORR programs, and the quality of care that ORR 
provides. Many commenters also noted that ORR currently publishes a 
significant quantity of aggregated information on its website and 
recommended that ORR include guarantees that this publication will

[[Page 34542]]

continue and that currently available data will remain accessible. The 
commenters also expressed concern that the proposed rule also does not 
address the breadth, specificity, frequency of publication, quality, or 
purpose of information that ORR must make publicly available in the 
future and recommended that subpart F include a new section that would 
require public reporting of ORR data in a manner that is reliable, 
frequent, and regular, and guarantee the continued public availability 
of critical information about unaccompanied children and their care.
    Response: ORR thanks the commenters for their recommendations and 
will take them into consideration in future policymaking. Regarding 
commenters' requests for more information or additional requirements 
related to public reporting of ORR data, ORR notes that the scope of 
data and reporting requirements proposed under subpart F would codify 
and implement existing ORR requirements under the HSA. Although 
additional requirements regarding public reporting of ORR data are not 
required by statute or the FSA, ORR may provide additional information 
or guidance regarding publicly available ORR data in future 
policymaking.
    Comment: Many commenters noted that ORR's data protections are 
found elsewhere in the NPRM and recommended that ORR consolidate all 
data collection requirements and protections into a single location for 
ease of reference and to eliminate ambiguity.
    Response: ORR appreciates the commenters' recommendation but notes 
that data collection and recordkeeping requirements are organized in a 
way that aligns with the requirements of the parties responsible for 
data collection and reporting requirements.
    Comment: Many commenters expressed concern that the proposed rule 
does not contemplate how ORR should handle information about 
unaccompanied children that it learns through routes other than its own 
service providers, contractors, and grantees, nor the necessity of 
recording, codifying, and protecting such information. These commenters 
suggested that the proposed rule include a new section addressing 
information that arrives from these other sources (such as information 
included in referrals or investigations from other Government agencies, 
media reports, legal case information, or other information that is 
available to ORR but is not directly provided to ORR by care provider 
facilities). The commenters also recommended that ORR should be 
required to record that information in a manner allowing it to be 
aggregated, analyzed, disaggregated, and reported out, as appropriate.
    Response: ORR thanks the commenters for their comments and 
acknowledges their concerns. ORR notes that nothing in the Foundational 
Rule would preclude ORR from collecting and recording information 
obtained through certain data sources not specified in subpart F and 
does not believe that additional requirements regarding the treatment 
of such data are necessary at this time. However, ORR will continue to 
monitor the requirements finalized under subpart F as they are 
implemented and may consider providing additional guidance, as 
necessary, regarding the treatment of such information obtained through 
unspecified data sources through future policymaking.
    Comment: Many commenters expressed concern that the proposed rule 
would prevent the sharing of relevant data with law enforcement or 
other agencies. Many commenters also recommended that ORR share 
information with State and local law enforcement entities to provide 
additional oversight.
    Response: ORR notes that the data collection and reporting 
requirements proposed under subpart F provide guidelines for care 
provider facilities to report information such that ORR may compile and 
maintain statistical information and other data on unaccompanied 
children. Accordingly, the requirements proposed under subpart F are 
not relevant to ORR's obligations relating to sharing data with law 
enforcement entities. ORR also notes that it is establishing the Office 
of the Ombuds under subpart K of this final rule, which will provide 
additional oversight as an independent, impartial office with authority 
to receive reports, including confidential and informal reports, of 
concerns regarding the care of unaccompanied children; to investigate 
such reports; to work collaboratively with ORR to potentially resolve 
such reports; and issue reports concerning its efforts.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed.
Section 410.1501 Data on Unaccompanied Children
    ORR proposed in the NPRM at Sec.  410.1501 to implement the HSA by 
requiring care provider facilities to maintain and periodically report 
to ORR data described in Sec.  410.1501(a) through (e): biographical 
information, such as an unaccompanied child's name, gender, date of 
birth, country of birth, whether of indigenous origin and country of 
habitual residence; the date on which the unaccompanied child came into 
Federal custody by reason of immigration status; information relating 
to the unaccompanied child's placement, removal, or release from each 
care provider facility in which the child has resided, including the 
date and to whom and where placed, transferred, removed, or released in 
any case in which the unaccompanied child is placed in detention or 
released, an explanation relating to the detention or release; and the 
disposition of any actions in which the child is the subject (88 FR 
68953). In addition, for purposes of ensuring that ORR can continue to 
appropriately support and care for children in its care throughout 
their time in ORR care provider facilities, as well as to allow 
additional program review, ORR proposed in the NPRM at Sec.  
410.1501(f) and (g) that care provider facilities also document and 
periodically report to ORR information gathered from assessments, 
evaluations, or reports of the child and data necessary to evaluate and 
improve the care and services for unaccompanied children. ORR noted 
that some of the information described in this section, such as 
requirements described at paragraphs (f) and (g), or reporting 
regarding whether an unaccompanied child is of indigenous origin, is 
not specifically enumerated at 6 U.S.C. 279(b)(1)(J). Nevertheless, ORR 
proposed in the NPRM including such information in the rule text 
because it understands maintaining such information to be consistent 
with other duties under the HSA to coordinate and implement the care 
and placement of unaccompanied children.
    Comment: Many commenters expressed support for ORR's commitment to 
codifying the minimum data that care providers are required to maintain 
and report to ORR.
    Response: ORR thanks the commenters for their support.
    Comment: Many commenters recommended that ORR include additional 
provisions under Sec.  410.1501 to expand data collection and reporting 
requirements to include children separated from parents/guardians, 
children separated from family members (not parents or legal 
guardians), as well as data collection on children with disabilities 
and their needs.
    Response: ORR thanks the commenters for their recommendations. ORR 
believes that such data is included in the reporting requirements in 
Sec.  410.1501. However, ORR also notes that Sec.  410.1501 specifies 
minimum

[[Page 34543]]

requirements and does not preclude adding additional categories over 
time. ORR will continue to monitor the regulatory requirements as they 
are implemented and will consider whether additional clarification is 
required through future policymaking.
    Comment: Many commenters recommended that ORR require care 
providers to collect and report data on children who identify as 
LGBTQI+ to ORR, noting the importance of tracking how many children in 
custody identify as LGBTQI+ to better meet the needs and placement 
preferences of LGBTQI+ children. One commenter recommended that such 
data reporting requirement should be limited to unaccompanied children 
who voluntarily disclose such information.
    Response: ORR thanks the commenters for their recommendations. ORR 
agrees with commenters' recommendation that improving data collection 
on LGBTQI+ children in ORR custody is a tool for strengthening service 
delivery, and accordingly will finalize Sec.  410.1501(a) with a 
revision to implement reporting of voluntarily disclosed data regarding 
self-identified LGBTQI+ status or identity. ORR notes that the terms 
``gender'' and ``sex'' are not synonymous and are separately defined in 
the existing Federal regulations governing ORR at 45 CFR 411.5. 
Therefore, ORR declines to list ``sex'' as a factor in lieu of 
``gender'' in this rule. ORR believes that data collection about 
``gender'' is sufficient and will maintain that requirement. ORR also 
emphasizes that data collection related to a child's LGBTQI+ status or 
identity pursuant to an Assessment for Risk under 45 CFR 411.41(a) is 
intended only for purposes of reducing the risk of sexual abuse or 
sexual harassment among unaccompanied children. Use and maintenance of 
this information is also subject to the privacy safeguards in 45 CFR 
411.41(d) ``in order to ensure that sensitive information is not 
exploited to the [unaccompanied child's] detriment by staff or other 
[unaccompanied children].'' Additionally, ORR's information collection 
and sharing practices comport with Privacy Act requirements to ensure 
that any information sharing is pursuant to ``a purpose which is 
compatible with the purpose for which it was collected.'' 5 U.S.C. 
552a(a)(7).
    Comment: One commenter recommended that ORR utilize additional 
resources to determine what data to gather on unaccompanied children, 
their families, and sponsors, recommending that ORR collect data 
regarding race and nationality, LGBTQI+ status or identity, disability 
status, native language, and language preference.
    Response: ORR thanks the commenter for their recommendations. ORR 
notes that information regarding an unaccompanied child's family and 
potential sponsors may be collected as part of the release requirements 
provided under Sec. Sec.  410.1201 and 410.1202. ORR notes that, under 
Sec.  410.1501(a), care provider facilities would be required to report 
biographical data including information related to an unaccompanied 
child's nationality and LGBTQI+ status or identity. Under Sec.  
410.1501(c) and Sec.  410.1501(f), care provider facilities would be 
required to report information that may include a child's native 
language and language preference. Finally, under Sec.  410.1501(f) and 
Sec.  410.1501(g)(2), care provider facilities would be required to 
report information related to a child's disability status.
    Comment: Commenters recommended that to ensure meaningful oversight 
of psychotropic medications, care provider facilities should be 
required to report information relating to the administration of 
psychotropic medications, including the child's diagnoses, the 
prescribing physician's information, the name and dosage of the 
medication prescribed, documentation of informed consent, and any 
emergency administration of medication, and commenter states that ORR 
should compile this data in a manner that enables ORR to track how 
psychotropic medications are administered across facilities and among 
individual families.
    Response: ORR agrees with commenters, and for that reason, is 
incorporating requirements at Sec.  410.1501 that care providers must 
report information relating to the administration of psychotropic 
medications, including children's diagnoses, the prescribing 
physician's information, the name and dosage of the medication 
prescribed, documentation of informed consent, and any emergency 
administration of medication. Such data must be compiled in a manner 
that enables ORR to track how psychotropic medications are administered 
across the network and in individual facilities.
    Comment: Many commenters stated the proposed rule is unclear 
whether the data reporting requirements under Sec.  410.1501 include 
sufficient information to enable ORR to provide effective oversight of 
the treatment of unaccompanied children with disabilities. Several 
commenters recommended, consistent with the Lucas R. settlement, 
required data include, at a minimum: whether an unaccompanied child has 
been identified as having a disability; the unaccompanied child's 
diagnosis; the unaccompanied child's need for reasonable modifications 
or other services; and information related to release planning. These 
commenters also recommended data regarding unaccompanied children with 
disabilities be compiled in a manner that enables ORR to track how many 
unaccompanied children with disabilities are in its custody, where they 
are placed, what services they are receiving, and their lengths of stay 
in order to facilitate ORR's ongoing oversight to ensure unaccompanied 
children with disabilities are receiving appropriate care in while ORR 
care.
    Response: ORR agrees that such data collection could be useful for 
the purpose of identifying children with disabilities in order to 
ensure they are receiving appropriate care and services, and for that 
reason, is incorporating requirements at Sec.  410.1501 that care 
providers must report information relating to the treatment of 
unaccompanied children with disabilities, including whether an 
unaccompanied child has been identified as having a disability; the 
unaccompanied child's diagnosis; the unaccompanied child's need for 
reasonable modifications or other services; and information related to 
release planning. Such data must be compiled in a manner that enables 
ORR ongoing oversight to ensure unaccompanied children with 
disabilities are receiving appropriate care while in ORR care across 
the network and in individual facilities. ORR will also be working with 
experts on a year-long comprehensive needs assessment of ORR's 
disability services and developing a disability plan. Such efforts may 
inform future policymaking concerning data collection and reporting to 
enhance the care of children with disabilities in ORR's custody.
    Comment: A few commenters recommended that ORR collect information 
in addition to the information enumerated in the rule, such as 
information on biographical relatives, criminal history, number of 
unaccompanied children that access legal representation, the number of 
unaccompanied children that receive PRS, the number of unaccompanied 
children receiving home visits and well-being calls, and the number of 
unaccompanied children that ran away from sponsors after released. A 
few commenters recommended that ORR also collect data on child 
trafficking to track the extent of the problem and effectiveness of 
intervention efforts.

[[Page 34544]]

    Response: ORR thanks the commenters for their recommendations and 
may take them into consideration in future policymaking. ORR currently 
collects some of this information in various capacities as part of its 
operations relating to placement, minimum services, and release and 
PRS. ORR notes that Sec.  410.1501 specifies minimum requirements and 
does not preclude adding additional information collection requirements 
over time. However, ORR is not required by the HSA or the FSA to 
collect such information, and does not believe additional information 
collection requirements recommended by the commenters are necessary at 
this time.
    Comment: One commenter recommended removing ``whether of Indigenous 
origin'' from Sec.  410.1501(a) and adjusting to recognize their 
Indigenous Nation, Native Identity, or Tribal affiliation to recognize 
distinct nations with unique rights. This commenter noted the need for 
more accurate data collection to determine how many Indigenous 
unaccompanied children are migrating, as well as the Tribal affiliation 
and Indigenous Nation of the unaccompanied child and recommended that 
experts should be consulted to ensure proper collection and analysis of 
data regarding Indigenous unaccompanied children. The commenter 
stressed the importance of Indigenous identity being identified so that 
the Indigenous unaccompanied child's rights as members of their Native 
Nations can be upheld and ensure that their best interest is considered 
during placement.
    Response: ORR thanks the commenter for their recommendations but 
believes the proposed section of the rule as written adequately 
captures the data element that ORR uses on a daily basis. ORR notes 
that requiring care provider facilities to report such information goes 
beyond the scope of current obligations specifically enumerated at 6 
U.S.C. 279(b)(1)(J). ORR agrees that it is important to collect data on 
Indigenous unaccompanied children in order to better support their 
needs, and that is why such biographical information is included under 
Sec.  410.1501(a). Although nothing precludes care provider facilities 
from reporting more specific data pertaining to a child's individual 
Indigenous Nation, Native Identity, or Tribal Affiliation, ORR believes 
that the current language is sufficient for ORR's data collection 
purposes. However, ORR will continue to monitor the regulatory 
requirements as they are implemented and will consider whether 
additional clarification is required through future policymaking.
    Comment: Many commenters recommended aligning the list of required 
data from care provider facilities with requirements elsewhere in the 
final rule noting that Sec.  410.1302(c)(2)(iv) requires providers to 
assess ``whether [the child is] an indigenous language speaker'' and 
asserting that proposed Sec.  410.1501(a) should align so that 
preferred language can be aggregated and captured population-wide.
    Response: ORR thanks commenters for their recommendation. ORR notes 
that because data regarding the unaccompanied child's preferred 
language is required to be collected pursuant to an individualized 
needs assessment under Sec.  410.1302(c)(2), such data would be 
required to be reported to ORR under Sec.  410.1501(f).
    Comment: Many commenters expressed concern that proposed Sec.  
410.1501(b) contemplates a basic data input for the duration of a 
child's stay in custody which is potentially operationalized by time of 
DHS apprehension rather than transfer to ORR care and recommended that 
the rule should include both date of DHS apprehension and date of 
placement into HHS custody.
    Response: ORR acknowledges the commenters' concerns and has updated 
the language in Sec.  410.1501(b) to clarify that such data includes 
the date on which the unaccompanied child came into ORR custody.
    Comment: Although many commenters appreciated that proposed Sec.  
410.1501(d) requires documentation for when an ``unaccompanied child is 
placed in detention or released,'' commenters noted that internal 
transfers to heightened supervision facilities, restrictive placements, 
and out-of-network facilities should also require documentation of the 
justification. These commenters also recommended that Sec.  410.1501(d) 
should add ``removals'' to ensure data fidelity for a future 
circumstance in which another agency (such as DHS) effectuates a 
removal that it believes does not meet the definitional requirements 
for detention.
    Response: ORR thanks the commenters for their recommendations. ORR 
notes that data relating to a child's placement, release, removal, or 
transfer would be required to be reported to ORR under Sec.  
410.1501(c). ORR will continue to monitor the regulatory requirements 
as they are implemented and will consider whether additional 
clarification is required through future policymaking.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed, with the exception of Sec.  
410.1501(a), Sec.  410.1501(b), Sec.  410.1501(c), and Sec.  
410.1501(g). ORR is finalizing language for Sec.  410.1501(a) that is 
updated from the proposed rule in order to include, if voluntarily 
disclosed, self-identified LGBTQI+ status or identity as biographical 
information that care provider facilities are required to report. ORR 
is finalizing language for Sec.  410.1501(b) that is updated from the 
proposed rule in order to clarify that such data includes the date on 
which the unaccompanied child came into ORR custody. ORR is finalizing 
language for Sec.  410.1501(c) that is updated from the proposed rule 
to clarify that information relating to the unaccompanied child's 
placement, removal, or release from each care provider facility in 
which the unaccompanied child has resided includes the date on which 
and to whom the child is transferred, removed, or released. ORR is 
finalizing language for Sec.  410.1501(g) that is updated from the 
proposed rule in order to specify that such data includes information 
relating to the administration of psychotropic medication and 
information relating to the treatment of unaccompanied children with 
disabilities.

Subpart G--Transfers

    ORR proposed in the NPRM to codify requirements and policies 
regarding the transfer of an unaccompanied child in ORR care (88 FR 
68953). The following provisions identify general requirements for the 
transfer of an unaccompanied child, as well as certain circumstances in 
which transfers are necessary, such as in emergencies.
Section 410.1600 Purpose of This Subpart
    ORR proposed in the NPRM at Sec.  410.1600 that the purpose of this 
subpart is to provide guidelines for the transfer of an unaccompanied 
child (88 FR 68953).
    Comment: One commenter recommended that subpart G either reference 
back to subpart E (Transportation) for information regarding 
requirements for transportation or include those same standards in 
subpart G.
    Response: ORR thanks the commenter but believes that subpart G 
adequately addresses ORR's requirements for the transfer of an 
unaccompanied child.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed.

[[Page 34545]]

Section 410.1601 Transfer of an Unaccompanied Child Within the ORR Care 
Provider Facility Network
    ORR proposed in the NPRM, at Sec.  410.1601(a), to codify general 
requirements for transfers of an unaccompanied child within the ORR 
care provider network (88 FR 68953 through 68954). ORR proposed in the 
NPRM that care provider facilities would be required to continuously 
assess an unaccompanied child in their care to ensure that 
unaccompanied child placements are appropriate. This requirement is 
consistent with the TVPRA, which provides that an unaccompanied child 
shall be placed in the least restrictive setting that is in their best 
interests, subject to considerations of danger to self or the community 
and runaway risk.\299\ Additionally, care provider facilities would be 
required to follow ORR policy guidance, including guidance regarding 
placement considerations, when making transfer recommendations. ORR 
also proposed requirements for care provider facilities to ensure the 
health and safety of an unaccompanied child. The proposed requirements 
in the NPRM align with Sec.  410.1307(b), where ORR proposed procedures 
related to placements upon the ORR transfer of an unaccompanied child 
to a facility that is able to accommodate the medical needs or requests 
of the unaccompanied child.
    ORR proposed in the NPRM, at Sec.  410.1601(a)(1), care provider 
facilities would be required to make transfer recommendations to ORR if 
they identify an alternate placement for a child that best meets a 
child's needs. Under Sec.  410.1601(a)(2), when ORR transfers an 
unaccompanied child, the unaccompanied child's current care provider 
facility would be required to ensure that the unaccompanied child is 
medically cleared for transfer within three business days, provided the 
unaccompanied child's health allows and unless otherwise waived by ORR. 
For an unaccompanied child with acute or chronic medical conditions, or 
seeking medical services requiring heightened ORR involvement, the 
appropriate care provider facility staff and ORR would be required to 
meet to review the transfer recommendation. Should the unaccompanied 
child not be medically cleared for transfer within three business days, 
the care provider facility would be required to notify ORR. ORR would 
provide the final determination of a child's fitness for travel if the 
child is not medically cleared for transfer by a care provider 
facility. Should ORR determine the unaccompanied child is not fit for 
travel, ORR would be required to notify the unaccompanied child's 
current care provider facility of the denial and specify a timeframe 
for the care provider facility to re-evaluate the transfer of the 
unaccompanied child. ORR welcomed public comment on these proposals.
    ORR proposed in the NPRM at Sec.  410.1601(a)(3), notifications 
that would be required when ORR transfers an unaccompanied child to 
another care provider facility, including required timeframes for such 
notifications. Specifically, ORR proposed in the NPRM that within 48 
hours prior to the unaccompanied child's physical transfer, the 
referring care provider facility would be required to notify all 
appropriate interested parties of the transfer, including the child, 
the child's attorney of record, legal service provider, or Child 
Advocate, as applicable. ORR noted, in addition, that interested 
parties may include EOIR. ORR proposed in the NPRM at Sec.  
410.1601(a)(3) that advanced notice shall not be required in unusual 
and compelling circumstances. In such a case, notice to interested 
parties must be provided within 24 hours following the transfer of an 
unaccompanied child in such circumstances. ORR is aware of concerns 
around notifications regarding the transfer of an unaccompanied child 
and believes that finalizing these proposed requirements provide an 
effective timeline and notice while still allowing for flexibility if 
there are unusual and compelling circumstances. ORR believes that Sec.  
410.1601(a)(3) of the NPRM is consistent with, and even goes beyond, 
the requirements set out in the FSA at paragraph 27, which requires 
only ``advance notice'' to counsel when an unaccompanied child is 
transferred but does not specify how much advance notice is required.
    ORR proposed in the NPRM, at Sec.  410.1601(a)(4) and (5), to 
codify requirements from paragraph 27 of the FSA that children be 
transferred with their possessions and legal papers, and any 
possessions that exceed the normally permitted amount by carriers be 
shipped in a timely manner to where the child is placed. ORR would also 
require that children be transferred with a 30-day supply of 
medications, if applicable. Consistent with existing practice, ORR 
would require that the accepting care provider is instructed in the 
proper administration of the unaccompanied child's medications.
    ORR proposed in the NPRM, at Sec.  410.1601(b) to codify current 
ORR practices regarding the review of restrictive placements. When 
unaccompanied children are placed in a restrictive setting (secure, 
heightened supervision, or Residential Treatment Center), the receiving 
care provider facility and ORR would be required to review their 
placement at least every 30 days to determine if another level of care 
is appropriate. Should the care provider facility and ORR determine 
that continued placement in a restrictive setting is necessary, the 
care provider facility would be required to document, and as requested, 
provide the rationale for continued placement to the child's attorney 
of record, legal service provider, and their child advocate.
    ORR sought public comment on proposed Sec.  410.1601(c), 
requirements related to group transfers. Group transfers are described 
as circumstances where a care provider facility transfers more than one 
child at a time, due to emergencies or program closures, for example. 
Under Sec.  410.1601(c), when group transfers are necessary, care 
provider facilities would be required to follow ORR policy guidance and 
additionally be required to follow the substantive requirements 
provided in Sec.  410.1601(a). ORR believed that clarifying these 
requirements for care provider facilities engaging in group transfers 
would help to ensure the safety and health of unaccompanied children in 
emergency and other situations that require the transfer of multiple 
unaccompanied children.
    ORR proposed in the NPRM, at Sec.  410.1601(d), requirements 
related to the transfer of an unaccompanied child in a care provider 
facility's care to an RTC. Under this proposed provision, care provider 
facilities would be permitted to request the transfer of an 
unaccompanied child in their care pursuant to the requirements of 
proposed Sec.  410.1105(c).
    ORR proposed in the NPRM, at Sec.  410.1601(e), requirements 
concerning the temporary transfer of an unaccompanied child during 
emergency situations. In Sec.  410.1601(e), ORR makes clear that, 
consistent with the HSA and TVPRA, an unaccompanied child remains in 
the legal custody of ORR and may only be transferred or released by 
ORR. As allowed under the FSA, ORR proposed in the NPRM, in emergency 
situations, to allow care provider facilities to temporarily change the 
physical placement of an unaccompanied child prior to securing 
permission from ORR. But in these situations, ORR would require the 
care provider to notify ORR of the change of placement as soon as 
possible, but in all cases within 8 hours of transfer.
    ORR's intent in the NPRM, was to minimize the transfer of an 
unaccompanied child and limit transfers to situations in which a

[[Page 34546]]

transfer is necessary in order to promote stability and encourage 
establishment of relationships, particularly among vulnerable children 
in ORR care (88 FR 68954). ORR invited public comment on all of the 
proposals under subpart G, and solicited input regarding the specifics, 
language, and scope of additional provisions related to minimizing the 
transfers of an unaccompanied child and the placement of an 
unaccompanied child with disabilities.
    Comment: Several commenters supported the proposal and recommended 
modifications to transfer procedures, including revising the proposal 
such that the care provider will submit a transfer request to ORR and 
ORR will be responsible for identifying the transfer program most 
appropriate for the unaccompanied child; provide oral and written 
notice of the transfer; provide the reason for the transfer, 
particularly for transfers from a family or small community-based 
program to a congregate shelter setting; and limit transfers that are 
outside of ORR's child welfare mandate and that go beyond the TVPRA.
    Response: ORR did not propose codifying procedures that are beyond 
the general requirements for transfers of an unaccompanied child within 
the care provider network. Where the final regulation contains less 
detail, subregulatory guidance provides more specificity and will 
support future iteration that allows more timely responsiveness to the 
needs of unaccompanied children and care provider facilities.
    Comment: A few commenters supported the proposal and recommend that 
ORR document modifications and auxiliary aids and services that could 
avert a restrictive placement and document reasons for a transfer to a 
restrictive facility, in alignment with the proposed policy concerning 
Restrictive Placement Case Reviews in Sec.  410.1901, the proposed 
policy concerning Criteria for Placing a UC in a Restrictive Placement 
in Sec.  410.1105, and the proposed definition of Notice of Placement 
in Sec.  410.1001.
    Response: ORR agrees that the consideration of reasonable 
modifications and auxiliary aids and services to facilitate less 
restrictive placement should be explicitly incorporated into the 
regulation text and apply both to an initial transfer decision and to a 
child's 30-day restrictive placement case review under proposed 
Sec. Sec.  410.1105, 410.1601, and 410.1901. Accordingly, ORR is adding 
new Sec.  410.1105(d) to state that for an unaccompanied child with one 
or more disabilities, consistent with section 504 and Sec.  
410.1311(c), ORR's determination under Sec.  410.1105 whether to place 
the unaccompanied child in a restrictive placement shall include 
consideration whether there are any reasonable modifications to the 
policies, practices, or procedures of an available less restrictive 
placement or any provision of auxiliary aids and services that would 
allow the unaccompanied child to be placed in that less restrictive 
facility. Section 410.1105(d) further states that ORR's consideration 
of reasonable modifications and auxiliary aids and services to 
facilitate less restrictive placement shall also apply to transfer 
decisions under Sec.  410.1601 and will be incorporated into 
restrictive placement case reviews under Sec.  410.1901. Additionally, 
pursuant to Sec.  410.1311(d), ORR shall document in the child's ORR 
case file any services, supports, or program modifications being 
provided to an unaccompanied child with one or more disabilities.
    Comment: Several commenters supported ORR's proposal to codify the 
care provider facilities' requirements for transfer of an unaccompanied 
child and recommended that they notify the following individuals prior 
to the child's transfer: a parent, family member or guardian, sponsors 
who have completed a sponsorship packet, and the attorney, legal 
service provider, DOJ Accredited Representative, or accredited 
representative of the unaccompanied child.
    Response: ORR thanks commenters for their support and notes the 
list of appropriate interested parties required to be notified prior to 
a transfer of an unaccompanied child is not limited to the examples 
noted in Sec.  410.1601(a)(3). The proposed and final regulation's list 
of all appropriate interested parties to be notified is not all-
inclusive. ORR may consider lengthening the list of appropriate 
interested parties in subsequent rulemaking or subregulatory guidance.
    Comment: A few commenters supported the proposal to specify a 
timeframe for advance notice of a transfer but recommended advance 
notice modifications, including specifying 48 business hours, or 
providing a 72-hour rather than 48-hour timeframe.
    Response: ORR believes requiring 48 hours of advance notice prior 
to an unaccompanied child's physical transfer goes beyond the 
requirements of the FSA (paragraph 27 of the FSA requires 24 hours of 
advance notice to the child's counsel), and is, therefore, adequate 
time for the referring care provider facility to notify all appropriate 
interested parties.
    Comment: One commenter supported the requirement that the 
unaccompanied child is transferred with health records and recommended 
providing an attestation that all health records are in the UC Portal 
and provide the receiving program access to the records prior to the 
unaccompanied child's arrival, to protect against loss during 
transportation or duplication of paper copies.
    Response: ORR thanks the commenter and may consider more 
specificity. Current ORR policy guidance requires all health records 
for unaccompanied children to be recorded in the UC Portal. ORR's 
policy guidance requires the sending medical coordinator or medical 
staff to complete a medical check list for transfers and place an 
electronic copy in the UC Portal so that a receiving care provider may 
review the medical check list within the unaccompanied child's transfer 
request file, and access the UC Portal information about the 
unaccompanied child prior to the physical transfer of the unaccompanied 
child. ORR will continue to use and update its existing guidance to 
provide detailed requirements for care provider facilities regarding 
the timely and complete availability of health records of unaccompanied 
children upon a transfer.
    Comment: One commenter supported the proposal to continuously 
assess an unaccompanied child to ensure placements are appropriate and 
recommend adding factors, including diagnosed and undiagnosed 
disabilities, placement proximity to family, the unaccompanied child's 
language barriers at the facility, restrictiveness, family separation, 
and detention fatigue.
    Response: ORR thanks the commenter and may consider additional 
factors in support of assessing an unaccompanied child to ensure the 
appropriateness of transfer in future policymaking. ORR directs readers 
to the considerations generally applicable to placement in Sec.  
410.1103 for the discussion about placement of an unaccompanied child 
with disabilities, the placement proximity of an unaccompanied child to 
family and the unaccompanied child's mental well-being. ORR directs 
readers to Sec.  410.1105 for the discussion about the criteria for 
placing an unaccompanied child in a restrictive placement. ORR also 
directs readers to the minimum standards and required services that 
care provider facilities must meet and provide for the discussion in 
Sec.  410.1306 about offering interpretation and translation services 
in an unaccompanied child's native or

[[Page 34547]]

preferred language. Additionally, ORR directs readers to the 
considerations generally applicable to placement in Sec.  410.1103(b) 
for the discussion about placement of an unaccompanied child with 
disabilities, Sec.  410.1306 for the discussion about an unaccompanied 
child's native or preferred language.
    Comment: One commenter supported the proposal at Sec.  
410.1601(a)(2) and recommended a revision that the care provider 
facility shall ensure the unaccompanied child is medically cleared for 
transfer within three business days of ORR approving the transfer.
    Response: ORR appreciates the comment and notes that the standard 
of care required to transfer an unaccompanied child to appropriate care 
provider facility includes the requirement that an unaccompanied child 
is medically cleared for transfer within three business days.
    Comment: One commenter supported the transfer proposal and 
recommended a right for unaccompanied children to appeal the 
determination of an appropriate transfer and the procedures for such an 
appeal.
    Response: ORR notes that pursuant to Sec.  410.1902 as proposed in 
the NPRM and finalized, an unaccompanied child transferred to a 
restrictive placement (secure, heightened supervision or Residential 
Treatment Center) will be able to request reconsideration of such 
placement. Upon such request, ORR shall afford the unaccompanied child 
a hearing before the Placement Review Panel (PRP) at which the 
unaccompanied child may, with the assistance of counsel if preferred, 
present evidence on their own behalf. Further, when an unaccompanied 
child is placed in a restrictive setting, the care provider facility in 
which the child is placed and ORR shall review the placement at least 
every 30 days to determine whether a new level of care is appropriate 
for the child. If the care provider facility and ORR determine in the 
review that continued placement in a restrictive setting is 
appropriate, the care provider facility shall document the basis for 
its determination and, upon request, provide documentation of the 
review and rationale for continued placement to the child's attorney of 
record, legal service provider, and/or child advocate. While ORR did 
not propose codifying corresponding procedures for a child to request 
reconsideration of a transfer to a non-restrictive placement, ORR notes 
that, as is consistent with current subregulatory policy, it will 
consider information from stakeholders, including the child's legal 
service provider, attorney of record or child advocate, as applicable, 
when making transfer recommendations. Thus, under Sec.  410.1601(a)(3) 
as proposed and finalized, within 48 hours prior to the unaccompanied 
child's physical transfer, the referring care provider facility shall 
notify all appropriate interested parties of the transfer, including 
the child's attorney of record or DOJ Accredited Representative legal 
service provider, or child advocate, as applicable (88 FR 68953). 
However, such advance notice is not required in unusual and compelling 
circumstances.
    Comment: One commenter expressed concern about the scope of the 
interested parties in Sec.  410.1601(a)(3)(iii) who may have the 
ability to waive advance notice of an unaccompanied child's transfer 
and recommended specific and explicit paperwork that the unaccompanied 
child can review before agreeing to the waiver of notice of transfer.
    Response: As proposed and finalized in Sec.  410.1003(d), ORR 
encourages unaccompanied children, as developmentally appropriate and 
in their best interests, to be active participants in ORR's decision-
making processes relating to their care and placement. Additionally, 
the responsibilities of child advocates, as proposed and finalized in 
Sec.  410.1308, include requirements that child advocates visit with 
their unaccompanied child client, explain consequences and outcomes of 
decisions that may affect the unaccompanied child, and advocate for the 
unaccompanied child's best interest with respect to placement. Thus, 
the interested parties, as proposed and finalized in Sec.  
410.1601(a)(3), would have access to materials necessary to effectively 
advocate for the best interests of an unaccompanied child, and their 
responsibilities could include a review of specific paperwork, 
explanation of consequences and outcomes of a transfer or a waiver of 
advance notice of a transfer.
    Comment: One commenter requested the clarification that the Sec.  
410.1601(b) protections regarding automatic 30-day review of 
restrictive placement also are applicable to Out-of-Network RTC 
facilities.
    Response: As discussed at Sec.  410.1105(c), the clinical criteria 
for placement in or transfer to a residential treatment center would 
also apply to transfers to or placements in out-of-network residential 
treatment centers. As such, the protections regarding automatic 30-day 
review of restrictive placement also are applicable to out-of-network 
residential treatment facilities.
    Comment: One commenter recommended that ORR cross reference the 
Restrictive Care Provider Facility Placements and Transfer provision in 
Sec.  410.1601(b) with the proposed criteria for placing an 
unaccompanied child in a restrictive placement in Sec.  410.1105, the 
proposed restrictive placement case reviews in Sec.  410.1901, and the 
proposed practice of reviewing restrictive placements at least every 30 
days in Sec.  410.1103(d).
    Response: While ORR does not explicitly cross reference Sec.  
410.1601(b) with Sec. Sec.  410.1105, 410.1901, and 410.1103(d), as 
proposed in the NPRM and finalized in this rule, ORR acknowledges that 
those provisions which concern restrictive placements are interrelated 
and should be read in tandem with each other regardless.
    Comment: One commenter recommended the Group Transfer proposal 
include language to protect the individual rights of an unaccompanied 
child within a group of unaccompanied children being transferred so 
that timelines or due process rights of each unaccompanied child is 
recognized.
    Response: Group transfer procedures support circumstances where a 
care provider facility transfers more than one child at a time. As 
previously discussed in Sec.  410.1302, care provider facilities, as 
discussed previously in Sec.  410.1302, will continue to follow ORR 
policy to ensure that the best interests of unaccompanied children are 
met. As previously discussed in Sec.  410.1308, child advocates for 
unaccompanied children are able to make independent recommendations 
regarding the best interest of an unaccompanied child. This includes 
advocating for the unaccompanied child's best interest with respect to 
their placement, and providing best interest determinations, where 
appropriate and within a reasonable time, to ORR in a matter in which 
the child is a party or has an interest.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed.

Subpart H--Age Determinations

    In subpart H of this rule, ORR provides guidelines for determining 
the age of an individual in ORR care (88 FR 68954 through 68955). The 
TVPRA instructs HHS to devise, in consultation with DHS, age 
determination procedures for children in their respective custody.\300\ 
Consistent with the TVPRA, HHS and DHS jointly developed policies and 
procedures to assist in the process of determining the correct age of 
individuals in Federal custody. Establishing the age of the individual 
is critical because, for

[[Page 34548]]

purposes of the UC Program, HHS only has authority to provide care to 
unaccompanied children, who are defined, in relevant part, as 
individuals who have not attained 18 years of age. ORR also notes that 
the FSA allows for age determinations in the event there is a question 
as to veracity of the individual's alleged age.
Section 410.1700 Purpose of This Subpart
    In the NPRM, ORR acknowledged the challenges in determining the age 
of individuals who are in Federal care and custody (88 FR 68954). These 
challenges include, but are not limited to, lack of available 
documentation; contradictory or fraudulent identity documentation and/
or statements; ambiguous physical appearance of the individual; and 
diminished capacity of the individual. As proposed in Sec.  410.1700, 
the purpose of this subpart is to establish provisions for determining 
the age of an individual in ORR custody. ORR noted that under this 
section, and as a matter of current practice, it would only conduct age 
determination procedures if there is a reasonable suspicion that an 
individual is not a minor. ORR believes that the requirements and 
standards described within this subpart properly balance the concerns 
of children who are truly unaccompanied children with the importance of 
ensuring individuals are appropriately identified as a minor. ORR noted 
that Sec.  410.1309 covers required notification to legal counsel 
regarding age determinations.
    Comment: One commenter commended the protections incorporated into 
the proposed rule's section regarding age determinations. The commenter 
also suggested that to ensure that unaccompanied children are protected 
to the greatest extent possible through this process, ORR should add 
``if there is a reasonable suspicion that an individual is not a 
minor'' to align with ABA UC Standards.
    Response: ORR appreciates the input from the commenter. ORR 
believes that the standard requiring a reasonable belief that the 
individual is 18 years of age or older to determine that the individual 
is not a minor is already explicitly stated at Sec.  410.1704. ORR 
notes that under this section, and as a matter of current practice, ORR 
would only conduct age determination procedures if there is a 
reasonable suspicion that an individual is not a minor.
    Comment: One commenter agreed with the language in the NPRM 
considering the totality of the evidence in making age determinations 
rather than relying on any single piece of evidence to the exclusion of 
all others, stating that this aligns with international standards. The 
commenter further stated that international best practices indicate 
that age assessment procedures should be conducted only in cases where 
a child's age is in doubt. The commenter stated that while ORR's 
proposal in the NPRM incorporates many of the elements of international 
best practices, the commenter recommended that ORR strengthen the 
standards to specify that age determination should not be carried out 
immediately, but rather in a safe and culturally sensitive manner after 
the child has had time to develop a feeling of safety after crossing 
the border. The commenter urged ORR to emphasize considerations of the 
psychological maturity of the individual.
    Response: ORR thanks the commenter for their additional 
considerations. ORR notes that age determinations are not carried out 
in all cases, but only when there is a reasonable suspicion that an 
individual is not a minor and in accordance with the procedures 
described in this section to make such a determination based on the 
totality of evidence presented. This is a process that would 
necessarily require time to initiate and would therefore not be carried 
out immediately. However, to meet the definition of an unaccompanied 
child and remain in ORR custody, an individual must be under 18 years 
of age. ORR believes that it is imperative to the safety and security 
of children in its custody to ensure that individuals who are under 18 
years of age are not placed in facilities where they could be 
inadvertently sharing housing with adults who have reached the age of 
18 years or older. These procedures will ensure that children in ORR's 
custody receive care in a safe and culturally sensitive manner per the 
standards described in Sec. Sec.  410.1302 and 410.1801. Furthermore, 
the types of evidence accepted in this section are intended to take 
into account information that is culturally relevant to the individual, 
such as baptismal certificates and sworn affidavits from parents, 
guardians, and relatives. ORR appreciates that a child needs time to 
develop a feeling of safety; ORR's obligation is to ensure proper 
placement of a child without undue delay in a setting where they can 
receive adaptation and acculturation services in accordance with the 
standards described in this subpart. ORR does not believe that 
considering the psychological maturity of the individual should be a 
factor in the process for making an age determination, primarily 
because such considerations are highly subjective.
    Comment: A few commenters disagreed with the reasonable suspicion 
standard as proposed in this section. One commenter recommended that 
ORR replace the ``reasonable suspicion'' standard required to initiate 
an age determination with the higher ``probable cause'' and that ORR 
require staff to provide probable cause that the child is an adult 
given the potential impact of an adverse finding on children. One 
commenter requested that ORR further clarify what constitutes 
reasonable evidence or suspicion of a falsely provided age. One 
commenter stated that Sec.  410.1704 as proposed concludes that ORR 
will treat a person as an adult if a reasonable person concludes that 
the individual is an adult but argued that this does not sufficiently 
protect the due process rights of unaccompanied children.
    Response: ORR thanks the commenters for their input. ORR notes that 
initiating an age determination based on a reasonable suspicion that an 
individual in custody is not a minor is a matter of current practice 
consistent with the ``reasonable person'' standard for age 
determinations under the FSA that ORR is now codifying under this 
section. In this context, ORR is concerned that limiting age 
determinations only to instances where there is probable cause would 
limit ORR's ability to consider factors such as lack of available 
documentation; contradictory or fraudulent identity documentation and/
or statements; and ambiguous physical appearance of the individual. As 
noted earlier in this section, ORR will consider available 
documentation or statements from the presumed child in ORR's custody or 
the child's attorney. ORR notes that an individual would be treated as 
an adult under this section only when the totality of the evidence 
indicates that an individual in ORR custody is age 18 years or older.
    Comment: One commenter requested that ORR provide additional 
information to clarify its age determination procedures, including 
questions surrounding what happens for a child while the age 
determination process is ongoing; what occurs in the event that the 
totality of evidence is inconclusive; what happens for children who 
claim to be adults or present paperwork as adults but are suspected to 
be minors; detail surrounding the use of social media, internet, and 
pictures in the process of age determination; and details surrounding 
protective plans in place in the event potential adults are

[[Page 34549]]

placed with children for a period of time.
    Response: Upon referral to ORR's legal custody, ORR would only 
conduct an age determination in accordance with the procedures 
described in this section if ORR has a reasonable suspicion that the 
individual is not a minor. This section does not require ORR to conduct 
an age determination when an individual claims to be an adult, but in 
the event such a claim gives rise to a reasonable suspicion that the 
individual is not a minor, ORR may decide to conduct an age 
determination. In instances where the medical age assessment does not 
reach the 75 percent probability threshold at Sec.  410.1703(b)(8) and 
is therefore ambiguous, debatable, or borderline, forensic examination 
results must be resolved in favor of finding the individual is a minor. 
At this time, ORR does not agree to consider social media, internet, 
and pictures as evidence of an individual's age because ORR does not 
believe that this type of documentation is as reliable as the types of 
evidence accepted under this section. In the event that potential 
adults are placed with children for a period of time, as provided in 
current ORR policy, an individual in ORR care or their attorney of 
record may, at any time, present new information or evidence that they 
are 18 or older for reevaluation of an age determination. If the new 
information or evidence indicates that an individual who is presumed to 
be an unaccompanied child is an adult, then ORR will coordinate with 
DHS to take appropriate actions, which may include transferring the 
individual out of ORR custody back to DHS custody. ORR further 
emphasizes that pursuant to minimum standards under Sec. Sec.  410.1302 
and 1801, programs must provide at least one individual counseling 
session per week conducted by certified counseling staff with the 
specific objectives of reviewing the unaccompanied child's progress, 
establishing new short and long-term objectives, and addressing both 
the developmental and crisis-related needs of each unaccompanied child.
    Comment: One commenter recommended that ORR create standards of 
protection from discrimination such as standards for documenting 
concerns of age and having those concerns verified by multidisciplinary 
teams, suggesting that if a direct care staff member says they think a 
child is actually an adult, a second opinion from the case management 
supervisor or medical staff should be pursued before addressing 
anything with the client.
    Response: ORR thanks the commenter for their recommendation. ORR 
notes that only when there is a reasonable suspicion that the presumed 
child in ORR custody is not a minor would ORR proceed with conducting 
an age determination, and not solely based upon an opinion. After 
initiating an age determination, ORR would follow the procedures in 
this section to collect and verify the available evidence, during which 
time there will be additional opportunities to present documentation 
and testimony, including medical assessments. ORR notes that during 
this process, the presumed child who remains in ORR's custody will not 
be treated as an adult until the age determination is resolved.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed.
Section 410.1701 Applicability
    ORR proposed in the NPRM at Sec.  410.1701 that this subpart would 
apply to individuals in the custody of ORR (88 FR 68954). This is 
consistent with 8 U.S.C. 1232(b)(4), which specifies that DHS' and 
HHS's age determination procedures ``shall'' be used by each department 
``for children in their respective custody.'' Section 410.1701 also 
reiterates that under the statutory definition of an unaccompanied 
child,\301\ an individual must be under 18 years of age.
    Comment: One commenter stated concern that the adoption of a 
trauma-informed approach in verifying critical information such as age 
could inadvertently result in adults falsely claiming to be minors and 
accessing services meant for vulnerable children.
    Response: ORR disagrees that providing trauma-informed services to 
children in its legal custody is an impediment to conducting an age 
determination when there is a reasonable suspicion when the individual 
in custody is not a minor. ORR believes that the requirements in this 
subpart properly balance the concerns of children who are truly 
unaccompanied children with the importance of ensuring individuals are 
appropriately identified as minors.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed.
Section 410.1702 Conducting Age Determinations
    ORR proposed in the NPRM at Sec.  410.1702 to codify general 
requirements for conducting age determinations (88 FR 68954). The TVPRA 
requires that age determination procedures, at a minimum, consider 
multiple forms of evidence, including non-exclusive use of radiographs. 
Given these minimum requirements, Sec.  410.1702 would allow for the 
use of medical or dental examinations, including X-rays, conducted by a 
medical professional, and other appropriate procedures. The terms 
``medical'' and ``dental examinations'' are taken from the FSA at 
paragraph 13, and ORR interprets them to include ``radiographs'' as 
discussed in the TVPRA. Under Sec.  410.1702, ORR would require that 
procedures for determining the age of an individual consider the 
totality of the circumstances and evidence rather than rely on any 
single piece of evidence to the exclusion of all others.
    Comment: A number of commenters expressed concern that proposed 
Sec.  410.1702 is inconsistent with ORR policy updates to remove X-rays 
and other changes in April 2022.
    Response: ORR thanks commenters for their input. ORR notes that it 
revised its policy to remove skeletal (bone) maturity assessments since 
DHS does not accept this form of medical age assessment for age 
determinations.\302\ However, ORR also notes that the policy under the 
TVPRA requires that age determination procedures, at a minimum, 
consider multiple forms of evidence, including ``non-exclusive'' use of 
radiographs. Therefore, ORR is finalizing its proposal that X-rays for 
medical age assessments may be taken into account in totality of the 
evidence.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed.
Section 410.1703 Information Used as Evidence To Conduct Age 
Determinations
    ORR proposed in the NPRM, at Sec.  410.1703, information that ORR 
would be able to use as evidence to conduct age determination (88 FR 
68954 through 68955). Under Sec.  410.1703(a), ORR would establish that 
it considers multiple forms of evidence, and that it makes age 
determinations based upon a totality of evidence. Under Sec.  
410.1703(b), ORR may consider information or documentation to make an 
age determination, including, but not limited to, (1) birth 
certificate, including a certified copy, photocopy, or facsimile copy 
if there is no acceptable original birth certificate, and proposes that 
ORR may consult with the consulate or embassy of the individual's 
country of birth to verify the validity of the birth certificate 
presented; (2) authentic Government-issued documents issued to the 
bearer; (3) other documentation, such as baptismal certificates, school

[[Page 34550]]

records, and medical records, which indicate an individual's date of 
birth; (4) sworn affidavits from parents or other relatives as to the 
individual's age or birth date; (5) statements provided by the 
individual regarding the individual's age or birth date; (6) statements 
from parents or legal guardians; (7) statements from other persons 
apprehended with the individual; and (8) medical age assessments, which 
should not be used as a sole determining factor but only in concert 
with other factors.
    Regarding the use of medical age assessments, ORR proposed in the 
NPRM at Sec.  410.1703(b)(8), to codify a 75 percent probability 
threshold, that, when used in conjunction with other evidence, reflects 
a reasonable standard that would prevent inappropriate placements in 
housing intended for unaccompanied children. The examining doctor would 
be required to submit a written report indicating the probability 
percentage that the individual is a minor or an adult. If an 
individual's estimated probability of being 18 or older is 75 percent 
or greater according to a medical age assessment, then ORR would accept 
the assessment as one piece of evidence in favor of a finding that the 
individual is not an unaccompanied child. Consistent with the TVPRA, 
ORR would not be permitted to rely on such a finding alone; only if 
such a finding has been considered together with other forms of 
evidence, and the totality of the evidence supports such a finding, 
would ORR determine that the individual is 18 or older. The 75 percent 
probability threshold applies to all medical methods and approaches 
identified by the medical community as appropriate methods for 
assessing age. Ambiguous, debatable, or borderline forensic examination 
results are resolved in favor of finding the individual is a minor. ORR 
believes that requirements at Sec.  410.1703 enable ORR to utilize 
multiple forms of evidence.
    Comment: A number of commenters expressed the view that ORR is 
unable to verify the age of a purported unaccompanied child. A few 
commenters disagreed with the documentation that ORR proposes would 
allow it to make an age determination, stating concerns that ORR would 
accept unverified documents and copies which remove all security 
features. One commenter stated a concern that ORR's approach would 
trust a facsimile or a baptismal certificate sent via a messaging 
application, but diminish the use of medical age assessments.
    Response: ORR recognizes the challenges in obtaining evidence to 
verify the age of individuals in ORR's legal custody due to the 
circumstances of entering the country unaccompanied and with 
undocumented status. It is for this reason that ORR will not make an 
age determination on the sole basis of one document or document type, 
but rather based on the totality of the evidence. ORR notes that a 
legible facsimile of a birth certificate is acceptable when the 
original is not available. ORR believes that types of evidence accepted 
under this section are aligned with standard documentation that are 
widely accepted to verify age across multiple Federal agencies. ORR 
disagrees that the requirements under this subpart diminish the use of 
medical age assessments; rather, forensic results are recognized and 
taken into consideration with other evidence.
    Comment: A few commenters provided recommendations for preventing 
wrongful age determinations. A few commenters recommended that 
consulate-verified birth certificates be standard practice where 
possible for age determination to prevent errors. One commenter 
suggested that the Government invest in advanced document verification 
technology to ensure the authenticity of birth certificates and other 
identification documents, also stating that collaboration with foreign 
consulates and embassies, as mentioned in Sec.  410.1703, should be 
expedited to verify the validity of documents presented.
    Response: ORR thanks commenters for their recommendations. ORR 
notes that it may consult with the consulate or embassy of the 
individual's country of birth to verify the validity of the birth 
certificate presented. However, due to the variation in standards in 
other nations outside of the U.S. for document protections, ORR does 
not believe that it would be able to apply advanced document 
verification technology consistently and believes the current types of 
documents accepted as evidence of an individual's age are sufficient to 
proceed with an age determination.
    Comment: One commenter recommended that ORR minimize the use of 
medical age assessments, and instead prioritize vulnerability-based 
assessments and incorporate the benefit of the doubt and the best 
interest principle in these assessments. The commenter recommended that 
ORR ensure the children have access to legal counsel and a child 
advocate during age assessments, so their rights and best interests are 
represented during the process, and ensure all relevant staff are 
trained on and have access to ORR policy on age assessments.
    Response: ORR thanks the commenter for their input. While ORR 
believes that the use of medical age assessments is still relevant to 
making an age determination, ORR emphasizes that they are one kind of 
evidence considered in making a determination based on the totality of 
the evidence. Rather, medical age assessments are taken into 
consideration with the totality of evidence accumulated if there is a 
reasonable suspicion that an individual is not a minor. Additionally, 
as stated at Sec.  410.1309(a)(2)(i)(B), ORR must provide an 
unaccompanied child access to legal representation before and during an 
age assessment to ensure their rights and best interests are 
represented. ORR agrees that all relevant staff should be trained on 
and have access to ORR policy on age assessments in accordance with 
provisions at Sec.  410.1305, requiring that standard programs, 
restrictive placements, and post-release service providers shall 
provide training to all staff, contractors, and volunteers, to ensure 
that they understand their obligations under ORR regulations in this 
part and policies, and are responsive to the challenges faced by staff 
and unaccompanied children at the facility.
    Comment: A few commenters recommended eliminating or reducing the 
use of medical age determinations altogether, stating the process is 
difficult and inaccurate, and expressing concerns about the 
consequences of an erroneous age determination, such as sending a child 
to an adult detention facility, causing them to lose access to the 
range of services and protections to which children are entitled. 
Specifically, a few commenters stated that the scientific community 
agrees that bone and dental radiographs are unreliable because children 
grow at different rates, with one commenter stating that radiographs 
can only provide an age range of the person in question and ORR should, 
therefore, not include them in the age determination process at all, 
given their limitations. Additionally, a few commenters questioned the 
reliability of dental examinations to determine age. One commenter 
stated that age assessments of adolescents based on wisdom teeth growth 
have an accuracy of only 2 to 4 years, also stating the timing of 
eruption of the third molar depends on ethnicity, gender, socio-
economic status, and even birth weight. The commenter stated that for 
these reasons, all forensic examination results should be deemed 
debatable and

[[Page 34551]]

resolved in favor of finding that the individual is a child.
    Response: ORR thanks the commenters for their input. Regarding the 
proposed use of medical age assessments, at proposed Sec.  
410.1703(b)(8), ORR is codifying a 75 percent probability threshold, 
that, when used in conjunction with other evidence, reflects a 
reasonable standard that would prevent inappropriate placements in 
housing intended for unaccompanied children (88 FR 68955). The 
examining doctor would be required to submit a written report 
indicating the probability percentage that the individual is a minor or 
an adult. If an individual's estimated probability of being 18 or older 
is 75 percent or greater according to a medical age assessment, then 
ORR would accept the assessment as one piece of evidence in favor of a 
finding that the individual is not an unaccompanied child. Consistent 
with the TVPRA, ORR would not rely on such a finding alone; only if 
such a finding has been considered together with other forms of 
evidence, and the totality of the evidence supports such a finding, 
would ORR determine that the individual is 18 or older. The 75 percent 
probability threshold applies to all medical methods and approaches 
identified by the medical community as appropriate methods for 
assessing age, including evidence such as bone and dental radiographs. 
ORR disagrees that all forensic examination results are deemed 
debatable because they are evidence that merit consideration, but as 
noted, they are one type of evidence considered in looking at the 
totality of the evidence. ORR believes that requirements at proposed 
Sec.  410.1703 would enable ORR to utilize multiple forms of evidence.
    Comment: A few commenters recommended that ORR use DNA testing in 
age determinations for unaccompanied children. One commenter cited an 
example from an Inspector General report \303\ stating that ICE, HSI, 
and CBP officials stated that testing with Rapid DNA helped deter and 
investigate false claims about parent-child relationships and therefore 
recommended that ORR include a provision to clearly allow for rapid DNA 
testing, not only for age determinations, but also for verifying 
familial relationships to deter and detect fraud and abuse and better 
protect children.
    Response: ORR thanks commenters for their recommendations and for 
their concern. The referenced report is applicable to law enforcement 
activities undertaken by immigration agencies and ORR does not believe 
universal use of DNA is required under ORR's obligations under the HSA 
to coordinate care and placement of unaccompanied children. For a 
discussion of considerations relating to use of DNA in the sponsor 
approval process, please see ORR's response to comments on Sec.  
410.1201.
    Comment: A few commenters agreed with the regulations as proposed 
in this section, commending the protections incorporated in the NPRM 
regarding age determinations and stating that this framework for age 
determination can help protect children. One commenter agreed with the 
proposed regulation and requested that ORR clarify at Sec.  
410.1703(b)(8) that the medical age assessment report come from the 
examining doctor as stated in the beginning of this subsection.
    Response: ORR thanks commenters for their support. ORR believes 
that the regulation text is sufficiently clear as proposed. However, 
ORR will continue to monitor the requirements as they are implemented 
and may provide additional clarification through future policymaking if 
needed.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed.
Section 410.1704 Treatment of an Individual Whom ORR Has Determined To 
Be an Adult
    ORR proposed in the NPRM, at Sec.  410.1704, to codify the 
substantive requirement from paragraph 13 of the FSA regarding 
treatment of an individual who appears to be an adult (88 FR 68955). 
Specifically, if the procedures in this subpart would result in a 
reasonable person concluding, based on the totality of the evidence, 
that an individual is an adult, despite the individual's claim to be 
under the age of 18, ORR would treat such person as an adult for all 
purposes. As provided in current ORR policy,\304\ an individual in ORR 
care or their attorney of record may, at any time, present new 
information or evidence that they are 18 or older for re-evaluation of 
an age determination. If the new information or evidence indicates that 
an individual who is presumed to be an unaccompanied child is an adult, 
then ORR will coordinate with DHS to take appropriate actions, which 
may include transferring the individual out of ORR custody back to DHS 
custody.
    Comment: One commenter stated that ORR must report all adults they 
uncover who fraudulently pose as minors in ORR facilities to ICE and 
State and local law enforcement.
    Response: In cases where ORR has conducted an age determination and 
concludes that the individual is not a minor, ORR follows all required 
procedures including referral for a transfer evaluation with DHS/ICE. 
If the individual is determined to be an adult based on the age 
determination the individual is transferred to the custody of DHS/ICE.
    Comment: One commenter recommended, ``for due process reasons,'' 
that the final rule provide for appeals of age determinations to an 
independent reviewer outside of ORR.
    Response: ORR believes its age determination practices as codified 
in this section of the final rule are consistent with principles of due 
process. ORR has a significant interest in having age determination 
procedures not only to fulfill its statutory mandate,\305\ but also 
because it is authorized only to care for unaccompanied children as 
defined in the HSA. With respect to the adequacy of ORR's age 
determination process, ORR relies not only on any information in its 
possession, but also gives the individual, in addition to notice, the 
opportunity to submit evidence in support of their claim to be a minor. 
Based on these considerations, ORR believes its current processes align 
with the principles of due process.
    Final Rule Action: After consideration of public comments, ORR is 
updating the heading for Sec.  410.1704 to clarify that it applies to 
an individual whom ORR ``has determined to be'' an adult rather than to 
an individual who ``appears to be'' an adult. ORR is otherwise 
finalizing Sec.  410.1704 as proposed in the NPRM.

Subpart I--Emergency and Influx Operations

    In subpart I of the NPRM, ORR proposed to codify requirements 
applicable to emergency or influx facilities that ORR opens or operates 
during a time of and in response to emergency or influx (88 FR 68955 
through 68958). This subpart applies the requirement at paragraph 12C 
of the FSA to have a written plan that describes the reasonable efforts 
the former INS, now ORR, will take to place all unaccompanied children 
as expeditiously as possible.
    As a matter of policy, and consistent with the discussion at Sec.  
410.1302 of this final rule, ORR has a strong preference to house 
unaccompanied children in standard programs. However, ORR recognizes 
that in times of emergency or influx additional facilities may be 
needed, on short notice, to house unaccompanied children. As used in 
this subpart, emergency means an act or event (including, but not 
limited to, a

[[Page 34552]]

natural disaster, facility fire, civil disturbance, or medical or 
public health concerns at one or more facilities) that prevents timely 
transport or placement of unaccompanied children, or impacts other 
conditions provided by this part. Influx means a situation in which the 
net bed capacity of ORR's standard programs that is occupied or held 
for placement of unaccompanied children meets or exceeds 85 percent for 
a period of seven consecutive days. In this final rule, ORR defines 
``Emergency or Influx Facilities'' as a single term to encompass a care 
provider facility opened in response to either an emergency or influx 
and to propose that such a facility would meet the minimum requirements 
described in this subpart. These facilities may be contracted for and 
stood up in advance of an emergency or an influx in preparation of such 
an event, but no children would be placed in such a facility until an 
emergency or influx exists.
    Importantly, this definition of ``influx'' departs from and sets a 
substantially higher threshold for what constitutes an influx that used 
in the FSA which defined ``influx'' as a situation in which 130 or more 
unaccompanied children were awaiting placement. In the NPRM, ORR stated 
that it takes a new approach to defining ``influx'' based on its 
experiences in the years after the settlement agreement and in light of 
the increased numbers of unaccompanied children over time. In this 
rule, ORR defines an ``influx'' without reference to a set number of 
unaccompanied children, but rather to circumstances reflecting a 
significant increase in the number of unaccompanied children that 
exceeds the standard capabilities of the Federal Government to process 
and transport them timely and/or to shelter them with existing 
resources. ORR believes that using the 85 percent threshold provides a 
reasonable measure to determine when bed capacity in the standard 
programs is strained to the point that accepting referrals from other 
Federal agencies within 72 hours becomes very challenging. ORR notes 
that this 85 percent threshold would align with ORR's current practices 
and is based on ORR's experience with influx trends and organizational 
capacity. During these times of emergency or influx, ORR may house 
unaccompanied children at emergency or influx facilities. ORR notes 
that, consistent with current policy, placements of unaccompanied 
children at emergency or influx facilities cease when net bed capacity 
in standard programs drops below 85 percent for a period of at least 
seven consecutive days.\306\
Section 410.1800 Contingency Planning and Procedures During an 
Emergency or Influx
    ORR recognizes that during times of emergency or when there is an 
influx of unaccompanied children, it is important to have policies and 
procedures in place to ensure that all unaccompanied children have 
their needs met and receive appropriate care and protection. Because 
emergency or influx facilities are intended to be a temporary response 
to an influx or emergency, when speed may be critical, these facilities 
may be unlicensed or may be exempted from licensing requirements by 
State or local licensing agencies, or both. Although ORR's preference 
is to place unaccompanied children in standard programs whenever 
possible, these emergency or influx facilities may be used to house 
unaccompanied children temporarily to ensure children remain safe 
during an emergency and do not remain in CBP border stations, which are 
neither designed nor equipped to care for children, for prolonged 
periods of time during an influx. Regardless of licensure status, these 
facilities must meet ORR standards and must comply to the greatest 
extent possible with State child welfare laws and regulations. ORR 
proposed at Sec.  410.1800 to codify guidelines for contingency 
planning and procedures to use during an emergency or influx (88 FR 
68955 through 68956).
    ORR proposed in the NPRM, at Sec.  410.1800(a), to regularly 
reevaluate the number of placements needed for unaccompanied children 
to determine whether the number of shelters, heightened supervision 
facilities, and ORR transitional home care beds should be adjusted to 
accommodate an increased or decreased number of unaccompanied children 
eligible for placement in care in ORR custody provider facilities.
    ORR proposed in the NPRM, at Sec.  410.1800(b), consistent with 
paragraph 12A of the FSA, that in the event of an emergency or influx 
that prevents the prompt placement of unaccompanied children in 
standard programs, ORR shall make all reasonable efforts to place each 
unaccompanied child in a standard program as expeditiously as possible. 
As described in proposed Sec.  410.1800(a) and consistent with ORR's 
preference to place unaccompanied children in standard care provider 
facilities, ORR's commitment to regularly reevaluating the number of 
placements needed will help this effort to place unaccompanied children 
in licensed programs quickly.
    ORR proposed in the NPRM, at Sec.  410.1800(c), that activities 
during an influx or emergency include the following: (1) ORR implements 
its contingency plan on emergencies and influxes, which may include 
opening facilities in times of emergency or influx; (2) ORR continually 
develops standard programs that are available to accept emergency or 
influx placements; and (3) ORR maintains a list of unaccompanied 
children affected by the emergency or influx including each 
unaccompanied child's: (i) name; (ii) date and country of birth; (iii) 
date of placement in ORR's custody; and (iv) place and date of current 
placement.
    Comment: One commenter supported the updates to ORR's emergency 
preparedness and contingency planning, agreeing with the focus on 
placing children in standard programs first and ongoing efforts to 
further expand the availability of standard programs.
    Response: ORR thanks the commenter for their support.
    Comment: One commenter welcomed updates to the definition of an 
influx during which ORR can use unlicensed or emergency shelters that 
do not have to meet the same standards as its network of licensed 
facilities. The commenter also supported ORR's stated commitment to 
regularly reevaluating and expanding regular shelter capacity as needed 
to minimize the need to utilize influx facilities. The commenter stated 
that together these proposed sections work toward a reduction in use of 
unlicensed and large congregate care facilities and promote the best 
interests of the children in ORR's care.
    Response: ORR appreciates the commenter's agreement with the 
updates in this section and agrees that such provisions will work 
towards ORR's stated commitment to minimize the need to utilize 
emergency or influx facilities.
    Comment: Several commenters expressed concern that this section 
created ambiguity by not distinguishing between Emergency Intake Site 
(EIS) and Influx Care Facility (ICF). One commenter stated that the 
text seems to treat them interchangeably, and references regulations 
and policies applicable to the standard program, contributing to an 
additional lack of clarity. One commenter questioned the purpose of 
listing two program types within a single set of rules and requested 
that ORR clarify and define what constitutes an EIS and an ICF. A few 
commenters recommended that ORR remove EIS from this subpart and 
establish it as a distinct subpart, stating that EIS should be reserved 
exclusively for emergency declarations rather than

[[Page 34553]]

as an emergency response to sudden influx. The commenter stated that 
existing ICFs should be used to manage influx situations at the border.
    Response: ORR intends for ``Emergency or Influx Facilities'' 
(``EIFs'') as a single term to encompass both care provider facilities 
that ORR opens in response to either an emergency (e.g., a public 
health emergency), and facilities that ORR opens in response to an 
influx, as defined in this final rule. ORR notes that using a single 
term is consistent with the FSA which refers to emergencies and influx 
together.\307\ EIFs will be subject to the minimum standards under this 
section for the safety and well-being of children as codified at Sec.  
410.1801. ORR notes that these standards are consistent with the 
requirements of Exhibit 1 of the FSA, even though the FSA does not 
require emergency or influx facilities to apply those standards. 
Further, the standards for EIFs are similar to the standards described 
at Sec.  410.1302(a), though with some differences to allow for greater 
operational flexibility, which ORR believes are appropriate in order to 
relatively quickly provide child-appropriate care for unaccompanied 
children during times of emergency or influx. ORR further notes that 
all the regulations not related to licensure or minimum standards in 
this part would apply to all care provider facilities, including both 
standard and non-standard programs as defined below unless otherwise 
specified. ORR is not incorporating in this regulation the terms 
``ICF'' or ``EIS,'' which are terms it has used in the past. Whatever 
terms ORR uses to describe facilities opened in the event of an 
emergency or influx, such facilities will be subject to the standards 
described in this section.
    Comment: A few commenters suggested investment in or expanding 
licensed shelter beds. One commenter suggested that, instead of relying 
on influx shelter beds, ORR should favor contingency planning for 
onboarding of more licensed shelter beds and staff and focus on the 
expansion of small-scale shelter models and community-based models. 
Another commenter suggested that although under the FSA, the Government 
is not obligated to fund additional beds on an ongoing basis, such 
funding is necessary and may well be cost efficient. The commenter 
suggested that ORR conduct research and analyze whether funding 
additional beds on an ongoing basis would lead to cost savings when 
compared to the costs ORR incurs operationalizing massive influx 
facilities in a crisis environment. Another commenter expressed a 
concern that EIFs would be used to replace licensed facilities, 
including appropriate family and community-based placements.
    Response: ORR thanks the commenters for their recommendations. ORR 
currently operates a network of 289 care provider facilities in 29 
States,\308\ and continually assesses its bed capacity and potential 
opportunities for additional standard bed capacity as appropriate in 
relation to trends in the rates of referrals of unaccompanied children 
to ORR. ORR also notes that EIFs are not to be used as substitutes for 
standard programs where such programs are available. EIFs are 
specifically for situations of emergency or influx. ORR has worked to 
build up its standard bed capacity, but because the frequency and size 
of influxes of unaccompanied children, and the timing of emergencies or 
conditions of influx are not always predictable, as a matter of prudent 
planning ORR requires the ability to quickly add bed capacity when 
circumstances require it to ensure child-appropriate placements. ORR 
continually assesses its bed capacity and considers the comparative 
costs between funding additional beds on an ongoing basis and placement 
in EIFs, and has issued Notices of Funding Opportunity (NOFOs) to 
qualified applicants to increase standard program capacity.
    Comment: Several commenters expressed concern that Sec.  
410.1800(b) would not be compliant with the FSA's requirement to make 
licensed placements of unaccompanied children ``as expeditiously as 
possible.'' One commenter stated concerns that Sec.  410.1800(b) 
introduces qualifying language that would permit a delay in licensed 
placement under circumstances inconsistent with the FSA. The commenter 
further argued that the FSA's reference to licensed placement ``as 
expeditiously as possible'' already provides ORR with leeway to delay 
licensed placement when it is operationally infeasible to place 
children within the FSA's time limits and stated that adding ``make all 
reasonable efforts'' weakens the ``as expeditiously as possible'' 
requirement for placement in a licensed program. The commenter 
suggested that ORR eliminate this additional qualifying language in 
order to comply with the requirements of the FSA. Several commenters 
stated the NPRM did not define ``expeditiously'' nor did it clearly 
specify a timeframe for placement in a licensed facility, and stated 
that this was in contravention of court decisions that have addressed 
this question. Several commenters stated that the proposed rule implies 
at Sec.  410.1802(a)(1) that ``expeditiously'' is within a 30-day 
period but the U.S. Court of Appeals for the Ninth Circuit which is 
monitoring compliance of FSA has opined that a 20-day extension may be 
``expeditious.'' The commenter argued that ORR's 30-day window for 
release from an ``emergency or influx facility'' may be considered 
noncompliance, especially if the facilities are unlicensed and do not 
meet minimum safety requirements of the FSA. One commenter stated that 
the court monitoring compliance of the FSA has suggested that it may be 
reasonable for ORR to exceed normal requirements up to 20 days in the 
event of an influx and to adopt this timeframe in the proposed rule.
    Response: ORR thanks the commenters for their input, and notes that 
in this final rule it is updating Sec.  410.1800(b), to strike ``make 
all reasonable efforts,'' and instead state that ORR shall place each 
unaccompanied child in a standard program ``as expeditiously as 
possible.'' ORR notes that the FSA itself does not establish a specific 
timeline for placement in a licensed program. Instead, the FSA requires 
ORR to place children ``as expeditiously as possible'' in a licensed 
placement. ORR would also note that EIFs are required to follow the 
minimum standards set forth at Sec.  410.1801. Even though not required 
by the FSA, those standards essentially mirror the standards set forth 
at Exhibit 1 of the FSA. Finally, ORR notes that the commenter's 
reference to a 20-day period was in the court's discussion of standards 
applicable to children in DHS custody in the context of family 
detention,\309\ which presents a different set of considerations than 
those applicable to expeditious transfer in conditions of emergency or 
influx for the UC Program.
    Comment: Several commenters asserted that ORR inappropriately 
defined influx as an ``exceptional circumstance'' preventing the 
placement of a child from other Federal agencies within 72 hours 
permitted under Flores. One commenter argued that this proposal would 
allow ORR to absolve itself of the responsibility to comply with the 
terms of the FSA whenever it is presented with challenges to placing 
children in standard programs within 72 hours and was concerned that 
this would directly risk the safety of unaccompanied children for which 
the agreement was issued to protect.
    Response: ORR notes that, although an exceptional circumstance 
under Sec.  410.1101(d) would include an influx, this final rule also 
substantially raises

[[Page 34554]]

the threshold for influx above what is specified in the FSA. This final 
rule, at Sec.  401.1001, defines influx as a situation in which the 
percentage of ORR's existing net bed capacity in standard programs that 
is occupied or held for placement by unaccompanied children meets or 
exceeds 85 percent for a period of seven consecutive days, in contrast 
with the FSA definition of more than 130 minors eligible for placement 
in a licensed program. As a practical matter, it has been the case for 
the last several years (with the exception of the period in 2020 in 
which unaccompanied children were being expelled at the border) that 
the daily average of unaccompanied child referrals from DHS 
substantially exceeds 130.
    Comment: One commenter argued that under this proposed definition, 
ORR would have the authority to operate a temporary unlicensed facility 
for any number of situations it considers an emergency, including an 
influx, stating concerns that emergency and influx shelters are large, 
often in remote areas, and child welfare advocates have long expressed 
grave concerns with the treatment of children and the general 
conditions in such facilities. The commenter recommended that emergency 
or influx facilities only be allowed to shelter children if in 
alignment with ORR's own stated minimum standards and with standards 
under international law.
    Response: ORR reiterates that emergency or influx facilities must 
comply with the minimum standards set forth at Sec.  410.1801, which is 
based on parts of Exhibit 1 of the FSA, as well as other requirements 
and standards set by ORR under its statutory authorities. ORR notes 
that EIFs are only authorized under the situations defined as an 
emergency or influx under Sec.  401.1001. ORR additionally notes that 
it operates EIFs as emergency care provider facilities in accordance 
with the standards finalized at 45 CFR 411 in the Interim Final Rule, 
Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual 
Harassment Involving Unaccompanied Children.
    Comment: One commenter stated that HHS has omitted data that shows 
how frequently ORR operates under conditions that would permit ORR to 
relax standards under this proposal. The commenter stated that there 
has not been a single month since January 2021 in which ORR or its 
contractors have not been operating at ``influx'' capacity, as defined 
by the proposed rule. The commenter therefore requested that HHS make 
data available to the public regarding how frequently ``emergency'' or 
``influx'' conditions are present.
    Response: As previously noted, the final rule is substantially 
raising the threshold for determining that there is an influx. ORR 
believes that rather than ``relaxing'' standards, this policy would 
make placements in an EIF less frequent. For data regarding placements 
in an EIF, ORR refers commenters to publicly available information 
posted on its website.\310\
    Comment: One commenter expressed concern that Sec.  410.1800(c)(2), 
as proposed in the NPRM, merely stated that during an influx ORR 
continually develops standard programs that are available to accept 
emergency or influx placements and does not comport with the FSA 
requirement to undertake extensive advance contingency planning. The 
commenter argued that this provision is insufficient to minimize the 
use of unlicensed congregate influx facilities.
    Response: ORR thanks the commenter for their input. ORR is 
committed to minimizing the use of unlicensed emergency or influx 
facilities (EIFs) while ensuring that EIFs adhere to minimum standards. 
ORR notes that it annually reviews its contingency plans based on the 
actual and anticipated number of unaccompanied children referrals to 
monitor available resources in light of expected needs. This is 
consistent with the requirement set forth at Exhibit 3 of the FSA at 
paragraph 5.\311\ ORR believes the requirements related to contingency 
plans under Sec.  410.1800(c) of this final rule sufficiently comports 
with the FSA requirement to undertake extensive advance contingency 
planning.
    Comment: One commenter asserted that it is not enough to regularly 
``reevaluate'' the number of placements needed as stated in Sec.  
410.1800(a) and recommended instead that ORR establish a sizeable list 
of placements in waiting. The commenter stated that numbers required 
under the FSA suggest the Government must have a list of beds equal to 
62 percent of the capacity threshold constituting an influx and that 
the FSA also requires the Government to maintain a list and ``. . . 
update this listing of additional beds on a quarterly basis . . .'' and 
should therefore revise Sec.  410.1800(c)(2) to require ORR to engage 
in extensive contingency planning which at a minimum includes a list of 
licensed placements in waiting equal to at least 62 percent of the 
capacity threshold at which an influx facility can be utilized. The 
commenter further stated such a list should include pre-vetted 
temporary family foster care and small group home options. One 
commenter suggested a proactive approach by ORR to address potential 
influx situations, ensuring readiness for accommodating children.
    Response: ORR thanks the commenter for their recommendation. ORR 
notes that it annually reviews its contingency plans based on the 
actual and anticipated number of unaccompanied children referrals to 
monitor available resources in light of expected needs. Further, the 
current scale of the UC Program, which in recent years has experienced 
around 120,000 referrals of unaccompanied children per year, is 
significantly greater than the situation in 1997 when the FSA was 
finalized. Given the dramatically changed circumstances since that 
time, ORR has repeatedly needed to engage in far more extensive 
contingency planning than was envisioned in 1997. ORR notes that the 
commenter's calculation of 62 percent of capacity threshold appears to 
be a reference to FSA paragraph 12C, which required the former INS to 
have 80 beds available for placement; 80 beds in no longer a meaningful 
preparedness number in light of current trends in referrals of 
unaccompanied children to ORR.
    Comment: One commenter requested clarification on the population of 
children meant by ``placement of such facilities of certain 
unaccompanied children'' at Sec.  410.1800(c)(1) of the NPRM. The 
commenter recommended that ORR consider serving children together at 
specialized facilities catering to those who speak certain languages, 
who are sibling sets, and/or who are turning 18 in fewer than 30 days.
    Response: ORR thanks the commenter for their recommendation. By 
``certain unaccompanied children,'' ORR means those children ORR 
determines could be safely and appropriately placed at an EIF, 
including as consistent with the standards set forth at Sec.  
410.1802(a). ORR further clarifies that providers are required to 
render services in the child's native or preferred language, thus 
minimizing the need to consider grouping children in specialized 
facilities based on certain language. With respect to siblings, ORR 
stated at Sec.  410.1802(b)(1) that a child cannot be placed in an EIF 
if the child is part of a sibling group with a sibling(s) age 12 years 
or younger. As a matter of policy, the interactions and 
interrelationship of the unaccompanied child with the child's parents, 
siblings, and any other person who may significantly affect the 
unaccompanied child's well-being must be considered as a factor in 
determining the child's best interests.
    Comment: A few commenters suggested revisions or clarifications to 
the provisions at Sec.  410.1800(c)(3) for the list of unaccompanied 
children affected

[[Page 34555]]

by the emergency or influx. One commenter stated that this subpart does 
not explain how this list would be used or whether only children housed 
at an emergency or influx facility would be included. The commenter 
further stated that it also does not appear to include all relevant 
information needed to ensure that it only includes unaccompanied 
children who meet the criteria at Sec.  410.1802(a). One commenter 
stated that this list is a creation of ORR and argued that since the 
extant privacy protections and policies specify the requirements of 
contractors and grantees, the proposed rule failed to specify which 
data protections apply to this information. The commenter suggested 
that ORR specify how long the information in proposed Sec.  
410.1800(c)(3) is retained, and whether this information is part of the 
case file, included in the case file but separate, or altogether 
separate from the case file.
    Response: ORR first notes that this requirement is consistent with 
Exhibit 3, paragraph 2 of the FSA. ORR also clarifies that the 
requirements pertaining to maintenance and confidentiality of records 
apply to the list described at Sec.  410.1800(c)(3) and the use of this 
list is limited only to ensuring that ORR is aware of the volume of 
children are placed in an EIF at any given time and is able to timely 
transfer and place children.
    Comment: A few commenters suggested defined timeframes for 
emergency declarations, citing concerns such as the presence of cold 
status sites awaiting activation and the changes in capacity 
facilitated by the IDIQ vehicle which provides access to multiple ICFs/
EIS. One commenter recommended that if unlicensed influx facilities are 
to be utilized, they should be temporarily open for no more than 60 
days.
    Response: ORR thanks the commenters for their recommendations. ORR 
agrees that placements in EIFs should be temporary in nature but cannot 
commit to closing EIFs when they are still needed due to emergency or 
influx circumstances.
    Comment: Several commenters cited concerns with health and safety 
risks to unaccompanied children in emergency or influx facilities, with 
one commenter stating that facilities that are overwhelmed pose 
heightened risks for exploitation, abuse, and mismanagement. A few 
commenters expressed concern that influx facilities are already failing 
to meet minimum standards required under State law thus creating health 
and safety risks and included examples where unaccompanied children 
have experienced sexual assault, not enough staff to supervise them, 
not eating throughout the day, or have tested positive for the 
coronavirus are not being physically separated from others.
    Response: ORR thanks the commenters for their concerns. ORR takes 
reports of such incidents seriously and will continue to be responsive 
to any information about failing to meet minimum standards in this 
section and pursuant to the requirements for monitoring all providers 
under Sec.  410.1303.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1800 as proposed in the NPRM, except that it is 
clarifying that ORR shall regularly reevaluate the number of standard 
program placements, and updating Sec.  410.1800(b) to state that ORR 
shall place each unaccompanied child in a standard program ``as 
expeditiously as possible,'' not that ORR will ``make all reasonable 
efforts'' to place each unaccompanied child in a standard program as 
expeditiously as possible.
Section 410.1801 Minimum Standards for Emergency or Influx Facilities 
(EIFs)
    At Sec.  410.1801(a), ORR notes that in addition to the standards 
it has for standard programs and restrictive placements, this section 
provides a set of minimum standards that must be followed for emergency 
or influx facilities (88 FR 68956 through 68958).
    ORR proposed in the NPRM, at Sec.  410.1801(b), a list of minimum 
services that must be provided to all unaccompanied children in the 
care of emergency or influx facilities (EIFs), and available at the 
time of the facility opening. These services, which are consistent with 
Exhibit 1 of the FSA, would generally apply the same minimum service 
requirements that apply under the FSA to standard care facilities to 
emergency or influx facilities. Under Sec.  410.1801(b)(1), these 
minimum services would require that emergency or influx facilities 
provide unaccompanied children with proper physical care and 
maintenance, including suitable living accommodations, food, 
appropriate clothing, and personal grooming items. ORR proposed in the 
NPRM, at Sec.  410.1801(b)(2), that emergency and influx facilities 
provide unaccompanied children with appropriate routine medical and 
dental care; family planning services, including pregnancy tests; 
medical services requiring heightened ORR involvement; emergency 
healthcare services; a complete medical examination (including 
screenings for infectious diseases) generally within 48 hours of 
admission; appropriate immunizations as recommended by the Advisory 
Committee on Immunization Practices' Child and Adolescent Immunization 
Schedule and approved by HHS's Centers for Disease Control and 
prevention; administration of prescribed medication and special diets; 
and appropriate mental health interventions when necessary.
    ORR believes that the unique needs and background of each 
unaccompanied child should be assessed by emergency or influx 
facilities to ensure that these needs are being addressed and supported 
by the emergency or influx facility. Therefore, ORR proposed in the 
NPRM at Sec.  410.1801(b)(3), and consistent with ORR's existing policy 
and practice, to require that each unaccompanied child at an emergency 
or influx facility receive an individualized needs assessment that 
includes: the various initial intake forms, collection of essential 
data relating to the identification and history of the child and the 
child's family, identification of the unaccompanied child's special 
needs including any specific problems which appear to require immediate 
intervention, an educational assessment and plan, and an assessment of 
family relationships and interaction with adults, peers and authority 
figures; a statement of religious preference and practice; an 
assessment of the unaccompanied child's personal goals, strengths and 
weaknesses; identifying information regarding immediate family members, 
other relatives, godparents or friends who may be residing in the 
United States and may be able to assist in connecting the child with 
family members.
    Access to education services for unaccompanied children in care 
from qualified professionals is critical to avoid learning loss while 
in care and ensure unaccompanied children are developing academically. 
Under Sec.  410.1801(b)(4), ORR would require that emergency or influx 
facilities provide educational services appropriate to the 
unaccompanied child's level of development and communication skills in 
a structured classroom setting Monday through Friday, which 
concentrates on the development of basic academic competencies, and on 
English Language Training. ORR proposed in the NPRM that, as part of 
these minimum services for unaccompanied children in emergency or 
influx facilities, the educational program shall include instruction 
and educational and other reading materials in such languages as 
needed. Basic academic areas may

[[Page 34556]]

include such subjects as Science, Social Studies, Math, Reading, 
Writing and Physical Education. The program must provide unaccompanied 
children with appropriate reading materials in languages other than 
English for use during leisure time.
    ORR strongly believes that time for recreation is essential to 
supporting the health and well-being of unaccompanied children. ORR 
proposed in the NPRM, at Sec.  410.1801(b)(5), to require that 
emergency or influx facilities provide unaccompanied children with 
activities according to a recreation and leisure time plan that include 
daily outdoor activity--weather permitting--with at least one hour per 
day of large muscle activity and 1 hour per day of structured leisure 
time activities (that should not include time spent watching 
television). Activities should be increased to a total of 3 hours on 
days when school is not in session.
    The psychological and emotional well-being of unaccompanied 
children are an important component of their overall health and well-
being, and therefore ORR proposed in the NPRM that these needs must be 
met by emergency or influx facilities. ORR proposed in the NPRM, at 
Sec.  410.1801(b)(6), emergency or influx facilities would be required 
to provide at least one individual counseling session per week 
conducted by trained social work staff with the specific objective of 
reviewing the child's progress, establishing new short-term objectives, 
and addressing both the developmental and crisis-related needs of each 
child. Group counseling sessions are another way that the psychological 
and emotional well-being of unaccompanied children can be supported 
while in ORR care. Therefore, ORR proposed in the NPRM under Sec.  
410.1801(b)(7), that unaccompanied children would also receive group 
counseling sessions at least twice a week. As is the case at standard 
facilities, these sessions are usually informal and take place with all 
unaccompanied children present. ORR believes that these group sessions 
would give new children the opportunity to get acquainted with staff, 
other children, and the rules of the program, as well as provide them 
with an open forum where everyone gets a chance to speak. Daily program 
management is discussed, and decisions are made about recreational and 
other activities. ORR notes that these group sessions would provide a 
meaningful opportunity to allow staff and unaccompanied children to 
discuss whatever is on their minds and to resolve problems.
    ORR proposed in the NPRM, at Sec.  410.1801(b)(8), emergency or 
influx facilities would be required to provide unaccompanied children 
with acculturation and adaptation services, which include information 
regarding the development of social and interpersonal skills which 
contribute to those abilities necessary to live independently and 
responsibly. ORR believes these services are important to supporting 
the social development and meeting the cultural needs of unaccompanied 
children in emergency or influx facilities. ORR proposed in the NPRM, 
at Sec.  410.1801(b)(9), to require that emergency or influx facilities 
provide a comprehensive orientation regarding program intent, services, 
rules (written and verbal), expectations, and the availability of legal 
assistance. In an effort to support each child's spiritual and 
religious practices, ORR proposed in the NPRM at Sec.  410.1801(b)(10), 
that emergency or influx facilities would be required to provide 
unaccompanied children access to religious services of the child's 
choice whenever possible. At the same time, with respect to the 
obligations of care provider facilities, ORR notes that it operates the 
UC Program in compliance with the requirements of the Religious Freedom 
Restoration Act and other applicable Federal conscience protections, as 
well as all other applicable Federal civil rights laws and applicable 
HHS regulations.\312\
    ORR proposed in the NPRM at Sec.  410.1801(b)(11) that emergency or 
influx facilities would make visitation and contact with family members 
(regardless of their immigration status) available to unaccompanied 
children in such a way that is structured to encourage such visitation. 
ORR notes that the staff must respect the child's privacy while 
reasonably preventing the unauthorized release of the unaccompanied 
child. ORR proposed in the NPRM, at Sec.  410.1801(b)(12), 
unaccompanied children at emergency or influx facilities have a 
reasonable right to privacy, which includes the right to wear the 
child's own clothes when available, retain a private space in the 
residential facility, group or foster home for the storage of personal 
belongings, talk privately on the phone and visit privately with 
guests, as permitted by the house rules and regulations, receive and 
send uncensored mail unless there is a reasonable belief that the mail 
contains contraband. ORR proposed in the NPRM at Sec.  410.1801(b)(13) 
that unaccompanied children at emergency or influx facilities would be 
provided services designed to identify relatives in the United States 
as well as in foreign countries and assistance in obtaining legal 
guardianship when necessary for the release of the unaccompanied child. 
ORR proposed in the NPRM at Sec.  410.1801(b)(14), emergency or influx 
facilities be required to provide unaccompanied children with legal 
services information, including the availability of free legal 
assistance, and that they may be represented by counsel at no expense 
to the Government the right to a removal hearing before an immigration 
judge; the ability to apply for asylum with USCIS in the first 
instance; and the ability to request voluntary departure in lieu of 
deportation.
    ORR proposed in the NPRM at Sec.  410.1801(b)(15) that emergency or 
influx facilities, whether State-licensed or not, comply, to the 
greatest extent possible, with State child welfare laws and regulations 
(such as mandatory reporting of abuse), as well as State and local 
building, fire, health and safety codes. If there is a potential 
conflict between ORR's regulations and State law, ORR will review the 
circumstances to determine how to ensure that it is able to meet its 
statutory responsibilities. The proposed rule also stated that if a 
State law or license, registration, certification, or other requirement 
conflicts with an ORR employee's duties within the scope of their ORR 
employment, the ORR employee is required to abide by their Federal 
duties.\313\ ORR proposed in the NPRM at Sec.  410.1801(b)(16), 
emergency or influx facilities deliver services in a manner that is 
sensitive to the age, culture, native language, and needs of each 
unaccompanied child. To support this minimum service, emergency or 
influx facilities would be required to develop an individual service 
plan for the care of each child. Finally, ORR proposed in the NPRM at 
Sec.  410.1801(b)(17) that the emergency or influx facility be required 
to maintain records of case files and make regular reports to ORR. 
Emergency or influx facilities must have accountability systems in 
place, which preserve the confidentiality of client information and 
protect the records from unauthorized use or disclosure.
    ORR proposed in the NPRM at Sec.  410.1801(c), that emergency or 
influx facilities must do the following when providing services to 
unaccompanied children: (1) Maintain safe and sanitary conditions that 
are consistent with ORR's concern for the particular vulnerability of 
minors; (2) Provide access to toilets, showers and sinks, as well as 
personal hygiene items such as

[[Page 34557]]

soap, toothpaste and toothbrushes, floss, towels, feminine care items, 
and other similar items; (3) Provide drinking water and food; (4) 
Provide medical assistance if the unaccompanied child is in need of 
emergency services; (5) Maintain adequate temperature control and 
ventilation; (6) Provide adequate supervision to protect unaccompanied 
children; (7) separate from other unaccompanied children those 
unaccompanied children who are subsequently found to have past criminal 
or juvenile detention histories or have perpetrated sexual abuse that 
present a danger to themselves or others; (8) Provide contact with 
family members who were arrested with the unaccompanied child; and (9) 
Provide access to legal services at Sec.  410.1309 in this rule. ORR 
notes that these requirements are based in part on standards described 
in the FSA at paragraph 12A. Although ORR understands these 
requirements apply specifically to the conditions in DHS facilities 
following initial arrest or encounter by immigration officers at DHS, 
nevertheless, because they set out additional safeguards for 
unaccompanied children, ORR proposed in the NPRM to adopt them for 
purposes of emergency or influx facilities under this rule. 
Additionally, consistent with paragraph 12A of the FSA, ORR would 
transfer an unaccompanied child to another care provider facility if 
necessary to provide adequate language services. These language access 
requirements are intended to protect unaccompanied children's interests 
and ensure that they understand their legal rights and options 
available to them, the nature of ORR custody and the general ORR 
principles regarding their care, and that they have access to adequate 
and effective legal representation if necessary. Many of these services 
are provided by case managers, who must have a presence onsite at the 
emergency or influx facility.
    ORR proposed in the NPRM at Sec.  410.1801(d), certain scenarios in 
which ORR may grant waivers for an emergency or influx facility 
operator, whether a contractor or grantee, from the standards proposed 
under Sec.  410.1801(b). Specifically, waivers may be granted for any 
or all of the services identified under Sec.  410.1801(b) if the 
facility is activated for a period of six consecutive months or less 
and ORR determines that such standards are operationally infeasible. 
For example, an emergency or influx facility operator may be unable to 
provide services at the site within the timeframe required by ORR. ORR 
determines whether certain standards are operationally infeasible on a 
case-by-case basis, taking into consideration the circumstances 
presented by a specific emergency or influx facility. ORR also would 
require that such waivers be made publicly available.
    Comment: A few commenters agreed with the improvements in the 
minimum standards for standard programs and emergency or influx 
facilities outlined in the NPRM. One commenter supported the inclusion 
of requirements that both types of facility provide an individualized 
needs assessment and an individualized services plan for each child. 
The commenter likewise supported the requirement that facilities 
provide services in a manner that is sensitive to the age, culture, 
native language and needs of each child. The commenter further agreed 
with requirements that standard programs implement trauma-informed 
positive behavior management systems, stating the minimum standards 
represent important protections for unaccompanied children in ORR's 
care and custody. Another commenter stated that ORR's proposed rule 
advances its efforts to plan for emergency and influx contingencies in 
a way that seeks to minimize the impact on children, requiring a higher 
standard of care than used in past temporary facilities, in particular 
the Emergency Intake Sites opened in 2021.
    Response: ORR thanks commenters for their comments concerning the 
minimum standard provisions in this section.
    Comment: One commenter stated that proposed Sec.  410.1801 offers 
important protections for unaccompanied children and, if implemented, 
would help mitigate some of the harms of unlicensed congregate influx 
facilities documented in HHS Office of the Inspector General and NGO 
reports. The commenter stated that the minimum standards and services 
as outlined in the NPRM appear to address many of the challenges they 
have identified during previous visits to Emergency Intake Sites at the 
southern border. One commenter also stated agreement that as described, 
the group counseling sessions and the acculturation and adaptation 
services provide an opportunity for meaningful dialogue between staff 
and children and stated the requirement for an individualized needs 
assessment helps identify and address a child's particular situation 
and determine whether the child should not be placed in an emergency or 
influx facility. The commenter also agreed with ORR's requirement that 
visitation and contact with family members is structured in a way to 
encourage such visitation helps maintain communication with family 
members and serves to enhance a child's feeling of connection and 
safety in a challenging environment. The commenter further agreed that 
provision of legal services information is always essential, but 
particularly in a setting which may not be State-licensed.
    Response: ORR thanks commenters for their comments.
    Comment: One commenter suggested that to avoid confusion regarding 
what standards to apply to emergency and influx facilities, as opposed 
to standard programs, ORR remove a listing of minimum standards for 
emergency and influx facilities instead require EIFs to meet the 
minimum standards set forth at Sec.  410.1302.
    Response: ORR thanks the commenter for their recommendation. ORR 
clarifies that having a separate provision for EIF minimum standards is 
appropriate due to the differing operational context when EIFs may be 
activated (e.g., during influx, natural disaster, or medical 
emergency). Codifying separate standards enables ORR to require 
services consistent with the FSA at Exhibit 1, while preserving 
operational flexibility that is appropriate in times of emergency or 
influx.
    Comment: One commenter expressed concern that the minimum standards 
for both standard programs and emergency or influx facilities do not 
address all of the issues for which the States have developed licensing 
standards for children's residential facilities, including such 
examples as minimum staff-to-child ratios, specifications as to the 
size and maintenance of living quarters, children's independence and 
access to the community, as appropriate, including access to 
participation in recreational, cultural, and extra-curricular 
activities outside the facility. The commenter stated that it is not 
clear whether other requirements subsequently developed by ORR for 
unlicensed standard programs would be consistent with or address all 
issues addressed by the States' standards. The commenter recommended 
that the minimum standards and any other requirements that ORR develops 
for standard programs and emergency or influx facilities address the 
issues for which the States have developed licensing standards, 
including but not limited to the examples identified above. The 
commenter suggested that ORR look to the States' licensing standards 
and requirements for guidance in developing and elaborating its own 
standards.

[[Page 34558]]

    Response: ORR thanks the commenter for their concerns. 
Traditionally, emergency or influx facilities are not State-licensed 
since placements are made under exceptional circumstances and intended 
to be temporary in duration. Also, under its terms, the FSA did not 
contemplate that Exhibit 1 standards would apply to emergency or influx 
facilities. Nevertheless, in this final rule ORR goes beyond the 
requirements of the FSA to define minimum standards specific to 
emergency or influx facilities in this section that are similar to 
those described at Exhibit 1 and at Sec.  410.1302 of this rule, to 
strengthen protections for unaccompanied children and ensure that they 
receive specified services.
    Comment: Several commenters disagreed with the inclusion of 
unlicensed facilities in the operation of influx or emergency intake 
sites and stated that such facilities should be required to meet the 
same minimum standards for licensed facilities under this section, or 
should be required to be State-licensed, or conform to State licensure 
requirements even in influx or emergency circumstances to the greatest 
extent possible. One commenter suggested that ORR should revise the 
proposed rule to clearly require that standard programs and emergency 
and influx programs meet both ORR requirements and applicable State 
laws and regulations. One commenter urged ORR to revise Sec.  410.1801 
to require that an emergency or influx facility be licensed by an 
appropriate State agency if State licensure is available. One commenter 
suggested that Federal preemption language be followed by qualifying 
language stating: (1) State licensure is required, and (2) if a 
conflict between ORR's policies or regulations and State law arises, 
the State-licensed program must still follow State licensure 
requirements.
    Response: ORR thanks the commenters for their recommendations. ORR 
declines to require EIFs to be state-licensed because it may be 
essential for emergency or influx facilities to operate in exceptional 
circumstances in which it is not possible to attain State licensure. 
ORR further notes that the FSA does not require facilities operated in 
response to emergency or influx conditions to be state-licensed. 
However, this final rule goes beyond the requirements of the FSA by 
establishing a set of minimum standards applicable to EIFs. ORR notes 
these minimum standards are similar to those described at Sec.  
410.1302. Nevertheless, Sec.  410.1302 and Sec.  410.1801 are separate. 
Section 410.1302 applies to standard programs and secure facilities, 
and Sec.  410.1801 applies to EIFs. While they bear some similarities, 
ORR disagrees that all of the minimum standard requirements for the 
standard programs and secure facilities should apply to emergency or 
influx sites because the priority for these facilities is to provide 
essential services to unaccompanied children when time is of the 
essence. Issues relating to standard programs and secure facilities are 
addressed at subpart D.
    Comment: A few commenters stated that the minimum standards need to 
provide trauma-based staffing criteria or training of staff at influx 
facilities, with one commenter specifically stating this should consist 
of licensed, trained, and trauma-informed child welfare staff who 
should serve as the initial point of contact for any unaccompanied 
children at influx facilities. The commenter stated that influx 
facilities should be prepared to provide culturally and linguistically 
appropriate trauma informed care and have registered and licensed 
nursing and other medical and behavioral health professionals onsite. 
The commenter also emphasized that facilities must be child-centered, 
trauma-informed, and prioritize children's best interests that expedite 
their safe release to family. One commenter stated that when opening an 
emergency or influx facility, it is essential to ensure that staff, 
many of whom may be newly hired in such a facility, are trained in all 
aspects of working with and providing services to unaccompanied 
children.
    Response: ORR thanks the commenter for their input. ORR reiterates 
its belief that a trauma-informed approach to the care and placement of 
unaccompanied children is essential to ensuring that the interests of 
children are considered in decisions and actions relating to their care 
and custody.\314\ ORR emphasizes that pursuant to Sec.  410.1801(b)(16) 
(redesignated as Sec.  410.1801(b)(14) in the final rule), emergency or 
influx facilities must deliver services in a manner that is sensitive 
to the age, culture, native language, and complex needs of each 
unaccompanied child, and must also develop an individual service plan 
for the care of each child. Furthermore, an individualized needs 
assessment must be conducted pursuant to Sec.  410.1801(b)(3), which 
identifies the unaccompanied child's special needs including any 
specific problems which appear to require immediate intervention. ORR 
policies prioritize release to an ORR vetted and approved sponsor when 
release is appropriate as described in subpart C of this rule. ORR 
believes that, in order to comply with the requirements provided under 
Sec.  410.1801(b), EIF staff must have the appropriate professional 
experience and training relevant to working with and providing services 
to unaccompanied children.
    Comment: One commenter expressed concern with the temporary nature 
of placements in an EIF, stating that any temporary operation 
inevitably creates confusion and uncertainty for children and staff. 
The commenter recommended prioritizing the need to appropriately inform 
children in their preferred language about where they are, who is 
responsible for them, the reasons for these arrangements, what to 
expect, and their rights and how to exercise them. The commenter 
further recommended ensuring services that interface with children and 
impact their length of stay, such as case management, are in place from 
the outset, arguing that this is critical to managing children's right 
to information, their expectations, and planning for release from 
custody and unification with family. The commenter stated that children 
should not be placed in a temporary care arrangement that does not have 
a plan in place to manage their eventual release.
    Response: ORR thanks the commenter for their recommendations. ORR 
agrees that minimizing transfers is in the child's best interest and 
therefore seeks to place children in emergency intake sites and influx 
care facilities only when there are exceptional circumstances and only 
for children that meet the criteria for placement in an EIF described 
in this section as discussed in previous responses. ORR notes that at 
Sec.  410.1801(b)(3), EIF sites are required to perform individualized 
needs assessment, which includes the various initial intake forms, 
identification of the unaccompanied child's special needs including any 
specific problems which appear to require immediate intervention, and 
an educational assessment and plan; and a statement of religious 
preference and practice; an assessment of the unaccompanied child's 
personal goals, strengths and weaknesses. ORR agrees with one of the 
commenter's recommendations that some provisions within Sec.  
410.1801(b)(3) that involve planning for release from custody and 
unification with family should be available at the outset at EIFs and 
thus be non-waivable. As a result, ORR will move the provision of 
``Services designed to identify relatives in the United States as well 
as in foreign countries and assistance in obtaining legal guardianship 
when necessary for the release of the unaccompanied child'' out of 
Sec.  410.1801(b)(3) and place it into the newly designated Sec.  
410.1801(c)(10) as a non-waivable provision, while

[[Page 34559]]

adding ``Family unification'' before ``Services'' at the beginning of 
the sentence. Relatedly, ORR will update Sec.  410.1801(b)(3) by 
removing the provisions of ``collection of essential data relating to 
the identification and history of the child and the child's family''; 
``assessment of family relationships and interaction with adults, peers 
and authority figures''; and ``identifying information regarding 
immediate family members, other relatives, godparents or friends who 
may be residing in the United States and may be able to assist in 
connecting the child with family members'' from 410.1801(b)(3) and 
place them into the newly designated 410.1801(c)(11) as a non-waivable 
provision. ORR also notes that it is updating Sec.  410.1801(b)(3) to 
include consideration of whether a child is an indigenous language 
speaker as part of the individualized needs assessment. ORR further 
agrees with commenter recommendations to ensure that children 
understand services that they will interface with, as well as 
understand their right to information and expectations. ORR will 
therefore move what was previously Sec.  410.1801(b)(9) (``A 
comprehensive orientation regarding program intent, services, rules 
(written and verbal), expectations, and the availability of legal 
assistance.'') to the newly designated Sec.  410.1801(c)(12) as a non-
waivable provision and add a clarifying edit that this orientation will 
include information about U.S. child labor laws to conform with 
language in Sec.  410.1302(c)(8)(iii). Additionally, Sec.  
410.1801(b)(16) (redesignated as Sec.  410.1801(b)(14) in the final 
rule) requires that EIFs develop an individual service plan for each 
child. ORR believes these requirements, as well as other requirements 
under Sec.  410.1801(b), will ensure appropriate interfacing with 
children to keep them informed of their rights regarding placement and 
available services.
    Comment: One commenter stated that under Sec.  410.1801(b)(1), the 
nutrition standards should mirror those for standard programs and be 
consistent with USDA recommendations.
    Response: ORR thanks the commenter for their input. ORR believes 
that while the requirement for nutrition standards consistent with USDA 
recommendations is established for standard programs under Sec.  
410.1302(c), ORR must consider the circumstances requiring placement in 
an emergency or influx facility and the need to meet more immediate 
care for needs during periods of influx or emergency such as adequate 
shelter, health and safety, and provision of other required services 
for facilities where housing is meant to be temporary. However, ORR 
agrees with the commenter that further specificity is needed and is 
therefore updating Sec.  410.1801(b)(1) to clarify that EIFs shall 
provide sufficient quantity of food that is appropriate for children, 
as well as drinking water. Although ORR requires the provision of food 
and drinking water in emergency or influx facilities at Sec.  
410.1801(c)(3), this may preclude the availability of food menus and 
the type of variety and quality ORR would normally require. ORR will 
continue to monitor these requirements as they are implemented and may 
consider providing additional specificity through future policymaking.
    Comment: One commenter stated the concern that many children in 
emergency or influx facilities may be proficient in neither English nor 
Spanish, and therefore recommended provision of alternative language 
services.
    Response: ORR thanks the commenter for their concern. ORR is 
clarifying that it will always require the provision of services under 
this subpart in a child's native or preferred language. ORR also notes 
that it is updating Sec.  410.1801(b)(3) to include consideration of 
whether a child is an indigenous language speaker as part of the 
individualized needs assessment. ORR further notes that at Sec.  
410.1802(a) criteria for placement in an emergency or influx facility 
to the extent feasible include that the child speaks English or Spanish 
as their preferred language. If ORR becomes aware that a child does not 
meet any of the criteria at any time after placement into an emergency 
or influx facility, ORR shall transfer the unaccompanied child to the 
least restrictive setting appropriate for that child's need as 
expeditiously as possible.
    Comment: One commenter stated that the inclusion of educational 
services is necessary to ensure that children are actively engaged and 
learning while at an emergency or influx facility. A few commenters 
stated that education services described in Sec.  410.1801(b)(4) should 
be focused on English immersion, with one commenter suggesting to 
concentrates primarily on the integration of the child into a routine 
of education attendance and on foundational English language learning 
rather than on development of basic academic competencies.
    Response: ORR thanks the commenters for their input. ORR notes that 
English language acquisition is already stated as a consideration for 
providing educational services at Sec.  410.1801(b)(4). ORR also 
believes, however, that instructing children in basic academic areas 
such as science, social studies, math, reading, writing, and physical 
education should be a consideration. Instruction is required to be 
given under this section in such languages as needed so that children 
do not miss critical instruction appropriate for the child's level of 
development and communication skills.
    Comment: One commenter suggested that group counseling at Sec.  
410.1801(b)(7) should be better defined, stating that group counseling 
should not include everyone at the site but should be much smaller 
groups based on age and other criteria. Furthermore, the commenter 
stated that greater attention is needed to clarify and clearly state 
the purpose and scope of mental health services in ORR programs.
    Response: ORR thanks the commenter for their input. In relation to 
group counseling, ORR notes that since these sessions are required to 
take place twice per week, children have options as to which session to 
attend and may establish their own preferences based on age of those in 
attendance and other criteria. However, ORR believes it is important to 
allow all unaccompanied children to attend this open forum to speak 
about decisions that affect them such as daily program management and 
to get acquainted with staff. Given the limited nature and availability 
of such sessions and limited capacity of emergency or influx 
facilities, ORR believes that excluding certain children from some 
sessions to establish specialized groupings may be unfair or 
infeasible. ORR notes that it is updating Sec.  410.1801(b)(7) to more 
closely align with the language at Sec.  410.1302(c)(6), which may 
provide additional flexibility for EIFs to facilitate group counseling 
sessions in a way that is appropriate to the unaccompanied children in 
their care.
    Comment: One commenter recommended that ORR focus mental health 
services on stabilization, acculturation, and psychoeducation to 
mitigate future risks due to the duration of the vast majority of stays 
in ORR programs. To support this, the commenter recommended to change 
the language from ``counseling session'' to ``adjustment support'' with 
trained mental health staff. The commenter asserted that ``counseling 
session'' implies a solution-focused service that cannot be reasonably 
accomplished in such a short time period, while adjustment support 
implies to provide transitional well-being support and individualized 
advocacy sounds more feasible.

[[Page 34560]]

    Response: ORR thanks the commenter for their input. ORR notes that 
``counseling session,'' conforms to the language in the FSA and 
therefore ORR disagrees with the recommended change in terms. ORR 
further notes that acculturation and adaptation services are described 
in the next subparagraph at Sec.  410.1801(b)(8) and provides for the 
development of social and interpersonal skills which contribute to 
those abilities necessary to live independently and responsibly. The 
focus of such individual counseling sessions is to establish objectives 
and review progress, and address both the developmental and crisis-
related needs of each child. The provisions in this section do not 
prescribe certain methods for mitigation of risks, but rather require 
trained social work professionals to evaluate and address 
individualized needs on a case-by-case basis.
    Comment: One commenter recommended that proposed Sec.  
410.1801(b)(15), governing emergency or influx facilities, be revised 
as follows: ``(15) Emergency or influx facilities, whether State-
licensed or not, must comply, to the greatest extent possible, with all 
applicable State child welfare laws, and regulations (such as mandatory 
reporting of abuse), and standards, as well as State and local 
building, fire, health and safety codes, that ORR determines are 
applicable to non-State licensed facilities.''
    Response: ORR thanks the commenter for their recommendation, and 
notes that it is updating Sec.  410.1801(b)(15) (redesignated as Sec.  
410.1801(b)(13) in the final rule) to specify ``all'' State child 
welfare laws and regulations, and ``all'' State and local building, 
fire, health and safety codes, as applicable to non-State licensed 
facilities.
    Comment: One commenter sought clarification on accountability 
systems under Sec.  410.1801(b)(17) (redesignated as Sec.  
410.1801(c)(13) in the final rule), stating that it is unclear how this 
section specific to emergency or influx facilities should be integrated 
with similar requirements of all care providers described at Sec.  
410.1303(g) through (h) as proposed in the NPRM (which includes 
emergency facilities). The commenter recommended that if ORR intends to 
use this subsection to emphasize that emergency or influx facilities 
are subject to the minimum requirements of proposed Sec.  410.1303(g) 
or the proposed consolidated section on data safeguarding, it should 
add a cross reference and that if some other meaning is intended, ORR 
should clarify the text of proposed Sec.  410.1801(b)(17) (redesignated 
as Sec.  410.1801(c)(13) in the final rule).
    Response: ORR thanks the commenter for their recommendation. ORR 
notes that Sec.  410.1303(h) (proposed in the NPRM as Sec.  
410.1303(g)) explicitly applies to all care provider facilities 
responsible for the care and custody of unaccompanied children, whether 
the program is a standard program or not. This includes emergency or 
influx facilities. ORR refers readers to paragraph Sec.  410.1303(h) 
for requirements and standards for safeguarding a child's case file. 
ORR notes that Sec.  410.1801(b)(17) (redesignated as Sec.  
410.1801(c)(13) in the final rule) only applies to facilities that meet 
the definition of an EIF under this rule and although it reads 
similarly in part to Sec.  410.1303(i) for maintaining records of case 
files and regularly reporting to ORR, an important distinction for non 
EIFs is the exclusion of language stating ``permit ORR to monitor and 
enforce the regulations in this part'' since not all regulations in 
this part apply to emergency or influx facilities.
    Comment: One commenter recommended that Sec.  410.1801(b)(17) 
(redesignated as Sec.  410.1801(c)(13) in the final rule) explicitly 
outline that children's artistic works should not become a part of the 
official case file, and there is no requirement to retain them.
    Response: ORR thanks the commenter for their recommendation. ORR 
does not believe an amendment to the final rule is necessary, as no 
part of the rule or prior guidance states or implies that artistic 
works be part of the child's official case file.
    Comment: One commenter suggested that Sec.  410.1801(c)(4) should 
provide pediatric medical care to the unaccompanied child instead of 
limiting this to ``if the unaccompanied child is in need of emergency 
services,'' stating that as medical care should be provided whenever 
needed, not just in emergency circumstances. The commenter also 
recommended adding a requirement to maintain full-time pediatric 
medical expertise on site.
    Response: ORR thanks the commenter for their recommendation. ORR 
notes that appropriate routine medical and dental care is among the 
required services at Sec.  410.1801(b)(2) and emergency services are 
specified at Sec.  410.1801(c)(4) to ensure that children have access 
to emergency medical services. ORR notes that ensuring full-time 
pediatric medical expertise is on site is not necessary to ensure 
routine medical and dental needs are met and would exceed the 
requirements for both licensed and unlicensed emergency or influx 
facilities under the FSA. However, ORR will make a clarifying revision 
to Sec.  410.1801(c)(4) that modified medical examinations are non-
waivable at EIFs.
    Comment: One commenter stated that Sec.  410.1801(d) does not make 
clear what factors will be used to determine whether the standards are 
operationally infeasible and what law is referenced. The commenter 
suggested that clearer guidelines should be provided, and that a waiver 
should only be granted in extreme situations. Another commenter 
expressed concern that the waiver language was too broad and 
recommended that the provision be amended or withdrawn.
    Response: ORR thanks the commenters for their input. ORR notes 
that, consistent with existing policies, which implement Congressional 
appropriations requirements,\315\ ORR may grant a waiver of one or more 
standards in this subsection only if the facility has been activated 
for a period of six consecutive months or less; further, ORR would 
consider which standards may be operationally infeasible on a case-by-
case basis. ORR does not agree that no waivers should be permitted or 
that a waiver should be granted only in extreme circumstances, because 
this language is potentially ambiguous and extreme circumstances are 
likely to exist in many situations giving rise to placement in an 
emergency or influx facilities. Instead, ORR believes waivers should be 
limited to situations where one or more standards are in fact 
operationally infeasible and only for facilities that are activated for 
a period of 6 consecutive months or less. ORR believes that this will 
limit the volume and scope of waivers granted under this subsection. 
However, ORR has revised the language of Sec.  410.1801(d) to clarify 
that while waivers may be granted during the first six months of EIF 
activation, these waivers will only be granted to the extent that ORR 
determines that they are necessary because it would be operationally 
infeasible to comply with the specified standards. Further, waivers 
will be granted for no longer than necessary in light of operational 
feasibility. Finally, ORR is also adding language at Sec.  410.1801(d) 
to state that, even where a waiver is granted, EIFs shall make all 
efforts to meet requisite standards under Sec.  410.1801(b) as 
expeditiously as possible.
    Comment: One commenter expressed concern that the rule does not 
explain how ORR will provide oversight to emergency or influx 
facilities or ensure that such facilities comply with ORR's standards 
and with State law. The commenter recommended that ORR

[[Page 34561]]

implement a more comprehensive regime for Federal oversight of 
unlicensed facilities housing unaccompanied children where a State will 
not be providing oversight, including EIFs. The commenter recommended 
that ORR adopt additional monitoring and enforcement functions for 
facilities that are not State-licensed such as requirements for: 
inspection, screening, and documentation, criminal and child abuse and 
neglect background checks, frequency of monitoring visits and 
evaluations receiving, investigating, and responding to complaints; 
enforcement of standards. The commenter urged ORR to allocate 
sufficient staffing and other resources to ensure that oversight of any 
unlicensed facilities is as robust as that which would otherwise have 
been provided by the State in which the facilities are located.
    Response: ORR thanks the commenter for their recommendations. ORR 
notes that, as stated in Sec.  410.1303, it will monitor all care 
provider facilities, including unlicensed standard programs and EIFs 
for compliance with the terms of the regulations in parts 410 and 411 
of this title. With respect to the specific recommendations made by the 
commenters, ORR notes: regarding inspection, screening, and 
documentation, such requirements are already built into the ORR grant 
and contracting process through which grantees and contractors are 
selected to operate care provider facilities, whereby care providers 
agree to such requirements under ORR policies and as consistent with 45 
CFR part 75; regarding background checks for EIF staff, ORR notes that, 
like standard programs, EIFs are subject to requirements set forth at 
45 CFR 411.16; regarding frequency of monitoring visits and evaluations 
and responding to complaints, ORR notes that it would conduct enhanced 
monitoring of EIFs; regarding investigating and responding to 
complaints, ORR notes that the requirements established at Sec.  
410.1303(f) apply to EIFs; and regarding establishing a framework for 
the enforcement of standards at EIFs, ORR notes that Sec.  410.1303 
establishes such a framework, which is in addition to other established 
enforcement mechanisms such as those described at 45 CFR 75.371.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section as proposed in the NPRM with the following 
changes. ORR is making clarifying edits at Sec.  410.1801(b)(1) to 
specify that proper physical care and maintenance includes providing 
children with a sufficient quantity of food and drinking water, 
replacement of ``special needs'' with ``individualized needs'' at Sec.  
410.1801(b)(3), addition of whether the child is an indigenous language 
speaker at Sec.  410.1801(b)(3), removal of ``in the residential 
facility, group or foster home'' at Sec.  410.1801(b)(11), replacement 
of ``deportation'' with ``removal'' at Sec.  410.1801(b)(12), addition 
of the word ``all'' in reference to complying with State child welfare 
laws and regulations to the greatest extent possible at Sec.  
410.1801(b)(15) (redesignated to Sec.  410.1801(b)(13)), and addition 
of the word ``complex'' at Sec.  410.1801(b)(16) (redesignated to Sec.  
410.1801(b)(14)) to more closely align with the language at Sec.  
410.1302(d). ORR is also updating Sec.  410.1801(b)(7) to more closely 
align with the language at Sec.  410.1302(c)(6). As a result of the 
changes discussed in this final rule action, ORR is redesignating Sec.  
410.1801(b)(10) as Sec.  410.1801(b)(9), Sec.  410.1801(b)(11) as Sec.  
410.1801(b)(10), Sec.  410.1801(b)(12) as Sec.  410.1801(b)(11), Sec.  
410.1801(b)(14) as Sec.  410.1801(b)(12), Sec.  410.1801(b)(15) as 
Sec.  410.1801(b)(13), and Sec.  410.1801(b)(16) as Sec.  
410.1801(b)(14). ORR is further updating Sec.  410.1801(b)(3) by moving 
the provision of ``Services designed to identify relatives in the 
United States as well as in foreign countries and assistance in 
obtaining legal guardianship when necessary for the release of the 
unaccompanied child'' from Sec.  410.1801(b)(3) and placing it in the 
newly designated Sec.  410.1801(c)(10) as a non-waivable provision, 
while also adding ``Family unification'' before ``services'' at the 
beginning of the sentence. ORR is also updating Sec.  410.1801(b)(3) by 
removing the provisions of ``collection of essential data relating to 
the identification and history of the child and the child's family''; 
``assessment of family relationships and interaction with adults, peers 
and authority figures''; and ``identifying information regarding 
immediate family members, other relatives, godparents or friends who 
may be residing in the United States and may be able to assist in 
connecting the child with family members'' from Sec.  410.1801(b)(3) 
and placing them into the newly designated Sec.  410.1801(c)(11) as a 
non-waivable provision. ORR is also moving what was previously Sec.  
410.1801(b)(9) (``A comprehensive orientation regarding program intent, 
services, rules (written and verbal), expectations, and the 
availability of legal assistance.'') to the newly designated Sec.  
410.1801(c)(12) and adding a clarifying edit that this orientation will 
include ``information about U.S. child labor laws'' to conform with 
language in Sec.  410.1302(c)(8)(iii)). Additionally, ORR is updating 
Sec.  410.1801(b)(15) (redesignated to Sec.  410.1801(b)(13)) to remove 
language regarding the obligation of ORR employees to comply with their 
responsibilities under Federal law where there is a potential conflict 
between State and Federal law. ORR is moving the provision that was 
proposed previously at Sec.  410.1801(b)(17) in the NPRM (``The EIF 
shall maintain records of case files and make regular reports to ORR. 
EIFs must have accountability systems in place, which preserve the 
confidentiality of client information and protect the records from 
unauthorized use or disclosure.'') into the newly designated Sec.  
410.1801(c)(13) so that the provision is non-waivable for EIFs. ORR is 
also replacing ``arrested'' with ``apprehended'' at Sec.  
410.1801(c)(7). ORR is updating Sec.  410.1801(c)(9) to correctly refer 
to Sec.  410.1309(a). Additionally, ORR is making clarifying edits to 
Sec.  410.1801(d), including the addition of ``waivers are granted in 
accordance with law,'' as well as clarifying edits to make clear how 
long waivers may last, to what extent, and to which parts waivers may 
apply. ORR is also revising Sec.  410.1801(c)(4) to add ``and provide a 
modified medical examination'' after ``services.'' Finally, ORR is 
adding language at Sec.  410.1801(d) to state that, even where a waiver 
is granted, EIFs shall make all efforts to meet requisite standards 
under Sec.  410.1801(b) as expeditiously as possible.
Section 410.1802 Placement Standards for Emergency or Influx Facilities
    ORR proposed in the NPRM at Sec.  410.1802 to codify the criteria 
and requirements for placement of unaccompanied children at emergency 
or influx facilities (88 FR 68958). These requirements are consistent 
with existing ORR policies.\316\
    ORR proposed in the NPRM at Sec.  410.1802(a), that, to the extent 
feasible, unaccompanied children who are placed in an emergency or 
influx facility meet all of the following criteria: the child (1) is 
expected to be released to a sponsor within 30 days; (2) is age 13 or 
older; (3) speaks English or Spanish as their preferred language; (4) 
does not have a known disability or other mental health or medical 
issue or dental issue requiring additional evaluation, treatment, or 
monitoring by a healthcare provider; (5) is not a pregnant or parenting 
teenager; (6) would not have a diminution of legal services as a result 
of the transfer to an unlicensed facility; and (7) is not a

[[Page 34562]]

danger to themselves or to others (including not having been charged 
with or convicted of a criminal offense). Additionally, if ORR becomes 
aware that a child does not meet any of the criteria specified under 
Sec.  410.1802(a) at any time after placement into an emergency or 
influx facility, ORR shall transfer the unaccompanied child to the 
least restrictive setting appropriate for that child's need as 
expeditiously as possible. ORR believes that these criteria will help 
to ensure that the unaccompanied child is placed in a setting that is 
appropriate to accommodate the child's specific needs.
    ORR proposed in the NPRM at Sec.  410.1802(b) that it would also 
consider the following factors for the placement of an unaccompanied 
child in an EIF: (1) the unaccompanied child should not be part of a 
sibling group with a sibling(s) age 12 years or younger; (2) the 
unaccompanied child should not be subject to a pending age 
determination; (3) the unaccompanied child should not be involved in an 
active State licensing, child protective services, or law enforcement 
investigation, or an investigation resulting from a sexual abuse 
allegation; (4) the unaccompanied child should not have a pending home 
study; (5) the unaccompanied child should not be turning 18 years old 
within 30 days of the transfer to an emergency or influx facility; (6) 
the unaccompanied child should not be scheduled to be discharged in 
three days or less; (7) the unaccompanied child should not have a 
current set docket date in immigration court or State/family court 
(juvenile included), not have a pending adjustment of legal status, and 
not have an attorney of record or DOJ Accredited Representative; (8) 
the unaccompanied child should be medically cleared and vaccinated as 
required by the emergency or influx care facility (for instance, if the 
influx care facility is on a U.S. Department of Defense site); and (9) 
the unaccompanied child should have no known mental health, dental, or 
medical issues, including contagious diseases requiring additional 
evaluation, treatment, or monitoring by a healthcare provider. ORR 
believes that these provisions will help support the safe and 
appropriate placement of unaccompanied children in ORR care. For 
purposes of this final rule, ORR further clarifies that these 
categories of children, to include particularly vulnerable children and 
children likely to have extended lengths of stay, would be prioritized 
for initial placement in standard programs as opposed to EIFs; they 
would also be prioritized for transfer to standard programs if 
currently placed at EIFs.
    Comment: One commenter expressed concern that transfers between 
care provider facilities are a barrier to care for the child, given the 
delays that can be experienced from transfers. The commenter 
recommended ORR implement an emergency placement system for children 
with exceptional needs and that intakes should have 24 hours to place 
that child with a safe and appropriate program. The commenter further 
suggested that if a child is placed in an ICF but is then found to not 
meet ICF placement criteria, the child's placement into an appropriate 
facility should be considered under the same criteria as a border 
placement. The commenter suggested that the ORR Intakes team would 
obtain jurisdiction and assign the child to an appropriate program in a 
manner similar to how ORR Intakes placed children arriving from the 
border and that placement responsibility would not fall on the ICF.
    Response: ORR notes that at Sec.  410.1802(a), ORR shall transfer 
the unaccompanied child to the least restrictive setting appropriate 
for that child's need as expeditiously as possible if the child is 
found not to have made the specific criteria stated therein for 
placement at an EIF.
    Comment: One commenter stated that under Sec.  410.1802(a)(4) of 
the NPRM, it was unclear which healthcare professionals determine 
eligibility for having a known disability or other mental health or 
medical issue--including pregnancy--or dental issue requiring 
additional evaluation, treatment, or monitoring by a healthcare 
provider. The commenter recommended that ORR medical staff be the ones 
to complete this assessment and it is preferable for ORR staff to be 
onsite at DHS and aiding in this determination as transfers of 
unaccompanied children between programs is disruptive for the child and 
that steps should be taken to minimize the number of transfers of 
unaccompanied children between ORR facilities. The commenter further 
expressed concern regarding ORR's ability to accurately make the 
assessment of all the criteria for over 100,000 children under proposed 
Sec.  410.1802(a).
    Response: ORR thanks the commenter for their concerns, and first 
clarifies that CBP personnel are not involved in placing unaccompanied 
children in EIFs. Further, ORR understands that when transferring 
unaccompanied children CBP relays available information, which may come 
from a variety of sources (e.g., including officer observations, 
contracted medical care providers, or existing CBP records). After an 
unaccompanied child is transferred into ORR custody, pursuant to its 
authority under the HSA, ORR makes all placement decisions. ORR agrees 
that it is necessary to have information to make appropriate placement 
determinations for children, and bases decisions to place an 
unaccompanied child in an EIF on the criteria described in this 
section, information in the child's case file, and, if the child is 
being transferred into an EIF from another ORR care provider facility, 
recommendations from the child's previous case manager as well as an 
independent reviewer and ORR Federal field staff. In addition, 
consistent with existing policies, ORR does not place particularly 
vulnerable children in EIFs (e.g., children 12 years of age or younger; 
children who are not proficient in English or Spanish; children who 
have a known disability or other mental health or medical issue 
requiring additional evaluation, treatment, or monitoring by a 
healthcare provider; pregnant or parenting teenagers; children who are 
at a documented enhanced risk due to their identification as LGBTQI+). 
If a child is placed into an EIF as an initial placement and as a 
result lacks records sufficient to indicate particular vulnerability 
(i.e., immediately upon transfer into ORR custody from another Federal 
agency), ORR screens such children for the particular vulnerabilities 
within 5 days of EIS placement and continues to monitor children for 
particular vulnerabilities thereafter.
    Comment: One commenter questioned why children turning 18 within 30 
days of the transfer should be excluded from placement at an ICF, 
stating that an unaccompanied child who is within 30 days of turning 18 
and has a potential sponsor who is a parent or legal guardian would be 
best served at an ICF due to the short length of stay. Another 
commenter recommended that an unaccompanied child only be placed in an 
EIF if they are more than 90 days from turning 18 years old, not more 
than 30 days as contemplated by Sec.  410.1802(b)(5) of the NPRM.
    Response: ORR thanks commenters for their input. ORR notes that 
under Sec.  410.1802(a)(1), the expectation that an unaccompanied child 
will be released to a sponsor within 30 days is a factor in favor of 
transfer into an EIF, because in this way, in the event of an emergency 
or influx, ORR can prioritize placement in standard programs for 
children potentially may need to stay in ORR custody for a longer 
period (88 FR 68958). With respect to unaccompanied

[[Page 34563]]

children who are expected to be released to a sponsor within 30 days, 
but who are also within 30 days of turning 18, ORR notes that it would 
determine placement on a case-by-case basis, consistent with its 
responsibility to place unaccompanied children in the least restrictive 
setting that is in the best interest of the child--which requires an 
individualized determination based on a totality of factors. Because 
ORR favors placing unaccompanied children in EIFs whom it expects can 
be released without complications that would typically delay release, 
ORR does not believe at this time that it is necessary to update its 
proposed 30-day criteria for unaccompanied children who are close to 
turning 18.
    Comment: One commenter requested clarification regarding whether 
Sec.  410.1802(b)(8) requires that children be fully vaccinated prior 
to being placed at an ICF.
    Response: ORR clarifies that this paragraph refers to criteria that 
ORR shall use to determine transfer from an EIF and not requirements to 
be placed into an EIF. Regarding vaccination, if the specific EIF site 
requires the child be medically cleared or vaccinated \317\ and ORR 
finds out this condition has not been met, rather than requiring 
children to conform to the facility, ORR shall transfer the 
unaccompanied child to another standard program of appropriate non-EIF 
facility based on the individualized needs of the child as 
expeditiously as possible.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing this section with the following modification to clarify at 
Sec.  410.1802(b)(7), so that it now reads, ``The unaccompanied child 
should not have a current set date in immigration court or State/family 
court (juvenile included), and not have an attorney of record or DOJ 
Accredited Representative.'' ORR is otherwise finalizing this section 
as proposed in the NPRM with the additional clarifications described 
above.

Subpart J--Availability of Review of Certain ORR Decisions

Section 410.1900 Purpose of This Subpart
    Ensuring that placement decisions involving restrictive 
placements,\318\ such as decisions to place unaccompanied children in a 
restrictive placement, to step-up a child to a more restrictive level 
of care, to step-down a child from one restrictive placement to another 
(e.g., from secure to a heightened supervision facility), or to 
continue to keep a child in a restrictive placement, are subject to 
review is fundamental to ensuring unaccompanied children are placed in 
the least restrictive setting that is in their best interest while also 
considering the safety of others and runaway risk. ORR believes that 
establishing the availability of regular administrative reviews helps 
ensure, for the relatively few unaccompanied children that are placed 
in restrictive placements, that such placement is appropriate and based 
on clear and convincing evidence, as discussed in subpart B. In the 
NPRM, ORR noted that its proposals in this subpart are consistent with 
the preliminary injunction issued on August 30, 2022, in Lucas R. v. 
Becerra, as discussed in section III.B.4. of this final rule. ORR 
proposed in the NPRM at Sec.  410.1900 that the purpose of this subpart 
is to describe the availability of review of certain ORR decisions 
regarding the care and placement of unaccompanied children (88 FR 68958 
through 68959).
    Final Rule Action: No public comments were received on this 
section. ORR is finalizing its proposal as proposed.
Section 410.1901 Restrictive Placement Case Reviews
    ORR is required under the TVPRA to place unaccompanied children in 
the least restrictive setting that is in their best interests, and in 
making placements may consider danger to self, danger to the community, 
and runaway risk.\319\ ORR believes that this requirement entails 
consideration of the safety of individual unaccompanied children whom 
it places, as well as the other unaccompanied children who have already 
been placed at the same care provider facility. ORR continually and 
routinely assesses whether an unaccompanied child's placement in a 
restrictive placement meets the criteria for such placements as 
discussed in Sec.  410.1105 Criteria for Placing an Unaccompanied Child 
in Restrictive Placement. ORR proposed in the NPRM, at Sec.  
410.1901(a), in all cases involving restrictive placements, ORR would 
determine, based on clear and convincing evidence, that sufficient 
grounds exist for stepping up or continuing to hold an unaccompanied 
child in a restrictive placement (88 FR 68959). ORR further proposed a 
requirement that the evidence supporting a restrictive placement 
decision be recorded in the unaccompanied child's case file.
    ORR believes that it is imperative that unaccompanied children 
placed in restrictive placements understand the reasons for their 
placement and their rights, including their right to contest such a 
placement and their right to counsel. Therefore, ORR proposed in the 
NPRM at Sec.  410.1901(b), to require that a written Notice of 
Placement (NOP) be provided to unaccompanied children no later than 48 
hours after step-up to a restrictive placement, as well as at least 
every 30 days an unaccompanied child remains in a restrictive placement 
(88 FR 68959). ORR notes that whenever possible, ORR seeks to provide 
NOPs in advance of a step-up to a restrictive placement. ORR further 
proposed requiring that the NOP clearly and thoroughly set forth the 
reason(s) for placement and a summary of supporting evidence under 
Sec.  410.1901(b)(1); inform the unaccompanied child of their right to 
contest the restrictive placement before the Placement Review Panel 
(PRP) upon receipt of the NOP, the procedures by which the 
unaccompanied child may do so, and all other available administrative 
review processes under Sec.  410.1901(b)(2); and include an explanation 
of the unaccompanied child's right to be represented by counsel in 
challenging such restrictive placements under Sec.  410.1901(b)(3). 
Finally, to ensure that the unaccompanied child understands the 
information provided under this paragraph, ORR proposed in the NPRM 
that a case manager would be required to explain the NOP to the 
unaccompanied child, in the child's native or preferred language, 
depending on the child's preference, and in a way the child 
understands, under Sec.  410.1901(b)(4). ORR notes that communications 
with unaccompanied children would be required to meet ORR's language 
access standards under Sec.  410.1306.
    As part of ensuring that unaccompanied children are informed 
regarding their restrictive placement, it is critical that any legal 
counsel or other representative or advocate, and a parent or guardian 
for an unaccompanied child also receive such notification. Therefore, 
ORR proposed in the NPRM at Sec.  410.1901(c), to require that the care 
provider facility provide a copy of the NOP to the unaccompanied 
child's legal counsel of record, legal service provider, child 
advocate, and to a parent or legal guardian of record, no later than 48 
hours after step-up, as well as every 30 days the unaccompanied child 
remains in a restrictive placement (88 FR 68959 through 68960). ORR 
notes that this requirement may be subject to specific child welfare-
related exceptions.
    ORR believes that placements of unaccompanied children in 
restrictive placements should be routinely assessed

[[Page 34564]]

to ensure they meet the criteria at Sec.  410.1105. If an unaccompanied 
child does not meet such criteria, they should accordingly be stepped 
down to a placement that is the least restrictive setting that is in 
their best interest, prioritizing their safety and the safety of 
others. ORR proposed in the NPRM, at Sec.  410.1901(d), to establish 
regular administrative reviews for restrictive placements (88 FR 
68960). ORR proposed in the NPRM regular intervals for administrative 
reviews depending on the type of restrictive placement: 30-day, at 
minimum, for all restrictive placements under Sec.  410.1901(d)(1); and 
more intensive 45-day reviews by ORR supervisory staff for 
unaccompanied children in secure facilities, under proposed Sec.  
410.1901(d)(2).\320\ For unaccompanied children in RTCs, the 30-day 
review at proposed Sec.  410.1901(d)(1) would be required to involve a 
psychiatrist or psychologist to determine whether the unaccompanied 
child should remain in restrictive residential care, under Sec.  
410.1901(d)(3). ORR welcomed public comment on these proposals.
    Comment: One commenter recommended adding to Sec.  410.1901(b)(2) 
that the Notice of Placement (NOP) would inform the child of available 
administrative review processes in their language of preference.
    Response: ORR agrees that children should be informed in their 
native or preferred language consistent with its language access 
requirements under Sec.  410.1306 and is therefore revising Sec.  
410.1901(b) to state that ORR shall provide an unaccompanied child with 
a Notice of Placement (NOP) ``in the child's native or preferred 
language.''
    Comment: Related to unaccompanied children with disabilities, one 
commenter recommended that Sec.  410.1901(a) should require clear and 
convincing evidence that a child cannot be placed in a less restrictive 
facility with additional accommodations or services.
    Response: ORR agrees and is finalizing at Sec.  410.1105(d) that 
ORR's determination whether to place an unaccompanied child in a 
restrictive placement shall include consideration of whether there are 
any reasonable modifications to the policies, practices, or procedures 
of an available less restrictive placement or any provision of 
auxiliary aids and services that would allow the child to be placed in 
that less restrictive facility. ORR agrees that evidence of such 
consideration should be documented in the child's case file, consistent 
with section 504. ORR is also finalizing at Sec.  410.1105(d) that 
ORR's consideration of reasonable modifications and auxiliary aids and 
services to facilitate less restrictive placements shall also apply to 
transfer decisions under Sec.  410.1601 and will be incorporated into 
restrictive placement case reviews under Sec.  410.1901. ORR notes, 
however, that consistent with its finalized proposal at Sec.  410.1311, 
it is not required to take any action that it can demonstrate would 
result in a fundamental alteration in the nature of a program or 
activity. ORR notes further that the final rule incorporates a clear 
and convincing requirement at Sec.  410.1901(a), and that it is 
correcting a technical error to replace ``In all cases involving 
placement in a restrictive setting'' with ``In all cases involving a 
restrictive placement'' in order to use the defined term ``restrictive 
placement.'' Lastly, ORR is clarifying that the burden to determine if 
sufficient grounds exists rests on ORR by adding the phrase ``have the 
burden to'' to Sec.  410.1901(a) so that it states ``In all cases 
involving placement in a restrictive placement, ORR shall have the 
burden to determine, based on clear and convincing evidence, that 
sufficient grounds exist for stepping up or continuing to hold an 
unaccompanied child in a restrictive placement.''
    Comment: One commenter expressed concern about the unaccompanied 
child's and their attorney's access to the evidence related to the 
restrictive placement decision under Sec.  410.1901(a), noting that it 
is critical that the child and their counsel have access to any 
relevant document in advance of a PRP hearing when one is requested.
    Response: ORR agrees that an unaccompanied child and their attorney 
of record must have access to relevant documents in advance of the PRP 
hearing, and notes that ORR is requiring that a summary of evidence 
supporting the restrictive placement be provided with the NOP under 
Sec.  410.1901(b)(1). Under Sec.  410.1902(b), ORR shall permit the 
unaccompanied child or their counsel to review the evidence in support 
of step-up or continued restrictive placement before the PRP review is 
conducted.
    Comment: Several commenters recommended that ORR provide NOPs in 
advance of a step-up to a restrictive placement, stating their belief 
that this would better align with child welfare principles and external 
standards, provide unaccompanied children the opportunity to challenge 
the step-up, and provide unaccompanied children an understanding of 
what is happening before the step-up occurs and of the justification 
for the step-up decision. Several commenters who recommended ORR 
provide NOPs in advance of a step-up to a restrictive setting stated 
they believe unaccompanied children should have the opportunity to 
challenge the step-up, and the reasons for it, before a transfer to the 
restrictive placement occurs. One commenter argued that the lack of 
notice and opportunity to be heard before being transferred to a 
restrictive facility does not comply with international law. Another 
commenter said that ORR could design and implement an independent 
hearing process that takes place before the transfer to a restrictive 
placement happens.
    A few of the commenters who recommended that ORR provide advanced 
notice of step-ups into restrictive placements provided alternatives 
for consideration. One commenter recommended that ORR establish an 
exception that ORR could transfer an unaccompanied child to a 
restrictive placement without prior notice only upon a reasonable 
belief that the child is a present, imminent danger to self or others. 
Another commenter recommended ORR, at minimum, incorporate the intent 
expressed in preamble into the final regulation text that ORR would 
provide NOPs in advance of a step-up to a restrictive placement 
whenever possible.
    Response: ORR's proposal under Sec.  410.1901(b) to provide the NOP 
no later than 48 hours after a step-up does not preclude ORR from 
providing the NOP before the step-up to a restrictive placement occurs 
when it is safe and appropriate to do so. Thus, as ORR emphasized in 
the NPRM preamble, ORR seeks to provide NOPs in advance of a step-up to 
a restrictive placement whenever possible, although ORR is not 
explicitly stating so in the final rule regulation text (88 FR 68959). 
ORR agrees that unaccompanied children must understand the reasons for 
their placement and their rights, including their right to contest such 
a placement and their right to counsel, and for that reason ORR 
proposed in the NPRM the requirements under Sec.  410.1901(b)(1) to 
(4). ORR is finalizing a clarification at Sec.  410.1901(b)(3) that 
unaccompanied children's right to counsel is ``at no cost to the 
Federal Government'' for consistency with 8 U.S.C. 1232(c)(5). ORR 
further notes that its proposals under Sec.  410.1901(b)(1) to (4) are 
consistent with the Lucas R. Court's finding on summary judgment that, 
``in light of the important Government interests at stake, as well as 
the safety of the minors, full pre-deprivation notice and hearing are 
not constitutionally required.'' \321\

[[Page 34565]]

    Comment: Regarding Sec.  410.1901(c) in the NPRM, one commenter 
recommended a clarification that both the attorney at the prior 
facility or the legal service provider at the new, more restrictive 
placement receive the NOP 48 hours within a step-up.
    Response: ORR clarifies that the NOP shall be provided to the 
unaccompanied child's attorney of record and LSP, regardless of whether 
the child has a different attorney of record and LSP at the new, more 
restrictive placement. Related to notice to the child's parent or legal 
guardian, and as is consistent with the Lucas R. preliminary injunction 
and ORR's role as the Federal custodian responsible for the care and 
custody of the child, ORR is adding Sec.  410.1901(c)(1) to state that 
service of the NOP on a parent or legal guardian shall not be required 
where there are child welfare reasons not to do so, where the parent or 
legal guardian cannot be reached, or where a unaccompanied child 14 or 
over states that the unaccompanied child does not wish for the parent 
or legal guardian to receive the NOP. Additionally, ORR is finalizing a 
new provision at Sec.  410.1901(c)(2) to describe child welfare 
rationales, which include but are not limited to, a finding that the 
automatic provision of the notice could endanger the unaccompanied 
child; potential abuse or neglect by the parent or legal guardian; a 
parent or legal guardian who resides in the United States but refuses 
to act as the unaccompanied child's sponsor; or a scenario where the 
parent or legal guardian is non-custodial and the unaccompanied child's 
prior caregiver (such as a caregiver in home country) requests that the 
non-custodial parent not be notified of the placement. Finally, ORR is 
adding Sec.  410.1901(c)(3) to state that when an NOP is not 
automatically provided to a parent or legal guardian, ORR shall 
document, within the unaccompanied child's case file, the child welfare 
reason for not providing the NOP to the parent or legal guardian.
    Comment: One commenter urged ORR to conduct reviews of children's 
restrictive placements within 14 days, rather than the 30-day or 45-day 
marks proposed under Sec.  410.1901(d) of the NPRM to ensure compliance 
with its legal obligation under the TVPRA to place children in the 
least restrictive setting in their best interests. Another commenter 
supported the proposal for periodic administrative reviews and stated 
that international standards also require that until the one-month mark 
after the initial review, there should be a review every seven days so 
that unaccompanied children have multiple opportunities to be assessed 
for step-down or release from restrictive facilities.
    Response: ORR appreciates the commenters' recommendations. ORR 
continues to believe that requiring review of all restrictive 
placements at least every 30 days is a reasonable standard and 
consistent with the TVPRA at 8 U.S.C. 1232(c)(2)(A). ORR does not 
believe Sec.  410.1901(d) prevents more frequent reviews when needed. 
Therefore, Sec.  410.1901(d) states that restrictive placements must be 
reviewed ``at least'' every 30 days, allowing ORR and its care provider 
facilities the flexibility to assess placements more frequently as 
determined appropriate in any given case. As such, ORR believes that 
the frequency of reviews required under Sec.  410.1901(d) will 
reasonably allow ORR to determine whether a restrictive placement 
continues to be warranted.
    Comment: One commenter requested that ORR clarify what is meant by 
``more intensive'' relating to the 45-day review of placements in 
secure facilities under Sec.  410.1901(d)(2) of the NPRM.
    Response: ORR notes that its proposal in the NPRM at Sec.  
410.1901(d)(2) of a 45-day ``more intensive'' review was a technical 
error. In this final rule, ORR is codifying in the final rule at Sec.  
410.1901(d)(2) a ``more intensive'' review every 90 days for 
unaccompanied children in secure facilities to determine whether the 
placement in a secure facility continues to be appropriate or whether 
the child's needs could be met in a less restrictive setting. Ninety 
days is consistent with current ORR policies, and with ORR policies as 
they existed at the time the NPRM was published. These 90-day ``more 
intensive'' reviews are conducted by ORR supervisory staff. Typically, 
those staff review the child's case file, consult with clinical and 
healthcare professionals who have examined or treated the child, and 
discuss the case with the assigned ORR field staff.
    Comment: A few commenters recommended that ORR, in its periodic 
reviews of children in restrictive placements, should require 
consideration of whether reasonable modifications and auxiliary aids 
and services would permit a less restrictive placement for an 
unaccompanied child with disabilities to adequately protect the child's 
rights.
    Response: ORR agrees that periodic reviews should take into 
consideration whether reasonable modifications and auxiliary aids and 
services would permit a less restrictive placement for an unaccompanied 
child with disabilities. Therefore, ORR is adding in new Sec.  
410.1105(d) which provides in pertinent part that, for an unaccompanied 
child with one or more disabilities, restrictive placement case reviews 
under Sec.  410.1901 shall incorporate consideration of reasonable 
modifications and auxiliary aids and services to facilitate less 
restrictive placement.
    Comment: One commenter recommended that periodic reviews include 
additional procedural protections, specifically that the 30-day review 
of a placement in an RTC or OON RTC facility, as described at Sec.  
410.1901(d)(3) of the NPRM, include a detailed and specific review 
prepared by a qualified, licensed psychologist or psychiatrist of the 
mental health needs of the child. The commenter included a list of 
elements that should be required, such as medical assessment of 
diagnoses, prescriptions, and therapeutic interventions, whether the 
child continues to be a danger to self or others, explanation of the 
reasons for continued placement in a restrictive setting, and whether 
there are any reasonable modifications to the policies, practices, or 
procedures of an available less restrictive placement or any provision 
of additional support services or auxiliary aids that would allow the 
child to be placed in a less restrictive facility.
    Response: ORR believes that reviews should be conducted in 
consultation with a qualified licensed psychologist or psychiatrist, 
and should contain sufficiently detailed documentation and for that 
reason incorporated the requirement at Sec.  410.1903(d)(3) for review 
by a psychiatrist or psychologist for children in restrictive 
placements in residential treatment centers. ORR notes that the list of 
elements recommended for the review are consistent with ORR's beliefs, 
but that ORR declines to adopt them into regulation because it prefers 
to continue to use and update its existing guidance to provide more 
detailed requirements for care provider facilities. Lastly, ORR refers 
the commenter to the discussion at Sec.  410.1105(d) where it is 
finalizing a requirement to incorporate consideration of reasonable 
modifications and auxiliary aids and services to facilitate less 
restrictive placement for children with one or more disabilities.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing its proposal as proposed with revisions at Sec.  410.1901(a) 
to replace ``In all cases involving placement in a restrictive setting, 
ORR shall determine'' with ``In all cases involving a restrictive

[[Page 34566]]

placement, ORR shall have the burden to determine;'' at Sec.  
410.1901(b) to state, ``in the child's native or preferred language;'' 
at Sec.  410.1901(b)(3) to add ``at no cost to the Federal 
Government;'' at Sec.  410.1901(c) to replace ``legal counsel'' with 
``attorney;'' at Sec.  410.1901(d)(2), to correct a technical error in 
the NPRM by updating ``45 days'' to ``90 days;'' at Sec.  
410.1901(d)(3) to write out residential treatment center instead of 
``RTC;'' and at Sec.  410.1901(c), to add the following provisions:
    (1) Service of the NOP on a parent or legal guardian shall not be 
required where there are child welfare reasons not to do so, where the 
parent/legal guardian cannot be reached, or where an unaccompanied 
child 14 or over states that the unaccompanied child does not wish for 
the parent or legal guardian to receive the NOP.
    (2) Child welfare rationales include but are not limited to: a 
finding that the automatic provision of the notice could endanger the 
unaccompanied child; potential abuse or neglect by the parent or legal 
guardian; a parent or legal guardian who resides in the United States 
but refuses to act as the unaccompanied child's sponsor; or a scenario 
where the parent or legal guardian is non-custodial and the 
unaccompanied child's prior caregiver (such as a caregiver in home 
country) requests that the non-custodial parent not be notified of the 
placement.
    (3) When an NOP is not automatically provided to a parent or legal 
guardian, ORR shall document, within the unaccompanied child's case 
file, the child welfare reason for not providing the NOP to the parent 
or legal guardian.
Section 410.1902 Placement Review Panel
    ORR believes that unaccompanied children who are placed in a 
restrictive placement should have the ability to request 
reconsideration of their placement at any time after receiving an NOP. 
Consistent with existing policy, under paragraph (a), ORR proposed in 
the NPRM to convene a Placement Review Panel (PRP) when an 
unaccompanied child requests reconsideration of their placement in a 
restrictive placement, for the purposes of reviewing the unaccompanied 
child's reconsideration request (88 FR 68959 through 68960). As stated 
in the NPRM, under current practice, the PRP is a three-member panel 
consisting of ORR's senior-level career staff with requisite experience 
in child welfare, including restorative justice, adverse childhood 
experiences, special populations, and/or mental health. ORR proposed in 
the NPRM at Sec.  410.1902(a), that upon request for reconsideration of 
their placement in a restrictive placement, ORR would afford the 
unaccompanied child a hearing before the PRP, at which the 
unaccompanied child may, with the assistance of counsel if preferred, 
present evidence on their own behalf. An unaccompanied child could 
present witnesses and cross-examine ORR's witnesses if such witnesses 
are willing to voluntarily testify. ORR noted that an unaccompanied 
child and/or their legal counsel of record would be provided with the 
child's case file information, in accordance with ORR's case file 
policies. An unaccompanied child that does not wish to request a 
hearing could also have their placement reconsidered by submitting a 
request for a reconsideration along with any supporting documents as 
evidence.
    ORR proposed in the NPRM at Sec.  410.1902(b), that the PRP would 
afford any unaccompanied children in a restrictive placement the 
opportunity to request a PRP review as soon as the unaccompanied child 
receives an NOP and anytime thereafter.
    ORR proposed in the NPRM at Sec.  410.1902(c), that the ORR would 
require itself to convene the PRP within a reasonable timeframe, to 
allow the unaccompanied child to have a hearing without undue delay. 
ORR proposed in the NPRM to require, at Sec.  410.1902(d), that the PRP 
would issue a decision within 30 calendar days of the PRP request 
whenever possible. ORR believes these requirements would help ensure 
reconsideration requests are decided in a timely manner.
    Finally, ORR believes ORR staff members should be recused from 
participation in a PRP under certain circumstances to help ensure an 
impartial reconsideration of an unaccompanied child's placement. Thus, 
ORR proposed in the NPRM at Sec.  410.1902(e) that an ORR staff member 
who was involved with the decision to step-up an unaccompanied child to 
a restrictive placement could not serve as a Placement Review Panel 
member with respect to that unaccompanied child's placement. ORR 
welcomed public comment on these proposals.
    Comment: A few commenters stated that ORR should include a 
requirement in the final rule for care provider facilities to seek 
legal assistance for unaccompanied children throughout the PRP process. 
Another commenter wrote that ORR should ensure each unaccompanied child 
that requests a PRP has legal representation and a child advocate. One 
commenter urged ORR to clarify that the child has a right to counsel of 
their choosing and a right to present witnesses and evidence under 
Sec.  410.1902.
    Response: ORR is revising its proposal under Sec.  410.1902(a) to 
additionally state that where the child does not have an attorney, ORR 
shall encourage the care provider facility to seek assistance for the 
child from a contracted legal service provider or child advocate. ORR 
believes that unaccompanied children should have the ability to present 
witnesses and evidence, and for that reason, proposed these 
requirements under Sec.  410.1902(a). ORR is also clarifying that the 
assistance of counsel is ``at no cost to the Federal Government'' 
instead of ``if preferred'' for consistency with 8 U.S.C. 1232(c)(5). 
Related to Sec.  410.1902(a) and for consistency with 8 U.S.C. 
1232(c)(5), ORR is clarifying that a child's request to have their 
placement reconsidered without a hearing must be written by adding the 
word ``written'' before request, so that the sentence reads ``An 
unaccompanied child that does not wish to request a hearing may also 
have their placement reconsidered by submitting a written request for a 
reconsideration along with any supporting documents as evidence.'' 
Finally, ORR is clarifying at Sec.  410.1902(a) to add ``child and 
ORR'' to describe the witnesses that may be willing to voluntarily 
testify, so that it reads ``An unaccompanied child may present 
witnesses and cross-examine ORR's witnesses, if such child and ORR 
witnesses are willing to voluntarily testify.''
    Comment: A few commenters recommended that ORR both inform children 
of their right to an interpreter and provide a certified interpreter in 
the child's preferred language at the PRP hearing, noting that this is 
consistent with most State laws and Federal law and would promote 
effective communication and a fair hearing.
    Response: ORR is adding at Sec.  410.1902(a) a requirement that an 
unaccompanied child shall be provided access at the PRP hearing to 
interpretation services in their native or preferred language, 
depending on the unaccompanied child's preference, and in a way they 
effectively understand.
    Comment: A few commenters noted that Sec.  410.1902(a) does not 
specify that unaccompanied children and their attorney will have a 
right to review ORR's evidence before the hearing and will be provided 
the casefile in a reasonable time. One commenter recommended that ORR 
disclose the child's case file and all evidence supporting restrictive 
placement no later than five business days prior to the PRP hearing.

[[Page 34567]]

    Response: ORR is revising its requirement under Sec.  410.1902(b) 
to additionally require that ORR shall permit the child or the child's 
counsel to review the evidence in support of step-up or continued 
restrictive placement, including any countervailing or otherwise 
unfavorable evidence, within a reasonable time before the PRP review is 
conducted. ORR shall also share the unaccompanied child's complete case 
file apart from any legally required redactions with their counsel 
within a reasonable timeframe to be established by ORR to assist in the 
legal representation of the unaccompanied child. ORR recognizes that 
the complete case file will need to be provided with sufficient time 
for the unaccompanied child (and their counsel, if any) to review the 
case file in advance of the PRP review, and for that reason added 
``within a reasonable time'' to its revision of Sec.  410.1902(b).
    Comment: One commenter expressed concern that in the majority of 
States, court review of the secure detention of a child is ensured, and 
that in those States, detention is either time-limited or the child is 
entitled to a rehearing by the court upon request. The commenter 
believed that unaccompanied children should similarly have a right to 
continued placement review through periodic hearings.
    Response: As is consistent with ORR's current policy, under this 
final rule at Sec.  410.1901(d), periodic administrative reviews of 
restrictive placements are automatically conducted every 30 days. In 
accordance with current policy and pursuant to language finalized at 
Sec.  410.1902(a) through (e), unaccompanied children have the 
opportunity, with the assistance of legal counsel at no cost to the 
Federal Government, to make a request for reconsideration of their 
restrictive placement to the PRP, which is comprised of neutral senior-
level career staff who have experience in child welfare, restorative 
justice, adverse childhood experiences, special populations, and mental 
health and must not have been involved in the initial decision to place 
the child in a restrictive setting.
    Comment: A few commenters recommended that ORR provide additional 
procedural protections. One commenter stated their belief that this 
would decrease burden on ORR by eliminating the financial cost and 
administrative challenges of transferring an accompanied child to a new 
placement after a successful PRP challenge. One commenter stated that 
ORR should provide unaccompanied children with NOPs and PRPs, absent a 
present, imminent danger to self or others, before they are stepped up 
to a more restrictive placement and that this would protect the 
unaccompanied children's liberty interests, mental health, and well-
being. Another commenter stated that a specific timeframe for 
scheduling the hearing should be provided, noting that an unaccompanied 
child should not be transferred to the restrictive placement until the 
PRP makes a decision regarding placement of the child.
    A few commenters recommended that ORR should require an automatic 
review of all placements in restrictive settings by the PRP. One 
commenter recommended ORR provide the following timelines for such 
automatic reviews: 5 business days prior to the step-up and no sooner 
than 72 hours after receiving notice of the restrictive placement. 
Another commenter noted their belief that ORR would face minimal burden 
in scheduling automatic PRP reviews. Another commenter added that ORR 
should then allow unaccompanied children, if they choose, to opt-out of 
such hearings. The commenter noted that because many unaccompanied 
children lack the English proficiency or literacy to request a PRP 
review, that automatic PRP reviews are consistent with State juvenile 
proceedings and would ensure the child's private interest in freedom 
from prolonged detention, due process rights, and well-being.
    Response: ORR thanks commenters for their recommendations. Due 
process does not require that ORR provide a PRP review prior to the 
step-up to a more restrictive placement or provide automatic PRP 
reviews. As the Lucas R. Court found on summary judgment, ``in light of 
the important Government interests at stake, as well as the safety of 
the minors, full pre-deprivation notice and hearing are not 
constitutionally required.'' \322\ The Court also did not require 
automatic adversarial hearings for each stepped up unaccompanied child, 
finding that the required 30-day administrative review for all 
restrictive placements, and the more intensive 90-day reviews of 
placements in secure facilities, ``already provide automatic procedural 
safeguards'' for unaccompanied children.\323\
    Comment: One commenter expressed concern that the PRP is not a 
substitute for the FSA's mandatory and automatic juvenile coordinator 
review and approval of all secure placements, noting that it is an 
important safeguard because it eliminates the burden on the child to 
contest the placement in cases where an error could have been 
identified by the juvenile coordinator. The commenter recommended that 
ORR include a requirement for juvenile coordinator review in the final 
rule.
    Response: ORR staff (e.g., a Federal Field Specialist (FFS) or FFS 
Supervisor) perform the function of the juvenile coordinator described 
in FSA paragraph 23 in order to provide the mandatory reviews and 
approvals for all placements in secure facilities. Therefore, at Sec.  
410.1902(a) ORR is adding that ``All determinations to place an 
unaccompanied child in a secure facility that is not a residential 
treatment center will be reviewed and approved by ORR federal field 
staff.''
    Comment: One commenter recommended requiring ORR witnesses to 
testify because they may be crucial to a placement decision, and a 
child does not have the same ability to call them to testify as ORR 
does.
    Response: Under Sec.  410.1902(a) of this final rule, an 
unaccompanied child may present their own witnesses and cross-examine 
ORR's witnesses, if any are willing to voluntarily testify. ORR may, 
but is not required to, call and present its own witnesses.
    Comment: Several commenters recommended that ORR require that the 
placement review panel (PRP) issue a decision within 7 days of a 
hearing and submission of evidence or, if no hearing or review of 
additional evidence is requested, within 7 days following receipt of a 
child's written statement. They noted that ORR could extend this 
deadline as necessary under specified circumstances.
    Response: ORR agrees and is revising Sec.  410.1902(c) to require 
that ORR shall convene the PRP within 7 days of a child's request for a 
hearing, and that ORR may institute procedures to request clarification 
or additional evidence if warranted, or to extend the 7-day deadline as 
necessary under specified circumstances.
    Comment: A few commenters also noted that Sec.  410.1902(d) does 
not require the PRP decision be in writing and recommended that the 
final rule require a written decision. One commenter stated that ORR 
should require the PRP to set forth, in writing, detailed, specific, 
and individualized reasoning for any decision so that the reasoning 
behind the decision is well-documented and there is access to the 
evidence used to make the decision.
    Response: ORR agrees and is accordingly revising Sec.  410.1902(d) 
to require the PRP to issue a written decision within 7 days of a 
hearing and submission of evidence or, if no hearing or review of 
additional evidence is requested, within 7 days following

[[Page 34568]]

receipt of a child's written statement. ORR may institute procedures to 
request clarification or additional evidence if warranted, or to extend 
the 7-day deadline as necessary under specified circumstances. It is 
ORR's existing practice that PRP decisions are detailed, specific, and 
provide individualized reasons because ORR believes this is beneficial 
to unaccompanied children and supports transparency.
    Comment: A few commenters recommended that ORR require that the PRP 
decision be issued or translated in a language the unaccompanied child 
understands, and that the case manager explain the PRP decision to the 
child in a language the child understands and prefers.
    Response: ORR agrees that the PRP decision should be in a language 
the unaccompanied child understands as this is consistent with Sec.  
410.1306 language access requirements for written materials. ORR is 
accordingly revising Sec.  410.1902(d) to require the PRP be issued in 
the child's native or preferred language.
    Comment: A few commenters recommended that ORR state that PRP 
proceedings are separate and apart from the unaccompanied child's 
immigration A-File and not relied upon in any deportation or removal 
hearing or any USCIS adjudication because the potential for a negative 
impact on their immigration case may discourage children from 
exercising their right to the PRP review. One commenter suggested ORR 
clarify that the PRP is conducted exclusively within the scope of ORR's 
duty under the HSA as the custodian of unaccompanied children.
    Response: ORR notes that Sec.  410.1902(a) explicitly provides that 
PRP reviews are conducted for the purpose of determining the 
appropriateness of an unaccompanied child's placement. Placement is a 
defined term in this final rule, and assumes the unaccompanied child is 
in ORR custody. ORR further clarifies, consistent with other parts of 
this preamble, that ORR is not an immigration enforcement authority. 
ORR notes that the A-file is the immigration file which belongs to DHS, 
and not to ORR.
    Comment: One commenter expressed concern that no timeline is 
specified for step-down when the PRP decides the unaccompanied child 
should be moved to a less restrictive setting, and stated if that is 
not possible, ORR should provide a plan for an expeditious step-down to 
the child and their counsel, along with documentation of all efforts to 
find a placement.
    Response: ORR agrees that when the PRP decides an unaccompanied 
child is ready for step-down to a less restrictive setting, the child 
should be stepped down as expeditiously as is possible, consistent with 
Sec.  410.1101(f) in this final rule which would require that all 
facilities accept children absent limited specific reasons (e.g., 
licensing requirements).
    Comment: One commenter requested clarification regarding the 
members of the PRP, including where the PRP would be located 
organizationally within ORR, and whether care provider staff would be 
members of the panel. The commenter recommended the PRP contain both 
administrative as well as field staff to encourage decisions accounting 
for a diversity of experience. Another commenter recommended that Sec.  
410.1902(e) require that all PRP members be neutral and detached 
because they believe this would be consistent with State child welfare 
laws and court decisions.
    Response: The PRP is a three-member panel of ORR senior-level 
career staff, and as such is not organizationally located within any 
certain unit of ORR. ORR's policy currently requires PRP panel members 
have experience in child welfare, including restorative justice, 
adverse childhood experiences, special populations, and/or mental 
health. ORR is finalizing under Sec.  410.1902(e) that panel members 
shall not have been involved with the decision to step-up an 
unaccompanied child to a restrictive placement and believes this 
requirement is sufficient to ensure an impartial reconsideration of 
such placements.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing its proposal as proposed, with the following revisions and 
additions: At Sec.  410.1902(a) ORR is adding that ``All determinations 
to place an unaccompanied child in a secure facility that is not a 
residential treatment center will be reviewed and approved by ORR 
federal field staff.'' ORR is also adding at Sec.  410.1902(a) that 
``Where the minor does not have an attorney, ORR shall encourage the 
care provider facility to seek assistance for the minor from a 
contracted legal service provider or child advocate'', and that ``An 
unaccompanied child shall be provided access at the PRP hearing to 
interpretation services in their native or preferred language, 
depending on the unaccompanied child's preference, and in a way they 
effectively understand.'' At 410.1902(a), ORR is stating ``at no cost 
to the Federal Government'' instead of ``if preferred.'' At Sec.  
410.1902(a) ORR is adding the word ``written'' before request so that 
the sentence reads ``An unaccompanied child that does not wish to 
request a hearing may also have their placement reconsidered by 
submitting a written request for a reconsideration along with any 
supporting documents as evidence.'' At Sec.  410.1902(a) ORR is adding 
``child and ORR'' so that the sentence reads ``An unaccompanied child 
may present witnesses and cross-examine ORR's witnesses, if such child 
and ORR witnesses are willing to voluntarily testify.'' At Sec.  
410.1902(b), ORR is adding that ``ORR shall permit the minor or the 
minor's counsel to review the evidence in support of step-up or 
continued restrictive placement, and any countervailing or otherwise 
unfavorable evidence, within a reasonable time before the PRP review is 
conducted. ORR shall also share the unaccompanied child's complete case 
file apart from any legally required redactions with their counsel 
within a reasonable timeframe to be established by ORR to assist in the 
legal representation of the unaccompanied child.'' At Sec.  
410.1902(c), ORR is revising the text to state that ``ORR shall convene 
the PRP within 7 days of a child's request for a hearing. ORR may 
institute procedures to request clarification or additional evidence if 
warranted, or to extend the 7-day deadline as necessary under specified 
circumstances.'' At Sec.  410.1902(d), ORR is revising the text to 
state that ``The PRP shall issue a written decision in the child's 
native or preferred language within 7 days of a hearing and submission 
of evidence or, if no hearing or review of additional evidence is 
requested, within 7 days following receipt of a child's written 
statement. ORR may institute procedures to request clarification or 
additional evidence if warranted, or to extend the 7-day deadline as 
necessary under specified circumstances.'' Finally, ORR is revising 
language at Sec.  410.1902(e) to replace ``must'' with ``shall.''
Section 410.1903 Risk Determination Hearings
    The decision in Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017), 
held that notwithstanding the passage of the HSA and the TVPRA, 
pursuant to the FSA unaccompanied children in ORR custody continue to 
have the ability to seek a bond hearing before an immigration judge in 
every case, unless waived by the unaccompanied child.\324\ The 
regulations under this section are intended to afford the same type of 
hearing for unaccompanied children, while recognizing that the HSA, 
enacted after the FSA went into effect, transferred the responsibility 
of care and

[[Page 34569]]

custody of unaccompanied children from the former INS to ORR.\325\
    ORR proposed in the NPRM at Sec.  410.1903, to establish a hearing 
process that provides the same substantive protections as immigration 
court bond hearings under the FSA, but through an independent and 
neutral HHS hearing officer (88 FR 68960 through 68962). Further, these 
hearings would take place at HHS rather than the Department of Justice 
(DOJ). ORR explained in the NPRM that this arrangement would parallel 
the arrangement under the FSA because when the FSA was enacted, the 
former INS, which then was responsible for the care and custody of 
unaccompanied children, and the immigration courts were located in the 
same department, DOJ. Similarly, ORR proposed in the NPRM the 
availability of risk determination hearings before hearing officers who 
are within the same department, HHS, but independent of ORR. In the 
NPRM, ORR explained that it believes that utilizing an independent 
hearing officer within HHS would help prevent undue delay for a hearing 
while the unaccompanied child is in ORR care because generally HHS 
hearing officer schedules have greater availability in the short term, 
particularly as compared to immigration courts. ORR noted in the NPRM 
that it codified a similar provision in the 2019 Final Rule which the 
Ninth Circuit held was consistent with the FSA, except to the extent 
the 2019 Final Rule did not automatically place unaccompanied children 
in restrictive placements in bond hearings.\326\ ORR proposed in the 
NPRM to implement a process substantially the same as the one in the 
2019 Final Rule but updated to conform with the Ninth Circuit's ruling.
    Unlike typical ``bond redetermination hearings'' in the immigration 
court context, which refer to an immigration judge's review of a 
custody decision, including any bond set, by DHS,\327\ ORR does not 
require payment of money in relation to any aspect of its care and 
placement of unaccompanied children. Instead, the function of risk 
determination hearings in the ORR context is to determine whether an 
unaccompanied child would be a danger to the community or a runaway 
risk if released. With respect to these functions, ORR notes, first, 
that consistent with its discretion as described at 8 U.S.C. 
1232(c)(2)(A), it does not consider runaway risk when making release 
decisions regarding unaccompanied children in its care. As a result, 
unlike when the FSA was implemented in 1997, runaway risk is no longer 
a relevant issue in risk determination hearings for unaccompanied 
children.\328\ Therefore, the relevant issue for risk determination 
hearings for unaccompanied children is whether they would present a 
danger if released from ORR custody. With respect to this function, ORR 
notes that for the great majority of unaccompanied children in ORR 
custody, it has determined they are not a danger and therefore has 
placed them in non-restrictive placements such as shelters and group 
homes. These unaccompanied children remain in ORR care only because a 
suitable sponsor has not yet been found and approved. ORR also notes 
that if an unaccompanied child is found not to be a danger to self or 
others through a hearing described in this section, such a finding may 
be relevant to questions of placement and release, but any change of 
placement or potential release must be implemented consistent with the 
other requirements of this part (e.g., subparts B, C, and G). 
Therefore, in hearings described in this section, an ALJ is unable to 
order the release or change in placement of an unaccompanied child. The 
ALJ rules only on the question of danger to self or the community.
    ORR proposed in the NPRM at Sec.  410.1903(a), to codify that all 
unaccompanied children in restrictive placements would be afforded a 
risk determination hearing before an independent HHS hearing officer to 
determine, through a written decision, whether the unaccompanied child 
would present a risk of danger to the community if released, unless the 
unaccompanied child indicates in writing that they refuse such a 
hearing (88 FR 68960). For all other unaccompanied children in ORR 
custody, ORR proposed in the NPRM that they may request such a hearing.
    ORR proposed in the NPRM a process for providing notifications and 
receiving requests related to risk determination hearings (88 FR 
68960). ORR proposed in the NPRM at Sec.  410.1903(a)(1), to require 
that requests under this section be made in writing by the 
unaccompanied child, their attorney of record, or their parent or legal 
guardian by submitting a form provided by ORR to the care provider 
facility or by making a separate written request that contains the 
information requested in ORR's form. ORR proposed in the NPRM at Sec.  
410.1903(a)(2), that unaccompanied children in restrictive placements 
based on a finding of dangerousness would automatically be provided a 
risk determination hearing, unless they refuse in writing. They would 
also receive a notice of the procedures under this section and would be 
able to use a form provided to them to decline a hearing under this 
section. ORR proposed in the NPRM that unaccompanied children in 
restrictive placements may decline the hearing at any time, including 
after consultation with counsel. ORR would require that such choice be 
communicated to ORR in writing.
    ORR proposed in the NPRM procedures related to risk determination 
hearings so that the roles of each party are clear (88 FR 68960 through 
68961). ORR proposed in the NPRM at Sec.  410.1903(b), that it would 
bear an initial burden of production, providing relevant arguments and 
documents to support its determination that an unaccompanied child 
would pose a danger if discharged from ORR care and custody. ORR 
proposed in the NPRM that the unaccompanied child would have a burden 
of persuasion to show that they would not be a danger to the community 
if released, under a preponderance of the evidence standard. ORR notes 
that it has established a subregulatory process to ensure access to 
case files and documents for unaccompanied children and their legal 
counsel in a timely manner for these purposes. ORR proposed in the NPRM 
at Sec.  410.1903(c), the unaccompanied child would have the ability to 
be represented by a person of the unaccompanied child's choosing, would 
be permitted to present oral and written evidence to the hearing 
officer, and would be permitted to appear by video or teleconference. 
Finally, ORR proposed in the NPRM that ORR may also choose to present 
evidence at the hearing, whether in writing, or by appearing in person 
or by video or teleconference.
    ORR also proposed regulations related to hearing officers' 
decisions in risk determination hearings (88 FR 68961). First, ORR 
proposed in the NPRM at Sec.  410.1903(d), a decision that an 
unaccompanied child would not be a danger to the community if released 
would be binding upon ORR unless appealed. ORR believes that 
unaccompanied children must also have the opportunity to appeal 
decisions finding that they are a danger to the community if released. 
However, HHS does not have a two-tier administrative appellate system 
that closely mirrors that of the EOIR within the DOJ, where immigration 
court decisions may be appealed to the Board of Immigration Appeals. To 
provide similar protections without such a two-tier system, under Sec.  
410.1903(e) of the NPRM, ORR proposed that decisions under this section 
may be appealed to the Assistant Secretary of ACF, or the Assistant

[[Page 34570]]

Secretary's designee. ORR proposed in the NPRM that appeal requests be 
in writing and be received by the Assistant Secretary or their designee 
within 30 days of the hearing officer's decision under Sec.  
410.1903(e)(1). Under Sec.  410.1903(e)(2), ORR is proposing that the 
Assistant Secretary, or their designee, will reverse a hearing officer 
decision only if there is a clear error of fact, or if the decision 
includes an error of law. Further, ORR proposed in the NPRM at Sec.  
410.1903(e)(3), that if the hearing officer finds that the 
unaccompanied child would not pose a danger to the community if 
released, and such decision would result in ORR releasing the 
unaccompanied child from its custody (e.g., because ORR had otherwise 
completed its assessment for the release of the unaccompanied child to 
a sponsor, and the only factor preventing release was its determination 
that the unaccompanied child posed a danger to the community), an 
appeal to the Assistant Secretary would not effect a stay of the 
hearing officer's decision, unless the Assistant Secretary or their 
designee issues a decision in writing within five business days of such 
hearing officer decision that release of the unaccompanied child would 
likely result in a danger to the community. ORR proposed in the NPRM to 
require that such a stay decision must include a description of 
behaviors of the unaccompanied child while in ORR custody and/or 
documented criminal or juvenile behavior records from the unaccompanied 
child demonstrating that the unaccompanied child would present a danger 
to community, if released.
    Alternatively, ORR considered an appeal structure under which a 
politically accountable official (e.g., the Assistant Secretary of 
ACF), or their designee would have discretion to conduct de novo review 
of hearing officer determinations. As under the proposed approach, the 
official conducting de novo review would be able to reverse hearing 
officer determinations. But the official would not be constrained to 
reversing hearing officer determinations based only on clear error of 
fact, or error of law. Instead, the official would step into the 
position of the hearing officer and re-decide the issues. ORR requested 
comments as to whether it should adopt this alternative scheme.
    ORR reiterates that in the context of risk determination hearings, 
although a finding of non-dangerousness may ultimately result in an 
unaccompanied child's release, neither the hearing officer nor the 
Assistant Secretary, on appeal, may order the release or change of 
placement of an unaccompanied child, because release or change of 
placement implicate additional requirements described in this part 
(e.g., sponsor suitability assessment, in the case of release; or 
available bed space at a suitable care provider facility, in the case 
of a change of placement). Placement and release decision-making 
authority is vested in the Director of ORR under the HSA and 
TVPRA.\329\ The fundamental question at issue in an ORR risk 
determination hearing is whether an unaccompanied child would pose a 
danger to the community if released. Having said that, to the extent 
the hearing officer or Assistant Secretary, or designee, makes other 
findings with respect to the unaccompanied children, ORR will consider 
those in making placement and release decisions. For example, if a 
hearing officer finds that the child is not a flight risk, ORR will 
consider that finding when assessing the child's placement and 
conditions of placement--though the decision does not affect release 
because ORR does not determine flight risk for purposes of deciding 
whether a child will be released.
    ORR proposed in the NPRM at Sec.  410.1903(f) that decisions under 
this section would be final and binding on the Department, meaning, for 
example, that when deciding whether to release an unaccompanied child 
(in accordance with the ordinary procedures on release for 
unaccompanied children as discussed in subpart C of this rule), the ORR 
Director would not be able to disregard a determination that an 
unaccompanied child is not a danger (88 FR 68961). Further, in the case 
of an unaccompanied child who was determined to pose a danger to the 
community if released, the child would be permitted to seek another 
hearing under this section only if they can demonstrate a material 
change in circumstances. Similarly, because ORR may not have located a 
suitable sponsor at the time a hearing officer issues a decision, it 
may find that circumstances have changed by the time a sponsor is found 
such that the original hearing officer decision should no longer apply. 
Therefore, ORR proposed that it may request the hearing officer to make 
a new determination under this section if at least one month has passed 
since the original decision, and/or ORR can show that a material change 
in circumstances means the unaccompanied child should no longer be 
released due to presenting a danger to the community. Based on 
experience under current policies, ORR stated that one month is a 
reasonable length of time for a material change in circumstances to 
have occurred and best balances operational constraints with the safety 
concerns of all children under ORR care. It also ensures that children 
who have newly exhibited dangerous behaviors are accurately 
adjudicated. ORR notes that it previously proposed and finalized this 
same length of time (one month) in the 2019 Final Rule. ORR notes that 
because it always seeks to release an unaccompanied child to a sponsor 
whenever appropriate, ORR can make determinations to release a child 
previously determined to be a danger to the community without a new 
risk determination hearing because the purpose of a risk determination 
hearing is to ensure a child who is not a danger to the community is 
not kept in ORR custody.
    ORR proposed in the NPRM at Sec.  410.1903(g) that this section 
cannot be used to determine whether an unaccompanied child has a 
suitable sponsor, and neither the hearing officer nor the Assistant 
Secretary, or the Assistant Secretary's designee, would be authorized 
to order the unaccompanied child released (88 FR 68961 through 68962). 
This means that an unaccompanied child that has been determined by a 
hearing officer to not present a danger would only be released in 
accordance with the ordinary procedures on release for unaccompanied 
children as discussed in subpart C of this rule.
    Finally, ORR proposed in the NPRM at Sec.  410.1903(h) that this 
section may not be invoked to determine an unaccompanied child's 
placement while in ORR custody or to determine level of custody for the 
unaccompanied child (88 FR 68962). Under this section, the purpose of a 
risk determination hearing is only to determine whether an 
unaccompanied child presents a danger to the community if released, not 
to determine placement or level of custody. ORR would determine 
placement and level of custody as part of its ordinary procedures for 
the placement of unaccompanied children as discussed in subpart B of 
this final rule. That said, ORR would be able to take into 
consideration the hearing officer's decision on an unaccompanied 
child's level of danger (and runaway risk) for those purposes.
    For purposes of this final rule, as further explained below at 
Final Rule Action, ORR notes that it is amending this section to 
reorganize certain provisions proposed in the NPRM, including 
consolidation of certain provisions; and to make changes regarding the 
burden of proof. ORR is revising Sec.  410.1903(a) to encompass the

[[Page 34571]]

requirements of former Sec. Sec.  410.1903(a) and (a)(1) in the NPRM so 
that it states ``All unaccompanied children in restrictive placements 
based on a finding of dangerousness shall be afforded a hearing before 
an independent HHS hearing officer, to determine, through a written 
decision, whether the unaccompanied child would present a risk of 
danger to self or to the community if released, unless the 
unaccompanied child indicates in writing that they refuse such a 
hearing. Unaccompanied children placed in restrictive placements shall 
receive a written notice of the procedures under this section and may 
use a form provided to them to decline a hearing under this section. 
Unaccompanied children in restrictive placements may decline the 
hearing at any time, including after consultation with counsel.''
    ORR is revising new Sec.  410.1903(b) to incorporate the 
requirements of former Sec.  410.1903(a)(2) in the NPRM so that it 
states ``All other unaccompanied children in ORR custody may request a 
hearing under this section to determine, through a written decision, 
whether the unaccompanied child would present a risk of danger to self 
or to the community if released. Requests under this section must be 
made in writing by the unaccompanied child, their attorney of record, 
or their parent or legal guardian by submitting a form provided by ORR 
to the care provider facility or by making a separate written request 
that contains the information requested in ORR's form.''
    For clarity, ORR is also revising new Sec.  410.1903(i) (formerly 
Sec.  410.1903(g) in the NPRM) to remove the phrase ``and neither the 
hearing officer nor the Assistant Secretary may order the unaccompanied 
child released'' and new Sec.  410.1903(j) (formerly Sec.  410.1903(h) 
to remove ``This section may not be invoked to determine the 
unaccompanied child's placement while in ORR custody. Nor may this 
section be invoked to determine the level of custody for the 
unaccompanied child'' and replace it with ``Determinations under this 
section will not compel an unaccompanied child's release; nor will 
determinations under this section compel transfer of an unaccompanied 
child to a different placement. Regardless of the outcome of a risk 
determination hearing or appeal, an unaccompanied child may not be 
released unless ORR identifies a safe and appropriate placement 
pursuant to subpart C; and regardless of the outcome of a risk 
determination hearing or appeal, an unaccompanied child may only be 
transferred to another placement by ORR pursuant to requirements set 
forth at subparts B and G.''
    Comment: One commenter requested clarity regarding where 
independent hearing officers within HHS would be located 
organizationally and emphasized the importance of hearing officers 
having the proper knowledge and qualifications to preside over risk 
determination hearings. Another commenter was concerned that a hearing 
before a hearing officer within HHS would eliminate the right of an 
unaccompanied child to have a hearing before an immigration judge, and 
that there would be an inherent conflict of interest between ORR's role 
as custodian and decision-maker relating to release.
    Response: The independent HHS hearing officers described in this 
final rule will be administrative law judges (ALJs) that are situated 
within HHS's Departmental Appeals Board (DAB). DAB ALJs are appointed 
by the Secretary of HHS, and as such, are independent of ORR. Further, 
they have the appropriate experience and credentials to preside over 
risk determination hearings.
    ORR also notes that the Ninth Circuit found that ORR's similar 
requirement in the 2019 Final Rule was not a material departure from 
the FSA, and that ``shifting bond redetermination hearings for 
unaccompanied minors from immigration judges, adjudicators employed by 
the Justice Department, to independent adjudicators employed by HHS is 
a permissible interpretation of the Agreement, so long as the shift 
does not diminish the due process rights the Agreement guarantees.'' 
\330\ Consistent with the Ninth Circuit's holding, ORR does not agree 
with the commenters that there is a conflict of interest in providing 
risk determination hearings before HHS independent hearing officers, 
who are ALJs. ORR anticipates that the independent hearing officers 
will accrue specialized expertise allowing them to make adjudications 
more quickly and effectively than immigration judges who remain largely 
unfamiliar with ORR policies and practices.
    Comment: One commenter noted that risk determination hearings are 
proposed to be available to unaccompanied children determined by ORR to 
pose a danger to the community, but that the proposed rule did not 
specify the availability of such hearings for a child determined by ORR 
to pose a danger to self. The commenter believes that the child must 
have the ability to challenge such a determination under this section.
    Response: ORR clarifies its intent that risk determination hearings 
are available to unaccompanied children determined by ORR to pose a 
danger to self. To make that more explicit, in the final rule at Sec.  
410.1903(a) ORR will specify that an unaccompanied child whom ORR 
determines is a ``danger to self or to the community if released'' will 
have the opportunity to challenge such a determination in a risk 
determination hearing.
    Comment: One commenter believes that ORR should guarantee the 
appointment of counsel to represent unaccompanied children in risk 
determination hearings, as the outcome directly impacts their liberty.
    Response: ORR will make legal services available for unaccompanied 
children, subject to budget appropriations, consistent with 8 U.S.C. 
1232(c)(5) and as finalized under Sec.  410.1309 of this part. ORR is 
not able to guarantee the appointment of counsel to represent 
unaccompanied children in risk determination hearings due to budgetary 
fluctuations year to year.
    Comment: One commenter expressed concern that some unaccompanied 
children who are not placed in a restrictive placement may still be 
determined as dangerous and subject to restrictive measures even though 
they are not placed in a restrictive placement, and should nevertheless 
receive an automatic risk determination hearing, like unaccompanied 
children who are placed in a restrictive placement.
    Response: ORR will provide automatic risk determination hearings to 
unaccompanied children in restrictive placements due to a determination 
of dangerousness. A restrictive placement may deprive an unaccompanied 
child of certain liberties due to stricter security measures in those 
facilities. ORR does not believe that unaccompanied children in non-
restrictive facilities need automatic hearings because such settings do 
not restrict children's liberty to the same degree. Yet even so, under 
this final rule, all unaccompanied children in non-restrictive 
placements may request a risk determination hearing. ORR expects, 
however, that in cases involving unaccompanied children in non-
restrictive placements, it typically would not consider the children to 
be a danger to self or others, and so it would send notice to the ALJ 
of that point. Subject to the relevant procedures established by the 
DAB, such notice may obviate the need for a hearing. ORR informs all 
unaccompanied children of their ability to request a risk determination 
hearing during their orientation and makes

[[Page 34572]]

request forms available to them at all times.
    Comment: One commenter requested clarification of what constitutes 
a finding of dangerousness under Sec.  410.1903(a)(2).
    Response: ORR refers the commenter to the factors it considers for 
placing unaccompanied children under Sec.  410.1103(b), including 
whether an unaccompanied child presents a danger to self or others, 
consistent with the factors the Secretary of HHS may consider under the 
TVPRA at 8 U.S.C. 1232(c)(2)(A) in making placement determinations for 
unaccompanied children (88 FR 68921).
    Comment: One commenter stated that ORR should inform children of 
their right to contest the hearing officer's findings following a risk 
determination hearing.
    Response: As stated in proposed Sec.  410.1903(e), an 
administrative law judge's decision under this section may be appealed 
by either the unaccompanied child or ORR to the Assistant Secretary of 
ACF, or the Assistant Secretary's designee (88 FR 68961). ORR will 
ensure the child is aware of the right to appeal in a written notice 
provided consistent with Sec.  410.1903(a).
    Comment: A few commenters recommended that ORR unambiguously state 
in the regulations that a child has a right to review ORR's evidence 
within a reasonable time in advance of a risk determination hearing or, 
alternatively, specify that ORR's evidence at the risk determination 
hearing will be limited to the evidence provided to the child as part 
of the NOP in a restrictive placement.
    A few commenters also stated the proposed regulations should 
further clarify that ORR bears the burden of proof, with one commenter 
recommending a beyond a reasonable doubt standard and others suggesting 
a clear and convincing standard. Another commenter recommended that ORR 
should bear the burden of proving the legitimacy of placement 
determinations, which commenter asserted is supported by Federal case 
law.
    Response: In response to the commenters' suggestions about the 
burden of proof in a risk determination hearing, ORR has revised Sec.  
410.1903(c) to state that ORR will bear the burden of proof by clear 
and convincing evidence that the unaccompanied child would pose a 
danger to self or others if released from ORR's custody. This revision 
is consistent with the burden applied in PRP reviews, as discussed in 
Sec.  410.1902.
    In order to enable an unaccompanied child and their counsel to 
prepare for a risk determination hearing, ORR has clarified at Sec.  
410.1903(e) that within a reasonable time prior to a hearing, ORR will 
provide to the unaccompanied child and their counsel the evidence and 
information supporting ORR's determination, including the evidentiary 
record.
    Comment: One commenter recommends that ORR use clearer language to 
describe unaccompanied children's right to counsel, a right to present 
evidence, and a right to present and cross-examine witnesses.
    Response: Section 410.1903 of the final rule includes additional 
procedural protections for unaccompanied children. First, new Sec.  
410.1903(d) (previously Sec.  410.1903(c) in the NPRM) states that the 
unaccompanied child may be represented by a person of their choosing, 
which may include counsel, and may present oral and written evidence to 
the hearing officer and may appear by video or teleconference. Also, 
new Sec.  410.1903(e) requires ORR to provide the unaccompanied child 
and their counsel the evidence and information supporting ORR's 
dangerousness determination, including the evidentiary record, within a 
reasonable time prior to the hearing.
    Comment: A few commenters stated that only allowing an 
unaccompanied child to seek another hearing under this section if they 
can demonstrate a material change in circumstances is in violation of 
the FSA's stated policy favoring release. The commenters expressed 
concern that ORR may request reconsideration every month while barring 
the child from requesting reconsideration absent a material change and 
recommended that ORR either establish a policy permitting recurring 
risk determination hearings for children detained long-term or permit 
an unaccompanied child to request a new hearing under the same bases as 
ORR.
    Response: As an initial matter, the FSA did not include a right to 
recurring bond hearings, which, among other things, would create an 
enormous administrative burden on the Agency without offering any 
additional procedural protections to an unaccompanied child. The final 
rule permits the unaccompanied child to request a new hearing if they 
can demonstrate a ``material change in circumstances.'' Without such a 
material change in circumstances, the hearing officer would have no new 
evidence to review and consider, rendering a new hearing superfluous. 
ORR is revising new Sec.  410.1903(h) (previously Sec.  410.1903(f) in 
the NPRM), however, to state that ORR may only seek a new hearing if 
ORR can show a material change in circumstances as well, which is 
consistent with the unaccompanied child's standard for reconsideration.
    Final Rule Action: After consideration of public comments, ORR is 
finalizing Sec.  410.1903 as follows: ORR is updating throughout Sec.  
410.1903 to replace ``danger to the community'' with ``danger to self 
or to the community;'' ORR is revising Sec.  410.1903(a) to encompass 
the requirements of former Sec. Sec.  410.1903(a) and (a)(1) in the 
NPRM so that it states, ``All unaccompanied children in restrictive 
placements based on a finding of dangerousness shall be afforded a 
hearing before an independent HHS hearing officer, to determine, 
through a written decision, whether the unaccompanied child would 
present a risk of danger to self or to the community if released, 
unless the unaccompanied child indicates in writing that they refuse 
such a hearing. Unaccompanied children placed in restrictive placements 
shall receive a written notice of the procedures under this section and 
may use a form provided to them to decline a hearing under this 
section. Unaccompanied children in restrictive placements may decline 
the hearing at any time, including after consultation with counsel.''
    ORR is revising new Sec.  410.1903(b) to incorporate the 
requirements of former Sec.  410.1903(a)(2) in the NPRM so that it 
states ``All other unaccompanied children in ORR custody may request a 
hearing under this section to determine, through a written decision, 
whether the unaccompanied child would present a risk of danger to self 
or to the community if released. Requests under this section must be 
made in writing by the unaccompanied child, their attorney of record, 
or their parent or legal guardian by submitting a form provided by ORR 
to the care provider facility or by making a separate written request 
that contains the information requested in ORR's form;'' at new Sec.  
410.1903(c) (formerly Sec.  410.1903(b) in the NPRM) to use the term 
``proof'' instead of ``production'' and ``persuasion'', at new Sec.  
410.1903(h) (formerly Sec.  410.1903(f) in the NPRM) to remove the 
phrase ``if at least one month has passed since the original decision, 
and'' and replace it with ``only if;'' at new Sec.  410.1903(i) 
(formerly Sec.  410.1903(g) in the NPRM) to remove the phrase ``and 
neither the hearing officer nor the Assistant Secretary may order the 
unaccompanied child released;'' and new Sec.  410.1903(j)

[[Page 34573]]

(formerly Sec.  410.1903(h) in the NPRM) to remove ``This section may 
not be invoked to determine the unaccompanied child's placement while 
in ORR custody. Nor may this section be invoked to determine the level 
of custody for the unaccompanied child'' and replace it with 
``Determinations under this section will not compel an unaccompanied 
child's release; nor will determinations under this section compel 
transfer of an unaccompanied child to a different placement. Regardless 
of the outcome of a risk determination hearing or appeal, an 
unaccompanied child may not be released unless ORR identifies a safe 
and appropriate placement pursuant to subpart C; and regardless of the 
outcome of a risk determination hearing or appeal, an unaccompanied 
child may only be transferred to another placement by ORR pursuant to 
requirements set forth at subparts B and G.''

Subpart K--UC Office of the Ombuds

    Subpart K of this final rule is issued by the Secretary of HHS 
pursuant to his retained authority under the TVPRA, rather than by ORR. 
This is to ensure the new office's independence from ORR.
    The NPRM proposed to establish an independent ombuds office that 
would promote important protections for all children in ORR care (88 FR 
68962). An ombuds office to address unaccompanied children's issues 
does not currently exist, and HHS believes that the creation of an 
ombuds office would advance its duty to ``ensur[e] that the interests 
of the child are considered in decisions and actions relating to the 
care and custody of an unaccompanied alien child.'' \331\ An ombuds for 
the UC Program would be an independent, impartial, and confidential 
public official with authority and responsibility to receive, 
investigate and informally address complaints about Government actions, 
make findings and recommendations and publicize them when appropriate, 
and publish reports on its activities. Although an ombud's office would 
not have authority to compel HHS or ORR to take certain actions, HHS 
believes an Office of the Ombuds would provide a mechanism by which 
unaccompanied children, sponsors, and other stakeholders, including 
federal staff and care provider facility staff, could confidentially 
raise concerns with an independent, impartial entity that could conduct 
investigations and make recommendations regarding program operations 
and decision-making, and refer concerns to other Federal agencies 
(e.g., HHS Office of the Inspector General, Department of Justice, 
etc.) or entities. HHS believes that an Office of the Ombudsman is a 
sound solution to serve a similar function as the oversight currently 
provided by the Flores monitor. While this section would not create an 
oversight mechanism with authorities that equate with court oversight 
under a consent decree, HHS notes that it is important to maintain an 
independent mechanism to identify and report concerns regarding the 
care of unaccompanied children; it further believes that this 
independent mechanism should have the ability to investigate such 
claims, to work collaboratively with HHS and ORR to potentially resolve 
such issues and publish reports on its activities. HHS therefore 
proposed to add new subpart K to part 410 to establish the UC Office of 
the Ombuds.
Key Principles of an Office of the Ombuds
    HHS reviewed literature published by several national 
organizations--including the Administrative Conference of the United 
States (ACUS), American Bar Association (ABA), International Ombudsman 
Association (IOA), the United States Ombudsman Association (USOA), and 
the Coalition of Federal Ombudsman (COFO)--pertaining to standards of 
practice and establishment of ombuds offices.\332\ The literature 
identifies independence, confidentiality, and impartiality as core 
standards of any Federal ombuds office. The literature also identifies 
common definitional characteristics among Federal ombuds offices, such 
as informality (i.e., ombuds offices do not make decisions binding on 
the agency or provide formal rights-based processes for redress) and a 
commitment to credible practices and procedures. In addition, most 
ombuds offices adhere to the concepts of providing credible review of 
the issues that come to the office, a commitment to fairness, and 
assistance in the resolution of issues without making binding agency 
decisions.\333\ These attributes align with HHS's goals for the 
creation of an office that can provide an independent and impartial 
body that can receive reports and grievances regarding the care, 
placement, services, and release of unaccompanied children. The NPRM 
therefore included a proposal for the creation of an Office of the 
Ombuds that incorporates lessons and recommendations identified in the 
2016 ACUS report, follows the model of other established Federal ombuds 
offices, and takes into consideration feedback from interested parties 
(88 FR 68962).
    Comment: A few commenters recommended the Office of the Ombuds 
finalize minimum standards for a credible review process based upon the 
United States Ombudsman Association (USOA) Governmental Ombudsman 
Standards.
    Response: HHS thanks commenters and may take into consideration 
whether to adopt standards for a credible review process for the new 
Office of the Ombuds consistent with those from the USOA Governmental 
Ombudsman Standards and from other nationally recognized ombuds 
organizations. However, HHS notes that such standards would be 
promulgated through a future regulatory or subregulatory process to 
more efficiently reflect standards as they evolve. Further, HHS 
anticipates this future process would be undertaken by ACF or the 
Office of the Ombuds, consistent with its independence from ORR.
Section 410.2000 Establishment of the UC Office of the Ombuds
    Sec.  410.2000 of the NPRM described the establishment of a UC 
Office of the Ombuds (88 FR 68962). As the literature identified 
independence of the office as one of the key standards of an ombuds, 
HHS proposed in the NPRM at Sec.  410.2000(a) that the ombuds will 
report directly to the ACF Assistant Secretary and will be managed as a 
distinct entity separate from the UC Program. HHS requested input on 
options relating to placement and reporting structure of this office 
within ORR or in another part of ACF.
    HHS proposed in the NPRM at Sec.  410.2000(b), that the UC Office 
of the Ombuds would be an independent, impartial office with authority 
to receive and investigate complaints and concerns related to 
unaccompanied children's experiences in ORR care confidentially and 
informally. This paragraph captured two additional key standards of an 
ombuds identified by literature: impartiality and confidentiality. In 
the NPRM, HHS noted the UC Office of the Ombuds would not serve as a 
legal advocate for any person or issue binding decisions; rather, it 
would work as a neutral third party that can investigate concerns and 
attempt to resolve issues which are brought to the office. HHS stated 
that it intends for the UC Office of the Ombuds to be an additional 
resource for the UC Program and ORR, unaccompanied children, their 
sponsors and advocates, and other interested parties. Further, the UC 
Office of the Ombuds would not supplant other roles and 
responsibilities of other entities such as the HHS Office

[[Page 34574]]

of Inspector General, ORR's monitoring activities of its grants and 
contracts, or services included in this rule, such as child advocate 
services (discussed in Sec.  410.1308 of the NPRM) or legal services 
(discussed in Sec.  410.1309 of the NPRM). Rather, as proposed in the 
NPRM, the UC Office of the Ombuds would be responsible for acting as a 
neutral third party to receive, investigate, or address complaints 
about Government actions.
    Comment: Several commenters supported the proposal to establish the 
Office of the Ombuds.
    Response: ORR thanks commenters for their support.
    Comment: A few commenters did not support the establishment of the 
Office of the Ombuds, due to concern about the authority to establish 
the office, the ability of other Government agencies to fulfill the 
proposed role, and the cost to establish the office.
    Response: HHS notes that the TVPRA requires it, among other 
agencies, to ``establish policies and programs'' to ensure that 
unaccompanied children in the United States are protected from 
traffickers and other persons seeking to victimize or otherwise engage 
such children in criminal, harmful, or exploitative activity.\334\ HHS 
and ORR have identified the need for this office in order to ensure the 
effective implementation of HHS's and ORR's statutory responsibilities. 
An ombuds office, within HHS or ACF, to address unaccompanied 
children's issues does not currently exist. As a result, HHS proposed 
to create an independent ombuds office to specifically promote 
protections for all children in ORR care. HHS further refers the 
commenters to the discussion of costs to establish the Ombuds Office at 
Section VI.
    Comment: One commenter requested clarification about the role of 
the Office of the Ombuds given that ORR has an internal Prevention of 
Child Abuse and Neglect (PCAN) unit.
    Response: The Office of the Ombuds and the PCAN Team perform two 
key, but distinct, functions. The PCAN Team is situated within ORR and 
oversees compliance with policies and procedures related to allegations 
of staff-perpetrated child abuse and neglect arising at care provider 
facilities.
    In contrast, the Ombuds for the UC Program will be situated outside 
of ORR, within ACF. As discussed above, and as codified in this final 
rule at Sec.  410.2000, it will be an independent, impartial, and 
confidential public official with authority and responsibility to 
receive, investigate and informally address complaints about Government 
actions, make findings and recommendations and publicize them when 
appropriate, and publish reports on its activities. Additionally, the 
Ombuds will publish annual findings from its activities, will report to 
the ACF Assistant Secretary, and will be managed as an entity distinct 
from ORR.
    Comment: Several commenters supported the establishment of the 
Office of the Ombuds but expressed concern about its independence and 
authority as the Office is not required to report to Congress. 
Commenters also recommended the office report to the HHS Secretary.
    Response: The agency's literature review pertaining to standards of 
practice and establishment of ombuds offices identified independence, 
confidentiality, and impartiality as core standards of any Federal 
Ombuds office. These attributes will be present in the Office of the 
Ombuds as it exists within ACF. The ability of the Office of the Ombuds 
to refer concerns to the HHS Office of the Inspector General as well as 
other Federal agencies such as DOJ, and to Congress, are examples of 
the Office's ability to act independently while situated within ACF.
    Comment: Several commenters supported the Office of the Ombuds and 
recommended ensuring the Office's ability to access system data to 
identify trends as part of its oversight and enforcement authority. 
Several commenters also recommended an annual review process to 
evaluate the Office of the Ombuds' effectiveness.
    Response: HHS notes that ACF may take into consideration the 
recommendations regarding access to system data in future policymaking. 
ACF may consider adopting an annual review process to evaluate the 
Office of the Ombuds' effectiveness as ACF develops practices, 
policies, and procedures for the Office of the Ombuds consistent with 
practices, policies, and procedures from nationally recognized ombuds 
organizations.
    Final Rule Action: After consideration of public comments, this 
section is finalized as proposed.
Section 410.2001 UC Office of the Ombuds Policies and Procedures; 
Contact Information
    HHS proposed in the NPRM at Sec.  410.2001(a) and (b), that the UC 
Office of the Ombuds shall develop and make publicly available the 
office's standards, practices, and policies and procedures giving 
consideration to the recommendations by nationally recognized ombuds 
organizations (88 FR 68963). HHS requested comments identifying 
potential standards, practices, and policies and procedures for ombuds 
consideration. For example, HHS requested comments regarding whether 
the UC Office the Ombuds should adopt standards, practices, and 
policies and procedures that are consistent with the ABA, IOA, USOA, 
COFO, or another nationally recognized ombuds organization that should 
be considered.
    HHS further proposed at Sec.  410.2001(c) of the NPRM that the UC 
Office of the Ombuds ensure that information about the office, 
including how to contact the office, is publicly available and that the 
office provide notice to unaccompanied children, sponsors, and others 
of its scope and responsibilities, in both English and other languages 
spoken and understood by unaccompanied children in ORR care. Per the 
NPRM, notice shall be provided in an accessible manner, including 
through the provision of auxiliary aids and services and in clear, 
easily understood language, using concise and concrete sentences and/or 
visual aids. HHS's review of other ombuds office outreach activities 
found multiple approaches to raising awareness about an ombuds office, 
such as flyers, information posted at care provider facilities, a 
website and onsite visits to facilities or constituents.\335\ HHS 
proposed in the NPRM providing the UC Office of the Ombuds with the 
discretion to determine the best approaches to providing outreach and 
awareness of the office's ability to act as a neutral third party, 
including visiting ORR facilities and publishing aggregated information 
annually about the number and types of concerns the UC Office of the 
Ombuds receives.
    Comment: A few commenters supported the Office of the Ombuds making 
information about the office available and understandable by 
unaccompanied children, paying special attention to the needs of 
Indigenous children, and recommended using verbal and written means to 
share the information with unaccompanied children, include anti-
retaliation messages in the information.
    Response: HHS notes that ACF will take into consideration in future 
policymaking the recommendation to share information about the Office 
of the Ombuds with unaccompanied children verbally and in writing. ACF 
will share information about the office in a child appropriate way 
including information about anti-retaliation messaging.
    Comment: Several commenters supported the Office of the Ombuds and 
recommended that the Office of the Ombuds follow accepted best 
practices for ombuds including confidentiality, transparency, 
impartiality, accessibility,

[[Page 34575]]

and a code of ethics, and take a child-rights centered approach.
    Response: The value of the Office of the Ombuds is predicated on 
appropriate professional standards of practice and definitional 
characteristics.\336\ The office will adhere to core standards 
associated with federal ombuds--independence, confidentiality and 
impartiality--and common characteristics that include a commitment to 
fairness.\337\ HHS expects an Office of the Ombuds created to address 
issues pertaining to unaccompanied children would adhere to the 
professional attributes associated with ombuds while also specifically 
protecting and advancing the interests and the rights of children in 
the care and custody of ORR.
    Comment: One commenter requested clarification on the interaction 
of the Office of the Ombuds and the ORR Policy Guide relating to 
investigative authority.
    Response: The Office of the Ombuds will sit outside of ORR, within 
ACF, will be independent of ORR, and have authority and responsibility 
to receive, investigate and informally address complaints about 
Government actions, make findings and recommendations and publicize 
them when appropriate. The ORR Policy Guide is a guide for the actions 
of ORR and its care providers.
    Comment: Several commenters recommended that HHS provide more 
details about communicating with the Office of the Ombuds, including 
establishing a timeframe to enable public contact with the office, the 
widespread publication of a toll-free hotline, contact information for 
Office of the Ombuds on the agency website, and a process to annually 
review the contact method effectiveness.
    Response: HHS notes that ACF will provide further information about 
methods made available to the public to communicate with the Office of 
the Ombuds through subregulatory guidance, as such information may 
change over time.
    Final Rule Action: After consideration of public comments, this 
section is finalized as proposed.
Section 410.2002 UC Office of the Ombuds Scope and Responsibilities
    The 2016 ACUS Report described different kinds of ombuds offices 
which perform different functions based on their mandates. They may 
identify new issues and patterns of concerns that are not well known or 
are being ignored; support procedural changes; contribute to 
significant cost savings by dealing with identified issues, often at 
the earliest or pre-complaint stages, thereby reducing litigation and 
settling serious disputes; prevent problems through training and 
briefings; and serve as an important liaison between colleagues, units, 
or agencies.\338\ HHS intends to establish an ombuds office as an 
independent, impartial office with authority to receive and investigate 
issues and concerns related to unaccompanied children's experience in 
ORR care.
    HHS proposed in the NPRM at Sec.  410.2002(a), that the scope of 
the activities of the UC Office of the Ombuds may include: reviewing 
ORR compliance with Federal law and meeting with interested parties to 
hear input on ORR's implementation of and adherence to Federal law; 
visiting ORR facilities where unaccompanied children are or will be 
housed; investigating issues or concerns related to unaccompanied 
children's access to services while in ORR care; reviewing the 
implementation and execution of ORR policy and procedures; reviewing 
individual circumstances that raise concerns such as issues with access 
to services, communications with advocates or sponsors, transfers, or 
discharge from ORR care; and providing general education and 
information about ORR and the legal and regulatory landscape relevant 
to unaccompanied children (88 FR 68963). HHS proposed in the NPRM that 
the UC Office of the Ombuds may request information and documents from 
ORR and ORR care provider facilities and shall be provided with such 
information and documents to the fullest extent possible. HHS further 
proposed that the UC Office of the Ombuds may recommend new or revised 
UC Program policies and procedures, or other process improvements. HHS 
included these anticipated areas of activity at Sec.  410.2002(a) of 
the NPRM.
    HHS anticipates that the UC Office of the Ombuds may have the 
opportunity to not only field individual concerns from unaccompanied 
children, their representatives, and program and facility staff, but 
may also identify patterns of concerns and may be well positioned to 
offer recommendations to improve ORR program processes and procedures. 
HHS proposed in the NPRM that, as an independent office reporting to 
the ACF Assistant Secretary, the UC Office of the Ombuds may determine 
its caseload and agenda and expects that such caseload may vary due to 
a variety of circumstances.
    HHS proposed in the NPRM at Sec.  410.2002(b), that, because the UC 
Office of the Ombuds is not an enforcement entity, it should have the 
discretion to refer matters to other offices or entities, such as State 
or local law enforcement or the HHS Office of Inspector General (OIG), 
as appropriate (88 FR 68963).
    Finally, to assist the UC Office of the Ombuds in accomplishing its 
responsibilities, HHS proposed in the NPRM at Sec.  410.2002(c) that 
the Ombuds must be able to meet with unaccompanied children in ORR care 
upon receiving a complaint or based on relevant findings while 
investigating issues or concerns, have access to ORR facilities, 
premises, and case file information; and have access to care provider 
and Federal staff responsible for the children's care (88 FR 68963).
    Comment: Many commenters supported the proposed scope and 
responsibilities.
    Response: HHS thanks the commenters for their support.
    Comment: A few commenters expressed support for the scope of the 
Office of Ombuds, but also expressed concern the office would not be 
able to refer matters to State licensing agencies for investigation and 
enforcement.
    Response: HHS believes the Office of the Ombuds would provide a 
mechanism for independent review of care provider facilities. HHS 
believes that Sec.  410.2002(b) broadly provides the Ombuds office with 
making referrals to ``offices with jurisdiction over a particular 
matter'' which could include State licensing entities.
    Comment: A few commenters requested clarification if the reference 
to Sec.  410.2100 in the regulation text at proposed Sec.  410.2002(a) 
was in error as the regulatory text does not include Sec.  410.2100.
    Response: HHS thanks commenters for identifying the error. The 
correct reference is to Sec.  410.2001 and will be updated in the final 
rule regulatory text at Sec.  410.2002(a).
    Comment: A few commenters supported the Office of the Ombuds and 
recommended the Office of the Ombuds scope and responsibilities include 
protections from retaliation against those reporting concerns for the 
care of unaccompanied children to the office.
    Response: HHS notes that ACF may consider measures in future 
policymaking that would clarify the protections against retaliation 
available for individuals that would report concerns about the care of 
unaccompanied children in ORR care to the Office of the Ombuds. In this 
rule, the Office of the Ombuds is being created by the Secretary and 
not ORR. In the future, the Secretary can advance requirements through 
policymaking that would be mandatory for the Office to implement, 
including protections from

[[Page 34576]]

retaliation by HHS against those who make reports to the Office.
    Comment: A few commenters recommended removing the term ``non-
binding'' from the description of the office's recommendations to ORR 
in Sec.  410.2002(a)(10), adding a timeframe for ORR written responses 
to the recommendations, and reporting recommendations and responses to 
Congress.
    Response: HHS believes the fact that Office of the Ombuds 
recommendations will not constitute a binding decision on the agency is 
aligned with common characteristics among Federal ombuds offices and 
will not impede the ability of the Office of the Ombuds to conduct 
investigations and make recommendations and to refer concerns to other 
Federal agencies. HHS notes that ACF will provide further details 
regarding timeframes for ORR written responses and the process for 
reporting recommendations and responses to Congress through 
subregulatory guidance.
    Comment: Several commenters support the Office of the Ombuds 
proposed scope and responsibilities and recommend the Ombuds publish an 
annual report describing activities conducted in the prior year, 
summarize child welfare trends and challenges experienced by ORR, and 
submit the annual reports to Congress.
    Response: HHS may take this into consideration for future 
policymaking.
    Comment: Many commenters recommended expanding the Office of the 
Ombuds' scope and responsibilities, including authority for 
comprehensive oversight of facilities located in states where State 
licensure is unavailable because the facility is housing unaccompanied 
children, and specifying ORR responsibilities in response to Office of 
the Ombuds reports and recommendations such as providing written 
responses and corrective actions ORR agrees to take. One commenter 
recommended a new proposal to provide the Ombuds unobstructed access to 
any facility to meet confidentially with facility staff, ORR employees 
and contractors and any unaccompanied children, and to ensure 
unobstructed access by the Ombuds to information pertinent to the care 
and custody of an unaccompanied child. One commenter recommended a new 
subsection to give the Ombuds investigation and enforcement authority 
for section 504 violations. One commenter recommended a requirement 
that the Ombuds seek input from the unaccompanied children and former 
unaccompanied children concerning what affects unaccompanied children 
while in ORR care. A few commenters recommended making the proposed 
activities in Sec.  410.2002(a) mandatory.
    Response: HHS may take these recommendations into consideration for 
future policymaking. As provided at Sec.  410.2001(a), the Office of 
the Ombuds shall develop appropriate standards, practices, and policies 
and procedures, giving consideration to the recommendations by 
nationally recognized Ombudsperson organizations. The scope and 
responsibilities of the Office shall be consistent with the standards, 
practices, and policies and procedures to be developed, and ACF may 
consider these recommendations in that context as well.
    Comment: A few commenters expressed support for the Office of the 
Ombuds scope and responsibilities and recommended expanding the scope 
by revising Sec.  410.2002(a)(3) to include access to documents and 
information from out-of-network provider facilities and emergency 
placements as the office deems the information relevant. Other 
commenters recommended specifying the annual reports proposed in Sec.  
410.2002(a)(4) will be made to the Director of ORR, the Assistant 
Secretary for Children and Families and the Secretary of HHS and will 
be publicly available. Several commenters recommended expanding and 
strengthening the Office of the Ombuds investigatory authority, 
including revising Sec.  410.2002(a)(5) to remove the phrase '' as 
necessary'' to expand and strengthen the Ombuds' authority and 
recommend specifying what an investigation shall entail, creating a new 
subsection to grant the Office of the Ombuds subpoena authority, 
expanding Sec.  410.2002(a)(6) to require frequent visits and 
monitoring out-of-network facilities and unlicensed facilities 
including Influx Care Facilities (ICFs) and Emergency Intake Sites 
(EISs).
    Response: HHS may take these recommendations into consideration for 
future policymaking.
    Comment: One commenter recommended revising Sec.  410.2002(a)(12) 
so that the responsibility to advise and update the Director of ORR, 
Assistant Secretary, and the Secretary on the status of ORR's 
implementation and adherence to Federal law or ORR policy is not 
discretionary.
    Response: HHS may take this recommendation into consideration for 
future policymaking.
    Comment: One commenter recommended revising Sec.  410.2002(a)(8) so 
the Ombuds resolves complaints or concerns raised by interested parties 
as it relates to ORR's implementation or adherence to Federal law or 
ORR regulations and policy and HHS policy.
    Response: HHS may take this recommendation into consideration for 
future policymaking.
    Comment: One commenter recommended that Sec.  410.2002(a) include a 
new subsection stating the Office of the Ombuds shall create processes 
for conducting coaching, mediation, and dispute resolution for reports 
it receives and the processes invite participation by all interested 
parties.
    Response: HHS may take these recommendations into consideration for 
future policymaking.
    Final Rule Action: After consideration of public comments, the 
reference at Sec.  410.2002(a) is being updated to correctly refer to 
Sec.  410.2001 and the section is otherwise finalized as proposed.
Section 410.2003 Organization of the UC Office of the Ombuds
    The 2016 ACUS Report recommends that agencies should support the 
credibility of offices of the ombuds by selecting an ombuds with 
sufficient professional stature and requisite knowledge, skills, and 
abilities to effectively execute the duties of the office.\339\ This 
should include, at a minimum, knowledge of informal dispute resolution 
practices as well as, depending on the office mandate, familiarity with 
process design, training, data analysis, and facilitation and group 
work with diverse populations.\340\ To align with the recommendations, 
HHS proposed in the NPRM at Sec.  410.2003(a) that the UC Ombuds should 
be hired as a career civil servant. HHS believes that requiring the UC 
Ombuds position be hired as a career civil servant, rather than a 
political appointee, will support the important goal of impartiality 
(88 FR 68963). HHS proposed in the NPRM at Sec.  410.2003(b), that the 
UC Ombuds have the requisite knowledge and experience to effectively 
fulfill the work and role, including membership in good standing in a 
nationally recognized organization, State bar association, or 
association of ombudsmen. Expertise should include but is not limited 
to informal dispute resolution practices, services and matters related 
to unaccompanied children and in child welfare, familiarity and 
experience with oversight and regulatory matters, and knowledge of ORR 
policy and regulations. In addition, HHS proposed in the NPRM at Sec.  
410.2003(c) that the Ombuds may engage additional staff as it deems 
necessary and practicable to support the functions and responsibilities 
of the Office; and, at

[[Page 34577]]

Sec.  410.2003(d), HHS proposed in the NPRM that the UC Ombuds shall 
establish procedures for training, certification, and continuing 
education for staff and other representatives of the Office.
    Comment: One commenter supported the proposed Sec.  410.2003.
    Response: HHS thanks the commenter for its support.
    Comment: Several commenters supported the proposal and recommended 
strengthening the requirements in Sec.  410.2003(b) for the Ombuds 
position, including possessing a career's worth of demonstrated 
leadership in the field of public child welfare administration ideally 
with experience in the plight of unaccompanied children; must be 
inclusive of LGBTQI+ affirming best practices; possess familiarity with 
HHS functions, policies and procedures; experience in establishment and 
assessment of Quality Assurance/Improvement practices; and membership 
in good standing of a nationally recognized association of ombudsmen or 
State bar association throughout the course of employment as the 
Ombuds.
    Response: HHS agrees that the Ombuds should possess demonstrated 
leadership in public child welfare administration ideally experienced 
with the experiences of unaccompanied children, inclusive of LGBTQI+ 
affirming best practices, content, and knowledge, experienced in 
quality assurance and improvement practices, has familiarity with HHS 
functions, policies and procedures and recognized as a member in good 
standing of a State bar association or association of ombudsmen. HHS 
notes that ACF will provide further details regarding the professional 
experiences and credentials considered for the Ombuds position through 
subregulatory guidance.
    Comment: Several commenters supported the proposal for the Ombuds 
to hire additional staff but expressed concern about the lack of 
guidance on structure, framework or staffing criteria. Commenters also 
recommended that Ombuds staff include individuals with lived experience 
as an unaccompanied child and there are sufficient staff for timely 
responses to reports received from across the nation.
    Response: HHS notes that ACF may provide further details regarding 
the Office of the Ombuds' structure, framework or staffing criteria 
through future policymaking or subregulatory guidance. HHS believes 
that Ombuds staff should include individuals with appropriate 
professional and personal experiences that are relevant to the 
functions of the office, which may include lived experience as an 
unaccompanied child. HHS agrees that it is important that the Office of 
the Ombuds be sufficiently staffed to ensure timely responses to 
reports.
    Comment: A few commenters supported the proposal the Ombuds 
establish procedures for training, certification, and continuing 
education for staff, and recommend consulting the ACUS framework for 
training standards that link the Ombuds to professional ombuds 
organizations and establish minimum standards for training and 
certification that include but are not limited to mandatory reporting 
laws and ombuds standards and practices offered by ombuds professional 
associations or training programs.
    Response: HHS may take these recommendations into consideration for 
future policymaking.
    Comment: One commenter did not support the proposal that the Ombuds 
shall be a career civil servant, and recommended the Ombuds be 
appointed by, and report directly to, the HHS Secretary to ensure 
appropriate level of authority and impact.
    Response: As discussed in the Background section, the Secretary of 
HHS delegated the authority under the TVPRA to the Assistant Secretary 
for Children and Families. The Office of the Ombuds will be managed as 
an entity distinct from ORR. HHS believes the unaccompanied children 
Ombuds should be a career civil servant, rather than a political 
appointee, to support the goal of impartiality. Additionally, HHS 
believes the Office of the Ombuds should report to the ACF Assistant 
Secretary to be well positioned to offer recommendations to improve ORR 
program processes and procedures.
    Final Rule Action: After consideration of public comments, this 
section is being finalized as proposed.
Section 410.2004 Confidentiality
    HHS proposed in the NPRM at Sec.  410.2004(a), basic requirements 
that the Ombuds ensure that records and proceedings should be kept in a 
confidential manner, except to address an imminent risk of serious harm 
or in response to judicial action (88 FR 68964). Additionally, the 
Ombuds is prohibited from using or sharing information for any 
immigration enforcement related purpose. This provision is in line with 
the 2016 ACUS Report identification of confidentiality of ombuds 
communications and proceedings as being of paramount importance to 
encourage reporting of concerns, thereby affording the ombuds the 
opportunity to assist the constituent and the agency in resolving the 
concern.\341\ HHS also proposed at Sec.  410.2004(b) that the UC Office 
of the Ombuds may accept reports from anonymous reporters.
    To align to these goals and to help in the development of the UC 
Office of the Ombuds, HHS requested public comment on best practices 
for preserving the confidentiality of parties that may submit a 
complaint, as well as building trust in the confidentiality of the 
office so that individuals feel comfortable and safe, without the fear 
of retaliation, to report concerns.
    Comment: A few commenters supported the proposal at Sec.  
410.2004(a), noting that confidentiality will help to establish trust 
with the unaccompanied child.
    Response: HHS thanks the commenters for their support.
    Comment: One commenter supported the proposal at Sec.  410.2004(a) 
that the Ombuds shall manage files and records in a manner that 
preserves confidentiality and recommended adding a statement that an 
exception may apply dependent on circumstances.
    Response: HHS may consider this recommendation in future 
policymaking.
    Comment: A few commenters expressed concern that the proposal does 
not explicitly indicate whether the Ombuds and associated staff are 
considered mandated reporters and recommended establishing the 
expectation that the Ombuds and associated staff are mandated reporters 
and required to adhere to mandated reporting laws in States where they 
are acting in their professional capacity.
    Response: HHS may take this recommendation into consideration in 
future policymaking.
    Comment: One commenter recommended revising the proposal at Sec.  
410.2004(b) so the Office of the Ombuds shall accept reports of 
concerns from anonymous reporters.
    Response: Under Sec.  410.2004(b) as proposed, the Office of the 
Ombuds may accept reports of concern from anonymous reporters. HHS 
believes this language sufficiently provides the Office of the Ombuds 
the discretion necessary to review reports of concern from anonymous 
reporters on a case-by-case basis.
    Final Rule Action: After consideration of public comments, this 
section is being finalized as proposed.
Request for Information
    As stated in the NPRM, HHS believes the UC Office of the Ombuds 
should be intentionally designed and requests any other comments and 
input on how the

[[Page 34578]]

Ombuds should handle concerns relating to ORR practices (88 FR 68964). 
HHS therefore included in the NPRM a request for information for 
additional public input on the proposed UC Office of the Ombuds. HHS 
sought public comment on whether the Office should provide services 
relating to oversight in other areas, including more generalized 
concerns about ORR conduct and services. HHS also sought comment on 
potential intersections between the Ombuds and other avenues for 
mitigation or redress of grievances (e.g., the ORR Placement Review 
Panel). Additionally, HHS sought comment on additional independent and 
impartial mechanisms to address grievances or complaints related to 
children's experiences in ORR care.
    Finally, HHS welcomed comments on other organizational and 
structural matters relevant to the proposed UC Office of the Ombuds.
    Comment: A few commenters recommended that the Office of the Ombuds 
establish relationships with State and local law enforcement, CPS 
agencies and other actors, enter into memoranda of understanding with 
DHS, Office of the Immigration Detention Ombudsman (OIDO), and Office 
for Civil Rights and Civil Liberties (CRCL) to address oversight of 
unaccompanied children in Federal custody, and requiring the Office of 
the Ombuds to collaborate with State and local ombuds as appropriate.
    Response: HHS may consider these recommendations in future 
policymaking.
    Comment: A few commenters recommended a new provision requiring 
ongoing engagement by the Ombuds and community stakeholders, FSA class 
counsel, and the FSA court-appointed monitor to ensure the Ombuds is 
aware of stakeholder concerns and priorities, and that the Ombuds 
should invite collaboration with oversight entities and nonprofit and 
international organizations with expertise in monitoring and protecting 
children's rights.
    Response: HHS may take into consideration these recommendations in 
future policymaking.
    Comment: A few commenters recommended clarification on the 
connection between the ORR NCC and the Office of the Ombuds to 
streamline reporting concerns and reduce confusion.
    Response: The Office of the Ombuds is an entity situated outside of 
ORR, within ACF, and with authority and responsibility to receive, 
investigate and informally address complaints about Government actions. 
The ORR NCC is funded directly by ORR. Given their distinct roles, 
concerns reported to the ORR NCC would not be forwarded to the Office 
of the Ombuds.
    Comment: A few commenters recommended increasing the office size to 
promote accessibility to unaccompanied children throughout the United 
States.
    Response: HHS may take this recommendation into consideration in 
future policymaking.
    Comment: One commenter recommended extending the scope of the 
Office of the Ombuds to unaccompanied children within 6 months post-
release and to youth who are trafficking victims to age 18.
    Response: The focus of the Ombuds office will be related to the 
care, treatment, and access to services for children in ORR custody.
    Comment: One commenter recommended the Office of the Ombuds 
prioritize investigating and publishing a comprehensive report 
reviewing systematic gaps in care of Indigenous unaccompanied children 
and consult Indigenous experts in the report's development.
    Response: The Office of the Ombuds will investigate and report on 
all unaccompanied children in ORR custody pursuant to requirements 
under Sec.  410.2002(a).
    Final Rule Action: ACF welcomed the additional input on the 
organizational and structural matters of the Office of the Ombuds and 
may take these recommendations into consideration in future 
policymaking.

V. 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 final rule does not require information 
collections for which HHS plans to seek OMB approval.
    Under Sec.  410.1902, as discussed in section IV. of this final 
rule, ORR is finalizing its proposal to establish processes for 
unaccompanied children to appeal the denial of release and for certain 
prospective sponsors to appeal sponsorship denials. While this appeals 
process may require unaccompanied children or prospective sponsors to 
submit information to ORR, information collections imposed subsequent 
to an administrative action are not subject to the PRA under 5 CFR 
1320.4(a)(2). Therefore, ORR is not estimating any information 
collection burden associated with this process.
    Under Sec.  410.1903, as discussed in section IV. of this final 
rule, ORR is finalizing its proposal to establish processes for risk 
determination hearings. As part of these processes, five forms will be 
made available to unaccompanied children placed in ORR custody by their 
case manager or by individuals associated with the HHS Departmental 
Appeals Board, which is responsible for the actual day-to-day 
logistical operations of these hearings. These forms will be provided 
to all unaccompanied children placed in a restrictive setting (i.e., 
secure facilities (including residential treatment facilities) and 
heightened supervision facilities), and to unaccompanied children 
placed in other types of facilities upon request. The five forms 
include the Request for Risk Determination Hearing (Form RDH-1), the 
Risk Determination Hearing Opt-Out (Form RDH-2), the Appointment of 
Representation for Risk Determination Hearing (Form RDH-3), the Risk 
Determination Hearing Transcript Request (Form RDH-4), and the Request 
for Appeal of Risk Determination Hearing (Form RDH-5). ORR estimates 
each form will require 10 minutes (0.167 hours) to complete. 
Prospective respondents include ORR grantee and contractor staff, 
unaccompanied children, parents/legal guardians of unaccompanied 
children, attorneys of record, and legal service providers. ORR is 
unable to estimate how many of each type of respondent will complete 
each form, therefore ORR uses a range to estimate the cost associated 
with completing these forms. For this range, ORR assumes unaccompanied 
children and parents of unaccompanied children as a minimum and lawyers 
as a maximum.
    ORR believes that the cost for unaccompanied children and parents 
of unaccompanied children undertaking administrative and other tasks on 
their own time is a post-tax wage of $24.04/hour. The Valuing Time in 
U.S. Department of Health and Human Services Regulatory Impact 
Analyses: Conceptual Framework and Best Practices identifies the 
approach for valuing time when individuals undertake activities on 
their own time.\342\ To derive these costs, a measurement of the usual 
weekly earnings of wage and salary workers of $1,145, divided by 40 
hours to calculate an hourly pre-tax wage rate of $28.63/

[[Page 34579]]

hour.\343\ This rate is adjusted downwards by an estimate of the 
effective tax rate for median income households of about 14 percent 
calculated by comparing pre- and post-tax income,\344\ resulting in the 
post-tax hourly wage rate of $24.62/hour. Unlike State and private 
sector wage adjustments, ORR is not adjusting these wages for fringe 
benefits and other indirect costs since the individuals' activities, if 
any, would occur outside the scope of their employment. For lawyers, 
ORR utilizes the median hourly wage rate of $65.26 in accordance with 
the Bureau of Labor Statistics (BLS).\345\ ORR calculates the cost of 
overhead, including fringe benefits, at 100 percent of the median 
hourly wage. This is necessarily a rough adjustment, both because 
fringe benefits and overhead costs vary significantly by employer and 
methods of estimating these costs vary widely in the literature. 
Nonetheless, ORR believes that doubling the hourly wage rate ($65.26 x 
2 = $130.52) to estimate total cost is a reasonably accurate estimation 
method. ORR provides burden estimates for forms RDH-1 through RDH-5 in 
Table 1 below.

                                       Table 1--Burden Estimates Associated With Risk Determination Hearing Forms
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             # Annual      Responses per   Burden hours    Annual total    Minimum  cost   Maximum  cost
                          Form                              respondents     respondent     per response    burden hours     ($24.62/hr)    ($130.52/hr)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Request for Risk Determination Hearing (Form RDH-1).....             435               1           0.167            72.5          $1,785          $9,463
Risk Determination Hearing Opt-Out (Form RDH-2).........             435               1           0.167            72.5           1,785           9,463
Appointment of Representative for Risk Determination                1740               1           0.167             290           7,140          37,851
 Hearing (Form RDH-3)...................................
Risk Determination Hearing Transcript Request (Form RDH-              16               1           0.167            2.67              66             348
 4).....................................................
Request for Appeal of Risk Determination Hearing (Form                 3               1           0.167             0.5              12              65
 RDH-5).................................................
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................           2,614               1           0.167             438          10,788          57,190
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As shown in Table 1, ORR estimates an annual total burden of 438 
hours at a cost ranging from $10,788 to $57,190 to complete and submit 
forms associated with risk determination hearings. ORR will submit 
these information collection estimates to OMB for approval as part of a 
new information collection request.
    Once the new risk determination hearing forms are in effect, ORR 
will prepare a non-substantive change request to the OMB to discontinue 
the use of three instruments currently approved under OMB control 
number 0970-0565 (expiration date November 30, 2024). The forms to be 
replaced by the Risk Determination Hearing forms described above 
include the following: Request for a Flores Bond Hearing (Form LRG-7), 
Motion Requesting a Bond Hearing--Secure or Staff Secure (Form LRG-8A), 
Motion Requesting a Bond Hearing--Non-Secure (Form LRG-8B). ORR assumes 
these forms will be completed by a Child, Family, or School Social 
Worker at a wage rate of $42.94 per hour.\346\ The currently approved 
annual burden hours associated with these three forms is 14 hours at a 
cost of $601 (14 hours x $42.94). In aggregate, we estimate a total net 
burden of 424 hours (438 hours-14 hours) at a cost ranging from $10,187 
($10,788-$601) to $56,589 ($57,190-$601).
    ORR has reviewed the requirements being codified in subparts A and 
B and determined that the regulatory burden associated with reporting 
and recordkeeping requirements is accounted for under OMB control 
number 0970-0554 (Placement and Transfer of Unaccompanied Children into 
ORR Care Provider Facilities) and OMB control number 0970-0547 
(Administration and Oversight of the Unaccompanied Children Program). 
ORR did not propose any new requirements which result in a change in 
burden.
    ORR has reviewed the requirements being codified in subpart C and 
determined that the regulatory burden associated with reporting and 
recordkeeping requirements is accounted for under OMB control number 
0970-0278 (Family Reunification Packet for Sponsors of Unaccompanied 
Children), OMB control number 0970-0552 (Release of Unaccompanied 
Children from ORR Custody) and OMB control number 0970-0553 (Services 
Provided to Unaccompanied Children). ORR did not propose any new 
requirements which result in a change in burden.
    ORR has reviewed the requirements being codified in subpart D and 
determined that, with the exception of the regulatory burden associated 
with risk determination hearing forms discussed previously, the 
regulatory burden associated with reporting and recordkeeping 
requirements is otherwise accounted for under OMB control number 0970-
0547 (Administration and Oversight of the Unaccompanied Children 
Program), OMB control number 0970-0564 (Monitoring and Compliance for 
Office of Refugee Resettlement (ORR) Care Provider Facilities), and OMB 
control number 0970-0565 (Legal Services for Unaccompanied Children).
    ORR has reviewed the requirements being codified in subparts E 
through I and determined that the regulatory burden associated with 
reporting and recordkeeping requirements is accounted for under OMB 
control number 0970-0554 (Placement and Transfer of Unaccompanied 
Children into ORR Care Provider Facilities). ORR did not propose any 
new requirements which result in a change in burden.
    ORR has reviewed the requirements being codified in subpart J and 
determined that the regulatory burden associated with reporting and 
recordkeeping requirements is accounted for under OMB control number 
0970-0565 (Legal Services for Unaccompanied Children). ORR did not 
propose any new requirements which result in a change in burden.

VI. Regulatory Impact 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

[[Page 34580]]

(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 is uncertainty about the magnitude of effects associated 
with these regulations, it cannot be ruled out that they exceed the 
threshold for significance set forth in section 3(f)(1) of Executive 
Order 12866. Therefore, the regulation is section 3(f)(1) significant 
and has been reviewed by OMB.

A. Economic Analysis

1. Baseline of Current Costs
    In order to properly evaluate the benefits and costs of 
regulations, agencies must evaluate the costs and benefits against a 
baseline. OMB Circular A-4 defines the ``no-action'' baseline as ``an 
analytically reasonable forecast of the way the world would look absent 
the regulatory action being assessed, including any expected changes to 
current conditions over time.'' ORR considers its current operations 
and procedures for implementing the terms of the FSA, the HSA, and the 
TVPRA to be an informative baseline for this analysis, from which it 
estimates the costs and benefits that would result from implementing 
this rule. The section below discusses some examples of the current 
cost for ORR's operations and procedures under this baseline. The costs 
described below are already being incurred as part of ORR's 
implementation of the terms of FSA, the HSA, and the TVPRA. However, 
the future in the absence of the rule is unclear, including because the 
end of temporary legal structures could change the UC Program's 
operations. Relative to some future trajectories--that is, other 
analytic baselines--there could be additional new costs (and new 
effects more generally) associated with the policies being promulgated 
in this final rule.
    Referrals of unaccompanied children to the UC Program vary 
considerably from one year to the next, even from month to month, and 
are largely unpredictable. Funding for the UC Program's services are 
dependent on annual appropriations, which rely in part on fluctuating 
migration numbers. For example, in fiscal year (FY) 2019, the UC 
Program served 69,488 unaccompanied children and received $1.3 billion 
in appropriations.\347\ In contrast, in FY 2022, ORR served 128,904 
unaccompanied children and received $5.5 billion in 
appropriations.\348\ Appropriations account for uncertainty inherent in 
migration numbers by providing additional resources in any month when 
the UC Program receives referrals over a certain threshold. For 
example, in FY 2023, a contingency fund provided $27 million for each 
increment of 500 referrals (or pro rata share) above a threshold of 
13,000 unaccompanied children referrals in a month.\349\
    The UC Program funds private non-profit and for-profit agencies to 
provide shelter, counseling, medical care, legal services, and other 
support services to children in custody. In addition, some funding is 
provided for limited post-release services to certain unaccompanied 
children. Care provider facilities receive grants or contracts to 
provide shelter, including therapeutic care, foster care, shelter with 
increased staff supervision, and secure detention care. The majority of 
program costs (approximately 82 percent) are for care in ORR shelters. 
Other services for unaccompanied children, such as medical care, 
background checks, and family unification services, make up 
approximately 16 percent of the budget. Administrative expenses to 
carry out the program total approximately 2 percent of the budget.
2. Estimated Costs
    This rule codifies current ORR and HHS requirements for compliance 
with the HSA, the TVPRA, the FSA, court orders, and other requirements 
described under existing ORR policies and cooperative agreements. 
Because the majority of requirements being codified in this final rule 
are already enforced by ORR, ORR does not expect this rule to impose 
any additional costs aside from those costs incurred by the Federal 
Government to establish the risk determination hearing process 
described in Sec.  410.1903 and the UC Office of the Ombuds described 
in subpart K. Existing staff are currently responsible for conducting 
both Internal Compliance Reviews and Placement Review Panels as 
described in Sec. Sec.  410.1901 and 410.1902, respectively, therefore 
no additional cost will be incurred.
    In Sec.  410.1309, ORR is finalizing the proposal that to the 
greatest extent practicable and consistent with section 292 of the INA 
(8 U.S.C. 1362), that all unaccompanied children who are or have been 
in ORR care would have access to legal advice and representation in 
immigration legal proceedings or other matters, consistent with current 
policy. ORR is finalizing the proposal that to the extent that 
appropriations are available, and insofar as it is not practicable to 
secure pro bono counsel for unaccompanied children as specified at 8 
U.S.C. 1232(c)(5), ORR would have discretion to fund legal service 
providers to provide direct immigration legal representation. 
Similarly, ORR is finalizing under Sec.  410.1210 that ORR may offer 
PRS, which is voluntary for the unaccompanied child and sponsor, for 
all released children based on their needs and the extent to which 
appropriations are available. As discussed in Section VI, funding for 
UC Program services is dependent on annual appropriations from 
Congress. While ORR is unable to estimate the extent of the need for 
PRS and legal services and the associated costs, the regulations 
specifically mention that funding for PRS and legal service providers 
are limited to the extent appropriations are available. ACF's 
Justification of Estimates for Appropriation Committees provides 
additional information regarding the impact of its requested 
budget.\350\
    At Sec.  410.1903, ORR is finalizing the proposal to establish a 
hearing process that provides the same substantive protections as 
immigration court bond hearings under the FSA, but through an 
independent and neutral HHS adjudicator. This rule shifts 
responsibility for these hearings from DOJ to HHS. ORR estimates that 
some resources will be required to implement this shift. ORR believes 
that this burden will fall on DOJ and HHS staff and estimates that it 
will require approximately 2,000 to 4,000 hours to implement. This 
estimate reflects 6 to 12 staff working full-time for 2 months

[[Page 34581]]

to create the new system. After this shift in responsibility has been 
implemented, ORR estimates that the rule will lead to no change in net 
resources required for risk determination hearings, and therefore 
estimate no incremental costs or savings. ORR sought public comment on 
these estimates but did not receive any comments.
    In subpart K, ORR discusses the establishment of an Office of the 
Ombuds for the UC Program. Although the scope of the Office of the 
Ombuds may be varied, ORR anticipates that it would provide a mechanism 
by which unaccompanied children, sponsors, and other relevant parties 
could raise concerns, be empowered to independently investigate claims, 
issue findings, and make recommendations to ORR, and refer findings to 
other Federal agencies or Congress as appropriate. The Ombuds role will 
be filled by a career civil servant who has expertise in dispute 
resolution, familiarity with oversight and regulatory matters, 
experience working with unaccompanied children or in child welfare, and 
knowledge of ORR policy and regulations. In addition to the Ombuds 
position itself, ORR anticipates the need for support staff as well. In 
order to estimate the costs associated with the Office of the Ombuds 
and its potential staffing requirements, ORR conferred with budgetary 
experts and analyzed the needs anticipated to accommodate the likely 
case load. ORR assumes the Ombuds would be a GS-15 ($176,458 per year) 
while support staff would consist of one GS-14 ($150,016 per year), 
four GS-13s ($126,949 per year), and four GS-12s ($106,759 per staff 
per year). For estimating purposes, ORR assumes each position will be a 
Step 5 and include a factor 36.25 percent for overhead, per OMB.\351\ 
In total, ORR estimates the cost of establishing this office would be 
$1,718,529 per year [($176,458 + 150,016 + ($126,949 x 4) + ($106,759 x 
4) x 136.25 percent]. ORR welcomed comments on the proposed staffing 
and structure for the Office of the Ombuds but did not receive any 
comments other than those previously included in subpart K.
    ORR notes that all care provider facilities discussed in this final 
rule are ORR grantees and the costs of maintaining compliance with 
these requirements are allowable costs to grant awards under the Basic 
Considerations for cost provisions at 45 CFR 75.403 through 75.405, 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 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.
    ORR also notes that EIFs discussed in this final rule are operated 
by contractors who provide facility management and wraparound services 
to safely house and care for unaccompanied children during a time of 
and in response to emergency or influx. Because ORR is finalizing 
subpart I to codify existing requirements and are not finalizing any 
additional requirements which we believe will result in changes to 
current operational practices which impact either facility or staffing 
costs to operate EIFs, ORR does not estimate any additional costs.
    ORR sought public comment on any additional costs associated with 
the proposals in the NPRM which have not been otherwise addressed (88 
FR 68975).
    ORR did not receive any comments on additional costs which were not 
otherwise addressed in the discussion of the proposals in this final 
rule. As a result, ORR is making no changes or additions to the costs 
previously discussed in the NPRM. In addition, ORR is making no changes 
or additions to costs resulting from changes and amendments to 
regulatory text.
3. Benefits
    The primary benefit of the rule is to ensure that applicable 
regulations reflect ORR's custody and treatment of unaccompanied 
children in accordance with the relevant and substantive terms of the 
FSA, the HSA, and the TVPRA. Additionally, the proposed codification of 
minimum standards for licensed facilities and the release process 
ensures a measure of consistency across the programs network of 
standard facilities. ORR also anticipates that many of the previously 
discussed costs will be partially offset by a reduction in legal costs 
and staff time associated with the FSA and associated motions to 
enforce that require significant usage of staff time--often at 
extremely short notice--and require ORR to pay attorneys' fees.
    As required by OMB Circular A-4 (available on the Office of 
Management and Budget website at: https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf), ORR has prepared an 
accounting statement to illustrate the impacts of the finalized 
policies in this final rule in Table 3.

   Table 2--Accounting Statement: Estimated Annual Costs and Benefits
------------------------------------------------------------------------
                Category                             Estimate
------------------------------------------------------------------------
Benefits:
    Annualized Monetized Benefits......  $0.
    Annualized quantified, but non-      None.
     monetized, benefits.
    Unquantified Benefits..............  (1) Applicable regulations
                                          reflect ORR's custody and
                                          treatment of unaccompanied
                                          children in accordance with
                                          the relevant and substantive
                                          terms of the FSA, the HSA, and
                                          the TVPRA.
                                         (2) Codification of minimum
                                          standards for licensed
                                          facilities and the release
                                          process ensures a measure of
                                          consistency across the
                                          programs network of standard
                                          facilities.
                                         (3) Reduction in legal costs
                                          and staff time associated with
                                          the FSA and associated motions
                                          to enforce.
Costs:
    Annualized monetized costs.........  $1,718,529.
    Annualized quantified, but non-      2,000-4,000 hours.
     monetized, costs.
    Unquantified Costs.................
Transfers..............................  $0.
Net Benefits...........................  $0.
------------------------------------------------------------------------


[[Page 34582]]

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small business, not-for-profit organizations that 
are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. Individuals are not considered by the RFA to be a small entity.
    The purpose of this action is to promulgate regulations that 
implement the relevant and substantive terms of the FSA and provisions 
of the HSA and TVPRA where they necessarily intersect with the FSA's 
provisions. Publication of final regulations would result in 
termination of the FSA, as provided for in FSA paragraph 40. The FSA 
provides standards for the detention, treatment, and transfer of minors 
and unaccompanied children. Section 462 of the HSA and section 235 of 
the TVPRA prescribe substantive requirements and procedural safeguards 
to be implemented by ORR with respect to unaccompanied children. 
Additionally, court decisions have dictated how the FSA is to be 
implemented.\352\
    Section 462 of the HSA also transferred to the ORR Director 
``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 Immigration and 
Naturalization.'' \353\ The ORR Director may, for purposes of 
performing a function transferred by this section, ``exercise all 
authorities under any other provision of law that were available with 
respect to the performance of that function to the official responsible 
for the performance of the function'' immediately before the transfer 
of the program.\354\
    Consistent with provisions in the HSA, the TVPRA places the 
responsibility for the care and custody of unaccompanied children with 
the Secretary of Health and Human Services.\355\ Prior to the enactment 
of the HSA, the Commissioner of Immigration and Naturalization, through 
a delegation from the Attorney General, had authority ``to establish 
such regulations . . . as he deems necessary for carrying out his 
authority under the provisions of this Act.'' \356\ In accordance with 
the relevant savings and transfer provisions of the HSA,\357\ the ORR 
Director now possesses the authority to promulgate regulations 
concerning ORR's administration of its responsibilities under the HSA 
and TVPRA.
    This rule would directly regulate ORR. ORR funds grantees and 
contractors to provide shelter, counseling, medical care, legal 
services, and other support services to unaccompanied children in 
custody. Because the requirements being finalized in this rule are 
already largely enforced by ORR, ORR does not expect this final rule to 
impose any additional costs to any of their grantees or contractors 
related to the provision of these services. It is possible that some 
grantees or contractors may experience costs to remedy any unmet 
requirements, however ORR is unable to make any specific assumptions 
due to the unique nature of each grantee and contractor. Additional 
costs associated with remedial actions necessary to meet requirements 
promulgated in this 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.
    Per the most recent SBA size standards effective March 17, 2023, 
the SBA size standard for NAICS 561210 Facilities Support Services is 
$47.0 million. The SBA size standards for NAICS 561612 Security Guards 
and Patrol Services is $29.0 million. Currently, ORR funds 52 grantees 
to provide services to unaccompanied children. ORR finds that all 52 
current grantees are non-profits that do not appear to be dominant in 
their field. Consequently, ORR believes all 52 grantees are likely to 
be small entities for the purposes of the RFA. The provisions in this 
final rule make changes to ORR regulations and would not directly 
financially impact any small entities. ORR reiterates that additional 
costs associated with remedial actions necessary to meet requirements 
promulgated in this final rule that were not budgeted, and cannot be 
absorbed within existing budgets, would be allowable for the small 
entity grantee to submit a request for supplemental funds to cover the 
costs.
    ORR requested information and data from the public that would 
assist in better understanding the direct effects of this final rule on 
small entities (88 FR 68976). Members of the public were invited to 
submit a comment, as described in the NPRM under Public Participation, 
if they think that their business, organization, or governmental 
jurisdiction qualifies as a small entity and that the policies proposed 
in the NPRM would have a significant economic impact on it. ORR 
requested that commenters provide as much information as possible as to 
why the policies proposed in the NPRM would create an impact on small 
businesses.
    ORR is unaware of any relevant Federal rule that may duplicate, 
overlap, or conflict with the final rule and is not aware of any 
alternatives to the final rule which accomplish the stated objectives 
that would minimize economic impact of the proposed rule on small 
entities. ORR requested comment and also sought alternatives from the 
public that will accomplish the same objectives and minimize the 
proposed rule's economic impact on small entities (88 FR 68976). ORR 
did not receive any comments on the impacts of these policies on small 
entities.
    Based on this analysis, the Secretary certifies that the rule, if 
finalized, will not have a significant economic impact on a substantial 
number of small entities.

C. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
that agencies assess anticipated costs and benefits before issuing any 
rule whose mandates require spending in any 1 year of $100 million in 
1995 dollars, updated annually for inflation. The current threshold 
after adjustment for inflation is $183 million, using the most current 
(2023) Implicit Price Deflator for the Gross Domestic Product. This 
final rule would not mandate any requirements that meet or exceed the 
threshold for State, local, or tribal Governments, or the private 
sector.
    Though this rule would not result in such an expenditure, we do 
discuss the effects of this rule elsewhere in this preamble. 
Additionally, UMRA excludes from its definitions of ``Federal 
intergovernmental mandate,'' and ``Federal private sector mandate'' 
those regulations imposing an enforceable duty on other levels of 
Government or the private sector which are a ``condition of Federal 
assistance'' 2 U.S.C. 658(5)(A)(i)(I), (7)(A)(i). The FSA provides ORR 
with no direct authority to mandate binding standards on facilities of 
State and local Governments or on operations of private sector 
entities. Instead, these requirements would impact such Governments or 
entities only to the extent that they make voluntary decisions to 
contract with ORR. Compliance with any standards that are not already 
otherwise in place resulting from this rule would be a condition of 
ongoing Federal assistance through such arrangements. Therefore, this 
rulemaking contains neither a Federal intergovernmental mandate nor a 
private sector mandate.

[[Page 34583]]

D. Paperwork Reduction Act

    All Departments are required to submit to OMB for review and 
approval, any reporting or recordkeeping requirements inherent in a 
rule under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
Stat. 163 (1995) (codified at 44 U.S.C. 3501 et seq.).
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), ORR submitted a copy of this section to the Office of 
Management and Budget (OMB) for its review. This final rule complies 
with settlement agreements, court orders, and statutory requirements, 
most of whose terms have been in place for over 20 years. This final 
rule would not require additional information collection requirements 
beyond those requirements. The reporting requirements associated with 
those practices have been approved under the requirements of the 
Paperwork Reduction Act and in accordance with 5 CFR part 1320. ORR 
received approval from OMB for use of its forms under OMB control 
number 0970-0278, with an expiration date of August 31, 2025. 
Separately, ORR received approval from OMB for its placement and 
service forms under OMB control number 0970-0498, with an expiration 
date of August 31, 2023. A form associated with the specific consent 
process is currently pending approval with OMB (OMB Control Number 
0970-0385). We will be submitting forms associated with risk 
determination hearings to OMB for approval as part of a new information 
collection request as well as submitting associated revisions for 
approval under OMB control number 0970-0565.

E. Executive Order 13132: Federalism

    This final rule would not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of Government. This final rule would implement ORR 
statutory responsibilities and the FSA by codifying ORR practices that 
comply with the terms of the FSA and relevant law for the care and 
custody of unaccompanied children. In finalizing its proposal to codify 
these practices, ORR was mindful of its obligations to meet the 
requirements of Federal statutes and the FSA 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 and the agreement that the 
Federal Government entered into through the FSA.
    Typically, ORR enters into cooperative agreements or contracts with 
non-profit and private organizations to provide shelter and care for 
unaccompanied children in a facility licensed by the appropriate State 
or local licensing authority if the State licensing agency provides for 
licensing of facilities that provide services to unaccompanied 
children. Where ORR enters into a cooperative agreement or contract 
with a facility, ORR requires that the organization administering the 
facility abide by all applicable State or local licensing regulations 
and laws. ORR designed agency policies and proposed regulations, as 
well as the terms of ORR cooperative agreements and contracts with the 
agency's grantees/contractors, to complement applicable State and 
licensing rules, not to supplant or replace the requirements.
    Therefore, in accordance with section 6 of Executive Order 13132, 
it is determined that this 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 welcomed any comments from representatives of State and local 
juvenile or family residential facilities--among other individuals and 
groups--during the course of this rulemaking. ORR did not receive any 
comments regarding the effects of these policies on the States or on 
the distribution of power and responsibilities among the various levels 
of Government.

F. Executive Order 12988: Civil Justice Reform

    This 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.

VII. Assessment of Federal Regulation and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a proposed 
policy or regulation may affect family well-being. If the agency's 
determination is affirmative, then the agency must prepare an impact 
assessment addressing criteria specified in the law. This regulation 
will not have an impact on family well-being as defined in this 
legislation, which asks agencies to assess policies with respect to 
whether the policy: strengthens or erodes family stability and the 
authority and rights of parents in the education, nurture, and 
supervision of their children; helps the family perform its functions; 
and increases or decreases disposable income.
    Comment: One commenter disagreed that the rule did not erode family 
stability, stating a belief that facilitating access to abortion has a 
negative impact on families.
    Response: While ORR acknowledges the opinion and concern of the 
commenter, ORR concluded that the rule does not have an impact on 
family-being within the meaning of Section 654 of the Treasury and 
General Government Appropriations Act of 1999.
    Final Rule Action: ORR is making no changes to its assessment of 
the impact of the regulation on families in this final rule.

VIII. Alternatives Considered

    ORR considered several alternatives to the proposed regulations 
prior to finalizing this rule. First, ORR could have chosen not to 
promulgate this rule proposing to codify requirements that would 
protect unaccompanied children in ORR care. However, as discussed at 
Section III.B.3, pursuant to a stipulation in California v. Mayorkas, 
HHS agreed to pursue a new rulemaking to replace and supersede the 2019 
Final Rule, which had been enjoined. This rulemaking represents that 
broader rulemaking effort. Had HHS violated its stipulated agreement 
and moved to lift the injunction of the 2019 Final Rule, it is likely 
the California v. Mayorkas litigation would have resumed. In any case, 
ORR believes that this rule is warranted at this time in order to 
codify a uniform set of standards and procedures open to public 
inspection and feedback that will help to ensure the safety and well-
being of unaccompanied children in ORR care, implement the substantive 
terms of the FSA, and enhance public transparency as to the policies 
governing the operation of the UC Program.
    Once ORR decided to pursue a framework of regulatory requirements 
through a rule, it considered the scope of a rule and whether to 
propose additional regulations addressing further areas of authority 
under the TVPRA. ORR rejected this alternative in order to solely focus 
this rule on requirements that relate specifically to the care and 
placement of unaccompanied children in ORR custody, pursuant to 6 
U.S.C. 279 and 8 U.S.C. 1232, and that would implement the terms of the 
FSA. ORR

[[Page 34584]]

notes that its decision to finalize more targeted regulations in this 
final rule does not preclude ORR or other agencies from subsequently 
issuing regulations to address other issues within ORR's statutory 
authorities in the future.
    After considering these alternatives, ORR is finalizing standards 
that are consistent with its statutory authorities, implement the terms 
of the FSA that create responsibilities for ORR, and reflect and are 
consistent with current ORR practices and requirements, including 
enhanced standards, procedures, and oversight mechanisms to help ensure 
the safety and well-being of unaccompanied children in ORR care where 
appropriate, consistent with ORR's statutory authorities and the FSA. 
In this way, it would be possible to finalize a codified set of 
standards and requirements that are uniform across care provider 
facilities and in a way that accords with the way the UC Program 
functions.
    The FSA contemplates the publication of regulations implementing 
the agreement. In a 2001 Stipulation, the parties agreed to a 
termination of the FSA ``45 days following the defendants' publication 
of final regulations implementing this Agreement.'' In 2020, the U.S. 
Court of Appeals for the Ninth Circuit ruled that if the Government 
wishes to terminate those portions of the FSA covered by valid portions 
of HHS regulations, it may do so.\358\ In this final rule, ORR is 
therefore finalizing regulations implementing the agreement by 
codifying terms of the FSA that prescribe ORR responsibilities for 
unaccompanied children in order to ensure that unaccompanied children 
continue to be treated in accordance with the FSA, the HSA, and the 
TVPRA.
    Jeff Hild, Acting Assistant Secretary of the Administration for 
Children and Families, approved this document on April 14, 2024.

List of Subjects in 45 CFR Part 410

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


0
For the reasons set forth in the preamble, we revise 45 CFR part 410 to 
read as follows:

PART 410--CARE AND PLACEMENT OF UNACCOMPANIED CHILDREN

Subpart A--Care and Placement of Unaccompanied Children
Sec.
410.1000 Scope of this part.
410.1001 Definitions.
410.1002 ORR care and placement of unaccompanied children.
410.1003 General principles that apply to the care and placement of 
unaccompanied children.
410.1004 ORR custody of unaccompanied children
Subpart B--Determining the Placement of an Unaccompanied Child at a 
Care Provider Facility
410.1100 Purpose of this subpart.
410.1101 Process for the placement of an unaccompanied child after 
referral from another Federal agency.
410.1102 Care provider facility types.
410.1103 Considerations generally applicable to the placement of an 
unaccompanied child.
410.1104 Placement of an unaccompanied child in a standard program 
that is not restrictive.
410.1105 Criteria for placing an unaccompanied child in a 
restrictive placement.
410.1106 Unaccompanied children who need particular services and 
treatment.
410.1107 Considerations when determining whether an unaccompanied 
child is a runaway risk for purposes of placement decisions.
410.1108 Placement and services for children of unaccompanied 
children.
410.1109 Required notice of legal rights.
Subpart C--Releasing an Unaccompanied Child From ORR Custody
410.1200 Purpose of this subpart.
410.1201 Sponsors to whom ORR releases an unaccompanied child.
410.1202 Sponsor suitability.
410.1203 Release approval process.
410.1204 Home studies.
410.1205 Release decisions; denial of release to a sponsor.
410.1206 Appeals of release denials.
410.1207 Ninety (90)-day review of pending sponsor applications.
410.1208 ORR's discretion to place an unaccompanied child in the 
Unaccompanied Refugee Minors Program.
410.1209 Requesting specific consent from ORR regarding custody 
proceedings.
410.1210 Post-release services.
Subpart D--Minimum Standards and Required Services
410.1300 Purpose of this subpart.
410.1301 Applicability of this subpart.
410.1302 Minimum standards applicable to standard programs and 
secure facilities.
410.1303 Reporting, monitoring, quality control, and recordkeeping 
standards.
410.1304 Behavior management and prohibition on seclusion and 
restraint.
410.1305 Staff, training, and case manager requirements.
410.1306 Language access services.
410.1307 Healthcare services.
410.1308 Child advocates.
410.1309 Legal services.
410.1310 Psychotropic medications.
410.1311 Unaccompanied children with disabilities.
Subpart E--Transportation of an Unaccompanied Child
410.1400 Purpose of this subpart.
410.1401 Transportation of an unaccompanied child in ORR's care.
Subpart F--Data and Reporting Requirements
410.1500 Purpose of this subpart.
410.1501 Data on unaccompanied children.
Subpart G--Transfers
410.1600 Purpose of this subpart.
410.1601 Transfer of an unaccompanied child within the ORR care 
provider facility network.
Subpart H--Age Determinations
410.1700 Purpose of this subpart.
410.1701 Applicability.
410.1702 Conducting age determinations.
410.1703 Information used as evidence to conduct age determinations.
410.1704 Treatment of an individual whom ORR has determined to be an 
adult.
Subpart I--Emergency and Influx Operations
410.1800 Contingency planning and procedures during an emergency or 
influx.
410.1801 Minimum standards for emergency or influx facilities.
410.1802 Placement standards for emergency or influx facilities.
Subpart J--Availability of Review of Certain ORR Decisions
410.1900 Purpose of this subpart.
410.1901 Restrictive placement case reviews.
410.1902 Placement Review Panel.
410.1903 Risk determination hearings.
Subpart K--Unaccompanied Children Office of the Ombuds (UC Office of 
the Ombuds)
410.2000 Establishment of the UC Office of the Ombuds.
410.2001 UC Office of the Ombuds policies and procedures; contact 
information.
410.2002 UC Office of the Ombuds scope and responsibilities.
410.2003 Organization of the UC Office of the Ombuds.
410.2004 Confidentiality.

    Authority:  6 U.S.C. 279, 8 U.S.C. 1232.

Subpart A--Care and Placement of Unaccompanied Children


Sec.  410.1000  Scope of this part.

    (a) This part governs those aspects of the placement, care, and 
services provided to unaccompanied children in Federal custody by 
reason of their immigration status and referred to the Unaccompanied 
Children Program (UC Program) as authorized by section 462 of the 
Homeland Security Act of 2002, Public Law 107-296, 6 U.S.C. 279, and 
section 235 of the William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008 (TVPRA), Public Law 110-457, 8 U.S.C. 1232. 
This part includes provisions

[[Page 34585]]

implementing the settlement agreement reached in Jenny Lisette Flores 
v. Janet Reno, Attorney General of the United States, Case No. CV 85-
4544-RJK (C.D. Cal. 1996).
    (b) The provisions of this part are separate and severable from one 
another. If any provision is stayed or determined to be invalid, the 
remaining provisions shall continue in effect.
    (c) ORR does not fund or operate facilities other than standard 
programs, restrictive placements (which includes secure facilities, 
including residential treatment centers, and heightened supervision 
facilities), or emergency or influx facilities, absent a specific 
waiver as described under Sec.  410.1801(d) or such additional waivers 
as are permitted by law.


Sec.  410.1001  Definitions.

    For the purposes of this part, the following definitions apply.
    ACF means the Administration for Children and Families, Department 
of Health and Human Services.
    Attorney of record means an attorney who represents an 
unaccompanied child in legal proceedings or matters subject to the 
consent of the unaccompanied child. In order to be recognized as an 
unaccompanied child's attorney of record by the Office of Refugee 
Resettlement (ORR), for matters within ORR's authority, the individual 
must provide proof of representation of the child to ORR. ORR notes 
that attorneys of record may engage with ORR in the course of this 
representation in order to obtain custody-related document and to 
engage in other communications necessary to facilitate the 
representation.
    Best interest is a standard ORR applies in determining the types of 
decisions and actions it makes in relation to the care of an 
unaccompanied child. When evaluating what is in a child's best 
interests, ORR considers, as appropriate, the following non-exhaustive 
list of factors: the unaccompanied child's expressed interests, in 
accordance with the unaccompanied child's age and maturity; the 
unaccompanied child's mental and physical health; the wishes of the 
unaccompanied child's parents or legal guardians; the intimacy of 
relationship(s) between the unaccompanied child and the child's family, 
including the interactions and interrelationship of the unaccompanied 
child with the child's parents, siblings, and any other person who may 
significantly affect the unaccompanied child's well-being; the 
unaccompanied child's adjustment to the community; the unaccompanied 
child's cultural background and primary language; length or lack of 
time the unaccompanied child has lived in a stable environment; 
individualized needs, including any needs related to the unaccompanied 
child's disability; and the unaccompanied child's development and 
identity.
    Care provider facility means any physical site, including an 
individual family home, that houses one or more unaccompanied children 
in ORR custody and is operated by an ORR-funded program that provides 
residential services for unaccompanied children. Out of network (OON) 
placements are not included within this definition.
    Case file means the physical and electronic records for each 
unaccompanied child that are pertinent to the care and placement of the 
child. Case file materials include but are not limited to biographical 
information on each unaccompanied child; copies of birth and marriage 
certificates; various ORR forms and supporting documents (and 
attachments, e.g., photographs); incident reports; medical and dental 
records; mental health evaluations; case notes and records, including 
educational records, clinical notes and records; immigration forms and 
notifications; legal papers; home studies and/or post-release service 
records on a sponsor of an unaccompanied child; family unification 
information including the sponsor's individual and financial data; case 
disposition; correspondence regarding the child's case; and Social 
Security number (SSN); juvenile/criminal history records; and other 
relevant records. The records of unaccompanied children are the 
property of ORR, whether in the possession of ORR or a grantee or 
contractor, and grantees and contractors may not release these records 
without prior approval from ORR, except for program administration 
purposes.
    Case manager means the individual that coordinates, in whole or in 
part, assessments of unaccompanied children, individual service plans, 
and efforts to release unaccompanied children from ORR custody. Case 
managers also ensure services for unaccompanied children are documented 
within the case files for each unaccompanied child.
    Chemical restraints include, but are not limited to, drugs 
administered to children to chemically restrain them, and external 
chemicals such as pepper spray or other forms of inflammatory and/or 
aerosol agents.
    Child advocates means third parties, appointed by ORR consistent 
with its authority under TVPRA at 8 U.S.C. 1232(c)(6), who make 
independent recommendations regarding the best interests of an 
unaccompanied child.
    Clear and convincing evidence means a standard of evidence 
requiring that a factfinder be convinced that a contention is highly 
probable--i.e., substantially more likely to be true than untrue.
    Close relative means a brother, sister, grandparent, aunt, uncle, 
first cousin, or other immediate biological relative, or immediate 
relative through legal marriage or adoption, and half-sibling.
    Corrective action means steps taken to correct any care provider 
facility noncompliance identified by ORR.
    Department of Justice Accredited Representative, or DOJ Accredited 
Representative, means a representative of a qualified nonprofit 
religious, charitable, social service, or other similar organization 
established in the United States and recognized by the Department of 
Justice in accordance with 8 CFR part 1292. A DOJ Accredited 
Representative who is representing a child in ORR custody may file a 
notice of such representation in order to receive updates on the 
unaccompanied child.
    DHS means the U.S. Department of Homeland Security.
    Director means the Deputy Assistant Secretary for Humanitarian 
Services and Director of the Office of Refugee Resettlement (ORR), 
Administration for Children and Families, Department of Health and 
Human Services.
    Disability means, with respect to an individual, the definition 
provided by section 3 of the Americans with Disabilities Act of 1990, 
42 U.S.C. 12102, which is adopted by reference in section 504 of the 
Rehabilitation Act of 1973, 29 U.S.C. 794(a), and its implementing 
regulations, 45 CFR 84.3 (programs receiving Department of Health and 
Human Services (HHS) financial assistance) and 45 CFR 85.3 (programs 
conducted by HHS), as well as in the TVPRA at 8 U.S.C. 1232(c)(3)(B).
    Discharge means an unaccompanied child that exits ORR custody, or 
the act of an unaccompanied child exiting ORR custody.
    Emergency means an act or event (including, but not limited to, a 
natural disaster, facility fire, civil disturbance, or medical or 
public health concerns at one or more facilities) that prevents timely 
transport or placement of unaccompanied children, or impacts other 
conditions provided by this part.
    Emergency incidents means urgent situations in which there is an 
immediate and severe threat to a child's safety and well-being that 
requires

[[Page 34586]]

immediate action, and also includes unauthorized absences of 
unaccompanied children from a care provider facility. Emergency 
incidents include, but are not limited to:
    (1) Abuse or neglect in ORR care where there is an immediate and 
severe threat to the child's safety and well-being, such as physical 
assault resulting in serious injury, sexual abuse, or suicide attempt;
    (2) Death of an unaccompanied child in ORR custody, including out-
of-network facilities;
    (3) Medical emergencies;
    (4) Mental health emergencies requiring hospitalization; and
    (5) Unauthorized absences of unaccompanied children in ORR custody.
    Emergency or influx facility (EIF) means a type of care provider 
facility that opens temporarily to provide shelter and services for 
unaccompanied children during an influx or emergency. An EIF is not 
defined as a standard program, shelter, or secure facility under this 
part. Because of the emergency nature of EIFs, they may be unlicensed 
or may be exempted from licensing requirements by State and/or local 
licensing agencies. EIFs may also be operated on federally-owned or 
leased property, in which case, the facility may not be subject to 
State or local licensing standards.
    Emergency safety situation means a situation in which a child 
presents a risk of imminent physical harm to themselves, or others, as 
demonstrated by overt acts or expressed threats.
    Family planning services include, but are not limited to, Food and 
Drug Administration (FDA)-approved contraceptive products (including 
emergency contraception), pregnancy testing and non-directive options 
counseling, sexually transmitted infection (STI) services, and 
referrals to appropriate specialists. ORR notes that the term ``family 
planning services'' does not include abortions. Instead, abortion is 
included in the definition of medical services requiring heightened ORR 
involvement, and is further discussed in Sec.  410.1307.
    Family Reunification Packet means an application and supporting 
documentation which must be completed by a potential sponsor who wishes 
to have an unaccompanied child released from ORR to their care. ORR 
uses the application and supporting documentation, as well as other 
procedures, to determine the sponsor's ability to provide for the 
unaccompanied child's physical and mental well-being.
    Heightened supervision facility means a facility that is operated 
by a program, agency or organization licensed by an appropriate State 
agency, or that meets the requirements of State licensing that would 
otherwise be applicable if it is in a State that does not allow state 
licensing of programs providing care and services to unaccompanied 
children, and that meets the standards for standard programs set forth 
in Sec.  410.1302, and that is designed for an unaccompanied child who 
requires close supervision but does not need placement in a secure 
facility, including a residential treatment center (RTC). It provides 
24-hour supervision, custody, care, and treatment. It maintains 
stricter security measures than a shelter, such as intensive staff 
supervision, in order to provide supports, manage problem behavior, and 
prevent children from running away. A heightened supervision facility 
may have a secure perimeter but shall not be equipped internally with 
major restraining construction or procedures typically associated with 
juvenile detention centers or correctional facilities.
    HHS means the U.S. Department of Health and Human Services.
    Home study means an in-depth investigation of the potential 
sponsor's ability to ensure the child's safety and well-being, 
initiated by ORR as part of the sponsor suitability assessment. A home 
study includes an investigation of the living conditions in which the 
unaccompanied child would be placed if released to a particular 
potential sponsor, the standard of care that the unaccompanied child 
would receive, and interviews with the potential sponsor and other 
household members. A home study is conducted for any case where it is 
required by the TVPRA, this part, and for other cases at ORR's 
discretion, including for those in which the safety and well-being of 
the unaccompanied child is in question.
    Influx means, for purposes of HHS operations, a situation in which 
the net bed capacity of ORR's standard programs that is occupied or 
held for placement by unaccompanied children meets or exceeds 85 
percent for a period of seven consecutive days.
    Legal guardian means an individual who has been lawfully vested 
with the power, and charged with the duty of caring for, including 
managing the property, rights, and affairs of, a child or incapacitated 
adult by a court of competent jurisdiction, whether foreign or 
domestic.
    Legal service provider means an organization or individual attorney 
who provides legal services to unaccompanied children, either on a pro 
bono basis or through ORR funding for unaccompanied children's legal 
services. Legal service providers provide Know Your Rights 
presentations and screenings for legal relief to unaccompanied 
children, and/or direct legal representation to unaccompanied children.
    LGBTQI+ includes lesbian, gay, bisexual, transgender, queer or 
questioning, and intersex.
    Mechanical restraint means any device attached or adjacent to the 
child's body that the child cannot easily remove that restricts freedom 
of movement or normal access to the child's body. For purposes of the 
Unaccompanied Children Program, mechanical restraints are prohibited 
across all care provider types except in secure facilities, where they 
are permitted only as consistent with State licensure requirements.
    Medical services requiring heightened ORR involvement means:
    (1) Significant surgical or medical procedures;
    (2) Abortions; and
    (3) Medical services necessary to address threats to the life of or 
serious jeopardy to the health of an unaccompanied child.
    Notification of Concern (NOC) means an instrument used by home 
study and post-release services providers, ORR care providers, and the 
ORR National Call Center staff to document and notify ORR of certain 
concerns that arise after a child is released from ORR care and 
custody.
    Notice of Placement (NOP) means a written notice provided to 
unaccompanied children placed in restrictive placements, explaining the 
reasons for placement in the restrictive placement and kept as part of 
the child's case file. The care provider facility where the 
unaccompanied child is placed must provide the NOP to the child within 
48 hours after an unaccompanied child's arrival at a restrictive 
placement, as well as at minimum every 30 days the child remains in a 
restrictive placement.
    ORR means the Office of Refugee Resettlement, Administration for 
Children and Families, U.S. Department of Health and Human Services.
    ORR long-term home care means an ORR-funded family or group home 
placement in a community-based setting. An unaccompanied child may be 
placed in long-term home care if ORR is unable to identify an 
appropriate sponsor with whom to place the unaccompanied child during 
the pendency of their immigration legal proceedings. ``Long-term home 
care'' has the same meaning as ``long-term

[[Page 34587]]

foster care,'' as that term is used in the definition of traditional 
foster care provided at 45 CFR 411.5.
    ORR transitional home care means an ORR-funded short-term placement 
in a family or group home. ``Transitional home care'' has the same 
meaning as ``transitional foster care,'' as that term is used in the 
definition of traditional foster care provided at 45 CFR 411.5.
    Out of network (OON) placement means a facility that is licensed by 
an appropriate State agency and that provides physical care and 
services for individual unaccompanied children as requested by ORR on a 
case-by-case basis, that operates under a single case agreement for 
care of a specific child between ORR and the OON provider. OON may 
include hospitals, restrictive settings, or other settings outside of 
the ORR network of care. An OON placement is not defined as a standard 
program under this part.
    Peer restraints mean asking or permitting other children to 
physically restrain another child.
    Personal restraint means the application of physical force without 
the use of any device, for the purpose of restraining the free movement 
of a child's body. This does not include briefly holding a child 
without undue force in order to calm or comfort them.
    Placement means delivering the unaccompanied child to the physical 
custody and care of either a care provider facility or an alternative 
to such a facility. An unaccompanied child who is placed pursuant to 
this part is in the legal custody of ORR and may only be transferred or 
released by ORR. An unaccompanied child remains in the custody of a 
referring agency until the child is physically transferred to a care 
provider facility or an alternative to such a facility.
    Placement Review Panel means a three-member panel consisting of 
ORR's senior-level career staff with requisite experience in child 
welfare that is convened for the purposes of reviewing requests for 
reconsideration of restrictive placements. An ORR staff member who was 
involved with the decision to step-up an unaccompanied child to a 
restrictive placement may not serve as a Placement Review Panel member 
with respect to that unaccompanied child's placement.
    Post-release services (PRS) mean follow-up services as that term is 
used in the TVPRA at 8 U.S.C. 1232(c)(3)(B). PRS are ORR-approved 
services which may, and when required by statute must, be provided to 
an unaccompanied child and the child's sponsor, subject to available 
resources as determined by ORR, after the child's release from ORR 
custody. Assistance may include linking families to educational and 
community resources, home visits, case management, in-home counseling, 
and other social welfare services, as needed. When follow-up services 
are required by statute, the nature and extent of those services would 
be subject to available resources.
    Program-level events mean situations that affect the entire care 
provider facility and/or unaccompanied children and its staff within 
and require immediate action and include, but are not limited to:
    (1) Death of a staff member, other adult, or a child who is not an 
unaccompanied child but is in the care provider facility's care under 
non-ORR funding;
    (2) Major disturbances such as a shooting, attack, riot, protest, 
or similar occurrence;
    (3) Natural disasters such as an earthquake, flood, tornado, 
wildfire, hurricane, or similar occurrence;
    (4) Any event that affects normal operations for the care provider 
facility such as, for instance, a long-term power outage, gas leaks, 
inoperable fire alarm system, infectious disease outbreak, or similar 
occurrence.
    Prone physical restraint means a restraint restricting a child's 
breathing, restricting a child's joints or hyperextending a child's 
joints, or requiring a child to take an uncomfortable position.
    PRS provider means an organization funded by ORR to connect the 
sponsor and unaccompanied child to community resources for the child 
and for other child welfare services, as needed, following the release 
of the unaccompanied child from ORR custody.
    Psychotropic medication(s) means medication(s) that are prescribed 
for the treatment of symptoms of psychosis or another mental, 
emotional, or behavioral disorder and that are used to exercise an 
effect on the central nervous system to influence and modify behavior, 
cognition, or affective state. The term includes the following 
categories:
    (1) Psychomotor stimulants;
    (2) Antidepressants;
    (3) Antipsychotics or neuroleptics;
    (4) Agents for control of mania or depression;
    (5) Antianxiety agents; and
    (6) Sedatives, hypnotics, or other sleep-promoting medications.
    Qualified interpreter means:
    (1) For an individual with a disability, an interpreter who, via a 
video remote interpreting service (VRI) or an on-site appearance, is 
able to interpret effectively, accurately, and impartially, both 
receptively and expressively, using any necessary specialized 
vocabulary. Qualified interpreters include, for example, sign language 
interpreters, oral transliterators, and cued-language transliterators.
    (2) For a limited English proficient individual, an interpreter who 
via a remote interpreting service or an on-site appearance:
    (i) Has demonstrated proficiency in speaking and understanding both 
spoken English and at least one other spoken language;
    (ii) Is able to interpret effectively, accurately, and impartially 
to and from such language(s) and English, using any necessary 
specialized vocabulary or terms without changes, omissions, or 
additions and while preserving the tone, sentiment, and emotional level 
of the original oral statement; and
    (3) Adheres to generally accepted interpreter ethics principles, 
including client confidentiality.
    Qualified translator means a translator who:
    (1) Has demonstrated proficiency in writing and understanding both 
written English and at least one other written non-English language;
    (2) Is able to translate effectively, accurately, and impartially 
to and from such language(s) and English, using any necessary 
specialized vocabulary or terms without changes, omissions, or 
additions and while preserving the tone, sentiment, and emotional level 
of the original written statement; and
    (3) Adheres to generally accepted translator ethics principles, 
including client confidentiality.
    Release means discharge of an unaccompanied child to an ORR-vetted 
and approved sponsor. After release, ORR does not have legal custody of 
the unaccompanied child, and the sponsor becomes responsible for 
providing for the unaccompanied child's physical and mental well-being.
    Residential treatment center (RTC) means a sub-acute, time limited, 
interdisciplinary, psycho-educational, and therapeutic 24-hour-a-day 
structured program with community linkages, provided through non-
coercive, coordinated, individualized care, specialized services, and 
interventions. RTCs provide highly customized care and services to 
individuals following either a community-based placement or more 
intensive intervention, with the aim of moving individuals toward a 
stable, less intensive level of care or independence. RTCs are a type 
of secure facility and are not a standard program under this part.

[[Page 34588]]

    Restrictive placement means a secure facility, including RTCs, or a 
heightened supervision facility.
    Runaway risk means it is highly probable or reasonably certain that 
an unaccompanied child will attempt to abscond from ORR care. Such 
determinations must be made in view of a totality of the circumstances 
and should not be based solely on a past attempt to run away.
    Seclusion means the involuntary confinement of a child alone in a 
room or area from which the child is instructed not to leave or is 
physically prevented from leaving.
    Secure facility means a facility with an ORR contract or 
cooperative agreement having separate accommodations for minors, in a 
physically secure structure with staff able to control violent 
behavior. ORR uses a secure facility as the most restrictive placement 
option for an unaccompanied child who poses a danger to self or others 
or has been charged with having committed a criminal offense. A secure 
facility is not defined as a standard program or shelter under this 
part.
    Shelter means a kind of standard program in which all of the 
programmatic components are administered on-site, consistent with the 
standards set forth in Sec.  410.1302.
    Significant incidents mean non-emergency situations that may 
immediately affect the safety and well-being of a child. Significant 
incidents include, but are not limited to:
    (1) Abuse or neglect in ORR care;
    (2) Sexual harassment or inappropriate sexual behavior;
    (3) Staff Code of Conduct violations; (4) Contact or threats to an 
unaccompanied child while in ORR care from trafficking or smuggling 
syndicates, organized crime, or other criminal actors;
    (5) Incidents involving law enforcement on site;
    (6) Potential fraud schemes perpetrated by outside actors on 
unaccompanied children's sponsors;
    (7) Separation from a parent or legal guardian upon apprehension by 
a Federal agency;
    (8) Mental health concerns; and
    (9) Use of safety measures, such as restraints.
    Sponsor means an individual (or entity) to whom ORR releases an 
unaccompanied child out of ORR custody, in accordance with ORR's 
sponsor suitability assessment process and release procedures.
    Staff Code of Conduct means the set of personnel requirements 
established by ORR in order to promote a safe environment for 
unaccompanied children in its care, including protecting unaccompanied 
children from sexual abuse and sexual harassment.
    Standard program means any program, agency, or organization that is 
licensed by an appropriate State agency to provide residential, group, 
or transitional or long-term home care services for dependent children, 
including a program operating family or group homes, or facilities for 
unaccompanied children with specific individualized needs; or that 
meets the requirements of State licensing that would otherwise be 
applicable if it is in a State that does not allow state licensing of 
programs providing care and services to unaccompanied children. A 
standard program must meet the standards set forth in Sec.  410.1302. 
All homes and facilities operated by a standard program, including 
facilities for unaccompanied children with specific individualized 
needs, shall be non-secure as required under State law. However, a 
facility for unaccompanied children with specific individualized needs 
may maintain that level of security permitted under State law which is 
necessary for the protection of an unaccompanied child or others in 
appropriate circumstances.
    Tender age means twelve years of age or younger.
    Transfer means the movement of an unaccompanied child from one ORR 
care provider facility to another ORR care provider facility, such that 
the receiving care provider facility takes over physical custody of the 
child. ORR sometimes uses the terms ``step-up'' and ``step-down'' to 
describe transfers of unaccompanied children to or from restrictive 
placements. For example, if ORR transfers an unaccompanied child from a 
shelter facility to a heightened supervision facility, that transfer 
would be a ``step-up,'' and a transfer from a heightened supervision 
facility to a shelter facility would be a ``step-down.'' But a transfer 
from a shelter to a community-based care facility, or vice versa, would 
be neither a step-up nor a step-down, because both placement types are 
not considered restrictive.
    Trauma bond means when a trafficker uses rewards and punishments 
within cycles of abuse to foster a powerful emotional connection with 
the victim.
    Trauma-informed means a system, standard, process, or practice that 
realizes the widespread impact of trauma and understands potential 
paths for recovery; recognizes the signs and symptoms of trauma in 
unaccompanied children, families, staff, and others involved with the 
system; and responds by fully integrating knowledge about trauma into 
policies, procedures, and practices, and seeks to actively resist re-
traumatization.
    Unaccompanied child/children means a child who:
    (1) Has no lawful immigration status in the United States;
    (2) Has not attained 18 years of age; and
    (3) With respect to whom:
    (i) There is no parent or legal guardian in the United States; or
    (ii) No parent or legal guardian in the United States is available 
to provide care and physical custody.
    Unaccompanied Refugee Minors (URM) Program means the child welfare 
services program available pursuant to 8 U.S.C. 1522(d).


Sec.  410.1002  ORR care and placement of unaccompanied children.

    ORR coordinates and implements the care and placement of 
unaccompanied children who are in ORR custody by reason of their 
immigration status.


Sec.  410.1003  General principles that apply to the care and placement 
of unaccompanied children.

    (a) Within all placements, unaccompanied children shall be treated 
with dignity, respect, and special concern for their particular 
vulnerability.
    (b) ORR shall hold unaccompanied children in facilities that are 
safe and sanitary and that are consistent with ORR's concern for the 
particular vulnerability of unaccompanied children.
    (c) ORR plans and provides care and services based on the 
individual needs of and focusing on the strengths of the unaccompanied 
child.
    (d) ORR encourages unaccompanied children, as developmentally 
appropriate and in their best interests, to be active participants in 
ORR's decision-making process relating to their care and placement.
    (e) ORR strives to provide quality care tailored to the 
individualized needs of each unaccompanied child in its custody, 
ensuring the interests of the child are considered, and that 
unaccompanied children are protected from traffickers and other persons 
seeking to victimize or otherwise engage them in criminal, harmful, or 
exploitative activity, both while in ORR custody and upon release from 
the UC Program.
    (f) In making placement determinations, ORR shall place each 
unaccompanied child in the least restrictive setting that is in the 
best interests of the child, giving consideration to the child's danger 
to self, danger to others, and runaway risk.

[[Page 34589]]

    (g) When requesting information or consent from unaccompanied 
children ORR consults with parents, legal guardians, child advocates, 
and attorneys of record or DOJ Accredited Representatives as needed.


Sec.  410.1004  ORR custody of unaccompanied children.

    All unaccompanied children placed by ORR in care provider 
facilities remain in the legal custody of ORR and may be transferred or 
released only with ORR approval; provided, however, that in the event 
of an emergency, a care provider facility may transfer temporary 
physical custody of an unaccompanied child prior to securing approval 
from ORR but shall notify ORR of the transfer as soon as is practicable 
thereafter, and in all cases within 8 hours.

Subpart B--Determining the Placement of an Unaccompanied Child at a 
Care Provider Facility


Sec.  410.1100  Purpose of this subpart.

    This subpart sets forth the process by which ORR receives referrals 
of unaccompanied children from other Federal agencies and the factors 
ORR considers when placing an unaccompanied child in a particular care 
provider facility. As used in this subpart, ``placement 
determinations'' or ``placements'' refers to placements in ORR-approved 
care provider facilities during the time an unaccompanied child is in 
ORR care, and not to the location of an unaccompanied child once the 
unaccompanied child is released in accordance with subpart C of this 
part.


Sec.  410.1101  Process for placement of an unaccompanied child after 
referral from another Federal agency.

    (a) ORR shall accept referrals of unaccompanied children, from any 
department or agency of the Federal Government at any time of day, 
every day of the year.
    (b) Upon notification from any department or agency of the Federal 
Government that a child in its custody is an unaccompanied child and 
therefore must be transferred to ORR custody, ORR shall identify a 
standard program placement for the unaccompanied child, unless one of 
the listed exceptions in Sec.  410.1104 applies, and notify the 
referring Federal agency within 24 hours of receiving the referring 
agency's notification whenever possible, and no later than within 48 
hours of receiving notification, barring exceptional circumstances. ORR 
may seek clarification about the information provided by the referring 
agency as needed. In such instances, ORR shall notify the referring 
agency and work with the referring agency, including by requesting 
additional information, in accordance with statutory time frames.
    (c) ORR shall work with the referring Federal Government department 
or agency to accept transfer of custody of the unaccompanied child, 
consistent with the statutory requirements at 8 U.S.C. 1232(b)(3).
    (d) For purposes of paragraphs (b) and (c) of this section, ORR may 
be unable to timely identify a placement for and timely accept transfer 
of custody of an unaccompanied child due to exceptional circumstances, 
including:
    (1) Any court decree or court-approved settlement that requires 
otherwise;
    (2) An influx, as defined at Sec.  410.1001;
    (3) An emergency, including a natural disaster such as an 
earthquake or hurricane, a facility fire, or a civil disturbance;
    (4) A medical emergency, such as a viral epidemic or pandemic among 
a group of unaccompanied children;
    (5) The apprehension of an unaccompanied child in a remote 
location;
    (6) The apprehension of an unaccompanied child whom the referring 
Federal agency indicates:
    (i) Poses a danger to self or others; or
    (ii) Has been charged with or has been convicted of a crime, or is 
the subject of delinquency proceedings, delinquency charge, or has been 
adjudicated delinquent, and additional information is essential in 
order to determine an appropriate ORR placement.
    (e) ORR shall take legal custody of an unaccompanied child when it 
assumes physical custody from the referring agency.


Sec.  410.1102  Care provider facility types.

    ORR may place unaccompanied children in care provider facilities as 
defined at Sec.  410.1001, including but not limited to shelters, group 
homes, individual family homes, heightened supervision facilities, or 
secure facilities, including RTCs. ORR may place unaccompanied children 
in out-of-network (OON) placements, subject to Sec.  410.1103, if ORR 
determines that a child has a specific need that cannot be met within 
the ORR network of facilities, if no in-network care provider facility 
equipped to meet the child's needs has the capacity to accept a new 
placement, or if transfer to a less restrictive facility is warranted 
and ORR is unable to place the child in a less restrictive in-network 
facility. Unaccompanied children shall be separated from delinquent 
offenders in OON placements (except those unaccompanied children who 
meet the requirements for a secure placement pursuant to Sec.  
410.1105). In times of influx or emergency, as further discussed in 
subpart I of this part, ORR may place unaccompanied children in care 
provider facilities that may not meet the standards of a standard 
program, but rather meet the standards in subpart I.


Sec.  410.1103  Considerations generally applicable to the placement of 
an unaccompanied child.

    (a) ORR shall place each unaccompanied child in the least 
restrictive setting that is in the best interest of the child and 
appropriate to the unaccompanied child's age and individualized needs, 
provided that such setting is consistent with the interest in ensuring 
the unaccompanied child's timely appearance before DHS and the 
immigration courts and in protecting the unaccompanied child's well-
being and that of others.
    (b) ORR shall consider the following factors to the extent they are 
relevant to the unaccompanied child's placement, including:
    (1) Danger to self;
    (2) Danger to the community/others;
    (3) Runaway risk;
    (4) Trafficking in persons or other safety concerns;
    (5) Age;
    (6) Gender;
    (7) LGBTQI+ status or identity;
    (8) Disability;
    (9) Any specialized services or treatment required or requested by 
the unaccompanied child;
    (10) Criminal background;
    (11) Location of potential sponsor and safe and timely release 
options;
    (12) Behavior;
    (13) Siblings in ORR custody;
    (14) Language access;
    (15) Whether the unaccompanied child is pregnant or parenting;
    (16) Location of the unaccompanied child's apprehension; and
    (17) Length of stay in ORR custody.
    (c) ORR may utilize information provided by the referring Federal 
agency, child assessment tools, interviews, and pertinent documentation 
to determine the placement of all unaccompanied children. ORR may 
obtain any records from local, State, and Federal agencies regarding an 
unaccompanied child to inform placement decisions.
    (d) ORR shall review, at least every 30 days, the placement of an 
unaccompanied child in a restrictive placement to determine whether a 
new level of care is appropriate.

[[Page 34590]]

    (e) ORR shall make reasonable efforts to provide licensed 
placements in those geographical areas where DHS encounters the 
majority of unaccompanied children.
    (f) A care provider facility must accept the placement of 
unaccompanied children as determined by ORR, and may deny placement 
only for the following reasons:
    (1) Lack of available bed space;
    (2) Placement of the unaccompanied child would conflict with the 
care provider facility's State or local licensing rules;
    (3) Initial placement involves an unaccompanied child with a 
significant physical or mental illness for which the referring Federal 
agency does not provide a medical clearance; or
    (4) In the case of the placement of an unaccompanied child with a 
disability, the care provider facility concludes it is unable to meet 
the child's disability-related needs, without fundamentally altering 
the nature of its program, even by providing reasonable modifications 
and even with additional support from ORR.
    (g) Care provider facilities must submit a written request to ORR 
for authorization to deny placement of unaccompanied children, 
providing the individualized reasons for the denial. Any such request 
must be approved by ORR before the care provider facility may deny a 
placement. ORR may follow up with a care provider facility about a 
placement denial to find a solution to the reason for the denial.


Sec.  410.1104  Placement of an unaccompanied child in a standard 
program that is not restrictive.

    ORR shall place all unaccompanied children in standard programs 
that are not restrictive placements, except in the following 
circumstances:
    (a) An unaccompanied child meets the criteria for placement in a 
restrictive placement set forth in Sec.  410.1105; or
    (b) In the event of an emergency or influx of unaccompanied 
children into the United States, in which case ORR shall place the 
unaccompanied child as expeditiously as possible in accordance with 
subpart I of this part.


Sec.  410.1105  Criteria for placing an unaccompanied child in a 
restrictive placement.

    (a) Criteria for placing an unaccompanied child in a secure 
facility that is not a residential treatment center (RTC). (1) ORR may 
place an unaccompanied child in a secure facility (that is not an RTC) 
either at initial placement or through a transfer to another care 
provider facility from the initial placement. This determination must 
be made based on clear and convincing evidence documented in the 
unaccompanied child's case file. All determinations to place an 
unaccompanied child in a secure facility (that is not an RTC) will be 
reviewed and approved by ORR Federal field staff. A finding that a 
child poses a danger to self shall not be the sole basis for a child's 
placement in a secure facility (that is not an RTC).
    (2) ORR shall not place an unaccompanied child in a secure facility 
(that is not an RTC) if less restrictive alternatives in the best 
interests of the unaccompanied child are available and appropriate 
under the circumstances. ORR shall place an unaccompanied child in a 
heightened supervision facility or other non-secure care provider 
facility as an alternative, provided that the unaccompanied child does 
not currently pose a danger to others and does not need placement in an 
RTC pursuant to the standard set forth at 410.1105(c).
    (3) ORR may place an unaccompanied child in a secure facility (that 
is not an RTC) only if the unaccompanied child:
    (i) Has been charged with or has been convicted of a crime, or is 
the subject of delinquency proceedings, delinquency charge, or has been 
adjudicated delinquent, and where ORR deems that those circumstances 
demonstrate that the unaccompanied child poses a danger to others, not 
including:
    (A) An isolated offense that was not within a pattern or practice 
of criminal activity and did not involve violence against a person or 
the use or carrying of a weapon; or
    (B) A petty offense, which is not considered grounds for stricter 
means of detention in any case;
    (ii) While in DHS or ORR's custody, or while in the presence of an 
immigration officer or ORR official or ORR contracted staff, has 
committed, or has made credible threats to commit, a violent or 
malicious act directed at others; or
    (iii) Has engaged, while in a restrictive placement, in conduct 
that has proven to be unacceptably disruptive of the normal functioning 
of the care provider facility, and removal is necessary to ensure the 
welfare of others, as determined by the staff of the care provider 
facility (e.g., stealing, fighting, intimidation of others, or sexually 
predatory behavior), and ORR determines the unaccompanied child poses a 
danger to others based on such conduct.
    (b) Criteria for placing an unaccompanied child in a heightened 
supervision facility. (1) ORR may place an unaccompanied child in a 
heightened supervision facility either at initial placement or through 
a transfer to another facility from the initial placement. This 
determination must be made based on clear and convincing evidence 
documented in the unaccompanied child's case file.
    (2) In determining whether to place an unaccompanied child in a 
heightened supervision facility, ORR considers if the unaccompanied 
child:
    (i) Has been unacceptably disruptive to the normal functioning of a 
shelter such that transfer is necessary to ensure the welfare of the 
unaccompanied child or others;
    (ii) Is a runaway risk;
    (iii) Has displayed a pattern of severity of behavior, either prior 
to entering ORR custody or while in ORR care, that requires an increase 
in supervision by trained staff;
    (iv) Has a non-violent criminal or delinquent history not 
warranting placement in a secure facility, such as isolated or petty 
offenses as described in paragraph (b)(2)(iii) of this section; or
    (v) Is assessed as ready for step-down from a secure facility, 
including an RTC.
    (c) Criteria for placing an unaccompanied child in an RTC. (1) An 
unaccompanied child with serious mental health or behavioral health 
issues may be placed in an RTC only if the unaccompanied child is 
evaluated and determined to be a danger to self or others by a licensed 
psychologist or psychiatrist consulted by ORR or a care provider 
facility, which includes a determination by clear and convincing 
evidence documented in the unaccompanied child's case file, including 
documentation by a licensed psychologist or psychiatrist that placement 
in an RTC is appropriate.
    (2) ORR may place an unaccompanied child in an out of network (OON) 
RTC when a licensed clinical psychologist or psychiatrist consulted by 
ORR or a care provider facility has determined that the unaccompanied 
child requires a level of care only found in an OON RTC either because 
the unaccompanied child has identified needs that cannot be met within 
the ORR network of RTCs or no placements are available within ORR's 
network of RTCs, or that an OON RTC would best meet the unaccompanied 
child's identified needs.
    (3) The criteria for placement in or transfer to an RTC also apply 
to transfers to or placements in OON RTCs. Care provider facilities may 
request ORR to transfer an unaccompanied child to an RTC in accordance 
with Sec.  410.1601(d).
    (d) For an unaccompanied child with one or more disabilities, 
consistent with

[[Page 34591]]

section 504 of the Rehabilitation Act, 29 U.S.C. 794(a), ORR's 
determination under Sec.  410.1105 whether to place the unaccompanied 
child in a restrictive placement shall include consideration whether 
there are any reasonable modifications to the policies, practices, or 
procedures of an available less restrictive placement or any provision 
of auxiliary aids and services that would allow the unaccompanied child 
to be placed in that less restrictive facility. ORR's consideration of 
reasonable modifications and auxiliary aids and services to facilitate 
less restrictive placement shall also apply to transfer decisions under 
Sec.  410.1601 and will be incorporated into restrictive placement case 
reviews under Sec.  410.1901. However, ORR is not required to take any 
action that it can demonstrate would fundamentally alter the nature of 
a program or activity.


Sec.  410.1106  Unaccompanied children who need particular services and 
treatment.

    ORR shall assess each unaccompanied child in its care to determine 
whether the unaccompanied child requires particular services and 
treatment by staff to address their individualized needs while in the 
care and custody of the UC Program. An unaccompanied child's assessed 
needs may require particular services, equipment, and treatment by 
staff for various reasons, including, but not limited to disability, 
alcohol or substance use, a history of serious neglect or abuse, tender 
age, pregnancy, or parenting. If ORR determines that an unaccompanied 
child's individualized needs require particular services and treatment 
by staff or particular equipment, ORR shall place the unaccompanied 
child, whenever possible, in a standard program in which the 
unaccompanied child with individualized needs can interact with 
children without those individualized needs to the fullest extent 
possible, but which provides services and treatment or equipment for 
such individualized needs.


Sec.  410.1107  Considerations when determining whether an 
unaccompanied child is a runaway risk for purposes of placement 
decisions.

    When determining whether an unaccompanied child is a runaway risk 
for purposes of placement decisions, ORR shall consider, among other 
factors, whether:
    (a) The unaccompanied child is currently under a final order of 
removal.
    (b) The unaccompanied child has previously absconded or attempted 
to abscond from State or Federal custody.
    (c) The unaccompanied child has displayed behaviors indicative of 
flight or has expressed intent to run away.
    (d) Evidence that the unaccompanied child is experiencing a strong 
trauma bond to or is threatened by a trafficker in persons or drugs.


Sec.  410.1108  Placement and services for children of unaccompanied 
children.

    (a) Placement. ORR shall accept referrals for placement of 
parenting unaccompanied children who arrive with children of their own 
to the same extent that it receives referrals of other unaccompanied 
children and shall prioritize placing and keeping the parent and child 
together in the interest of family unity.
    (b) Services. (1) ORR shall provide the same care and services to 
the children of unaccompanied children as it provides to unaccompanied 
children, as appropriate, regardless of the children's immigration or 
citizenship status.
    (2) U.S. citizen children of unaccompanied children are eligible 
for public benefits and services to the same extent as other U.S. 
citizens. Application(s) for public benefits and services shall be 
submitted on behalf of the U.S. citizen children of unaccompanied 
children by care provider facilities. Utilization of those benefits and 
services shall be exhausted to the greatest extent practicable before 
ORR-funded services are utilized.


Sec.  410.1109  Required notice of legal rights.

    (a) ORR shall promptly provide each unaccompanied child in its 
custody, in a language and manner the unaccompanied child understands, 
with:
    (1) A State-by-State list of free legal service providers compiled 
and annually updated by ORR and that is provided to unaccompanied 
children as part of a Legal Resource Guide for unaccompanied children;
    (2) The following explanation of the right of potential review: 
``ORR usually houses persons under the age of 18 in the least 
restrictive setting that is in an unaccompanied child's best interest, 
and generally not in restrictive placements (which means secure 
facilities, heightened supervision facilities, or residential treatment 
centers). If you believe that you have not been properly placed or that 
you have been treated improperly, you may call a lawyer to seek 
assistance and get advice about your rights to challenge this action. 
If you cannot afford a lawyer, you may call one from the list of free 
legal services given to you with this form;'' and
    (3) A presentation regarding their legal rights, as provided under 
Sec.  410.1309(a)(2).

Subpart C--Releasing an Unaccompanied Child From ORR Custody


Sec.  410.1200  Purpose of this subpart.

    This subpart covers the policies and procedures used to release, 
without unnecessary delay, an unaccompanied child from ORR custody to a 
vetted and approved sponsor.


Sec.  410.1201  Sponsors to whom ORR releases an unaccompanied child.

    (a) Subject to an assessment of sponsor suitability, when ORR 
determines that the detention of the unaccompanied child is not 
required either to secure the child's timely appearance before DHS or 
the immigration court, or to ensure the child's safety or that of 
others, ORR shall release a child from its custody without unnecessary 
delay, in the following order of preference, to:
    (1) A parent;
    (2) A legal guardian;
    (3) An adult relative;
    (4) An adult individual or entity designated by the parent or legal 
guardian as capable and willing to care for the unaccompanied child's 
well-being in:
    (i) A declaration signed under penalty of perjury before an 
immigration or consular officer; or
    (ii) Such other document that establishes to the satisfaction of 
ORR, in its discretion, the affiant's parental relationship or 
guardianship;
    (5) A licensed program willing to accept legal custody; or
    (6) An adult individual or entity seeking custody, in the 
discretion of ORR, when it appears that there is no other likely 
alternative to long term custody, and family unification does not 
appear to be a reasonable possibility.
    (b) ORR shall not disqualify potential sponsors based solely on 
their immigration status and shall not collect information on 
immigration status of potential sponsors for law enforcement or 
immigration enforcement related purposes. ORR shall not share any 
immigration status information relating to potential sponsors with any 
law enforcement or immigration enforcement related entity at any time.
    (c) In making determinations regarding the release of unaccompanied 
children to potential sponsors, ORR shall not release unaccompanied 
children on their own recognizance.

[[Page 34592]]

Sec.  410.1202  Sponsor suitability.

    (a) Potential sponsors shall complete an application package to be 
considered as a sponsor for an unaccompanied child. The application 
package may be obtained from either the care provider facility or ORR 
directly.
    (b) Prior to releasing an unaccompanied child, ORR shall conduct a 
suitability assessment to determine whether the potential sponsor is 
capable of providing for the unaccompanied child's physical and mental 
well-being. At minimum, such assessment shall consist of review of the 
potential sponsor's application package, including verification of the 
potential sponsor's identity, physical environment of the sponsor's 
home, and relationship to the unaccompanied child, if any, and an 
independent finding that the individual has not engaged in any activity 
that would indicate a potential risk to the unaccompanied child. ORR 
may consult with the issuing agency (e.g., consulate or embassy) of the 
sponsor's identity documentation to verify the validity of the sponsor 
identity document presented.
    (c) ORR's suitability assessment shall include taking all needed 
steps to determine that the potential sponsor is capable of providing 
for the unaccompanied child's physical and mental well-being. As part 
of its suitability assessment, ORR may require such components as an 
investigation of the living conditions in which the unaccompanied child 
would be placed and the standard of care the unaccompanied child would 
receive, verification of the employment, income, or other information 
provided by the potential sponsor as evidence of the ability to support 
the child, interviews with members of the household, a home visit or 
home study as discussed at Sec.  410.1204. In all cases, ORR shall 
require background and criminal records checks, which at minimum 
includes an investigation of public records sex offender registry 
conducted through the U.S. Department of Justice National Sex Offender 
public website for all sponsors and adult residents of the potential 
sponsor's household, and may include a public records background check 
or an FBI National Criminal history check based on fingerprints for 
some potential sponsors and adult residents of the potential sponsor's 
household. Any such assessment shall also take into consideration the 
wishes and concerns of the unaccompanied child.
    (d) ORR shall assess the nature and extent of the potential 
sponsor's previous and current relationship with the unaccompanied 
child, and the unaccompanied child's family, if applicable. Lack of a 
pre-existing relationship with the child does not categorically 
disqualify a potential sponsor, but the lack of such relationship will 
be a factor in ORR's overall suitability assessment.
    (e) ORR shall consider the potential sponsor's motivation for 
sponsorship; the unaccompanied child's preferences and perspective 
regarding release to the potential sponsor; and the unaccompanied 
child's parent's or legal guardian's preferences and perspective on 
release to the potential sponsor, as applicable.
    (f) ORR shall evaluate the unaccompanied child's current 
functioning and strengths in conjunction with any risks or concerns 
such as:
    (1) Victim of sex or labor trafficking or other crime, or is 
considered to be at risk for such trafficking due, for example, to 
observed or expressed current needs, e.g., expressed need to work or 
earn money;
    (2) History of criminal or juvenile justice system involvement 
(including evaluation of the nature of the involvement, for example, 
whether the child was adjudicated and represented by counsel, and the 
type of offense) or gang involvement;
    (3) History of behavioral issues;
    (4) History of violence;
    (5) Any individualized needs, including those related to 
disabilities or other medical or behavioral/mental health issues;
    (6) History of substance use; or
    (7) Parenting or pregnant unaccompanied child.
    (g) For individual sponsors, ORR shall consider the potential 
sponsor's strengths and resources in conjunction with any risks or 
concerns that could affect their ability to function as a sponsor 
including:
    (1) Criminal background;
    (2) Substance use or history of abuse or neglect;
    (3) The physical environment of the home; and/or
    (4) Other child welfare concerns.
    (h) ORR shall assess the potential sponsor's:
    (1) Understanding of the unaccompanied child's needs;
    (2) Plan to provide adequate care, supervision, and housing to meet 
the unaccompanied child's needs;
    (3) Understanding and awareness of responsibilities related to 
compliance with the unaccompanied child's immigration court 
proceedings, school attendance, and U.S. child labor laws; and
    (4) Awareness of and ability to access community resources.
    (i) ORR shall develop a release plan that will enable a safe 
release to a potential sponsor through the provision of post-release 
services if needed.


Sec.  410.1203  Release approval process.

    (a) ORR or the care provider providing care for the unaccompanied 
child shall make and record the prompt and continuous efforts on its 
part towards family unification and the release of the unaccompanied 
child pursuant to the provisions of this section. These efforts include 
intakes and admissions assessments and the provision of ongoing case 
management services to identify potential sponsors.
    (b) If a potential sponsor is identified, ORR shall explain to both 
the unaccompanied child and the potential sponsor the requirements and 
procedures for release.
    (c) Pursuant to the requirements of Sec.  410.1202, the potential 
sponsor shall complete an application for release of the unaccompanied 
child, which includes supporting information and documentation 
regarding the sponsor's identity; the sponsor's relationship to the 
child; background information on the potential sponsor and the 
potential sponsor's household members; the sponsor's ability to provide 
care for the unaccompanied child; and the sponsor's commitment to 
fulfill the sponsor's obligations in the Sponsor Care Agreement, which 
requires the sponsor to:
    (1) Provide for the unaccompanied child's physical and mental well-
being;
    (2) Ensure the unaccompanied child's compliance with DHS and 
immigration courts' requirements;
    (3) Adhere to existing Federal and applicable state child labor and 
truancy laws;
    (4) Notify DHS, the Executive Office for Immigration Review (EOIR) 
at the Department of Justice, and other relevant parties of changes of 
address;
    (5) Provide notice of initiation of any dependency proceedings or 
any risk to the unaccompanied child as described in the Sponsor Care 
Agreement; and
    (6) In the case of sponsors other than parents or legal guardians, 
notify ORR of a child moving to another location with another 
individual or change of address. Also, in the event of an emergency 
(e.g., serious illness or destruction of the home), a sponsor may 
transfer temporary physical custody of the unaccompanied child to 
another person who will comply with the Sponsor Care Agreement, but the 
sponsor must notify ORR as soon as possible and no later than 72 hours 
after the transfer.

[[Page 34593]]

    (d) ORR shall conduct a sponsor suitability assessment consistent 
with the requirements of Sec.  410.1202.
    (e) ORR shall not be required to release an unaccompanied child to 
any person or agency it has reason to believe may harm or neglect the 
unaccompanied child or fail to present the unaccompanied child before 
DHS or the immigration courts when requested to do so.
    (f) During the release approval process, ORR shall educate the 
sponsor about the needs of the unaccompanied child and develop an 
appropriate plan to care for the unaccompanied child.


Sec.  410.1204  Home studies.

    (a) As part of assessing the suitability of a potential sponsor, 
ORR may require a home study. A home study includes an investigation of 
the living conditions in which the unaccompanied child would be placed 
and takes place prior to the child's physical release, the standard of 
care the child would receive, and interviews with the potential sponsor 
and others in the sponsor's household.
    (b) ORR shall require home studies under the following 
circumstances:
    (1) Under the conditions identified in TVPRA at 8 U.S.C. 
1232(c)(3)(B), which requires home studies for the following:
    (i) A child who is a victim of a severe form of trafficking in 
persons;
    (ii) A child with a disability (as defined in 42 U.S.C. 12102) who 
requires particularized services or treatment;
    (iii) A child who has been a victim of physical or sexual abuse 
under circumstances that indicate that the child's health or welfare 
has been significantly harmed or threatened; or
    (iv) A child whose potential sponsor clearly presents a risk of 
abuse, maltreatment, exploitation, or trafficking to the child based on 
all available objective evidence.
    (2) Before releasing any child to a non-relative sponsor who is 
seeking to sponsor multiple children, or who has previously sponsored 
or sought to sponsor a child and is seeking to sponsor additional 
children.
    (3) Before releasing any child who is 12 years old or younger to a 
non-relative sponsor.
    (c) ORR may, in its discretion, initiate home studies if it 
determines that a home study is likely to provide additional 
information which could assist in determining that the potential 
sponsor is able to care for the health, safety, and well-being of the 
unaccompanied child.
    (d) The care provider must inform the potential sponsor whenever a 
home study is conducted, explaining the scope and purpose of the study 
and answering the potential sponsor's questions about the process.
    (e) An unaccompanied child for whom a home study is conducted shall 
receive an offer of post-release services as described at Sec.  
410.1210.


Sec.  410.1205  Release decisions; denial of release to a sponsor.

    (a) A potential sponsorship shall be denied, if as part of the 
sponsor assessment process described at Sec.  410.1202 or the release 
process described at Sec.  410.1203, ORR determines that the potential 
sponsor is not capable of providing for the physical and mental well-
being of the unaccompanied child or that the placement would result in 
danger to the unaccompanied child or the community.
    (b) ORR shall adjudicate the completed sponsor application of a 
parent or legal guardian; brother, sister, or grandparent; or other 
close relative who has been the child's primary caregiver within 10 
calendar days of receipt of the completed sponsor application, absent 
an unexpected delay (such as a case that requires completion of a home 
study). ORR shall adjudicate the completed sponsor application of other 
close relatives who were not the child's primary caregiver within 14 
calendar days of receipt of the completed sponsor application, absent 
an unexpected delay (such as a case that requires completion of a home 
study).
    (c) If ORR denies release of an unaccompanied child to a potential 
sponsor who is a parent or legal guardian or close relative, the ORR 
Director or their designee who is a neutral and detached decision maker 
shall promptly notify the potential sponsor of the denial in writing 
via a Notification of Denial letter. The Notification of Denial letter 
shall include:
    (1) An explanation of the reason(s) for the denial;
    (2) The evidence and information supporting ORR's denial decision 
and shall advise the potential sponsor that they have the opportunity 
to examine the evidence upon request, unless ORR determines that 
providing the evidence and information, or part thereof, to the 
potential sponsor would compromise the safety and well-being of the 
unaccompanied child or is not permitted by law;
    (3) Notice that the proposed sponsor may request an appeal of the 
denial to the Assistant Secretary for Children and Families, or a 
designee who is a neutral and detached decision maker and instructions 
for doing so;
    (4) Notice that the potential sponsor may submit additional 
evidence, in writing before a hearing occurs, or orally during a 
hearing;
    (5) Notice that the potential sponsor may present witnesses and 
cross-examine ORR's witnesses, if such sponsor and ORR witnesses are 
willing to voluntarily testify; and
    (6) Notice that the potential sponsor may be represented by counsel 
in proceedings related to the release denial at no cost to the Federal 
Government.
    (d) The ORR Director, or a designee who is a neutral and detached 
decision maker, shall review denials of completed sponsor applications 
submitted by parents or legal guardians or close relative potential 
sponsors.
    (e) ORR shall inform the unaccompanied child, the unaccompanied 
child's child advocate, and the unaccompanied child's counsel (or if 
the unaccompanied child has no attorney of record or DOJ Accredited 
Representative, the local legal service provider) of a denial of 
release to the unaccompanied child's parent or legal guardian or close 
relative potential sponsor and inform them that they have the right to 
inspect the evidence underlying ORR's decision upon request unless ORR 
determines that disclosure is not permitted by law.
    (f) If the sole reason for denial of release is a concern that the 
unaccompanied child is a danger to self or others, ORR shall send the 
unaccompanied child and their counsel (if represented by counsel) a 
copy of the Notification of Denial described at paragraph (c) of this 
section. The child may seek an appeal of the denial.
    (g) ORR shall permit unaccompanied children to have the assistance 
of counsel, at no cost to the Federal Government, with respect to 
release or the denial of release to a potential sponsor.


Sec.  410.1206  Appeals of release denials.

    (a) Denied parent or legal guardian or close relative potential 
sponsors to whom ORR's Director or their designee, who is a neutral and 
detached decision maker, must send Notification of Denial letters 
pursuant to Sec.  410.1205 may seek an appeal of ORR's decision by 
submitting a written request to the Assistant Secretary for ACF, or the 
Assistant Secretary's neutral and detached designee.
    (b) The requestor may seek an appeal with a hearing or without a 
hearing. The Assistant Secretary, or their neutral and detached 
designee, shall acknowledge

[[Page 34594]]

the request for appeal within five business days of receipt.
    (c) If the sole reason for denial of release is concern that the 
unaccompanied child is a danger to self or others, the unaccompanied 
child may seek an appeal of the denial as described in paragraphs (a) 
and (b) of this section. If the unaccompanied child expresses a desire 
to seek an appeal, the unaccompanied child may consult with their 
attorney of record at no cost to the Federal Government or a legal 
service provider for assistance with the appeal. The unaccompanied 
child may seek such appeal at any time after denial of release while 
the unaccompanied child is in ORR custody.
    (d) ORR shall deliver the full evidentiary record including any 
countervailing or otherwise unfavorable evidence, apart from any 
legally required redactions, to the denied parent or legal guardian or 
close relative potential sponsor within a reasonable timeframe to be 
established by ORR, unless ORR determines that providing the 
evidentiary record, or part(s) thereof, to the potential sponsor would 
compromise the safety and well-being of the unaccompanied child.
    (e) ORR shall deliver the unaccompanied child's complete case file, 
apart from any legally required redactions, to a parent or legal 
guardian potential sponsor on request within a reasonable timeframe to 
be established by ORR, unless ORR determines that providing the 
complete case file, or part(s) thereof, to the parent or legal guardian 
potential sponsor would compromise the safety and well-being of the 
unaccompanied child. ORR shall deliver the unaccompanied child's 
complete case file, apart from any legally required redactions, to the 
unaccompanied child and the unaccompanied child's attorney or legal 
service provider on request within a reasonable timeframe to be 
established by ORR.
    (f) The appeal process, including notice of decision on appeal sent 
to the potential sponsor, shall be completed within 30 calendar days of 
the potential sponsor's request for an appeal, unless an extension of 
time is granted by the Assistant Secretary or their neutral and 
detached designee for good cause.
    (g) The appeal of a release denial shall be considered, and any 
hearing shall be conducted, by the Assistant Secretary, or their 
neutral and detached designee. Upon making a decision to reverse or 
uphold the decision denying release to the potential sponsor, the 
Assistant Secretary or their neutral and detached designee, shall issue 
a written decision, either ordering or denying release to the potential 
sponsor within the timeframe described in Sec.  410.1206(f). If the 
Assistant Secretary, or their neutral and detached designee, denies 
release to the potential sponsor, the decision shall set forth 
detailed, specific, and individualized reasoning for the decision. ORR 
shall also notify the unaccompanied child and the child's attorney of 
the denial. ORR shall inform the potential sponsor and the 
unaccompanied child of any right to seek review of an adverse decision 
in the United States District Court.
    (h) ORR shall make qualified interpretation and/or translation 
services available to unaccompanied children and denied parent or legal 
guardian or close relative potential sponsors upon request for purposes 
of appealing denials of release. Such services shall be available to 
unaccompanied children and denied parent or legal guardian or close 
relative potential sponsors in enclosed, confidential areas.
    (i) If a child is released to another sponsor during the pendency 
of the appeal process, the appeal will be deemed moot.
    (j)(1) Denied parent or legal guardian or close relative potential 
sponsors to whom ORR must send Notification of Denial letters pursuant 
to Sec.  410.1205 have the right to be represented by counsel in 
proceedings related to the release denial, including at any hearing, at 
no cost to the Federal Government.
    (2) The unaccompanied child has the right to consult with counsel 
during the potential sponsor's appeal process at no cost to the Federal 
Government.


Sec.  410.1207  Ninety (90)-day review of pending sponsor applications.

    (a) ORR supervisory staff who supervise field staff shall conduct 
an automatic review of all pending sponsor applications. The first 
automatic review shall occur within 90 days of an unaccompanied child 
entering ORR custody to identify and resolve in a timely manner the 
reasons that a sponsor application remains pending and to determine 
possible steps to accelerate the unaccompanied child's safe release.
    (b) Upon completion of the initial 90-day review, unaccompanied 
child case managers or other designated agency or care provider staff 
shall update the potential sponsor and unaccompanied child on the 
status of the case, explaining the reasons that the release process is 
incomplete. Case managers or other designated agency or care provider 
staff shall work with the potential sponsor, relevant stakeholders, and 
ORR to address the portions of the sponsor application that remain 
unresolved.
    (c) For cases that are not resolved after the initial 90-day 
review, ORR supervisory staff who supervise field staff shall conduct 
additional reviews as provided in Sec.  410.1207(a) at least every 90 
days until the pending sponsor application is resolved. ORR may in its 
discretion and subject to resource availability conduct additional 
reviews on a more frequent basis than every 90 days.


Sec.  410.1208  ORR's discretion to place an unaccompanied child in the 
Unaccompanied Refugee Minors Program.

    (a) An unaccompanied child may be eligible for services through the 
ORR Unaccompanied Refugee Minors (URM) Program. Eligible categories of 
unaccompanied children include:
    (1) Cuban and Haitian entrant as defined in section 501 of the 
Refugee Education Assistance Act of 1980, 8 U.S.C. 1522 note, and as 
provided for at 45 CFR 400.43;
    (2) An individual determined to be a victim of a severe form of 
trafficking as defined in 22 U.S.C. 7102(11);
    (3) An individual DHS has classified as a Special Immigrant 
Juvenile (SIJ) under section 101(a)(27)(J) of the Immigration and 
Nationality Act (INA), 8 U.S.C. 1101(a)(27)(J), and who was either in 
the custody of HHS at the time a dependency order was granted for such 
child or who was receiving services pursuant to section 501(a) of the 
Refugee Education Assistance Act of 1980, 8 U.S.C. 1522 note, at the 
time such dependency order was granted;
    (4) U nonimmigrant status recipients under 8 U.S.C. 1101(a)(15)(U); 
or
    (5) Other populations of children as authorized by Congress.
    (b) With respect to unaccompanied children described in paragraph 
(a) of this section, ORR shall evaluate each unaccompanied child case 
to determine whether it is in the child's best interests to be placed 
in the URM Program.
    (c) When ORR places an unaccompanied child pursuant to this section 
to receive services through the URM Program, legal responsibility of 
the child, including legal custody or guardianship, must be established 
under State law as required by 45 CFR 400.115. Until such legal custody 
or guardianship is established, the ORR Director shall retain legal 
custody of the child.


Sec.  410.1209  Requesting specific consent from ORR regarding custody 
proceedings.

    (a) An unaccompanied child in ORR custody is required to request 
specific consent from ORR if the child seeks to

[[Page 34595]]

invoke the jurisdiction of a juvenile court to determine or alter the 
child's custody status or release from ORR custody.
    (b) If an unaccompanied child seeks to invoke the jurisdiction of a 
juvenile court for a dependency order to petition for Special Immigrant 
Juvenile (SIJ) classification or to otherwise permit a juvenile court 
to establish jurisdiction regarding a child's placement and does not 
seek the juvenile court's jurisdiction to determine or alter the 
child's custody status or release, the unaccompanied child does not 
need to request specific consent from ORR.
    (c) Prior to a juvenile court determining or altering the 
unaccompanied child's custody status or release from ORR, attorneys or 
others acting on behalf of an unaccompanied child must complete a 
request for specific consent.
    (d) ORR shall acknowledge receipt of the request within two 
business days.
    (e) Consistent with its duty to promptly place unaccompanied 
children in the least restrictive setting that is in the best interest 
of the child, ORR shall consider whether ORR custody is required to:
    (1) Ensure a child's safety; or
    (2) Ensure the safety of the community.
    (f) ORR shall make determinations on specific consent requests 
within 60 business days of receipt of a request. When possible, ORR 
shall expedite urgent requests.
    (g) ORR shall inform the unaccompanied child, or the unaccompanied 
child's attorney or other authorized representative of the decision on 
the specific consent request in writing, along with the evidence 
utilized to make the decision.
    (h) The unaccompanied child, the unaccompanied child's attorney of 
record, or other authorized representative may request reconsideration 
of ORR's denial with the Assistant Secretary for ACF within 30 business 
days of receipt of the ORR notification of denial of the request. The 
unaccompanied child, the unaccompanied child's attorney, or authorized 
representative may submit additional (including new) evidence to be 
considered with the reconsideration request.
    (i) The Assistant Secretary, or their designee, shall consider the 
request for reconsideration and any additional evidence, and send a 
final administrative decision to the unaccompanied child, or the 
unaccompanied child's attorney or other authorized representative, 
within 15 business days of receipt of the request.


Sec.  410.1210  Post-release services.

    (a) General. (1) Before releasing unaccompanied children, care 
provider facilities shall work with sponsors and unaccompanied children 
to prepare for safe and timely release of the unaccompanied children, 
to assess whether the unaccompanied children may need assistance in 
accessing community resources, and to provide guidance regarding safety 
planning and accessing services.
    (2) ORR shall offer post-release services (PRS) for unaccompanied 
children for whom a home study was conducted pursuant to Sec.  
410.1204. An unaccompanied child who receives a home study and PRS may 
also receive home visits by a PRS provider.
    (3) To the extent that ORR determines appropriations are available, 
and in its discretion, ORR may offer PRS for all released children. ORR 
may give additional consideration, consistent with paragraph (c), for 
cases involving unaccompanied children with mental health or other 
needs who could particularly benefit from ongoing assistance from a 
community-based service provider, to prioritize potential cases as 
needed. ORR shall make an initial determination of the level and extent 
of PRS, if any, based on the needs of the unaccompanied children and 
the sponsors and the extent appropriations are available. PRS providers 
may conduct subsequent assessments based on the needs of the 
unaccompanied children and the sponsors that result in a modification 
to the level and extent of PRS assigned to the unaccompanied children.
    (4) ORR shall not delay the release of an unaccompanied child if 
PRS are not immediately available.
    (b) Service areas. PRS include services in the areas listed in 
paragraphs (b)(1) through (12) of this section, which shall be provided 
in a manner that is sensitive to the individual needs of the 
unaccompanied child and in a way they effectively understand regardless 
of spoken language, reading comprehension, or disability to ensure 
meaningful access for all eligible children, including those with 
limited English proficiency. The comprehensiveness of PRS shall depend 
on the extent appropriations are available.
    (1) Placement stability and safety. PRS providers shall work with 
sponsors and unaccompanied children to address challenges in parenting 
and caring for unaccompanied children. This may include guidance about 
maintaining a safe home; supervision of unaccompanied children; 
protecting unaccompanied children from threats by smugglers, 
traffickers, and gangs; and information about child abuse, neglect, 
separation, grief, and loss, and how these issues affect children.
    (2) Immigration proceedings. The PRS provider shall help facilitate 
the sponsor's plan to ensure the unaccompanied child's attendance at 
all immigration court proceedings and compliance with DHS requirements.
    (3) Guardianship. If the sponsor is not a parent or legal guardian 
of the unaccompanied child, then the PRS provider shall provide the 
sponsor and unaccompanied child information about the benefits of 
obtaining legal guardianship of the child. If the sponsor is interested 
in becoming the unaccompanied child's legal guardian, then the PRS 
provider may assist the sponsor in identifying the legal resources to 
do so.
    (4) Legal services. PRS providers shall assist sponsors and 
unaccompanied children in accessing relevant legal service resources 
including resources for immigration matters and unresolved juvenile 
justice issues.
    (5) Education. PRS providers shall assist sponsors with school 
enrollment and shall assist the sponsors and unaccompanied children 
with addressing issues relating to the unaccompanied children's 
progress in school, including attendance. PRS providers may also assist 
with alternative education plans for unaccompanied children who exceed 
the State's maximum age requirement for mandatory school attendance. 
PRS providers may also assist sponsors with obtaining evaluations for 
unaccompanied children reasonably suspected of having a disability to 
determine eligibility for a free appropriate public education (which 
can include special education and related services) or reasonable 
modifications and auxiliary aids and services.
    (6) Employment. PRS providers shall educate sponsors and 
unaccompanied children on U.S. child labor laws and requirements.
    (7) Medical services. PRS providers shall assist the sponsor in 
obtaining medical insurance for the unaccompanied child if available 
and in locating medical providers that meet the individual needs of the 
unaccompanied child and the sponsor. If the unaccompanied child 
requires specialized medical assistance, the PRS provider shall assist 
the sponsor in making and keeping medical appointments and monitoring 
the unaccompanied child's medical requirements. PRS providers shall 
provide the unaccompanied child and

[[Page 34596]]

sponsor with information and referrals to services relevant to health-
related considerations for the unaccompanied child.
    (8) Individual mental health services. PRS providers shall provide 
the sponsor and unaccompanied child with relevant mental health 
resources and referrals for the child. The resources and referrals 
shall take into account the individual needs of the unaccompanied child 
and sponsor. If an unaccompanied child requires specialized mental 
health assistance, PRS providers shall assist the sponsor in making and 
keeping mental health appointments and monitoring the unaccompanied 
child's mental health requirements.
    (9) Family stabilization/counseling. PRS providers shall provide 
the sponsor and unaccompanied child with relevant resources and 
referrals for family counseling and/or individual counseling that meet 
individual needs of the child and the sponsor.
    (10) Substance use. PRS providers shall assist the sponsor and 
unaccompanied child in locating resources to help address any substance 
use-related needs of the child.
    (11) Gang prevention. PRS providers shall provide the sponsor and 
unaccompanied child information about gang prevention programs in the 
sponsor's community.
    (12) Other services. PRS providers may assist the sponsor and 
unaccompanied child with accessing local resources in other specialized 
service areas based on the needs and at the request of the 
unaccompanied child or the sponsor.
    (c) Additional considerations for prioritizing provision of PRS. 
ORR may prioritize referring unaccompanied children with the following 
needs for PRS if appropriations are not available for it to offer PRS 
to all children:
    (1) Unaccompanied children in need of particular services or 
treatment;
    (2) Unaccompanied children with disabilities;
    (3) Unaccompanied children who identify as LGBTQI+;
    (4) Unaccompanied children who are adjudicated delinquent or who 
have been involved in, or are at high risk of involvement with the 
juvenile justice system;
    (5) Unaccompanied children who entered ORR care after being 
separated by DHS from a parent or legal guardian;
    (6) Unaccompanied children who are victims of human trafficking or 
other crimes;
    (7) Unaccompanied children who are victims of, or at risk of, 
worker exploitation;
    (8) Unaccompanied children who are at risk for labor trafficking;
    (9) Unaccompanied children who are certain parolees; and
    (10) Unaccompanied children enrolled in school who are chronically 
absent or retained at the end of their school year.
    (d) Assessments. The PRS provider shall assess the released 
unaccompanied child and sponsor for PRS needs and shall document the 
assessment. The assessment shall be developmentally appropriate, 
trauma-informed, and focused on the needs of the unaccompanied child 
and sponsor.
    (e) Ongoing check-ins and in-home visits. (1) In consultation with 
the released unaccompanied child and sponsor, the PRS provider shall 
make a determination regarding the appropriate methods, timeframes, and 
schedule for ongoing contact with the released unaccompanied child and 
sponsor based on the level of need and support needed.
    (2) PRS providers shall document all ongoing check-ins and in-home 
visits, as well as document progress and outcomes of their home visits.
    (f) Referrals to community resources. (1) PRS providers shall work 
with released unaccompanied children and their sponsors to access 
community resources.
    (2) PRS providers shall document any community resource referrals 
and their outcomes.
    (g) Timeframes for PRS. (1) For a released unaccompanied child who 
is required under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to receive an 
offer of PRS, the PRS provider shall to the greatest extent practicable 
start services within two (2) days of the unaccompanied child's 
released from ORR care. If a PRS provider is unable to start PRS within 
two (2) days of the unaccompanied child's release, PRS shall, to the 
greatest extent possible, start no later than 30 days after release.
    (2) For a released unaccompanied child who is referred by ORR to 
receive PRS but is not required to receive an offer of PRS following a 
home study, the PRS provider shall to the greatest extent practicable 
start services within two (2) days of accepting a referral.
    (h) Termination of PRS. (1) For a released unaccompanied child who 
is required to receive an offer of PRS under the TVPRA at 8 U.S.C. 
1232(c)(3)(B), PRS shall be offered for the unaccompanied child until 
the unaccompanied child turns 18 or the unaccompanied child is granted 
voluntary departure, granted immigration status, or the child leaves 
the United States pursuant to a final order of removal, whichever 
occurs first.
    (2) For a released unaccompanied child who is not required to 
receive an offer of PRS under the TVPRA at 8 U.S.C. 1232(c)(3)(B), but 
who receives PRS as authorized under the TVPRA, PRS may be offered for 
the unaccompanied child until the unaccompanied child turns 18, or the 
unaccompanied child is granted voluntary departure, granted immigration 
status, or the child leaves pursuant to a final order of removal, 
whichever occurs first.
    (3) If an unaccompanied child's sponsor, except for a parent or 
legal guardian, chooses to disengage from PRS and the child wishes to 
continue receiving PRS, ORR may continue to make PRS available to the 
child through coordination between the PRS provider and a qualified ORR 
staff member.
    (i) Records and reporting requirements for PRS providers--(1) 
General. (i) PRS providers shall maintain comprehensive, accurate, and 
current case files on unaccompanied children that are kept confidential 
and secure at all times and shall be accessible to ORR upon request. 
PRS providers shall maintain all case file information together in the 
PRS provider's physical and electronic files.
    (ii) PRS providers shall upload all PRS documentation on services 
provided to unaccompanied children and sponsors to ORR's case 
management system within seven (7) days of completion of the services.
    (2) Records management and retention. (i) PRS providers shall have 
written policies and procedures for organizing and maintaining the 
content of active and closed case files, which incorporate ORR policies 
and procedures. The PRS provider's policies and procedures shall also 
address preventing the physical damage or destruction of records.
    (ii) Before providing PRS, PRS providers shall have established 
administrative and physical controls to prevent unauthorized access to 
both electronic and physical records.
    (iii) PRS providers may not release records to any third party 
without prior approval from ORR, except for program administration 
purposes.
    (iv) If a PRS provider is no longer providing PRS for ORR, the PRS 
provider shall provide all active and closed case file records to ORR 
according to instructions issued by ORR.
    (3) Privacy. (i) PRS providers shall have written policy and 
procedure in place that protects the information of

[[Page 34597]]

released unaccompanied children from access by unauthorized users.
    (ii) PRS providers shall explain to released unaccompanied children 
and their sponsors how, when, and under what circumstances sensitive 
information may be shared while the unaccompanied children receive PRS.
    (iii) PRS providers shall have appropriate controls on information-
sharing within the PRS provider network, including, but not limited to, 
subcontractors.
    (4) Notification of Concern. (i) If the PRS provider is concerned 
about the unaccompanied child's safety and well-being, the PRS provider 
shall document a Notification of Concern (NOC) and report the 
concern(s) to ORR, and as applicable, the appropriate investigative 
agencies (including law enforcement and child protective services).
    (ii) PRS providers shall document and submit NOCs to ORR within 24 
hours of first suspicion or knowledge of the event(s).
    (5) Case closures. (i) PRS providers shall formally close a case 
when ORR terminates PRS in accordance with paragraph (h) of this 
section.
    (ii) ORR shall provide appropriate instructions, including any 
relevant forms, that PRS providers must follow when closing a case.
    (iii) PRS providers shall upload any relevant forms into ORR's case 
management system within 30 calendar days of a case's closure.

Subpart D--Minimum Standards and Required Services


Sec.  410.1300  Purpose of this subpart.

    This subpart covers standards and required services that care 
provider facilities must meet and provide in keeping with the 
principles of treating unaccompanied children in custody with dignity, 
respect, and special concern for their particular vulnerability.


Sec.  410.1301  Applicability of this subpart.

    This subpart applies to all standard programs and secure 
facilities. This subpart is applicable to other care provider 
facilities and to PRS providers where specified.


Sec.  410.1302  Minimum standards applicable to standard programs and 
secure facilities.

    Standard programs and secure facilities shall:
    (a) Be licensed by an appropriate State agency, or meet the State's 
licensing requirements if located in a State that does not allow State 
licensing of programs providing or proposing to provide care and 
services to unaccompanied children.
    (b) Comply with all State child welfare laws and regulations (such 
as mandatory reporting of abuse) and all State and local building, 
fire, health, and safety codes.
    (c) Provide or arrange for the following services for each 
unaccompanied child in care:
    (1) Proper physical care and maintenance, including suitable living 
accommodations, food that is of adequate variety, quality, and in 
sufficient quantity to supply the nutrients needed for proper growth 
and development, which can be accomplished by following the USDA 
Dietary Guidelines for Americans, and appropriate for the child and 
activity level, drinking water that is always available to each 
unaccompanied child, appropriate clothing, personal grooming and 
hygiene items such as soap, toothpaste and toothbrushes, floss, towels, 
feminine care items, and other similar items, access to toilets, 
showers, and sinks, adequate temperature control and ventilation, 
maintenance of safe and sanitary conditions that are consistent with 
ORR's concern for the particular vulnerability of children, and 
adequate supervision to protect unaccompanied children from others;
    (2) An individualized needs assessment that shall include:
    (i) Various initial intake forms;
    (ii) Essential data relating to the identification and history of 
the unaccompanied child and family;
    (iii) Identification of the unaccompanied child's individualized 
needs including any specific problems that appear to require immediate 
intervention;
    (iv) An educational assessment and plan;
    (v) Identification of whether the child is an Indigenous language 
speaker;
    (vi) An assessment of family relationships and interaction with 
adults, peers and authority figures;
    (vii) A statement of religious preference and practice;
    (viii) An assessment of the unaccompanied child's personal goals, 
strengths, and weaknesses; and
    (iv) Identifying information regarding immediate family members, 
other relatives, godparents, or friends who may be residing in the 
United States and may be able to assist in family unification;
    (3) Educational services appropriate to the unaccompanied child's 
level of development, communication skills, and disability, if 
applicable, in a structured classroom setting, Monday through Friday, 
which concentrate on the development of basic academic competencies and 
on English Language Training (ELT), as well as acculturation and life 
skills development including:
    (i) Instruction and educational and other reading materials in such 
languages as needed;
    (ii) Instruction in basic academic areas that may include science, 
social studies, math, reading, writing, and physical education; and
    (iii) The provision to an unaccompanied child of appropriate 
reading materials in languages other than English for use during the 
unaccompanied child's leisure time;
    (4) Activities according to a recreation and leisure time plan that 
include daily outdoor activity, weather permitting, at least one hour 
per day of large muscle activity and one hour per day of structured 
leisure time activities, which do not include time spent watching 
television. Activities must be increased to at least three hours on 
days when school is not in session;
    (5) At least one individual counseling session per week conducted 
by certified counseling staff with the specific objectives of reviewing 
the unaccompanied child's progress, establishing new short and long-
term objectives, and addressing both the developmental and crisis-
related needs of each unaccompanied child;
    (6) Group counseling sessions at least twice a week;
    (7) Acculturation and adaptation services that include information 
regarding the development of social and inter-personal skills that 
contribute to those abilities necessary to live independently and 
responsibly;
    (8) An admissions process, including:
    (i) Meeting unaccompanied children's immediate needs to food, 
hydration, and personal hygiene including the provision of clean 
clothing and bedding;
    (ii) An initial intakes assessment covering biographic, family, 
migration, health history, substance use, and mental health history of 
the unaccompanied child. If the unaccompanied child's responses to 
questions during any examination or assessment indicate the possibility 
that the unaccompanied child may have been a victim of human 
trafficking or labor exploitation, the care provider facility must 
notify the ACF Office of Trafficking in Persons within twenty-four (24) 
hours;
    (iii) A comprehensive orientation regarding program purpose, 
services, rules (provided in writing and orally), expectations, their 
rights in ORR care, and the availability of legal assistance, 
information about U.S. immigration and employment/labor laws, and 
services from the Unaccompanied Children Office of the Ombuds (UC 
Office of the

[[Page 34598]]

Ombuds) in simple, non-technical terms and in a language and manner 
that the child understands, if practicable; and
    (iv) Assistance with contacting family members, following the ORR 
Guide and the care provider facility's internal safety procedures;
    (9) Whenever possible, access to religious services of the 
unaccompanied child's choice, celebrating culture-specific events and 
holidays, being culturally aware in daily activities as well as food 
menus, choice of clothing, and hygiene routines, and covering various 
cultures in children's educational services;
    (10) Visitation and contact with family members (regardless of 
their immigration status) which is structured to encourage such 
visitation, including at least 15 minutes of phone or video contact 
three times a week with parents and legal guardians, family members, 
and caregivers located in the United States and abroad, in a private 
space that ensures confidentiality and at no cost to the unaccompanied 
child, parent, legal guardian, family member, or caregiver. The staff 
shall respect the unaccompanied child's privacy while reasonably 
preventing the unauthorized release of the unaccompanied child;
    (11) Assistance with family unification services designed to 
identify and verify relatives in the United States as well as in 
foreign countries and assistance in obtaining legal guardianship when 
necessary for release of the unaccompanied child;
    (12) Legal services information regarding the availability of free 
legal assistance, and that they may be represented by counsel at no 
expense to the Government, the right to a removal hearing before an 
immigration judge; the ability to apply for asylum with U.S. 
Citizenship and Immigration Services (USCIS) in the first instance, and 
the ability to request voluntary departure in lieu of removal;
    (13) Information about U.S. child labor laws and education around 
permissible work opportunities in a manner that is sensitive to the 
age, culture, and native or preferred language of each unaccompanied 
child; and
    (14) Unaccompanied children must have a reasonable right to 
privacy, which includes the right to wear the child's own clothes when 
available, retain a private space in the residential facility, group or 
foster home for the storage of personal belongings, talk privately on 
the phone and visit privately with guests, as permitted by the house 
rules and regulations, and receive and send uncensored mail unless 
there is a reasonable belief that the mail contains contraband.
    (d) Deliver services in a manner that is sensitive to the age, 
culture, native or preferred language, and the complex needs of each 
unaccompanied child.
    (e) Develop a comprehensive and realistic individual service plan 
for the care of each unaccompanied child in accordance with the 
unaccompanied child 's needs as determined by the individualized needs 
assessment. Individual plans must be implemented and closely 
coordinated through an operative case management system. Service plans 
should identify individualized, person-centered goals with measurable 
outcomes and with steps or tasks to achieve the goals, be developed 
with input from the unaccompanied child, and be reviewed and updated at 
regular intervals. Unaccompanied children ages 14 and older should be 
given a copy of the plan, and unaccompanied children under age 14 
should be given a copy of the plan when appropriate for that particular 
child's development. Individual plans shall be in that child's native 
or preferred language or other mode of auxiliary aid or services and/or 
use clear, easily understood language, using concise and concrete 
sentences and/or visual aids and checking for understanding where 
appropriate.


Sec.  410.1303  ORR Reporting, monitoring, quality control, and 
recordkeeping standards.

    (a) Monitoring activities. ORR shall monitor all care provider 
facilities for compliance with the terms of the regulations in this 
part and 45 CFR part 411. ORR monitoring activities include:
    (1) Desk monitoring that is ongoing oversight from ORR 
headquarters;
    (2) Routine site visits that are day-long visits to facilities to 
review compliance for policies, procedures, and practices and 
guidelines;
    (3) Site visits in response to ORR or other reports that are for a 
specific purpose or investigation; and
    (4) Monitoring visits that are part of comprehensive reviews of all 
care provider facilities.
    (b) Corrective actions. If ORR finds a care provider facility to be 
out of compliance with the regulations in this part and 45 CFR part 411 
or subregulatory policies such as its guidance and the terms of its 
contracts or cooperative agreements, ORR will communicate the concerns 
in writing to the care provider facility director or appropriate person 
through a written monitoring or site visit report, with a list of 
corrective actions and child welfare best practice recommendations, as 
appropriate. ORR will request a response to the corrective action 
findings from the care provider facility and specify a timeframe for 
resolution and the disciplinary consequences for not responding within 
the required timeframes.
    (c) Monitoring of secure facilities. At secure facilities, in 
addition to other monitoring activities, ORR shall review individual 
unaccompanied child case files to make sure children placed in secure 
facilities are assessed at least every 30 days for the possibility of a 
transfer to a less restrictive setting.
    (d) Monitoring of long-term home care and transitional home care 
facilities. ORR long-term home care and transitional home care 
facilities are subject to the same types of monitoring as other care 
provider facilities, but the activities are tailored to the foster care 
arrangement. ORR long-term home care and transitional home care 
facilities that provide services through a sub-contract or sub-grant 
are responsible for conducting annual monitoring or site visits of the 
sub-recipient, as well as weekly desk monitoring. Upon request, care 
provider facilities must provide findings of such reviews to the 
designated ORR point of contact.
    (e) Enhanced monitoring of unlicensed standard programs and 
emergency or influx facilities. In addition to the other requirements 
of this section, for all standard programs that are not State-licensed 
because the State does not allow State licensing of programs providing 
care and services to unaccompanied children, and emergency or influx 
facilities, ORR shall conduct enhanced monitoring, including on-site 
visits and desk monitoring.
    (f) Care provider facility quality assurance. Care provider 
facilities shall develop quality assurance assessment procedures that 
accurately measure and evaluate service delivery in compliance with the 
requirements of the regulations in this part, as well as those 
delineated in 45 CFR part 411.
    (g) Reporting. Care provider facilities shall report to ORR any 
emergency incident, significant incident, or program-level event and in 
accordance with any applicable Federal, State, and local reporting 
laws. Such reports are subject to the following rules:
    (1) Care provider facilities shall document incidents with 
sufficient detail to ensure that any relevant entity can facilitate any 
required follow-up; document incidents in a way that is trauma-informed 
and grounded in child welfare best practices; and update the report 
with any findings or

[[Page 34599]]

documentation that are made after the fact.
    (2) Care provider facilities shall not fabricate, exaggerate, or 
minimize incidents; use disparaging or judgmental language about 
unaccompanied children in incident reports; use incident reporting or 
the threat of incident reporting as a way to manage the behavior of 
unaccompanied children or for any other illegitimate reason.
    (3) Care provider facilities shall not use reports of significant 
incidents as a method of punishment or threat towards any child in ORR 
care for any reason.
    (4) The existence of a report of a significant incident shall not 
be used by ORR as a basis for an unaccompanied child's step-up to a 
restrictive placement or as the sole basis for a refusal to step a 
child down to a less restrictive placement. Care provider facilities 
are likewise prohibited from using the existence of a report of a 
significant incident as a basis for refusing an unaccompanied child's 
placement in their facilities. Reports of significant incidents may be 
used as examples or citations of concerning behavior. However, the 
existence of a report itself is not sufficient for a step-up, a refusal 
to step-down, or a care provider facility to refuse a placement.
    (h) Develop, maintain, and safeguard each individual unaccompanied 
child's case file. This paragraph (h) applies to all care provider 
facilities responsible for the care and custody of unaccompanied 
children.
    (1) Care provider facilities and PRS providers shall preserve the 
confidentiality of unaccompanied child case file records and 
information, and protect the records and information from unauthorized 
use or disclosure;
    (2) The records included in an unaccompanied child's case file are 
ORR's property, regardless of whether they are in ORR's possession or 
in the possession of a care provider facility or PRS provider. Care 
providers facilities and PRS providers shall not release those records 
or information within the records without prior approval from ORR, 
except for program administration purposes;
    (3) Care provider facilities and PRS providers shall provide 
unaccompanied child case file records to ORR immediately upon ORR's 
request; and
    (4) Subject to applicable whistleblower protection laws, employees, 
former employees, or contractors of a care provider facility or PRS 
provider shall not disclose case file records or information about 
unaccompanied children, their sponsors, family, or household members to 
anyone for any purpose, except for purposes of program administration, 
without first providing advanced notice to ORR to allow ORR to ensure 
that disclosure of unaccompanied children's information is compatible 
with program goals and to ensure the safety and privacy of 
unaccompanied children.
    (i) Records. Care provider facilities and PRS providers shall 
maintain adequate records in the unaccompanied child case file and make 
regular reports as required by ORR that permit ORR to monitor and 
enforce the regulations in this part and other requirements and 
standards as ORR may determine are in the interests of the 
unaccompanied child.


Sec.  410.1304  Behavior management and prohibition on seclusion and 
restraint.

    (a) Care provider facilities shall develop behavior management 
strategies that include evidence-based, trauma-informed, and 
linguistically responsive program rules and behavior management 
policies that take into consideration the range of ages and maturity in 
the program and that are culturally sensitive to the needs of each 
unaccompanied child. Care provider facilities shall not use any 
practices that involve negative reinforcement or involve consequences 
or measures that are not constructive and are not logically related to 
the behavior being regulated. Care provider facilities shall not:
    (1) Use or threaten use of corporal punishment, significant 
incident reports as punishment, unfavorable consequences related to 
sponsor unification or legal matters (e.g., immigration, asylum); use 
forced chores or work that serves no purpose except to demean or 
humiliate the child; forced physical movement, such as push-ups and 
running, or uncomfortable physical positions as a form of punishment or 
humiliation; search an unaccompanied child's personal belongings solely 
for the purpose of behavior management; apply medical interventions 
that are not prescribed by a medical provider acting within the usual 
course of professional practice for a medical diagnosis or that 
increase risk of harm to the unaccompanied child or others; and
    (2) Use any sanctions employed in relation to an individual 
unaccompanied child that:
    (i) Adversely affect an unaccompanied child's health, or physical, 
emotional, or psychological well-being; or
    (ii) Deny unaccompanied children meals, hydration, sufficient 
sleep, routine personal grooming activities, exercise (including daily 
outdoor activity), medical care, correspondence or communication 
privileges, religious observation and services, or legal assistance.
    (3) Use prone physical restraints, chemical restraints, or peer 
restraints for any reason in any care provider facility setting.
    (b) Involving law enforcement should be a last resort. A call by a 
facility to law enforcement may trigger an evaluation of staff involved 
regarding their qualifications and training in trauma-informed, de-
escalation techniques.
    (c) Standard programs and residential treatment centers (RTCs) are 
prohibited from using seclusion. Standard programs and RTCs are also 
prohibited from using restraints, except as described at paragraphs (d) 
and (f) of this section.
    (d) Standard programs and RTCs may use personal restraint only in 
emergency safety situations.
    (e) Secure facilities (that are not RTCs):
    (1) May use personal restraints, mechanical restraints and/or 
seclusion in emergency safety situations, and as consistent with State 
licensure requirements. All instances of seclusion must be supervised 
and for the short time-limited purpose of ameliorating the underlying 
emergency risk that poses a serious and immediate danger to the safety 
of others.
    (2) May restrain an unaccompanied child for their own immediate 
safety or that of others during transport.
    (3) May restrain an unaccompanied child while at an immigration 
court or asylum interview if the child exhibits imminent runaway 
behavior, makes violent threats, demonstrates violent behavior, or if 
the secure facility has made an individualized determination that the 
child poses a serious risk of violence or running away if the child is 
unrestrained in court or the interview.
    (4) Must provide all mandated services under this subpart to the 
unaccompanied child to the greatest extent practicable under the 
circumstances while ensuring the safety of the unaccompanied child, 
other unaccompanied children at the secure facility, and others.
    (f) Care provider facilities may only use soft restraints (e.g., 
zip ties and leg or ankle weights) during transport to and from secure 
facilities, and only when the care provider believes a child poses a 
serious risk of physical harm to self or others or a serious risk of 
running away from ORR custody.


Sec.  410.1305  Staff, training, and case manager requirements.

    (a) Standard programs, restrictive placements, and post-release 
service

[[Page 34600]]

(PRS) providers shall provide training to all staff, contractors, and 
volunteers, to ensure that they understand their obligations under ORR 
regulations in this part and policies and are responsive to the 
challenges faced by staff and unaccompanied children. Standard programs 
and restrictive placements shall ensure that staff are appropriately 
trained on its behavior management strategies, including de-escalation 
techniques, as established pursuant to Sec.  410.1304. All trainings 
should be tailored to the unique needs, attributes, and gender of the 
unaccompanied children in care at the individual care provider 
facility. Standard programs, restrictive placements, and PRS providers 
must document the completion of all trainings in personnel files. All 
staff, contractors, and volunteers must have completed required 
background checks and vetting for their respective roles required by 
ORR;
    (b) Care provider facilities shall meet the staff to child ratios 
established by their respective States or other licensing entities; and
    (c) Care provider facilities shall have case managers based on site 
at the facility.


Sec.  410.1306  Language access services.

    (a) General. (1) To the greatest extent practicable, care provider 
facilities shall consistently offer unaccompanied children the option 
of interpretation and translation services in their native or preferred 
language, depending on the unaccompanied children's preference, and in 
a way they effectively understand. If after taking reasonable efforts, 
care provider facilities are unable to obtain a qualified interpreter 
or translator for the unaccompanied children's native or preferred 
language, depending on the children's preference, care provider 
facilities shall consult with qualified ORR staff for guidance on how 
to ensure meaningful access to their programs and activities for the 
children, including those with limited English proficiency.
    (2) Care provider facilities shall prioritize the ability to 
provide in-person, qualified interpreters for unaccompanied children 
who need them, particularly for rare or indigenous languages. After 
care provider facilities take reasonable efforts to obtain in-person, 
qualified interpreters, then they may use qualified remote interpreter 
services.
    (3) Care provider facilities shall translate all documents and 
materials shared with the unaccompanied children, including those 
posted in the facilities, in the unaccompanied children's native or 
preferred language, depending on the children's preference, and in a 
timely manner.
    (b) Placement considerations. ORR shall make placement decisions 
for the unaccompanied children that are informed in part by language 
access considerations and other factors as listed in Sec.  410.1103(b). 
To the extent appropriate and practicable, giving due consideration to 
an unaccompanied child's individualized needs, ORR shall place 
unaccompanied children with similar language needs within the same care 
provider facility.
    (c) Intake, orientation, and confidentiality. (1) Prior to 
completing the UC Assessment and starting counseling services, care 
provider facilities shall provide a written notice of the limits of 
confidentiality they share while in ORR care and custody, and orally 
explain the contents of the written notice to the unaccompanied 
children, in their native or preferred language, depending on the 
children's preference, and in a way they can effectively understand.
    (2) Care provider facilities shall conduct assessments and initial 
medical exams with unaccompanied children in their native or preferred 
language, depending on the children's preference, and in a way they 
effectively understand.
    (3) Care provider facilities shall provide a standardized and 
comprehensive orientation to all unaccompanied children in their native 
or preferred language, depending on the children's preference, and in a 
way they effectively understand regardless of spoken language, reading 
comprehension level, or disability.
    (4) For all step-ups to and step-downs from restrictive placements, 
care provider facilities shall explain to the unaccompanied children 
why they were placed in a restrictive setting and/or if their placement 
was changed and do so in the unaccompanied children's native or 
preferred language, depending on the children's preference, and in a 
way they effectively understand. All documents shall be translated into 
the unaccompanied children's and/or sponsor's native or preferred 
language, depending on the children's preference.
    (5) If the unaccompanied children are not literate, or if the 
documents provided during intakes and/or orientation are not translated 
into a language that they can read and effectively understand, the care 
provider facility shall have a qualified interpreter orally translate 
or sign language translate and explain all the documents in the 
unaccompanied children's native or preferred language, depending on the 
children's preference, and confirm with the unaccompanied children that 
they fully comprehend all material.
    (6) Care provider facilities shall provide information regarding 
grievance reporting policies and procedures in the unaccompanied 
children's native or preferred language, depending on the children's 
preference, and in a way they effectively understand. Care provider 
facilities shall also provide grievance reporting policies and 
procedures in a manner accessible to unaccompanied children with 
disabilities.
    (7) Care provider facilities shall educate unaccompanied children 
on ORR's sexual abuse and sexual harassment policies in the 
unaccompanied children's native or preferred language, depending on the 
children's preference, and in a way they effectively understand.
    (8) Care provider facilities shall notify the unaccompanied 
children that care provider facilities shall accommodate the 
unaccompanied children's language needs while they remain in ORR care.
    (9) For paragraphs (c)(1) through (8) of this section, care 
provider facilities shall document that the unaccompanied children 
acknowledge that they effectively understand what was provided to them 
in the child's case files.
    (d) Education. (1) Care provider facilities shall provide 
educational instruction and relevant materials in a format and language 
accessible to all unaccompanied children, regardless of the child's 
native or preferred language, including, but not limited to, providing 
services from an in-person, qualified interpreter, written translations 
of materials, and qualified remote interpretation when in-person 
interpretation options have been exhausted.
    (2) Care provider facilities shall provide unaccompanied children 
with appropriate recreational reading materials in languages in formats 
and languages accessible to all unaccompanied children for use during 
their leisure time.
    (3) Care provider facilities shall translate all ORR-required 
documents provided to unaccompanied children that are part of 
educational lessons in formats and languages accessible to all 
unaccompanied children. If written translations are not available, care 
provider facilities shall orally translate or sign language translate 
all documents, prioritizing services from an in-person, qualified 
interpreter and translation before using qualified remote 
interpretation and translation services.
    (e) Religious and cultural observation and services. If an 
unaccompanied child

[[Page 34601]]

requests religious and/or cultural information or items, the care 
provider facility shall provide the requested items in the 
unaccompanied child's native or preferred language, depending on the 
child's preference, and as long as the request is reasonable.
    (f) Parent and sponsor communications. Care provider facilities 
shall utilize any necessary qualified interpretation or translation 
services needed to ensure meaningful access by an unaccompanied child's 
parent(s), guardian(s), and/or potential sponsor(s). Care provider 
facilities shall translate all documents and materials shared with the 
parent(s), guardian, and/or potential sponsors in their native or 
preferred language, depending on their preference.
    (g) Healthcare services. While providing or arranging healthcare 
services for unaccompanied children, care provider facilities shall 
ensure that unaccompanied children are able to communicate with 
physicians, clinicians, and healthcare staff in their native or 
preferred language, depending on the unaccompanied children's 
preference, and in a way the unaccompanied children effectively 
understand, prioritizing services from an in-person, qualified 
interpreter before using qualified remote interpretation services.
    (h) Legal services. Care provider facilities shall make qualified 
interpretation and/or translation services available to unaccompanied 
children, child advocates, and legal service providers upon request 
while unaccompanied children are being provided with those services. 
Such services shall be available to unaccompanied children in enclosed, 
confidential areas.
    (i) Interpreter's and translator's responsibility with respect to 
confidentiality of information. Qualified interpreters and translators 
shall keep confidential all information they receive about the 
unaccompanied children's cases and/or services while assisting ORR, its 
grantees, and its contractors, with the provision of case management or 
other services. Qualified interpreters and translators shall not 
disclose case file information to other interested parties or to 
individuals or entities that are not employed by ORR or its grantees 
and contractors or that are not providing services under the direction 
of ORR. Qualified interpreters and translators shall not disclose any 
communication that is privileged by law or protected as confidential 
under this part unless authorized to do so by the parties to the 
communication or pursuant to court order.


Sec.  410.1307  Healthcare services.

    (a) ORR shall ensure that all unaccompanied children in ORR custody 
will be provided with routine medical and dental care; access to 
medical services requiring heightened ORR involvement, consistent with 
paragraph (c) of this section; family planning services; and emergency 
healthcare services.
    (b) Standard programs and restrictive placements shall be 
responsible for:
    (1) Establishment of a network of licensed healthcare providers 
established by the care provider facility, including specialists, 
emergency care services, mental health practitioners, and dental 
providers that will accept ORR's fee-for-service billing system;
    (2) A complete medical examination (including screening for 
infectious disease) within 2 business days of admission, excluding 
weekends and holidays, unless the unaccompanied child was recently 
examined at another facility and if unaccompanied children are still in 
ORR custody 60 to 90 days after admission, an initial dental exam, or 
sooner if directed by State licensing requirements;
    (3) Appropriate immunizations as recommended by the Advisory 
Committee on Immunization Practices' Child and Adolescent Immunization 
Schedule and approved by HHS's Centers for Disease Control and 
Prevention;
    (4) An annual physical examination, including hearing and vision 
screening, and follow-up care for acute and chronic conditions;
    (5) Administration of prescribed medication and special diets;
    (6) Appropriate mental health interventions when necessary;
    (7) Having policies and procedures for identifying, reporting, and 
controlling communicable diseases that are consistent with applicable 
State, local, and Federal laws and regulations.
    (8) Having policies and procedures that enable unaccompanied 
children, including those with language and literacy barriers, to 
convey written and oral requests for emergency and non-emergency 
healthcare services;
    (9) Having policies and procedures based on State or local laws and 
regulations to ensure the safe, discreet, and confidential provision of 
prescription and nonprescription medications to unaccompanied children, 
secure storage of medications, and controlled administration and 
disposal of all drugs. A licensed healthcare provider must write or 
orally order all nonprescription medications, and oral orders must be 
documented in the unaccompanied child's file;
    (10) Medical isolation may be used according to the following 
requirements:
    (i) An unaccompanied child may be placed in medical isolation and 
excluded from contact with the general population in order to prevent 
the spread of an infectious disease due to a potential exposure, 
protect other unaccompanied children, and care provider facility staff 
for a medical purpose or as required under State, local, or other 
licensing rules, as long as the medically required isolation is limited 
only to the extent necessary to ensure the health and welfare of the 
unaccompanied child, other unaccompanied children at a care provider 
facility and care provider facility staff, or the public at large.
    (ii) Standard programs and restrictive placements must provide all 
mandated services under this subpart to the greatest extent practicable 
under the circumstances to unaccompanied children in medical isolation. 
Medically isolated unaccompanied children still must be supervised 
under State, local, or other licensing ratios, and, if multiple 
unaccompanied children are in medical isolation, they should be placed 
in units or housing together (as practicable, given the nature or type 
of medical issue giving rise to the requirement for isolation in the 
first instance); and
    (11) Urgent dental care if an unaccompanied child is experiencing 
an urgent dental issue (acute tooth pain, procedure(s) needed to 
maintain basic function, i.e., severe and/or acute infection or a 
severe and/or acute infection is imminent). Care should be provided as 
soon as possible and not be delayed while awaiting the initial dental 
exam.
    (c) ORR must not prevent unaccompanied children in ORR care from 
accessing healthcare services, including medical services requiring 
heightened ORR involvement and family planning services. ORR must make 
reasonable efforts to facilitate access to those services if requested 
by the unaccompanied child. Further, if there is a potential conflict 
between the standards and requirements set forth in this section and 
State law, such that following the requirements of State law would 
diminish the services available to unaccompanied children under this 
section and ORR policies, ORR will review the circumstances to 
determine how to ensure that it is able to meet its responsibilities 
under Federal law. If a State law or license, registration, 
certification, or other requirement conflicts with an ORR employee's 
duties within the scope of their ORR employment, the ORR employee is 
required to abide by their Federal

[[Page 34602]]

duties, subject to applicable Federal religious freedom and conscience 
protections, to ensure unaccompanied children have access to all 
services available under this section and other ORR policies.
    (1) Initial placement and transfer considerations--(i) Initial 
placement. Consistent with Sec.  410.1103, when placing an 
unaccompanied child, ORR shall consider the child's individualized 
needs and any specialized services or treatment required or reasonably 
requested. Such services or treatment include but are not limited to 
access to medical specialists, family planning services, and medical 
services requiring heightened ORR involvement. When such care is 
determined to be medically necessary during the referral, intake 
process, Initial Medical Exam, or at any point while the unaccompanied 
child is in ORR custody, or the unaccompanied child reasonably requests 
such medical care while in ORR custody, ORR shall, to the greatest 
extent possible, identify available and appropriate bed space and place 
the unaccompanied child at a care provider facility that is able to 
provide or arrange such care, is in an appropriate location to support 
the unaccompanied child's healthcare needs, and affords access to an 
appropriate medical provider who is able to perform any reasonably 
requested or medically necessary services.
    (ii) Transfers. If an appropriate initial placement is not 
immediately available or if the unaccompanied child's need or request 
for medical care is identified after the Initial Medical Exam, care 
providers shall immediately notify ORR and ORR shall, to the greatest 
extent possible, transfer the unaccompanied child needing medical care 
to an ORR program that meets the qualifications in paragraph (c)(1)(i) 
of this section.
    (2) Transportation. ORR shall ensure unaccompanied children have 
access to medical care, including transportation across State lines and 
associated ancillary services if necessary to access appropriate 
medical services, including access to medical specialists, family 
planning services, and medical services requiring heightened ORR 
involvement. The requirement in this paragraph (c)(2) applies 
regardless of whether Federal appropriations law prevents ORR from 
paying for the medical care itself.
    (d) Care provider facilities shall notify ORR within 24 hours of an 
unaccompanied child's need or request for medical services requiring 
heightened ORR involvement or the discovery of a pregnancy.


Sec.  410.1308  Child advocates.

    (a) Child advocates. This section sets forth the provisions 
relating to the appointment and responsibilities of independent child 
advocates for child trafficking victims and other especially vulnerable 
unaccompanied children.
    (b) Role of the child advocate. Child advocates are third parties 
who make independent recommendations regarding the best interests of an 
unaccompanied child. Their recommendations are based on information 
obtained from the unaccompanied child and other sources (including, but 
not limited to, the unaccompanied child's parents, the family, 
potential sponsors/sponsors, government agencies, legal service 
providers, protection and advocacy system representatives in 
appropriate cases, representatives of the unaccompanied child's care 
provider, health professionals, and others). Child advocates formally 
submit their recommendations to ORR and/or the immigration court, where 
appropriate, in the form of best interest determinations (BIDs).
    (c) Responsibilities of the child advocate. The child advocate's 
responsibilities include, but are not limited to:
    (1) Visiting with their unaccompanied child client;
    (2) Explaining the consequences and potential outcomes of decisions 
that may affect their unaccompanied child client;
    (3) Advocating for their unaccompanied child client's best interest 
with respect to care, placement, services, release, and within 
proceedings to which the child is a party;
    (4) Providing best interest determinations, where appropriate and 
within a reasonable time to ORR, an immigration court, and/or other 
stakeholders involved in a proceeding or matter in which the 
unaccompanied child is a party or has an interest; and,
    (5) Regularly communicating case updates with the care provider 
facility, ORR, and/or other stakeholders in the planning and 
performance of advocacy efforts, including updates related to services 
provided to an unaccompanied child after their release from ORR care.
    (d) Appointment of child advocates. ORR may appoint child advocates 
for unaccompanied children who are victims of trafficking or especially 
vulnerable.
    (1) An interested party may refer an unaccompanied child for a 
child advocate when the unaccompanied child is currently, or was 
previously in, ORR's care and custody, and when that child has been 
determined to be a victim of trafficking or especially vulnerable. As 
used in this paragraph (d)(1), interested parties means individuals or 
organizations involved in the care, service, or proceeding involving an 
unaccompanied child, including but not limited to, ORR Federal or 
contracted staff; an immigration judge; DHS Staff; a legal service 
provider, attorney of record, or DOJ Accredited Representative; an ORR 
care provider; healthcare professional; or a child advocate 
organization.
    (2) ORR shall make an appointment decision within five (5) business 
days of a referral for a child advocate, except under exceptional 
circumstances which may delay a decision regarding an appointment. ORR 
will appoint child advocates for unaccompanied children who are 
currently in or were previously in ORR care and custody. ORR does not 
appoint child advocates for unaccompanied children who are not in or 
were not previously in ORR care and custody.
    (3) Child advocate appointments terminate upon the closure of the 
unaccompanied child's case by the child advocate; when the 
unaccompanied child turns 18; or when the unaccompanied child obtains 
lawful immigration status.
    (e) Child advocate's access to information. After a child advocate 
is appointed for an unaccompanied child, the child advocate shall be 
provided access to materials to effectively advocate for the best 
interest of the unaccompanied child. Child advocates shall be provided 
access to their clients during normal business hours at an ORR care 
provider facility and shall be provided access to all their client's 
case file information and may request copies of the case file directly 
from the unaccompanied child's care provider without going through 
ORR's standard case file request process.
    (f) Child advocate's responsibility with respect to confidentiality 
of information. Child advocates shall keep the information in the case 
file, and information about the unaccompanied child's case, 
confidential. A child advocate may only disclose information from the 
case file with informed consent from the child when this is in the 
child's best interests. With regard to an unaccompanied child in ORR 
care, ORR shall allow the child advocate of that unaccompanied child to 
conduct private communications with the unaccompanied child, in a 
private area that allows for confidentiality for in-person and virtual 
or telephone meetings.

[[Page 34603]]

    (g) Non-retaliation against child advocates. ORR shall presume that 
child advocates are acting in good faith with respect to their advocacy 
on behalf of unaccompanied children, and shall not retaliate against a 
child advocate for actions taken within the scope of their 
responsibilities. For example, ORR shall not retaliate against child 
advocates because of any disagreement with a best interest 
determination in regard to an unaccompanied child, or because of a 
child advocate's advocacy on behalf of an unaccompanied child.


Sec.  410.1309  Legal services.

    (a) Unaccompanied children's access to immigration legal services--
(1) Purpose. This paragraph (a) describes ORR's responsibilities in 
relation to legal services for unaccompanied children, consistent with 
8 U.S.C. 1232(c)(5).
    (2) Orientation. An unaccompanied child in ORR's legal custody 
shall receive:
    (i) An in-person, telephonic, or video presentation concerning the 
rights and responsibilities of undocumented children in the immigration 
system, presented in the native or preferred language of the 
unaccompanied child and in an age-appropriate manner.
    (A) Such presentation shall be provided by an independent legal 
service provider that has appropriate qualifications and experience, as 
determined by ORR, to provide such presentation and shall include 
information notifying the unaccompanied child of their legal rights and 
responsibilities, including protections under child labor laws, and of 
services to which they are entitled, including educational services. 
The presentation must be delivered in the native or preferred language 
of the unaccompanied child and in an age-appropriate manner.
    (B) Such presentation shall occur within 10 business days of 
child's admission to ORR, within 10 business days of a child's transfer 
to a new ORR facility (except ORR long-term home care or ORR 
transitional home care), and every 6 months for unrepresented children 
who remain in ORR custody, as practicable. If the unaccompanied child 
is released before 10 business days, a legal service provider shall 
follow up as soon as practicable to complete the presentation, in 
person or remotely.
    (ii) Information regarding the availability of free legal 
assistance and that they may be represented by counsel at no expense to 
the Government. When an unaccompanied child requests legal counsel, ORR 
shall ensure that the child is provided with a list and contact 
information for pro bono counsel, and reasonable assistance to ensure 
that the child is able to successfully engage an attorney at no cost to 
the Government.
    (iii) Notification regarding the child's ability to petition for 
Special Immigrant Juvenile (SIJ) classification, to request that a 
juvenile court determine dependency or placement in accordance with 
Sec.  410.1209, and notification of the ability to apply for asylum or 
other forms of relief from removal.
    (iv) Information regarding the unaccompanied child's right to a 
removal hearing before an immigration judge, the ability to apply for 
asylum with United States Citizenship and Immigration Services (USCIS) 
in the first instance, and the ability to request voluntary departure 
in lieu of removal.
    (v) A confidential legal consultation with a qualified attorney (or 
paralegal working under the direction of an attorney, or DOJ Accredited 
Representative) to determine possible forms of relief from removal in 
relation to the unaccompanied child's immigration case, as well as 
other case disposition options such as, but not limited to, voluntary 
departure. Such consultation shall occur within 10 business days of a 
child's transfer to a new ORR facility (except ORR long-term home care 
or ORR transitional home care) or upon request from ORR. ORR shall 
request an additional legal consultation on behalf of a child, if the 
child has been identified as:
    (A) A potential victim of a severe form of trafficking;
    (B) Having been abused, abandoned, or neglected; or
    (C) Having been the victim of a crime or domestic violence; or
    (D) Persecuted or in fear of persecution due to race, religion, 
nationality, membership in a particular social group, or for a 
political opinion.
    (vi) An unaccompanied child in ORR care shall be able to conduct 
private communications with their attorney of record, DOJ Accredited 
Representative, or legal service provider in a private enclosed area 
that allows for confidentiality for in-person, virtual, or telephonic 
meetings.
    (vii) Information regarding the child's right to a hearing before 
an independent HHS hearing officer, to determine, through a written 
decision, whether the unaccompanied child would present a risk of 
danger to self or to the community if released, as described at Sec.  
410.1903(a) and (b).
    (3) Accessibility of information. In addition to the requirements 
in paragraphs (a)(1) and (2) of this section for orienting and 
informing unaccompanied children of their legal rights and access to 
services while in ORR care, ORR shall also require this information be 
posted for unaccompanied children in an age-appropriate format and 
translated into each child's preferred language, in any ORR contracted 
or grant-funded facility where unaccompanied children are in ORR care.
    (4) Direct immigration legal representation services for 
unaccompanied children currently or previously under ORR care. To the 
extent ORR determines that appropriations are available, and insofar as 
it is not practicable for ORR to secure pro bono counsel, ORR shall 
fund legal service providers to provide direct immigration legal 
representation for certain unaccompanied children, subject to ORR's 
discretion and available appropriations. Examples of direct immigration 
legal representation include, but are not limited to:
    (i) For unrepresented unaccompanied children who become enrolled in 
ORR Unaccompanied Refugee Minor (URM) programs, provided they have not 
yet obtained immigration relief or reached 18 years of age at the time 
of retention of an attorney;
    (ii) For unaccompanied children in ORR care who are in proceedings 
before EOIR, including unaccompanied children seeking voluntary 
departure, and for whom other available assistance does not satisfy the 
legal needs of the individual child;
    (iii) For unaccompanied children released to a sponsor residing in 
the defined service area of the same legal service provider who 
provided the child legal services in ORR care, to promote continuity of 
legal services; and
    (iv) For other unaccompanied children, to the extent ORR determines 
that appropriations are available.
    (b) Legal services for the protection of unaccompanied children's 
interests in certain matters not involving direct immigration 
representation--(1) Purpose. This paragraph (b) provides for the use of 
additional funding for legal services, to the extent that ORR 
determines it to be available, to help ensure that the interests of 
unaccompanied children are considered in certain matters relating to 
their care and custody, to the greatest extent practicable.
    (2) Funding. To the extent ORR determines that appropriations are 
available, and insofar as it is not practicable for ORR to secure pro 
bono counsel, ORR may fund access to counsel for unaccompanied 
children, including for purposes of legal representation, in the 
following enumerated non-immigration related

[[Page 34604]]

matters, subject to ORR's discretion and in no particular order of 
priority:
    (i) ORR appellate procedures, including Placement Review Panel 
(PRP), under Sec.  410.1902, and risk determination hearings, under 
Sec.  410.1903;
    (ii) For unaccompanied children upon their placement in ORR long-
term home care or in a residential treatment center outside a licensed 
ORR facility, and for whom other legal assistance does not satisfy the 
legal needs of the individual child;
    (iii) For unaccompanied children with no identified sponsor who are 
unable to be placed in ORR long-term home care or ORR transitional home 
care;
    (iv) For purposes of judicial bypass or similar legal processes as 
necessary to enable an unaccompanied child to access certain lawful 
medical procedures that require the consent of the parent or legal 
guardian under State law, and when the unaccompanied child is unable or 
unwilling to obtain such consent;
    (v) For the purpose of representing an unaccompanied child in state 
juvenile court proceedings, when the unaccompanied child already 
possesses SIJ classification; and
    (vi) For the purpose of helping an unaccompanied child to obtain an 
employment authorization document.
    (c) Standards for legal services for unaccompanied children. (1) 
In-person meetings are preferred during the course of providing legal 
counsel to any unaccompanied child under paragraph (a) or (b) of this 
section, though telephonic or teleconference meetings between the 
unaccompanied child's attorney or DOJ Accredited Representative and the 
unaccompanied child may substitute as appropriate. Either the 
unaccompanied child's attorney, DOJ Accredited Representative, or a 
care provider staff member or care provider shall always accompany the 
unaccompanied child to any in-person courtroom hearing or proceeding, 
in connection with any legal representation of an unaccompanied child 
pursuant to this section.
    (2) Upon receipt by ORR of proof of representation and 
authorization for release of records signed by the unaccompanied child 
or other authorized representative, ORR shall share, upon request and 
within a reasonable timeframe to be established by ORR, the 
unaccompanied child's complete case file, apart from any legally 
required redactions, to assist in the legal representation of the 
unaccompanied child. In addition to sharing the complete case file, 
upon request by an attorney of record or DOJ Accredited Representative, 
ORR shall promptly provide the attorney of record or DOJ Accredited 
Representative with the name and telephone number of potential sponsors 
who have submitted a completed family reunification application to ORR 
for their client, if the potential sponsors have provided consent to 
release of their information. Furthermore, and absent a reasonable 
belief based upon articulable facts that doing so would endanger an 
unaccompanied child, ORR shall ensure that unaccompanied children are 
allowed to review, upon request and in the company of their attorney of 
record or DOJ Accredited Representative if any, such papers, notes, and 
other writings they possessed at the time they were apprehended by DHS 
or another Federal department or agency, that are in ORR or an ORR care 
provider facility's possession.
    (3) If an unaccompanied child's attorney of record or DOJ 
Accredited Representative properly requests their client's case file on 
an expedited basis, ORR shall, within seven calendar days, unless 
otherwise provided herein, provide the attorney of record or DOJ 
Accredited Representative with key documents from the unaccompanied 
child's case file, as determined by ORR.
    (4) Expedited basis refers to any of the following situations:
    (i) Unaccompanied child has been reported missing to the National 
Center for Missing and Exploited Children;
    (ii) Unaccompanied child has a court hearing scheduled within 30 
calendar days;
    (iii) Unaccompanied child is turning 18 years old in less than 30 
calendar days;
    (iv) Unaccompanied child has a risk determination hearing pursuant 
to Sec.  410.1903 of this part scheduled within 30 calendar days;
    (v) Records are needed for the provision of medical services to the 
child;
    (vi) Records are needed for the child's enrollment or continued 
enrollment in school;
    (vii) Records are needed for a Federal, State, or local agency 
investigation related to the subject of the request; or
    (viii) Any other situation in which ORR determines, in its 
discretion, that an expedited response is warranted.
    (d) Grants or contracts for unaccompanied children's immigration 
legal services. (1) This paragraph (d) prescribes requirements 
concerning grants or contracts to legal service providers to ensure 
that all unaccompanied children who are or have been in ORR care have 
access to counsel to represent them in immigration legal proceedings or 
matters and to protect them from mistreatment, exploitation and 
trafficking, to the greatest extent practicable, in accordance with the 
TVPRA [at 8 U.S.C. 1232(c)(5)] and 292 of the Immigration and 
Nationality Act [at 8 U.S.C. 1362].
    (2) ORR may make grants, in its discretion and subject to available 
resources--including formula grants distributed geographically in 
proportion to the population of released unaccompanied children--or 
contracts under this section to qualified agencies or organizations, as 
determined by ORR and in accordance with the eligibility requirements 
outlined in the authorizing statute, for the purpose of providing 
immigration legal representation, assistance and related services to 
unaccompanied children who are in ORR care, or who have been released 
from ORR care and living in a State or region.
    (3) Subject to the availability of funds, grants or contracts shall 
be calculated based on the historic proportion of the unaccompanied 
child population in the State within a lookback period determined by 
the Director, provided annually by the State.
    (e) Non-retaliation against legal service providers. ORR shall 
presume that legal service providers and other legal representatives 
are acting in good faith with respect to their advocacy on behalf of 
unaccompanied children and ORR shall not retaliate against a legal 
service provider or other legal representative for actions taken within 
the scope of the legal service provider's or representative's 
responsibilities. For example, ORR shall not engage in retaliatory 
actions against legal service providers or any other representative for 
reporting harm or misconduct on behalf of an unaccompanied child or 
appearance in an action adverse to ORR.
    (f) Resource email box. ORR shall create and maintain a resource 
email box for feedback from legal services providers regarding emerging 
issues related to immediate performance of legal services at care 
provider facilities. ORR shall address such emerging issues as needed.


Sec.  410.1310  Psychotropic medications.

    (a) Except in the case of a psychiatric emergency, ORR shall ensure 
that authorized individuals provide informed consent prior to the 
administration of psychotropic medications to unaccompanied children.
    (1) Three categories of persons can serve as an ``authorized 
consenter'' and

[[Page 34605]]

provide informed consent for the administration of psychotropic 
medication to unaccompanied children in ORR custody: the child's parent 
or legal guardian, followed by a close relative sponsor, and then the 
unaccompanied child themself if the child is of sufficient age and a 
doctor has obtained informed consent; and
    (2) Consent must be obtained voluntarily, without undue influence 
or coercion, and ORR will not retaliate against an unaccompanied child 
or an authorized consenter for refusing to take or consent to any 
psychotropic medication; and
    (3) Any emergency administration of psychotropic medication must be 
documented, the child's authorized consenter must be notified as soon 
as possible, and the care provider and ORR must review the incident to 
ensure compliance with ORR policies and reasonably avoid future 
emergency administrations of medication.
    (b) ORR shall ensure meaningful oversight of the administration of 
psychotropic medication(s) to unaccompanied children including 
reviewing cases flagged by care providers and conducting additional 
reviews of the administration of psychotropic medications in high-risk 
circumstances, including but not limited to cases involving young 
children, simultaneous administration of multiple psychotropic 
medications, and high dosages. ORR must engage qualified professionals 
who are able to oversee prescription practices and provide guidance to 
care providers, such as a child and adolescent psychiatrist.
    (c) ORR shall permit unaccompanied children to have the assistance 
of counsel, at no cost to the Federal Government, with respect to the 
administration of psychotropic medications.


Sec.  410.1311  Unaccompanied children with disabilities.

    (a) ORR shall provide notice to the unaccompanied children in its 
custody of the protections against discrimination under section 504 of 
the Rehabilitation Act at 45 CFR part 85 assured to children with 
disabilities in its custody. ORR must also provide notice of the 
available procedures for seeking reasonable modifications or making a 
complaint about alleged discrimination against children with 
disabilities in ORR's custody. This notice must be provided in a manner 
that is accessible to children with disabilities.
    (b) ORR shall administer the UC Program in the most integrated 
setting appropriate to the needs of unaccompanied children with 
disabilities in accordance with 45 CFR 85.21(d), unless ORR can 
demonstrate that this would fundamentally alter the nature of its UC 
Program.
    (c) ORR shall make reasonable modifications to its programs, 
including the provision of services, equipment, and treatment, so that 
an unaccompanied child with one or more disabilities can have equal 
access to the UC Program in the most integrated setting appropriate to 
their needs. ORR is not required, however, to take any action that it 
can demonstrate would fundamentally alter the nature of a program or 
activity.
    (d) Where applicable, ORR shall document in the child's ORR case 
file any services, supports, or program modifications being provided to 
an unaccompanied child with one or more disabilities.
    (e) In addition to the requirements for release of unaccompanied 
children established elsewhere in this part and through any 
subregulatory guidance ORR may issue, ORR shall adhere to the following 
requirements when releasing unaccompanied children with disabilities to 
a sponsor:
    (1) ORR's assessment under Sec.  410.1202 of a potential sponsor's 
capability to provide for the physical and mental well-being of the 
child must necessarily include explicit consideration of the impact of 
the child's disability or disabilities. Correspondingly, ORR must 
consider the potential benefits to the child of release to a community-
based setting.
    (2) In planning for a child's release and conducting post-release 
services (PRS), ORR and any entities through which ORR provides PRS 
shall make reasonable modifications in their policies, practices, and 
procedures if needed to enable released unaccompanied children with 
disabilities to live in the most integrated setting appropriate to 
their needs, such as with a sponsor. ORR is not required, however, to 
take any action that it can demonstrate would result in a fundamental 
alteration in the nature of a program or activity. ORR will 
affirmatively support and assist otherwise viable potential sponsors in 
accessing and coordinating appropriate post-release community-based 
services and supports available in the community to support the 
sponsor's ability to care for a child with one or more disabilities, as 
provided for under Sec.  410.1210.
    (3) ORR shall not delay the release of a child with one or more 
disabilities solely because post-release services are not in place 
before the child's release.

Subpart E--Transportation of an Unaccompanied Child


Sec.  410.1400  Purpose of this subpart.

    This subpart concerns the safe transportation of each unaccompanied 
child while in ORR's care.


Sec.  410.1401  Transportation of an unaccompanied child in ORR's care.

    (a) ORR care provider facilities shall transport an unaccompanied 
child in a manner that is appropriate to the child's age and physical 
and mental needs, including proper use of car seats for young children, 
and consistent with Sec.  410.1304.
    (b) When ORR plans to release an unaccompanied child from its care 
to a sponsor under the provisions at subpart C of this part, ORR shall 
assist without undue delay in making transportation arrangements. In 
its discretion, ORR may require the care provider facility to transport 
an unaccompanied child. In these circumstances, ORR may, in its 
discretion, either reimburse the care provider facility or directly pay 
for the child and/or sponsor's transportation, as appropriate, to 
facilitate timely release.
    (c) The care provider facility shall comply with all relevant State 
and local licensing requirements and state and Federal regulations 
regarding transportation of children, such as meeting or exceeding the 
minimum staff/child ratio required by the care provider facility's 
licensing agency, maintaining and inspecting all vehicles used for 
transportation, etc.
    (d) If there is a potential conflict between ORR's regulations in 
this part and State law, ORR shall review the circumstances to 
determine how to ensure that it is able to meet its statutory 
responsibilities. If a State law or license, registration, 
certification, or other requirement conflicts with an ORR employee's 
duties within the scope of their ORR employment, the ORR employee is 
required to abide by their Federal duties, subject to applicable 
Federal religious freedom and conscience protections.
    (e) The care provider facility or contractor shall conduct all 
necessary background checks for individuals transporting unaccompanied 
children, in compliance with Sec.  410.1305(a).
    (f) If a care provider facility is transporting an unaccompanied 
child, it shall assign at least one transport staff of the same gender 
as the child being transported, to the greatest extent possible under 
the circumstances.

[[Page 34606]]

Subpart F--Data and Reporting Requirements


Sec.  410.1500  Purpose of this subpart.

    ORR shall maintain statistical and other data on the unaccompanied 
children for whom it is responsible. ORR shall be responsible for 
coordinating with other Departments to obtain some of the statistical 
data and shall obtain additional data from care provider facilities. 
This subpart describes information that care provider facilities shall 
report to ORR such that ORR may compile and maintain statistical 
information and other data on unaccompanied children.


Sec.  410.1501  Data on unaccompanied children.

    Care provider facilities are required to report information 
necessary for ORR to maintain data in accordance with this section. 
Data shall include:
    (a) Biographical information, such as an unaccompanied child's 
name, gender, date of birth, country of birth, whether of indigenous 
origin, country of habitual residence, and, if voluntarily disclosed, 
self-identified LGBTQI+ status or identity;
    (b) The date on which the unaccompanied child came into Federal 
custody by reason of the child's immigration status, including the date 
on which the unaccompanied child came into ORR custody;
    (c) Information relating to the unaccompanied child's placement, 
removal, or release from each care provider facility in which the 
unaccompanied child has resided, including the date on which and to 
whom the child is transferred, removed, or released;
    (d) In any case in which the unaccompanied child is placed in 
detention or released, an explanation relating to the detention or 
release;
    (e) The disposition of any actions in which the unaccompanied child 
is the subject;
    (f) Information gathered from assessments, evaluations, or reports 
of the child; and,
    (g) Data necessary to evaluate and improve the care and services 
for unaccompanied children, including:
    (1) Data relating to the administration of psychotropic 
medications. Such information shall include children's diagnoses, the 
prescribing physician's information, the name and dosage of the 
medication prescribed, documentation of informed consent, and any 
emergency administration of medication. Such data shall be compiled in 
a manner that enables ORR to track how psychotropic medications are 
administered across the network and in individual facilities.
    (2) Data relating to the treatment of unaccompanied children with 
disabilities. Such information shall include whether an unaccompanied 
child has been identified as having a disability, the unaccompanied 
child's diagnosis, the unaccompanied child's need for reasonable 
modifications or other services, and information related to release 
planning. Such data shall be compiled in a manner that enables ORR 
ongoing oversight to ensure unaccompanied children with disabilities 
are receiving appropriate care while in ORR care across the network and 
in individual facilities.

Subpart G--Transfers


Sec.  410.1600  Purpose of this subpart.

    This subpart provides guidelines for the transfer of an 
unaccompanied child.


Sec.  410.1601  Transfer of an unaccompanied child within the ORR care 
provider facility network.

    (a) General requirements for transfers. The care provider facility 
shall continuously assess unaccompanied children in their care to 
review whether the children's placements are appropriate. An 
unaccompanied child shall be placed in the least restrictive setting 
that is in the best interests of the child, subject to considerations 
regarding danger to self or the community and runaway risk. Care 
provider facilities shall follow ORR guidance, including guidance 
regarding placement considerations, when making transfer 
recommendations.
    (1) If the care provider facility identifies an alternate placement 
for the unaccompanied child that would best meet the child's needs, the 
care provider facility shall make a transfer recommendation to ORR for 
approval within three business days of identifying the need for a 
transfer.
    (2) The care provider facility shall ensure the unaccompanied child 
is medically cleared for transfer within three business days of ORR 
identifying the need for a transfer, unless otherwise waived by ORR. 
For an unaccompanied child with acute or chronic medical conditions, or 
seeking medical services requiring heightened ORR involvement, the 
appropriate care provider facility staff and ORR shall meet to review 
the transfer recommendation. If a child is not medically cleared for 
transfer within three business days, the care provider facility shall 
notify ORR, and ORR shall review and determine if the child is fit for 
travel. If ORR determines the child is not fit for travel, ORR shall 
notify the care provider facility of the denial and specify a timeframe 
for the care provider facility to re-evaluate the child for transfer.
    (3) Within 48 hours prior to the unaccompanied child's physical 
transfer, the referring care provider facility shall notify all 
appropriate interested parties of the transfer, including the child's 
attorney of record or DOJ Accredited Representative, legal service 
provider, or child advocate, as applicable. However, such advance 
notice is not required in unusual and compelling circumstances, such as 
the following cases in which notices shall be provided within 24 hours 
following transfer:
    (i) Where the safety of the unaccompanied child or others has been 
threatened;
    (ii) Where the unaccompanied child has been determined to be a 
runaway risk consistent with Sec.  410.1107; or
    (iii) Where the interested party has waived such notice.
    (4) The unaccompanied child shall be transferred with the child's 
possessions and legal papers, including, but not limited to:
    (i) Personal belongings;
    (ii) The transfer request and tracking form;
    (iii) 30-day medication supply, if applicable;
    (iv) All health records; and
    (v) Original documents (including birth certificates).
    (5) If the unaccompanied child's possessions exceed the amount 
permitted normally by the carrier in use, the care provider shall ship 
the possessions to a subsequent placement of the unaccompanied child in 
a timely manner.
    (b) Restrictive care provider facility placements and transfers. 
When an unaccompanied child is placed in a restrictive setting (secure, 
heightened supervision, or residential treatment center), the care 
provider facility in which the child is placed and ORR shall review the 
placement at least every 30 days to determine whether a new level of 
care is appropriate for the child. If the care provider facility and 
ORR determine in the review that continued placement in a restrictive 
setting is appropriate, the care provider facility shall document the 
basis for its determination and, upon request, provide documentation of 
the review and rationale for continued placement to the child's 
attorney of record, legal service provider, and/or child advocate.
    (c) Group transfers. At times, circumstances may require a care 
provider facility to transfer more than one unaccompanied child at a 
time (e.g.,

[[Page 34607]]

emergencies, natural disasters, program closures, and bed capacity 
constraints). For group transfers, the care provider facility shall 
follow ORR guidance and the requirements in paragraph (a) of this 
section.
    (d) Residential treatment center placements. A care provider 
facility may request ORR to transfer an unaccompanied child in its care 
to a residential treatment center (RTC), pursuant to the requirements 
described at Sec.  410.1105(c). The care provider facility shall review 
the placement of a child into an RTC every 30 days in accordance with 
paragraph (b) of this section.
    (e) Emergency placement changes. An unaccompanied child who is 
placed pursuant to subpart B of this part remains in the legal custody 
of ORR and may only be transferred or released by ORR. However, in the 
event of an emergency, a care provider facility may temporarily change 
the physical placement of an unaccompanied child prior to securing 
permission from ORR but shall notify ORR of the change of physical 
placement, as soon as possible, but in all cases within eight hours of 
transfer.

Subpart H--Age Determinations


Sec.  410.1700  Purpose of this subpart.

    This subpart sets forth the provisions for determining the age of 
an individual in ORR custody.


Sec.  410.1701  Applicability.

    This subpart applies to individuals in the custody of ORR. To meet 
the definition of an unaccompanied child and remain in ORR custody, an 
individual must be under 18 years of age.


Sec.  410.1702  Conducting age determinations.

    Procedures for determining the age of an individual must take into 
account the totality of the circumstances and evidence, including the 
non-exclusive use of radiographs, to determine the age of the 
individual. ORR may require an individual in ORR custody to submit to a 
medical or dental examination, including X-rays, conducted by a medical 
professional or to submit to other appropriate procedures to verify 
their age. If ORR subsequently determines that such an individual is an 
unaccompanied child, the individual will be treated in accordance with 
ORR's UC Program regulations in this part for all purposes.


Sec.  410.1703  Information used as evidence to conduct age 
determinations.

    (a) ORR considers multiple forms of evidence in making age 
determinations, and determinations are made based upon a totality of 
evidence.
    (b) ORR may consider information or documentation to make an age 
determination, including but not limited to:
    (1) If there is no original birth certificate, certified copy, or 
photocopy or facsimile copy of a birth certificate acceptable to ORR, 
consulting with the consulate or embassy of the individual's country of 
birth to verify the validity of the birth certificate presented.
    (2) Authentic government-issued documents issued to the bearer.
    (3) Other documentation, such as baptismal certificates, school 
records, and medical records, which indicate an individual's date of 
birth.
    (4) Sworn affidavits from parents or other relatives as to the 
individual's age or birth date.
    (5) Statements provided by the individual regarding the 
individual's age or birth date.
    (6) Statements from parents or legal guardians.
    (7) Statements from other persons apprehended with the individual.
    (8) Medical age assessments, which should not be used as a sole 
determining factor but only in concert with other factors. If an 
individual's estimated probability of being 18 years or older is 75 
percent or greater according to a medical age assessment, and the 
totality of the evidence indicates that the individual is 18 years old 
or older, ORR must determine that the individual is 18 years old or 
older. The 75 percent probability threshold applies to all medical 
methods and approaches identified by the medical community as 
appropriate methods for assessing age. Ambiguous, debatable, or 
borderline forensic examination results are resolved in favor of 
finding the individual is a child.


Sec.  410.1704  Treatment of an individual whom ORR has determined to 
be an adult.

    If the procedures in this subpart would result in ORR reasonably 
concluding that an individual is an adult, despite the individual's 
claim to be under the age of 18, ORR shall treat such person as an 
adult for all purposes.

Subpart I--Emergency and Influx Operations


Sec.  410.1800  Contingency planning and procedures during an emergency 
or influx.

    (a) ORR shall regularly reevaluate the number of standard program 
placements needed for unaccompanied children to determine whether the 
number of shelters, heightened supervision facilities, and ORR 
transitional home care beds should be adjusted to accommodate an 
increased or decreased number of unaccompanied children eligible for 
placement in care in ORR care provider facilities.
    (b) In the event of an emergency or influx that prevents the prompt 
placement of unaccompanied children in standard programs, ORR shall 
place each unaccompanied child in a standard program as expeditiously 
as possible.
    (c) ORR activities during an influx or emergency include the 
following:
    (1) ORR shall implement its contingency plan on emergencies and 
influxes, which may include opening facilities to house unaccompanied 
children and prioritization of placement at such facilities of certain 
unaccompanied children;
    (2) ORR shall continually develop standard programs that are 
available to accept emergency or influx placements; and
    (3) ORR shall maintain a list of unaccompanied children affected by 
the emergency or influx including each unaccompanied child's:
    (i) Name;
    (ii) Date and country of birth;
    (iii) Date of placement in ORR's custody; and
    (iv) Place and date of current placement.


Sec.  410.1801  Minimum standards for emergency or influx facilities.

    (a) In addition to the ``standard program'' and ``restrictive 
placements'' defined in this part, ORR provides standards in this 
section for all emergency or influx facilities (EIFs).
    (b) EIFs shall provide the following minimum services for all 
unaccompanied children in their care:
    (1) Proper physical care and maintenance, including suitable living 
accommodations, sufficient quantity of food appropriate for children, 
drinking water, appropriate clothing, and personal grooming items.
    (2) Appropriate routine medical and dental care; family planning 
services, including pregnancy tests; medical services requiring 
heightened ORR involvement; and emergency healthcare services; a 
complete medical examination (including screenings for infectious 
diseases) within 48 hours of admission, excluding weekends and 
holidays, unless the unaccompanied child was recently examined at 
another ORR care provider facility; appropriate immunizations as 
recommended by the Advisory Committee on Immunization

[[Page 34608]]

Practices' Child and Adolescent Immunization Schedule and approved by 
HHS's Centers for Disease Control and Prevention; administration of 
prescribed medication and special diets; and appropriate mental health 
interventions when necessary.
    (3) An individualized needs assessment, which includes the various 
initial intake forms, identification of the unaccompanied child's 
individualized needs including any specific problems which appear to 
require immediate intervention, an educational assessment and plan, and 
whether an indigenous language speaker; a statement of religious 
preference and practice; and an assessment of the unaccompanied child's 
personal goals, strengths, and weaknesses.
    (4) Educational services appropriate to the unaccompanied child's 
level of development and communication skills in a structured classroom 
setting Monday through Friday, which concentrates on the development of 
basic academic competencies, and on English Language acquisition. The 
educational program shall include instruction and educational and other 
reading materials in such languages as needed. Basic academic areas may 
include such subjects as science, social studies, math, reading, 
writing, and physical education. The program must provide unaccompanied 
children with appropriate reading materials in languages other than 
English for use during leisure time.
    (5) Activities according to a recreation and leisure time plan that 
include daily outdoor activity--weather permitting--with at least one 
hour per day of large muscle activity and one hour per day of 
structured leisure time activities (that must not include time spent 
watching television). Activities should be increased to a total of 
three hours on days when school is not in session.
    (6) At least one individual counseling session per week conducted 
by trained social work staff with the specific objective of reviewing 
the child's progress, establishing new short-term objectives, and 
addressing both the developmental and crisis-related needs of each 
child.
    (7) Group counseling sessions at least twice a week.
    (8) Acculturation and adaptation services that include information 
regarding the development of social and interpersonal skills that 
contribute to those abilities necessary to live independently and 
responsibly.
    (9) Whenever possible, access to religious services of the child's 
choice.
    (10) Visitation and contact with family members (regardless of 
their immigration status), which is structured to encourage such 
visitation. The staff must respect the child's privacy while reasonably 
preventing the unauthorized release of the unaccompanied child.
    (11) A reasonable right to privacy, which includes the right to 
wear the child's own clothes when available, retain a private space for 
the storage of personal belongings, talk privately on the phone and 
visit privately with guests, as permitted by the house rules and 
regulations, receive and send uncensored mail unless there is a 
reasonable belief that the mail contains contraband.
    (12) Legal services information, including the availability of free 
legal assistance, and that they may be represented by counsel at no 
expense to the Government, the right to a removal hearing before an 
immigration judge, the ability to apply for asylum with USCIS in the 
first instance, and the ability to request voluntary departure in lieu 
of removal.
    (13) EIFs, whether state-licensed or not, must comply, to the 
greatest extent possible, with all State child welfare laws and 
regulations (such as mandatory reporting of abuse), as well as all 
State and local building, fire, health and safety codes, that ORR 
determines are applicable to non-State licensed facilities.
    (14) EIFs must deliver services in a manner that is sensitive to 
the age, culture, native language, and complex needs of each 
unaccompanied child. EIFs must develop an individual service plan for 
the care of each child.
    (c) EIFs shall do the following when providing services to 
unaccompanied children:
    (1) Maintain safe and sanitary conditions that are consistent with 
ORR's concern for the particular vulnerability of children;
    (2) Provide access to toilets, showers and sinks, as well as 
personal hygiene items such as soap, toothpaste and toothbrushes, 
floss, towels, feminine care items, and other similar items;
    (3) Provide drinking water and food;
    (4) Provide medical assistance if the unaccompanied child is in 
need of emergency services and provide a modified medical examination;
    (5) Maintain adequate temperature control and ventilation;
    (6) Provide adequate supervision to protect unaccompanied children;
    (7) Separate from other unaccompanied children those unaccompanied 
children who are subsequently found to have past criminal or juvenile 
detention histories or have perpetrated sexual abuse that present a 
danger to themselves or others;
    (8) Provide contact with family members who were apprehended with 
the unaccompanied child; and
    (9) Provide access to legal services described in Sec.  
410.1309(a).
    (10) Provide family unification services designed to identify 
relatives in the United States as well as in foreign countries and 
assistance in obtaining legal guardianship when necessary for the 
release of the unaccompanied child.
    (11) Provide an individualized needs assessment, which includes the 
collection of essential data relating to the identification and history 
of the child and the child's family; an assessment of family 
relationships and interaction with adults, peers and authority figures; 
and identifying information regarding immediate family members, other 
relatives, godparents or friends who may be residing in the United 
States and may be able to assist in connecting the child with family 
members.
    (12) Provide a comprehensive orientation regarding program intent, 
services, rules (written and verbal), expectations, information about 
U.S. child labor laws, and the availability of legal assistance.
    (13) Maintain records of case files and make regular reports to 
ORR. EIFs must have accountability systems in place, which preserve the 
confidentiality of client information and protect the records from 
unauthorized use or disclosure.
    (d) ORR may grant waivers of standards under paragraph (b) of this 
section, in whole or in part, during the first six months of an EIF 
activation, to the extent that ORR determines that the specific waivers 
requested are necessary because it would be operationally infeasible to 
comply with the specified standards, and are granted for no longer than 
necessary in light of operational feasibility, and the waivers are 
granted in accordance with law. Such waiver or waivers must be made 
publicly available. Even where a waiver is granted, EIFs shall make all 
efforts to meet requisite standards under Sec.  410.1801(b) as 
expeditiously as possible.


Sec.  410.1802  Placement standards for emergency or influx facilities.

    (a) Unaccompanied children who are placed in an emergency or influx 
facility (EIF) must meet all of the following criteria to the extent 
feasible. If ORR becomes aware that a child does not meet any of the 
following criteria at any time after placement into an EIF, ORR shall 
transfer the unaccompanied child

[[Page 34609]]

to the least restrictive setting appropriate for that child's need as 
expeditiously as possible. ORR shall only place a child in an EIF if 
the child:
    (1) Is expected to be released to a sponsor within 30 days;
    (2) Is age 13 or older;
    (3) Speaks English or Spanish as their preferred language;
    (4) Does not have a known disability or other mental health or 
medical issue or dental issue requiring additional evaluation, 
treatment, or monitoring by a healthcare provider;
    (5) Is not a pregnant or parenting teenager;
    (6) Would not have a diminution of legal services as a result of 
the transfer to the EIF; and
    (7) Is not a danger to self or others (including not having been 
charged with or convicted of a criminal offense).
    (b) ORR shall also consider the following factors for the placement 
of an unaccompanied child in an EIF:
    (1) The unaccompanied child should not be part of a sibling group 
with a sibling(s) age 12 years or younger;
    (2) The unaccompanied child should not be subject to a pending age 
determination;
    (3) The unaccompanied child should not be involved in an active 
State licensing, child protective services, or law enforcement 
investigation, or an investigation resulting from a sexual abuse 
allegation;
    (4) The unaccompanied child should not have a pending home study;
    (5) The unaccompanied child should not be turning 18 years old 
within 30 days of the transfer to an EIF;
    (6) The unaccompanied child should not be scheduled to be 
discharged in three days or less;
    (7) The unaccompanied child should not have a scheduled hearing 
date in immigration court or State/family court (juvenile included), 
and not have an attorney of record or DOJ Accredited Representative;
    (8) The unaccompanied child should be medically cleared and 
vaccinated as required by the EIF (for instance, if the EIF is on a 
U.S. Department of Defense site); and
    (9) The unaccompanied child should have no known mental health, 
dental, or medical issues, including contagious diseases requiring 
additional evaluation, treatment, or monitoring by a healthcare 
provider.

Subpart J--Availability of Review of Certain ORR Decisions


Sec.  410.1900  Purpose of this subpart.

    This subpart describes the availability of review of certain ORR 
decisions regarding the care and placement of unaccompanied children.


Sec.  410.1901  Restrictive placement case reviews.

    (a) In all cases involving a restrictive placement, ORR shall have 
the burden to determine, based on clear and convincing evidence, that 
sufficient grounds exist for stepping up or continuing to hold an 
unaccompanied child in a restrictive placement. The evidence supporting 
a restrictive placement decision shall be recorded in the unaccompanied 
child's case file.
    (b) ORR shall provide an unaccompanied child with a Notice of 
Placement (NOP) in the child's native or preferred language no later 
than 48 hours after step-up to a restrictive placement, as well as 
every 30 days the unaccompanied child remains in a restrictive 
placement.
    (1) The NOP shall clearly and thoroughly set forth the reason(s) 
for placement and a summary of supporting evidence.
    (2) The NOP shall inform the unaccompanied child of their right to 
contest the restrictive placement before a Placement Review Panel (PRP) 
upon receipt of the NOP and the procedures by which the unaccompanied 
child may do so. The NOP shall further inform the unaccompanied child 
of all other available administrative review processes.
    (3) The NOP shall include an explanation of the unaccompanied 
child's right to be represented by counsel at no cost to the Federal 
Government in challenging such restrictive placement.
    (4) A case manager shall explain the NOP to the unaccompanied 
child, in a language the unaccompanied child understands.
    (c) The care provider facility shall provide a copy of the NOP to 
the unaccompanied child's attorney of record, legal service provider, 
child advocate, and to a parent or legal guardian of record, no later 
than 48 hours after step-up as well as every 30 days the unaccompanied 
child remains in a restrictive placement.
    (1) Service of the NOP on a parent or legal guardian shall not be 
required where there are child welfare reasons not to do so, where the 
parent or legal guardian cannot be reached, or where an unaccompanied 
child 14 or over states that the unaccompanied child does not wish for 
the parent or legal guardian to receive the NOP.
    (2) Child welfare rationales include but are not limited to: a 
finding that the automatic provision of the notice could endanger the 
unaccompanied child; potential abuse or neglect by the parent or legal 
guardian; a parent or legal guardian who resides in the United States 
but refuses to act as the unaccompanied child's sponsor; or a scenario 
where the parent or legal guardian is non-custodial and the 
unaccompanied child's prior caregiver (such as a caregiver in home 
country) requests that the non-custodial parent not be notified of the 
placement.
    (3) When an NOP is not automatically provided to a parent or legal 
guardian, ORR shall document, within the unaccompanied child's case 
file, the child welfare reason for not providing the NOP to the parent 
or legal guardian.
    (d) ORR shall further ensure the following automatic administrative 
reviews:
    (1) At minimum, a 30-day administrative review for all restrictive 
placements;
    (2) A more intensive 90-day review by ORR supervisory staff for 
unaccompanied children in secure facilities; and
    (3) For unaccompanied children in residential treatment centers, 
the 30-day review at paragraph (d)(1) of this section must involve a 
psychiatrist or psychologist to determine whether the unaccompanied 
child should remain in restrictive residential care.


Sec.  410.1902  Placement Review Panel.

    (a) All determinations to place an unaccompanied child in a secure 
facility that is not a residential treatment center will be reviewed 
and approved by ORR federal field staff. An unaccompanied child placed 
in a restrictive placement may request reconsideration of such 
placement. Upon such request, ORR shall afford the unaccompanied child 
a hearing before the Placement Review Panel (PRP) at which the 
unaccompanied child may, with the assistance of counsel at no cost to 
the Federal Government, present evidence on their own behalf. An 
unaccompanied child may present witnesses and cross-examine ORR's 
witnesses, if such child and ORR witnesses are willing to voluntarily 
testify. An unaccompanied child shall be provided access at the PRP 
hearing to interpretation services in their native or preferred 
language, depending on the unaccompanied child's preference, and in a 
way they effectively understand. An unaccompanied child that does not 
wish to request a hearing may also have their placement reconsidered by 
submitting a written request for a reconsideration along with any 
supporting documents as evidence. Where the unaccompanied child does 
not have an attorney, ORR shall

[[Page 34610]]

encourage the care provider facility to seek assistance for the 
unaccompanied child from a contracted legal service provider or child 
advocate.
    (b) The PRP shall afford any unaccompanied child in a restrictive 
placement the opportunity to request a PRP review as soon as the 
unaccompanied child receives a Notice of Placement (NOP). ORR shall 
permit the unaccompanied child or the unaccompanied child's counsel to 
review the evidence in support of step-up or continued restrictive 
placement, and any countervailing or otherwise unfavorable evidence, 
within a reasonable time before the PRP review is conducted. ORR shall 
also share the unaccompanied child's complete case file apart from any 
legally required redactions with their counsel within a reasonable 
timeframe to be established by ORR to assist in the legal 
representation of the unaccompanied child.
    (c) ORR shall convene the PRP within 7 days of an unaccompanied 
child's request for a hearing. ORR may institute procedures to request 
clarification or additional evidence if warranted, or to extend the 7-
day deadline as necessary under specified circumstances.
    (d) The PRP shall issue a written decision in the child's native or 
preferred language within 7 days of a hearing and submission of 
evidence or, if no hearing or review of additional evidence is 
requested, within 7 days following receipt of an unaccompanied child's 
written statement. ORR may institute procedures to request 
clarification or additional evidence if warranted, or to extend the 7-
day deadline as necessary under specified circumstances.
    (e) An ORR staff member who was involved with the decision to step-
up an unaccompanied child to a restrictive placement shall not serve as 
a PRP member with respect to that unaccompanied child's placement.


Sec.  410.1903  Risk determination hearings.

    (a) All unaccompanied children in restrictive placements based on a 
finding of dangerousness shall be afforded a hearing before an 
independent HHS hearing officer, to determine, through a written 
decision, whether the unaccompanied child would present a risk of 
danger to self or to the community if released, unless the 
unaccompanied child indicates in writing that they refuse such a 
hearing. Unaccompanied children placed in restrictive placements shall 
receive a written notice of the procedures under this section and may 
use a form provided to them to decline a hearing under this section. 
Unaccompanied children in restrictive placements may decline the 
hearing at any time, including after consultation with counsel.
    (b) All other unaccompanied children in ORR custody may request a 
hearing under this section to determine, through a written decision, 
whether the unaccompanied child would present a risk of danger to self 
or to the community if released. Requests under this section must be 
made in writing by the unaccompanied child, their attorney of record, 
or their parent or legal guardian by submitting a form provided by ORR 
to the care provider facility or by making a separate written request 
that contains the information requested in ORR's form.
    (c) In hearings conducted under this section, ORR bears the burden 
of proof to establish by clear and convincing evidence that the 
unaccompanied child would be a danger to self or to the community if 
released.
    (d) In hearings under this section, the unaccompanied child may be 
represented by a person of their choosing. The unaccompanied child may 
present oral and written evidence to the hearing officer and may appear 
by video or teleconference. ORR may also present evidence at the 
hearing, whether in writing, or by appearing in person or by video or 
teleconference.
    (e) Within a reasonable time prior to the hearing, ORR shall 
provide to the unaccompanied child and their attorney of record the 
evidence and information supporting ORR's determination, including the 
evidentiary record.
    (f) A hearing officer's decision that an unaccompanied child would 
not be a danger to self or to the community if released is binding upon 
ORR, unless the provisions of paragraph (e) of this section apply.
    (g) A hearing officer's decision under this section may be appealed 
by either the unaccompanied child or ORR to the Assistant Secretary of 
ACF, or the Assistant Secretary's designee.
    (1) Any such appeal request shall be in writing and must be 
received by ACF within 30 days of the hearing officer decision.
    (2) The Assistant Secretary, or the Assistant Secretary's designee, 
shall review the record of the underlying hearing, and will reverse a 
hearing officer's decision only if there is a clear error of fact, or 
if the decision includes an error of law.
    (3) If the hearing officer's decision found that the unaccompanied 
child would not pose a danger to self or to the community if released 
from ORR custody, and such decision would result in ORR releasing the 
unaccompanied child from its custody (e.g., because the only factor 
preventing release was ORR's determination that the unaccompanied child 
posed a danger to self or to the community), an appeal to the Assistant 
Secretary shall not effect a stay of the hearing officer's decision, 
unless the Assistant Secretary issues a decision in writing within five 
business days of such hearing officer decision that release of the 
unaccompanied child would result in a danger to self or to the 
community. Such a stay decision must include a description of behaviors 
of the unaccompanied child while in ORR custody and/or documented 
criminal or juvenile behavior records from the unaccompanied child 
demonstrating that the unaccompanied child would present a danger to 
self or to the community if released.
    (h) Decisions under this section are final and binding on the 
Department, and an unaccompanied child who was determined to pose a 
danger to self or to the community if released may only seek another 
hearing under this section if the unaccompanied child can demonstrate a 
material change in circumstances. Similarly, ORR may request the 
hearing officer to make a new determination under this section only if 
ORR can show that a material change in circumstances means the 
unaccompanied child should no longer be released due to presenting a 
danger to self or to the community.
    (i) This section cannot be used to determine whether an 
unaccompanied child has a suitable sponsor.
    (j) Determinations made under this section will not compel an 
unaccompanied child's release; nor will determinations made under this 
section compel transfer of an unaccompanied child to a different 
placement. Regardless of the outcome of a risk determination hearing or 
appeal, an unaccompanied child may not be released unless ORR 
identifies a safe and appropriate placement pursuant to subpart C of 
this part; and regardless of the outcome of a risk determination 
hearing or appeal, an unaccompanied child may only be transferred to 
another placement by ORR pursuant to requirements set forth at subparts 
B and G of this part.

Subpart K--Unaccompanied Children Office of the Ombuds (UC Office 
of the Ombuds)


Sec.  410.2000  Establishment of the UC Office of the Ombuds.

    (a) The Unaccompanied Children Office of the Ombuds (hereafter, the 
``UC Office of the Ombuds'') is located

[[Page 34611]]

within the Office of the ACF Assistant Secretary, and reports to the 
ACF Assistant Secretary.
    (b) The UC Office of the Ombuds shall be an independent, impartial 
office with authority to receive reports, including confidential and 
informal reports, of concerns regarding the care of unaccompanied 
children; to investigate such reports; to work collaboratively with ORR 
to potentially resolve such reports; and issue reports concerning its 
efforts.


Sec.  410.2001  UC Office of the Ombuds policies and procedures; 
contact information.

    (a) The UC Office of the Ombuds shall develop appropriate 
standards, practices, and policies and procedures, giving consideration 
to the recommendations by nationally recognized Ombudsperson 
organizations.
    (b) The UC Office of the Ombuds shall make its standards, 
practices, reports and findings, and policies and procedures publicly 
available.
    (c) The UC Office of the Ombuds shall make information about the 
office and how to contact it publicly available, in both English and 
other languages spoken and understood by unaccompanied children in ORR 
care. The Ombuds may identify preferred methods for raising awareness 
of the office and its activities, which may include, but not be limited 
to, visiting ORR facilities, or publishing aggregated information about 
the type and number of concerns the office receives, as well as giving 
recommendations.


Sec.  410.2002  UC Office of the Ombuds scope and responsibilities.

    (a) The UC Office of the Ombuds may engage in activities consistent 
with Sec.  410.2001, including but not limited to:
    (1) Receiving reports from unaccompanied children, potential 
sponsors, other stakeholders in a child's case, and the public 
regarding ORR's adherence to its own regulations and standards.
    (2) Investigating implementation of or adherence to Federal law and 
ORR regulations, in response to reports it receives, and meeting with 
interested parties to receive input on ORR's compliance with Federal 
law and ORR policy;
    (3) Requesting and receiving information or documents, such as the 
Ombuds deems relevant, from ORR and ORR care provider facilities, to 
determine implementation of and adherence to Federal law and ORR 
policy;
    (4) Preparing formal reports and recommendations on findings to 
publish, including an annual report describing activities conducted in 
the prior year;
    (5) Conducting investigations, interviews, and site visits at care 
provider facilities as necessary to aid in the preparation of reports 
and recommendations;
    (6) Visiting ORR care providers in which unaccompanied children are 
or will be housed;
    (7) Reviewing individual circumstances, including but not limited 
to concerns about unaccompanied children's access to services, ability 
to communicate with service providers, parents or legal guardians of 
children in ORR custody, sponsors, and matters related to transfers 
within or discharge from ORR care;
    (8) Making efforts to resolve complaints or concerns raised by 
interested parties as it relates to ORR's implementation or adherence 
to Federal law or ORR policy;
    (9) Hiring and retaining others, including but not limited to 
independent experts, specialists, assistants, interpreters, and 
translators to assist the Ombuds in the performance of their duties;
    (10) Making non-binding recommendations to ORR regarding its 
policies and procedures, specific to protecting unaccompanied children 
in the care of ORR;
    (11) Providing general educational information about pertinent 
laws, regulations and policies, ORR child advocates, and legal services 
as appropriate; and
    (12) Advising and updating the Director of ORR, Assistant 
Secretary, and the Secretary, as appropriate, on the status of ORR's 
implementation and adherence to Federal law or ORR policy.
    (b) The UC Office of the Ombuds may in its discretion refer matters 
to other Federal agencies or offices with jurisdiction over a 
particular matter, for further investigation where appropriate, 
including to Federal or State law enforcement.
    (c) To accomplish its work, the UC Office of the Ombuds may, as 
needed, have timely and direct access to:
    (1) Unaccompanied children in ORR care;
    (2) ORR care provider facilities;
    (3) Case file information;
    (4) Care provider and Federal staff responsible for children's 
care; and
    (5) Statistical and other data that ORR maintains.


Sec.  410.2003  Organization of the UC Office of the Ombuds.

    (a) The UC Ombuds shall be hired as a career civil servant.
    (b) The UC Ombuds shall have the requisite knowledge and experience 
to effectively fulfill the work and the role, including membership in 
good standing of a nationally recognized organization, association of 
ombudsmen, or State bar association throughout the course of employment 
as the Ombuds, and to also include but not be limited to having 
demonstrated knowledge and experience in:
    (1) Informal dispute resolution practices;
    (2) Services and matters related to unaccompanied children and 
child welfare;
    (3) Oversight and regulatory matters; and
    (4) ORR policy and regulations.
    (c) The Ombuds may engage additional staff as it deems necessary 
and practicable to support the functions and responsibilities of the 
Office.
    (d) The Ombuds shall establish procedures for training, 
certification, and continuing education for staff and other 
representatives of the Office.


Sec.  410.2004  Confidentiality.

    (a) The Ombuds shall manage the files, records, and other 
information of the program, regardless of format, and such files must 
be maintained in a manner that preserves the confidentiality of the 
records except in instances of imminent harm or judicial action and is 
prohibited from using or sharing information for any immigration 
enforcement related purpose.
    (b) The UC Office of the Ombuds may accept reports of concerns from 
anonymous reporters.

    Dated: April 15, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.

[[Page 34612]]

Endnotes

    \1\ Unaccompanied Children Program Foundational Rule, 88 FR 
68908 (Oct. 4, 2023).
    \2\ Public Law 107-296, sec. 462, 116 Stat. 2135, 2202.
    \3\ Public Law 110-457, title II, subtitle D, 122 Stat. 5044.
    \4\ See also 45 CFR 75.101.
    \5\ 6 U.S.C. 279(g)(2).
    \6\ See generally 8 U.S.C. 1232.
    \7\ 6 U.S.C. 279(a).
    \8\ See 6 U.S.C. 279(b)(1).
    \9\ 6 U.S.C. 279(b)(2).
    \10\ Memorandum of Agreement Among the Office of Refugee 
Resettlement of the U.S. Department of Health and Human Services and 
U.S. Immigration and Customs Enforcement and U.S. Customs and Border 
Protection of the U.S. Department of Homeland Security Regarding 
Consultation and Information Sharing in Unaccompanied Alien Children 
Matters (Mar. 11, 2021).
    \11\ See 8 U.S.C. 1232(a).
    \12\ 8 U.S.C. 1232(b)(2).
    \13\ 8 U.S.C. 1232(c)(1).
    \14\ See Delegation of Authority, 74 FR 14564 (Mar. 31, 2009); 
see also Delegation of Authority, 74 FR 19232 (Apr. 28, 2009).
    \15\ As discussed further, below, INS was abolished when the 
Department of Homeland Security was established in 2002. 6 U.S.C. 
291.
    \16\ See Complaint for Injunctive and Declaratory Relief, and 
Relief in the Nature of Mandamus at 2, Flores v. Meese, No. 85-4544 
(C.D. Cal. filed July 11, 1985).
    \17\ Id. Flores Compl. at paragraph 1.
    \18\ See id. at paragraph 66-69.
    \19\ See Stipulated Settlement Agreement, Flores v. Reno, No. CV 
85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997, as amended Dec. 7, 2001).
    \20\ See Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) (holding 
that the FSA applies to accompanied children as well as 
unaccompanied children).
    \21\ Id. at paragraph 11.
    \22\ Id. at paragraphs 12A, 14.
    \23\ Id. at paragraph 24A.
    \24\ Id. at paragraph 9.
    \25\ See 63 FR 39759 (July 24, 1998).
    \26\ Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-
4544-RJK(Px) (C.D. Cal. Jan. 17, 1997, as amended Dec. 7, 2001), at 
paragraph 40.
    \27\ 67 FR 1670 (Jan. 14, 2002).
    \28\ 83 FR 45486 (Sep. 7, 2018).
    \29\ Id.
    \30\ Apprehension, Processing, Care, and Custody of Alien Minors 
and Unaccompanied Alien Children, 84 FR 44392, 44530 through 44535 
(Aug. 23, 2019).
    \31\ Id. at 44526.
    \32\ Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal. 2019).
    \33\ Flores v. Rosen, 984 F.3d 720 (9th Cir. 2020).
    \34\ See id.
    \35\ 984 F.3d 720, 737 (9th Cir. 2020).
    \36\ Id. With respect to the DHS portions of the 2019 Final 
Rule, the Ninth Circuit held that some of the DHS regulations 
regarding initial apprehension and detention were consistent with 
the FSA and could take effect, but that the remaining DHS 
regulations were inconsistent with the FSA and the district court 
properly enjoined them and the inconsistent HHS regulations from 
taking effect. See id. at 744.
    \37\ California v. Mayorkas, No. 2:19-v-07390 (C.D. Cal. filed 
Aug. 26, 2019).
    \38\ See Stipulation re Request to Hold Plaintiffs' Claims as to 
HHS Under Abeyance, California v. Mayorkas, No. 2:19-v-07390 (C.D. 
Cal. Apr. 12, 2022), ECF No. 159. See also Order Approving 
Stipulation, ECF No. 160.
    \39\ See id.
    \40\ Pending E.O. 12866 Regulatory Review, https://www.reginfo.gov/public/do/eoDetails?rrid=312162.
    \41\ Lucas R. v. Becerra, Case No. 2:18-cv-5741 (C.D. Cal. filed 
Jun. 29, 2018).
    \42\ Amended Order re Defendants' Motion to Dismiss [101] and 
Plaintiff's Motion for Class Certification [97], Lucas R. v. 
Becerra, No. 2:18-cv-05741 (C.D. Cal. December 27, 2018), ECF No. 
141 at 27-28.
    \43\ Order re Preliminary Approval of Settlement and Approval of 
the Parties' Joint Proposal re Notice to Lucas R Class Members of 
Settlement of Plaintiffs' Third, Fourth, and Fifth Claims for Relief 
[Psychotropic Medications, Legal Representation, and Disability, 
Lucas R. v. Becerra, No. 2:18-cv-05741 (C.D. Cal. January 5, 2024), 
ECF No. 410.
    \44\ Since publication of the NPRM, the title of the ORR 
Director was updated to Deputy Assistant Secretary for Humanitarian 
Services and Director of the Office of Refugee Resettlement. The 
definition of ``Director'' has been updated in the regulation text, 
but the term has not been replaced in this final rule when 
discussing statutory authorities or delegations of power under the 
HSA or TVPRA.
    \45\ 6 U.S.C. 279(b)(1).
    \46\ 8 U.S.C. 1232(b)(2).
    \47\ 8 U.S.C. 1232(c)(1).
    \48\ 74 FR 14564 (2009).
    \49\ 74 FR 1232 (2009).
    \50\ See 8 U.S.C. 1232(c)(1); see also 6 U.S.C. 279(b)(1)(L).
    \51\ https://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2025-congressional-justification.pdf.
    \52\ 8 U.S.C. 1232(c)(1).
    \53\ See, e.g., Memorandum of Agreement between U.S. Department 
of Labor and HHS Regarding Inter-agency Data Sharing (Mar. 23, 
2023), https://www.acf.hhs.gov/sites/default/files/documents/main/23-MOA-096-between-DOL-WHD-and-HHS-ACF-Regarding-Inter-Agency-Data-Sharing-Agreement_0.pdf (expanding interagency efforts to identify 
communities and employers where children may be at risk of child 
labor exploitation; aiding investigations with information to help 
identify circumstances where children are unlawfully employed; and 
facilitating coordination to ensure that child labor trafficking 
victims or potential victims have access to critical services).
    \54\ https://www.hhs.gov/about/hhs-manuals/gam-part-30/302000/.
    \55\ To find information regarding regulatory reviews by the 
Office of Management and Budget, visit https://www.reginfo.gov/public/. To confirm the status of review of this rule, search 
``Foundational Rule'' in the search box.
    \56\ ORR Unaccompanied Children Program Policy Guide, https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide.
    \57\ Unaccompanied Children's Program Field Guidance, https://www.acf.hhs.gov/orr/policy-guidance/uc-program-field-guidance.
    \58\ 8 U.S.C. 1232(c)(2)(A).
    \59\ See, e.g., 8 U.S.C. 1226(c)(2) (authorizing the Attorney 
General to release certain noncitizens from custody where, among 
other circumstances, ``the alien satisfies the Attorney General that 
the alien will not pose a danger to the safety of other persons or 
of property and is likely to appear for any scheduled proceeding''). 
See also Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006) (discussing 
factors immigration judges may look to in determining whether an 
alien merits release on bond, and noting among those factors, ``any 
attempts by the alien to flee prosecution or otherwise escape from 
authorities.'').
    \60\ See, e.g., Proclamation by the Governor of the State of 
Texas, May 31, 2021, available at: https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf (directing 
the Texas Health and Human Service Commission (HHSC) to amend its 
regulations to ``discontinue State licensing of any child-care 
facility in this state that shelters or detains [UC] under a 
contract with the Federal Government.''); see also Fl. Executive 
Order No. 21-223 (Sept. 28, 2021), available at: https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-223.pdf.
    \61\ Separate from this final rule, ACF is currently developing 
a notice of proposed rulemaking that would describe the creation of 
a Federal licensing scheme for ORR care providers located in states 
where licensure is unavailable to programs serving unaccompanied 
children.
    \62\ Office to Monitor and Combat Trafficking in Persons. (2020, 
June). Trauma Bonding in Human Trafficking. U.S. Department of 
State. https://www.state.gov/wp-content/uploads/2020/10/TIP_Factsheet-Trauma-Bonding-in-Human-Trafficking-508.pdf.
    \63\ See 6 U.S.C. 279(b)(1)(B); 8 U.S.C. 1232(c)(2)(A).
    \64\ See 81 FR 46683 (``As a matter of discretion, ORR will 
treat information that it maintains in its mixed systems of records 
as being subject to the provisions of the Privacy Act, regardless of 
whether or not the information relates to U.S. persons covered by 
the Privacy Act.'').
    \65\ See e.g., 42 CFR 59.2 (defining ``family planning'' to 
include: ``Food and Drug Administration (FDA)-approved contraceptive 
products and natural family planning methods, for clients who want 
to prevent pregnancy and space births, pregnancy testing and 
counseling, assistance to achieve pregnancy, basic infertility 
services, sexually transmitted infection (STI) services, and other 
preconception health services''); the joint Centers for Disease 
Control and Office of Population Affairs Quality Family Planning 
guidebook, available at: https://opa.hhs.gov/sites/

[[Page 34613]]

default/files/2020-10/providing-quality-family-planning-services-
2014_1.pdf; and the State Medicaid Manual at section 4270, available 
at: https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/sm_4_4270_to_4390.1_181.doc.
    \66\ 45 CFR 92.101.
    \67\ See, e.g., 6 U.S.C. 279(b)(1); see also 8 U.S.C. 1232(c)(1) 
and (c)(2)(A).
    \68\ See 8 U.S.C. 1232(c)(1).
    \69\ See, e.g., 79 FR 77776 (``. . . ORR requires that all care 
provider facilities refer all allegations, regardless of how an 
allegation is made or who it comes from, to the proper investigating 
authorities. ORR and care provider facilities have no control over 
whether law enforcement, Child Protective Services, or a State or 
local licensing agency conducts an investigation. Both ORR and care 
provider facilities, however, must attempt to remain informed of 
ongoing investigations and fully cooperate as necessary.'').
    \70\ See 8 U.S.C. 1232(b)(1).
    \71\ See FSA at paragraph 19.
    \72\ 8 U.S.C. 1232(b)(1).
    \73\ 6 U.S.C. 279(b)(1)(A).
    \74\ See, e.g., paragraph 10 (defining the class in the action 
as ``All minors who are detained in the legal custody of the INS''); 
paragraph 14E (listing ``a licensed program willing to accept legal 
custody'' within the preferred order of release of children; 
paragraph 19 (``in any case in which the INS does not release a 
minor pursuant to paragraph 14, the minor shall remain in INS legal 
custody . . . All minors placed in . . . a licensed program remain 
in the legal custody of the INS and may only be transferred or 
released under the authority of the INS . . .'').
    \75\ Jenny L. Flores v. William P. Barr, No. CV854544DMGAGRX, 
2020 WL 5491445, at *3 (C.D. Cal. Sept. 4, 2020).
    \76\ 6 U.S.C. 279(b)(1). See also 8 U.S.C. 1232(c)(2)(A).
    \77\ The TVPRA also contains specific provisions for DHS to 
screen children who are from contiguous countries to determine 
whether such children meet statutory criteria to return to the 
child's country of nationality or of last habitual residence. If the 
child does not meet the criteria to return or no determination can 
be made within 48 hours of apprehension, the child shall 
``immediately be transferred to the Secretary of HHS and treated in 
accordance with subsection (b).'' 8 U.S.C. 1232(a)(4). ORR reads 
this language in concert with the language in 8 U.S.C. 1232(b)(3) 
and, thus, include the one 72-hour standard in this final rule.
    \78\ ORR has existing policies relating to the placement and 
transfer of Saravia class members, defined as noncitizen minors who 
(1) came to the United States as unaccompanied children, as defined 
at 6 U.S.C. 279(g)(2); (2) were previously detained in the custody 
of ORR but then released to a sponsor by ORR; and (3) have been or 
will be rearrested by DHS on the basis of a removability warrant 
based in whole or in part on allegations of gang affiliation. See 
Order Certifying the Settlement Class and Granting Final Approval of 
Class Action Settlement, Saravia v. Barr, Case No.: 3:17-cv-03615 
(N.D. Cal. Jan. 19, 2021), ECF No. 249. In Saravia bond hearings DHS 
bears the burden to demonstrate changed circumstances since the 
minor's release by ORR which demonstrate the minor is a danger to 
the community. DHS must demonstrate that circumstances have changed 
since the child's release from ORR custody such that the child poses 
a danger to the community or is a flight-risk.
    \79\ 8 U.S.C. 1232(b)(3).
    \80\ See, e.g., ORR Policy Guide 1.1.
    \81\ See also infra preamble discussion at subpart C.
    \82\ 8 U.S.C. 1232(b)(3).
    \83\ See 8 U.S.C. 1232(b)(2), (3).
    \84\ See www.acf.hhs.gov/orr/fact-sheet/programs/uc/influx-care-facilities-fact-sheet.
    \85\ See FSA paragraph 21.
    \86\ See generally 6 U.S.C. 279(b)(1).
    \87\ See FSA at paragraph 19 and Exhibit 3.
    \88\ The case manager is the case manager assigned at the 
child's initial in-network placement.
    \89\ See 8 U.S.C. 1232(c).
    \90\ ORR is adopting recommendations to use the term ``LGBTQI+ 
status or identity'' in the final rule in lieu of ``LGBTQI+ status'' 
as proposed in the NPRM. As used by ORR, these terms have the same 
meaning. Accordingly, for clarity, ORR has replaced ``LGBTQI+ 
status'' with ``LGBTQI+ status or identity'' in this final rule.
    \91\ See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c)(2).
    \92\ See 8 U.S.C. 1232(c)(2)(A); see also 2019 Final Rule at 
Sec.  410.203(c).
    \93\ See 6 U.S.C. 279(b)(1)(C) and (D).
    \94\ See 8 U.S.C. 1232(b)(3).
    \95\ See 6 U.S.C. 279(b)(2)(A).
    \96\ 6 U.S.C. 279(b)(2)(A).
    \97\ ORR notes that under 45 CFR 411.11(c), care provider 
facilities must have a written policy mandating zero tolerance 
toward all forms of sexual abuse and sexual harassment and outlining 
the care provider facility's approach to preventing, detecting, and 
responding to such conduct. Under 45 CFR 411.11(a), the care 
provider facility also must ensure that all policies and services 
related to part 411 are implemented in a culturally sensitive and 
knowledgeable manner that is tailored for a diverse population.
    \98\ See ORR Policy Guide 1.2.2.
    \99\ 45 CFR 87.3(c); see also 45 CFR 87.3(e) (2014).
    \100\ 45 CFR 87.3(b) and (n) (2014).
    \101\ 88 FR 66752.
    \102\ See, e.g., 6 U.S.C. 279(b)(2)(A)(ii); 8 U.S.C. 1232(c)(1).
    \103\ 8 U.S.C. 1232(c)(2)(A).
    \104\ The Office of Refugee Resettlement Needs to Improve Its 
Oversight Related to the Placement and Transfer of Unaccompanied 
Children (A-06-20-07002), May 2023.
    \105\ 6 U.S.C. 279(b)(1).
    \106\ 8 U.S.C. 1232(c)(2)(A).
    \107\ See 8 U.S.C. 1232(c)(2)(A) (``A child shall not be placed 
in a secure facility absent a determination that the child poses a 
danger to self or others or has been charged with having committed a 
criminal offense.'').
    \108\ See, e.g., 8 U.S.C. 1232(c)(2)(A) (requiring that 
unaccompanied children ``shall be promptly placed in the least 
restrictive setting that is in the best interest of the child.'').
    \109\ FSA at paragraph 21C.
    \110\ See also Order Re Plaintiffs' Motion to Enforce Class 
Action Settlement at *11, Flores v. Sessions, No. 2:85-cv-04544, 
(C.D. Cal. Jul. 30, 2018), ECF No. 470 (ordering ORR to transfer all 
unaccompanied children placed at a particular RTC out of that 
facility unless a licensed psychologist or psychiatrist determined 
that a particular child posed a risk of harm to self or others).
    \111\ See 8 U.S.C. 1232(c)(2)(A) (``In making such placements, 
the Secretary may consider danger to self, danger to the community, 
and risk of flight.'').
    \112\ See 6 U.S.C. 279(b)(1)(G).
    \113\ See, e.g., Sec. Sec.  410.1003, 410.1103, 410.1300, 
410.1302, 410.1801(b)).
    \114\ See 8 U.S.C. 1232(c)((2)(A)).
    \115\ See, e.g., Sec. Sec.  410.1302 through 1309, 1311.
    \116\ 8 U.S.C. 1232(c)(2)(A).
    \117\ See generally subpart J.
    \118\ 8 U.S.C. 1232(c)(2)(A).
    \119\ Id.
    \120\ See FSA at paragraph 21A (``. . . is the subject of 
delinquency proceedings, has been adjudicated delinquent, or is 
chargeable with a delinquent act . . .'').
    \121\ The Family First Prevention Services Act, which was 
enacted as part of Public Law 115-123 and established a Title IV-E 
prevention program in the domestic child welfare context, defines 
the term Qualified Residential Treatment Program at 42 U.S.C. 
672(k)(4).
    \122\ 53 FR 25591, 25600 (July 8, 1988).
    \123\ 8 U.S.C. 1232(c)(2)(A).
    \124\ See FSA at paragraph 22 (``Factors to consider when 
determining whether a minor is an escape-risk or not include, but 
are not limited to . . .'').
    \125\ Existing Sec.  410.204 also does not limit ORR to 
considering just the factors listed in the regulation and states 
``ORR considers, among other factors . . .''
    \126\ Office to Monitor and Combat Trafficking in Persons. 
(2020, June). Trauma Bonding in Human Trafficking. U.S. Department 
of State. https://www.state.gov/wp-content/uploads/2020/10/TIP_Factsheet-Trauma-Bonding-in-Human-Trafficking-508.pdf.
    \127\ See, e.g., 6 U.S.C. 279(b)(1)(B) (making ORR responsible 
for ``ensuring that the interests of the child are considered in 
decisions and actions relating to the care and custody of an 
unaccompanied alien child'').
    \128\ Exhibit 6 of the FSA provides the following notice 
language: ``The INS usually houses persons under the age of 18 in an 
open setting, such as a foster or group home, and not in detention 
facilities. If you believe that you have not been properly placed or 
that you have been treated improperly, you may ask a Federal judge 
to review your case. You may call a lawyer to help you do this. If 
you cannot afford a lawyer, you may call one from the list of free 
legal services given to you with this form.''
    \129\ See, e.g., Nat'l Archives & Records Admin. v. Favish, 541 
U.S. 157, 174 (2004).
    \130\ 8 U.S.C. 1232(c)(3)(A).
    \131\ See, e.g., FSA at paragraph 15 (requiring sponsors to sign 
an Affidavit of Support and an agreement to, among other things, 
provide for the unaccompanied child's physical,

[[Page 34614]]

mental, and financial well-being); see also paragraph 19 (noting 
that in any case where an unaccompanied child is not released to a 
sponsor, the unaccompanied child ``shall remain in INS legal 
custody.'').
    \132\ See 6 U.S.C. 279(b)(1); see also 8 U.S.C. 1232(c)(2)(A).
    \133\ See FSA at paragraph 14.
    \134\ See 8 U.S.C. 1232(c)(2)(A) (requiring HHS to ``promptly'' 
place unaccompanied children).
    \135\ See 88 FR 68928.
    \136\ 8 U.S.C. 1232(c)(3)(A).
    \137\ See 8 U.S.C. 1232(c)(3)(A); see also FSA paragraph 17.
    \138\ See 8 U.S.C. 1232(c)(3).
    \139\ See 8 U.S.C. 1232(c)(3).
    \140\ 8 U.S.C. 1232(c)(3).
    \141\ See, e.g., 6 U.S.C. 279(b)(2).
    \142\ See, e.g., Plyler v. Doe, 457 U.S. 202 (1982) (finding 
that under the Equal Protection Clause of the Fourteenth Amendment 
of the U.S. Constitution, a State may not deny access to a basic 
public education to any child residing in the State, whether present 
in the United States legally or otherwise); Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. 2000d et seq., and the Equal 
Educational Opportunity Act of 1974, 20 U.S.C. 1701 et seq. 
(prohibiting public schools from discriminating on the basis of 
race, color, or national origin).
    \143\ See 42 U.S.C. 2000d; see also U.S. Dep't of Justice, Civil 
Rights Division & U.S. Dep't of Education, Office for Civil Rights, 
Information on the Rights of All Children to Enroll in School: 
Questions and Answers for States, School Districts and Parents, 
Answers 3, 5, 7, and 8 (rev. May 8, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201405.pdf.
    \144\ See, e.g., ORR Policy Guide 2.1, 2.2.
    \145\ ORR. Unaccompanied Children Fact Sheet. https://www.acf.hhs.gov/orr/about/ucs/facts-and-data#lengthofcare.
    \146\ See 8 U.S.C. 1232(c)(3)(B).
    \147\ 8 U.S.C. 1232(c)(3)(A).
    \148\ 8 U.S.C. 1232(c)(1).
    \149\ 8 U.S.C. 1232(c)(3)(A).
    \150\ See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c).
    \151\ See, e.g., 8 U.S.C. 1232(c) and (c)(3)(A); and 6 U.S.C. 
279(b)(1).
    \152\ Id.
    \153\ A home study provider is a non-governmental agency funded 
by ORR to conduct home studies.
    \154\ Lucas R v. Becerra, Summ. J. Order, Mar. 11, 2022, at 42, 
No. 18-CV-5741 (C.D. Cal.).
    \155\ Id. at 41. In the Court's Summary Judgment Order, the 
Court was addressing instances where providing information to the 
child may cause distress to the child. Here, ORR is recognizing that 
by providing some information to a sponsor, the child may also be 
harmed.
    \156\ Id.
    \157\ Lucas R v. Becerra, Summ. J. Order, Mar. 11, 2022, at 37, 
No. 18-CV-5741 (C.D. Cal.).
    \158\ See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c).
    \159\ See 8 U.S.C. 1232(c)(1).
    \160\ See Lucas R v. Becerra, Summ. J. Order, Mar. 11, 2022, at 
40, No. 18-CV-5741 (C.D. Cal.) (``Furthermore, in recognition of 
ORR's need to serve thousands of minors and potential sponsors and 
the limited liberty interests at issue for minors with no familial 
sponsor, the Court will not require such notice or an opportunity to 
be heard for denial of a Category 3 sponsor.''). The definition of a 
Category 3 sponsor as relied on by the court in Lucas R. includes 
distant relatives and unrelated adult individuals. Id. at 11.
    \161\ ORR is revising the heading of Sec.  410.1207 to update 
the term ``release application'' to ``sponsor application,'' which 
is consistent with the terminology used in ORR's policies regarding 
release. See ORR Policy Guide 2.7.9. For clarity, ORR is also 
updating the term ``release application'' to ``sponsor application'' 
throughout the rest of this final rule, even where summarizing NPRM 
language, which used the term ``release application.''
    \162\ See ORR Policy Guide 2.7.9.
    \163\ 8 U.S.C. 1232(c)(2)(A).
    \164\ See 45 CFR 400.115.
    \165\ See generally 45 CFR 410.1001; 6 U.S.C. 279(b)(1); 8 
U.S.C. 1232(c).
    \166\ See 8 U.S.C. 1101(a)(27)(J). See also 8 U.S.C. 1232(d)(2).
    \167\ See, e.g., 8 U.S.C. 1232(d).
    \168\ See generally U.S. Citizenship and Immigration Services 
Policy Manual, Vol. 6, Part J, Ch. 1, available at: https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-1.
    \169\ Administration for Children and Families. Program 
Instruction: Specific Consent Requests. Issued Dec. 9, 2009. 
Available at https://www.acf.hhs.gov/sites/default/files/documents/orr/special_immigrant_juvenile_status_specific_consent_program.pdf.
    \170\ See, e.g., Administration for Children and Families. 
Program Instruction: Specific Consent Requests. Issued Dec. 9, 2009. 
Available at https://www.acf.hhs.gov/sites/default/files/documents/orr/special_immigrant_juvenile_status_specific_consent_program.pdf.
    \171\ See 8 U.S.C. 1232(c)(3)(B).
    \172\ See Section 6 of the ORR Policy Guide.
    \173\ See 8 U.S.C. 1232(c)(3)(B).
    \174\ ORR's revised PRS policies state that all released 
children are eligible to receive PRS.
    \175\ ORR Policy Guide section 2.4.2 requires a home study 
before releasing an unaccompanied child to a non-relative sponsor 
who is seeking to sponsor: (1) multiple unaccompanied children; (2) 
additional unaccompanied children and the non-relative sponsor has 
previously sponsored or sought to sponsor an unaccompanied child; or 
(3) unaccompanied children who are 12 years and under.
    \176\ The types of services that would be available as part of 
PRS are described in ORR Policy Guide 6.2.5 through 6.5.
    \177\ The types of services that would be available as part of 
PRS are described in ORR Policy Guide 6.2.5 through 6.5.
    \178\ Office to Monitor and Combat Trafficking in Persons. 
(2020, June). Trauma Bonding in Human Trafficking. U.S. Department 
of State. https://www.state.gov/wp-content/uploads/2020/10/TIP_Factsheet-Trauma-Bonding-in-Human-Trafficking-508.pdf.
    \179\ Currently, ORR provides three levels of PRS--Levels One, 
Two, and Three. See ORR Policy Guide 6.3 through 6.5.
    \180\ ORR notes that care provider facilities currently conduct 
safety and well-being follow-up calls 30 days after the 
unaccompanied child's release date.
    \181\ See ORR Policy Guide 6.4, 6.5, and 6.6 (requiring PRS 
providers to start PRS within two (2) days of the child's release 
from ORR custody for Level Two and Three PRS).
    \182\ As revised since publication of the NPRM, ORR Policy Guide 
6.3 states that for Level One PRS, PRS providers conduct three 
virtual check-ins at seven (7) business days, fourteen (14) business 
days, and thirty (30) business days after the child's release from 
ORR custody to a sponsor. ORR Policy Guide 6.4 states that for Level 
Two PRS, PRS case managers must make initial contact with the child 
and/or sponsor within two (2) business days of a referral being 
accepted by the PRS provider. ORR Policy Guide 6.5 states that for 
Level Three PRS, a PRS clinician must make initial contact with the 
child and/or sponsor within two (2) business days of a referral 
being accepted by the PRS provider.
    \183\ ORR revised the termination guidelines, and they vary by 
PRS level and are described in ORR Policy Guide 6.3 through 6.6.
    \184\ ORR Policy Guide 6.8.6 describes the list of reasons for 
concern that necessitates the PRS provider to submit a NOC.
    \185\ ORR Policy Guide 6.8.6.
    \186\ See 8 U.S.C. 1232(c)(3)(B) (``. . . The Secretary of 
Health and Human Services shall conduct follow-up services, during 
the pendency of removal proceedings, on children for whom a home 
study was conducted . . .'').
    \187\ See ORR Policy Guide 6.2.3 (describing identification of 
appropriate services).
    \188\ 8 U.S.C. 1232(c)(3)(B).
    \189\ See generally ORR Policy Guide 6.1; 6.2.9; and 6.2.13.
    \190\ See, e.g., ORR Guide 6.2.4 (requiring PRS providers to 
help educate children and their sponsor families on identifying 
risks and red flags that may lead to child exploitation; sex and 
labor trafficking; substance abuse; physical, emotional, or sexual 
abuse; coercion by gangs or gang affiliation; or other situations 
where the child would be in danger or at risk of harm).
    \191\ See, e.g., ORR Policy Guide at 6.2.8; 6.2.9; 6.2.10.
    \192\ See ORR Policy Guide 6.2.5 (stating that the PRS case 
manager refers the sponsor to legal services that can assist with 
establishing guardianship with a local court in a reasonable 
timeframe).
    \193\ 45 CFR 87.3(c) (2014).
    \194\ 45 CFR 87.3(b) and (n).
    \195\ See ORR Policy Guide 6.3 through 6.6.
    \196\ See ORR Policy Guide 6.2.1.
    \197\ See ORR Policy Guide 6.1; 6.2.13.
    \198\ The Refugee Health Screener-15 ``screens for common mental 
health conditions (anxiety, depression, PTSD, adjustment, coping), 
but not for domestic violence, substance use, or psychotic 
disorders.'' CDC. (2022, March 24). Guidance for Mental Health 
Screening during the Domestic Medical Examination for Newly Arrived 
Refugees. https://www.cdc.gov/immigrantrefugeehealth/guidelines/

[[Page 34615]]

domestic/mental-health-screening-guidelines.html.
    \199\ The Trauma History Profile is a tool ``comprehensive list 
of trauma, loss, and separation exposures paired with a rating scale 
on which the interviewer records whether each trauma occurred or was 
suspected to occur.'' Betancourt, T.S., Newnham, E.A., Layne, C.M., 
Kim, S., Steinberg, A.M., Ellis, H., & Birman, D. (2012). Trauma 
History and Psychopathology in War-Affected Refugee Children 
Referred for Trauma-Related Mental Health Services in the United 
States. Journal of Traumatic Stress, 25(6), 682-690. https://doi.org/10.1002/jts.21749.
    \200\ See ORR Policy Guide 6.2.7.
    \201\ See ORR Policy Guide 6.7.3.
    \202\ See generally ORR Policy Guide 6.3 through 6.6.
    \203\ See ORR Policy Guide 6.3 through 6.6.
    \204\ See ORR Policy Guide 6.3; 6.4; 6.5.
    \205\ See ORR Policy Guide 6.8.5.
    \206\ See also ORR Policy Guide 6.9.
    \207\ See, e.g., ORR Policy Guide 6.2.5; 6.2.6; and 6.2.7.
    \208\ See ORR Policy Guide 6.8.2 (stating PRS providers must 
upload all PRS documentation to ORR's online case management system 
within five to seven days of completion).
    \209\ See ORR Policy Guide 6.8.7.
    \210\ See ORR Policy Guide 6.8.2.
    \211\ See, e.g., 45 CFR 75.364 (``The HHS awarding agency, 
Inspectors General, the Comptroller General of the United States, 
and the pass-through entity, or any of their authorized 
representatives, must have the right of access to any documents, 
papers, or other records of the non-Federal entity which are 
pertinent to the Federal award, in order to make audits, 
examinations, excerpts, and transcripts. The right also includes 
timely and reasonable access to the non-Federal entity's personnel 
for the purpose of interview and discussion related to such 
documents.'').
    \212\ See ORR Policy Guide 6.8.3.
    \213\ See ORR Policy Guide 6.8.3.
    \214\ See 5 U.S.C. 552a(b).
    \215\ See 81 FR 46683 (``As a matter of discretion, ORR will 
treat information that it maintains in its mixed systems of records 
as being subject to the provisions of the Privacy Act, regardless of 
whether or not the information relates to U.S. persons covered by 
the Privacy Act.'').
    \216\ See 5 U.S.C. 552a(h) (``For the purposes of this section, 
the parent of any minor, or the legal guardian of any individual who 
has been declared to be incompetent due to physical or mental 
incapacity or age by a court of competent jurisdiction, may act on 
behalf of the individual.'').
    \217\ See ORR Policy Guide 6.8.5.
    \218\ See 5 U.S.C. 552a(b).
    \219\ See ORR Policy Guide 6.8.6.
    \220\ See ORR Policy Guide 6.2.1.
    \221\ See ORR Policy Guide 6.3 through 6.6.
    \222\ See, e.g., 8 U.S.C. 1232(c)(1).
    \223\ See ORR Policy Guide 6.2.1.
    \224\ See ORR Policy Guide 6.3 through 6.6.
    \225\ See, e.g., 45 CFR 75.371 (describing remedies for 
noncompliance with Federal statutes, regulations, or the terms and 
conditions of a Federal award).
    \226\ See ORR Policy Guide 6.9.2.
    \227\ For reasons discussed in our responses to comments 
received regarding Sec.  410.1307(c), ORR is updating the regulation 
to state that the ORR employee is required to abide by their Federal 
duties ``subject to applicable Federal religious freedom and 
conscience protections.''
    \228\ Dietary Guidelines for Americans. Available at https://www.dietaryguidelines.gov/current-dietary-guidelines.
    \229\ See 45 CFR part 87.
    \230\ See, e.g., FSA at paragraphs 6, 12, and 19; see also 
paragraph 40, as amended.
    \231\ FSA paragraph 6.
    \232\ See Proclamation by the Governor of the State of Texas, 
May 31, 2021, available at: https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf.
    \233\ See 26 Tex. Admin. Code 745.115.
    \234\ Fl. Executive Order No. 21-223 (Sep. 28, 2021), available 
at: https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-223.pdf.
    \235\ S.C. Exec. Order No. 2021-19 (Apr. 12, 2021), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2021-04-12%20FILED%20Executive%20Order%20No.%202021-19%20-%20Prioritizing%20SC%20Children.pdf.
    \236\ See ORR Fact Sheets and Data, available at https://www.acf.hhs.gov/orr/about/ucs/facts-and-data.
    \237\ Calculations based on data available at ORR, Unaccompanied 
Children Released to Sponsors by State, https://www.acf.hhs.gov/orr/grant-funding/unaccompanied-children-released-sponsors-state (last 
accessed Feb. 14, 2024).
    \238\ See, e.g., ORR Policy Guide 3.5.
    \239\ See ORR Policy Guide 3.5.
    \240\ https://www.dol.gov/agencies/whd/resources/videos/know-your-rights.
    \241\ See, e.g., 6 U.S.C. 279(b)(1) (describing ORR 
responsibilities including implementing policies with the respect to 
the care of unaccompanied children, ensuring the interests of 
unaccompanied children are considered, and overseeing the 
infrastructure and personnel of facilities where unaccompanied 
children reside).
    \242\ ORR also notes that to the extent that a care provider has 
acted contrary to the terms and conditions of its funding, they may 
be subject to consequences described at 45 CFR part 75, subpart D.
    \243\ ORR Unaccompanied Children Policy Guide 4.3.5. Available 
at https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide-section-4#4.3.5.
    \244\ See 6 U.S.C. 279(b).
    \245\ See 8 U.S.C. 1232(c)(1); see also id. at 1232(b).
    \246\ See 81 FR 46682 (July 18, 2016) (stating that ``[t]he case 
file contains information that is pertinent to the care and 
placement of unaccompanied children, including . . . post-release 
service records[.]'').
    \247\ Exposing the Risks of Deliberate Ignorance: Years of 
Mismanagement and Lack of Oversight by the Office of Refugee 
Resettlement, Leading to Abuses and Substandard Care of 
Unaccompanied Alien Children October 2021, available at: https://www.finance.senate.gov/imo/media/doc/102821%20Finance%20Committee%20Report%20ORR%20UAC%20Program.pdf.
    \248\ See, e.g., 45 CFR 75.371.
    \249\ H.R. REP. 116-450.
    \250\ See 81 FR 46683.
    \251\ 8 U.S.C. 1232(c)(6)(A).
    \252\ See Joint Motion for Preliminary Approval of Class Action 
Settlement, And to Certify Settlement Class, Ms. L. v. U.S Immigr. & 
Customs Enf't, No. 3:18-cv-00428, (S.D. Cal. Oct. 16, 2023), ECF No. 
711; Order Granting Final Approval of Settlement Agreement and 
Certifying the Settlement Classes, Ms. L. v. U.S Immigr. & Customs 
Enf't, No. 3:18-cv-00428, (S.D. Cal. Dec. 11, 2023), ECF No. 727.
    \253\ See, e.g., 45 CFR 75.364(a).
    \254\ See 6 U.S.C. 279(b)(1)(G).
    \255\ Operational Challenges Within ORR and the ORR Emergency 
Intake Site at Fort Bliss Hindered Case Management for Children. 
Available at: https://oig.hhs.gov/oei/reports/OEI-07-21-00251.pdf.
    \256\ See 45 CFR 87.3(a).
    \257\ Atena Aire. How to Build Language Justice. (pg. 4). 
Available at: https://antenaantena.org/wp-content/uploads/2020/10/AntenaAire_HowToBuildLanguageJustice.pdf.
    \258\ See, e.g., ORR Policy Guide 4.3.5, Staff Code of Conduct.
    \259\ See ORR Policy Guide 3.3.7 and 4.3.6.
    \260\ See, e.g., Administration for Children and Families. Field 
Guidance #22--Interpreters Working with the Unaccompanied Children 
(UC) Program. Available at https://www.acf.hhs.gov/sites/default/files/documents/orr/field-guidance-22_interpreters-at-ucp-sites_10.26.2021-v2.pdf.
    \261\ See ORR Policy Guide 5.9.
    \262\ See, e.g., Policy Memorandum, Medical Services Requiring 
Heightened ORR Involvement, available at https://www.acf.hhs.gov/sites/default/files/documents/orr/garza_policy_memorandum.pdf; Field 
Guidance #21--Compliance with Garza Requirements and Procedures for 
Unaccompanied Children Needing Reproductive Healthcare, available at 
https://www.acf.hhs.gov/sites/default/files/documents/orr/field-guidance-21.pdf. See also 45 CFR 411.92(d) (requiring timely and 
comprehensive information about lawful pregnancy-related medical 
services and timely access to such services for unaccompanied 
children who experience sexual abuse while in ORR care).
    \263\ See 6 U.S.C. 279(b)(1)(B), (E).
    \264\ See, e.g., Consolidated Appropriations Act, 2023, Public 
Law 117-328, Div. H, tit. V, sections 506-507; see also Department 
of Justice, Office of Legal Counsel, Application of the Hyde 
Amendment to the Provision of Transportation for Women Seeking 
Abortions (Sept. 27, 2022), https://www.justice.gov/d9/2022-11/2022-09-27-hyde_amendment_application_to_hhs_transportation.pdf.
    \265\ See 45 CFR part 87.
    \266\ 6 U.S.C. 279(b)(1)(B), (E).
    \267\ Administration for Children and Families. Field Guidance 
#21--Compliance with Garza Requirements and Procedures for 
Unaccompanied Children Needing

[[Page 34616]]

Reproductive Healthcare, available at https://www.acf.hhs.gov/sites/default/files/documents/orr/field-guidance-21.pdf.
    \268\ 6 U.S.C. 279(b)(1)(B), (E)).
    \269\ See Administration for Children and Families. Field 
Guidance #21--Compliance with Garza Requirements and Procedures for 
Unaccompanied Children Needing Reproductive Healthcare, available at 
https://www.acf.hhs.gov/sites/default/files/documents/orr/field-guidance-21.pdf.
    \270\ Administration for Children and Families. Field Guidance 
#21--Compliance with Garza Requirements and Procedures for 
Unaccompanied Children Needing Reproductive Healthcare, available at 
https://www.acf.hhs.gov/sites/default/files/documents/orr/field-guidance-21.pdf.
    \271\ Administration for Children and Families. Policy 
Memorandum, Medical Services Requiring Heightened ORR Involvement, 
available at https://www.acf.hhs.gov/sites/default/files/documents/orr/garza_policy_memorandum.pdf.
    \272\ Department of Justice, Office of Legal Counsel, 
Application of the Hyde Amendment to the Provision of Transportation 
for Women Seeking Abortions (Sept. 27, 2022), https://www.justice.gov/d9/2022-11/2022-09-27-hyde_amendment_application_to_hhs_transportation.pdf.
    \273\ 6 U.S.C. 279(b)(1)(B), (E)).
    \274\ See Administration for Children and Families, Policy 
Memorandum, Medical Services Requiring Heightened ORR Involvement 
(Sept. 29, 2020), available at https://www.acf.hhs.gov/sites/default/files/documents/orr/garza_policy_memorandum.pdf.
    \275\ See 6 U.S.C. 279(b)(1)(B); see also 1 U.S.C. 8(a).
    \276\ Administration for Children and Families. Policy 
Memorandum, Medical Services Requiring Heightened ORR Involvement, 
available at https://www.acf.hhs.gov/sites/default/files/documents/orr/garza_policy_memorandum.pdf.
    \277\ Administration for Children and Families. Field Guidance 
#21--Compliance with Garza Requirements and Procedures for 
Unaccompanied Children Needing Reproductive Healthcare, available at 
https://www.acf.hhs.gov/sites/default/files/documents/orr/field-guidance-21.pdf.
    \278\ 85 FR 82037, codified under 45 CFR Part 87.
    \279\ 89 FR 2078, codified under 45 CFR Part 88.
    \280\ See GAO, April 19, 2016, ``Unaccompanied Children: HHS 
Should Improve Monitoring and Information Sharing Policies to 
Enhance Child Advocate Program Effectiveness,'' GAO-16-367.
    \281\ See 8 U.S.C. 1232(c)(6)(A) (``. . . A child advocate shall 
be provided access to materials necessary to effectively advocate 
for the best interest of the child . . .'').
    \282\ 8 U.S.C. 1232(c)(6)(A).
    \283\ See 8 U.S.C. 1232(c)(6)(A).
    \284\ See 6 U.S.C. 279(b)(1)(B), (E), and (G).
    \285\ See Joint Motion for Preliminary Approval of Class Action 
Settlement, And to Certify Settlement Class, Ms. L. v. U.S. Immigr. 
& Customs Enf't, No. 3:18-cv-00428, (S.D. Cal. Oct. 16, 2023), ECF 
No. 711; Order Granting Final Approval of Settlement Agreement and 
Certifying the Settlement Classes, Ms. L. v. U.S. Immigr. & Customs 
Enf't, No. 3:18-cv-00428, (S.D. Cal. Dec. 11, 2023), ECF No. 727.
    \286\ 8 U.S.C. 1232(c)(6)(A).
    \287\ See FSA, Exhibit 1, paragraph A14 (``Legal services 
information regarding the availability of free legal assistance, the 
right to be represented by counsel at no expense to the Government . 
. .''). With respect to information regarding the availability of 
free legal assistance, ORR understands the proposed language at 
Sec.  410.1309(a)(2)(ii) to be consistent with paragraph A14 but 
updated to avoid potential confusion. As discussed above, the TVPRA 
describes unaccompanied children's access to counsel as a 
``privilege,'' and also makes HHS responsible for ensuring such 
privilege ``to the greatest extent practicable.'' ORR notes that 
this clarification does not represent a change in ORR's existing 
policies or practices, and as described elsewhere in this section, 
ORR proposes to expand the availability of legal services to 
unaccompanied children beyond current practice.
    \288\ See 6 U.S.C. 279(b)(1)(I). See also Office of Refugee 
Resettlement Division of Unaccompanied Children Operations, Legal 
Resource Guide--Legal Service Provider List for [UC] in ORR Care, 
https://www.acf.hhs.gov/sites/default/files/documents/orr/english_legal_service_providers_guide_with_form_508.pdf.
    \289\ See 8 U.S.C. 1232(c)(5).
    \290\ ORR cited the expansion of legal services in its budget 
request for FY 2024. ACF, Fiscal Year 2024 Justification for 
Estimates for Appropriations Committees, https://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2024-congressional-justification.pdf.
    \291\ Amended Order re Defendants' Mot. to Dismiss and 
Plaintiffs' Mot. for Class Cert., Lucas R., et al. v. Xavier 
Becerra, et al., No. 18-CV-5741 (C.D. Cal. Dec. 27, 2018), ECF No. 
141.
    \292\ Order re Preliminary Approval of Settlement and Approval 
of the Parties' Joint Proposal re Notice to Lucas R Class Members of 
Settlement of Plaintiffs' Third, Fourth, and Fifth Claims for Relief 
[Psychotropic Medications, Legal Representation, and Disability, 
Lucas R. v. Becerra, No. 2:18-cv-05741 (C.D. Cal. Jan. 5, 2024), ECF 
No. 410.
    \293\ Amended Order re Defendants' Mot. to Dismiss and 
Plaintiffs' Mot. for Class Cert., Lucas R., et al. v. Xavier 
Becerra, et al., No. 18-CV-5741 (C.D. Cal. Dec. 27, 2018).
    \294\ 45 CFR 85.21(d).
    \295\ 53 FR 25595, 25600 (July 8, 1988).
    \296\ See 8 U.S.C. 1232(b)(3).
    \297\ See 8 U.S.C. 1232(b)(3).
    \298\ 6 U.S.C. 279(b)(1)(J).
    \299\ 8 U.S.C. 1232(c)(3)(A).
    \300\ See 8 U.S.C. 1232(b)(4).
    \301\ See 6 U.S.C. 279(g)(2).
    \302\ See 1.6.2 Instructions for Age Determinations at https://www.acf.hhs.gov/orr/policy-guidance/cunaccompanied-children-program-policy-guide-record-posting-and-revision-dates.
    \303\ Office of the Inspector General. February 8, 2022. CBP 
Officials Implemented Rapid DNA Testing to Verify Claimed Parent-
Child Relationships https://www.oig.dhs.gov/sites/default/files/assets/2022-02/OIG-22-27-Feb22.pdf.
    \304\ ORR Guide 1.6.2, ``Instructions for Age Determinations''. 
Available at: https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide-section-1.
    \305\ See 8 U.S.C. 1232(b)(4).
    \306\ ORR Policy Guide 7.2.2.
    \307\ See, e.g., FSA paragraph 12A; Exhibit 3.
    \308\ See ORR Influx Care Facilities for Unaccompanied Children 
Fact Sheet (March 1, 2024), available at: https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/influx-care-facilities-fact-sheet. 
Accessed on March 1, 2024.
    \309\ See Flores v. Lynch, 212 F. Supp. 3d 907, 914 (C.D. Cal. 
2015), aff'd in part, rev'd in part and remanded, 828 F.3d 898 (9th 
Cir. 2016).
    \310\ See ORR Fact Sheets and Data, available at: https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/influx-care-facilities-fact-sheet.
    \311\ ``Each year the INS will reevaluate the number of regular 
placements needed for detained minors to determine whether the 
number of regular placements should be adjusted to accommodate an 
increased or decreased number of minors eligible for placement in 
licensed programs . . .''
    \312\ See 45 CFR 87.3(a).
    \313\ In this final rule, ORR is updating this language to 
clarify that ORR employees must abide by their Federal duties if 
there is a conflict between ORR's regulations and State law, subject 
to applicable Federal conscience protections and civil rights.
    \314\ See 6 U.S.C. 279(b)(1)(B); 8 U.S.C. 1232(c)(2)(A).
    \315\ See, e.g., Public Law 117-328, Div. H, Tit. II, Sec. 231.
    \316\ See ORR Policy Guide 7.2.1.
    \317\ For example, U.S. Department of Defense or other Federal 
sites may have this requirement.
    \318\ In Sec.  410.1001, restrictive placement is defined to 
include a secure facility, heightened supervision facility, or RTC.
    \319\ 8 U.S.C. 1232(c)(2)(A).
    \320\ If, hypothetically, an unaccompanied child was in secure 
care for 90 days, they would receive both their third 30-day review 
and their second, more intensive 45-day review concurrently.
    \321\ Lucas R v. Becerra, Summ. J. Order, Mar. 11, 2022, at 28, 
No. 18-CV-5741 (C.D. Cal.).
    \322\ Lucas R v. Becerra, Summ. J. Order, Mar. 11, 2022, at 28, 
No. 18-CV-5741 (C.D. Cal.).
    \323\ Id. at 31.
    \324\ See FSA at paragraph 24A.
    \325\ See 6 U.S.C. 279(a).
    \326\ See Flores v. Rosen, 984 F. 3d 720, 736 (9th Cir. 2020).
    \327\ See, e.g., 8 CFR 1003.19, 1236.1.
    \328\ In contrast, under paragraph 14 of the FSA the former INS 
would detain a minor if detention was required ``to secure his or 
her timely appearance before the INS or immigration court.'' As a 
result, as they pertained to the former INS, bond hearings afforded 
an opportunity for the unaccompanied children to have a hearing

[[Page 34617]]

before an independent officer to determine whether the unaccompanied 
children in fact posed a risk of flight if released from custody.
    \329\ See 8 U.S.C. 1232(c)(3); see also Flores v. Sessions, 862 
F.3d 863, 868 (9th Cir. 2017) (``As was the case under the Flores 
Settlement prior to the passage of the HSA and TVPRA, the 
determinations made at hearings held under paragraph 24A will not 
compel a child's release. Regardless of the outcome of a bond 
hearing, a minor may not be released unless the agency charged with 
his or her care identifies a safe and appropriate placement.'').
    \330\ Flores v. Rosen, 984 F.3d 720, 734 (9th Cir. 2020).
    \331\ 6 U.S.C. 279(b)(1)(B).
    \332\ See, e.g., Standards Committee of the United States 
Ombudsman Association, Governmental Ombudsmen Standards (2003) at 1, 
https://www.usombudsman.org/wp-content/uploads/USOA-STANDARDS1.pdf 
(promoting a model that defines a governmental ombudsman as an 
independent, impartial public official with authority and 
responsibility to receive, investigate or informally address 
complaints about Government actions, and, when appropriate, make 
findings and recommendations, and publish reports); Houk et al., A 
Reappraisal--The Nature and Value of Ombudsmen in Federal Agencies, 
Administrative Conference of the United States (2016) at 258-67, 
https://www.acus.gov/report/ombudsman-federal-agencies-final-report-2016 (``2016 ACUS Report'') (reviewing association standards and 
practices of different Federal ombudsman offices, and concluding 
that independence, confidentiality, and impartiality are essential 
to the ombudsman profession.).
    \333\ 2016 ACUS Report at 28.
    \334\ 8 U.S.C. 1232(c)(1).
    \335\ See, e.g., 9 NYCRR 177.7 (NYS Office of Children and 
Family Services; Regulations for the Office of the Ombudsman; Visits 
to Facilities and Programs) and 6 U.S.C. 205 (Ombudsman for 
Immigration Detention).
    \336\ 2016 ACUS Report at 28.
    \337\ 2016 ACUS Report at 29.
    \338\ 2016 ACUS Report at 2.
    \339\ 2016 ACUS Report at 56.
    \340\ 2016 ACUS Report at 66.
    \341\ 2016 ACUS Report at 41.
    \342\ https://aspe.hhs.gov/reports/valuing-time-us-department-health-human-services-regulatory-impact-analyses-conceptual-framework.
    \343\ https://www.bls.gov/news.release/pdf/wkyeng.pdf. Accessed 
February 13, 2024.
    \344\ https://www.census.gov/library/stories/2023/09/median-household-income.html. Accessed February 13, 2024.
    \345\ https://www.bls.gov/oes/current/oes231011.htm. Accessed 
February 13, 2024.
    \346\ Under OMB control number 0970-0565, it is assumed these 
forms will be completed by ``Child, Family, and School Social 
Workers in the industry of Other Residential Care Facilities''. The 
most recent BLS mean wage rate associated with this occupation is 
$21.47 per hour (https://www.bls.gov/oes/current/oes211021.htm; 
accessed February 13, 2024). Including a 100% adjustment for 
overhead and fringe, this wage rate is calculated to be $21.47 x 2 
or $42.94 per hour.
    \347\ Annual Report to Congress, Office of Refugee Resettlement 
(FY 2019), https://www.acf.hhs.gov/sites/default/files/documents/orr/orr-arc-fy2019.pdf.
    \348\ ACF, Justification of Estimates for Appropriations 
Committees, page 70, (FY 2024) https://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2024-congressional-justification.pdf.
    \349\ Id. at 77.
    \350\ https://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2025-congressional-justification.pdf.
    \351\ https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A76/a76_incl_tech_correction.pdf.
    \352\ See, e.g., Flores v. Sessions, 862 F.3d 863 (9th Cir. 
2017); Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016); Flores v. 
Sessions, No. 2:85-cv-04544 (C.D. Cal. June 27, 2017).
    \353\ 6 U.S.C. 279(a).
    \354\ 6 U.S.C. 279(f)(1).
    \355\ 8 U.S.C. 1232(b)(1) (referencing 6 U.S.C. 279).
    \356\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); 8 CFR 2.1 
(2002).
    \357\ See 6 U.S.C. 279(e) and (f). See also 6 U.S.C. 552, 557; 8 
U.S.C. 1232(b)(1).
    \358\ See Flores v. Rosen, 984 F. 3d 720, 737 (9th Cir. 2020).

[FR Doc. 2024-08329 Filed 4-23-24; 8:45 am]
BILLING CODE 4184-45-P