Current through Register Vol. 48, No. 38, September 20, 2024
a) All facilities
shall have a developmentally appropriate, research informed behavioral
management program that supports the development of pro-social skills and
provides positive reinforcement for good behavior. The program shall provide
opportunities for immediate recognition of pro-social behavior as well as
meaningful incentives and rewards for improvement and maintenance of desired
behavior. The program shall also include potential sanctions for negative
behavior that are developmentally appropriate, research informed, proportionate
and fair.
b) Written Rules
As part of the orientation process, prior to joining the
programming, each youth shall receive a thorough verbal explanation of the
rules and behavioral expectations as well as written copy of the rules and
program. The verbal and written explanation shall include:
1) The rules and regulations governing, and
rewards for, behavior.
2) A
description of incentives and rewards.
3) A description of behaviors that may incur
sanction.
4) Potential sanctions
for negative behavior.
5)
Authorized methods of seeking information and making complaints, including time
frame for resolution of complaints and appeal procedures and access to an
advocate.
6) All other matters
necessary to enable youth to understand both their rights and
obligations.
c) Written
Rules for Youth with limited English Proficiency or Youth with disabilities
1) If a youth has limited English proficiency
or a disability, the facility shall provide a translator or interpreter to
explain the rules in the youth's primary language or a manner to ensure the
youth will understand. Written rules should be available in multiple languages
common among youth in the community.
2) Written Rules Preventing Sex Abuse - PREA
A) The agency shall take appropriate steps to
ensure that youth with disabilities (e.g., youth who are deaf or hard of
hearing, who are blind or have low vision, who have intellectual, psychiatric,
or speech disabilities), have an equal opportunity to participate in or benefit
from all aspects of the agency's efforts to prevent, detect and respond to
sexual abuse and sexual harassment. Steps shall include, when necessary to
ensure effective communication with youth who are deaf or hard of hearing,
providing access to interpreters who can interpret effectively, accurately, and
impartially, both receptively and expressively, using any necessary specialized
vocabulary. In addition, the agency shall ensure that written materials are
provided in formats or through methods that ensure effective communication with
youth with disabilities, including residents who have intellectual
disabilities, limited reading skills, or who are blind or have low vision. An
agency is not required to take actions that it can demonstrate would result in
a fundamental alteration in the nature of a service, program or activity, or in
undue financial and administrative burdens, as those terms are used in
regulations promulgated under title II of the Americans With Disabilities Act,
28 CFR
35.164.
B) The agency shall take reasonable steps to
ensure meaningful access to all aspects of the agency's efforts to prevent,
detect and respond to sexual abuse and sexual harassment to youth who are
limited English proficient, including steps to provide interpreters who can
interpret effectively, accurately and impartially, both receptively and
expressively, using any necessary specialized vocabulary.
C) The agency shall not rely on youth
interpreters, readers, or other types of youth assistants except in limited
circumstances where an extended delay in obtaining an effective interpreter
could compromise the youth safety, the performance of first-response duties
under Section 364 of PREA, or the investigation of the youth's allegations.
(See Section 316 of PREA.).
d) Grievances - PREA
Each youth shall be permitted to make requests or complaints to
the detention administration, without censorship as to substance. Established
protocols shall allow for multiple avenues to submit complaints to facility or
department administrators.
1) The
agency shall provide multiple internal ways for youth to privately report
sexual abuse and sexual harassment, retaliation by other residents or staff for
reporting sexual abuse and sexual harassment, and staff neglect or violation of
responsibilities that may have contributed to such incidents.
2) The agency shall also provide at least one
way for youth to report abuse or harassment to a public or private entity or
office that is not part of the agency and that is able to receive and
immediately forward youth reports of sexual abuse and sexual harassment to
agency officials, allowing the resident to remain anonymous upon request. Youth
detained pursuant to a judicial immigration warrant shall be provided
information on how to contact relevant consular officials and relevant
officials at the Department of Homeland Security.
3) Staff shall accept reports made verbally,
in writing, anonymously and from third parties and shall promptly document any
verbal reports.
4) The facility
shall provide youth with access to tools necessary to make a written
report.
5) The agency shall provide
a method for staff to privately report sexual abuse and sexual harassment of
residents. (See Section 351 of PREA.)
6) Exhaustion of Administrative Remedies
A) Time Limits
i) The agency shall not impose a time limit
on when a youth may submit a grievance regarding an allegation of sexual
abuse.
ii) The agency may apply
otherwise-applicable time limits on any portion of a grievance that does not
allege an incident of sexual abuse.
iii) The agency shall not require a youth to
use any informal grievance process, or to otherwise attempt to resolve with
staff, an alleged incident of sexual abuse.
iv) Nothing in this Section shall restrict
the agency's ability to defend against a lawsuit filed by a youth on the ground
that the applicable statute of limitations has expired.
B) The agency shall ensure that:
i) A youth who alleges sexual abuse may
submit a grievance without submitting it to a staff member who is the subject
of the complaint, and
ii) The
grievance is not referred to a staff member who is the subject of the
complaint.
C) Final
Decisions
i) The agency shall issue its final
decision on the merits of any portion of a grievance alleging sexual abuse
within 90 days of the initial filing of the grievance.
ii) Computation of the 90-day time period
shall not include time consumed by youth in preparing any administrative
appeal.
iii) The agency may claim
an extension of time to respond, of up to 70 days, if the normal time period
for response is insufficient to make an appropriate decision. The agency shall
notify the youth in writing of any extension and provide a date by which a
decision will be made.
iv) At any
level of the administrative process, including the final level, if the youth
does not receive a response within the time allotted for reply, including any
properly noticed extension, the youth may consider the absence of a response to
be a denial at that level.
D) Third Parties
i) Third parties, including fellow youth,
staff members, family members, attorneys and outside advocates, shall be
permitted to assist youth in filing requests for administrative remedies
relating to allegations of sexual abuse, and shall also be permitted to file
requests on behalf of youth.
ii) If
a third party, other than a parent or legal guardian, files a request on behalf
of a youth, the facility may require as a condition of processing the request
that the alleged victim agree to have the request filed on their behalf, and
may also require the alleged victim to personally pursue any subsequent steps
in the administrative remedy process.
iii) If the youth declines to have the
request processed on their behalf, the agency shall document the youth's
decision.
iv) A parent or legal
guardian of a youth shall be allowed to file a grievance regarding allegations
of sexual abuse, including appeals, on behalf of a youth. A grievance shall not
be conditioned upon the youth agreeing to have the request filed on their
behalf.
E) Emergency
Grievance
i) The agency shall establish
procedures for the filing of an emergency grievance alleging that a youth is
subject to a substantial risk of imminent sexual abuse.
ii) After receiving an emergency grievance
alleging a youth is subject to a substantial risk of imminent sexual abuse, the
agency shall immediately forward the grievance (or any portion thereof that
alleges the substantial risk of imminent sexual abuse) to a level of review at
which immediate corrective action may be taken, shall provide an initial
response within 48 hours of receipt, and shall issue a final agency decision
within 5 calendar days of receipt. The initial response and final agency
decision shall document the agency's determination whether the youth is in
substantial risk of imminent sexual abuse and the action taken in response to
the emergency grievance.
F) The agency may discipline a youth for
filing a grievance related to alleged sexual abuse only when the agency
demonstrates that the youth filed the grievance in bad faith. (See Section 352
of PREA.)
7) The agency
shall establish a method to receive third-party reports of sexual abuse and
sexual harassment and shall distribute publicly information on how to report
sexual abuse and sexual harassment on behalf of a youth. (See Section 354 of
PREA.)
8) Youth Access to Outside
Support Services and Legal Representation
A)
The facility shall provide youth with access to outside victim advocates for
emotional support services related to sexual abuse, by providing, posting or
otherwise making accessible mailing addresses and telephone numbers, including
toll free hotline numbers when available, of local, State, or national victim
advocacy or rape crisis organizations, and, for persons detained solely for
civil immigration purposes, immigrant services agencies. The facility shall
enable reasonable communication between youth and these organizations and
agencies, in as confidential a manner as possible.
B) The facility shall inform youth, prior to
giving them access, of the extent to which communications will be monitored and
the extent to which reports of abuse will be forwarded to authorities in
accordance with mandatory reporting laws.
C) The agency shall maintain or attempt to
enter into memoranda of understanding or other agreements with community
service providers that are able to provide youth with confidential emotional
support services related to sexual abuse. The agency shall maintain copies of
agreements or documentation showing attempts to enter into such
agreements.
D) The facility shall
also provide youth with reasonable and confidential access to their attorneys
or other legal representation and reasonable access to parents or legal
guardians. (See Section 353 of PREA.)
e) Prohibited Punishment
1) Youth shall not be deprived of the
following basic rights as part of a disciplinary response:
A) Mattress, pillow, blanket,
sheets;
B) Meals including evening
snacks;
D) Personal hygiene items;
G) Ability to send and receive
mail;
I) Medical and mental health
services:
K) Visits with family or
attorney;
L) Access to reading
materials; and
M) Access to
religious services/counseling.
2) Group punishment for the misbehavior of
one or more youth is prohibited. Punishment must be meted out on an individual
basis.
3) Corporal punishment or
any punishment designed to humiliate or degrade youth is prohibited.
f) Use of Force by a Staff Member
When the use of force is authorized, only the least force
necessary under the circumstances shall be employed. When force is used, a
complete written report shall be made. The facility shall have written policy
and procedures that clearly define the parameters for use of force. Use of
force must be used as a last resort after de-escalation and other strategies
have failed. Staff must be trained in acceptable methods of physical
intervention.
1) Use of force must be
limited to those situations where a youth's behavior is an immediate threat to
themselves or to others.
2) Staff
must use the least restrictive response necessary and only for the period of
time necessary for the youth to gain control.
3) Pressure point control and pain compliance
techniques are prohibited.
4)
Restraining youth in a manner that restricts the airway is
prohibited.
5) Supervisory staff
shall debrief youth and staff involved in any use of force and develop
strategies that might preclude future incidents.
g) Use of Restraints
Mechanical restraints may only be used when other methods of
control are not effective and only for the time necessary for the youth to
regain control.
1) Restraints may not
be used for disciplinary reasons.
2) Handcuffed youth must never be left
alone.
3) Youth may not be
handcuffed to stationary objects.
4) Placing youth in stress positions or
hog-tying youth is prohibited.
5)
Use of straitjackets, restraint chairs and four or five point restraints are
prohibited.
6) Other instruments of
restraint such as belly chains shall not be used except as a precaution against
escape during transportation.
7)
Youth who are transported to court must have shackles or chains removed prior
to entering the courtroom unless otherwise ordered by the judge.
8) When restraints are used, a full written
report shall be made.
9) Restraints
are prohibited on pregnant youth when in active labor.
h) Chemical Agents
The use of chemical agents, including pepper spray, tear gas,
and mace is generally prohibited. Chemical agents may be utilized when the
youth's current behavior indicates that a physical hold or mechanical restraint
would be impossible or insufficient to effectively diminish the imminent risk
of serious harm. An unusual incident report shall be made pursuant to Section
2206.40(d)
after any use of chemical agents.
i) Room Confinement
The agency shall have written policies and procedures that
limit the use of room confinement as punishment for rule violations. Voluntary
requests for brief time outs by youth should be allowed and are not considered
room confinement. Room confinement may be used only as a temporary response to
behavior that threatens the safety of the youth or others.
1) Prior to use of room confinement, staff
shall have employed de-escalation techniques.
2) Room confinement shall not be used for a
fixed period of time, but only until the youth is calm enough to rejoin
programming without being a risk to the safety of others.
3) Supervisory staff shall be notified
immediately when room confinement is used.
4) Staff shall employ de-escalation
techniques and engage the youth while the youth is confined.
5) Youth confined to their rooms shall be
directly supervised or minimally checked every 30 minutes. Youth on crisis
status shall be minimally checked every 10 minutes.
6) At no time should room confinement exceed
4 hours without administrators and/or mental health staff developing an
individualized plan to address the behavior.
7) A full written report shall be made
whenever room confinement is used.